I wholeheartedly endorse the efforts of the Congress and the President to strengthen our federal bail laws.

Enclosed for your information are my statement and supporting materials, to be considered in conjunction with hearings of the Subcommittee on the Constitution, United States Senate Judiciary Committee, relative to federal bail reform.

Thank you for your consideration of my views on this subject.

EJK/rmk

encs

Sincerely,

Edward

and J. King

Edward J. King
Governor

PREPARED STATEMENT OF MASSACHUSETTS GOVERNOR EDWARD J. KING

Mr. Chairman and members of the Subcommittee on the Constitution. Thank you for the opportunity to offer my strong support for your efforts to strengthen our federal bail laws.

As Governor of the Commonwealth of Massachusetts, I would like to point out that your actions at the federal level in the area of bail reform will have a direct and important impact on criminal activity in our state, while also setting an example for legislative action at the state level.

Today's appalling crime rate throughout the nation and within the Commonwealth of Massachusetts has resulted in part from over two decades of permissiveness in dealing with criminals. The time has come to recognize that that approach has clearly failed, and to reverse that policy.

As you know, under the Federal Bail Reform Act of 1966, the only issue a federal judge may consider in determining bail in non-capital offenses is whether the defendant is likely to appear for trial. Danger to the public and the need to protect society cannot be considered under the present law.

In 1971, Massachusetts enacted a similar bail statute which also restricts the judge's consideration in bail hearings exclusively to the issue of likelihood of appearance. The impetus for its enactment was, in part, the existence of the 1966 Federal Bail Reform Act.

The 1971 Massachusetts Bail Reform Act, like the 1966 Federal Bail Reform Act, was too liberal. In the courtrooms of Massachusetts, the default rate has increased dramatically, while countless more violent and serious crimes have been committed by dangerous persons released awaiting trial. Our judges are now legally powerless to deal with even the most clearly dangerous, habitual offenders prior to

trial.

I have proposed bail reform legislation in Massachusetts that would focus the court's attention openly on the issue of danger posed by the re-release of defendants who are arrested for crimes committed while the defendant is on bail. It would allow judges to revoke bail and order pretrial confinement in certain carefully limited circumstances consistent with constitutional standards.

Neither the United States Constitution, nor the Massachusetts Constitution which preceeded it, grants an absolute right to bail.

I applaud the recent decision of the District of Columbia Court of Appeals in United States v. Edwards, No. 80-294, No. 80-401 (D.C. Ct. App., decided May 8, 1981, petition for cert. filed, U.S. No. 81-5017), upholding the constitutionality of the District of Columbia pretrial detention statute. In a comprehensive analysis of colonial and state bail rights relative to the federal constitutional excessive bail clause, the Court also stated:

"The Massachusetts Constitution of 1780 included an
excessive bail clause, but the right to bail itself was
relegated to statutory status. This excessive bail clause
makes clear that it was intended as a limitation on the

judiciary and not the legislature. . ." (Emphasis added.)
Id. at 13.

Mr. Chairman, I realize that the states have primary responsibility for combatting crime. But the Congress can be effective in at least two ways in the area of bail reform. First, any improvements that strengthen federal bail laws will benefit every state by reducing the incidence of federal crimes occurring within those states. For example, major drug traffickers who seek to practice their trade in Massachusetts often smuggle drugs by sea into our coast in violation of federal law. They are notorious for their high default rate in federal court even when high money bail is imposed. We need tougher federal bail laws to deal with this problem in our

state.

Secondly, we know that state and federal laws can serve as examples for one another. Mr. Justice Brandeis once observed:

"It is one of the happy incidents of the federal system
that a single courageous state may, if its citizens choose,
serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country." New
State Ice Co. v. Liebman, 285 U.S. 262, 311 (Brandeis, J.,
dissenting).

Mr. Chairman, the 1966 Federal Bail Reform Act provided an example that some states have followed, to their regret. I suggest that the enactment by the Congress of Senate Bill No. 1554 or similar legislation will go a long way toward setting a better example for the states.

In conclusion, Mr. Chairman, I am pleased that your Committee is examining the need for improvements in the federal bail laws. I support the reforms embodied in Senate Bill No. 1554. I also urge the Committee to give attention to the specific need to detain major drug traffickers, who often flee when released on bail. This particular problem is addressed in Senate Bill No. 1253.

Thank you.

Today, I am submitting to your Honorable Bodies the accompanying legislation entitled, "AN ACT RELATING TO PRETRIAL RELEASE AND CONFINEMENT."

Under the present Massachusetts law, a judge's decision on bail release is restricted to one issue: whether the defendant is likely to appear at the next court proceeding. Danger to other persons and the protection of society may not be considered under the present law, regardless of how often the defendant may be rearrested before trial or how dangerous he may be. Even the most clearly dangerous, habitual violent offenders are routinely released into society, and they often commit serious crimes while awaiting trial. This is especially troublesome when witnesses are intimidated by the accused.

The legislation I am submitting today will provide as an explicit condition of release that the defendant refrain from criminal activity during the period of his release. It will allow the judge to revoke bail when the court finds probable cause to believe that the defendant has violated this condition, if the court determines that the defendant's release would pose a serious danger and that his detention is necessary to reasonably assure the safety of any person or the community. In such cases, the defendant could be held without bail for up to sixty days and would have the right to a speedy trial.

This legislation also addresses the problem of defaults. It will retain the presumption of release on personal recognizance, but will add to the list of factors presently used in evaluating likelihood of appearance, the following new factors: the potential criminal penalty the defendant faces, the use of an alias or false Identification, illegal drug use or dependency, whether the defendant is on bail for a prior charge, is on probation or parole for a prior conviction, or is on release pending sentence or appeal for a prior conviction.

Finally, this legislation promotes the imposition of consecutive sentences for a defendant convicted of a crime that was committed while the defendant was on bail for a prior charge.

I respectfully request your prompt and favorable attention to the enactment of this legislation.

SECTION 1. Section 58 of chapter 276 of the General Laws is 2 hereby amended by striking out the first paragraph, as appearing in 3 section I of chapter 473 of the acts of 1971, and inserting in place 4 thereof the following paragraph:

5

A justice or a clerk or assistant clerk of the district court, a bail 6 commissioner or master in chancery, in accordance with the appli7 cable provisions of section fifty-seven shall, when a prisoner is held 8 under arrest or committed either with or without a warrant for an 9 offense other than an offense punishable by death, or for any 10 offense on which a warrant of arrest has been issued by the superior 11 court, hold a hearing in which the defendant and his counsel, if any, 12 may participate and inquire into the case and shall admit such 13 person to bail on his personal recognizance without surety unless 14 said justice, clerk or assistant clerk, bail commissioner or master in 15 chancery determines, in the exercise of his discretion, that such a 16 release will not reasonably assure the appearance of the prisoner 17 before the court. In his determination, said justice, clerk or assist18 ant clerk, bail commissioner or master in chancery shall, on the 19 basis of any information which he can reasonably obtain, take into 20 account the nature and circumstances of the offense charged, the 21 potential penalty the prisoner faces, the prisoner's family ties,