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.

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.

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.

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

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.

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.8II.

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

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

499 F.2d at 1351.

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.

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:

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.

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

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).

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

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.

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.

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.

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.

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.

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

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 mandated16; 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.

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:

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.

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

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.

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 :

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.

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

Reversed insofar as appealed from.