And second, it would enable the District Judges and the Judges of the Court of General Sessions to make bail determinations more closely related to the particular facts of an individual's case, whether or not those determinations involve personal recognizance, release or other conditions under the Bail Reform Act, in such a way, I think, as to reduce fairly substantially the problem of overcrowding in the D.C. jail.

Third, I think this will enable the judges of the District of Columbia, because of the additional pre-trial freedom that will be involved, to more judiciously manage their judicial calendars, which have become. as you know, quite a problem in the past few years.

And finally, it will provide the judges with the facts which they have have so long had to operate without until the institution of the experimental project which is now coming to an end.

And I respectfully suggest the immediate enactment of this legislation.

And I thank the Committee for its time.

Mr. WHITENER. Thank you, Mr. McCarthy.

Of course, the Bail Reform Act, being applicable to the Court of General Sessions of the District of Columbia, presents to this court a problem of greater magnitude than any other jurisdiction would have under the Bail Reform Act.

And the requirement upon the judge to make certain findings of fact under the Bail Reform Act when he does allow bail or permit persons to go on their own recognizance would be a tremendous burden for the judge to have to carry here without some assistance, wouldn't it?

Mr. MCCARTHY. That is correct, sir. And the legislative history of the Bail Reform Act specifically indicates the necessity for this type of agency.

This brings to mind a question which you asked Judge Danaher which I should like to comment on in this regard.

Given the fact of the Bail Reform Act of 1966, to answer your question about the time element involved in the operation of the fact-finding entity, I would suggest, in view of the comment you just made, which is quite accurate, that the bail agency would in fact speed up the procedures in the District of Columbia courts, especially under the Bail Reform Act.

In fact, the bail project, as you know, has been operating for a couple of years in General Sessions Čourt. * And it has not to our knowledge served in any way to add to the backlog or contribute to delay of any sort in the court, despite the fact of its operation.

So I think we can safely say that the operation of this entity will certainly not cause delay, and will more than likely speed up the bail determinations, and at the same time assist those determinations in being equitable ones under the Bail Reform Act of 1966. Mr. WHITENER. Thank you, sir.

And now our next witness.

*See "The District of Columbia Bail Project: An Illustration of Experimentation and a Brief Exchange", by David J. McCarthy, Jr. and Jeanne J. Wahl, The Georgetown Law Journal, Vol. 53, No. 3, Spring, 1965.

STATEMENT OF DANIEL J. FREED, ESQ., ACTING DIRECTOR, OFFICE OF CRIMINAL JUSTICE, U.S. DEPARTMENT OF JUSTICE

Mr. FREED. Mr. Chairman, I am Daniel J. Freed, Acting Director of the Office of Criminal Justice. I appear today to indicate the strong support of the Department of Justice for legislation to create a D. C. Bail Agency.

I would like, if I may, to submit my prepared statement for the record.

Mr. WHITENER. All right. We will make it a part of the record. (Mr. Freed's prepared statement follows:)

STATEMENT OF DANIEL J. FREED, ACTING DIRECTOR, OFFICE OF CRIMINAL JUSTICE, ON H.R. 15065

I appreciate the opportunity to appear today and express the strong support of the Department of Justice for legislation to create a District of Columbia Bail Agency. The experience of the privately-financed D.C. Bail Project, which is now expiring, has demonstrated the importance of such an Agency to the administration of the criminal laws in the nation's capital. This experience, in turn, has led to widespread efforts to make the Project a permanent part of the District of Columbia criminal court process. Endorsements have been given by the President in his March 9, 1966 crime message to Congress; by the Judicial Conference of the District of Columbia Circuit at its annual meeting two weeks ago; by the President's Commission on Crime in the District of Columbia; by the D.C. Board of Commissioners; by the United States Attorney; by the private bar and the local press.

We view the Bail Agency legislation as an important counterpart to S. 1357, the proposed Bail Reform Act, which passed the Senate last September and was approved by the House yesterday. The fact-gathering functions which the proposed Bail Agency would perform are intended to furnish the information which judicial officers will need to set conditions of release under the Bail Reform Act. The Reform Act requires bail decisions to be based on facts; the Agency Act will establish an organization to supply those facts.

The legislation which you are considering has a solid foundation in experience. The D.C. Bail Project has operated for over two years in the United States District Court, the D.C. Court of General Sessions and the U.S. Court of Appeals. The Project itself was patterned after the Vera Foundation's highly successful Manhattan Bail Project. In May 1964, at the National Conference on Bail and Criminal Justice, these two projects drew nationwide attention as models of procedure for providing facts about accused persons to bail-setting magistrates. Today, dozens of bail projects have been established in all parts of the country. They are premised on two important principles: first, that an accused person's release prior to trial should be based on a factual inquiry into his reliability, not his money; and second, that accused persons with community ties can often safely be released on nonfinancial conditions, instead of having their pretrial freedom conditioned on their ability to pay bondsmen.

