case.

Rule Crim. Proc. 46(a)(2), required to make an independent examination of the On October 3, 1960, an indictment was filed in the United States District Court for the District of Columbia charging the applicant in four counts with forgery and four counts with uttering a false check. He stood trial by jury on December 15, 1960, Judge Joseph R. Jackson, a retired Judge of the United States Court of Customs and Patent Appeals, presiding by designation pursuant to 28 U. S. C. § 294 (d). Applicant was found guilty on all counts, and he has been confined since the date of his conviction. On January 6, 1961, he was sentenced to concurrent prison terms of three to nine years on each count. He filed a timely motion for leave to appeal in forma pauperis, which motion was denied by the trial judge on January 23, 1961. However, Judge Jackson did not certify that applicant's appeal was not sought in "good faith." See 28 U. S. C. § 1915(a). Applicant then sought leave to appeal in forma pauperis from the Court of Appeals. That court appointed counsel to represent applicant, and ordered a transcript of the trial proceedings at the expense of the United States. Appointed counsel filed a memorandum in support of applicant's request for leave to appeal in forma pauperis on July 28, 1961. That memorandum raised two questions which counsel contended were of sufficient merit to warrant allowing applicant to proceed in forma pauperis. The first question related to the admission into evidence at applicant's trial of a small card from the files of the District of Columbia Police. A space had been provided on the card for listing previous offenses. In the space were handwritten the words "Arrested for checks, California, Nevada, New York." These words were alleged to have been written by the applicant while in police custody. The card was introduced into evidence as an exemplar of applicant's handwriting, and was thus used to identify the handwriting on the allegedly forged checks. Applicant's trial counsel objected to the admission of the card on the ground that it was prejudicial. The objection was overruled. No instruction was given limiting the jury's consideration of this exhibit. Counsel argued that it was error to permit the jury to receive the information of applicant's unrelated prior arrests through the device of a handwriting sample. The second question challenged the validity of applicant's conviction in the light of Judge Jackson's participation. It was applicant's claim that a retired Judge of the Court of Customs and Patent Appeals could not constitutionally be assigned to preside over trials of felony indictments in the District of Columbia.

On September 1, 1961, the Court of Appeals ordered applicant's motion for leave to appeal held in abeyance pending this Court's decision in Lurk v. United States, No. 481, 1961 Term, presenting the same question as the second of applicant's contentions. No further action on applicant's motion for leave to appeal has been taken by the Court of Appeals since September.

In February 1962 applicant applied to the trial judge for bail pending appeal. Although unopposed by the United States Attorney, the application was denied. A similar application was then made to the Court of Appeals, which also denied bail, one judge dissenting.

The applicant renews his request for bail here, and asks that it be set at $170— the face amount of the four checks that underlie his present conviction. The Solicitor General concedes that the issues applicant has sought to raise on his appeal are not frivolous. Nor does he allege that applicant is appealing for purposes of delay. See Fed. Rule Crim. Proc. 46(a)(2). He opposes bail on the grounds that between 1950 and 1958 appellant has sustained four convictions for offenses comparable to the ones for which he has now been convicted, and, further, that as these convictions were returned in widely separated parts of the country, applicant appears to be a "drifter" who may well repeat his crime if released on bail.

The rule authorizing bail pending appeal establishes two criteria by which an application for such relief is to be judged: whether the appeal is not frivolous or whether it is not taken for delay. If these standards are met, bail should ordinarily be granted for, as has been pointed out, bail is "basic to our system of law." Herzog v. United States, 75 S. Ct. 349, 351. It is to be denied only in cases in which, from substantial evidence, it seems clear that the right to bail may be abused or the community may be threatened by the applicant's release. Compare Cohen v. United States, 82 S. Ct. 8; Ellis v. United States, 79 S. Ct. 428, with Carbo v. United States, 82 S. Ct. 662; Ward v. United States, 76 S. Ct. 1063. Cf. Stack v. Boyle, 342 U.S. 1, 5-6.

