520 F.

2d 400

Donald WALLACE et al., on behalf of themselves and all

others similarly situated who have matters pending in the
Criminal Term of the Supreme Court of the State of New York,
Kings County, Plaintiffs-Appellees,
v.
Michael KERN et al., Defendants-Appellants.
The UNITED STATES of America ex rel. Michael A.
McLAUGHLIN
et al., Plaintiffs-Appellees,
v.
The PEOPLE OF the STATE OF NEW YORK et al.,
Defendants-Appellants.
Michael A. McLAUGHLIN et al., Plaintiffs-Appellees,
v.
The PEOPLE OF the STATE OF NEW YORK et al.,
Defendants-Appellants.
No. 1128, Docket 75-2069.

United States Court of Appeals,

Second Circuit.
Argued May 23, 1975.
Decided June 30, 1975.

Stephen M. Latimer, New York City (Daniel L. Alterman, Robert Boehm,

William M. Kunstler, Center for Constitutional Rights, New York City,
James Reif, National Lawyers Guild, New York City, Alvin J. Bronstein,
Nancy Crisman, National Prison Project, Washington, D. C.), for
plaintiffs-appellees.
Stanley L. Kantor, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N.
Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., Margery E. Reifler,
Asst. Atty. Gen., of counsel), for defendants-appellants.
William Gallagher, Pierce Gerety, Jr., Robert Hermann, N.Y.U. Law

School, for amicus curiae Legal Aid Society, New York City.
Before MULLIGAN and GURFEIN, Circuit Judges, and POLLACK,*
District Judge.
MULLIGAN, Circuit Judge:

This is an appeal from a final judgment entered March 26, 1975 in the United
States District Court for the Eastern District of New York, Hon. Orrin G. Judd,
Judge, mandating a variety of new bail procedures in the Supreme and Criminal
Courts of Kings County, New York. The judgment was entered in accordance
with a memorandum decision of Judge Judd dated February 14, 1975 (as yet
unreported). We reverse.

I.
2

This action was commenced in July 1972 as a class action pro se by a group of
inmates awaiting trial or sentencing in the Brooklyn House of Detention for
Men. As twice amended, the complaint, brought pursuant to 42 U.S.C. 1983
and 28 U.S.C. 2201, 2202, stated eight claims for relief. 1 The named
defendants include the Justices of the Supreme Court of Kings County, as well
as local administrative officials and court personnel. In gist, the plaintiffs
alleged (a) that the burgeoning criminal caseload in the Kings County Supreme
Court has caused excessive pre-trial delays and the consequent confinement of
unconvicted detainees for prolonged periods of time in violation of their
constitutional rights; (b) that the incarceration of indigent detainees unable to
make bail violates the equal protection and due process clauses of the
Fourteenth Amendment; and (c) that various practices have the effect of
intimidating and coercing detainees into pleading guilty rather than stand trial.

This case has been on appeal in this court twice before. Wallace v. Kern, 481
F.2d 621 (1973) (per curiam ), cert. denied, 414 U.S. 1135, 94 S.Ct. 879, 38
L.Ed.2d 761 (1974) (Wallace I ); Wallace v. Kern, 499 F.2d 1345 (1974), cert.
denied, 420 U.S. 947, 95 S.Ct. 1329, 43 L.Ed.2d 425 (1975) (Wallace II ). In
Wallace I, Judge Judd had granted an application for a preliminary injunction
against the Legal Aid Society's acceptance of any additional felony cases in the
Kings County Supreme Court if the average caseload of its attorneys exceeded
40. The district court also had ordered the Clerk of the Criminal Term of the
Kings County Supreme Court to place on the calendar all pro se motions filed
by inmates of the Brooklyn House of Detention. This court reversed on the
grounds that jurisdiction under section 1983 was absent since the Society was

not acting under color of state law and that the court lacked power to intervene
in the internal practices of the state courts. In Wallace II, Judge Judd had
granted an application for a preliminary injunction ordering that each detainee
held for trial for more than six months be allowed to demand a trial and be
released on his own recognizance if not brought to trial within 45 days of his
demand. This court reversed on the ground that questions concerning the right
to a speedy trial are properly to be determined on a case-by-case basis rather
than by a broad and sweeping order.
4

