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.

Mr. MOLLEUR. Mr. Chairman, in view of that question, I would just like to point out what I think is pertinent here, because it was asked twice this morning. Last fall I had an extensive meeting with Judge Morris Miller of the Juvenile Court. And at that time we discussed the necessity and the need for extending the project's activities into the Juvenile Court. And the Judge told me thatoutlined these special procedures which the Juvenile Court had for recognizance release of juvenile offenders, and some of the adult persons that come before that court. And therefore he indicated to me that he did not feel that there was any special need for the project to operate in that court.

Mr. WHITENER. Thank you, Mr. Molleur.

Now, Mr. David Bress, United States Attorney for the District of Columbia.

We have kept you quite longer than we should have.

STATEMENT OF DAVID BRESS, ESQ., U.S. ATTORNEY FOR THE DISTRICT OF COLUMBIA

Mr. BRESS. In view of what has been said, I have very little to add. I think the bail agency is desirable, even without the Bail Reform Act. With the Bail Reform Act I think the bail agency bill is indispensable.

With respect to Sections 10 and 11, it is my opinion that it would be undesirable to add Section 10, leave 10 in this bill, in view of the differences between Section 10 and its parallel provision in the Bail Reform Act. I think that there is an inconsistency between the two. Under Section 10 a sentencing judge is required to give credit for pretrial detention. And if he does that, under the Bail Reform Act it may well be that the Attorney General will also be called upon to give credit. I think that one or the other ought to do it.

Since we now have the Bail Reform Act passed, I think we ought to leave that subject alone and let it be handled administratively by the Attorney General. It seems to me in principle that it will be fairer if it is handled administratively, and the judge would then be imposing the sentence without regard to pre-trial detention.

I am satisfied that there is nothing additional that I need say in support of this bill.

Mr. FUQUA. Mr. Bress, is it your opinion that both Sections 10 and 11 in toto should be deleted in this bill we are considering now, 15065?

Mr. BRESS. Yes, sir, I think so, in view of its inclusion in the Bail Report Act.

Mr. FUQUA. And that is because this is covered in the Bail Reform Act?

Mr. BRESS. Yes, sir.

Mr. WHITENER. Mr. Bress, of course you know that in the House Judiciary Committee that the problems of the incarceration credit provision-and it is much broader in Section 10 of this bill, because it not only applies to criminal offenses, but it applies to criminal acts, which, as we understand it, mean that in the case of a criminal intent, or I suppose quasicriminal actions, that this credit shall prevail as well. I think maybe this is desirable in the District of Columbia and elsewhere, that it has to be done. But we will take into account your recommendations and those of Mr. Freed.

65-212 0-665

And I assume, Professor, you and Mr. McCarthy and Mr. Molleur have no adverse comment to make about that recommendation, do you?

Mr. GREENKALGH. Well, since Dean McCarthy outranks me I would have to yield to him.

I am sure that we can work it out.

Mr. MCCARTHY. We commented in our statement about the possible effects of this other Bail Reform Act. I think it is fair to say that when this was drafted by Judge Danaher of course the Bail Reform Act had not yet, as you know, finally come out of the House Judiciary Committee. And I think that he was attempting to reflect a proposal which has often been made in connection with bail releases. But I do think, as Mr. Freed and Mr. Bress have indicated, that in view of the passage yesterday, and the obvious imminent enactment into law of the Bail Reform Act of 1966, section 10 with its various provisions is possibly inconsistent with the Bail Reform Act. Insofar as 11 is concerned, I believe it is virtually the same language as is in the Bail Reform Act. And if it serves any purpose by being in this Act it would merely be to emphasize that this Act did not intend to conflict with the Bail Reform Act. But it would serve no other function.

Mr. WHITENER. At the time this bill, H.R. 15065 was being prepared, the Judiciary Committee was dealing with S. 1357, which at that time had in addition to this time credit some sort of payment formula based on the Minimum Wage Act.

I want to make the record clear that Judge Danaher agreed with me and a majority of the House Judiciary Committee that that was a cumbersome and unworkable proposition. So not knowing how the committee would amend that section-but I suppose operating under the suggestion from me as a member of the Judiciary Committee I thought that we would take out a part of it, a part of that section. He and his judicial colleagues, in drafting this bill, were almost faced with the necessity of having a sensible provision about time credit or credit for the time incarcerated prior to trial. And I believe if you gentlemen will talk to Judge Danaher in the light of what has happened to S. 1357 since he and I were having our preliminary discussions about the content of this bill, you may find that you are not in disagreement.

