sentatives of the Department of Justice and by other On March 4, 1965, Senator Ervin introduced, for himself First, It provided Federal courts with additional methods of releasing persons accused of criminal offenses. S. 646 provided only for release on personal recognizance and S. 648 provided for release upon deposit in the court of 10 percent of the amount of bond set. S. 1357 set forth seven enumerated methods of release and authorized "any other restriction which the judge may reasonably require to insure appearance as required." Second. It provided for an appeal of release orders by persons aggrieved by the release conditions imposed. No right to appeal release orders was specifically stated in the earlier bills. Third. It provided credit for pretrial confinement against any fine imposed by the court as well as against any sentence imposed. S. 647 provided only for credit against service of sentence. On June 15, 16, and 17, 1965, the Senate Subcommittee on Constitutional Rights and the Senate Subcommittee on Improvements in Judicial Machinery, under the charimanship of Senator Joseph D. Tydings, held joint hearings on the four bills, S. 1357, S. 646, S. 647, and S. 648. In the House of Representatives a number of bills were introduced to revise existing bail practices in courts of the United States, and for other purposes. They were: H.R. 3576; H.R. 3577; H.R. 3578; H.R. 5923; H.R. 6271; H.R. 6934, and H.R. 10195. The latter, introduced by Congressman Celler, paralleled the proposal, S. 1357. Hearings were held by a subcommittee on those proposals including this proposal, S. 1357. In these hearings Members of the House and the Senate presented their views on these proposals, as did the Deputy Attorney General of the United States, a representative of the American Bar Association, and other local bar associations. All of those witnesses favored the enactment of this proposal, including the Chairman of the Committee on Administration of Criminal Procedure of the Judicial Conference of the United States. The only opposition heard by the committee to this legislation was that presented by bondsmen. Upon completion of the hearings, the subcommittee, in executive session, ordered reported to the full committee S. 1357, with amendments. With the exception of one or two minor amendments, which were of a technical or clarifying nature, the full committee ordered the bill favorably reported. GENERAL STATEMENT Bail originated in medieval England as a device to free untried prisoners. At the outset, sheriffs exercised their discretion to release a prisoner on his own promise, or that of an acceptable third party, that he would appear for trial. Lader this system the surety had in effect been a hostage who could be jailed in place of the fugitive from justice. Later, this enforcement was relaxed, but the surety was subject to the penalty of forfeiture of his property. Subsequently sureties were committed to forfeit promised sums of money in case of failure to appear. Later, in the 13th century, the discretionary bail power of the sheriffs was regulated by specifying which offenses were bailable and which h were not. Eventually, the sheriff's bailing functions were transferred to justices of the peace. The exercise of their discretion in fixing bail th was based upon such factors as the nature of the charge, character of the accused, and the weight of the evidence. The Bill of Rights in 1688 established protection against excessive bail. Today, in England, m the bail surety relationship continues to be a personal one. Under the discretionary nature of bail the procedure is sufficiently flexible to permit denial in cases where the magistrate believes that the defend th ant is likely to commit no offenses or tamper with the evidence if he is released. аг W1 sta In the United States, bail practices and rights developed a different pattern from that in England. The eighth amendment to the Constitution of the United States states only that "Excessive bail shall not be required." Thus, there is no specifically granted right to bail. the Since the Judiciary Act of 1789, however, Congress has provided that persons shall be admitted to bail upon arrest in criminal cases except where the punishment may be death. It also provided that bail is discretionary in capital cases depending upon the nature and circumstances of the offense and of the evidence and usages of law. The practice of providing a private surety who would personally guarantee to produce his bailee proved inadequate. Eventually, the posting of bail became the function of a professional bondsman who in return for a money premium guaranteed the appearance of the defendant at the time of trial. It was also in this manner that the posting of bail bonds became a commercial venture. the and rec The experience of many years of bail practices in the United States became the subject of criticism in the 1920's. Since then, the bail procedures have been subject to increasing criticism. Studies of the legi administration of criminal justice have shown that in many instances these procedures actually fail to give proper protection to the essential rights of the accused. The practice in admitting persons to bail which places primary reliance on financial inducements as the means to assure the presence of the accused at the time of trial seems to ignore the fact that those defendants