504 businessman, the banks, the wronged, and the injured who are entitled to a civil forum to receive the mandate that our Constitution guarantees to them, namely Article 11 of our Declaration of Rights which provides in substance that "... every subject of the Commonwealth ought to find a remedy in our courts completely and without denial, promptly and without delay, couformable to law." Every day I enter upon my duties as Chief Justice I violate the Constitution and the oath of office I took which mandates me to provide sessions of court sufficient to dispose of the business of the people, civil and criminal. In Massachusetts it cannot be done. It is a sad commentary that so heavy a percentage of our judicial resources has to be devoted to the criminal. It is sad to contemplate that the lawless, those who outrage society, those who trample the rights ofd ecent citizens underfoot. It is sad to contemplate that the lawless have the first call on the services of the court. The result is inevitable. The citizens of Massachusetts are being denied a civil forum; the pathway to the courtroom is not only too long. it never ends. Many of our people never get there because death takes them first. Delay has become an integral part of the practice of law just as much so as the rule in Shelley's case. Massachusetts has the unfortunate distinction of having within its boundaries six of the 12 counties in the nation where the delay in reaching a civil trinl is the greatest: Middlesex County (Cambridge and Lowell) is the slowest in the nation with 66 months delay. Norfolk County (Dedham), the second slowest with 60 months' delay; Essex County (Lawrence and Salem), the tenth slowest with 41 months delay; and Worcester County (City of Worcester), the twelfth slowest with 40 months' delay. Every other county has at least 30 months' delay in civil matters. I personally have presided over civil cases where both parties were dend and their executors were suing each other. I could not help but think that the original parties could better try or settle their cases in the hereafter, and before a better Judge, provided they both went in the same direction ́in the life hereafter. Massachusetts has not had a new judge since 1968. There have been three vacancies in our court dating back to May, August, and October which still are unfilled. I am constantly beseiged by district attorneys and law enforce ment agencies to provide additional felony sessions. There is no way that I have found how to run a session without a judge; in order to provide the necessary criminal sessions, I am constantly closing civil sessions, robbing Peter to pay Paul, with inevitable further delay on the civil docket. Judges of our court sat all last summer to dispose of 42 first-degree murder cases then pending in order that these cases would be behind us when September rolled around and we would not be drowned by the flood of indictments resulting from summer crime. I am always cognizant of the fact that criminalTM business must be moved; crime must be controlled; it must be contained or it will surely consume us. But if in the process we trample and destroy underfoot the basic civil rights of all the law-abiding people of the Commonwealth, certainly the precious guarantees of the Bill of Rights and our Constitution to all our people become nothing but plous monthings to be; parroted by school children on the Fourth of July which will exist In name only on a piece of dried parchment under glass on the Freedom Train. The judicial branch of government is the stepchild of society. The court and its needs stand at the bottom of the totem pole of priority on the tax dollar. Court reform has no sex appeal; it doesn't even have popular support. unless it happens to hit home and a civil litigant is denied a courtroom or an innocent victim is unable to have a trial. The state budget of our Commonwealth this year is $3,43 billion. The judicial portion of the budget is $18.9 million dollars, slightly more than one-half of one percent-less than one penny out of each tax dollar. Counties pay approximately 765% of our state judicial budget. Even if we consider the combined state and oral 503 budgets for the entire Judicial branch, every court at every level including probation, the judiciary spends only about 2.6% of all state revenues. Lest it be misunderstood and without elaboration, LEAA has been of little assistance to the Massachusetts judiciary. The state planning agency is the Committee on Criminal Justice, an executive branch agency appointed by the Governor. In 1975, 5% of the block grant funds were allocated to court administration; for 1970, the allocation has been reduced to 2.9%, a reduetion of 42%. What is the effect of this hacklog upon our criminal justice system? Law enforcement officiers and police become disgusted with delays; prosecutors and defense attorneys run the risk of unavailable witnesses who move or die; memories are dulled; evidence is lost; and people who may be innocent and whose reputations may be severely damaged by indictment are denied a trial. In order to move the criminal business of the Commonwealth and become current with the civil business within five years, Massachusetts needs desperately 19 additional judges. The Legislature has not