FINALLY, MR. CHAIRMAN, SINCE THE DUE PROCESS CLAUSE

IS APPLICABLE, WE MUST RESOLVE THE QUESTION OF WHAT

PROCESS IS DUE. ALL OF US ARE AWARE OF THE U. S.

SUPREME COURT CASES THAT MAKE CLEAR THAT DUE PROCESS

IS NOT A FIXED CONCEPT, BUT IS FLEXIBLE. IT DEPENDS

ON THE NATURE OF THE INTEREST OF BOTH THE DEFENDANT

IN NOT BEING WRONGLY DETAINED, ON THE ONE HAND, AND

THE INTEREST OF THE GOVERNMENT IN ASSURING THE PRESENCE

OF THE DEFENDANT AT TRIAL AND THE SAFETY OF THE

COMMUNITY. I HAVE STUDIED THE PROVISIONS OF S. 1554

AND AM CONVINCED THAT IT PROVIDES APPROPRIATE PROCEDURAL

DUE PROCESS PROTECTIONS. IT REQUIRES A HEARING BEFORE

DETENTION, AT WHICH THE DEFENDANT IS TO BE REPRESENTED

BY COUNSEL, AND IT REQUIRES FINDINGS THAT THE DEFENDANT

IS EITHER LIKELY TO FLEE OR TO POSE A DANGER TO THE

COMMUNITY AND THAT THERE IS A SUBSTANTIAL PROBABILITY

THAT THE DEFENDANT COMMITTED THE OFFENSE CHARGED.

IN CONCLUSION, MR. CHAIRMAN, LET ME SAY THAT I

AM GLAD THAT THIS COMMITTEE IS GIVING SERIOUS AND

THOUGHTFUL CONSIDERATION TO THE WHOLE QUESTION OF

BAIL REFORM.

THOUGHTFUL AMERICANS ARE CONCERNED

ABOUT THE PROBLEM OF CRIME COMMITTED ON PRETRIAL

RELEASE, AND WE CAN DO SOMETHING ABOUT THIS PROBLEM.

AUTHORIZING PRETRIAL DETENTION WILL NOT SOLVE THE

CRIME EPIDEMIC IN THIS COUNTRY. IT WON'T BE A

PANACEA. BUT IT IS A CONSTRUCTIVE AND CRUCIAL STEP

IN THE RIGHT DIRECTION, AND ONE WHICH THIS BODY SHOULD

TAKE WITHOUT FURTHER DELAY.

Senator HATCH. The subcommittee is pleased now to hear from a legal authority with extensive hands-on experience with bail. Mr. James Anders is the U.S. district attorney in Columbia, S.C.

Today Mr. Anders is appearing on behalf of the National District Attorneys Association. The president of the association, Mr. David Armstrong, just recently finished serving on the violent crime task force. Although his schedule did not allow him to attend our hearing today, he said that he could send one of the Nation's best district attorneys in this field.

I think that is a high compliment for you, Mr. Anders, and we look forward to hearing your experiences with bail and the position of your association with regard to this topic.

STATEMENT OF JAMES C. ANDERS, SOLICITOR, COLUMBIA, S.C., REPRESENTING NATIONAL DISTRICT ATTORNEYS ASSOCIATION Mr. ANDERS. Thank you, Senator.

Senator HATCH. I have to slip out for just a minute, but I would like you to begin. I will be back in in just a few minutes. Mr. ANDERS. Thank you very much.

I have been in private practice for 7 years prior to being elected the State district attorney in Columbia, S.C. My practice primarily was in the Federal system for the first 7 years. I have been involved in the State system for the latter 7 years.

I would like to state first of all that I do support the bill, S. 1554. I think because of certain sections, it has broadened it to the extent that it takes into consideration so many other things other than the likelihood of the flight of the defendant. It takes into consideration the community.

I think that is really what we need to look at today. We need to look at balancing the rights of the individual and the rights of the public. In doing so, I would like to refer to something. I hope that we can adopt the entire paper that I presented, and I will just make reference to it.

The State of South Carolina has already adopted an approach of balancing the rights and needs of both the community and the defendant. If you look at exhibit 1 attached to my paper, you will notice that we already look at the unreasonable danger to the community which might result from the release of an individual on bond.

In addition, I have consulted with the Federal magistrates for the State of South Carolina, Charles Gambrell and William Catoe, both of whom have expressed strong support for the changes in the proposed statute that would allow consideration of danger to the community in the setting of bail bonds.

Both of them emphasize the futility and even danger of allowing certain offenders suspected of heavy drug trafficking to be released on surety bonds. The inevitable consequence of such a release is the disappearance of the defendant, even after having posted, in my State of South Carolina in one case recently, a half million dollar bond.

To these defendants, forfeiture of bond is simply regarded as a cost of doing business. I certainly would concur with Senator Chiles in his statement earlier with respect to the drug traffickers.

