People of the State of New York v. Brooklyn House of Detention Brief for Petitioner-Appellant

    To be argued by
MARTIN SPIEGEL

COURT OF APPEALS 
STATE OF NEW YORK

THE PEOPLE OF THE STATE OF NEW YORK 
! ex rel ANTONIO GONZALEZ,
I

Petitioner-Appellant,
n

- v -

WARDEN, BROOKLYN HOUSE OF DETENTION,

Respondent.

BRIEF FOR PETITIONER-APPELLANT

HAROLD J. ROTHWAX 
. MARTIN SPIEGEL

• _ . • 320 E. Third Street
New York, N.Y. 10009

JACK GREENBERG
MICHAEL MELTSNER * *HAYWOOD BURNS

10 Columbus Circle 
New York, N.Y. 10019

Attorneys for Petitioner-Appellant.



I

V • j
TABLE OF CONTENTS

I

Preliminary Statement .............. •................................................................................................................ 1
Questions Presented ................................. 2
Statutes Involved ................................... 2
Statement of Facts ..................................
Argument:

3

Introduction ..................................... 6
iThe Bail Set Is Unconstitutionally Excessive 
In That The Evidence Demonstrates Both A Like­
lihood Of Appearance And The Existence Of 
Non-Financial Conditions Of Release Which Would 
Insure Appearance At Trial ...................... 13

* Detention Of Petitioner Solely On Account Of 
His Poverty Deprives Him Of Equal Protection 
Of The Law ...................................... 19
Pre-trial Detention Denies Petitioner Due 
Process of Law As Guaranteed By The Fourteenth 
Amendment In That (A) He Is Punished Without 
Trial And In Violation Of The Presumption Of 
Innocence And (B) He Is Prejudiced At Trial,
And Deprived Of Fundamental Fairness In The 
Guilt Finding And Sentencing Process .... ........ 27
The Eight Amendment As Incorporated In The 
Fourteenth Grants A Broad Right To Pre-trial 
Release Which May Not Be Foreclosed Simply 
Because Of Poverty .............................. 34

Conclusion .......................................... 53
•  . V  - - - - - r  . . .  . 1  ' . . .i



COURT OF APPEALS 
STATE OF NEW YORK

THE PEOPLE OF THE STATE OF NEW 
YORK ex rel ANTONIO GONZALEZ,

Petitioner-Appellant,
I /| ' - v -

i i ]

WARDEN, BROOKLYN HOUSE OF DETENTION,

Respondent.

BRIEF FOR PETITIONER-APPELLANT

Preliminary Statement

Petitioner, Antonio.Gonzalez, appeals, pursuant to 
- Section 5601 (13) (l),of the Civil Practice Law and Rules frpm 
a judgment and order of the Appellate Division, Second Depart­
ment, on October 25, 1967, which dismissed a writ of habeas 
corpus issued on October 23, 1967 by the Honorable James D. 
Hopkins, an Associate Justice of that Court, and remanded



petitioner to the custody of respondent. The Court wrote 
no opinion.

A timely notice of appeal was served on October 26,
1967.

Questions Presented

1. Whether the courts below required constitutionally excessive 
hail in the light of facts which demonstrate a likelihood
of appearance and the existence of non-financial conditions 
of release which would reasonably assure that petitioner 
would appear.

2. Whether detention of petitioner solely on account of his 
poverty deprived him of equal protection of the laws.

3. Whether pre-trial detention denied petitioner due process 
of law in that (a) he is being punished without trial, in 
violation of the presumption of innocence, without any 
showing of necessity and (b) he is prejudiced at trial 
and deprived of fundamental fairness in the guilt finding 
and sentencing process.

. I
Statutes Involved

•  . ' __ . .  . . . . . .  .  •

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

t

2



Jconviction, as follows:
1. As a matter of right, in cases of misdemeanor;
2. As a matter of discretion, in all other cases; the

court may revoke bail at any time where such bail is dis-
I i

cretionary with the court.

Statement of Facts --------------'

On, August 23, 1967, Antonio Gonzalez was arrested by 
Detective Bernard Geik of the New York City Police Department, 
and charged with assault and robbery upon an officer. He has 
been in custody continuously since August 23, 1967. Detective 
Mitsch, the injured officer was working in an undercover 
capacity, disguised as a drug addict and attempting to purchase 
narcotics. Apparently some persons, who had pretended that 
they were going to sell Detective Mitsch heroin, tried to flee 
with the money Mitsch had paid them. Detective Mitsch, trying 
to regain his money, ultimately drew his gun, and a number of 
persons, including petitioner Gonzalez, tried to stop and 
disarm Mitsch. He was badly beaten and his gun was taken.
One of the issues of the trial will be whether Mr. Gonzalez 
knew that Mitsch*was a police officer,- or reasonably believed 
that he was a drug addict who was attempting to rob another 
person at gunpoint.

Mr. Gonzalez was arraigned on August 23, 1967 in the 
Criminal Court of the City of New York. His bail was set at

3



$25,000. At various stages, the bail was reduced in the 
Criminal Court. By September 28, 1967 it had reached $2,500. 
Because this amount was far in excess of what Mr. Gonzalez 
could afford, on October 10 an application was made before 
Justice Arthur Klein, presiding in Part 31 of the Supreme 
Court, New York County, for a reduction of bail. Justice Klein 
reduced bail to $1,500. On October 16 Judge Daniel Hoffman, 
of the New York City Criminal Court reduced the bail to $1,000.

\ I t -On October 16, Justice Darwin Telesford signed a writ of habeas 
corpus returnable in th} Supreme Court, Kings County. On 
October 20, 1967, after hearing argument of counsel, Justice 
Vincent Damiani dismissed that writ, saying that under the 
circumstances, he found that the bail was reasonable.

On October 23, 1967, the instant writ of habeas corpus 
was signed by Associate Justice James D. Hopkins of the Appellate 
Division, Second Department. On October 25, 1967 a hearing was 
held before the Justices of the Appellate Division. Counsel for

. . .  I 1petitioner 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 For1 Youth at a salary of $45.00 per week

Jand was attending classes there in remedial reading and job 
training, and that present in Court was a social worker, em­
ployed by Mobilization For Youth, who. had known Jdjî ---GoTTZairez:— >.

- .4



for two years and who agreed to supervise petitioner if he 
were released. Counsel informed the Court that Mr-r* 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.j j
The Assistant District Attorney, appearing for Respondent, 
conceded that the facts as stated by petitioner's counsel 
were correct to his knowledge. After hearing counsel, the 
Court deliberated privately and then informed counsel that 
the writ was dismissed.

5



Introduction

In recent years, the American money bail system has
/been the' subject of increasing criticism and concern from

i/the informed public. More than any other aspect of the 
criminal process our practice of attempting to increase the 
likelihood of appearance at trial by means of a financial 
test, administered by professional bondsmen, has aroused
criticism from individua s and organizations concerned with

nthe criminal law. The nation's chief prosecutor has character-
2/ 3/

ized the money bail system as "cruel" and illogical." Judges, * *

1/ At least two 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; Nation Conference on 
Bail and Criminal Justice, Proceedings and Interim Report 
(1965)[hereinafter cited as National Bail Conference]; cf. 
Conference Proceedings, National Conference on Law and Poverty 
(1965).

2/ Address by the Honorable Robert F. Kennedy, Attorney General, 
National Bail Conference 297 (1965).

3/ 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 criticism into reform); see also Justice Botein's 
address to the National Conference 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 
successful release-on-recognizance program).

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4 / 5 /  6/
scholars, administrators and private researchers have
concurred in questioning both the operation, the assumptions
and the constitutionality of the money bail system, and in
calling for its reform.

Recent writings, for example, agree that monetary bail 
is inefficacious as a means of assuring the presence of an 
accused at trial. Freed & Wald, Bail in the United States: 
1964, A Report to the National Conference on Bail and Criminal 
Justice 49-55 [hereinafter cited as Freed & Wald]; Area, 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); •

4/ Foote, The Coming Constitutional Crisis in Bail, 113 U. Pa..
L. Rev. 959, 1125 (1965) (a reexamination of the meaning of 
the Eighth Amendment's prohibition of excessive bail in a 
historical perspective, and an inquiry into the relationship 
between the proper Eighth Amendment standards and current 
bail abuses)[hereinafter cited as Crisis in Bail]; Beeley,
The Bail System in Chicago 160 (1927); Allen, Poverty and the 
Administration of Federal Criminal Justice, Report of the 
Attorney General's Committee on Poverty and the Administration 
of Federal Criminal Justice 58-89 (1963); Ares, Bail and the 
Indigent Accused, 8 Crime and Delin. 12 (1962).