On the facts of this case, bail should be granted. The applicant has been continuously incarcerated since December 1960 on a conviction yet to be reviewed by the Court of Appeals. This Court's decision in Lurk v. United States, 366 U.S. 712, rendered prior to the date on which applicant's counsel filed his memorandum

in support of the motion for leave to appeal in the Court of Appeals, was clear precedent that this applicant's motion to proceed in forma pauperis should have been granted on the second issue raised in counsel's memorandum. Our decisions in Ellis v. United States, 356 U.S. 674, and Coppedge v. United States, 369 U.S. also indicate that the applicant's motion for leave to appeal in forma pauperis should have been granted long ago as to the first issue. There is no adequate reason why initial appellate review of applicant's case should not have been completed by this time.

It seems clear that this appeal is not frivolous, and that such delays as have occurred can hardly be attributed to applicant. The Government does not contend that there is a likelihood that applicant will flee the jurisdiction. The crimes for which he has been convicted are nonviolent. Nevertheless, as the offenses for which he was convicted are serious felonies, bail should be more substantial than that proposed by applicant. In the light of all the circumstances of the case, bail will be set at $1,000, pending completion of review of applicant's case by the Court of Appeals, the bond to be settled by the District Court and filed with its Clerk.

Judge DANAHER. Mr. Chief Justice Warren found that in his judgment Leigh was entitled to be released on bond. He fixed an amount, obviously in the dark, of a thousand dollars. But although Leigh was entitled to bail, Leigh was never able to raise the thousand dollars. So he was not released.

You couldn't ask for a better illustration of the need for the factreporting entity so far as Appellate judges are concerned than is to be noted with reference to that very situation.

Now, while all this was going forward in the District of Columbia courts, Senator Ervin and others became interested in legislation which was offered in 1964 under S. 2838, S. 2839 and S. 2840, as to which Federal bail procedures hearings were held on August 4, 5, and 6.

I make this reference in the record to the end that anyone who chooses to do so may have recourse to those hearings. I do not offer the volume for the record, but mention it to the end that it will be available for those who wish to study what the problems were as seen on a national level.

That report is a magnificent compilation submitted by the law professors, practitioners, judges and others familiar with the problem.

Senator Bible introduced S. 2721 last fall. S. 2721 would create a bail agency, as we call it, or a fact-reporting entity in the District of Columbia Circuit. It does not, however, include in its provisions various recommendations which had been offered by the Judicial Conference of the District of Columbia Circuit.

On June 3, 1965, I sent to Senator Bible and to Congressman John L. McMillan, Chairman of this Committee, a letter which gave the background for the recommendations that our Judicial Conference chose to submit.

I would like that letter to be noted for the record at this time, and I will supply a copy of it, Mr. Chairman.

Mr. WHITENER. We will make it a part of the record. (The letter referred to follows:)

Senator ALAN BIBLE,

U.S. COURT OF APPEALS,
DISTRICT OF COLUMBIA CIRCUIT,

Washington, D.C., June 3, 1965.

Chairman, Senate Committee on the District of Columbia,
Senate Office Building, Washington, D.C.

Hon. JOHN L. MCMILLAN,

Chairman, House Committee on the District of Columbia,
Rayburn House Office Building, Washington, D.C.

GENTLEMEN: The Judicial Conference for the District of Columbia Circuit some three years ago caused to be created a Conference Committee on Bail Problems. Throughout the year 1963-64, the operations of the "D.C. Bail Project" were conducted pursuant to a grant of the Ford Foundation which had required that oversight be maintained by our Conference Committee. For the period from November 1, 1964 to October 31, 1966, the Ford Foundation grant will fund continued study by the D.C. Bail Project but under the auspices of Georgetown Law Center. The Ford Foundation grant so specified.

Meanwhile, the Committee of which I was chairman reached firm conclusions on some phases of the problems which had come to our notice. One such is the fact that Title 18 U.S.C. §3146, subtitled "Jumping Bail," does not apply to persons admitted to bail in the Court of General Sessions in the District of Columbia. We believe that to be an important omission which should be corrected forthwith, amending the D.C. Code accordingly.

Another inadequacy involves the fact that Title 18 U.S.C. § 3568, available with respect to federal prisoners generally, applies only to situations where the statute requires the imposition of a minimum mandatory sentence. Yet, there are many prisoners who have been incarcerated awaiting trial solely because of financial inability to provide bail. It would seem reasonable that where the present statute requires the Attorney General to give credit against a mandatory sentence for pre-sentence detention, like credit should be allowed against the minimum sentence pronounced by the judge even though that minimum is not mandatory, in cases where the prisoner could not provide bail solely because of his poverty.