I would like to emphasize the area dealing with career criminals. As a group, career criminals pose the greatest threat to the public of all criminals. S. 1554 needs to take this fact into account by proposing that if a defendant is charged with a crime punishable by death or life imprisonment or if a defendant is charged with a serious or violent offense and has been convicted of such offense within the previous 10 years, then the judge is to detain the defendant until trial unless some condition or combination of conditions will reasonably assure the safety of other persons in the community.

As the chief prosecuting attorney for the Fifth Judicial Circuit of South Carolina, I recognized the dangers posed by career criminals some years ago. I instituted a special career criminal division designed to perform the special task of prosecuting major offenders. The profile of our career criminal division is similar to that which I have proposed for inclusion in S. 1554 and similar to the provisions in Senator Bumpers' bill, S. 482-two or more convictions for a high court offense within the previous 10 years.

The chief prosecutor for the division represents the State at bail bond hearings of each career criminal.

I can personally attest to the success such a program has in preventing career criminals from committing crime while awaiting bail.

Of the defendants designated as career criminals in the fifth judicial circuit, only 28 percent have been released on bail prior to trial. Of those released, 34 percent are subsequently rearrested for crimes committed while on bail. You see a very high percentage of recidivism, even when we target and identify these individuals.

Senator HATCH. Mr. Anders, I will have to interrupt you for a few minutes. We will return to your testimony shortly.

[Recess taken.]

Senator HATCH. We will now proceed with your testimony, Mr. Anders.

Mr. ANDERS. Thank you, Senator.

I had referred to the career criminal program that we had and to the experience we had in that area.

In S. 482, Senator Bumpers refers also to the career criminal program by way of so stating.

There are three types of bonds. Some people are not really familiar with those three types of bonds. You have a personal recognizance or a contract, so to speak, with the individual that he is going to appear for court. If he fails to appear, he faces further punishment including payment of money and time in prison. The same is true with a surety bond. Then we have the cash bonds themselves.

I would like to bring attention to exhibit 3 of my paper which deals with the assignment of deposits of cash funds that are placed with the clerks of the courts. This would not be a bad practice for the Federal courts to use more often.

More so, it usually brings about the appearance of the defendant. In my particular jurisdiction over the past 22 years, we have had 2,115 persons jump bond and leave the jurisdiction. Of those, 74 percent were P.R. bonds, 22 percent were surety bonds, and only 4 percent were cash bonds.

Of course, these cash bonds being used to make restitution for victims when they are so entitled is a fund created that is useful. Furthermore, the money could be assigned to the lawyer representing the defendant. It seems that they can generally find money to get out of jail, but they have difficulty in finding funds to hire attorneys. It could be used for that.

Again, Senator, we support this bill because of the broadened discretion that is given to the magistrates. We do not ask that the discretion of the magistrates be limited or the district judges in any respect, so they can take all of these things into consideration and better establish bail if it is necessary or release on P.R. bond or the placement of cash money with the courts.

Thank you.

Senator HATCH. Thank you.

Let me just ask a couple of questions of you.

When you have a case where a defendant is obviously dangerous and should be detained prior to trial, how do you make the case to the judge that he should be held when the code does not allow consideration of dangerousness? It seems to me that you can only argue that he might not return for his trial. Then how do you go about convincing the judge to detain the suspect?

Mr. ANDERS. It is difficult at times under the present law to be able to properly get across to the judge some of the circumstances that particularly surround an individual. I think your bill, S. 1554, broadens the area for the judge's consideration of what he is going to do to another individual or going to do to the community. All of those things can be taken into consideration. We think it would be advantageous to pass your bill.

Of course, the States are most likely in the future to adopt these bills; so it is extremely important to every court in the United States that this be as broad as possible in our opinion.

Senator HATCH. We have had judges testify before various congressional committees that they have resorted to subterfuge in order to detain suspects that they felt were dangerous.

Are you aware of judges stating that they are detaining individuals on the fear that they may flee when the real consideration might have been actual danger?

Mr. ANDERS. Sometimes judges will indicate to an individual when he is brought in. The best thing a U.S. magistrate can do, in my opinion, is get the parents of an individual on a bond if he is a younger person. Making sure that he is not a threat to the community is a difficult thing to do.

Sometimes they are held awaiting discussions with their courtappointed attorneys, so that they might look into the background. If the U.S. magistrates and district judges would utilize the probation persons, they could get a complete background on an individual before he is released. The public would be better benefited and protected thereby.

Senator HATCH. In American jurisprudence, judges are often called upon to make judgments based on their findings of potential for future activities. For instance, when balancing the protection of the public against the first amendment right to hold demonstrations, courts must often weigh the potential for violence. Does it bother you that judges will be making determinations of future