5/ 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 Probation 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).

6/ 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 (j r . Bar Sec., D.C. Bar Ass'n 1963).

7



Note , Bail: An Ancient Practice Reexamined, 70 Yale L.J.
966 (1961). It has been noted that in most cases the decision 
as to whether an accused will be released prior to trial is 
effectively delegated to a professional bondsman whose decision 
to release an accused is unrelated to the likelihood of flight 
and indeed relates only to his own profit motive- See Report 
of the 3d February 1954 Grand Jury of New York County, New York 
to Honorable John A. Mullen at 2-3; Freed & Wald 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). The cost of pre-trial imprisonment in terms of 
time, public funds, employment, education, and human suffering 
is staggering. See Freed & Wald 39-48; National Bail Conference 
63-65; Goldfarb, No Room in the Jail, The New Republic, March 5, 
1966, p. 12; Foote, Compelling Appearance in Court: Administration
of Bail in Philadelphia, .102 U. Pa. L. Rev. 1031 (1954) [herein­
after cited as Philadelphia Bail Study]; Foote, A Study of the 
Administration of Bail in New Yo-rk City, 106 U. 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).
.This extensive Research has amply documented that the bail 
setting process is often abused to punish prior to trial, to 
give an accused "a taste of jail," or"to make an example."
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)

8



!. ‘ • •*

New York Bail Study 705; Philadelphia Bail Study 1039.
Criticism has not, however, been limited to the operation 

of the present system. The system itself has been questioned 
on a variety of constitutional grounds by most of those who have 
observed it in operation. Commentators have challenged the 
constitutionality of denying pre-trial liberty to an accused 
solely on account of his poverty; of punishing the indigent 
through pre-trial imprisonment with its correlative presumption 
not of innocence but of guilt, although he alleges he is not 
guilty; of detaining the indigent accused when the detention 
itself may adversely affect the disposition of his case and 
deprive him of a fair trial. In light of a constitutional pro­
hibition against excessive bail setting, it has been said that 
bail in excess of what a defendant can afford, or bail set 
without consideration and express rejection of non-financial 
means of increasing the probability of appearance at trial is 
constitutionally excessive. A combination of the substantial 
constitutional doubts raised with respect to the bail system as 
a whole and the overwhelming body of evidence documenting the 
practiced abuses of the system led Congress in 1966 to enact the 
Bail Reform Act of 1966. The Act requires that an accused 
shall be released on his own recognizance or an unsecured promise 
to pay unless the United States Commissioner or judge finds that 
an accused would not be reasonably likely to appear. Even if 
it is determined that an accused is not likely to appear if 
released on his own recognizance, the judge or commissioner can 
only require secured money bail if he finds a variety of non- 
financial conditions of release will not insure the presence of

I

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the accused. Thus, Congress has responded to a need for 
reform by ameliorating the money bail system and providing 
that wherever possible release on nonfinancial terms shall 
be proper. The Supreme Court of the United States has 
responded to this criticism in dramatic fashion in the most 
recent bail cases to come before it; In Re Shuttlesworth,
369 U.S. 35 (1962); Bitter v. United States, 36 U.S.L. Week 
3159 (October 16, 1967).

Shuttlesworth was convicted of disorderly conduct arising
out of efforts to test the constitutionality of segregat’on of

Uthe Birmingham transit system and was sentenced to pay $100 
and costs or serve 82 days. His conviction was affirmed by 
the Alabama Court of Appeals without consideration on the merits 
of his challenge to the constitutionality of the disorderly 
ordinance as applied, because his filing of the transcript of 
evidence was untimely under Alabama practice. The Supreme 
Court of Alabama and the Supreme Court of the United States 
denied certiorari. Shuttlesworth then sought habeas corpus in 
the District Court for the Northern District of Alabama, which 
denied relief on the ground that untimely filing of the tran­
script on the state appeal had forfeited the constitutional 
claim. Without^reaching this question, Judge Rives denied a 
certificate of probably cause on the ground that state collateral 
relief by habeas corpus or coram nobis appeared to be available.
A motion for leave to file an original petition for habeas corpus 
was filed in the Supreme Court, which disposed of the matter 
by holding that state judicial proceedings which failed to reach

10



the petitioner's claims or effect his release within five 
days were thereby ineffective and insufficient to justify 
further delay of federal jucicial relief. Shuttlesworth 
stands for the proposition that release on bail is so 
significant a part of the criminal process that a federal 
court will entertain the merits of a federal habeas petition, 
not withstanding the exhaustion of remedies doctrine, if 
release is not obtained expeditiously in state courts.

In Bitter, supra, the Supreme Court took the unusual 
step of reversing a conviction on the ground that pre-conviction 
liberty on bond (or recognizance) had been unjustifiably 
revoked. The defendant's liberty had been revoked during 
trial when' he returned late to a court proceeding and he was 
subsequently incarcerated at a jail 40 miles from the court­
room. The court found revocation of liberty in the circumstances 
of the case amounted to unjustifiable punishment unrelated to a 
significant interference with trial processes; and that it 
constituted an "unwarranted burden upon defendant and his 
counsel in the conduct of the case."

Of course, neither Shuttlesworth or Bitter address them­
selves directly to the merits of this case but their results 
do speak eloquently of an awareness that the operation of the 
bail system deserves careful scrutiny to insure conformity 
with evolving concepts of due process of law and equal protec­
tion of the laws.

In the submission which follows we urge first, that given 
the facts which demonstrate a likelihood of appearance and the

11



existence of nonfinancial conditions of release which would 
increase the likelihood of appearance, the lower courts required 
constitutionally excessive bail. We ask this court to instruct
lower courts to determine expressly, on the basis of the evidence|
before them, that no available nonfinancial alternative will

*reasonably insure appearance before approving a financial test 
for an indigent's pre-trial release.

Secondly, we urge that detention of petitioner solely on 
account of his poverty deprives him of equal protection of the 
laws.

Thirdly, we urge that pre-trial detention denies petitioner 
due process of law in that (a) he is punished without trial and 
in violation of the presumption of innocence without any showing 
of overriding necessity and (b) he is prejudiced at trial and 
deprived of fundamental fairness in the guilt finding and 
sentencing process.

A final section of this brief contains a discussion of 
historical and other materials which demonstrate that the 
Eighth Amendment as incorporated in the Fourteenth grants a 
broad right to pre-trial release which may not be foreclosed 
to the poor.

12



I

The Bail Set Is Unconstitutionally 
Excessive In That The Evidence 
Demonstrates Both A Likelihood Of 
Appearance And The Existence Of 
Nonfinancial Conditions Of Release 
Which Would Insure Appearance At 
Trial.

The only legitimate purpose of a pre-trial bail requirement 
is to decrease the risk that a defendant will fail to appear at
trial, Stack v. Boyle, 342 U.S. 1, 5 (1951). Bail is not to be

1 /used as an instrument of punishment, and whenever bail is made 
to serve a purpose for wh ch it was not intended, it becomes 
excessive, Cohen v. United States, 7 L.ed 2d 518, 82 S. Ct. 526 
(1962) (Douglas J.). Bail is a device to insure liberty, not 
detention:

This traditional right to freedom before 
conviction permits the unhampered prepara­
tion of a defense, and serves to prevent 
the infliction of punishment prior to 
conviction. . . Unless this right to bail 
is preserved, the presumption of innocence, 
secured only after centuries of struggle, 
would lose its meaning. Stack v. Boyle, 
supra at 4.

All the evidence in this case demonstrates the extreme 
unlikelihood of non-appearance. Petitioner's character and 
roots in the community are totally inconsistent with flight.

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 leading to his arrest 
he was working as a clerk for Mobilization for Youth, Inc., an 
anti-poverty organization with offices on the lower east side.

13



With his earnings of $45.00 per week he helped his father support 
the younger children in the family. Mr. Gonzalez also attended 
classes in remedial reading and job training sponsored by 
Mobilization in order to improve his situation.

Thus, at the time he submitted to arrest and incarceration, 
the defendant, a teenage youth (1) had steady employment (2) was 
helping to support his family, (3) was attending educational 
classes, (4) had lived at the same address with his family for 
a period of years in the same neighborhood as he worked. It 
is difficult to conceive of a person less likely to flee the 
jurisdiction.