responded. Nor has the Legislature authorized the temporary recall of retired justices. Many of these retired justices are still fully capable, willing, and anxious to return to active service; all of them have years of valuable experience. Tho cost of their services to the state would be miniscule because the recalled judge would receive only the difference between his pension benefits and his jay, that is approximately $9,000 per judge per year. I do not intend to comment upon national crime statistics other than to point out that it is apparent from the graphs on crime the rate of incrense during 1974 was steeper than in any of the previous four years. While crime increased nationally in 1974 by 17%. Massachusetts topped that with 19% and the City of Boston topped it with approximately 25%. Our courts are ill-equipped to deal with this explosion of crime, and the inevitable`result is that the most effective deterrent to crime is lost. The most effective deterrent to crime is a speedy trial and the certainty of punishment. Criminals fear being caught; criminals fear being punished; and it is a self-destructing process-diminished deterrence is an incentive to crime and increased crime results in the further deterioration of deterrence. It is like a dog chasing its tail. For a moment I want to look at the whole criminal justice system in Massachusetts. As intelligent people let us try to find out what we are doing wrong. Obviously whatever we have been doing for the last ten years e have been doing wrong. Our first contact with the criminal is when we arrest him; the immediate issue is bail. In 1971 our Legislature enacted one of the most liberal bai' reform statutes in the country. It created a presumption that a defendant was entitled to be put on the streets on personal recognizance. The court is inandated by statute to try first those defendants who are in jail in lien of bail. As a result, we never seem to reach for trial those defendants on bail or, more usually, on personal recognizance. Consequently, those released go their merry criminal ways until they get pinched again for another crime. One of the greatest causes of crime is letting known criminals loose upon the streets without bail or on small bail for months and sometimes years before we are able to reach them for trial... New Bedford, in Massachusetts, is a high crime area. I was advised most of the crime was being committed by people who were released awaiting trial on other indictments for crime. The sunmer was approaching. Rather than have these defenants on the loose all summer long, I assigned three * special criminal sessions in May and June in New Bedford to try not the defendants who were in jail but the defendants who were on the street on bail. The court did just that. The police chief of New Bedford reported to me that muggings, robberies, breaking and entering, and rapes decreased by 40%. If that teaches one lesson, that lesson is that criminals have to be afforded a speedy trial, and if found guilty punished. This is not an isolated instance. I recently reviewed the criminal trial list for the month of June in the First Criminal Assignment Session in Suffolk County, which is Boston. To give you specifics, we had: a. A defendant with 15 arrests as a juvenile was before the court in June for a current trial. His record disclosed that before he was reached for 508 trial on the current indictment he had committed three previous larcenies, on three separate occasions, in three different courts and had been sentenced and appealed on all of them. The point is that while awaiting trial in the Superior Court on one indictment and on ball he had committed three additional offenses. b. A defendant was upon the June 11st for trial on the crime of larceny, and his record disclosed that beginning in October, 1974, and while on bail, he had committed three additional, separate larcenies, bad been found guilty, sentenced to two years, and appealed and on bail, and again committed three additional crimes while awaiting trial on a current indictment. He is still on the streets. c. A defendant before the court for trial on an indictment for rape and related sexual crimes had a record of 12 prior arrests. While on bail awaiting trial for the rape indictment, he was arrested on two separate occasions for two separate rapes and kidnapping and an armed robbery. None of these cases has yet been tried. d. A defendant was arrested on August 5, 1974 for armed robbery and released on ball. On August 12 he was arrested for receiving stolen property and again balled. While these cases were pending before the grand jury and while he was awaiting trial, he was again indicted for two murders in the first degree, assault with intent to rape, and armed robbery. Before these cases could be tried, he was again indicted for two new offenses of armed robbery, assault with latent to rape while armed, and assault and battery by means of a dangerous weapon. None of these cases has yet come to trial These are typical examples of crimes committed while on the street and awaiting trial, [Any criminal list will demonstrate to any sitting judge that three are repented offenses committed by defendants released on ball or personal recognizance while the court is unable to reach