record of reliability, to the likelihood of conviction, and to the potential severity of the sentence.

Even though the basic Federal statute of 1789 conferred a right to bail, that right never meant an absolute right to release. The prior witnesses are absolutely right in that respect.

Inevitably, many defendants were released by complying with the court's bail conditions, while many others were held in custody for failing to comply.

At no time have courts ever made findings about dangerousness or probable guilt as prerequisites to bail setting. Trial judges thought about those factors constantly, but they discreetly avoided making prejudicial announcements.

Appellate decisions in this country, in Federal and State courts alike, often reflect the discomfort that the judiciary has when upholding high bail because the evidence is strong, and at the same time denying that that assessment has any relevance to the defendant's guilt.

BAIL MISTAKES

Throughout history, courts have always made some mistakes in the setting of bail. Whenever you look at decisions in retrospect, some turn out wrong. Some released persons demonstrate their unreliability by failing to appear at trial or by being rearrested. Some detained persons will ultimately be acquitted or will be convicted but not given custodial sentences.

To the extent that outcomes like this demonstrate that the original bail decision was too lenient or too severe, such errors are often inevitable.

This acknowledgment flows from the fact that the information available at the bail stage about defendants and crimes is typically fragmentary. A hasty judicial assessment of pretrial risks and eventual case outcomes is at best a guess.

No one ever thought it possible to make perfect predictions about the future behavior of defendants or the future verdicts of juries. At all times, the setting of bail conditions has been a process dependent upon judicial discretion and a process beset by uncertainty.

The principal reforms of recent years have been modest efforts within the confines of the historic system. They have served to increase the availability of information to judges for making bail decisions. They have served to increase the measures of control available to courts when releasing high-risk persons. They have served to reduce needless detention. And they have served to reduce the period of risky pretrial release.

The Bail Reform Act of 1966, the Speedy Trial Act of 1974, and the 5-year experiment with pretrial service agencies which led this committee and the Senate on June 18 of this year to pass the proposed Pretrial Services Act of 1981 have each contributed to the capacity of Federal courts to carry out the limited role of bail administration in a fair, speedy, and effective fashion.

That is a very brief sketch of bail's history, but it does not answer the question: Why did not bail statutes and courts consider whether defendants would endanger the community if released?

THE SURETY SYSTEM

My study of the traditional operation of the surety bail system, which is now largely abandoned, suggest that in fact they did. Courts and bail statutes have considered danger to the community in the past.

I would like at this point to now describe the central role of the surety which does not exist today but did exist at the time the Constitution was drafted and the Judiciary Act of 1789 was passed. The old surety existed for the better part of 100 years thereafter.

Anyone who examines the history of the money bail system will find that its operation today varies in important respects from the way it worked up to the 19th century. The discrepancy has nothing to do with the Bail Reform Act. It does deal with a turn of the century resolution of an important bail controversy that divided the Nation's courts during the late 1800's.

The history is long, but I can outline its essentials quickly. For purposes of terminology, the transformation may be described as a shift from surety bail to money bail.

The historic surety process used to place an accent on the personal relationship between the defendant and a friendly surety who agreed to take custody of him under terms set by the court. The modern money process emphasizes a commercial relationship involving an entrepreneur who was paid, and usually indemnified, for agreeing to be responsible for the defendant's appearance in

court.

The switch from the old personal system to the new commercial relationship reflected an evolutionary change in the values underlying the bail system. The historic surety system had stressed a responsible citizen's faith in the character and reliability of the defendant for whom surety bail had been set.

In fact, it was not uncommon for a court to set bail with the requirement of two, three, or four sureties. Chief Justice Marshall in 1803 set bail with four sureties in advance of the treason trial of Aaron Burr.

If a defendant was unable to find willing sureties, or was unable to secure court approval of their undertakings, he remained in custody. The uncompensated pledge of the surety to produce his defendant in court carried with it an implied belief in the likelihood that the defendant would behave responsibly while awaiting trial. It also implied confidence that the surety could supervise, control, or influence that behavior.

BAIL ON GOOD BEHAVIOR

Our colonial history is dotted with illustrations of statutes and cases that spoke in terms of bail to assure appearance and good behavior in the meantime.

That language was included in the Massachusetts Body of Liberties as early as 1641. It appears in the history of Connecticut, Pennsylvania, and North Carolina. It continues in the law of Rhode Island today, and it has been enacted recently not only in South Carolina, as we heard a little while ago, but also in Virginia. The significance of the old-fashioned personal surety who stood bail without indemnification is that he influenced both the safety

of pretrial release and the incidence of pretrial detention. If sureties agreed to help the defendant, their testimonial and their supervision tended to increase the likelihood of good behavior. If they refused to help him, the defendant was locked up in jail.

The virtue of the surety system was also its weakness. The very selectivity of sureties, in light of the financial penalty they risked in the event of default, meant that many defendants could not find willing sureties.

In a frontier society where the population was moving West and where immigrants were arriving from other countries, America was a Nation of strangers. The historic institution of the friendly surety, established in more stable times and places, did not fit the needs of American criminal courts.

THE RISE OF THE BONDSMAN

As a result, there grew up the idea of the hired surety-of the businessman who for a fee and an indemnification contract would agree to bail a stranger. These commercial relationships were focused on assuring the paying client's appearance in court.

There was no testimonial to the good character of the defendant. There was no agreement to guarantee his behavior. None was offered by the bondsman and none was required by the court.