The record below also reflects upon the defendant as a 
person. He is a young man without a criminal record who, 
according to the arresting officer, when he realized he was 
wanted for a crime made a full statement and was fully coopera­
tive.

Whether the accused's involvement in the instant prose­
cution 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 reasonably 
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.

While there is substantial evidence of roots in the 
community, in all proceedings below, though opposing reduction

14



• I
II „ ■ .i

of bail, the state has not been able to produce evidence to 
show a likelihood of flight. Given the purpose of bail, to 
secure pre-trial liberty rather than detention, the state 
must come forward with evidence to show that it is likely a 
defendant may flee before a bail figure which resuits in deten­
tion is sustained. In the instant case, aside from the bare 
accusation, the only factor which the state has been able to 
point to is the fact that prior to three years ago petitioner 
lived in Puerto Rico. Detention on the basis of this factor 
alone is untenable; it would effectively deny release to Puerto 
Ricans residing in New York, regardless of their roots in the 
state.

Under the law of New York if the lower court had felt that 
there was evidence that the accused would not present himself 
voluntarily at the time of trial it could have denied bail 
altogether. N. Y. Code of Crim. Proc. §553. Evidentally this 
was not the judgment of the courts below because bail has been 
set. In point of fact the accused has remained in jail for the 
last nine weeks and is in jail presently, not because if 
released he can be expected to flee (if that were the case the 
bail would be far more than $1,000.00) but because he is too 
impecunious to afford the ransom the state seeks to extract.

In view of the historical background of our bail system, 
its purpose, and constitutional principles against discrimination 
on the basis of poverty, sound construction and policy requires 
that the courts refrain from exacting financial conditions for 
pre-trial release when nonfinancial conditions would accomplish

15



the same purpose. For example, in the instant case, Mr.
Elwood Jefferson, a social worker who has known petitioner 
for two years stated that he would supervise petitioner if he 
were released prior to trial. Where the evidence shows that 
there are non-monetary conditions of release which will result 
in appearance without detaining an accused, the courts should
be bound to choose them.

I ;In addition to parole in the custody of the social worker
|the courts below had a number of nonfinancial alternatives to 

the imposition of money bail on this indigent defendant. The 
federal Bail Reform Act of 1966 is perhaps the best existing 
model of a pre-trial release system in use. 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. 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 purpose. 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;

(3) requiring the execution of an appearance bond in a

16



I ' • • ' *
i - ; 1
j . j

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 theI •
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 appearance as required, including a 
condition requiring that the person return to custody 
after specified hours.
(18 U.S.C. §3146)

The Bail Reform Act of 1966 is cited because it is 
illustrative of the range of possibilities open to courts for 
imposing nonfinancial conditions of release, conditions which 
are well within the broad range of discretion of the lower 
courts. Faced with an indigent accused who showed no likelihood 
of fleeing, the courts below should have imposed one or more of 
the nonfinancial conditions of release that were open to them.
If the petitioner failed to comply with these conditions, the

9 ' ' _-- ■ -- '
court could then revoke release pursuant to its powers under 
§553(2) of the Code of Criminal Procedure.

Thus, it is petitioner's position that the setting of 
bail conditions more onerous than are reasonably necessary 
to result in a defendant's appearance constitutes the imposition 
of an excessive bail within the meaning of the Eighth and

17



Fourteenth Amendments to the United States Constitution and 
Article I, Section 5 of the New York State Constitution.

It may be argued by the District Attorney that the refusal • 
of the lower courts to lower bail further may be taken as the 
product of their judicial finding that none of the non-monetary 
methods described above are sufficient to secure petitioner's 
appearance. However, since the bail standards urged here have 
never been articulated by an appellate court in New York, there 
is absolutely no reason to infer that such a standard was 
applied. Furthermore, the record is bare of any such finding 
by the lower court. Finally, it is submitted that on the facts 
of the instant case, such a determination would be without 
basis. Cf. People ex rel. Deliz v. Warden, 260 App. Div. 155,
21 N.Y.S. 2d 435 (1940).

18



II

Detention of petitioner Solely 
On Account Of His Poverty Deprives
Him Of Equal protection Of The Law*I / >

’ ;
The equal protection clause of the Fourteenth Amendment to 

the United States Constitution commands that distinctions drawn by
a State — - whether in the exaction of pains or in the allowance of
benefits —  must not be irrelevant, arbitrary or invidious, VJhere

i /a state chooses to grant an advantage to one class and not to 
others, « * The attempted classification* * *must always rest 
upon some difference which bears a reasonable and just relation to 
the act in respect to which the classification is proposed, and can
never be made arbitrarily and without any such basis*" Gulf, uColorado, and Santa Pe Ry* v* Ellis, 165 U*S* 150, 155, 159 (1897)* 
See, e*g., Skinner v, Oklahoma, 316 U«S* 535 (1942); Baxstrom v. 
HeroId, 86 S* Ct* 760 (1966)* .

The lesson of these cases is that there can be no difference 
in treatment, unless there is a rational distinction between the 
classes affected* or, to put it another way, where no rational

i .

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

- 19 -



distinction exists between two persons or classes, the lav; must
treat them alike. As Mr. Justice Black stated in Griffin v.
Illinois, /351 U.S. 12 (1956) at 17-13:

. . .  our own constitutional guarantees of 
due process and equal protection both call 
for procedures in criminal trials which 
allow no invidious discriminations between 

| persons and groups of persons, Both equal
! | , protection and due process emphasize the
j / central aim of our entire judicial system 

—  all people charged with crime must, so 
far as the la ; is concerned, 1 stand on an 
equality before the bar of justice in every 
American court.1

Any lav; which fails to abide by that basic principle of 
American jurisprudence is, of course, unconstitutional and hence 
void.

The relevance of these general principles to the issue here 
under discussion is clear. Petitioner is being detained in jail 
for no reason other than his poverty. Not only does this 
detention deprive him of his greatest right of all — - his liberty 
—  without trial, conviction and sentence, but as discussed infra 
experience demonstrates that he suffers, by reason of his pre­
trial incarceration, significant consequence which infect the«
fairness and equality of the fact finding and sentencing pro- ' 
ceedings which follow his incarceration. Petitioner submits that 
his continued incarceration, solely because ha is not a rich man, 
denies him equal protection of the laws as guaranteed by the 
Fourteenth Amendment to the Constitution of the United States.

20



■£n impressive series of recent decisions strikes down under
%the Equal Protection Clause various state practices which deny 

indigent criminal accuseds substantial procedural advantages which 
those who can pay for them may obtain. Griffin v^Illinois, 351 
U.S. 12 (1956) (denial of free criminal trial transcript necessary 
for adequate appellate review) ? Eskridge v. Washington State Board, 
357 U.S. 214 (1958) (denial; absent trial court finding that

i \ j  j“justice will thereby be promoted." of free criminal trial tran- 
script necessary for adequate appellate review) 7 Draper v. 
Washington, 372 U.S. 487 (1963) (denial, on trial court finding 
that appeal is frivolous, of free criminal trial transcript 
necessary for adequate appellate review)? Lane v» Brown, 372 U.S. 
477 (1963) (denial, absent public defender's willingness to prose­
cute appeal from denial 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 (1963) 
(denial, absent appellate finding that appointment of counsel on 
appeal would be of value to defendant or the appellate court, of 
free-appointment of counsel on appeal as of rights from criminal 
conyict?.on) ; Eurns <v. Ohio, 360 U.S. 252 (1959) (denial, in default 
of $20.00 filing fee, of motion for leave to appeal a felony con­
viction) ; 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

- 21 —



II

earnings). See also Long v. District Court of Iowa, 385 U.S.
192 (1966); People v. Saffore, 18 N.Y.2d 101, 218 N.E.2d 685 
(1966); People v. Montgomery, 18 N.Y.2d 993, 278 N.Y.S.2d 226,I
224 N.E.2d 730 (1966). These decisions establish, as stated 
in.Griffin, that within the meaning of the equal protection 
clause "There can be no equal justice where the kind of trial 
a man gets depends on the amount of money he has" 351 U.S. at 19.

Applying the principle to an indigent's request for 
release on his 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). He subsequently answered the question in the nega­
tive, concluding that "no man should be denied release because 
of indigence. Instead, under our constitutional system, a roan 
is entitled to be released on 'personal recognizance' where 
other relevant factors make it reasonable to believe that he 
will comply with the orders of the Court." Bandy v. United 
States, 82 S. Ct. 11, 13 (Douglas, J. 196T) .

