ADMINISTRATION OF CRIMINAL JUSTICE
OVERSIGHT HEARINGS
BEFORE THE
COMMITTEE ON
THE DISTRICT OF COLUMBIA
HOUSE OF REPRESENTATIVES
NINETY-FOUKTH CONGRESS
FIRST SESSION
ON
THE ADMINISTRATION OF CRIMINAL JUSTICE IN THE
DISTRICT OF COLUMBIA AND IN THE WASHINGTON
METROPOLITAN AREA
MAY 0. 8, 13, 14, 15, 19, AND 21, 1975
PART 1 (pp. 1-1111)
Serial No. 94-2
Printed for the use of the
Committee on the District of Columbia
Y,.*^/'--^^-^''
U.S. GOVERNMENT PRINTING OFFICE
62-587 O WASHINGTON : 1975
ITORTHEASTFRN UNIVERSITY SCHOOL of LAW LIBRARY
COMMITTEE OX THE DISTRICT OF COLUMBIA
CHARLES C. DIGGS,
DONALD M. FRASER, Minnesota
W. S. (BILL) STUCKEY, Jr., Georgia
RONALD V. DELLUMS, Califorina
THOMAS ^L REES, California
WALTER E. FAUNTROY, Delegate,
District of Columbia
JAMES R. MANN, South Carolina
ROMANO L. MAZZOLI, Kentucky
HERBERT E. HARRIS II, Virginia
DAN DANIEL, Virginia
JERRY LITTON, Missouri
HELEN S. MEYNER, New Jersey
HENRY J. NOWAK, New York
PHILIP R. SHARP, Indiana
JAMES J. FLORIO, New Jersey
Jr., Michigan, Chairman
GILBERT GUDE, Maryland
WILLIAM H. HARSHA, Ohio
STEWART B. McKINNEY, Connecticut
EDWARD G. BIESTER, Jr., Pennsylvania
TOM RAILSBACK, Illinois
ROBERT W. DANIEL, Jr., Virginia
CHARLES W. WHALEN, Jr., Ohio
Robert B. WashixgtoXj Jr., Chief Counsel
James T. Clark, Legislative Counsel
Ruby G. Martix, Associate Counsel
Dale MacIver, Assistant Counsel
Daniel M. Freeman, Assistant Counsel
Dorothy Anderson, Professional Staff
Yvonne R. Chappelle, Professional Staff
Edward L. Cleveland, Professional Staff
Wilbur G. Hughes, Jr., Professional Staff
Nelson Rimensnyder, Professional Staff
Jacqueline E. Wells, Professional Staff
Margi Mosbaek, Research Assistant
Maria L. Otero, Office Administrator
Mark Mathis, Minority Counsel
James M. Christian, Deputy Minority Counsel
Janice Lookner, Professional Staff
Ralph E. Ulmer, Professional Staff
Carol B. Thompson, Legislative Assistant
(II)
---^'^HTt^(^
CONTENTS
STATEMENTS
Alexandria (Va.) : Page
Commonwealth's Attorney, William A. Cowhig, Esq 1600
Public Schools :
Butler, J. T., assistant superintendent 692, 699
Hills, Richard, assistant superintendent 692
Leone, Dennis, public information officer 692
Stubbings, Dr. John R., director of Secondary Education 692
Arlington (Va.) :
Burroughs, William S., Esq., Commonwealth's Attorney, Arlington 1600
McLaren, Roy, chief, Arlington County, Va., Police Department 1291, 1295
Assistant U.S. Attorneys As.sociation :
Aldock, John D., Esq., president 1668, 1669
King, W. R 1668, 1669
Queen, Thomas H 1668, 1669
Bar Associations :
Bar Association of D.C. :
Monahan, Henry J., Esq., Chairman, Criminal Law Committee 1636
Schwartz, Lawrence A., Esq., member 1636, 1639
Wolf, Peter, Esq., member 1636
D.C. Bar Association (unified) :
John Douglas, president 1621, 1625
Bonabond. Inc. :
Yates, Waverly V., executive director, Bonabond, Inc., accompanied by
James Henry Reed. Jr.. staff member 1091
Commission on Accreditation for Corrections, Robert H. Fosen, Ph. D.,
executive director 366
D.C. Court of Appeals, Hon. Gerard D. Reilly, Chief Judge 3
D.C. Department of Corrections :
Burton, Arthur, Administrator. Employment Development, Division
for Ex-Offenders 383
Golightly, William, Assistant Director, Administration 383
Jackson, Delbert C, Director 383
Moore, Warren H., Superintendent, Office of Program Development
and Coordination 383
Robinson, Edward, Correctional Program, Administrator 383, 416
Rodgers, Charles, Ass^istant Director, Operations 383
D.C. Department of Human Resources :