In this final stage of the case, the plaintiffs claimed that procedures in the state
courts regarding bail are arbitrary and unreasonable. As a remedy, although not
specified in the complaint, the plaintiffs sought improvements in the physical
facilities of the courts so that attorneys might adequately consult with clients
unable to post bail; an evidentiary hearing on the question of bail within 72
hours after arraignment; and a written statement by the judge of his reasons for
fixing bail at any point when a bail decision is made. The plaintiffs also sought
a declaration that current practices have a coercive effect on a detainee in regard
to his decision whether to plead guilty or stand trial. After hearing numerous
witnesses,2 Judge Judd made findings of fact and conclusions of law on these
issues.

A. Bail Practices in Kings County

5

Despite much improvement since the commencement of this action,3 Judge

Judd found that criminal justice in Kings County is beset by lengthy delays
which have an effect upon bail procedures. These begin in the Criminal Court
when the defendant is arraigned after his arrest and bail is first set. There is
provision for a preliminary hearing within 72 hours but this is usually
adjourned. If a hearing is held, bail may be reduced or the defendant may be
released on his own recognizance, but, according to the findings below, this
also rarely occurs. A defendant may remain incarcerated for 45 days before he
is indicted on a felony charge and his case proceeds to the Supreme Court. See
N.Y. Crim.Proc. Law 190.80. At the arraignment in Supreme Court, a de
novo bail proceeding is held. The district court found, however, that those not
released before this point generally remain incarcerated.

Several weeks after arraignment, a defendant's case will be called in the

conference part for the purpose of disposing of the case by plea, if possible. At
this time, the defendant may apply for bail review. A few weeks thereafter, the
case will be assigned to a trial part. Further bail review applications may be
filed in the motion part and considered in the trial part. If the defendant still is
unable to meet bail, he may apply in Part 10, a special bail review section of the

Supreme Court. Finally, a defendant may apply in the Supreme Court for
habeas corpus, with review in the Appellate Division.4
7

Judge Judd found that certain sources of information relative to the bail
decision are of great significance, namely, the New York State Criminal
Investigation Information Service (NYSIIS) report and an ROR (Release on
Own Recognizance) sheet. The NYSIIS report contains a listing of all of the
defendant's arrests, but is usually incomplete with respect to the dispositions of
those cases. The ROR sheet contains information on a defendant's background
and community ties. While the Pre-Trial Service Agency, an organization
funded by the federal and state governments which provides information to the
court to assist it in making decisions on bail, endeavors to verify the assertions
in the ROR sheet, Judge Judd found that in most cases it is unable to do so prior
to the initial bail hearing. Bail proceedings in Criminal Court are very brief and
the determinations made therein are often based upon incomplete or inadequate
information. The court found that consideration is often given to open charges
in the NYSIIS report but denied as to unverified favorable information in the
ROR sheet.

Despite the fact that the factors underlying the bail decision of the Criminal
Court judge are not known to him,5 the arraigning Justice in the Supreme
Court, Judge Judd found, seldom changes that decision, giving "(s)ubstantial
weight" to the initial determination of the Criminal Court judge. In the
conference part, the defendant sees a Justice only if he agrees to plead guilty.
While a majority of applicants in Part 10 are granted bail reductions, Judge
Judd noted that there was testimony "that the bail set in Part 10 could have
been met if it had been set earlier."6

On the basis of these facts, Judge Judd reached certain conclusions of law.

B. Conclusions of Law
10

Relying upon Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d
484 (1972) and its progeny, the district court held that due process requires
"that a decision which may result in prolonged confinement shall be based on
full evaluation of the facts, with an opportunity to present or controvert any
pertinent evidence, and with a written statement of the reasons why a particular
bail determination is reached." To correct the inadequate bail determination
procedures which he found to exist in Kings County, Judge Judd ordered that an
evidentiary hearing be had on demand at any time after 72 hours from the
original arraignment and whenever new evidence or changes in facts may
justify. At the hearing, the People would be required to present evidence of the

need for monetary bail and the reasons why alternate forms of release would
not assure the defendant's return for trial, and the defendant would be permitted
to present evidence showing why monetary bail would be unnecessary. The
defendant was also held to be entitled to a written statement of the judge's
reasons for denying or fixing bail.7 The court below dismissed the rest of the
complaint except as indicated.8 II.
11