-------------------------------------------•----------------------:— • ---------- ;  — — ‘— •—   —  . . . . .  ■ . - v  -  ■

8/ The first Bandy decision, on application for release on recog­
nizance pending certiorari to review affirmance of Bandy's 
conviction by a court of appeals, was filed by Mr. Justice 
Douglas on the same day that the Supreme Court vacated the 
court of appeals' judgment and remanded the case to that court 
for further consideration of the appeal on the merits. In 
light of this development, Justice Douglas denied the applica­
tion without prejudice to its renewal in the court of appeals. 
81 S. Ct. 197, 198. The court of appeals subsequently denied 
such an application, and in the second Bandy opinion, not­
withstanding his view that the denial was unconstitutional,

22



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

reflects a misconception of the function of 
the Constitution and this Court's obligation 
in interpreting it. The Constitution of the 

i United States must ba read as embodying 
I general principles meant*to govern society 

and the institutions of government as they 
evolve through :ime, 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 
(H.Do Ala. IS68) (three-judge court)).

Recently, the United States Suprem 
time-honored poll tax of $1.50 as

s Court struck down Virginia's 
a prerequisite to voting in state

elections on the ground that "Voter qualifications have no relation

8 (Con'to) Justice Douglas again refused release on recogni­
sance, on the theory that —— a petition for certiorari seeking 
review of the court of appeals' adverse determination having 
been filed -- an individual Justice ought not anticipate and 
"moot” the issue before the full Court. Apparently, the paper 
filed by Bandy which Mr.•Justice Douglas believed to be a 
petition for certiorari was rather a petition for leave to 
file an original petition for habeas corpus. The Court sub­
sequently den fed that petition, With d-lr. Justice Douglas 
dissenting on the ground of his Bandy II opinion. Bandy va 
i2ll£ea_States, 369 U.S. 815 (1952). Although the C ^rt/Tn 
denying tine relief sought, cannot but have been aware of the 
issue framed by Justice Douglas, it is impossible to sav

s views orwhether it considered and rejected the Justice' w 
whether it denied the petition on some available procedu: ground. il

- ‘23 -



*

to wealth nor to paying or not paying this or any other tax"
Harper v. Virginia State Board of Elections, 383 U0S0 663 (1966)c
In finding yealth a "capricious" and "irrelevant factor" the Court
addressed itself to the contention that the poll tax v/as “an old
familiar form of taxation" and rejected history as sufficient to
support discrimination on the basis of property*

I ' I ' In determining what lines are unconstitutionally 
I ! discriminatory, we have never been confined 

to historic noti< ns 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 c Hogan, 373 U 0S0 1. 5-6o Notions 
of what constitutes equal treatment for 
purposes of the Equal Protection Clause do 
change (emphasis in original).

Thus, notwithstanding ancient abuses against the poor, the 
Constitution today decrees that the financial position of one 
charged v/ith crime shall have no place in determining the character 
of treatment he receives from the state0 This is especially true 
with respect to pre-trial liberty of an accused for: "the function
of bail is limited, (and] the fixing of bail for any individual 
defendant must be based upon standards relevant to the purpose of 
assuring the presence of that defendant#" Stack v„ Boyle, 342 U.S, 
1* 5 (1951) (emphasis added)„ Fixing bail for petitioner in an 
amount which he cannot pay because of poverty is not basing bail 
upon "standards relevant" to the purpose of assuring his presence.
It is to deny him release and continue his incarceration until trial 
in violation of his right to bail under the Constitution and laws

24 -
. J ?lr-



I • ■:
I . j ■ . •

of. the State and the United States.
It is ironic that we freely provide an indigent with 

transcripts and lawyers after conviction but deny them pre­
trial liberty 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, cf. Bail Reform Act of 1966, 
89-465; 80 Stat. 214. It is an invidious discrimination, and 
denies petitioner in the most obvious and offensive way his 
constitutional right to equal protection of the laws. Under 
the laws of the State of New York the lower courts could have 
denied bail if there was any evidence suggestive that Mr. Gonzalez 
would not be likely to appear, N.Y. Code of Criminal Procedure 
§ 553. To set bail at a figure which cannot be met, once bail 
is set, 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 attorneys could be 
denied to the poor because there is no constitutional right

f
to appeal. The Supreme Court rejected these contentions holding 
that as long as the state granted an appeal access to the Appellate 
Court could not be denied on the basis of wealth. In light of 
these decisions, we fail to see how the state can justify with­
holding pre-trial liberty once it has been determined, by setting 
bail in the first place,that release is justified.

In People v. Saffore, 18 N.Y.2d 101, 218 N.E.2d 686 (1966),

25



this Court held that imprisonment on an indigent convicted 
defendant in excess of the one year statutory maximum for his 
misdemeanor offense, because of his financial inability to pay 
a fine, violated his right to Equal Protection of the Laws as 
well as the constitutional ban against excessive fines.

<
The analogy to the bail area is plain. No meaningful dis­

tinction can be drawn between over-the-statutory-maximum imprison­
ment for inability to pay a fine, and imprisonment for inability 
to provide bail money before conviction. As Mr. Justice Jackson 
has said: "The practice of admission to bail as it has evolved
in Anglo-American law is not a device for keeping persons in 
jail upon mere accusation until it is found convenient to give 
them a trial. On the contrary, the spirit of the procedure is 
to enable them to stay out of jail until a trial has found them 
guilty." Stack v. Boyle, supra at pp. 7, 8.

26



Ill

Pre-trial Detention Denies Petitioner 
Due Process of Law As Guaranteed By 
The Fourteenth Amendment In That (A) He 
Is Punished Without Trial and In Viola­
tion of the Presumption of Innocence and 
(B) He is Prejudiced At Trial, and 
Deprived of Fundamental Fairness in the 
Guilt Finding and Sentencing Process.

Pre-trial detention punishes petitioner, a criminally accused 
indigent, without trial and prejudices the fact-finding, guilty- 
determining and punishment-setting processes through which he 
passes against impartial evaluation of his case.

That pre-trial detention imposes punishment is obvious.
Bitter v. United States, J6 U.S.L. Week 3159 (October 16, 1967).
A jailed accused loses his liberty, the most precious of rights, 
as completely as does any convict. Petitioner, for example, has 
been subjected to severance of family relations, loss of pay, 
loss of employment, and loss of educational opportunity. The 
conditions in available pre-trial detention facilities are normally 
inhumane. An accused is often subjected to poor food and housing, 
overcrowding, inadequate recreational and other facilities, essen­
tial rudimentary comfort and decency. " [A]t the time an accused 
is convicted and sentenced to imprisonment, his standard of living

JL/is almost certain to rise." As the National Conference on Bail 
and Criminal Justice put it:

9 / Other common restrictions of the detention jail are censor­
ship of mail, restrictions on newspapers and periodicals, 
a frequently total prohibition on the use of the telephone, 
inadequate facilities for confidential conversations with ■- 
lawyers and others, including restricted visiting privileges 
only for close relatives and restriction of visits to times 
which are particularly inconvenient to members of

27



"His horn3 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 juris­
diction much like the convicted criminal 

i serving a sentence" (Bail in the United *
States: 1954, 43 (Nat'l Conference on 
Bail and Criminal Justice)),

To force one not convicted of crime to suffer punishment of 
this magnitude for no reason other than poverty is shocking and 
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 
UcSo 1, 4 (1951), Our system of justice does not permit incarcera­
tion because of a supposed risk of flights "that is a calculated 
risk which the law takes as the price of our system of justice* . * 
[Tjha spirit of the procedure is to enable [defendants] to stay out 
of jail until a trial has found them guilty" jCd, at 8 (separate' 
opinion) * .,

It is vicious enough, then, to commit to a jail an indigent 
accused who may never be sentenced to any imprisonment upon convic­
tion by due course of law because after serving his pre-trial jail 
term ho is either net convicted or, if convicted, has his case

2,/ (Con'ti) the working class, Foote* concludes that "these 
limitations are as unnecessary to the legitimate purpose of 
•detention -- security —  as is the line up and in their con­
tempt 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 purposes0 For example, to 
give the accused 'a taste of jail,"’

28



concluded by a disposition that does not include imprisonment.
10/There are many such appalling cases. It is, however, far more 

serious and clearly a violation of due process to permit the dis­
abilities which flow from pre-trial detention to infect the fact­
finding, guilty-determining, punishment-setting processes of the 
jailed defendant. Right to counsel, for example, one of the funda­
mental rights of one accused of crime is of limited value if we 
permit a host of subtle conditions to prejudice the working of the 
adversary'system against one detained prior to trial. See Bitter 
v. United States, supra.

