(v) include the date by which the detention must taminats pursuant to standard 10-5.10.

(g) Every pretrial detention order should be subject to expedited appellate review.

Standard 10-5.10. Accelerated trial for detained defendants

Every jurisdiction should adopt, by statute or court rule, a time limitation within which the defendant in custody pursuant to standard 10-5.9 must be tried which is shorter than the limitation applicable to defendants at Liberty pending trial. The failure to try a defendant held in custody within the prescribed period should result in the defendant's immediate release from custody pending trial.

Standard 10-5.11. Trial

The fact that a defendant has been detained pending trial should not be allowed to prejudice the defendant at the time of trial or sentencing. Care should be taken to ensure that the trial jury is unaware of the defendant's detention.

Standard 10-5.12. Credit for pretrial detention

Every convicted defendant should be given credit, against both a maximum and minimm tem, for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed, or as a result of the underlying conduct on which such a charge is based.

Standard 10-5.13. Release to prepare for trial

Upon a showing by a defendant detained pursuant to standard 10-5.9 that his or her temporary release is necessary in order adequately to prepare the defense, the judicial officer should order defendant's release in the custody of the defense attomey or, when this is inadequate to assure defendant's presence at trial and the safety of the community, a law enforcement officer. No such release shall be for a period longer than six consecutive hours.

Standard 10-5.14. Treatment of defendants detained pending trial

A defendant who is detained prior to trial should be confined in facilities separate from convicted persons awaiting or serving senter.ces or being held in custody pending appeal, and any restrictions on the rights the defendant would have as a free citizen should be as minimal as institutional security and order require. The rights and privileges of defendants detained pretrial in no instance should be more restricted than those of convicted defendants who are detained.

CHAPTER 21

CRIMINAL APPEALS

PART II. TRANSITION FROM TRIAL COURT TO APPELLATE COURT

Standard 21-2.5. Release pending appeal; stay of execution

(a) When an appeal has been instituted by a convicted defendant after a sentence of imprisonment has been imposed, the question of the appellant's custody pending final decision on appeal should be reviewed and a fresh determination made by the trial court. The burden of seeking a stay of execution and release may properly be placed on the appellant. The decision of the trial court should be subject to redetermination by an appellate judge or court on the initiative of either the prosecution or the defense.

(b) Release should not be granted if the court finds that there is substantial risk that the appellant will not appear to answer the judgment following conclusion of the appellate proceedings, or that the appellant is likely to commit a serious crime, intimidate witnesses, or otherwise interfere with the administration of justice. In deciding whether to release a convicted defendant pending appeal, the trial court should also take into account the nature of the crime and the length of sentence imposed, together with factors relevant to pretrial release.

(c) Execution of a death sentence should be stayed automatically when an appeal is instituted.

(d) Dilatory prosecution of an appeal through acts or omissions of appellant or appellant's counsel should be ground for termination of the release of appellant pending appeal.

(e) In a jurisdiction with an intermediate appellate court, when review in the highest court is sought by a defendant-appellant, the question of custody pending action by the highest court may be redetermined by the intermediate appellate court or a judge thereof. When review is sought by the prosecution, standards relevant to custody of defendants pending prosecution appeal from trial court decisions should be applied. Decisions concerning custody by the intermediate appellate court or judge thereof should be subject to review by the highest court.

BAIL REFORM

WEDNESDAY, OCTOBER 21, 1981

U.S. SENATE,

SUBCOMMITTEE ON THE CONSTITUTION,
COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 1:35 p.m., in room 6226, Dirksen Senate Office Building, Senator Orrin G. Hatch (chairman of the subcommittee) presiding.

Present: Senator Hatch.

Staff present: Randy Rader, counsel; and Claire Greif, clerk.

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH, AND CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION

Senator HATCH. Perhaps the best way to introduce our second hearing on the subject of bail reform is to briefly recount some of the evidence that the current system is not functioning properly. A 1978 study performed in the District of Columbia found that 13 percent of felony suspects released after arrest were apprehended for another crime while they were free on bail. A 1981 study of an eight-State area disclosed that one out of six suspects were rearrested during their pretrial freedom. Almost one-third of these offending suspects free on bail were rearrested more than once, some as many as four times, before their original cases were settled.

Although these reliable studies suggest that communities may actually be endangered by inadequate protections in bail proceedings, current law prevents a Federal judge from considering risks to the community when setting conditions for pretrial release. Under the Bail Reform Act of 1966, the only issue a Federal judge may consider is what conditions will reasonably assure that the suspect will appear for trial.

The failure of Federal criminal law to allow consideration of dangerousness in bail proceedings has caused several arbitrary results in practice. For instance, former U.S. Attorney for the District of Columbia, Earl J. Silbert, states:

The utter absurdity of this [law] is best demonstrated by the argument defense lawyers routinely make and judges too often accept: The defendant should be released because his extensive record of criminal arrests and convictions for serious crimes without any charge of flight is persuasive proof that he appears in court as required. The logical extension of this argument is that the more crimes a defendant has committed, the stronger his argument for release.

To see that community safety is considered in pretrial release decisions, I have joined several of my colleagues in sponsoring S.