The State on appeal urges that the final order of the court below in effect
mandates a wholesale reform of the New York State bail system which
constitutes an untoward interference with the state judicial system and violates
established principles of comity and federalism. O'Shea v. Littleton, 414 U.S.
488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Younger v. Harris, 401 U.S. 37, 91
S.Ct. 746, 27 L.Ed.2d 669 (1971). There is no doubt that this court in its two
prior reversals of the court below considered that the orders issued there
constituted an improper intervention in the internal procedures of state courts.
The broad order of Wallace II provided that all detainees after six months be
allowed to demand trial and be released on their own recognizance if not
brought to trial within 45 days. In reversing, this court ruled that federal courts

12 limit their inquiry to the specific facts regarding a complaining petitioner.

must
Relief from unconstitutional delays in criminal trials is not available in wholesale
lots. Whether an individual has been denied his right to a speedy trial must be
determined ad hoc on a case-by-case basis.
13

499 F.2d at 1351.

14

While the court below held that the issue of the effect of delay on the coercion
of guilty pleas had to be determined on a case-by-case basis, it apparently
considered the evidence developed at the hearing sufficiently compelling,
despite the prior admonitions of this court, to mandate pretrial evidentiary bail
hearings on demand. The order below, in thus proceeding to legislate and
engraft new procedures upon existing state criminal practices affecting all
felony inmates in Kings County confined in any institution under the care,
custody and control of the Department of Corrections, so that pending as well
as future bail applications are affected, necessarily imposes upon us the duty of
deciding the threshold question raised by the defendants is the intrusion
violative of the principles of comity and federalism as defined by the Supreme
Court in Younger and its recent holdings which have broadened the doctrine of
abstention.

15

In a recent explication of Younger in Huffman v. Pursue, Ltd., 420 U.S. 592, 95

S.Ct. 1200, 43 L.Ed.2d 482 (1975), Mr. Justice Rehnquist, writing the majority

opinion, reiterated that federal injunctions against the "state criminal law
enforcement process" could be issued only " 'under extraordinary circumstances
where the danger of irreparable loss is both great and immediate.' " Id. at 600,
95 S.Ct. at 1206, quoting from Fenner v. Boykin, 271 U.S. 240, 243, 46 S.Ct.
492, 70 L.Ed. 927 (1926). The Court again announced the twofold policy basis
for non-intervention in state proceedings:
16

1) The recognition, both congressional and judicial, that federal courts should
permit state courts to try state cases and that, if constitutional issues arise, the
state court judges are fully competent to handle them, since they are bound by
the Federal Constitution under Article VI.

17

2) The traditional doctrine that a court of equity should stay its hand when a
movant has an adequate remedy at law.

18

Both of these factors were reiterated by Mr. Justice Powell in an even more
recent opinion, Schlesinger v. Councilman, 420 U.S. 738, 754-56, 95 S.Ct.
1300, 1311-12, 43 L.Ed.2d 591 (1975). See also Kugler v. Helfant, 421 U.S.
117, 123-25, 95 S.Ct. 1524, 1530-31, 44 L.Ed.2d 15 (1975).

19

Although the court below did in its findings of fact note that state habeas relief
was available to the plaintiff class with provision for appeal to the Appellate
Division, there is no reference to the availability of this remedy in that part of
the opinion which rejected the argument that principles of comity and
federalism precluded the issuance of the order on review here. The court below
found Younger abstention inappropriate primarily because in that case and in
Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) a federal
court sought to prevent the prosecution of a state criminal trial, while the issue
here involved the necessity of revisions in bail proceedings in order to prevent
improper pre-trial confinement, which would not be an issue on a defendant's
trial on a criminal charge.9

20

The proposition that the principles underlying Younger are applicable only
where the federal court is seeking to enjoin a pending state criminal prosecution
is not supportable.10 Certainly this court in Wallace I and II did not agree. In
Wallace I this court warned that " 'under the principle known as comity a
federal district court has no power to intervene in the internal procedures of the
state courts.' " 481 F.2d at 622.