The (potential) adverse effects of pre-trial incarceration are 
many. See Foote, The Coming Constitutional Crisis in Bail, 113 U. 
Pa. L. Rev. 959, 1125 (1965). An indigent defendant who lacks the 
resources to finance a pre-vrial investigation by others and who 
cannot, because incarcerated, conduct such investigation himself is 
seriously disadvantaged. If the resources available to public 
authorities for pre-trial investigation on behalf of indigent 
defendants are inadequate, the defendant who has his liberty during 
the pre-trial process is in a significantly advantageous position 
relative to the accused who is incarcerated. Moreover, as recog­
nized by the Attorney General's Committee on Poverty and Administra-

*tio'n of justice in many cases "it is only the accused who can locate

'10/ It 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 ..
(National Conference on Bail and Criminal Justice).

29



Petitionerand induce reluctant witnesses to come forward." 
maintains strenuously that there are witnesses who may assist 
in his defense who are unavailable to his counsel but who he 
may be able to locate. Preparing a defense is especially dif- 
ficult where, as here, ethnic or class differences isolate a 
subcultural group and make it even more difficult for investigators

1 1 /to learn facts which might exonerate an accused.
Another kind of special prejudice which the incarcerated 

accused is subject to is exhibition in a line-up which not only 
results in possible new evidence being accumulated against him but 
may result in police attempts to exploit the identification process. 
The prosecution is able to obtain this advantage solely because of 
the defendant's pre-trial detention status. If he had been enlarged 
on bail police jurisdiction of him could not have been obtained 
without his consent.

A number of less obvious consequences are significant.
Professor Foote summarizes them:

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 defendants." -- - ~

2. The expectations of all those connected with the adminis­
tration of criminal justice —  police, jailers, prosecutors,

1V  Crisis in Bail, at p. 1141, 1142.

- 30 -



defense counsel, judges, probation officers —  prejudge the jail 
case as a failure, and this prejudgment colors their actual dis- 
position; 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 dis­
position process may in part demonstrate 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 com­
pleting a period of probation.

4. The quality of representation which a jail defendant 
obtains is adversely affected by pre-trial detention because, in­
stead of the defendant coming to his office, counsel must go to the
jail to see tne defendant, often under conditions unfavorable to 
privacy and mutual dignity. The result is a reduction in the 
frequency of pre-trial consultation below that which is desirable
ana which would take place where the defendant is on bail and able

« -- -r _- .to coma to the lawyer's office. The burden on the lawyer may also
intensify his resentment if he is already concerned about the low

%

work-to-fee ratio of much criminal representation.
5. The quality of the lawyer—client relationship is adversely 

affected by pre-trial detention because the jailed defendant will 
have less confidence in counsel and is more likely than a bailed

31



II. ■

defendant to feel that lie As getting inadequate representation.
v

Jail house consultation with the lawyer intensifies the defendant’s
j i • . '

disassobiaticn fi'oa counsel because he has had little or do responsi"j i

bility in the selection of the lawyer? confirms his opinion that 
because he has no money he is receiving second class legal services? 
induces that resentment which the poor feel because they are treated
as charity cases; and adds to his suspicion that the adversary

j - •system may in fact not be verv adversary when counsel is a public
• \ ~ >defender who is paid by the state and whose professional career is 

the representation of jail house failures.
6. 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 with 
detention prisons are aware that this cynical attitude dominates 
the value culture of the jail*

Empirical data suggests a very str'ong association between these 
unfavorable effects* of pre-trial detention and higher sentences ar-d 
fewer releases on probation. A host of authorities corroborate this 
conclusion. See Crisis in Bail at SSO. See also Philadelphia Bail . 
Study, 1052, table 1; New York Bail Study, 726-727. See also Freed 
and Wald, Bail in United states, 1954. One study demonstrated that 
of a group of New York prisoners in 1934, three tines as many

32



jailed defendants were sentenced to prison as those enlarged
12/on bail during the pre-trial period. Twice as many bailed 

defendants as jailed defendants were not convicted; of those 
convicted five times more jailed than bailed defendants did 
not receive prison sentences. The author concluded these find­
ings provide strong support for the notion that a causative 
relationship exists between detention and unfavorable disposi­
tion.

Given the prejudice suffered by detention prior to trial 
and conviction, petitioner cannot be incarcerated solely by 
reason of poverty. 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 —  cannot claim in this 
case the support of any legitimate state interest sufficient 
to offset the pains and prejudices which it needlessly imposes 
on the poor.

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

33



IV

The Eighth Amendment As Incorporated 
By The Fourteenth Grants A Broad 
Right To Pre-trial Release Which May 
Not Be Foreclosed Simply Because Of 
Poverty

The eighth Amendment to the Constitution states as follows:
Excessive bail shall not be required, nor 
excessive fines imposed, nor cruel and 
unusual punishments inflicted.

It is petitioner's position that the Amendment as incorporated
by the Fourteenth implies a constitutional right to pre-trial
release, which cannot be burdened at this time in our history by
irrelevant considerations of wealth.

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

It has been noted by the outstanding contemporary commentator
on the bail institution Professor Caleb Foote that there are three
possible interpretations of the language of the excessive bail
clause of the Eighth Amendment if it is considered as a text apart

13/
from its historical context.

13/ See Foote "The Coming Constitutional, Crisis in Bail" 113 
U. of Pa. L. Rev. 959, 1125 (1965) hereinafter cited as 
Crisis in Bail.

34



First, it night be urged that the Eighth Amendment weans 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 lav;. This notion is 
contrary to the whole concept of a Bill of Rights restricting a
legislature, for the right to bail could be denied by Congress and

• > -

the Amendment rendered meaningless for want of application. Such 
a construction —  under which the Eighth Amendment would be 
nugatory in the absence of congressional or state legislation 
establishing the scope of the right to bail —  runs against tne 
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 
actiono Robinson v. California, 370 U.S. 6G0.

A second possible construction would be that hail 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 retains the discretion to deny bail

35



1

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 v/hat it 

i is however permitted to do directly deny 
relief —  the clause is reduced to the 

! stature of little more than a pious platitude.
! i (Crisis in Bail at 970)

A great deal of historical data supports the conclusion that
the third possible construction —  that the excessive bail clause
created a federal constitutional right to pre-trial release —  is
far more likely than either of the two dryly logical alternatives
suggested above. In 1789 while the excessive bail clause was
being considered as one of the proposed amendments to the Con-
stitution, the first Congress passed Section 33 of the Judiciary
Act extending an absolute right to bail in all noncapital federal
criminal cases. The available materials contain "nothing to
indicate that anyone in Congress recognised the anomaly of
advancing the basic right governing pre-trial practice in the
form of a statute while enshrining the subsiduary protection
insuring fair implementation of that right in the Constitution 

14/
itself." One is left to conclude that the right to bail v;as so 
fundamental to the framers that they never questioned that the 
Eighth Amendment had granted it. This conclusion is reinforced

14/ Crisis in Eail at 972.

- 36



by the passage in 1787 of the Northwest Ordinance which stated:
. . . all persons shall be bailable unless 
for capital offenses where the proof shall 
be evident or the presumption great; all 
i fines shall be moderate; and no cruel or 

j. unusual punishments shall be inflicted. . . .
(An Ordinance for the government of the 
Territory of the United States, Northwest 
of the River Ohio, July 13, 1787, Article ii).

Ho reason suggests itself why the inhabitants of the Northwest 
Territory should have been given by their organic charter 
greater rights in this regard than citizens of the United States 
within its organic bounds.

The history of the language which became the Eighth Amendment 
also stroports this conclusion. The- following excerpts from

ii/Cr5-sis in Bail describe the background of English history
against which the Eighth Amendment came to be drafted:

Recognition of the importance of bail in order to - - 
avoid pre-trial imprisonment was a central theme 
in the long struggle to implement the promise of 
the famous 39th chapter of Magna Carta that "no 
freeman shall be arrested, or detained in prison. . . 
unless, . .by the lav; of the land." It is 
significant that three of the most critical 
(steps in this process *—  the Petition of Right 
I in 1628, the Habeas Corpus Act of 1S79, and 
the Bill of Rights of 1689 -- grew out of 
cases v;]jich alleged abusive denial of freedom 
on bail pending trial.

