denied the discretion to do so in favor of an inflexible standard which has permitted release of many defendants who have then committed additional offenses and often fail to appear, becoming fugitives who must be located and recaptured. The direction this subcommittee is willing to take is a most encouraging development. I am happy to lend my assistance to this laudable effort, and I thank you for the opportunity to testify this afternoon. Senator HATCH. Thank you. In your statement accompanying the introduction of S. 440, as well as your testimony today, you build a good case, in my opinion, for how current bail provisions might undermine public confidence in the judiciary. Could you give us your impression of the impact the present bail laws have on the public perception of the judiciary? What do the people feel about the judiciary as a result of bail laws that preclude any consideration of risks to community safety? Senator KASSEBAUM. I think there has been a great deal of worry and probably not even a good understanding of what bail law is all about. There is a justified concern that crimes are committed by those out on bail without any real understanding of why someone who has committed a crime would even be out in public prior to trial. I think this has exacerbated the public's fear of crime and I agree that it sabotages public confidence in our entire law enforcement system. Senator HATCH. Thank you. We appreciate your testimony. Senator HATCH. Our next witness is Senator Bumpers. We are pleased to have the opportunity to hear from you today. We welcome you to the subcommittee. In addition to your credentials as one of our colleagues, we believe you are more than well qualified to speak on the topic of bail reform by virtue of your authorship of S. 482, a bill introduced earlier this year to allow pretrial detention of criminal suspects who may pose a danger to the community if released. We are very happy to have you here, and we will turn the time over to you now. STATEMENT OF HON. DALE BUMPERS, A U.S. SENATOR FROM THE STATE OF ARKANSAS Senator BUMPERS. Thank you, Mr. Chairman. If I may, Mr. Chairman, I will summarize my statement by saying that I suppose my bill, S. 482, may be a little more stringent as a matter of fact, I think it is more stringent-than any of the bail bond reform proposals here. We all know that right now when someone is arrested, he is taken forthwith before a magistrate and the magistrate has two choices: he can release that person on his own recognizance or he can require a bail bond or a money bond. The judge has only one thing that he can take into consideration under existing law. That is whether or not that person will appear for trial. Obviously, if it is someone who has never been charged with another offense and the offense is not violent, in cases like that, the court will almost always release people on their own recognizance or a very small bail bond. Where that is not the case, then the court must determine what is reasonably calculated to assure that that defendant shows up for trial. As you know, right now that is the only criteria that he may use. Then you have a little constitutional constraint, which I will come back to in just a moment, that creates some confusion about how far Congress can go in bail reform. That deals, of course, with the constitutional provision which says that the court may not set excessive bail. My bill simply adds additional criteria. Under my bill the court can take into consideration whether or not that defendant has been guilty of dangerous offenses before, whether he is violent, or whether he is likely to perpetrate another crime if he is released on any money bail. If the court finds that the defendant has such a predilection for violence—if he is a one- or two-time loser having previously committed dangerous crimes and very conceivably would commit a crime if he were released on bail, even before he came to trialthen the court can refuse to make bond. You and I both know that the ACLU and a lot of people are very strongly opposed to this approach. However, this is not something that some of us just thought up; it is an idea whose time has come, in my opinion. I am not for locking up innocent people, nor am I for preventive detention of people who are not likely to commit a crime. Let me just say that in my State of Arkansas, during the last year, murder has increased by 2.3 percent, forcible rape by 4.9 percent, and robbery by 14.6 percent. The people in my State and the people in Utah are demanding that we do something. While what we are doing here will only deal with Federal crimes, we can hope-and justifiably expect, I think-that the States will follow our lead. Most of the States will pass similar legislation. Let me give you some of the statistics on why I think it is important that we come up with some kind of preventive detention to keep dangerous persons off the streets once they are arrested. A study by the Institute of Law and Social Research found that over 13 percent of all the persons arrested for felonies here in the District of Columbia were rearrested before trial. Indications are that crime or bail is an even greater problem in the State courts. The Lazar Institute study, a study of 10 selected jurisdictions, was funded by the National Institute of Law Enforcement. It involved over 5,000 defendants. It found that about one of every six defendants released