The Judicial Conference adopted resolutions recommending amendments in the foregoing respects.

Furthermore, the Conference has recommended that Congress provide for the benefit of courts in the District of Columbia an entity with a staff which will conduct pre-arraignment investigation as to the status of each prisoner. Such a unit would investigate at the earliest feasible moment after arrest and then would render pre-arraignment assistance to all committing magistrates in the making of bail determinations. Such a unit would if authorized, in future carry on the work of the D.C. Bail Project upon the expiration of the Ford Foundation grant.

Substantial benefits have flowed from the operations of the Project. When a prisoner is first arraigned in court or presented to a committing magistrate as the case may be, the judge or the magistrate knows nothing about him, his ties to the community, his past record of employment, his family situation or other background information. In the past, in the absence of such information, the fixing of bail has occurred largely in a vacuum. Substantial numbers of prisoners have been detained whose cases are ultimately dismissed, but the prisoners have been locked up at community expense and, often with otherwise damaging results. While the Conference itself had voted that its resolutions should be sent to the Senate and House Committees on the Judiciary, I have taken it upon myself to prepare this letter to you gentlemen. I think the Senate and House Committees on the District of Columbia are primarily concerned with problems here, though not mentioned in the Conference resolution. I think your respective Committees may wish to take jurisdiction of such subject matter.

Thus I have written in a spirit of helpfulness and also because of my acquaintance with various phases of the problem during my service as Conference chairman. I have the honor to remain, with esteem,

Faithfully yours,

Judge DANAHER. Attached to it was a copy of the Resolution of the Judicial Conference of the District of Columbia Circuit passed on May 13, 1965. That, too, I shall offer.

Mr. WHITENER. We will make that a part of the record at this point.

(The document referred to follows:)

RESOLUTION PROPOSED BY THE JUDICIAL CONFERENCE COMMITTEE ON BAIL PROBLEMS (JUDGE EDWARD A. TAMM, JUDGE FRANK H. MYERS, HARRY T. ALEXANDER, Esq., JOHN H. PRATT, ESQ., JUDGE JOHN A. DANAHER, CHAIRMAN) AT THE JUDICIAL CONFERENCE OF THE DISTRICT OF COLUMBIA CIRCUIT, MAY 13, 1965

Resolved by the Judicial Conference of the District of Columbia Circuit:

(1) The Judicial Conference for the District of Columbia Circuit recommends to the Congress that Title 18 U.S.C. § 3146 subtitled "Jumping Bail," be amended so that its provisions shall be made applicable to any person who shall have been admitted to bail for appearance before the Court of General Sessions in the District of Columbia.

(2) The said Conference recommends to the Congress that Title 18 U.S.C. § 3568 subtitled "Effective date of sentence; credit for time in custody prior to the imposition of sentence," be amended so that any person who shall have been incarcerated solely because of his financial inability to provide bail as determined by any committing magistrate in the District of Columbia shall be entitled to credit toward service of such sentence as may be imposed for any days spent in custody while awaiting trial.

(3) This Conference approves as the norm in bail determinations pursuant to Rule 46(a)(1) of the Federal Rules of Criminal Procedure, the presentence release of accused persons on nonfinancial conditions, with particular application of criteria based upon community ties, with due regard to evidence of apparent responsibility, and otherwise in accordance with applicable rules of court and with the policies developed by the Judicial Conference Committee on Bail as more fully set forth in the staff report of the D.C. Bail Project, this day submitted and now approved.

(4) (a) Motions pursuant to Rule 46 (a) (2), FED. R. CRIM. P., for postconviction allowance of bail pending appeal or certiorari, should first be addressed to a judge of the trial court who, in the event of denial, shall set forth the reasons therefor (cf. Carbo v. United States, 7 L.Ed. 2d 769, 82 Sup. Ct. 662 (1962); Leigh v. United States, 8 L.Ed. 2d 269, 82 Sup. Ct. 994 (1962)), after which applications pursuant to Rule 33 (f) of the Rules of the United States Court of Appeals for the District of Columbia shall conform to the requirements of said Rule, supplemented by appropriate showing agreeably to the criteria of Paragraph (3), supra, and otherwise as the United States Court of Appeals may prescribe.