of limited means who are unable to secure the necessary bail are faced with an impossible situation. Recently, the Attorney General's Committee on Poverty and the Administration of Criminal Justice Procedure submitted its report where it made this conclusion: The bail system administered in the Federal courts, relying primarily on financial inducements to secure the presence of the accused at the trail, results in serious probfenis for defendants of limited means, imperils the effective operation of the adversary system, and may even fail to provide the most effective deterrence of nonappearance by accused persons. The present system of monetary bail would be adequate if all could afford it. The facts, however, are to the contrary. The rich man 196 ma of S revi of t app dete S It a pres lieu DISTRICT OF COLUMBIA BAIL AGENCY 51 and the professional criminal readily raise bail regardless of the amount But it is the poor man, lacking sufficient funds, who remains incarcerated prior to trial. But the mere incarceration is not the only evil effect of the monetary bail system. Studies have shown that failure to release has other adverse effects upon the accused's preparation for trial, retention of employment, relations with his family, his attitude toward social justice, the outcome of the trial, and the severity of the sentence. For example, in preparation for his trial, the defendant who remains in jail does not have the same access to his counsel as the man free on bail. He is limited in his ability to collect witnesses for his defense. Often, he loses his employment, his family may become the subjects of welfare payments, and in many instances in the Federal system he becomes a financial burden to the Federal Government in that the Federal Government reimburses local authorities when a defendant is incarcerated in a local jail. It is the opinion of your committee that the enactment of this legislation will result in achieving the goal of eliminating the evils which are inherent in a system predicated solely upon monetary bail. It will provide reforms that are long overdue and badly needed. The President of the United States, in his recent crime message to the Congress, requested reform of the bail system. That message stated as follows: We must reform our bail system. The administration of criminal justice must be fair as well as effective. Whether a person, released after arrest, is likely to flee before trial or endanger society is not determined by the wealth he commands. Yet all too often we imprison men for weeks, months, and even years-before we give them their day in court-solely because they cannot afford bail. Effective law enforcement does not require such imprison ment. The Judicial Conference of the United States has recommended this legislation as indicated by a letter from the Administrative Office of the U.S. Courts, dated October 5, 1965, which is attached hereto and made a part of this report. Likewise, the Department of Justice recommends enactment of this legislation in letters dated September 5, 1965, and March 21, 1966, both of which are attached hereto and made a part of this report. SECTIONAL ANALYSIS Section 1 merely states the title of the act as the "Bail Reform Act of 1966." Section 2: This section states the purpose of the bill, which is to revise practices relating to bail to assure that all persons, regardless of their financial status, shall not needlessly be detained pending their appearance to answer charges, to testify, or pending appeal, when detention serves neither the ends of justice nor the public interest. Section 3(a) relates to release in noncapital cases prior to trial. It amends chapter 207, title 18, United States Code, by striking out the present Federal bail jumping statute-section 3146-and inserting in lieu thereof seven new sections, numbered sections 3146 to 3152. The new section 3146 provides that any person charged with a noncapital offense as defined in the new section 3152 shall, at his appearanc before a judicial officer, as defined in that same new section, be released on his personal recognizance or upon the execution of an unsecured appearance bond, unless the judicial officer determines, in the exercise of his discretion, upon a showing of good cause, that such a release will not reasonably assure the appearance of the accused as required In such a case, he shall then impose one or more of five additional conditions of release, deemed reasonably necessary to assure the appearance as required. Under this subsection, release on one of the conditions is required unless it appears from the nature of the offense charged or the accused's record of previous failures to appear or flight to avoid prosecution, for example, that such a release is inadvisable under the circumstances. Only in those cases may the judicial officer then impose one or more of the additional conditions of release set forth in the act, thus giving priority to nonfinancial conditions before considering the requirement of financial security. It should be noted that under this subsection (a) of section 3146, the judicial officer is required to consider under a priority system the conditions in the order in which they are set forth in the bill. Under this subsection, the conditions are (1) that the person may be placed in the custody of the designating organization or person agreeing to supervise