It is important to emphasize the clear line which is drawn between the duty of the bail agency and the duty of the court. The Bail Agency will interview defendants, verify facts and submit reports and recommendations to the court. But the bail decision remains the exclusive province of the judiciary. Only a judicial officer may determine the conditions to be imposed on the release of the defendant. The Pail Project has proven to be of great value to individuals, courts and the administration of justice generally in the District of Columbia. For the first time in this jurisdiction, it has enabled a large number of persons to be released on personal bond when, without a fact-finding project, they would either have remained in jail or been made to suffer financial hardship to raise a bondsman's fee. A recent report indicated that in its first two years, nearly 75% of the Project's recommendations for release without money bail were honored by judges in felony cases, and 93% in misdemeanor cases. This means that almost 2100 persons have been released because of information supplied by the Project. We understand that the 3% default rate in Bail Project cases is less than that in bail bond cases. We also understand that charges of serious criminal conduct during periods of pretrial release have shown a similarly low rate: Bail Project reports indicate that less than 2.5% of persons released on its recommendation have been

so charged, and that a majority of the charges disposed of to date have been dismissed.

The Project enables many persons to secure their liberty, retain their jobs, prepare their defense and maintain family relationships. Its cost savings to the community from eliminating unnecessary detention in the D.C. Jail run to many thousands of dollars. Our court system is able to make more meaningful decisions because they can be based on information not previously available. These results clearly demonstrate the desirability of establishing the Project as a permanent independent agency in the District of Columbia.

In urging enactment of H.R. 15065, the Department would like to suggest several changes to bring the language of the bill into line with the Bail Reform Act provisions of S. 1357, and to make its provisions effective in the full range of criminal cases which arise in the District of Columbia. First, we fully agree with the bill's imposition of criminal penalties on persons who flee after being released under its provisions. Section 11, however, appears unnecessary to achieve this purpose since the newly revised federal bail jumping statute, 18 U.S.C. § 3150, will be fully applicable to District of Columbia courts as soon as the Bail Reform Act becomes effective.

Second, we fully agree with H.R. 15065's effort to give credit against sentence for all time a defendant spent in custody prior to commencing service of that sentence. But such a provision, applicable to D.C., is already contained in the Bail Reform Act passed yesterday by the House. To the extent that Section 10 of H.R. 15065 differs from S. 1357, we much prefer the text of the latter.

Finally, we urge the deletion of that language in H.R. 15065 which would preclude the Bail Agency from assisting courts in intoxication cases and traffic violations. This limitation would mean that although the Agency could furnish information to help release persons charged in even the most serious cases, it could do nothing to avoid jail for persons charged with an important group of lesser crimes. Öffenses such as drunk or reckless driving, driving without a permit, driving after a permit has been revoked, or leaving the scene of an accident often give rise to relatively long periods of detention for want of bail. During 1965, D.C. Jail records indicate that 271 defendants were detained on those charges. A sample of approximately 5% of those defendants averaged 24 days in detention. The jail lists for the first three months of 1966 indicate that some traffic detainees spend up to four months in detention. Indeed, detention in traffic cases is more widespread and longer in duration than for any D.C. Branch offense except intoxication cases. We therefore urge the elimination of Section 3(c)'s limitation.

In conclusion, we believe that H.R. 15065 represents a highly desirable and much needed addition to the bail system of the District of Columbia. Its enactment appears to be a matter of considerable urgency because the Bail Project is going out of business at the end of this month. If there is any way in which the Department of Justice can assist your Committee in its further consideration of this important bill, we would be happy to be of service.

Mr. FREED. Thank you, sir.

I believe that Judge Danaher and the witnesses who have preceded me have covered the need for this legislation abundantly. And I think it is fair to say that the great advances which have been made in the District of Columbia over the past several years in the bail system might never have taken place were it not for Judge Danaher. And I would like to pay honor to his work today.

I would in the course of submitting this statement like to make just a few comments about the provisions of the bill.

The Department of Justice completely endorses Judge Danaher's suggestions with respect to amending the Section 3(c) of the bill to remove the limitation on Agency assistance to judges in intoxication and traffic violations. And I believe the committee will find at pages 161 through 168 of the hearings conducted by the Senate District Committee an explanatory statement, which we prepared in conjunction with the bail project representatives and focal law enforcement agencies, designed to show what the addition of intoxication and traffic cases would mean in terms of the slight extra burden on the Agency.

There are actually only about five hundred cases a year in which persons charged with either of these offenses would be in great need of the Agency's services and would have been excluded by H.R. 15065 before Judge Danaher's amendment. In other words, there are only five hundred people who are detained each year for want of bail in connection with such offenses. Judge Danaher's amendment would secure the services of the Agency to assist in bail determination with regard to those people.

