Judge GREENE. Mr. Chairman, as I see it, the problem is to assure public safety without, at the same time, destroying constitutional rights. The community is entitled to be safe on the streets and in their homes, and we in the criminal justice system, and this committee, and your colleagues, as the legislature, have an obligation to provide that safety. I believe this can be done without sacrificing the bill of rights.

H.R. 547

It is in that spirit that I approach these bills that are before the committee today.

5/10-DAY HOLD

I would like to discuss first, briefly, the measures that I support as proper means to assist law enforcement. H.R. 547 would extend from 5 to 10 days the period of detention of a probationer or parolee who is rearrested. That 10-day period gives the authorities the time to consider whether probation or parole should actually be revoked.

As you know, Mr. Chairman, I wrote the decision in the Peters case which led the Superior Court to adopt the policy to revoke on rearrest for a serious crime. This policy has had its salutary effect because

Mr. MAZZOLI. Mr. Greene, I might say it has been a very important decision to the community. I think you should be proud of it. It was a good one for the community, and in the spirit of law, which is to give us the protection without at the same time abridging constitutional rights. I think it has been a big help to us.

Judge GREENE. Thank you very much, Mr. Chairman.

The extension from 5 days to 10 days addresses essentially a practical problem of logistics for the court, for the prosecutor, for the Parole Board, for the probation authorities. Five days has proven to be rather too short for everyone to get together and to make the determination as to whether probation or parole should be revoked, and to provide the type of evidence that is necessary to sustain a decision to revoke. So the extension from 5 to 10 days, it seems to me, is not only appropriate, but essential.

60/90-DAY PRETRIAL HOLD

H.R. 547 would also increase from 60 to 90 days the time during which a defendant may be held in preventive or pretrial detention before he must be brought to trial. The U.S. attorney has not used preventive detention very much largely because 60 days was too short, in his view, for both grand juries' consideration and for the pretrial preparation process. I hink that is a reasonable point, and I agree that the time should be extended to 90 days.

JUDGE'S DISCRETION

H.R. 547 would also single out first-degree murder and forcible rape for special treatment for bail purposes. The constitutional basis of that is not entirely certain, but subject to that, I support the concept. Actually I would, perhaps, add such crimes as kidnaping and terrorist activities to those categories. All these are so dangerous that by

their very nature it may be legislatively presumed that release of an individual engaged in those activities would endanger the community. However, I have some important reservations about the procedure by which this would be done. Under the bill the defendants charged with these crimes would be jailed pending trial simply on the basis of the charge. I think that's wrong. Under our system courts determine who should be held pending trial, not police officers or prosecutors. This bill, and the other bills before the committee, by simply relying on the charge alone, would change that. The defendants would be jailed on the charge alone without an impartial inquiry into the substance.

In my view a defendant charged with first-degree murder, forcible rape, kidnaping, or terrorism, should be detained until trial if, (1) a judge finds after a hearing that there is a substantial probablity that the defendant committed the crime; (2) that the judge finds that the individual is so dangerous that the community's safety would be endangered by his release; and (3) that the defendant would have the right to have his trial expedited.

With those changes in procedure I support the concept of treating these serious offenses separately.

PROBABLE CAUSE

Mr. MAZZOLI. Judge, if I might interject a moment. You were in the room when I asked the U.S. attorney the question about the term "probable cause to termination." If I remember his general reaction correctly, he said that it would in a sense occur anyway. In the normal way of a judge presiding over this kind of a preliminary hearing, that would occur if the judge were not satisfied that the charge of firstdegree murder, the charge of forcible rape, was not well placed, that the reason it would not be well placed is there is some evidence that the individual would not be of summary holding.

I wonder, if, maybe, you might address yourself to that.

Judge GREENE. I disagree with my good friend, Earl Silbert. I believe that if the legislation were enacted in the way that the bill is now written, there would be no requirement of a hearing into the determination as to whether there is probable cause to believe that the offense was committed. It would simply take the offenses of firstdegree murder and rape out of the categories of offenses for which bail would be allowed. Without more. I have serious doubts that a judge would be justified in holding a hearing to determine whether there was probable cause to believe that the defendant committed the offense.

If the objective could be achieved if everyone agrees that the hearing should be held, then the objective could be achieved by adding these offenses as a fourth subsection to the preventive detention provisions of the statute which require those kinds of procedural safeguards.

For the reason that I gave in regard to relying on the charge alone. I also disagree with the even broader provisions of the other bills. As I understand the other three bills that are before this committee, they would hold until the trial, without bail, anyone charged with an act of violence or an attempt to commit an act of violence. I believe that category is too broad.

In view of that, and dispensing with any finding of triable cause by a judge, it seems to me that would be a wholesale repeal of the eighth amendment right to bail and presumption of innocence.

CRIMES WHILE ON BAIL

Finally, while of course I support the detention of persons arrested for another crime while they are on probation or parole, I do not agree that this should also apply to persons arrested for another crime while on bail. Probationers and parolees have been adjudicated guilty, and their probation or parole can be revoked for conduct falling far short of a crime. But a person on bail is presumed to be innocent, and that presumption does not change and does not leave him just because he is arrested again.

AMENDMENTS PROPOSED

MANDATORY ADDED TIME

In addition to that I would like to mention a few other measures which I think would be helpful, which are not directly in the bill. I suggested last year, and I am suggesting again, that the committee might consider writing into the bill a provision for mandatory additional time for anyone found to have committed an offense while on probation, parole, or bail. There is no constitutional problem with that, and it seems to me it would be an effective deterrent.

STREET SUPERVISION FOR RELEASES

I think it would also be helpful, as I suggested already, that there should be allocation of resources for the effective supervision of those on the streets pending their trial.