Darnel's Case in 1627 involved five knights 
who had been thrown in prison by Charles I and 
who brought an action for habeas corpus at the 
king's bench. The return of the prison warden 
merely recited that Darnel "was and is committed

15/ Id. at 965-936 [notes omitted].

- 37



by the special command of his majesty, &c.n 
Sergeant Bramston opened for his client by 
stating that "it is his petition, that he 
may be bailed from his imprisonment, . , for 
it being before trial and conviction had by 
law, it is but an accusation, and he that is 
only accused ought by law to be let to bail*" 
Counsel for another of the knights asked "how 
can- the court adjudge upon this return, that 
Sir John Corbet ought be kept in prison, and, „ . 
that he is not bailable?" The Attorney 
1 General argued that the. version of Magna 
Carta chapter 39, enacted in 1354 upon which 
the petitioners relied did not apply to pre­
trial imprisonment, It was his position that 
only imprisonment pursuant to "final prosecution" 
must be "by due process of lav;"; the pre-trial 
period "is not within the meaning of the 
statute," When the judges proved their sub­
servience to the King by denying release, the
case was taken up in Commons as soon as 
parliament convened early the next year. In 
the debates which ensued during the preparation 
of the Petition of Right there was repeated
discussion ofDarnel *s case 
e f fe c t ive ne s s 
First of 1275 
thus Coke stated that 
must be known, else

the fact that, if the decision in 
stood, it would impair the 
of the Statute of Westminster the 
which governed admission to bail;

"the cause of imprisonment 
statute will be of littlethe

force. oU
It was against this background that the 

Petition of Right was adopted and received from 
] Charles I the grudging answer, "Soit droit fait 
come il est desire par le petition," Reciting 
the abu^e of cases like that of Darnel,, the 
Petition prayed that "no freeman in any such 
manner as is before mentioned, be imprisoned or 
detained: and thereby brought the force of Magna 
Carta to bear upon pre-tri'al imprisonment.

Not quite half a century later, on June 27, 
1676, one Jenkes was arrested and imprisoned, 
apparently for inciting to riot in making a 
speech asking that Charles n be petitioned to 
call a new parliament. The charge was one which 
by statute required that Jenkes be admitted to 
bail, but on the following August 13 he was

38



f
■,.i

still trying in vain to gat. anyone to sot and 
take his bail, and ha was ultimately released 
only by an informal process* Cases such as 
Jenkes' in turn contributed to the enactment 
of the great Habeas Corpus Act of 1679, which 
recited that "many of the King's subjects have 
been and hereafter may be long detained in 
prison, in such cases where by law they are 
bailable. . „ ." The act provided in great 
detail for an habeas corpus procedure which 
plugged the loopholes and even made the king's 
bench judges subject to penalties for non- 
compliance. • •

The Act of 1679 stopped the procedural 
runaround to which Jenkes had been subject, but 
by setting impossibly high bail the judges 
erected another obstacle to thwart the purpose 
of the law on pre-trial detention. When, 
therefore, parliament drew up a Bill of Rights 
which was accepted by William and Mary as they 
assumed the throne, one of the abuses by which 
the late King was alleged to have tried "to 
subvert . . .  the laws and liberties of the 
kingdom" was that "excessive bail hath been 
required of persons committed in criminal 
cases, to elude the benefit of the laws made
for the liberty of the subjects," The remedy 
which followed was the language with which we 
are concerned: "That excessive bail ought not
to be required. . . . "

Two things stand out in this history. The 
first is that relief against abusive pre-trial 
imprisonment was one of those fundamental aspects 
of liberty which was of most concern during the 
formative era of English lav;. The evils which were 
being confbatted were obvious; as'Jenkes said in 
one of his futile petitions:

My Lord, I have been imprisoned 
since the 28-th of June, to my great loss, 
charge, and prejudice of my health. I 
have hitherto been denied bail, Habeas 
•Corpus and the Writ of Main-prize; which 
I am informed, were never before denied 
to any of his majesty’s subjects in the 
like case. . . .  7 do not beg a discharge,
for I desire nothing more than to clear 
my innocence by a public trial./

39



His friends added that without bail ,!he might lie 
there all his life-time without trial, which no 
subject ought to do*"

V7e should note, second, that as the English 
protection against pre-trial detention evolved 
it came to comprise three separate but essential 
elements. The"first was the determination of 
whether a given defendant had the right to 
release on bail, answered by the Petition of 
Right, by a long line of statutes which spelled 
out which cases must and which must not be 
bailed by justices of the peace or (in the 
early period) by sheriffs, and by the dis­
cretionary power of the judges of the king's 
bench to bail any case not bailable by the 
lower judiciary* Second was the simple, 
effective habeas corpus procedure which was 
developed to convert into reality rights 
derived from legislation which could otherwise 
be thwarted. Third was the protection against 
judicial abuse provided by the excessive bail 
clause of the Bill of Rights of 1639.

The protective structure thus stands like 
a three-legged stool, but when the Americans 
strengthened and converted their English 
statutory legacy into constitutional dogma 
they unaccountably left off one of the legs.
This is the heart of the federal constitional 
problem. The principle of habeas corpus found 
its way into Article 
stitution, while thethe 1689 Bill of Rights was included in our 
Eighth Amendment. But the underlying right to 
the remedy of bail itselfwhich these enactments 
supplemented and guaranteed, was omitted.

1, section 9 of the Con- 
excessive bail languageS

or

It is probably not surprising that for 
nearly ninety years after' parliament had 
enacted the English Bill of Rights there appears 
to have been no reference to excessive bail in 
any American legislation. The charter-making 
period of colonial history had been completed by 
the end of the seventeenth century and in any 
event the colonists, as British subjects, assumed

40



they were protected by the principles of such 
basic English legislation as Magna Carta, the 
Habeas Corpus-Act, and the Bill of. Rights. In 
any event, the excessive bail provision of, the 
1689 Bill of Rights was merely one segment of 
the English history, and we have already noted 
that the preamble of this clause makes it 
abundantly clear that its only purpose was to 
shore up the enforcement of preexisting rights 
to bail. The relatively subsidiary importance 
of the clause in English law is illustrated by 
Blackstone's relegation of it to a single 
sentence buried in the middle of a five-page 
chapter on bail.

But in June of 1776, less than a month 
before the proclamation of the Declaration of 
Independence in Philadelphia, the Virginia 
legislature enacted the famous Virginia 
Declaration of Rights, and here for the first 
time, as clause nine, appeared the language 
taken from the English Bil3. of Rights: "That
excessive bail ought not to be required, nor 
excessive fines imposed, nore cruel and unusual 
punishments inflicted." With the substitution 
of "shall not" for "ought not to be," this is 
the wording of the eighth amendment. Aside 
from the obvious, inference to be drawn from the 
identity of language, the path from Williamsburg 
in 1776 to the congress in 1789 can easily_be 
traced. The Virginia Declaration exercised a 
magnetic force, and its ninth section was 
incorporated in the Revolutionary period con­
stitutions of Maryland, Delaware, North Carolina, Georgia .and Massachusetts. It was 
in Virginia, moreover, that one of the most 
vigorous fights developed in the struggle 

'over fatification of the Constitution. By the 
time of the Virginia deoate the Consciuui-ion 
had been ratified without qualification in six 
states; three others, Massachusetts, South 
Carolina and New Hampshire, had coupled rati­
fication with strong recommendations for the 
adoption of certain amendments as a bill of 
rights. These did not, however, make any 
reference to bail. This latter procedure 
was adopted in Virginia, whose convention recom­
mended a bill of rights closely following tne

41



language of their earlier Declaration of Rights, 
including the excessive hail clause. The sub-mgsequent ratifications by Nov/ York, North 
Carolina and Rhode Island included the same 
recommendation, When Madison rose in the House 
of Representatives a year later to propose the 
amendments v/hich became the Bill of Rights he 
took the excessive bail language exactly as it 
had been recommended by the Virginia Convention 
which in turn had taken it verbatim from the 
3.776 Declaration,

The man who wrote both the Declaration of 
Rights in 1776 and the amendments proposed to^ 
Congress by the Virginia ratification convention 
in 1783 was George Mason, one of the unsung heroes 
of the revolutionary era, As the evidence is 
persuasive that the excessive bail language of 
the Declaration was carried forward into the Bill 
of Rights without further thought or analysis after 
it left Mason's hands, his role is one of critical 
importance in understanding the original objective 
of these £ev; words.

