Judge DANAHER. Now, briefly to continue, and shortly to conclude Mr. Chairman, in subsection (c) we deem it of great importance that information obtained by the agency, or in its files, or as a result of the interviews, shall be protected, shall not be divulged except for bai determination purposes. The material should be surrounded by the confidentiality upon which the success of the project depends, and it shall not be subjected to court process for use in any other proceeding That is of the utmost importance, as those in the direct field car readily attest.

It takes some time, I might add, as our experience shows, for those who have been arrested to voice a sense of confidence in those who are really trying to help them. And if the prisoner were led to think that whatever he says is going to be turned over to a prosecutor, for example, or other use made of the confidential information, you car. readily see the havoc that would be wrought.

Now I think the most important single next change from the Bible bill occurs on page five, section five. We think in our courtand we think through the Executive Session of the Judges as wellthat there should be an executive committee of five, of which three should be a quorum, four of whom shall be the chief judges of the respective courts affected and named in section 5.

Those four will select a fifth member. And that fifth member, having been selected, will join the four judges as a policy-making figure.

The housekeeping provisions have been submitted to the Adminis trative Officers of the United States courts. And we come now to page seven, Section 10.

I need not tell you, I am sure, that Section 3568 of Title 18 of the U.S. Code provides for credit against mandatory minimum sentences. However, there is no provision applicable to a sentence that does not involve a mandatory minimum as a result, a judge who might be inclined to sentence a man to serve one year in jail discovers upon checking the record that he has been in jail two months or three months in default of bail, can say, "I intend now to give you credit for the time you have spent in jail in default of bail. And on that account your sentence will not be one year, but it will be ten months or nine months, or whatever other term is provided by the pronouncement."

Mr. WHITENER. Judge, in the Bail Reform Act, the House of Representatives, and the House Judiciary Committee had a similar provision, but it provides that the Attorney General shall give any such person credit before he serves his assignment.

Now, under Bill H.R. 15065, the trial judge would give this credit. Do you think that this is the best approach?

Judge DANAHER. I think it is better the way we have it, for the reason that a vast volume of the offenders will be in the Court of General Sessions, and they are District of Columbia offenders largely. And it is that type of situation we are trying to reach.

And so far as the Federal offenses are concerned, I would not anticipate that there would be any problem where the Attorney General has the chore, either under the Bail Reform Act of 1966, or under present law, I doubt that there would be any conflict.

Mr. WHITENER. The bill that we have before us does not limit this credit giving to cases where there is a fixed minimum penalty in the statute, does it?

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DISTRICT OF COLUMBIA BAIL AGENCY

15

Judge DANAHER. Absolutely not, you are right.

Mr. WHITENER. As a practical matter, how would a judge do this? He would say to the prisoner that "I could give you up to twenty years for this offense, but I have decided to give you eight years, and since you have been in the lock-up for two months, I am going to give you eight years less two months." Is that the way it works? Judge DANAHER. I would anticipate, sir, that a judge who makes a pronouncement to that effect is dealing with a Federal prisoner who is going to be committed to the care of the Attorney General anyhow, and the Attorney General under your Bail Reform Act of 1966 will have custody of that prisoner. Under our bill, we are really talking about the eight months and the ten months and the six months' type of offense, and not eight years or ten years. And if we choose to and deem it necessary, we could easily make that apparent in an accompanying report.

Mr. WHITENER. In a housebreaking or burglary case, it could very well arise-no, that would be in the District Court, wouldn't it? Judge DANAHER. That is right.

But let me point out another feature of this section, if you please. At the top of page eight there is a proviso in which we note thatsuch credit shall not be afforded to any such person who, after a bail determination, shall have violated the terms or conditions of his release by the commission of another offense while at liberty.

In other words, suppose a man is in jail a month before he is released. He knows very well that now he is at liberty, and should he turn recidivist he forfeits any time he spent in jail.

It is nothing but a gimmick, but psychologically it is very effective, I can assure you, just as in the same sense that it is psychologically of value if the judge says, "I intended to give you one year, but I see you have been in jail for two months, so I am going to make it only ten months." At least it removes from the mind of the offender a sense of unfairness. It is psychological, but it is of great value as a practical matter.

We also note, incidentally, that in subsection (b) in no way whatever do we infringe upon Title 13, section 3868, which has to do with the mandatory minimum under the regular Federal sections.

Now, in Section 11 we have incorporated a provision almost bodily which was in your Bail Reform Act of 1966, Mr. Chairman. We have there made bail-jumping an offense, and now extended it for the first time to the Court of General Sessions. And by its having been incorporated here, we have just one more string on that individual who might betray his trust and who might flee the jurisdiction. And it has proved of value in the Federal system over a long period of years. Now, in the main I have tried to hit only the high spots in the interest of conserving the time of the Committee. But I will try to answer questions if any there be.