We will include in the record at this point the letter of Mr. Bress to Chairman McMillan, dated June 2, 1966. (The letter referred to follows:)

Hon. JOHN L. MCMILLAN,

U.S. DEPARTMENT OF JUSTICE,
OFFICE OF THE U.S. ATTORNEY,
Washington, D.C., June 2, 1966.

Chairman, Committee on the District of Columbia,
House of Representatives,
Washington, D.C.

DEAR MR. CHAIRMAN: Reference your communication of May 20, 1966, pertaining to H.R. 15065, a bill to "establish a fact-reporting bail agency in courts of the District of Columbia, and for other purposes", and your invitation to address my recommendations and report to the Committee, this is to advise that I am in full accord with the basic principle embodied in the bill. In fact, on Wednesday, May 25, 1966 I again voted affirmatively in the Judicial Conference of the District of Columbia Circuit in favor of establishing a fact-reporting bail agency to continue the work of the District of Columbia Bail Project.

With respect to the specific details, the bill is presently being studied by my office and the Department of Justice. I regret to inform you that neither the Department nor I have arrived at a final position respecting all aspects of the bill. However, as a preliminary comment, I note that Section 11 (2) and (3) of the bill has the effect of rendering misdemeanor violations of Section 4 prosecutable within the sole jurisdiction of the United States Attorney, notwithstanding some of the violations will pertain to substantive crimes within the prosecuting jurisdiction of the Corporation Counsel, as provided for in Sections 3 (b) and 11 (c) of the bill. It would perhaps be more consistent with the administration of justice already established by Congress if Section 11 (2) and (3) would be so worded as to cause the Corporation Counsel to retain jurisdiction of those matters resulting from prosecutions instituted by him, as delineated in 22 D.C.C. § 101, in which "... the maximum punishment is a fine only, or imprisonment not exceeding one year. See also District of Columbia v. Moody, et al., 113 U.S. App. D.C. 67, 304 F. 2d 943 (1962); United States v. Strothers, 97 U.S. App. D.C. 63, 228 F. 2d 34 (1955).

I shall continue our study of the bill and coordination with the Department of Justice so that the Committee might have benefit of our views at the earliest possible date.

Thank you for bringing this important matter to my attention.

Sincerely yours,

DAVID G. BRESS, U.S. Attorney.

Mr. WHITENER. Mr. Reporter, we have a letter here from Chief Judge Matthew McGuire, of the U. S. District Court for the District of Columbia, this letter being dated May 23, 1966. Also, we have a letter dated May 27, 1966, from Chief Judge John Lewis Smith, Jr., of the District of Columbia Court of General Sessions. We will make these letters a part of the record. These letters support the enactment of H. R. 15065.

(The letters referred to follow:)

U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA,
Washington, D.C., May 23, 1966.

Hon. JOHN L. MCMILLAN,

Chairman, Committee on the District of Columbia,
U.S. House of Representatives.
Washington, D.C.

MY DEAR CONGRESSMAN: This will acknowledge receipt of your letter of May 20, 1966 enclosing therewith a copy of H. R. 15065 "To establish a factreporting bail agency in courts of the District of Columbia, and for other purposes" which has been referred to your Committee.

In reply, you are advised that I have examined the Bill, having become familiar with its genesis, and although it is a much different Bill from that originally proposed some time ago, the object is the same and I think it worthwhile, and I have no hesitancy in saying so.

Sincerely yours,

MATTHEW F. MCGUIRE, Chief Judge.

DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS,
Washington, D.C., May 27, 1966.

Hon. JOHN L. MCMILLAN,

Chairman, Committee on the District of Columbia,
House of Representatives, Washington, D.C.

DEAR MR. MCMILLAN: Receipt is acknowledged of your letter of May 20th requesting recommendations concerning H. R. 15065, "To establish a fact-reporting bail agency in courts of the District of Columbia, and for other purposes". I am in favor of the passage of the proposed bill, but believe that it should also apply to the traffic and D.C. branches of the court.

With kind personal regards and best wishes, I am,

Sincerely,

JOHN LEWIS SMITH, JR.