Case Dispositions Of those 105 defendants never released, 1 (.9%) was discharged, 5 (4.8%) were dismissed, 6 (5.7%) were acquitted, and 93 (88.6%) were convicted.

Of the 93 defendants convicted, 19 (20.4%) received a probation sentence; 2 (2.2%) received probation, fine and restitution; 10 (10.8%) received a split sentence (custody and probation); 59 (63.4%) received custody sentences; 2 (2.2%) received custody, fine, and restitution; and 1 (1.1%) received a mixed sentence (probation to follow prison term). Of the 59 sentenced to custody, 10 (16.9%) received 1-6 months, (18.6%) received 7-18 months, 20 (33.9%) received 19-36 months 10 (16.9%) received 37-60 months, 4 (6.8%) received 61-84 months, 1 (1.7%) received 85-108 months, 1 (1.7%) received 109-132 months, and 2 (3.4%) received 133-999 months.

Sixty-one (58%) of those defendants never released were charged with drug offenses.

11

Of the 61 defendants that were charged with drug offenses and never released, 1 was discharged, 2 were dismissed, 4 were acquitted, and 54 were convicted.

Of those convicted, 1 received probation, 1 received probation, fine, and restitution, and the remaining 52 received custody sentences. The average length probation sentence for those never released was 15 months. Forty-eight of the 52 custody sentences were straight custody sentences with 6 (11.5%) receiving 1-6 months, 11 (21.2%) receiving 7-18 months, 20 (38.5%) receiving 19-36 months, 8 (15.4%) receiving 37-60 months, 4 (7.7%) receiving 61-84 months, and 1 each receiving 85-108, 109-132, and 133-999 months. The average length of sentence for those who were convicted of drug offenses and never released pretrial was 36 months. The average length of sentence in the 10 Pretrial Services Agency districts for this category was 59 months.

SUMMARY

Drug offenders make up over 50% of the defendants in the Southern District of Florida and prosecution for drug related offenses is on the increase. The offenses most frequently charged were selling and importation of cocaine and marijuana. Of those defendants charged with drug offenses, less than 50% were U.S. citizens, over 50% were Hispanic of Latin American origin, and almost one-half of the defendants had lived in the district less than one month at the time the offense for which they were charged occurred. We could verify prior criminal record in only 26% of the drug cases. Money bail exceeding $20,000 was set for 63% of the drug defendants resulting in a 92.3% release rate and of those released, 17.6 failed to appear after bail was set. The average amount of bail for those charged with drug offenses who appeared

for trial was $41,000. The average length of sentence for the drug offender receiving a custody sentence is 44 months.

Of those defendants charged with drug offenses who failed to appear, 74% were of undetermined citizenship, 75% were Hispanic origin, 85% had been in the district for less than a month at the time the offense occurred, and of those who failed to appear, 73% remain in fugitive status. We could verify prior criminal record in only 21.5% of the cases and only 5.2% were found to have other charges pending at the time of release. The average amount of bail set for those charged with drug offenses who failed to appear was $75,800 compared to $212,000 average bail set for those charged with drug offenses who were detained and never released pretrial. For the 26% who failed to appear but were later returned to court and sentenced to custody, the average amount of bail was $57,100 and the average sentence was 59 months.

In 10 districts where comparable data have been collected by Pretrial Services, drug offenders account for approximately 20% of the total number of defendants and the prosecution for drug related offenses have shown a slight decline over the past 2 years. The offenses most often charged in the ten districts are possession and distribution. Of those defendants charged with drug offenses, 87% were U.S. citizens, 58% were white, 38% were black, and 10.4% were Hispanic. Only 11.8% of those drug offenders in the 10 demonstration districts had lived in the district for less than one month prior to committing the offense for which they were charged. In this category 46.9% were found to have a prior record with 16.6% having other charges pending at the time of release. Money bail exceeding $20,000 was set for 19% of these defendants resulting in an 88% release rate and of those released, 1.6% failed to appear. The average bail set for those who were released and appeared for trial and disposition with no failure to appear was $25,000. The average length of sentence for the drug defendants receiving custody sentences was 33 months.

Of those 48 defendants who failed to appear, 68.8% were U.S. citizens. Thirty-nine point six percent of those who failed to appear were caucasion, 31.3% were black, and Hispanics accounted for 20.8%. Only 10.4% of the 48 defendants who failed to appear had been in the district for less than one month prior to committing the crime for which they were charged. In this group, 25.4% had a prior record and 40.3% had other offenses pending at the time of release. The average amount of bail set for those charged with drug offenses that appeared for trial and final disposition was $16,000. The average length of sentence for those receiving a custody sentence in this group was 46 months.

The volume and dollar value of drugs per defendant in the Southern District of Florida is immense

many times greater than the volume and dollar value of drugs per defendant in the 10 Pretrial Services Agency districts or nationally. In addition, the impact of plea bargaining and a defendant's cooperation with the government are variables that we cannot assess. The volume of drugs, plea bargaining, and cooperation with the government all may have substantial impact on the release conditions and the length of final sentence.