Mr. WHITENER. What do you estimate the cost of this will be per annum to the Government?

Judge DANAHER. Well, we have to suppose I were to say, right off the top of my hat, $125,000. I might be high. Suppose I say $85,000. I could be too low. But I know that whatever it costs it is more than made up in the savings to the community, in the values. to the saved family, to the individual who is not deprived of his liberty. At least a third of all people arrested, Mr. Chairman, ultimately

find their cases either dismissed or that they result in a not guilty verdict. So that if detention is utilized as a means of punishment of a man who presumably is innocent, a gross injustice would be worked.

So there are savings of many facets, cost of detention, for instance, and all that sort of thing, which add up to hundreds of thousands of dollars annually. I would say that people here on the staff will be better able than I to estimate the cost. I just don't have those figures.

Mr. WHITENER. May I ask this question. Is there anything in this bill which would slow down the bail-making process in a typical criminal case in the District of Columbia, that is, any that would interfere with the right of a judge in the Court of General Sessions or other judges covered by this to make a decision on his own without taking the time to get a recommendation from the bail officer?

Judge DANAHER. He is free to do that. The bail entity shall make recommendations only when the factors on which a recommendation fairly may be based will justify it. But even then a judge doesn't have to accept that. He is the judge. He makes the determination. Mr. WHITENER. Does he have to make the request of the original determination by the Commission?

Judge DANAHER. No; he does not. If you look at Section 4(a) on page 3, sir, the first sentence: "The agency shall make that investigation."

Now you go down about fifteen lines and you will see, "The agency turns in a report with or without recommendation." But the judge may accept or reject it-it doesn't say he has to, he is not bound by fact-finding entity.

Mr. WHITENER. Let's assume a hypothetical case, that a man is arrested by the Metropolitan Police for the crime of assault with a deadly weapon. He is brought in. And everything appears to the judge that this is just a routine assault with deadly weapon case, with no real aggravated conditions. And this is a young fellow eighteen years of age, with no previous record that he knows of, and he just wants to say immediately, "I want to fix his bond at $50 or $100." Now, is there anything here in this bill which would require that judge to await a report from this bail agency?

Judge DANAHER. The answer is no, sir. But I would hope that he would wait, because the reports can be turned up maybe the same day, and at any rate within twenty-four hours. An assault with a deadly weapon is a serious offense, whether the man has a previous record or not.

Mr. McCarthy, who has had three years' experience as Director, tells me that the report normally would be in the judge's hands the minute he makes the bail determination anyhow.

Mr. WHITENER. Suppose this person is arrested at midnight, and he is brought before the judge for arraignment at nine o'clock the next morning. There wouldn't be any bail agency report made up at that time, would there?

Judge DANAHER. It would be ready. Normally, yes, put it that

way.

Mr. WHITENER. May I ask another question about the bill? It seems that the Bail Reform Act of 1966, and this bill, H.R. 15065,

si omits any reference to the juvenile judges of the Juvenile Court. Now, I realize that in the normal function of the Juvenile Court dealing with juveniles that it is very understandable. But suppose that it is a case which falls within the jurisdiction of the Juvenile Court which deals with the criminal offense by adults-nonsupport of illegitimate children, child labor law violations, and cases of that sort. The bail de agency under our bill does not project itself into that at all? Judge DANAHER. No, sir.

Judge DANAHER. In the first place, Juvenile Court, while called a court, actually is a highly specialized social agency. The overwhelmGing bulk of its work involves no criminal charge.

Another facet to it is that should the Juvenile Court judge, after he hearing, and an investigation through its own staff, of the family situation of the juvenile, nonetheless should decide that this case should be waived over the District Court, the District Court is in a position then to make a bail determination if it chooses to do so. In that event the staff can go forward with its interview and give that District judge whatever information the District judge wants.

Mr. WHITENER. It is your feeling, then, that the Juvenile Court is properly omitted in the bill?

Judge DANAHER. Definitely, yes, sir.

Mr. WHITENER. Gentlemen, we have other witnesses here in conTnection with the bill at the table.

How many of you have prepared statements?

Would you object to having your statements made a part of the record?

Will you identify yourselves, please?

STATEMENT OF WILLIAM W. GREENHALGH, ESQ., CHAIRMAN OF THE CRIMINAL LAW COMMITTEE, DISTRICT OF COLUMBIA BAR ASSOCIATION

Mr. GREENHALGH. Professor William Greenhalgh, Georgetown University Law Center, representing the District of Columbia Bar Association on behalf of the President, Paul McArdle. I am the Subcommittee Chairman of the Committee on Criminal Law, and Mr. McArdle asked me to include his letter in the record.