was rearrested at least once during the release period. Of those rearrested, almost one-third were rearrested more than once. About 40 percent of the rearrests were for violent crimes. The Washington Metropolitan Police Department had a study that was limited to those indicted for armed robbery and released before trial. It indicated that 35 percent of the armed robbery defendants were indicted for at least one additional felony while on release. A larger study of over 500 indicted armed robbery defendants reported a 70-percent rearrest rate while on pretrial release. Here is a D.C. bail agency study of 1975. It found that 33 percent of all persons charged with a crime in the District of Columbia in 1975 were on some type of release from the criminal justice system at the time they were arrested: 15 percent were on pretrial release, 13 percent were free under some form of post-conviction supervision, such as parole, and 5 percent were on both pretrial release and post-conviction programs. I have several more in my prepared statement, but I am not going to go into them here. I do want to address two constitutional problems with the whole bail reform thing. I have just stated one, of course, which is the eighth amendment to the Constitution. It says very straightforwardly: "Excessive bail shall not be required." Legal scholars have been arguing a long time about whether that means that everybody is entitled to bail. It is my own position, and I think there is adequate justification for our believing from the decisions, that that does not guarantee everybody bail. In the United States v. Edwards case here is what the D.C. court said: The Supreme Court has never ruled on whether the excessive bail clause imports a right to bail. Lower courts have relied alternatively on dicta of both Carlson and Stack to find or deny a constitutional right to bail but without any convincing resolution. The court in Edwards upheld the constitutionality of the District of Columbia preventive detention statute, finding that it was not inconsistent with the eighth amendment. Mr. Chairman, it is my conclusion that the eighth amendment grants no absolute right to bail. I agree with the language of the Eighth Circuit Court of Appeals in Hunt v. Roth which was handed down on May 13 of this year when they said: There exists a strong argument that bail may be properly denied without encroaching on constitutional concerns where a judicial officer weighs all the appropriate factors and makes a reasoned judgment that the defendant's past record demonstrates that bail will not reasonably assure his or her appearance or that he or she because of the overall record and circumstances poses a threat to the community. That is consistent with the dicta in Carlson v. Landon decided by the Supreme Court in 1952 in which the court noted: The very language of the amendment fails to say that all arrests are bailable. Mr. Chairman, the rest of my testimony goes pretty much to the due process clause, in which I cite extensively from Bell v. Wolfish, which was a 1979 Supreme Court decision. I do not believe that a refusal to bail is a violation of due process. Finally, one of the most important parts, and I left this for last because I wanted to impress this on the committee, is that my bill requires the defendant under certain circumstances-and this is one of the things, admittedly, that some of the civil libertarians are most upset about in my bill-to go forward with proving that he is both entitled to bail and that he represents no threat to the community if he is bailed. Mr. Chairman, that in substance is it. I ask unanimous consent that my formal remarks be admitted for the record. Senator HATCH. Without objection, it will be included in the hearing record at the completion of your oral testimony. Let me just ask one question of you. Your bill really puts the burden on the defendant, as you have just expressed, to show by clear and convincing evidence that he poses no danger to the community. Does this at all abridge the rule of evidence that a defendant is presumed innocent until proven guilty? Senator BUMPERS. That is a question that the former chairman of this committee, Senator Kennedy, and I have argued a number of times. He thinks it does; I think it does not. This is not a question of his innocence or guilt. This is a question of whether or not he poses a threat to the community and is therefore entitled to bail. Senator HATCH. We appreciate your testimony, and I am glad we were able to hear from you. Senator BUMPERS. Thank you, Mr. Chairman. [The prepared statement of Senator Bumpers follows:] STATEMENT OF SENATOR BUMPERS BEFORE CONSTITUTION SUBCOMMITTEE BAIL REFORM SEPTEMBER 17, 1981 MR. CHAIRMAN, THANK YOU FOR THE INVITATION TO TESTIFY TODAY IN SUPPORT OF STRENGTHENING OUR FEDERAL BAIL LAWS. IN FEBRUARY, I INTRODUCED S. 482, AND I AM A COSPONSOR OF S. 1554. BOTH OF THESE BILLS WOULD STRENGTHEN OUR CURRENT BAIL LAWS BY ALLOWING COURTS TO DETAIN UNTIL TRIAL THOSE DEFENDANTS ARRESTED AND CHARGED WITH FEDERAL CRIMES WHO ARE LIKELY TO FLEE OR POSE A DANGER TO THE SAFETY OF ANY OTHER PERSON OR TO THE COMMUNITY. SEVERAL MONTHS AGO, CHIEF JUSTICE WARREN E. BURGER, IN HIS ADDRESS TO THE AMERICAN BAR ASSOCIATION IN HOUSTON, FOCUSED THE ATTENTION OF THE NATION ON THE PROBLEM OF CRIME AND SUGGESTED THAT THIS KIND OF REFORM OF OUR BAIL LAWS WOULD BE IN ORDER. MORE RECENTLY, THE PRESIDENT'S VIOLENT |