There was little about Mason v/hich would have 
foretold his creative genius in fashioning our 
constitutional lav/. Although educated in the 
library of a lawyer uncle v/hich included n 
generous share of lav/ books and although he served 
for many years as a lay justice for Fairfax 
County, he hex! no technical training or experience 
as v. lawyer. lie v/as preoccupied with raising nine 
young children after the death of his v/ife and 
with managing a 5,000 acre plantation just down 
river from Mount Vernon v/ith 500 s3.aves who not 
only produced and'shipped out tobacco and wheat 
but also made the plantation almost entirely 
self-sufficient in such matters as food, liquor, 
lumber, clothing and shoes. His correspondence 
was mostly about his immediate concerns: running
the plantation, requisitioning supplies and powder 
for the militia, promoting the development of 
western land, collecting his debts or getting his 
debtors throv/n in jail, riding to hounds or hunting 
deer in his private game preserve v/ith his 
neighbor, George Washington, and protecting the 
Potomac from marauding robbers or scavenging 
British naval parties. Throughout his life he 
shunned public office, and only the most compelling

- 42



circumstances could dislodge him from these 
local, family and plantation responsibilities.
The Virginia Convention of June, 1776, was 
such a circumstance, and it catapulted him 
into the role of chief architect of fundamental 
American liberties.

Two years before, in 1774, Mason had drafted 
the Fairfax Resolves, a protest document whose 
influence can be seen in the Declaration and 
Resolves of the First Continental Congress later 
that year. At that time, however, Mason's role 
was not that of rebel but pS loyal British sub­
ject, importuning and pleading in the great tra­
dition which before had produced such monuments 
as Magna Carta, the Petition of Right delivered 
to Charles a and the English Bill of Rights of 
1633. But when the 1775 Virginia convention met, 
the die for revolution had been cast — - the 
Declaration of Independence was only four weeks 
away and the task was to form a new government 
for the Commonwealth. Mason himself noted that 
his draft Declaration of Rights was the first doc­
ument of its kind in American history. Nor had it 
any counterpart in England, whose great charters 
of liberty were either statutes like the Habeas 
Corpus Act with "no noble language, just down-to- 
earth regulations. . ."or enactments like Magna ’ 
Carta and the Bill of Rights, in v/hich specific 
concessions were obtained from the Crown. In­
deed, the form of the English Bill of Rights bears 
a striking resemblance to the colonial protest doc­
uments of 1774, first spelling out grievances and 
then reaching for solutions. Mason's outlook in 
1776, however, was entirely prospective. There 
was no certain form'of future government, no 
body of existing law and precedent whose incor­
poration could be assumed, and he described as 
his objective the creation of a "hew government 
upon a broad foundation” and the provision of 
"the most effectual securities for the essential 
rights of human nature, both in civil and 
religious liberty." The philosophy of Locke and 
Sidney, some of the finest creations of the 600 
year, struggle for liberty in England, a strong 
conviction of the importance, of man, and an 
intense but practical idealism were some of the 
ingredients that filtered through his mind into 
the Declaration. It is difficult today, when

43



much of what las wrote has become trite with 
familiarity, to appreciate the extent of 
Mason's creative innovation, This is because 
his selection and phrasing was borrowed by 
Jefferson for the Declaration of independence, 
because the Virginia Declaration became the 
model for most subsequent state constitutions, 
and because many of the clauses found their
way into the Bill of Rights,, But anyone who 
puts himself into its historical context in 
reading Mason's Declaration is likely to agree
with Jefferson's estimate of Mason as "a.man 
of the first order of wisdom among those who 
acted on the theatre of the revolution, of 
expansive mine, profound judgment, cogent in 
argument, learned in the lore of our former 
constitution, and earnest for the republican 
change on democratic principles,"

Why, then, in a document generally so well 
adapted to its purpose, did Mason deal with the 
problem of pre-trial detention in so incomplete 
and ambiguous a fashion? In every other operative 
clause of the Declaration, for example, habeas 
corpus, jury trial, confrontation, venue, self­
incrimination, general searches, the prohibition
against governmental action is clearly stated, 
The defect in his treatment of bail seems most like3.y to have arisen from Mason's failure to 
appreciate what I have stressed aboves the 
tripartite nature of the English protection
against abusive pre-trial detention, involving 
procedure and the right to bail as well as 
control of the judicial abuse of excessive bail. 
This was lawyer' s lav;, and whereas Mason was 
certainly familiar with the ringing language 
of the English Bill of Rights, the underlying 
fundamental, bail lav; was buried in technical 
jargon. Mason himself recognized his limitations 
in this respect. When four years later he was 
appointed to serve on the committee for the 
revision of Virginia lav;, ha excused himself 
“as, being no lawyer, he felt himself unqualified 
for the work."

Mason's mistake, i 
carried forward with so 
latent ambiguity of the

f such it was, was thereafee 
little discussion that the 
clause was never noticed*The only reference in the record of congressional

44



i (

debate on the Bill of ̂ Rights to the excessive 
bail clause is the following statement in the 
House, set out in its entirety:

Mr. Livermore.—  The clause seems 
to express a great deal of humanity, on 
v/hieh account 1 have no objection to it? 
but as it seems to have no meaning in it,
I do not think it necessary„ What is 
meant by the terms excessive bail? Who 
are to be the judges?

The speaker then made similarly brief objections 
' !' to the vagueness of the other clauses of the

amendmento Ti; s observation could have provoked 
the kind of debate which would have illuminated 
the entire question- but instead the record shows 
only that the amendment v;as then "agreed to by 
ci considerable majority."

Thus, it is apparent that relief against abusive pre-trial 
imprisonment was one of the1 fundamental liberties of Anglo-American 
tradition which the Bill of Rights was drafted to protect. Peti­
tioner submits it follows that the only sensible construction of 
the bail clause of the Eighth Amendment is one v;hich will secure 
that right.

It also follows, petitioner suggests, 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 
clause of the Fourteenth Amendment against deprivation by the 
States. The trend of Supreme Court decisions toward incorporating 
the more significant Bill of Rights guarantees plainly implies 
absorption of the bail clause of the Eighth Amendment —  together 
with its assumptions of and concerns for pre-trial freedom —  into 
the Fourteenth, See r*app v. Ohio, 367 U.S. 643 (1961) ? Key v«

45



1

California, 374 UeS, 23 {19S3); Aguilar v. Texas, 378 U.S, 108 
(1964) (incorporating restraint of unreasonable searches and 
seizures); Malloy v. Hogan, 378 UcS, 1 (1964) (incorporating „
privilege against self incrimination of Fifth Amendment); Gideon 
v , Wa 1 nwrigh t, 372 UoS, 353 (1963) (incorporating Sixth Amendment

Iguarantee of counsel); Pointer v 0 Texas, 380 UoS, 400 (1965) 
(incorporating the Sixth Amendment right of confrontation)* Of 
particular significance is tus recent incorporation of the Eighth 
Amendment’s other major guarantee forbidding cruel and unusual 
punishments, .Robinson v, California, 370 U eS, 660 (1962) (over­
ruling sub sllantic prior contrary decisions, e,gM  Collins v, 
Johnston, 237 U.S, 502, 510-155 (1914)) * To incorporate that clause 
but ignore its companion —  and thus to restrain the States' power 
to punish the guilty but not their pov;er to punish the potentially 
innocent —  is not merely bad sense but treachery to the developing 
aspirations 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 to pre-trial 

16/release. Even without the benefit of "incorporation" notions, !

16/ Well before the Bill of Rights (16.38), 1 Y7. & M. sess, 2, ch. 
2, reciting that "excessive Baile hath beone required of 
Persons committed in Criminal! Cases to elude the Benefit of 
the Lawes made for the Liberty of the Subjects," declared 
"That excessive Baile ought not to be required," the 
importance of the bail right had been recognized ana its

46



certainly, one could not suppose without historical and practical/Iheedlessness that the Fourteenth Amendment's prohibition against
the deprivation of liberty without due process of law imposed no
restraint upon a state's power to imprison an individual on
criminal charges before those charges had been proved and the
accused's defense heard at judicial trial. It would be worse than
heedless to suppose that due process of law could be said to endure
a system in which the modern American citizen, like Jenkes,
"might lie there all his life-time without trial." Pervasive
state constitutional recognition of the bail right supports
finding the Eighth Amendment's bail clause in the requirement of
the Fourteenth that a state's criminal procedure conform to at

11/least generally accepted minimum standards of fairness. Ferguson 
v. Georgia, 365 U.S. 570 '1961). And a due process right against
bail in excess of one's means should be the more readily found in 
view, on the one hand, of the potentialities of an unchecked state 
administration of bail to be arbitrary and to discriminate against 
the poor and, on the other, of the dubiousness of the claim that

16/ (Con't.) preservation assured by statute. See 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.

