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[Vol. 55:1223 cused persons frequently do commit additional crimes if released on bail, they contend that the magnitude of the problem is not precisely documented, that less stringent remedies have not yet been tried and found wanting, and that additional studies should be undertaken to develop more precise criteria upon which to predict dangerousness.** In response to these critics, it should be noted at the outset that no serious constitutional question has been raised, due process or otherwise, to what is in effect pretrial detention of defendants charged with capital crimes or defendants considered unlikely to appear for trial. The Bail Reform Act of 1966 specifically permits pretrial detention of defendants who are charged with capital crimes and are considered likely either to flee or to pose a danger to the community and by implication authorizes pretrial detention of all defendants considered likely to flee by permitting judicial officers to impose execution of a bail bond with a solvent surety as a condition of release, even if the defendant cannot satisfy this condition and will therefore remain in custody until trial. Such detention, morcover, is more often than not for periods of time in excess of sixty days and frequently as long as a year.

The criteria for determining the dangerousness of capital crime defendants or the risk of flight of other defendants set forth in the Bail Reform Act are no more refined in a statistical sense than are the proposed criteria for determining the dangerousness of defendants under the Administration's bill. Accordingly, objections to pretrial detention of dangerous defendants on the ground that it is improper to confine those not yet convicted or on the ground that judicial and law enforcement officers lack sufficiently accurate information upon which to detect dangerousness, apply with equal force to existing pretrial detention practices-detention because of risk of flight or of dangerous capital offense defendants. Yet these grounds of objection have never been considered to preclude such detention because society has an acknowledged right, consistent with procedural due process, to impose reasonable conditions, including detention, to assure that defendants will appear for trial or that capital crime defendants will not pose a danger to the community. Similarly, society has an equally important

67 See, e.g., testimony of Judge Harold H. Greene and Professor Alan Dershowitz, Hearings on Amendments to the Bail Reform Act of 1966 Before the Subcomm. on Constitutional Rights of the Sen. Comm. on the Judiciary, 91st Cong, 1st Sess., 29, 172 (1969).

69 18 U.S.C. 3146(a)(4) (Supp. IV, 1969). See Allen v. United States, 386 F.2d 634 (D.C. Cir. 1967) (dictum).

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right to impose reasonable conditions, including detention, to assure that those charged with noncapital but dangerous crime will not expose the community to unreasonable risks of danger prior to trial.

G9

70

There are other statutes which authorize confinement, even indeterminate confinement, on grounds of dangerousness without any refined mathematical bases for predicting dangerousness. One such statute, the District of Columbia Hospitalization of the Mentally Ill Act, merits specific attention because, as the Senate Committee report shows, this bill originated and passed as an Act "Protecting the Constitutional Rights of the Mentally Ill." " Although specifically drafted to protect constitutional rights whenever possible, the Act permits commitment of mentally ill persons found likely to injure themselves or others if allowed to remain at liberty without providing any criteria for this finding. Thus, the conclusion is inevitable that statistical evidence which permits predictability with precise mathematical accuracy is not constitutionally necessary to warrant confinement on grounds of dangerousness. Instead, it is sufficient to place reliance, as is the practice in the law, on the insight and experience of trial judges applying appropriate qualitative standards.

72

Available statistics on crimes committed by persons released pending trial are necessarily fragmentary. This is attributable to the unavailability or incompleteness of court records and to the absence of information on how many undetected crimes are committed by persons released on bail. It has been estimated that approximately 75 percent of reported serious crimes are never solved"--a statistic which strongly suggests that most crimes committed by persons released on bail are not solved. Moreover, a substantial number of serious crimes committed, over 50 percent, are not even reported." As long as a majority of serious crimes are not reported and the great majority of those which are reported remain unsolved, the precise extent of recidivism on pretrial release can never be fully documented. Because the problem is,

69 See text at notes 45-48 supra.

70 21 D.C. CODE ANN. 55 501-91 (1967). See text at notes 53-55 supra.

71 S. REP. No. 925, supra note 54, at 1.

72 21 D.C. CODE ANN. § 545 (b) (1967).

73 In the District of Columbia 34,765 serious crimes were reported in 1966; 9159 or 26.3% were solved. PRESIDENT'S COMMISSION ON CRIME IN THE DISTRICT OF COLUMBIA, REPORT 596 (1966).

74 PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: CRIME AND ITS IMPACT-AN ASSESSMENT 17-19 (1967).

by any standard, a serious one, information of a precise mathematical quality, while helpful, is not necessary to justify congressional action.

There are, to be sure, alternative methods for attempting to deal with the problem. While these alternatives, including speedier trials, additional penalties for crimes committed during pretrial release and expanded use of bail agencies to supervise releasees, have been tried, they have not been extensively or effectively used. The Administration's proposals dealing with criminal problems include implementation of all these approaches. Even assuming maximum feasible implementation of these approaches, however, available data and reason strongly indicate that certain defendants will commit additional serious crimes if released pending trial. There is no real alternative to detention of such persons, if the community is to receive the protection it deserves. Reliance must be placed on a carefully drawn statute which incorporates procedural safeguards, reasonable standards and the experience and insight of trial judges. Here, as in other contexts, due process of law requires fundamental fairness, not perfect accuracy.

78 See 27 CONG. Q. WEEKLY REP. 238 (Feb. 7, 1969).

VIRGINIA LAW REVIEW

VOLUME 56

APRIL 1970

NUMBER 3

AN OUNCE OF DETENTION: PREVENTIVE JUSTICE IN THE WORLD OF JOHN MITCHELL

Laurence H. Tribe

IN

N the land of Erewhon, punishment was replaced with social hygiene, and all those with criminal tendencies were committed for indefinite periods of cure. Moved perhaps by his own small vision of utopia, President Nixon recently proposed legislation "whereby dangerous hard core recidivists could be held in temporary pretrial detention when they have been charged with crimes and when their continued pretrial release presents a clear danger to the community."

