It is my view that if we could just take the persons "off the street" who have been rearrested while under some sort of supervision, who have had “one bite of the apple", we could substantially improve the crime situation in this city.

I believe that my view has been confirmed by the success of the Career Criminal Unit or Operation Doorstop here in the District of Columbia during the past year. As you know, I suggested in my testimony before this Committee last year, that such a Unit be established in the U.S. Attorney's Office to handle these offenders. I suggested that this team would in effect drop everything to see to it that these cases are properly handled. I pointed out that during my tenure at LEAA and with LEAA funds, programs like this called "Career Criminal Programs" were established in prosecutors' offices in 22 big cities all across the country.

OPERATION DOORSTOP

Operation Doorstop has been an unqualified success. This city is a safer place today because of that program. The U.S. Attorney and the Metropolitan Police Department are to be commended for undertaking it. It is worthy of note that only 7% of the defendants participating in the Career Criminal Program had their cases dismissed. It is also worthy of note that 94% of the defendants participating in the program have been convicted. This should put to rest the notion which opponents of detaining dangerous defendants have tried to foster that a large proportion of those arrested and formally charged by the U.S. Attorney's office are not guilty of a crime.

I am hopeful that there will soon be established in the Misdemeanor Section of the U.S. Attorney's Office, a repeat offender program similar to Operation Doorstop. Research from the Institute of Law and Social Research demonstrates that the repeat violent offender commits misdemeanors as well as felonies. In addition, I would hope that the Corporation Counsel would examine the possibility of providing priority treatment for those juvenile offenders who also commit violent felonies repeatedly.

Despite the success of Operation Doorstop more needs to be done, and legislation can help.

5-day hold

AMENDMENTS PROPOSED

I am therefore suggesting a few changes in the so-called "five-day hold" provision (D.C. Code Tit. 22, sec. 1322 (e)). The concept of the five day hold is a sound one but one that if modified would be better able to assist with the problem outlined above. I would make the following changes in that part of the statute: First, I would expand the "hold" concept so that it applied to persons out on bail for an earlier offense. This is not a new idea. Attorney General Ramsey Clark suggested it in his testimony in the Bail Reform Act in 1965. It is consistent with the ABA Standards and at least two other states have provisions of this sort. The ABA Standard 5.8 on Pretrial Release provides: "Commission of serious crime while awaiting trial. Where it is shown that a competent court or grand jury has found probable cause to believe that a defendant has committed a serious crime while released pending adjudicating of a prior charge, the court which initially released him should be authorized to revoke his release." The commentary is, in my mind, very helpful and worth noting:

"The constitutional questions regarding the right to bail are different here from those that are met when preventative detention on the first charge is considered. The defendant held to answer on a second charge has once been granted bail or some other form of release, and to that extent his constitutional right to bail has been satisfied. If the court has the power to take the risk of future criminal activity into account in setting conditions in his release, then it should follow that it may enforce those conditions by revocation where a clear violation is shown. Where the violation consists of the commission of a serious crime, the court's authority to revoke ought to be clear.

"As noted, the drastic effects of preventative detention, the difficulties inherent in predicting future criminality and the unresolved constitutional issues have led the Advisory Committee to conclude that preventative detention should not be proposed. The decision does not imply a denial of the very real public interest in preventing such criminal activity. Where the inadequacy of the usual deterrent effect of pending criminal proceedings has been demonstrated by the defendant's commission of a serious crime while released, we believe the practi

cal arguments against detention fail. Safeguards against abuse would exist in the requirement that the validity of the charge of a subsequent offense be shown to the satisfaction of a competent court or grand jury. See D.C. Crime Commission 526."

The Arizona Criminal Code (§ 13-1578) provides in pertinent part:

"B. After a hearing and upon a finding that the defendant has willfully violated the conditions of his release, the court may impose different or additional conditions upon the defendant's release upon finding of probable cause that the defendant committed a felony during the period of release, the defendant's release may be revoked."

The Illinois Code of Criminal Procedure (T.38 § 110-6) provides in pertinent part "(3) Upon a finding by the court that the State has established by clear and convincing evidence that the defendant has commited a forcible felony while admitted to bail, the court may revoke the bail of the defendant and hold the defendant for trial without bail. Neither the finding of the court nor any transcript or other record of the hearing shall be admissible in evidence against the defendant in the trial of the offense for which the violation was found, and no reference of any kind whatsoever shall be made during the trial to the hearing or any evidence or the court's finding therein."

Second, I would lengthen the five days that a defendant can be held to determine whether the Court will revoke his probation or the Parole Board will resolve his parole to at least ten court days. Five days is not enough time presently for either the Court or the Parole Board to act.