Courts accepted these commercial arrangements in order to facilitate pretrial release. It was important to courts in the 19th century to prevent pretrial jails from being overloaded needlessly. If a court worried about the high risk of a defendant in a serious case, it set high bail. If a bondsman was willing to post bond for the defendant, that was usually deemed sufficient for safe release. It was not a perfect system, but it was better than keeping all strangers and friendless and poor defendants in custody awaiting minor as well as major trials.

THE LEARY CASE

A clash between these two systems-the surety bail system that was safe and the money bail system that was liberal-came to a head in the Supreme Court decision in the early 1900's of Leary v. United States, in an opinion written by Justice Holmes.

The question was whether an indemnification agreement by a defendant to a surety which was allowed by a statute of the State of New York should be declared against public policy in the Federal court. The argument was as follows:

An indemnification agreement means an agreement by a defendant to pay the surety in the event the surety forfeited his bond because the defendant ran away. The question was whether that kind of indemnification agreement where the surety could go find the defendant, sue him, and get his money back, was against public policy.

The argument that it was against public policy was based on its tendency to undermine the pledge of the surety that the defendant would appear in court.

By a divided vote, but nevertheless a substantial majority, the court enforced the indemnification contract. It ruled, in effect, that the change from a surety system to a money bail system made it a

matter of indifference to the courts whether a surety forfeited his money or produced the defendant.

I think many of us would find that a shocking decision in today's fear of crime climate. However, in the early part of this century, that decision reflected the fact that the court preferred the liberality of a money bail system which served to release a lot of people to the security of a surety bail system which served to detain a lot of people.

The court upheld the policy of easier pretrial release and less detention, as against the proposed policy of safer pretrial release and more detention.

THE NEBBIA CASE

Recent Federal cases indicate that Federal courts, despite Leary, retain inherent power to insist on reliable sureties upon penalty of not granting pretrial release at all.

This line of authority, typified by the Nebbia case in the second circuit, makes it clear that a bail court is not obliged to grant release to a high risk defendant just because bail money is tendered. A court may reject a surety when it feels that his relationship to the defendant is suspect, or when it is unclear whether the surety's purpose in putting up money is to guarantee appearance or guarantee escape. A court may also decline to set or accept cash bail from a defendant if it deems that a reliable surety is essential to assure appearance.

My own reading of some of the statements of witnesses before Congressman Zeferetti's committee, dealing with the bail jumping in Florida, suggests that the Federal courts in Florida may not make the kind of detailed inquiry into the relationship between sureties and defendants, and into the adequacy of cash bail, the way courts in some other parts of the country do. This seems to be a problem of bail administration under present law, and not a matter requiring change in bail law.

The entire relationship-modern and historical-between money bail and surety bail warrants reexamination by the Congress. Such an inquiry could have an important remedial influence on the problem of drug traffickers who jump high bond in a few districts, as well as on the problem of maintaining the good behavior of high risk release defendants.

Significant remedies under current law would be illuminated. New legislative remedies-perhaps reminiscent of the old surety system-might well be developed.

In my view, it is the erosion of the surety system through the courts-State and Federal courts-and not any defect in the Judiciary Act of 1789 or the Bail Reform Act of 1966-that has been principally responsible for weakening the public safety shield that bail provides.

While we certainly cannot turn back the clock and restore surety bail to the position it occupied in the Middle Ages or the 1700's, we may well discover a better accommodation between the values of surety bail and money bail than the one struck by the Supreme Court in 1911.

In concluding this preliminary statement, let me urge that moderation and humility accompany congressional consideration of proposals to increase public safety by repealing the historic law of bail.

Moderate reforms in the long run are less likely to produce chaos in the criminal courts than statutes that are enacted which are revolutionary and untested. There needs to be a sense of humility about rewriting history and about altering the fundamental structure of a bail decisionmaking process that has withstood the test of time for at least 700 years in England and 200 years here.

The Bail Reform Act of 1966 was not a perfect statute. You can read the testimony given by the Attorney General and the Deputy Attorney General at that time, in 1964 and 1965, and see the amount of turmoil and the amount of doubt that beset those who had developed that statute. However, it represented the best that we were able to do at the time.

It also reflected nearly a decade of detailed study of bail practices and of experiments and demonstrations in both Federal and State courts. The modest provisions of that statute, unlike S. 1554, were drafted explicitly to reflect procedures which had already been adopted voluntarily in many jurisdictions.

Money bail was retained under the Bail Reform Act despite its acknowledged flaws. The statute's enacting clause said that pretrial detention in the interest of justice and the public interest was explicitly preserved.

It was because of the modesty of those provisions and the good sense of Federal courts in administering them in the last 15 years that this committee today has no significant data to suggest that crime on bail is a serious problem in the Federal court.

The great bulk of Federal defendants who might commit crimes on release is already found among the thousands of Federal defendants held in pretrial custody every year. The pretrial service agencies created by Congress in 10 districts are making an added contribution to public safety by supervising pretrial release, as well as by helping to avoid needless detention.

I think that incremental improvements in the Federal bail system can no doubt be made. I have suggested a few and would be happy to suggest others. However, by and large, it is the Federal system that has proven reliable and safe. It is State systems, which the Senators who appeared before you today have mostly talked about, with less comprehensive statutes and weaker adminstrative and judicial structures, that are experiencing crime on bail difficulties.

In my view, a rational legislator would vote for legislation to help the States follow today's Federal right-to-bail model. The alternative to that suggestion is to mislead the public and the States by destroying a Federal system that has weathered the test of two centuries and has grown ever stronger by legislation that emerged from this subcommittee over in the past two decades.

Thank you.

Senator HATCH. Thank you, Professor Freed.

I was very impressed with the Law Review article by former Attorney General John Mitchell in which he scrupulously documented the argument for dangerousness being a consideration in grant