21

More significantly, in Huffman v. Pursue, Ltd., supra, the Court broadened

Younger abstention to preclude federal interference in certain state court civil

actions in which the state had a particular interest.11 This court had previously
refused to intervene in pending bar association disciplinary proceedings in
Erdmann v. Stevens, 458 F.2d 1205 (2d Cir.), cert. denied, 409 U.S. 889, 93
S.Ct. 126, 34 L.Ed.2d 147 (1972), and, fortified by Huffman, that holding was
reiterated in two subsequent holdings of this court in Anonymous v. Association
of the Bar of the City of New York, 515 F.2d 427 (1975) and Anonymous J. v.
Bar Association of Erie County, 515 F.2d 435 (1975). It would indeed be
anomalous to hold that Younger abstention is applicable in certain civil actions
in which the state has some concern but not to a bail application proceeding in
which the people of the State of New York have a most profound interest. The
assurance that a defendant who has been indicted for a crime be present to stand
his state trial and be sentenced if convicted is patently of prime concern to the
state.
22

The defendants here also rely upon O'Shea v. Littleton, supra. The plaintiffs in
O'Shea brought a class action against two state court judges alleging that they
had engaged in racially discriminatory bail and sentencing practices. Although
the Court held as a threshold matter that the plaintiffs lacked standing to bring
the action, it proceeded at considerable length to state that Younger-type
abstention principles were in any event applicable. The Court considered that
the order proposed by the Court of Appeals, which would have required
continuous reporting on the judges' bail and sentencing actions, would
constitute an "ongoing federal audit of state criminal proceedings which would
indirectly accomplish the kind of interference that Younger v. Harris, supra,
and related cases sought to prevent." 414 U.S. at 500, 94 S.Ct. at 678. This is
precisely the mischief created by the order below. Having provided for new
bail hearing procedures which fix the time of, the nature of and even the burden
of proof in the evidentiary hearings, the order would permit a pre-trial detainee
who claimed that the order was not complied with to proceed to the federal
court for interpretations thereof. This would constitute not only an interference
in state bail hearing procedures, but also the kind of continuing surveillance
found to be objectionable in O'Shea.

23

The plaintiffs on appeal urge that the O'Shea dicta are inapplicable in light of a
more recent opinion of the Supreme Court, Gerstein v. Pugh, 420 U.S. 103, 95
S.Ct. 854, 43 L.Ed.2d 54 (1975), decided February 18, 1975. We cannot agree
and find that case distinguishable factually and legally from the one on appeal.
In Gerstein, two state prisoners commenced a section 1983 action seeking both
declaratory and injunctive relief to enforce their constitutional right to a judicial
hearing on the issue of probable cause for detention. They had been arrested in
Dade County, Florida under a prosecutor's information which, according to the
procedure of that state, precluded any right to a preliminary hearing to

determine if continued detention was justified by probable cause. The district

and circuit courts had ordered the Dade County defendants to give the plaintiffs
an immediate preliminary hearing and also ordered them to submit a plan,
subsequently adopted, providing for preliminary hearings in all cases instituted
by information. Such hearings were to be fully evidentiary and adversary in
nature, with the right of the defendant to call and cross-examine witnesses.
While the Court held intervention appropriate, it disagreed with the holding on
the merits below that evidentiary hearings were constitutionally mandated.
24

The reasoning of the Gerstein Court on the intervention issue does not
materially assist the plaintiffs here. With respect to the issue of comity and
federalism, the plaintiffs rely on footnote 9 in the Gerstein opinion, 420 U.S. at
108, 95 S.Ct. at 860, which is set forth in its entirety in the margin.12 Although
this language is certainly facially supportive of the plaintiffs' position here, it is
elementary that what the Court said must be viewed in the light of the factual
and legal setting the Court encountered. As we have already noted and as
plaintiffs concede, the Younger doctrine is based not only on a reluctance to
interfere with state court processes, but also on the refusal to afford equitable
relief when adequate remedies at law exist. It is significant, therefore, that the
Supreme Court's opinion in Gerstein emphasizes at the outset that the federal
plaintiffs there had no right to institute state habeas corpus proceedings except
perhaps in exceptional circumstances and that their only other state remedies
were a preliminary hearing which could take place only after 30 days or an
application at arraignment, which was often delayed a month or more after
arrest. 420 U.S. at 107, 95 S.Ct. at 859. We do not consider this discussion
feckless.

