United States District Court, Eastern District of New York
April 12, 2001
NICOLE HALIKIPOULOS, PETITIONER,
DENNIS DILLION, DISTRICT ATTORNEY OF NASSAU COUNTY, RESPONDENT. PARASK VLEPAKIS, PETITIONER, V. DENNIS DILLON, DISTRICT ATTORNEY OF NASSAU COUNTY, RESPONDENT.
The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
These petitions for habeas corpus were filed pursuant to the
provisions of 28 U.S.C. § 2241, seeking to bar the further
prosecution of the Petitioners on the grounds of Double
On July 25, 1996, the Petitioners were arrested for
shoplifting and charged with Pettit Larceny, N.Y. Penal L. §
155.25. The Petitioners were each released on $500 police bail,
and on August 6, 1996, were arraigned before Nassau County
District Court Judge Joel Gewanter. Upon their plea of not
guilty, Judge Gewanter continued the Petitioners' bail as
previously fixed with the additional condition that they enroll
in and complete a one-day "Stoplift" program, which the District
Attorney describes as "a remediation and education program for
The purpose — and indeed, the very operation — of the
"Shoplift" program is not well-developed in the record before
this Court. The sole evidence in the record regarding the
operation and goals of the "Stoplift" program is a brochure
included in the record on appeal to the Appellate Division,
which reads in part:
WHAT IS STOPLIFT?
STOPLIFT is a unique remediation and education
program for beginning shoplifters. During a
full-day class, offenders examine their motives,
learn about the legal consequences of continued
shoplifting, and analyze the cost of their crimes
[. . . . .]
DO PARTICIPANTS RECEIVE ANY LONG TERM HELP?
Yeseach class member meets individually with
the social worker. During these meetings, the
social worker will work with the shoplifter to
identify any needs he/she may have. An additional
referral to a community agency will be made when
Although the Petitioners' counsel objected to the "Stoplift"
program as a condition of bail, citing Double Jeopardy concerns,
the court observed that the program "is not considered by this
Court to be punishment." On August 24, 1996, the Petitioners
completed the one-day Stoplift program, including the payment of
an $85 attendance fee.
The Petitioners then commenced an Article 78 proceeding in
Nassau County Supreme Court, seeking to stay any further
criminal prosecution on Double Jeopardy
grounds. On January 7, 1997, Nassau County Supreme Court Justice
Edward T. O'Brien denied the application for a stay, stating:
The Court is not persuaded that a requirement to
attend a therapeutic program for shoplifters for
persons charged with shoplifting is punishment
without trial rather than a reasonable condition of
bail as argued by the respondents. Moreover, if they
are found guilty after trial, petitioners may make an
application at sentencing to have their attendance at
the shoplift program considered for any purpose.
The Petitioners appealed Justice O'Brien's decision to the
Appellate Division, Second Department. On January 12, 1998, the
Appellate Division affirmed the decision, finding that:
The program was not a punishment, as the course did
not serve the goal of either retribution or
deterrence. Rather, the class was, by its terms,
purely remedial in nature, with the result that the
double jeopardy clause of the Fifth Amendment was not
Vlepakis v. Dillon, 246 A.D.2d 549, 667 N.Y.S.2d 435 (2d Dept.
1998) (citations omitted). The Petitioners' sought leave to
appeal from the New York State Court of Appeals, but leave was
denied on April 7, 1998. Vlepakis v. Dillon, 91 N.Y.2d 812,
671 N.Y.S.2d 715, 694 N.E.2d 884 (1998) (table).
On May 12, 1998, the Petitioners filed these actions, each
seeking a writ of habeas corpus, alleging that the "Stoplift"
program constituted punishment and that further prosecution is
barred by the Double Jeopardy clause of the Fifth Amendment.
The Double Jeopardy guarantee consists of three separate
constitutional protections: it protects against a second
prosecution for the same offense after acquittal; it protects
against a second prosecution for the same offense after
conviction; and it protects against multiple punishments for the
same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89
S.Ct. 2072, 23 L.Ed.2d 656 (1969). Because there has been no
adjudication on the merits of the charges against the
Petitioners, only the third protection could arguably apply
However, in U.S. v. Warneke, 199 F.3d 906, 907 (7th Cir.
1999), the court questioned whether that guarantee could be
vindicated where the defendant has yet to be prosecuted. Citing
Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767,
114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), a case in which a
defendant convicted of drug crimes was subjected to a subsequent
"drug tax" by the state based on the same criminal conduct, the
court in Warneke recited "the fundamental principle that an
accused must suffer jeopardy before he can suffer double
jeopardy." 199 F.3d at 908. Describing a scenario more fitting
to the facts of this case, the Warneke court stated that "if
the tax had been levied prior to the drug prosecution, the
Supreme Court would then have had to determine whether the
taxing procedure resulted in the attachment of jeopardy." Id.