JUDGES DISCRETION RE DETENTION

In my testimony before this Committee last year, I suggested that if after notification of the appropriate State or Federal Court, probation parole or corrections officials fail to decline to take the person into custody that the judicial officer holding the preliminary hearing must make a determination as to whether the defendant should be held without bail pending trial. It is my view now that this procedure is not needed in the cases where there has been enough time for the appropriate officials to act. During the past year it is my understanding that such officials have acted and for the most part, have taken the person into custody during such period.

I now feel that perhaps the best approach for the subcommittee to take is to continue with the language of the existing law, § 23-1332 (e) and make the changes I have suggested directly to it, rather than completely rewriting the existing section.

With respect to so-called preventive detention provisions, the remainder of the provisions of § 23-1332, my feeling is that they should also remain intact. Again, I would hope that Congress would attempt to better define what is meant by the phrase "substantial probability" that the person committed the offense.

90-DAY PRETRIAL DETENTION

I would also hope that Congress would extend from 60 to 90 days the maximum period of time a defendant can be detained under the Pre-Trial Detention provision of § 23–1322(d) (2) (A).

The above proposal is realistic, and, I think, an improvement. It is not, however, a panacea. Whatever the outcome of the legislative effort, it is important to stress that any improvement will still depend in large part upon how the statute is administered. In my judgment, the present provisions could have been more effectively administered during the period I was the Chief of the Superior Court Division of the U.S. Attorney's Office. There has been a shortage of manpower; the U.S. Attorney, the Court and the Bail Agency are all desperately understaffed. But priorities also must be established. Some cases are more important than others.

In conclusion, I want to say that I believe in bail reform. Please do not throw the system back into the arms of the bail bondsmen. I want to emphasize that this is not an easy problem; there are no pat or simple solutions. We must approach the problem with a sense of modesty. Bail reform is an experiment: as an experiment, there is much about it that has been tremendously successful. The proponents of bail reform, and I have spoken to them, have never contended that the present legislation is perfect. To their credit, they have always seemed concerned about the problem of the repeat offender. The difference between then

and now is that we have the research to prove that the repeat offender is a problem and we have the ability, if the system will use it effectively, to identify this group and handle their cases sensibly.

Mr. MAZZOLI. Next we have your colleague, Mr. Hamilton, I believe.

STATEMENT OF WILLIAM HAMILTON, PRESIDENT, INSTITUTE FOR LAW AND SOCIAL RESEARCH, ACCOMPANIED BY MS. KATHLEEN BROSI, SPECIAL COUNSEL

Mr. HAMILTON. Thank you, Mr. Chairman. My testimony is based in a large part on data from the PROMIS system in the U.S. attorney's office for the District of Columbia, and to a lesser extent on data which have been recently made available from other PROMIS installations in nine other cities.

The organization that I represent is helping the Law Enforcement Assistance Administration which funded the development of PROMIS to make it available to local district attorneys offices and court systems throughout the country, including, as you have heard from Mr. Armstrong, the Louisville prosecutor's office.

RECIDIVISTS

What we are seeing from the data that developed in the PROMIS system is that crime on bail is just the tip of the iceberg of what our very serious and dismaying problems are in the criminal justice system, not only in the District of Columbia, but it appears in virtually every urban area of the country.

In addition to serious crime on bail, we have people arrested while they are on probation and parole, and the people arrested on either bail, probation or parole account for about one-fifth of all the people arrested for serious crimes in the District of Columbia.

In addition to the problem of crime on bail we have the problem of people being repeatedly arrested whether on bail, probation, or parole, or whether they are on nothing.

As you have heard this morning, over a 5-year period 7 percent of the people arrested, the PROMIS data indicated, accounted for onefourth of all of the arrests brought to the attention of the district attorney's office.

CONVICTION FAILURES

And the final part of the iceberg that ought to be examined in looking at the bail problem is the general malaise of the system, where few cases are disposed of on their merits, where very few cases result in convictions, where the norm for the big city court system is an arrest followed by an outright dismissal, not by plea bargaining, not by trial, not by acquittal, but by an outright dismissal.

Mr. Mazzoli. That's the norm for major American cities?

Mr. HAMILTON. It appears to be. It is certainly the norm for the District of Columbia, and it is the norm for all the other cities that we have been able to get data on so far, that over 50 percent of all the arrests for felonies are simply dismissed.

Mr. MAZZOLI. Are your figures those which include 1976, or are they for the part of the time during which the career criminal program was in operation?