25

In sharp contrast with the Florida practice, New York procedures, as indicated
in our summary of the facts, provide that a pre-trial detainee may petition for a
writ of habeas corpus in the Supreme Court (N.Y. C.P.L.R. 7002(b)(5)), that
its denial may be appealed (N.Y. C.P.L.R. 7011) and that an original
application for habeas may be made in the Appellate Division of the Supreme
Court (N.Y. C.P.L.R. 7002(b)(5)). In addition, in Conover v. Montemuro, 477
F.2d 1073 (3d Cir. 1973), cited by the Supreme Court in Gerstein, as we point
out in footnote 12 infra, both the majority and concurring opinions emphasized
the unavailability of state remedies. Hence, the language in footnote 9 of
Gerstein must be read in the full context of the Younger rule, which rests on
principles of equity as well as comity. When so considered, it is clearly not
decisive of this issue.13

26

In addition, we note that the district court conclusion in the Gerstein case that
Younger did not apply was specifically coupled with the finding that Florida

had consistently held that detainees such as the plaintiffs in that case were not
entitled to a preliminary hearing of any kind. 332 F.Supp. 1107, 1111-12
(S.D.Fla.1971). This is important since to come within the Younger rubric, as
re-emphasized in Huffman v. Pursue, Ltd. and Schlesinger v. Councilman,
supra, a plaintiff must establish "irreparable harm." However, in the record
before us there is no indication that any plaintiff ever even asked for an
evidentiary hearing. On the contrary, the record indicates that two state judges
not only testified that no evidentiary hearing on a bail application had ever been
requested by anyone, but that if one had been demanded it would have been
granted.14 In fact, in Special Term, Part 10 in Kings County evidentiary-type
hearings are now granted. It is clear that the New York statutory provisions
afford unlimited opportunities for bail applications15 and, while plaintiffs
characterize them as constitutionally suspect since the court below condemned
their perfunctory application, there was in fact no finding that the statutes are
constitutionally vulnerable but rather that the attorneys and judges are
proceeding without assuring plaintiffs due process. We have found no New
York cases construing the New York bail procedure statutes to deny plaintiffs
the evidentiary hearing mandated 16; on the contrary, in United States ex rel.
Shakur v. Commissioner of Corrections, 303 F.Supp. 303, 308 (S.D.N.Y.),
aff'd, 418 F.2d 243 (2d Cir. 1969) (per curiam ), cert. denied, 397 U.S. 999, 90
S.Ct. 1144, 25 L.Ed.2d 408 (1970), Judge Palmieri considered the necessity of
an evidentiary hearing on application for bail in the New York County Supreme
Court and said that it was a matter for the state court's discretionary decision. In
affirming Judge Palmieri's opinion this court characterized it as "a careful
opinion. . . ." 418 F.2d at 244.
27

Plaintiffs argue that the intrusion upon the domain of the state sought in O'Shea
was much more significant than that sought here, which they argue is
comparable to that approved in Gerstein. Since the federal courts have not been
loathe to interfere where charges of racial bigotry are bruited, the refusal to
intercede in O'Shea on grounds of comity and federalism is indeed significant.
But we cannot agree that the order below is less pervasive than in Gerstein.
Here, the federal court did not invite state officials to submit a plan for a bail
hearing which would be consistent with due process requirements. It rather
directed its own procedures for state hearings in considerable detail. This
constitutes, in our view, federal judicial legislation which is not only offensive
to state sensibilities but is contrary to the admonition in Gerstein on this very
point:

28
There
is no single preferred pretrial procedure, and the nature of the probable cause
determination usually will be shaped to accord with a State's pretrial procedure
viewed as a whole. While we limit our holding to the precise requirement of the

Fourth Amendment, we recognize the desirability of flexibility and experimentation

by the States.