Therefore, the real question before this Court is whether
jeopardy attached at the time the "Stoplift" program was imposed
as a bail condition. See e.g. Doyle v. Johnson, 235 F.3d 956,
958 (5th Cir. 2000), citing Serfass v. U.S., 420 U.S. 377,
393, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). This Court has grave
doubts whether the sua sponte imposition of a bail condition
can ever be sufficient to attach jeopardy. The Supreme Court has
held that jeopardy only attaches when the defendant is "put to
trial before a trier of facts." Serfass, 420 U.S. at 388, 95
Accordingly, pre-trial proceedings, such as the court holding an
evidentiary hearing on a jurisdictional issue, do not result in
the attachment of jeopardy, since "without the risk of a guilty
verdict, there is no jeopardy." U.S. v. Gamble, 141 F.3d 621,
624 (6th Cir. 1998); see also U.S. v. Grisanti, 4 F.3d 173,
175 (2d Cir. 1993) (bail revocation hearing did not constitute
jeopardy). The same rationale applies here: the setting of bail
conditions does not expose a defendant to the risk of a finding
of guilt, or even necessitate an adjudication of facts.
Accordingly, it appears that the Petitioners fail to even assert
a facial Double Jeopardy claim.
Although pressed as a Double Jeopardy claim, the Petitioners'
argument is better characterized as a simple Due Process
violation. Bell v. Wolfish, 441 U.S. 520, 536, 99 S.Ct. 1861,
60 L.Ed.2d 447 (1979) ("under the Due Process Clause, a detainee
may not be punished prior to an adjudication of guilt in
accordance with due process of law"). Although the Government
may detain a defendant to ensure her presence at trial and may
subject her to restrictions and conditions, those conditions may
not amount to punishment. Bell, 441 U.S. at 536-37, 99 S.Ct.
1861. Put more simply, "due process requires that a pretrial
detainee not be punished." Id. at n. 16.
However, not all pre-trial detentions constitute "punishment."
"Regulatory" bail conditions may be imposed without running
afoul of the Due Process clause. Bell, 441 U.S. at 537, 99
S.Ct. 1861, citing Kennedy v. Mendoza-Martinez, 372 U.S. 144,
168-169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). In the absence of
legislative history indicating that a given condition is
intended to serve punitive means, the determination turns on
whether an alternative purpose to which the bail condition may
rationally be connected is assignable for it, and whether it
appears excessive in relation to the that alternative purpose.
441 U.S. at 538, 99 S.Ct. 1861; U.S. v. Salerno, 481 U.S. 739,
747, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).
Turning to the question of whether an alternative,
non-punitive purpose can be assigned to the bail condition set
by the district court, it appears that New York State courts
have traditionally viewed attendance at behavioral modification
classes to be legitimate conditions of bail. See People ex rel.
Moquin v. Infante, 134 A.D.2d 764, 521 N.Y.S.2d 580 (3d Dept.
1987) (granting bail on condition that defendant enroll in
alcohol rehabilitation program); People ex rel. Bryce v.
Infante, 144 A.D.2d 898, 535 N.Y.S.2d 215 (3d Dept. 1988) (bail
conditioned on defendant resuming treatment with his
psychotherapist); People v. Bongiovanni, 183 Misc.2d 104,
701 N.Y.S.2d 613 (1999) (bail requirement that defendant attend
domestic violence was permissible). While the courts in these
cases did not specifically address the issue of whether these
conditions constituted "punishment," they appear to have
implicitly found that the conditions serve a non-punitive
purpose. For example, in
Bongiovanni, the court observed that Until there is
a determination of guilt or innocence the court is
responsible not only to seek justice by safeguarding
the rights of the defendant; it must also insure that
the complainant is secure and that societal peace is
preserved during the pendency of the action.
Directing a defendant to attend alternative to
violence courses helps insure this. Rather than
implying guilt, attendance at the program, in tandem
with its educational benefits, reminds the defendant,
as does the order of protection, that although at
liberty, he is still bound by the dictates of the
court, which can rescind his liberty on his failure
to abide by those dictates. In requiring
attendance at such programs, the court feels it is
less likely that a temporary order of protection will
be violated. Such a condition thus assists the court
in its responsibility to secure the peace and protect
183 Misc.2d at 105-06, 701 N.Y.S.2d at 614.
Although the situation it addresses is certainly less dire
than the problem of domestic violence, the "Stoplift" program
serves similar objectives to the course discussed in
Bongiovanni. By offering education about societal costs of
shoplifting and the psychological motivations of shoplifters,
the "Stoplift" program arguably safeguards merchants who might
be at risk from defendants who are released pending trial. This
Court does not see that directing an individual charged with
shoplifting to the "Stoplift" program assumes guilt any more
than the court directing an individual charged with domestic
violence to a domestic violence education program assumes guilt.
In both cases, the subject matter of the class is relevant to
charges that have been found to be supported by probable cause,
but neither class requires the defendant to admit guilt,
apologize to the victim, or otherwise compromise or disregard a
defendant's claim of innocence.
Accordingly, the Court finds that the "Stoplift" program can
be assigned a rational, non-punishment purpose under Bell.
