Denial of Bail Pending Appeal to Prevent Advocacy of Use of Illegal Drugs Held Unconstitutional Infringement of Free Speech Recent Developments 70 Columbia Law Review 1970

70 Colum. L. Rev. 1460 (1970)
Denial of Bail Pending Appeal to Prevent Advocacy of Use of Illegal Drugs Held Unconstitutional Infringement of Free Speech

handle is hein.journals/clr70 and id is 1482 raw text is: COLUMBIA LAW REVIEW7

DENIAL OF BAIL PENDING APPEAL TO PREVENT ADVOCACY
OF USE OF ILLEGAL DRUGS HELD UNCONSTITUTIONAL
INFRINGEMENT OF FREE SPEECH
Timothy Leary's original conviction1 for importing marijuana was
remanded for retrial by the Supreme Court in Leary v. United States.2 Upon
retrial in the District Court for the Southern District of Texas, Leary was
found guilty and was sentenced to serve ten years in prison. The district court
denied without a hearing Leary's subsequent application for bail pending
appeal; the denial was grounded on the likelihood of Leary's advocating the
use of illegal drugs and thereby posing a danger to other persons or to the
community within the meaning of 18 U.S.C. § 3148.3 On appeal from the
denial of bail, held, case remanded to the district court for a hearing on the
merits of Leary's application. After deciding that the appeal from conviction
was not frivolous and was not taken for delay, the Court of Appeals for the
Fifth Circuit ruled that to classify Leary as a danger to the community because
of his advocacy of the use of illegal drugs would be an unconstitutional denial
of free speech; a constitutional interpretation of section 3148 demands that the
denial of bail be based on the danger of conduct that goes beyond mere advocacy
falling short of actual incitement to imminent unlawful conduct. Leary v.
United States, No. 29419 (5th Cir., June 10, 1970).
While there is no constitutional right to release pending the appeal of a
criminal conviction, the federal courts generally have favored release on bail
except in the extraordinary case ;4 the practice of the courts in this regard
was legislatively endorsed when Congress enacted the Bail Reform Act of
1. He was convicted under 21 U.S.C. § 176(a) (1964).
2. 395 U.S. 6 (1969), rev'g 383 F.2d 851 (5th Cir. 1967) and 392 F.2d 220 (5th Cir.
1968). The Supreme Court also reversed, in the same case, Leary's conviction under the
Marihuana Tax Act, 26 U.S.C. § 4744(a) (1964).
3. 18 U.S.C. § 3148 (Supp. III, 1968) reads, in pertinent part:
A person (1) who is charged with an offense punishable by death, or (2) who has
been convicted of an offense and is either awaiting sentence or has filed an appeal
or a petition for a writ of certiorari, shall be treated in accordance with the pro-
visions of section 3146 unless the court or judge has more reason to believe that
no one or more conditions of release will reasonably assure that the person will
not flee or pose a danger to any other person or to the community. If such a risk
of flight or danger is believed to exist, or if it appears that an appeal is frivolous
or taken for delay, the person may be ordered detained.
The provisions of § 3146, referred to in § 3148, deal with the release on bail of a person
charged with an offense and awaiting trial.
4. See, e.g., United States v. Coppola, 280 F. Supp. 192 (D. Conn. 1968). See
generally Leigh v. United States, 82 S. Ct. 994 (Warren, Circuit Justice, 1962) ; Herzog
v. United States, 75 S. Ct. 349 (Douglas, Circuit Justice, 1955) ; Hairston v. United States,
343 F.2d 313 (D.C. Cir.), cert. denied, 382 U.S. 856 (1965) ; Christoffel v. United States,
196 F.2d 560 (D.C. Cir. 1951) ; D'Aquino v. United States, 180 F.2d 271 (9th Cir. 1950) ;
Rossi v. United States, 11 F.2d 264 (8th Cir. 1926) ; United States v. Motlow, 10 F.2d
657 (7th Cir. 1926) ; United States v. Ursini, 276 F. Supp. 993 (D. Conn. 1967) ; FED.
R. Can,. P. 46(a) (2) ; Note, Bail Pending Appeal it the Federal Courts, 32 N.Y.U.L.
R v. 557 (1957),

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