29

420 U.S. at 123, 95 S.Ct. at 868.

30

In view of these decisive distinctions between Gerstein and the present case, we
consider that it does not provide assistance to the plaintiffs here but, on the
contrary, strengthens the stand of the defendants. We cannot, moreover, agree
that the Gerstein Court intended to overrule O'Shea in a footnote which does not
even discuss it. Indeed, the Court's later opinion in Huffman evinces an even
greater respect for comity by extending it to state civil litigation in which there
is a state interest. In sum, we hold that, under Younger and its further
explication in recent Supreme Court cases, the order entered below, insofar as
appealed from, must be reversed. The order created an intrusion upon existing
state criminal process which is fissiparous and gratuitous and it further ignored
the prior rulings of this court on appeals in this case.

31

We would be remiss if we did not indicate, as this court has before on appeals
in this case, that we are conscious of the concern of the court below for the
conditions which the hearings it has conducted have brought to the attention of
the public. The court below noted that there are judges, prosecutors and Legal
Aid attorneys who are striving valiantly to achieve prompt trials. A motivating
factor in the recognition of urgency and in the improvements which have
already occurred is undoubtedly the activity of Judge Judd. However, we are
not ombudsmen charged with the responsibility of reforming the state penal
system.17 The hearings held below establish that pre-trial delay is due to a
variety of factors, not the least of which are the staggering increase in crime in
Kings County, lack of facilities, lack of judges on the bench and counsel at the
side of those accused of crime, plus the increasing demands on the time of
those charged with the responsibility of assuring prompt and even-handed
justice. Because of our position of abstention we do not discuss the merits here
but do note the observation of the Supreme Court in a comparable situation in
Gerstein :

32
Criminal
justice is already overburdened by the volume of cases and the
complexities of our system. The processing of misdemeanors, in particular, and the
early stages of prosecution generally are marked by delays that can seriously affect
the quality of justice. A constitutional doctrine requiring adversary hearings for all
persons detained pending trial could exacerbate the problem of pretrial delay.
33

420 U.S. at 122 n. 23, 95 S.Ct. at 867 n. 23 (emphasis added).

34

Reversed insofar as appealed from.

Of the Southern District of New York, sitting by designation

The various claims for relief are set forth in Wallace v. Kern, 499 F.2d 1345,
1347 n. 2 (2d Cir. 1974), cert. denied, 420 U.S. 947, 95 S.Ct. 1329, 43 L.Ed.2d
425 (1975)

Among those who testified at the hearing, which lasted seven trial days
between July 25, 1974 and October 18, 1974, were several prisoners, one
Criminal Court Judge, three Supreme Court Justices, five Legal Aid Society
lawyers, two Assistant District Attorneys, a psychiatrist, a sociologist and two
law professors

For example, there was testimony that the information-gathering process with
regard to the records of detainees in the Kings County Supreme Court has
improved. Judge Judd recognized that the Supreme Court has undertaken a
variety of administrative steps, including increasing the number of criminal
parts, which have lessened trial delays. In the first few months of 1974, the
number of defendants awaiting trial for nine months or more and six months or
more was reduced in each case by over 30%. The Supreme Court has also
imposed a limitation upon the number of cases that can be handled by Legal
Aid Society lawyers in order to provide defendants with more effective
representation. The Society has developed a new system designed to provide
continuity of representation by a single attorney for each case. Administrative
measures have been taken to ensure efficient production of prisoners in court

The district court found that there is no limit to the number of times a defendant
can apply for bail review

The Administrative Judge of the Criminal Court has directed the judges to put
the reasons supporting their bail decisions in writing on the bail papers. The
district court found that, although many judges put such reasons in the record,
only a few write them on the papers. Moreover, the record of bail proceedings
is not transcribed

The plaintiffs submitted to the court a copy of a computer study made in New
York County which concluded that a person under incarceration has a lesser
chance of being cleared, avoiding prison or obtaining a short sentence than one
out on bail. The district judge noted some facts about the study which tended to
limit its applicability to this case. Nonetheless, he found that a detained person
has poorer prospects for vindication at trial or probation if convicted than does

a defendant who has been released

7

The order of the district court provides in pertinent part as follows:

