proceedings. After release under such circumstances, the defendant, faced with the substantial possibility of serving time for probation or parole violation, or of pretrial detention for a bond violation, has a great incentive to flee rather than face new and possibly more serious charges. The 10-day detention proposal of S.1554 is a reasonable way in which to alleviate this problem. S.1554 also requires that the court detain those defendants who have been convicted and are awaiting either sentencing or appeal no more than 10 days unless the court finds that no condition or combination of conditions will assure that the defendant is not likely to flee or to pose a danger to the community. This provision attempts to counter the recurring problem of the defendant who, having been convicted and facing the possibility of serving time, chooses to flee or to carry out retribution against those in the community who assisted in the conviction. By detaining convicted defendants, such problems would be alleviated. Finally, S.1554 mandates one condition for pretrial release (no criminal violations) and allows others to be imposed at the discretion of the court - such conditions generally requiring 'good behavior' by the defendant while released on bail. South Carolina has substantially the same requirements for release. (See Exhibit 2.) It should be noted from personal experience, however, that while such conditions should be included as a part of any pretrial release, they are certainly no substitute for the proposed reforms which I have already discussed, because the administrative and supervisory problems encountered when attempts are made to insure compliance with such conditions are nearly insurmountable. With respect to Section 3142 (c) (2) (k), which allows for the forfeiture of property as an optional condition of release, I would suggest that such property be made assignable in a manner similar to our South Carolina Statute. (See Exhibit 3.) This statute allows for a 10% security to be assigned to the defense attorney, who might otherwise be left uncompensated for his legal services. Such assignability of property would allow for similar methods of payment to the federal defense attorneys. In summary, I strongly support the passage of the Bail Reform Act Amendments of 1981. S.1554 provides constructive reform in an area where such reform is badly needed. If we are to quell the rising tide of crime in our nation, it will take the concerted efforts and united resources of all levels of government--Federal, State and local. By passing S.1554 the federal government can assume a leading position in the fight against rising crime. Passage of S. 1554 will be a positive step in eradicating that significant portion of crime which is committed in our nation by those who are released pending trial on bail. I advocate the passage of S.1554. 1 The F.B.I.'s Crime Index of reported serious crimes increased 9% 2 Senator Edward Kennedy, A New Approach to Bail Release: The Proposed Federal Criminal Code and Bail Reform, Fordham Law Review, Vol. 48, pp. 423-436, at 423-424. Statistics from Institute for Law & Social Research, PROMIS Research 3 18, U.S.C. §3146 (1976) 4 Senator Edward Kennedy, supra, at 427-429 5 Time Magazine, The Curse of Violent Crime; March 23, 1981, Vol. 117, 6 Senator Dale Bumpers, Congressional Record Senate, S.1307, Feb. 17, 1981 EXHIBIT 1 § 17-15-10. Person charged with noncapital offense may be released on his own recognizance; conditions of release. Any person charged with a noncapital offense triable in either the magistrate's county or circuit court, shall, at his appearance before any of such courts, be ordered released pending trial on his own recognizance without surety in an amount specified by the court, unless the court determines in its discretion that such a release will not reasonably assure the appearance of the person as required, or unreasonable danger to the community will result. If such a determination is made by the court, it may impose any one or more of the following conditions of release: -- (a) Require the execution of an appearance bond in a specified amount with good and sufficient surety or sureties approved by the court; (b) Place the person in the custody of a designated person or organization agreeing to supervise him; (c) Place restrictions on the travel, association or place of abode of the person during the period of release; (d) Impose any other conditions deemed reasonably necessary to assure appearance as required, including a condition that the person return to custody after specified hours. HISTORY: 1962 Code § 17-300; 1969 (56) 383. EXHIBIT 2 § 17-15-20. Conditions of appearance recognizance or ap pearance bond. Every appearance recognizance or appearance bond will be conditioned on the person charged personally appearing before the court specified to answer the charge or indictment and to do and receive what shall be enjoined by the court, and not to depart the State, and be of good behavior toward all the citizens thereof, or especially toward any person or persons specified by the court. HISTORY: 1962 Code § 17-300.1; 1969 (56) 383. EXHIBIT 3 § 17-15-15. Deposit of cash percentage in lieu of bond; assignment of deposit; restitution to victim. (a) In lieu of requiring actual posting of bond as provided in item (a) of § 17-15-10, the court setting bond may permit the defendant to deposit in cash with the clerk of court an amount not to exceed ten percent of the amount of bond set. which amount, when the defendant fulfills the condition of the bond, shall be returned to the defendant by the clerk except as provided in subsection (c). (b) The cash deposit provided for in subsection (a) shall be assignable at any time after it is posted with the clerk of court by written assignment executed by the defendant and delivered to the clerk. After assignment and after the defendant fulfills the condition of his