17/ Bail: An Ancient Practice Reexamined, 70 Yal Law Journal,
966-977, Appendix (1961).

47



high bond or indeed monetary bond in any amount is an effective
means of serving the only legitimate purpose of ban i : to

/ 18/ assure an /accused's presence at trial0
Stack v, Boyle, 342 U,S0 1 (3.951) is the Supreme Court’s 

only opinion on excessive bail-, it takes the view that the solo 
permissible function of monetary bail is to assure the accused’s 
presence at trial0 "Bail set at a higher figure than an amount 
reasonably calculated to fi 1 :il3. this purpose is 'excessive* under 
the Eighth Amendment." Id. at 5C "Since the function of bail is 
limited* the fixing ox bai3„ for any individual defendant must be 
based upon standards relevant to the Purposes of assuring the 
presence of that defendant"' ibid* Stack thus supports the 
invalidity of a bail determination if (a) the amount set or the 
form of security required is more onerous than could reasonably 
be thought necessary to assure the accused * s presence at trial* 
or (b) in setting the amount or form of bail inadequate individual 
consideration is given to the circumstances of each particular 
defendant.

The administration of the state's bail system in this case 
fails to conform to either standard. Petitioner is detained

18/ Recent writings indicate a strong consensus of doubt that 
monetary bail is efficacious as a means of assuring the 
presence of accuseds at trial. Bail in the United States:
1964* A Report to the Natlonal Conference"bn_Bail 
Criminal Justice (May 27—29)*, 49-55? Ares, Rankinil and
Sturz, The Manhattan Bail Project: An" "interim Racort on

Usa.of Pre-Trial Parole/ 33 VML„6T~Rsv." 67* '90 "(1563' 
Kote, Bail: An Ancient Practice Reexamined, 70 Yale L.J, 96$(1961),

48



solely because he cannot afford the price of freedom without 
any evidence being presented which supports a finding that he 
would not appear if released on his recognizance or if subject
to non-financial conditions or disputing his assertion that he
.

will1not be able to defend himself adequately if incarcerated
.  ! * *

until trial.
An examination of the state's bail system indicates that it 

is unsuitable for the attainment of the aims it purportedly serves, 
for the decision as to whether an accused will be released prior

wto trial is effectively delegated to a professional bondsman.
His decision to release an accused may be totally unrelated to
the likelihood of flight and indeed more conventionally relates

20/
only to the financial stability of the accused. As a grand jury 
of New York County put it:

19/ The bondsman ordinarily has unlimited power to refuse to 
write a bond for any individual for any reason, however/ 
capricious and unrelated to the concerns of the bail system. 
Also, although the premium on the bond may be regulated, there 
is no supervision over the amount which he may demand as 
collateral. The Judge fixing bail in the amount of $500 may 
assume that the defendant is faced only with the legal premium 
of $25, while the reality may be that he will be required by 
the bondsman to put up property very nearly approximating the

• entire amount of the bond. The bondsman 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 discriminatory urge to which 
unlimited and irresponsible power is prey.

20/ in recent years abuse of this power by the bondsmen has been 
fully documented. See Bail in the United States: 1964,
22-38 (National Conference on Bail and Criminal Justice, 
Washington, D.C.). The bondsmen often uses his power to 
coerce defendants into paying illegal overcharges or using a 
specified attorney. Most importantly, the bondsman is a 
business man and his administration of discretion is likely

49



In the final analysis, the fulfillment of 
the constitutional proscription pertaining 
to bail reposes with the professional bail 
bondsman since he may refuse to write even 
the smallest bonds. The bondsman may act 
on whim or caprice and his decision is not 
reversible either in a court of law or by 

I an administrative agency. The Supreme 
Court. . .cannot require that a bondsman 
write a bail bond no matter how arbitrary 
the bondsman's refusal.21/

Once a right to pre-trial release is acknowledged the right
granted —  whatever its scope —  plainly cannot be foreclosed on

i ithe basis of poverty alone, it follows, therefore that bail is,
'per se, excessive if it exceeds a defendant's means. Any bail 

for a pauper is excessive. Any system of bail administration 
which approves bail setting in an amount which the accused cannot 
afford converts bail from a system of pre-trial release under 
certain conditions to a system of detention, a detention, it 
should be remembered, which is not related to probable appearance 
at trial, for the bail system merely incarcerates the poor, not 
those likely to flee. A rich man likely to flee is as able to

20/ (Con't.) to conform solely to the profit motive with little 
respect to society's interest in pre-trial liberty. Because 
the bondsman often demands collateral, the poor are excluded 
from his services. In New York, for example, 28% of those 
required to make $500 bail could not do so; 38% could not 
make $1,000 iSail; 45% could not make $1,500 bail; 63% could 
not make $2,500 bail; 75% could not make $5,000 bail and 86% 
could not make $7,500 bail.

21/ Report of the 3rd February 1954 Grand Jury of New York 
County, New York to Honorable John A. Mullen at 2-3.

50



■jj: , '

C.o co as if bail was not required* A poor man ia incarcerated
v/nethcr or not bo would bo likely to leave tbs jurisdiction, J.xi.

short* tbs maintenance of the bail institution in a form vfnicb
demands money of a pauper only serves well a purpose which it is
not permitted to fulfill* Stack vc Boyle, 342 u*S* 1 (1951), that
of detaining largo numbers of persons prior to trial for the
simple reason that they have been charged with crime and arc 

22 /  • * *

poor,
So* if the constitutional command that bail should not be 

"excessive*5 is to mean anything* it must be construed to define 
"excessive" as that which one cannot afford* This is the only 
construction consistent with the historical conception of bail

4

22/ in the fall of 1961, the Vera Foundation of Few York began 
a project in tha criminal court where defendants were 
screened for pro—trial release on their recognizance* Four 
factors were considered; (1 ) residential stability, (2) ~employment history, {3) familv contacts in the city, (4) 
prior criminal record* On the basis of these factors, the 
Vera staff recommended pre-trial parole for a number of 
defendants* Sheso defendants were notified when and where 
to appear in courtly Vera investigators and were asked to 

. v-srt the Vera office in' the courthouse on the morning of 
their appearance0 Sf they failed to shoe; Vora personnel 
attempted to locate them* the results of the operation 
chov;‘ that fr5m October 16, 1961 through April €t 1964, out 
of 10,COO defendants, 4,000 were recommended and 2,195 were 
parolede Only 15 or these failed to chow up in court, a 
default rate of less than seven-tenths of one percent* See

3.964, p. 62 * national Conference on Bari and the Administration of Justice, The Vera 
experience in I7ew York has been reseated in a number of 
C2.t2.os throughout the country with similar results* There 
re, thus, no reason to conclude that bail is a more effective 
sCi.-en c.ov2.ee for pre-trial release than oidles available methods *

1 - 51



'• /

as a device for assuring pre-trial liberty* Any other con­
struction runs against not only the presumption of innocence 
and our history of an acknowledged right to bail, but raises 
cue process considerations of a fundamental nature* in contrast, 
alternatives to the bail system not relying on money bail have 
shown a high efficiency in screening persons for pre-trial 
releaseo If a state can detain persons prior to trial and 
conviction because of how much money they have it is difficult 
to conceive of any limitation or the power to detain without 
trial and convictionc

- 52



/ I<* *

I

Conclusion

a

a

For the above stated reasons, the order and judgment
of the court below should be reversed and the cause remanded

,
,

to the court below with instructions to reduce the bail to 
$100.00 or to set reasonable non-monetary conditions upon 
petitioner's release.

HAROLD J. ROTHWAX 
MARTIN SPIEGEL

320 E. Third Street 
New York, New York 10009

JACK GREENBERG 
MICHAEL MELTSNER 
HAYWOOD BURNS

10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioner-Appellant

53