(3) ORDERED, ADJUDGED AND DECLARED, pursuant to 28 U.S.C. Sec.
2201, that a criminal defendant, charged with a felony in Kings County and
confined at any institution under the care, custody and control of the defendant
Department of Correction be entitled
(a) to a hearing at which the People shall recommend what form of security if
any, would secure the defendants' appearance in Court and, only if monetary
bail is recommended, the People shall present evidence of the need therefor,
and the reasons why alternative conditions of security should not be available;
and at which the defendant shall be present and may present evidence
cognizable by the court on the factors negating the need for money bail, which
hearing shall be had, on written or oral demand, and on five days notice to the
People, at any time after 72 hours after arraignment or as new evidence or
changes in facts may justify thereafter;
(b) the prosecution shall have the burden of proving the need for monetary bail
and shall state the reasons why non-financial conditions of release, as well as
other financial alternatives prescribed by state statute (CPL Sec. 520.10) will
not assure the accused's reappearance at trial.
(c) this evidentiary hearing must be given within five (5) days after a demand is
made or at the next scheduled court appearance of the defendant whichever is
sooner.
(d) the demand may be made orally in open court or in writing, pro se or by
counsel.
(e) if the demand is made in writing it shall specify information sufficient to
identify the defendant and shall also set forth the current conditions under
which the defendant may be released and in the case of alleged new evidence or
changes in circumstances, the new circumstances or evidence;
(f) pretrial incarceration of sixty days shall be a change in facts sufficient to
justify a de novo bail hearing; and it is further
(4) ORDERED, ADJUDGED AND DECLARED that a criminal defendant is
entitled to receive a written statement of the reasons for denying or fixing bail
including the facts relied on and to have a de novo bail hearing upon five (5)
days notice to the People, if he/she is held in custody without a written
statement of reasons for the instant bail determination. . . .

The district court directed certain defendants to file with the court a plan for
assuring privacy for conferences between an attorney and his incarcerated
client. The court rejected plaintiffs' claim that conditions in Kings County
tended to effectively coerce guilty pleas, on the ground that claims of coercion
of guilty pleas are to be decided on a case-by-case basis. The court also
concluded that a monetary bail system does not constitute per se a violation of
the equal protection clause of the Fourteenth Amendment. These rulings are not
questioned on this appeal

The district judge further commented that the plaintiffs were not seeking
interference with a criminal trial or any pending bail application but merely a
declaration of rights. Although the complaint here does not even seek an
evidentiary hearing in its prayer for relief, the order appealed from is
mandatory and orders the defendants to provide a new procedure set forth in the
order to supplant existing practice. That can only be characterized as an
interference with the state criminal process in both pending and future bail
proceedings. The court's reference to Steffel v. Thompson, 415 U.S. 452, 94
S.Ct. 1209, 39 L.Ed.2d 505 (1974) is therefore not apposite

10

In fact, the Supreme Court has recently stated: ". . . we now hold that where
state criminal proceedings are begun against the federal plaintiffs after the
federal complaint is filed but before any proceedings of substance on the merits
have taken place in the federal court, the principles of Younger v. Harris should
apply in full force." Hicks v. Miranda, --- U.S. ---, ---, 95 S.Ct. 2281, 2292, 45
L.Ed.2d 223 (1975). The argument that plaintiff indictees in state criminal
cases were denied the right to the assignment of counsel and were therefore
entitled to mandatory injunctive relief was held to be without merit by this
court in Bedrosian v. Mintz, 518 F.2d 396 (2d Cir. 1975). This court
specifically rejected the contention that Younger v. Harris was not applicable
since the assignment of counsel was merely collateral to the prosecution of the
indictee appellants. Id. at 399

11

The pending civil proceeding in Huffman v. Pursue, Ltd. was an action under a
statute which provided that a place exhibiting obscene films was a nuisance.
The state's interest there was in prohibiting the exhibition of pornography, and
this interest was expressed in criminal statutes related to the nuisance statute
under which the state was moving against the appellee. 420 U.S. at 604, 95
S.Ct. at 1208