bond, the clerk shall return the cash deposit to the assignee thereof. (c) In the event the cash deposit is not assigned but the defendant is required by the court to make restitution to the victim of his crime, such deposit may be used for the purpose of such restitution. HISTORY: 1980 Act No. 393, § 2A, eff April 30, 1980. Senator HATCH. The subcommittee feels particularly honored today to have present one of the Nation's leading legal scholars on the subject of bail reform, Prof. Daniel J. Freed. Professor Freed is currently teaching at the Yale Law School. For the last 18 years, however, the professor has been active in a debate over proper bail procedures and standards. He served at the Department of Justice from 1959 to 1969 and was codirector of the National Conference of Bail and Criminal Justice in 1964. He is coauthor with Mr. Wald of "Bail in the United States, 1964," a book which preceded his pivotal work in fashioning from the Justice Department the Bail Reform Act of 1966. He served as Director of the Office of Criminal Justice of the Department. Since joining Yale in 1969, he has been named director of the Guggenheim program at the Criminal Justice and Pretrial Service Resource Center. We are honored to have your viewpoint here today, Professor Freed. We think this is one of the more important criminal justice issues of our day. We will be pleased to proceed with your testimony. STATEMENT OF DANIEL J. FREED, PROFESSOR, SCHOOL OF LAW, YALE UNIVERSITY Mr. FREED. Thank you, Mr. Chairman. I appreciate your invitation to appear today. Before taking up the statement I have prepared for this hearing, I would like to comment on the testimony of the four witnesses who preceded me. I would like to do this because I think the major issue before this committee is a problem in understanding how the bail system works. Several witnesses have said that most members of the public, while worried about the bail system, do not understand it. That is an eminently correct statement. But some of the witnesses today have erred in their own understanding of the bail system, and I would like to comment on their statements before I get to my own. Senator HATCH. Professor, I have to step out for just a minute. Would you continue to make this record, and I will come right back. Mr. FREED. Mr. Counsel, I feel a bit uncomfortable in undertaking now to comment on the statements of three Senators who have preceded me with no Senator in the Chair. However, if that is the way in which the committee wishes to proceed, I will make my record. THE TESTIMONY OF SENATOR CHILES OF FLORIDA First, the statement of Senator Chiles: Senator Chiles appeared to strongly support changing the bail statute to permit courts to consider a defendant's danger to the community. I agree with that position with some modifications in language that I will make later. 89-649 0-82-8 But Senator Chiles said, with respect to the Bail Reform Act, that it requires courts to take only one factor into account-appearance at trial-and that courts may not consider the prior criminal record of the accused or the nature of the crime. The Senator is mistaken. Explicitly in the Bail Reform Act and in most State statutes, the nature and circumstances of the offense, the seriousness of the charge, and the prior criminal record of the accused are the first listed criteria for a court to consider. That is a matter of Federal bail law; it is a matter of State bail law. Courts everywhere consider those factors. Senator Chiles also stated in lamenting the very unfortunate bail jumping problem in the southern district of Florida, that no matter how high the bail is set the drug dealers will make bail and flee. Again, it is a mistake to think that bail law requires such a result. If drug dealing defendants are known to the Government and known to the court to be able to raise a high bail and likely to flee, there is no obligation under Federal bail law, or any other bail law I know, for courts to set the bail low. Ten dollars may be too high for a person who has no money; a million dollars may be too low for someone who has $10 million he is willing to pay in order to flee the country. It is a mystery why bail has been set too low in the southern district of Florida, for defendants who are known to be likely to flee. However, that may not be the fact. I have never seen with respect to drug defendants who come before the court in Florida the nature of the recommendations for bail that are made by the U.S. attorney, or the nature of the information presented to the court by the U.S. attorney, or the extent to which the court sets bail conditions at a level different than recommended by the Government. That sort of inquiring is essential if we are to understand the Florida bailjumping problem. No court is obligated to set bail at an amount that will permit the defendant to flee. The purpose of bail is to assure appearance at trial. A court need not let a defendant post his own money if it is known that that money is the price of escape rather than a guarantee of appearance. Finally, Senator Chiles referred to five elements in his proposed legislation dealing with drug dealers. He would like the courts to be able to consider a drug dealer's prior conviction of drug offenses, whether he was on probation or parole at the time of his arrest, whether he was an alien, whether he was in possession of a false passport, or whether he was a fugitive from justice. All five of these criteria are relevant considerations to the setting of bail in the Federal courts today. Congress need pass no new statute to assure that courts will consider these factors when so urged by the Government. Senator Chiles' testimony today made no case for changing Federal bail laws. But there may well be a case for examining more carefully the administration of bail in Florida. THE TESTIMONY OF SENATOR KASSEBAUM OF KANSAS Second, Senator Kassebaum: |