them for trial on current indictments. I knew that the Ball Reform Law of 1971 was too liberal. In the courtroom I could see defaults by the bushel. I gatheredstatistics. These figures represent the defaults in the major counties of the Commonwealth for the three years prior to the enactment of the Bail Reform Law and for the three years subsequent to the passage of the Bail Reform Law. Without bothering you with detailed statistics, let me indicate that in Suffolk County defaults increased six times after the passage of the new ball law; in Middlesex County, they increased three times; in Essex County, they increased 17 times; in Worcester County, they tripled; in Hampshire County, they increased five times; and in the balance of the 14 counties of the Commonwealth, they tripled at least. When a defendant defaults, if you think he is immediately picked up and brought to court you are wrong. Without much criticism, because the police really have enough to do to keep up with current crime in the streets, the default warrant is usually placed in a pigeonhole in a desk at police headquarters. The next time we see the defendant is when we are lucky enough, and he is unlucky enough, to be picked up for another crime. With this record, you would think that intelligent people would tichten up the ball laws. Not on your life! There is a new ball law flying through the Legislature which puts our prescut ball law to shame. It not only pre serves the presumption that the defendant is entitled to be put on the street on personal recognizance, but it provides for a 5% deposit in cash on whatever bail is set. If a judge wanted to set honest-to-God bail of $50,000, he would have to set ball at $1 million. In addition to that, before a court can place bail, as we used to understand ball, he has to consider releasing the defendant in the custody of a friend or relative or place restrictions on his travel. his associates, or his place or abode. In other words, tell the defendant to be in at 10 o'clock at night or take his driver's license away from him. Under our new bail law, we do away completely with surety companies, and many times they were the only ones who had any interest in trying to Aud a defendant who had skipped ... August 6, 1981 The Honorable Strom Thurman United States Senator Chairman, Senate Judiciary Committee Washington, D.C. 20510 Dear Senator Thurman: I write to recommend amendment of Title 18, United States Code, Section 3148 (Attachment A). The law, as presently drafted, allows convicted criminals to remain free in society pending appeal. Once a criminal defendant has been convicted after a fair trial under our system of justice with all its numerous safeguards, the public justifiably expects punishment to commence. To allow convicted criminals to remain at large after conviction and sentencing breeds public disrespect for the law and our legal system. Title 18, United States Code, Section 3148, should be amended to prohibit the release of any convicted criminal with the exception of those cases where the court makes an express finding that there are reasonable grounds to believe that the conviction may be set aside on appeal. Present Law Title 18, United States Code, Section 3148, reads in pertinent part: § 3148. Release in capital cases or after conviction. Title 18, United States Code, Section 3146 (Attachment B), The Honorable Strom Thurman specified by the judicial officer, unless the officer determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person as required... (Emphasis added). Presently, persons convicted of federal crimes are released under the provisions of Section 3148, which merely refers back to Section 3146 governing pre-trial release. A federal judge must release the convicted criminal because Section 3146 directs that the judge "shall" order a release unless the judge can determine that the person will not appear in court. Proposed Amendment I propose that Title 18, United States Code, Section 3148, be amended to include the following language: A person who has been convicted of any offense for which he has or may suffer a sentence of imprisonment shall not be released on bail or his own recognizance unless it is established that there are reasonable grounds to believe that the conviction may be set aside on a motion for a new trial, or a motion for arrest of judgment, or reversed on appeal. For the purpose of this statute, conviction shall be deemed to occur at the time of rendition of a verdict of guilty by jury or court, or upon a plea of guilty or nolo contendere. After conviction, the court may allow a defendant to remain released on bail or his own recognizance until time of sentencing only with the agreement of the United States Attorney or his authorized representative. If release is granted under the provisions of this statute, and thereafter the defendant fails to prosecute his appeal diligently, or the court finds there is probable cause to believe the defendant committed a criminal offense during the period of release, the court shall revoke release. Factual issues relating to release shall be deter- NOTE: Similar post-conviction release provisions have worked successfully in Arizona and other states. See Arizona Rules of Criminal Procedure, Rule 7.2 (Attachment C). |