The frequency of drug offenses, the value of the drugs per offense, citizenship, ethnicity, length of time in the community, and criminal history appear to be the variables that reflect the greatest contrast between the defendants in the Southern District of Florida who fail to appear and those in the 10 Pretrial Services Agency districts.

Senator HATCH. Our next witness will be Senator Nancy Kassebaum from Kansas.

The subcommittee is well-aware of your leadership in other legislative areas, Senator, but particularly understands that you introduced the first bill in the 97th Congress to allow some consideration of the dangerousness of an offender in setting bail.

Your bill, S. 440, is based on what we consider to be very sound judicial principles.

We commend you for your leadership in this matter as well, and we are very interested in hearing what you have to say.

STATEMENT OF HON. NANCY LANDON KASSEBAUM, A U.S.
SENATOR FROM THE STATE OF KANSAS

Senator KASSEBAUM. Thank you, Mr. Chairman.

It is a pleasure to be here. I recognize that you regard bail reform legislation as an important matter and commend you for commencing these hearings.

Senator HATCH. Thank you.

Senator KASSEBAUM. I think that Senator Chiles' bill which targets drug trafficking is worthy of careful consideration within the context of bail reform.

I know in the coming months that the Judiciary Committee will be discussing in great detail a number of other problem areas within the subject of violent crime.

As we all know, the interest and concern among our constituents about crime is increasing. As our economy improves, I expect to see it assume an even higher priority in the minds of all Americans.

Naturally, the most feared crime is the violent crime that most directly affects our personal health and well-being. Given the high rate of recidivism, one of the best methods of reducing violent crime is by getting these offenders off the streets and keeping them off the streets.

The role of bail in this matter is quite clear and our experience bears out our intuition. When arrested individuals are let out on bail, there is an unacceptably high probability that they will commit other crimes. One study indicates that more than 36 percent of repeat offenders arrested were on bail for previous crimes. The process of modifying current law has already begun. On February 6 of this year, I introduced S. 440 which, as you mentioned, would reduce the incidence of personal recognizance releases and strengthen the Government's opportunity to detain offenders who evidence a proclivity for future crime. More recently, the Justice Department Task Force on Violent Crime has recommended several important changes. I have also noted with more than just a passing interest that eight members of the Judiciary Committee, including yourself and Senator Thurmond, have recently introduced a bipartisan proposal for bail reform.

I am heartened by the broad support for these efforts, and I am confident that we can all look forward to enactment of some muchneeded reforms in Federal bail law.

It is important to note at the outset that action at the Federal level is not dispositive of the issue because crimes that are State offenses are not within the scope of Federal law. However, action

taken here can set an example for the States to follow. I, personally, feel this is very important. The converse can also be true. Some States have already enacted legislation to permit denial of pretrial release to some defendants upon a showing that they would not appear for trial or would commit a serious offense pending trial. Although some have argued that these laws violate the eighth amendment or due process of law, lower courts have tended to uphold them. Further, Chief Justice Warren Burger has criticized current Federal bail laws which prohibit judges from considering a defendant's potential danger to society when setting bail.

There can be little dispute that the eighth amendment does not guarantee a right to bail for all suspects. The members of this committee certainly are well aware that all the Constitution requires is that bail not be excessive.

Certainly, the eighth amendment does not preclude considering the dangerousness of the defendant in bail proceedings. In fact, I believe that the absense of an absolute guarantee of bail can be seen as tacit approval by the framers of the Constitution for considering the need to protect our citizens against those likely to commit crimes while out on bail.

In order to comply with the fifth amendment proscription of restraints on liberty without due process, it is not necessary to conclude that pretrial detention can never be allowed. It requires an analysis of the nature of the restriction and the need for it. Thus, the defendant's liberty interest must be weighed against the need for detention.

Given this background, I believe that Congress erred in 1966 when in passing the Bail Reform Act it virtually mandated release on personal recognizance in all but the most egregious cases. For this reason, my bill would repeal these provisions of current law and would permit magistrates and courts to release defendants on personal recognizance only in those cases where he produces convincing evidence of his responsible character, family and community responsibility, and lack of prior criminal record. I believe this discretion is essential for courts to adequately address the divergent circumstances they must confront on a daily basis.

Current bail law also often has the peculiar result of encouraging the use of an extensive criminal record as the justification for release. If the defendant's record is a lengthy one, so the argument goes, he clearly has a good record of appearing for trial so he should be released. Judges are placed in the awkward position of being legally bound to ignore what may be a very real threat to the community. To the extent that judges follow the dictates of the law, I submit that good public policy is not being served. To the extent that the law is ignored, then the law is not practical or workable and we engender further disrespect for the law in general.

Mr. Chairman, I believe that the effect of the 1966 Bail Reform Act's mandatory personal recognizance provision has been to shackle the trial court's ability to utilize alternative forms of bail, such as sureties and corporate bonds in questionable cases. The trial courts, although best able to assess the circumstances affecting the defendant's character in the community, law-abiding tendencies, employment, family stability, and other factors, have been