The jail, as you know, has a limited capacity. It is overcrowded at this point. It has been overcrowded even before it was completed last year. So even if we were not to consider constitutional or legal problems at all, there are the problems of sheer lack of space. And since there is this limited amount of space a number of people are going to have to be released pending trial.

I think a meaningful supervision program for those who were on release, while they are awaiting their trial, would pay great dividends. and reduce crime and reduce fugitivity. I think such a program could be effective and, as I say, it would not jeopardize constitutional protection.

I agree that the rearrest of persons on bail is a very serious problem and should be dealt with. It has been dealt with very effectively by the very excellent and imaginative program that the U.S. Attorney's Office and Chief Cullinane have outlined this morning. That is, giving special attention, giving absolute priority to these kinds of cases, where persons are rearrested, while they are on bail, for another charge.

We certainly are committed, and I personally am committed, to cooperate in every way in making that a success.

Another method of dealing with this problem would be to impose very strict conditions as to those who are not detained under this program, and making certain that those conditions are actually observed by having supervision personnel to supervise these people.

If I may digress a moment, in the juvenile area I was instrumental in a so-called home detention program for juveniles who were released pending trial. That home detention program provides for one individual supervising five juveniles as distinguished from the usual supervision ratio of 1 to 40 or 50. That had an amazing effect. The rearrest rate, the fugitivity rate, was extremely minute.

It seems to me that a program which would implement the career criminal program, to an even greater extent than now, plus extensive supervision of persons who cannot be, or are for some reason, not detained under the career criminal programs, seems to me a more appropriate vehicle for dealing with this problem of crime committed while on bail than to disregard the right to bail or disregard the presumption of innocence.

Mr. MAZZOLI. Judge, thank you very much. As usual, you have made a fine statement.

PRETRIAL RELEASES VERSUS PAROLEE OR PROBATIONERS' RELEASES

I would like to talk with you just a moment about your feeling that those who are on pretrail release should not be lumped together with those who are on parole or probation where in each case they had committed a crime and come before the court.

If I understand correctly, many times these people who are out on bail of some sort or on pretrial release have rather extensive criminal records. And the fact is that they are not always first-time offenders, but sort of like the apple-cheeked kid that you think about.

Do you still have the same difficulty where you have a person who is out on bail, prior to some kind of a trial, but who has a recordand of course this is inquired into- and all he gets is 10 days, which is all you can hold him back; and at that point there is a hearing and the judge has to be satisfied that indeed there is an danger to the community if this person were released, or indeed this person might flee; if that judge were to render yes in both cases and you have to try him in 90 days or release him, do you still feel it might be a miscarriage?

Judge GREENE. I think there are constitutional problems with a person-if he has a prior record, and he is still on parole from his prior offense, we have no difficulty. If he is on parole, he is, so to speak, still in custody, at least constructively, and he can be yanked back anytime. If he is not on any kind of post trial supervision, either parole or probation, he is there, at least legally, with the same presumption of innocence that anyone else is. I agree that these people do present a serious problem, but I think the problem can be solved by measures short of what really is incarceration before guilt has been determined. It seems to me I would be prepared to say that we could further expedite trails of these people: If a person is on bail for one offense and he is rearrested for a second offense, it would seem to me that the court, on application of the prosecutor, could make every effort, and could probably succeed, in having the trial of mose cases in just a few days. Mr. MAZZOLI. The attorneys for the defendant would make their cases and provide defense by prolonging the matter and asking for continuance. I am sure the the Superior Court has the means and mechanisms to speed things up.

You are talking about the prosecutor wanting to do something which in a sense they are not permitted to do under the law because of continuances, and the ways, and what-have you. You have answered my question and I am very much appreciative.

As a matter of fact the U.S. attorneys themselves were not able today to take a position in favor of putting the pretrial bailees, I guess you would call them, into the same category as parolees or probationers.

I have no further questions. I want to say to my colleagues we are getting close to the witching hour, so maybe we can limit our questions to 5 minutes.

Mr. Coleman.

Mr. COLEMAN. Hopefully less than that.

REARRESTS

Judge, what has your experience been, as far as people who have been or are out on bail, coming before the court again in a rearrested situation and other charges?

Is this something we read about in isolated cases, or is this not an unusual occurrence?

Judge GREENE. It is not isolated. I don't think it is quite as dramatic as some of the figures might show. The Police Department figures usually lump together people on probation, people on parole, people on bail. And they say of all those on conditional release, 7 percent are

rearrested.

Experience, I think, shows that four out of five are on probation or parole. So that only one out of five is likely to be on bail.

Furthermore, the Police Department figures generally only show rearrests and do not show convictions. I think convictions is really the meaningful figure rather than arrests.

The problem is there. It is not quite as vast as the percentage figures would indicate, but it is certainly by no means isolated. It is a serious problem that should be paid attention to.

Mr. COLEMAN. Under the present law, or any proposed law, would a person who is now on probation or parole, in a rearrest situation, be committing a separate offense, the offense of attempting a crime during a probation? Is that a separate offense, or is that just contrary to the terms of probation therefore

Judge GREENE. That's the commission of an offense which is a violation of the conditions of probation, and it would be on that basis that he would be held.

Mr. COLEMAN. A person out on bail or bond, could be not be subject to a separate offense, the offense of commiting a crime while out on bail?

Judge GREENE. Yes. Certainly. That is a separate offense right now. My suggestion, as a matter of fact, is that there be a mandatory sentence for that separate offense where that separate offense is committed. But that doesn't get us over the problem as to what's to be done with him between the time of the arrest and his trial.

Mr. COLEMAN. The problem is one of safeguarding the public from this person. That is the thrust of the problem, is it not?

Judge GREENE. That is correct.