(153)

1554, the primary object of discussion for our hearing today. From a judge's perspective, Harold Greene testified before this committee over 10 years ago, when he was Chief Judge of the District's Court of General Sessions, about the inadequacies of the 1966 Bail Reform Act's standards:

Under the present law, a defendant with steady roots in the community . . . must be released on personal recognizance with minimal conditions or no conditions at all, even if he is charged with a crime as serious as armed robbery, and even if he happens to have a record of five or six prior serious felony convictions. By contrast, a defendant from out of town without a prior record who is charged with an offense as minor as an attempted petit larceny is technically required to be subjected to the most severe conditions, including high money bail. This kind of disparity only makes sense if the danger of flight or nonappearance in court is deemed to constitute the sole valid criterion in the setting of bail. I believe that, to the contrary, when bail is set, the protection of the community from potentially dangerous criminals should be given equal weight with the danger of nonappearance. [Hearing of this committee, 1969.]

No wonder many judges laboring under this law admit using "extreme rationalizations in circumventing" the current policy. For instance, Judge Tim Murphy, formerly of the Court of General Sessions, testified before a House committee that "you cannot expect judges to follow the letter of a law that requires them to turn many dangerous criminals loose day after day.'

In February of this year, the Chief Justice discussed the "startling amount of crime committed by persons on release pending trial" and urged that judges be given greater discretion to prevent this threat. Finally, in our hearings last month the American Bar Association and the National District Attorneys Association gave their support to incorporating some consideration of community safety into our Federal bail laws.

S. 1554 has clearly received widespread support for its provisions adding "safety of any person and the community" to the current standards for setting bail. This is not, however, the only provision of S. 1554. S. 1554 also allows the detention for up to 10 days of a suspect arrested for a crime who is already subject to bail conditions in another jurisdiction. This 10-day detention will allow the authorities in the other jurisdiction to take appropriate action to revoke his prior bail.

S. 1554 also sets a more stringent standard for post-conviction releases. Under current law, a judge must release a convicted felon on the least restrictive conditions necessary to assure appearance at sentencing, unless the felon is found to be a danger to the community. This standard favors post-conviction release. S. 1554 would require a convicted felon to make a convincing presentation of why he should be released.

S. 1554 also allows the Government to appeal release decisions. Currently, a defendant can appeal a judge's decision to detain him. but the Government may not challenge a decision to release a suspect who may be likely to flee. S. 1554 puts the suspect and the Government on equal footing in this regard.

While I believe that S. 1554 is a positive step toward the comprehensive revision of bail laws necessary to allow courts to detain defendants who may pose a danger to community safety, I do not yet believe the bill is free from flaw. For instance, it makes no allow

ance for the court to use money bonds or sureties to secure a suspect's appearance for trial.

Historically, suretyship has been a primary legal tool for inducing defendants to return to trial. Without question, this technique is abused when a suspect pays the bond with the fruits of his crime and then flees from justice. The subcommittee should examine, however, the prospect of giving courts authority to inquire into the source of the funds used to pay the bond. It should also consider ways to encourage sureties to properly supervise defendants and prevent them from committing other crimes while free on bail.

Before turning to our witnesses for additional advice on the content of S. 1554, we should briefly review what the Constitution says about bail. The eighth amendment says directly: "Excessive bail shall not be required." The Supreme Court clarified the origins and meaning of that language in 1952:

The bail clause was lifted with slight changes from the English bill of rights act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept. . . . Thus in criminal cases bail is not compulsory where the punishment may be death. Indeed, the very language of the amendment fails to say all arrests must be bailable. Carlson v. Landon, 341 U.S. 524 [1952].

Accordingly, although bail may not be excessive, there is no absolute right to bail. Dangerousness of the defendant is not barred by the Constitution as a consideration in bail proceedings.

With this constitutional background, the subcommittee now looks forward to discussing with its witnesses what the future of bail should be.

I think what we will do is begin with our first witness, who is Mr. Jeffrey Harris. We would like to welcome you to the subcommittee, Mr. Harris.

Mr. Harris is the Deputy Associate Attorney General of the United States. As such, he is the principal Deputy to the Associate Attorney General, who is the senior Department of Justice official responsible for all criminal justice matters.

Mr. Harris assumed his present position in August 1981 after serving as the executive director of the Attorney General's Task Force on Violent Crime. Most recently, he was with the Federal Trade Commission where he was the Assistant Director for Marketing Abuses. With an extensive background in the area of criminal justice, we look forward to hearing your recommendations on bail reform.

STATEMENT OF JEFFREY HARRIS, DEPUTY ASSOCIATE ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, ACCOMPANIED BY ROGER PAULEY, DIRECTOR, OFFICE OF LEGISLATION, CRIMINAL DIVISION; AND KAREN SKRIVSETH, LEGISLATIVE COUNSEL, OFFICE OF LEGAL POLICY

Mr. HARRIS. Thank you, Mr. Chairman. Let me first introduce my colleagues, Karen Skrivseth and Roger Pauley, both from the Department, accompanying me today.

Mr. Chairman, if it comports with your wishes and desires I have a rather lengthy statement I would like to submit for the record and orally give a briefer summary.