With respect to the Bail Reform Act, which the House passed yesterday, I think it is fair to say that Sections 10 and 11 of the bill which are pending before this committee today are probably not necessary.

Both the bail-jumping provisions of the Bail Reform Act and the provision for credit against sentence in that bill passed yesterday are fully applicable to all courts and all offenses in the District of Columbia.

The provisions of Section 11 of the bill before your committee today are almost identical to the Bail Reform Act. It would be virtually a re-enactment to include bail-jumping provisions in this bill. With respect to the credit against sentence provisions, I believe that the bill pending before this committee today is inconsistent with the provisions which as amended by the House Judiciary Committee last month were adopted by the House yesterday. And I think from the point of view of the Department of Justice we would see no need to have any further enactment with respect to credit against sentence. We believe that all credit should be given administratively for all time spent in detention prior to the imposition of sentence in the District of Columbia under the Bail Reform Act.

Mr. WHITENER. Now, that is the point I raised with Judge Danaher. There is a difference in the language in this bill and that contained in the Bail Reform Act. In the Bail Reform Act the Attorney General gives the credit for the period of incarceration. In this bill, the trial judge does that. So it is not the same provision at all.

Mr. FREED. It is not, Mr. Chairman. And I believe that the reason why the House Judiciary Committee made the change from having the judge give credit against sentence to having the Attorney General give credit against sentence was for the purpose of making it an administrative determination, so that everyone would automatically receive credit for time spent in custody.

This was designed to make the Attorney General give that credit by statutory directive rather than leave it as a matter of judicial discretion. The Attorney General has responsibility for custody of all persons detained in the District of Columbia. The provisions of the Bail Reform Act make it clear that that Act applies to anything done by a judge of the District of Columbia Court of General Sessions, and that the term "offense" include violation of any Act of Congress. There are several other differences in that credit provision, if the committee would want to go into them. But all the differences would be removed if the Act passed yesterday was simply left intact. with respect to the District of Columbia.

Mr. WHITENER. You feel that if we left sections 10 and 11 in this present bill that there would be some conflict between the two Acts, that is, the Bail Reform Act and this Bail Agency Act in the District. of Columbia which would give trouble to the courts?

Mr. FREED. With respect to Section II, I believe there would simply be a duplication. With respect to section 10, there would be an inconsistency between the two statutes. Federal prisoners in the District of Columbia would be treated differently, and would be given less credit than Federal prisoners in any other district in the United States. And I believe for that reason that it might create some serious problems.

Mr. WHITENER. Have you discussed this with Judge Danaher?
Mr. FREED. I have not had an opportunity to do that, sir.

Mr. WHITENER. You know, as he pointed out here this morning, he and the other judges of the District of Columbia have met on this bill, and have all approved it as written. I think if you wouldn't mind doing so it would be well for you to mention your contentions to judge Danaher and let him, and the other judges, get some communication in writing as soon as they can. It may be that they would agree with you. If they have a strong feeling to the contrary. then the committee would have to referee between the Justice Department and the judges, I suppose.

Mr. FREED. I would be happy to take this up with Judge Danaher, and furnish a communication to the committee.

Mr. WHITENER. I am sorry that he had to leave because of his judicial duties, otherwise we could ask him here today.

Are there any other suggestions you have, Mr. Freed?

Mr. FREED. I don't believe there are any others that the committee need to take up its time on today.

But I would like to volunteer on behalf of the Department of Justice to assist this committee in any way in granting early approval to a bill to create a bail agency in the District of Columbia.

Mr. WHITENER. Do you as a spokesman for the Department of Justice agree that the Juvenile Court is properly omitted from this legislation?

Mr. FREED. We have not made any special inquiry into the need of the Juvenile Court to be included in this bill. However, I think in terms of background, the Juvenile Court was never included either in the Bail Reform Act or in this bill because the Juvenile Court has never had a bail system as such. Money bail is never set. And it is my understanding that the staff of the Juvenile Court make an individual determination in the case of each juvenile to determine whether and on what conditions that juvenile can be released into the custody of his parents or into another institution. It has not been brought to our attention that the Juvenile Court would need the services of a bail agency.

It would be my personal belief that if the services of the Juvenile Court are inadequate to conduct the kind of background investigation needed to set proper terms and conditions of release, that deficiency should be made up by augmenting the staff of the Juvenile Court rather than imposing an additional burden on the bail agency. Mr. WHITENER. Do you mind taking that up with your colleagues in Justice and let us have some communication with them?

Mr. FREED. I believe that Mr. Molleur has some additional remarks, Mr. Chairman. But if the Department of Justice has any additional views on the Juvenile Court, I will be happy to furnish them promptly.

Mr. WHITENER. All right.