Mr. HAMILTON. Yes. They are for the last part of 1976, Mr. Chairman. The career criminal cases, as we will see later, are exempted from that general malaise. They are handled quite well. But I am talking about the overall run-of-the-mill felonies, if you can call them run-ofthe-mill.

WITNESSES

The other thing that we see is that reasons why the fact that most of the cases are dismissed are relatively consistent from city to city. The major two reasons are you cannot find the witness, a citizen who is the witness of the victim of the crime when you need him or her, or, you can't sustain that person's cooperation as the case drags on in the court system.

EVIDENCE

The second reason consistently found in every one of these cities is that the police, when they make the arrest, while they may make a lawful arrest by the police arrest standard of probable cause, they do not make an arrest that has sufficient evidence to proceed in the court system.

So, the level of evidence that the lawyers judge that they must have in order to proceed with the case is unavailable, and the prosecutors lack the resources to do anything about it in most of the cities.

For the last quarter of 1976 1 out of every 10 persons arrested for a felony was on bail for another crime in the District of Columbia Superior Court at the time of his arrest.

Another one out of eight persons arrested for felonies was on probation or parole at the time of his arrest for that felony. That adds up to 22 percent of the people arrested for felonies during the last part of 1976 being on conditional release under the bail provision or parole for another crime.

And the only thing that makes that less shocking is that a year ago we had similar figures. They were a little bit worse. We didn't know that other cities were experiencing much the same thing, and the District of Columbia, it is important to remember, has a reputation of having a more liberal bail system than most cities.

On page 10 of my testimony is a chart (chart 1) which compares the conditional release statistics for the District of Columbia, Indianapolis, Los Angeles, New Orleans, and Cobb County.

New Orleans has a very low rate of conditional release, but the others are in the same ballpark with each other.

During the last part of 1976, the conviction rate based on arrests for felonies was 41 percent, that is to say that 41 percent of the arrests for felonies resulted in a conviction of some kind, whether it was a plea, or a verdict, any kind of a conviction.

The acquittal rate based on arrest was only 2 percent, so, most of the people are not getting the difference is not findings of not guilty. The main thing is that 57 percent of the arrests for felonies during the last part were simply dismissed.

The cities that were represented in the meeting of PROMIS jurisdictions in Los Angeles and which were able to trace in their PROMIS data what happened to the arrest. We found out that over 50 percent of all of their felony arrests were either refused prosecu

tion initially, or originally accepted for prosecution but then dropped, and the reasons were the same.

Now, we are seeing from data some idea of what can be done, what things have occurred to us to be clues as to remedies to problems. One of them you have heard already from the witnesses yesterday and from Chuck Work this morning is the career criminal program.

During that same last quarter of 1976, while the general conviction rate was 41 percent based on arrest, the career criminals conviction rate for the cases taken into that quarter and disposed of so far was 93 percent.

ARREST TO DISPOSITION

The time from arrest and disposition for the career criminal cases was 90 days versus 222 days for the average felon. And the rate of incarceration following conviction for the career criminal cases that were disposed of during the period studied was 93 percent versus 64 percent for the average felon.

Mr. Mazzoli. In other words, of the average felon, only 41 percent are convicted; and of those 41 percent only 64 percent ever go to jail? Mr. HAMILTON. That is correct.

Mr. MAZZOLI. Of the career criminals, only 93 percent are convicted, and that 93 percent wind up having some kind of a jail sentence? Mr. HAMILTON. That is right.

Mr. MAZZOLI. OK.

CAREER CRIMINALS' RECORDS

Mr. HAMILTON. Now, one of the things that we are seeing in the data is, as Chuck Work mentioned, these career serious offenders do not observe the legal distinctions which lawyers observe; they are not always specializing in the same crime. They don't even stay in the same. category, felony cases versus misdemeanors. In fact, by the fact that all the career criminal programs in the country-I shouldn't say "all"most of them appear to specialize in felony cases. The data indicate. they are missing one-fourth of the criminal episodes of these career offenders because one-fourth of the time when a career criminal is arrested, he is arrested for a misdemeanor, and he is bouncing back and forth between felonies and misdemeanors all the time.

But in most of the cities the misdemeanors are handled by the least experienced prosecutors, with some sense, because the penalty, the possible penalties are not anywhere near as serious as a felony.

But if you are trying to do something about controlling the incidents. of crime, you will want to handle that suspect on the misdemeanors which are involved in the same serious violent offenders who are coming in on the felony cases.

Another thing

Mr. MAZZOLI. Excuse me before you go on to another point. Is there any way that the PROMIS system could check, or is there a computerized way that you keep track of these people and provide the profile that is needed to identify the criminal? Is there some way that it can be programed to include the misdemeanor? Is that on there, or do they just disregard it?

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