12

"The District Court correctly held that respondents' claim for relief was not
barred by the equitable restrictions on federal intervention in state prosecutions,
Younger v. Harris, 401 U.S. 37 (91 S.Ct. 746, 27 L.Ed.2d 669) (1971). The
injunction was not directed at the state prosecutions as such, but only at the

legality of pretrial detention without a judicial hearing, an issue that could not
be raised in defense of the criminal prosecution. The order to hold preliminary
hearings could not prejudice the conduct of trial on the merits. See Conover v.
Montemuro, 477 F.2d 1073, 1082 (CA3 1973); cf. Perez v. Ledesma, 401 U.S.
82 (91 S.Ct. 674, 27 L.Ed.2d 701) (1971); Stefanelli v. Minard, 342 U.S. 117
(72 S.Ct. 118, 96 L.Ed. 138) (1951)."
13

We recognize, of course, that exhaustion of state judicial remedies is not

required in actions brought under section 1983. Preiser v. Rodriquez, 411 U.S.
475, 477, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); McNeese v. Board of
Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Monroe v.
Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). This rule does
not, however, alter the traditional equitable principle that a plaintiff seeking
equitable relief must demonstrate that no adequate remedy at law exists and
that, absent injunctive relief, he will suffer irreparable injury. This point is
made clear in Allee v. Medrano, 416 U.S. 802, 814, 94 S.Ct. 2191, 40 L.Ed.2d
566 (1974). In Potwora v. Dillon, 386 F.2d 74, 77 (2d Cir. 1967), Judge
Friendly said that the Supreme Court, in announcing the non-exhaustion rule
for 1983 cases,
surely had no intention to abrogate in civil rights cases the historic rule . . . that
suits in equity shall not be sustained in courts of the United States "in any case
where a plain, adequate and complete remedy may be had at law."
Accord, Appalachian Volunteers, Inc. v. Clark, 432 F.2d 530, 537 (6th Cir.
1970), cert. denied, 401 U.S. 939, 91 S.Ct. 936, 28 L.Ed.2d 219 (1971);
Engelman v. Cahn, 425 F.2d 954, 958 (2d Cir. 1969), cert. denied, 397 U.S.
1009, 90 S.Ct. 1238, 25 L.Ed.2d 422 (1970); Wright v. McMann, 387 F.2d 519,
523 (2d Cir. 1967); Silverman v. Browning, 359 F.Supp. 173, 176-77
(D.Conn.1972), aff'd on the opinion below, 411 U.S. 941, 93 S.Ct. 1927, 36
L.Ed.2d 406 (1973). See also Bradley v. Judges of Superior Court, 372 F.Supp.
26 (C.D.Cal.1974); Harrington v. Arceneaux, 367 F.Supp. 1268
(W.D.La.1973).
In Conover v. Montemuro, 477 F.2d 1073, 1081 (3d Cir. 1973), a 1983 case
relied upon in the opinion below and by the plaintiffs here, Judge Gibbons for
the majority noted that the court knew of no Pennsylvania procedure which
might permit a test of the legality of the adjudication of delinquents. It seems
fair to assume that, had there been some such procedure, or if, on the remand
ordered there, one were discovered, equitable relief would have been held to be
barred, as suggested by Judge Adams in his concurring opinion, 477 F.2d at
1092, wherein state habeas was mentioned as a possible legal remedy affording
adequate relief.

14

15
16

17

Judge Judd's order does not require that an evidentiary hearing always be held;
under the order a hearing need be held only when the detainee requests it. We
repeat that none of the plaintiff class has even made the request
See footnote 4 supra
Several New York cases suggest that a hearing might be required by a New
York court upon application therefor. See People ex rel. Singer v. Corbett, 26
A.D.2d 770, 271 N.Y.S.2d 921, 923 (4th Dep't 1966); People v. Terrell, 62
Misc.2d 673, 309 N.Y.S.2d 776, 786 (Monroe Cty. Ct. 1970); People v. Bach,
61 Misc.2d 630, 306 N.Y.S.2d 365, 368 (Dutchess Cty. Ct. 1970)
At the outset of the opinion below, the court said:
Governor Hugh L. Carey, in his inaugural address on January 1, 1975, said that
"(T)he criminal justice system in New York does not work."
This memorandum deals with another effort to enlist the help of federal courts
in making the state criminal justice system work better.