Mr. WHITENER. Mr. Greenhalgh, we will make your statement a part of the record. And will you tell us briefly the position of your committee?

Mr. GREEN HALGH. Mr. Chairman, the Bar Association unequivocally endorses the bail agency concept as a fact-finding entity. And it passed a unan mous resolution to that effect. And we have no difficulty with your bill in this record.

Mr. WHITENER. You have heard the recommendation of Judge Danaher?

Mr. GREENHALGH. I concur with it completely.

Mr. WHITENER. Now, at this point we have a letter from the Bar Association which we will make a part of the record, the letter signed by Mr. Paul F. McArdle, President of the Bar Association of the District of Columbia.

(The letter referred to follows:)

THE BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA,
Washington, D.C., June 7, 1966.

Re H.R. 15065 and H.R. 15242.

DEAR MR. MCMILLAN: The Bar Association of the District of Columbia by unanimous resolution of its Board of Directors endorses legislation establishing a fact-reporting bail agency in the District of Columbia Courts. It is the view of the Association that a bail agency is urgently needed in the District of Columbia. The Association is also of the view that the services of the agency should include the District of Columbia Court of General Sessions.

Unfortunately, I cannot be present at the hearing because of previous medical examination commitments. If there is any further assistance that we may offer in this matter, please do not hestiate to get in touch with me.

Sincerely,

PAUL F. MCARDLE, President.

Mr. WHITENER. Now, our next gentleman.

STATEMENT OF RICHARD C. MOLLEUR, DIRECTOR, DISTRICT OF
COLUMBIA BAIL PROJECT, WASHINGTON, D.C.

Mr. MOLLEUR. My name is Richard Molleur. And I have a prepared statement, Mr. Chairman, that is a joint statement actually of David J. McCarthy, Chairman of the Supervisory Board of the District of Columbia Bail Project, and myself as Director of the District of Columbia Bail Project. I would like to have that included in the record.

Mr. WHITENER. Without objection your statement will be included in the record at this point.

(The statement referred to follows:)

STATEMENT OF DAVID J. MCCARTHY, JR., CHAIRMAN OF THE SUPERVISORY COMMITTEE OF THE DISTRICT OF COLUMBIA BAIL PROJECT, AND RICHARD R. MOLLEUR, DIRECTOR

Mr. Chairman, the House of Representatives, now considering the proposed Bail Reform Act of 1966, is well aware of the many injustices and inequities existing in our present financial bail system and of the reforms that have been proposed as remedies. Much of the impetus for modernization and reform has come from the more than fifty experimental bail projects now in operation throughout the country. An equally important by-product of these bail experi ments is the fact-finding assistance provided for the courts. In the past, most courts have been forced to apply the present bail system without sufficient facts. The pending legislative reforms will require these facts.

One of the original pilot bail reform experiments has been in operation here in the District of Columbia. In 1962, the Committee on Bail Problems of the 1 Among the states in which projects are operating are: New York, California, Texas, Florida, Colorado Missouri, Oklahoma, Connecticut, Delaware, Iowa, Kentucky, Maryland, Massachusetts, New Jersey New Mexico, Ohio, Pennsylvania, Utah, West Virginia, Wisconsin, and Georgia. The origin and effectuation of these experiments may be seen from the following: Beeley, The Bail System in Chicago (1927); U.S. National Commission on Law Observance and Enforcement, Criminal Justice Surveys Analysis 89-91 (1931); Morse & Beattie, Survey of the Administration of Criminal Justice in Oregon, 11 Ore. L. Rev. 1, 86-117 (Supp. 1932); Note, Compelling Appearance in Court: Adminis tration of Bail in Philadelphia, 102 U. Pa. L. Rev. 1031 (1954); Note, A Study of the Administration of Bail is New York City, 106 U. Pa. L. Rev. 693 (1958); Foote, Introduction: The Comparative Study of Conditional Release, 108 U. Pa. L. Rev. 290, 294-97 (1960); Bail: An Ancient Practice Re-examined, 70 Yale L.J. 966, 967-8 (1961); Ares, Rankin and Sturz, The Manhattan Bail Project: An Interim Report on the Use of Pretrial Parole, 38 N.Y.U. L. Rev. 1, 67-95 (1963; Freed and Wald, Bail in the United States: 1964, A Report to the National Conference on Bail and Criminal Justice, Washington, D.C., May 27-29, 1964; McCarthy and Wabl, The District of Columbia Bail Project: An Illustration of Experimentation and a Brief for Change, 53 Geo. L.J. 675-748 (1965); and McCarthy, Practical Results of Bail Reform, Federal Probation, September

1965.