him, or (2) restrict travel, association, or place of abode during the period of release; (3) require the execution of an appearance bond in a specified amount and a deposit in the court in cash or other security a sum not to exceed 10 percent of the amount of the bond; (4) require the execution of a bail bond with sufficient solvent sureties or the deposit of cash in lieu thereof, and (5) impose any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours. Under the amended version of section 3146(a), the sequence of conditions has been rearranged so that release for specified hours has been moved to the lowest priority so as to authorize judicial officers to use it in appropriate cases only where the enumerated conditions of release will not suffice. Subsection (b) of this section enumerates factors to be considered by the judicial officer in imposing conditions of release. Included in these conditions are those now set forth in rule 46 (c) of the Federal Rules of Criminal Procedure, namely, nature and circumstances of the offense charged, the weight of evidence against the accused, his financial ability to give bail, and his character. However, this subsection adds additional factors, namely, the accused's family ties, employment, financial resources, character and mental condition, his length of residency in the community and his record of appearance at court proceedings, or of flight to avoid prosecution or failure to appear in court. His record of prior convictions is also a factor to be considered. Section 3146 (c) relates to release orders. It provides that the judicial officer authorizing the release of any persons under conditions specified in the bill shall issue an order containing his statement of the conditions imposed and shall inform the person of the penalties applicable to violations of those conditions, and shall inform the person that a warrant for arrest will issue immediately upon violation. This Co for br Re as DISTRICT OF COLUMBIA BAIL AGENCY 53 subsection does not require that the release order contain a statement of evidence. Section 3146(d) relates to the review of release conditions. It provides that a person for whom conditions of release are imposed and who is still detained after 24 hours from the time of the release hearing because of his inability to meet the conditions, shall be entitled, upon application, to have those conditions reviewed by the judicial officer who imposed them. Unless that release order is amended so as to enable the person to obtain his release, the judicial officer shall set forth in writing the reasons for requiring the conditions imposed. In addition, if the person was ordered released on a condition which required that he return to custody after specified hours he, too, shall, upon application, be entitled to a review by the judicial officer who imposed that condition. Unless that requirement is removed and the person is thereupon released upon another condition, the judicial officer shall set forth in writing the reasons for continuing the requirement. If the judicial officer does not amend the release order so that the accused can be immediately released, he shall set forth in writing the evidence and factors upon which his decision is based. If the judicial officer who imposed the conditions of release is not available, any judicial officer in the district may review such conditions. Section 3146 (e) provides that a judicial officer ordering the release of a person on any of the specified conditions in this section may, at any time, amend the order to impose additional or different conditions. Provision is made, however, that if the imposition, of different or additional conditions results in the detention of the accused as a result 1of his inability to meet such conditions, then the provisions of subsection (d) of this section shall apply, namely, review of the release 1 conditions. In addition, the same review is applied where the release was for specified hours with the requirement to return to custody. This provision does not require a hearing before amending a release order, nor does it require that any amendment result in the release of the accused. It does, however, require that, if the imposition of additional or different conditions of release result in the detention of the accused for more than 24 hours because of his inability to comply with such conditions, the judicial officer must amend the release order to include a statement of his reason for requiring the conditions imposed. Under both sections 3146(d) and 3146(e) no additional hearing need be ordered if the judicial officer does not deem one to be necessary. The rights of the accused are amply provided for in section 3147, which provides for appeal of release orders. Section 3146 (f) provides that the rules governing the admissibility of evidence in courts of law do not apply in connection with orders entered pursuant to this section. This permits the judicial officer to consider all available relevant facts in making his determination. Section 3146(g) provides that nothing in this section shall be construed to prevent the disposition of any case or class of cases by forfeiture of collateral security where such disposition is authorized by the court. The need for this provision is set forth in the Senate Report 750, 89th Congress, 1st session, on pages 14 through 17, as follows: |