Next, the Court must determine whether the bail condition is
excessive in relation to that purpose. Here, the "Stoplift"
program certainly presents a restraint on the Petitioners'
liberty, albeit a relatively minor one. The Court considers the
one-day "confinement" to the classroom to be a minimal
imposition. Courts routinely approve bail conditions that pose
much greater restraints to a defendant's liberty, such as
requirements that the defendant secure full-time employment or
repeatedly appear at a given place and time for drug testing.
See U.S. v. Carbone, 793 F.2d 559, 561 (3d Cir. 1986) (bail
conditioned upon home detention and requirement of continued
employment); U.S. v. Nezaj, 655 F. Supp. 1176 (S.D.N.Y. 1987)
(bail conditioned on enrollment in drug treatment program and
daily drug tests). Once they completed the "Stoplift" program,
the Petitioners were under no further restraint by the
imposition of the condition; that is, they were not required to
return for additional counseling or repeat classes, or to suffer
any further consequences from their participation. Accordingly,
the Court finds that although the condition imposed an
affirmative restraint, it was of a minimal nature.
The Petitioners argue that the program also resulted in a
"forfeiture" of the $85 attendance fee. The Court notes that the
fee was payable not to the victims or to the Court as a fine or
other punishment might be, but rather to the educational
corporation sponsoring the program. In this regard, the Court
considers the fee to be an expense incident to the bail
condition itself, such as the cost of electronic monitoring,
which is often imposed on a defendant as a condition of release
on bail. See e.g. U.S. v. Malloy, 11 F. Supp.2d 583, 584 (N.J.
1998). Nor is the fee so grossly disproportionate to the value
of the goods alleged to have been stolen by the Petitioners —
$22 in one case, and $28 in the other — that it alone would
constitute punishment. Compare U.S. v. Halper, 490 U.S. 435,
452, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) (civil penalty 220
times greater than the damage caused by the crime was so
disproportionate as to amount to a second punishment). Moreover,
this Court sees little difference between the imposition of $500
cash bail and the requirement that the Petitioners pay the
program attendance fee themselves, and cash bail of $585 with
the attendance fee being paid by the court. An
argument can be made that, had the additional $85 been paid as
bail, it would be refundable. However, the Supreme Court has
permitted courts to retain a percentage of a defendant's cash
bail for "administrative cost[s]" without violating the Due
Process clause. Schilb v. Kuebel, 404 U.S. 357, 370-71, 92
S.Ct. 479, 30 L.Ed.2d 502 (1971) (upholding a state statute
permitting the court to retain 1% of money posted for court bail
bonds). Therefore, it would be reasonably permissible for the
state court to retain the Petitioners' extra $85 in bail for the
"administrative cost" of supplying the program. Accordingly, the
Court finds that the $85 attendance fee for the program does not
constitute punishment prior to a finding of guilt in violation
of the Due Process clause.
Given that the duration and cost of the "Stoplift" program are
minimal, with no continuing disability or restraint imposed upon
the Petitioners following their completion of the program, the
Court finds that the class at issue is not an excessive burden
in relation to its educational purpose. Under these
circumstances, the Court concludes that attendance at the
program as a condition of bail does not constitute "punishment"
prior to trial in violation of the Due Process clause.
Finally, even if the Court were to find that the "Stoplift"
program amounted to pre-trial punishment in violation of the Due
Process clause, the proper remedy for such a denial is not the
termination of all further prosecution. See Warneke, 199 F.3d
at 908 ("They are seeking only double jeopardy relief. The
strategy behind this approach is clear: dismissal on double
jeopardy grounds would stop their prosecution altogether,
whereas release . . . on due process grounds may provide only a
temporary interruption of their confinement."). The proper
remedy for a violation of due process prior to trial is an
injunction or money damages, not dismissal of the charges or
divestiture of the court's jurisdiction. Id.; Matta-Ballesteros
v. Henman, 896 F.2d 255, 261 n. 7 (7th Cir. 1990). Therefore,
even if the Petitions were meritorious, this Court would
nevertheless not grant the requested relief.
The Petitioners also argue in their brief that the bail
condition violated New York's Criminal Procedure Law § 510.30,
in that the condition was intended for some purpose other than
to secure their attendance at trial. Citing, e.g. Matter of
Sardino v. State Commission on Judicial Conduct, 58 N.Y.2d 286,
289, 461 N.Y.S.2d 229, 230, 448 N.E.2d 83 (1983). However, it
does not appear that this contention was pressed before the
state courts, and is thus not exhausted for purposes of these
petitions. Moreover, an alleged violation of New York State's
statutes does not necessarily create a federal Constitutional
issue before this Court reviewable on a habeas petition.
For the foregoing reasons, the Court finds that the imposition
of the "Stoplift" class as a bail condition did not violate
either the Double Jeopardy or Due Process clause. Accordingly,
both petitions are DENIED. The Clerk of the Court is directed to
close these cases.
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