(4) (b) Applications for post conviction relief directed to the District of Columbia Court of Appeals, or any judge thereof, pursuant to Rule 45 of the Rules of said court, shall conform substantially with the provisions of Paragraph (4) (a) hereof.

(5) The respective courts of this Circuit should exercise their rule-making power to the extent necessary to achieve the objectives more particularly set forth in Paragraphs (3) and (4) hereof.

(6) The said Conference recommends that legislation be drafted which in principle will provide for the creation of an entity comparable to that heretofore known as the "D.C. Bail Project" with appropriate staff to render presentence assistance to all committing magistrates within the District of Columbia in bail determinations, agreeably to the standards set forth in Paragraph (3), supra, and to render like assistance to the United States Court of Appeals when said court shall so request as to postconviction applications for bail as treated in Paragraph, (4), supra.

(7) The report of the Conference Committee on Bail Problems is hereby approved and accepted, and the Committee is discharged from further service under the appointment of September 19, 1962.

(8) Copies of this resolution and of the report of the staff of the D.C. Bail Project shall be transmitted forthwith by the Secretary of this Conference to the Judicial Conference of the United States, the Administrative Office of United States Courts, and to the Committees on the District of Columbia and on the Judiciary of the United States Senate and House of Representatives. Dated at Washington, D.C. this 13th day of May, 1965.

Judge DANAHER. With that as a background, H.R. 15065, Congressman Whitener, was introduced.

Mr. WHITENER. I might point out, Judge, that Mr. Nelsen also has introduced H.R. 15242, which is an identical bill. Mr. Nelsen and I have discussed this and felt that a bipartisan effort would not be any disadvantage.

Judge DANAHER. I have just picked it up, Mr. Chairman, and I was about to make reference to it. I wish to thank Congressman Nelsen for his understanding and cooperation in the matter.

I realize as you do that when we use the word "bipartisan" in connection with a problem like this, there is no politics in it, we are all earnestly trying to do what has to be done.

Now, so far as the Bail Reform Act of 1966 is concerned (that is S. 1357) I would call attention to Senate Report No. 750, 89th Congress, 1st session. The background there stated will also supply additional and valuable material which will show the need for the correlation of our proposal with the objectives of the Bail Reform Act of 1966.

The language in our bill, as I have already said, dovetails and overlaps in the required respects.

Mr. WHITENER. Judge, you took into account in this statement you have just made the amendments which the House, the Judiciary Committee and the House of Representatives added to S. 1357?

Judge DANAHER. I have taken that material into account, for I had before me, Mr. Chairman, a copy of the report of the House Committee on the Judiciary, which is House Report No. 1541, 89th Congress, 2d session. And may that appear also, Mr. Reporter.

(The document referred to appears in the Appendix, p. 43.) Judge DANAHER. Yes, we did take account of the amendments. Turning now to the language of the bill itself, I think it perhaps is advisable that I speak briefly.

PROVISIONS OF THE BILL

In Section 2 we specify that "There is hereby created within the District of Columbia a bail agency which shall secure pertinent data and provide for any court or judicial officer reports containing verified information concerning individual as to whom a bail determination is to be made."

At this point, I refer you to Section 3(a) where we undertake to define the terms within which we are speaking.

"Judicial officer" is defined to mean, unless otherwise indicated "the United States Court of Appeals for the District of Columbia Circuit, the District of Columbia Court of Appeals, the United States District Court for the District of Columbia, the District of Columbia Court of General Sessions, or any judge of any of said courts, a United States Commissioner, and when applicable, the Supreme Court of the United States or a Justice thereof.

In subsection (b) we define the term "bail" as meaning "as used in chapter 207 of Title 18, United States Code; when applicable to the Rules 46, 38, and 32 of the Federal Rules of Criminal Procedure and rules of court in the District of Columbia", etc.

At that point I should note, Mr. Chairman, that the Chief Justice of the Supreme Court sent to the Congress in February a series of recommended amended Federal Criminal Rules. And in Rule 46,