United States ex rel. Bad Heart Bull v. Parkinson, Civ. 74-4051.

• Decision Date: 02 October 1974
• Docket Number: Civ. 74-4051.
• Citation: 381 F. Supp. 985
• Parties: UNITED STATES of America ex rel. Sarah BAD HEART BULL et al., Relators, v. J. D. PARKINSON, Warden, South Dakota Penitentiary, Sioux Falls, South Dakota, and Margaret Holt, Warden, Women's Correctional Facility, Yankton, South Dakota, Respondents.
• Court: U.S. District Court — District of South Dakota

381 F. Supp. 985

UNITED STATES of America ex rel. Sarah BAD HEART BULL et al., Relators, v. J. D. PARKINSON, Warden, South Dakota Penitentiary, Sioux Falls, South Dakota, and Margaret Holt, Warden, Women's Correctional Facility, Yankton, South Dakota, Respondents.

Civ. 74-4051.

United States District Court, D. South Dakota, S. D.

October 2, 1974.

Sidney B. Strange, Sioux Falls, S.D., and Kenneth E. Tilsen and Mark Lane, St. Paul, Minn., for relators.

Sam Schaunaman, Asst. Atty. Gen., Pierre, S.D., and Harold C. Doyle, Sp. Asst. Atty. Gen., Sioux Falls, S.D., for respondents.

NICHOL, Chief Judge.

Sarah Bad Heart Bull, Kenneth Dahl and Robert High Eagle, relators in this proceeding, were convicted by a jury in state circuit court of the crime of riot where arson was committed, on June 20, 1974. The state trial grew out of a disturbance which occurred at Custer, South Dakota, on February 6, 1973. Relators were part of a group of people, predominantly American Indians, who were protesting the stabbing death of Wesley Bad Heart Bull, son of relator Sarah Bad Heart Bull. During the protest some violence occurred, and at least one building was burned.

Subsequent to the convictions in the state case and at the conclusion of a one-day mitigation hearing, on July 29, 1974, the state trial judge pronounced sentences of imprisonment of 1-5 years for Bad Heart Bull, and 5-7 years for Dahl and High Eagle. Counsel for the relators moved immediately for bail pending the appeal of their convictions. The trial judge, the Honorable Joseph Bottum, without hesitation and without any discussion of his reasons, denied the motion. A further motion for bail pending appeal was filed with the South Dakota Supreme Court on July 30, 1974. This latter motion was denied by Justice Winans on August 29, 1974.

This case was commenced on September 5, 1974, with the filing of a petition for a writ of habeas corpus. The petition alleged in substance that the denial of bail pending appeal, and the relators' continued confinement, violated the United States Constitution.

The jurisdiction of this court is invoked pursuant to 28 U.S.C. Secs. 2241 et seq., and 28 U.S.C. Sec. 2254(a). Section 2254(a) provides that a person held in state custody may properly apply for a writ of habeas corpus in federal court on the ground that he is being confined in violation of the United States Constitution. Any suggestion that these relators have failed to exhaust their state remedies, as is required by 28 U.S.C. Secs. 2254(b) and (c), was expressly disposed of at the hearing on this petition by the state's concession on that point. This court finds that it does have jurisdiction to entertain the writ in this case.

The Eighth Amendment to the United States Constitution provides that: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." While the Court of Appeals for this circuit, in Pilkinton v. Circuit Court of Howell County, Missouri, 324 F.2d 45, 46 (8th Cir. 1963), has held that the "excessive bail" prohibition of the Eighth Amendment applies to the states by virtue of the Fourteenth Amendment, no court has as yet held that there is an unqualified constitutional right to bail. Prior to conviction, as well as after conviction, no defendant is automatically assured of bail by the federal Constitution. Mastrian v. Hedman, 326 F.2d 708 (8th Cir.), cert. denied, 376 U.S. 965, 84 S.Ct. 1128, 11 L.Ed.2d 982 (1964); United States ex rel. Keating v. Bensinger, 322 F.Supp. 784 (N.D.Ill.1971). However, a right created by a state legislature may not be arbitrarily or discriminatorily denied, without running afoul of the Fourteenth Amendment. American Ry. Express v. Kentucky, 273 U.S. 269, 273, 47 S.Ct. 353, 71 L.Ed. 639 (1927); United States ex rel. Keating v. Bensinger, 322 F.Supp. 784, 786 (N.D. Ill.1971); cf. Goldberg v. Kelly, 397 U.S. 254, 261-263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

The South Dakota legislature has made provision for bail pending appeal. Section 23-26-4 of S.D.C.L. provides as follows:

After conviction in any case other than for a capital offense, where the defendant appeals from the judgment, bail by sufficient sureties is allowable:

(1) As a matter of right when the judgment imposes a fine only;

(2) As a matter of discretion in all other cases.

S.D.C.L. Sec. 23-51-13 provides:

A defendant who appeals from a judgment of conviction may be admitted to bail by the trial court or any judge of the Supreme Court in such sum as such court or judge deems proper in the following cases:

(1) As a matter of right when the appeal is from a judgment imposing a fine only;

(2) In other cases excepting in case of appeal from a judgment imposing sentence of death only when, in the opinion of the trial court or any judge of the Supreme Court to whom application is made, the ends of justice demand that the defendant be admitted to bail.

No bail shall be fixed or allowed after conviction in case of appeal from a judgment imposing sentence of death.

These statutes, and the cases which have applied them, establish at a minimum that a defendant who otherwise fits the statutory specifications, is entitled to have his application for bail pending appeal fairly considered. In State v. Olson, 82 S.D. 60, 152 N.W.2d 176 (1967), the South Dakota court indicated the factors to be considered in passing upon an application for bail pending appeal. The specific factors to be considered by a judge of a South Dakota state court are not determinative here, however. The determinative factor is that such standards, or factors, do exist, and have been enunciated by the South Dakota Supreme Court. The statutes...