More recently, Attorney General John Mitchell published a constitutional defense of the President's proposal in the Virginia Law Review. That the Administration's chief legal officer should think it necessary to take so unusual a step may seem strange in light of the dubious ability of pretrial preventive detention to contribute to the control of crime. Offenses committed by persons awaiting trial represent only a small component of the total crime problem. Indeed, if

*Assistant Professor of Law, Harvard University. A.B., 1962; LL.B., 1966, Harvard University.

127 CONG. Q. WEEKLY REP. 238 (Feb. 7, 1969). The proposal passed the House of Representatives on March 19, 1970, 28 CONG. Q. WEEKLY REP. 847 (Mar. 27, 1970), as part of the District of Columbia Court Reform and Criminal Procedure Act of 1970, H.R. 16196, 91st Cong., 2d Sess. 55 23-1321 to -1331 (1970). The text of the proposal appears at 115 CONG. REC. 7908 (daily ed. July 11, 1969). The Senate's D.C. crime bill did not provide for preventive detention, see 28 CONG. Q. WEEKLY REP. 848, 849 (Mar. 27, 1970), and the bills are now before a conference committee, see Wash. Post, Apr. 13, 1970, at 1, col. 3. The Administration is also apparently interested in the proposal of Dr. Arnold Hutschnecker for the identification, compulsory "treatment" and preventive incarceration of children who evidence criminal tendencies. See Time, Apr. 20, 1970, at 8.

Mitchell, Bail Reform and the Constitutionality of Pretrial Detention, 55 VA. L. Ræv. 1223 (1969) [hereinafter cited as Mitchell].

Only 5.9% of all persons indicted in the United States District Court for the District of Columbia in 1968 allegedly committed an offense while on bail awaiting another charge. JUDICIAL COUNCIL COMMITTER TO STUDY THE OPERATION OF THE BAIL REFORM ACT IN THE DISTRICT OF COLUMBIA, REPORT 19 (May 1969) [hereinafter [371]

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[Vol. 56:371 sensible steps were taken to shorten the delays between arrest and trial, impose additional penalties for crimes committed during the pretrial period, and more closely supervise the behavior of those released, this component would become even smaller. Many judges have tried to deal with the problem by practicing a sub rosa form of preventive detention in bail determinations, but the practice has met with little success in separating likely offenders from safe risks. Given the present state

cited as REPORT OF THE JUDICIAL COUNCIL COMMITTEE). Less than 9.2% of all defendants released between arrest and trial through the D.C. Bail Project during the 21⁄2 years of its operation were charged with committing offenses (including the most trivial) during the period of release. Of these charges, 35.4% had been dismissed, nolled, ignored by the grand jury or inadequately proven at trial as of July 1, 1966, leaving a conviction rate of under 6%. BAIL REFORM IN THE NATION'S CAPITAL: FINAL REPORT OF THE D.C. Bail Project 44 (1966). A study by the District of Columbia Crime Commission found that 7.5% of all persons released while awaiting trial on felony charges were arrested and held for grand jury action for other offenses allegedly committed prior to trial, PRESIDENT'S COMMISSION ON CRIME IN THE DISTRICT OF COLUMBIA, REPORT 515 (1966), but only 4.5% of the defendants studied were arrested for crimes of actual or potential violence. Id. at 931.

The Attorney General attempts to paint a more serious picture with respect to a single offense by pointing out that "of 557 persons indicted for robbery in 1968 [in the District of Columbia), 70.1 percent of the persons released prior to trial were rearrested while on bail." Mitchell, supra note 2, at 1236. The Attorney General fails to note, however, that the report he cites contains, after the quoted figure, a footnote stating that five of its eleven authors found “little probative value in a figure which measures only rearrests without regard to conviction or acquittal...." REPORT OF THE JUDICIAL COUNCIL COMMITTEE, supra, at 20 n.2. Moreover, the Administration's proposal does not require any indictment as a prerequisite to preventive detention. Chief Judge Greene of the District of Columbia Court of General Sessions has cautioned that studies that compare (a) the number of persons arrested while on bail to (b) the number of persons originally indicted greatly inflate the relevant ratio, which is that between (a) the number arrested while on bail and (b) the total number originally arrested. Hearings on Amendments to the Bail Reform Act of 1966 Before the Subcomm. on Constitutional Rights of the Senate Comm, on the Judiciary, 91st Cong., 1st Sess. 42 (1969) (testimony of Chief Judge Harold H. Greene) (hereinafter cited as 1969 Hearings]. Chief Judge Greene doubted that such a "study really shows anything much beyond what the author... was looking for." Id.

All the figures cited in note 3, supra, could be reduced to less than half their present magnitude if only the time lag between arrest and trial could be held to under 60 days, quite apart from the further reductions in pretrial crime that could be achieved by closer supervision and additional penalties. See REPORT OF THE JUDICIAL COUNCIL COMMITTEE, supra note 3, at 23; 1969 Hearings, supra note 3, at 22-23 (testimony of Judge George L. Hart, Jr.); McCarthy, Practical Results of Bail Reform, 29 FED. PROBATION 10, 12 (Sept. 1965); Note, Preventive Detention Before Trial, 79 HARV. L. Rev. 1489, 1508 (1966).

It is widely acknowledged that bail determinations are frequently influenced, however illegitimately, by an unarticulated desire to imprison particular defendants to prevent them from committing crimes before trial. See, eg, ABA PROJECT ON MINIMUM