Barr. William W., acting administrator, Social Rehabilitation Ad-
ministration 673
Benefield, Ms. Karen, Special Assistant to the Director 652
Douglas, :\Iilton C, Jr.. Chief, Community Care Services Division 666
Parker. Sidney L.. Chief, After Care Services Division 678
Reams, Elwood L., Supervisor, Home Detention Units and Program 671
Russo, Albert P., Special Assistant for Social Services 6.52
Taylor, Thaddeus J., Chief, Bureau of Youth Services 676
Whitehurst, William H., associate director for Planning and State
Agency Affairs 652
Yeldell, Joseph P., Director 652
D.C. Public Schools:
Dews, Edgar, Director of Security 711
Diggs, Gilbert A. Regional Superintendent 711
Guines. Dr. James T., Regional Superintendent 711
Millard, Dr. Wilbur A., Assistant Superintendent, Division of Pupil
Personnel Services 711
(III)
IV
D.C. Public Schools— Continued ^^^®
Morris, Mrs. Virginia, president. Board of Education 711
Novak, Mrs. Jacobeth P., school attendance and work permits Til
Reed, Vincent, Assistant Superintendent, State Administration 711
Department of Justice — U.S. Attorneys :
Cummiugs, William B., Eastern District of Virginia, accompanied by
Justin Williams, Esq 1581
Finney, Jervis S., Esq., District of Maryland 1572
Silbert, Earl J., District of Columbia, accompanied by Dennis Dayle,
assistant special agent in charge, Drug Enforcement Administration
Office and Charles R. Work, deputy administrator, Law Enforcement
Assistance Administration 1531
Diggs, Hon. Charles C 1, 173, 365, 691, 965, 1009, 1113, 1531
District of Columbia Bail Agency, Bruce D. Beaudin, Esq., director 29o
District of Columbia Government :
D.C. Corporation Counsel :
Dowd, Michael J., Chief Juvenile Division 1591
Huhn, Nan, Assistant Chief, Juvenile Division 1591
Murphy, C. Francis, Corporation Counsel 1591
D.C. Council :
Hardy, Hon. Willie, Chairperson, The Committee on Public Safety,
District of Columbia Council, accompanied by Barney Shapiro,
staff member; and Mrs. Jean Davis, legislative aide 1340
Jones, Dr. James A., Special Assistant to the Mayor for Youth Oppor-
tunities Services 871
Renshaw, Benjamin H., Executive Director, Office of Criminal Justice
Plans and Analysis 609
Woodward, A. James, Chief, Juvenile Delinquency Section, Youth
Opportunities Services 781
Fairfax County (Va.) :
King, Richard A., chief. Police Department 1305-1319
Public Schools :
Gustafson, Beatrice, coordinator. Division of Pupil Services 756
Morris, Barry, associate superintendent for school services 756
Weiser, F. Robert, assistant superintendent for instructional
services 756
Galiber, Mrs. Yetta W., executive director. Information Center for Handi-
capped Children, Inc 1056
Gude, Hon. Gilbert 2,1709
Hill, Isaac P., director, EFEC Halfway House 418
P'airlawn Citizens Association :
Hart, Rose, president 966
Wallace, Florella, member 966
Metropolitan Police Department :
Cullinane, Maurice J., chief 1113, 1119
Gill, Vernor S., general counsel 1113
Perry, Capt. Ronald, chief, the Financial Management Branch 1113
Metropolitan Wa.shington Board of Trade, Clarence Arata, executive vice
president 1009
Metropolitan Washington Council of Governments :
Benson, Allen B., Region IV project manager 1431
Johnson, L. Kirk, project manager. Bicentennial Planning 1431
Kelly. Thomas, acting project manager. Criminal Justice Planning 1431
Touchstone, John E., director of Public Safety 1428,1431
Montgomery County (Md.) :
Mattingly, Marion, chairperson, Montgomery Countv Juvenile Court
Committee "- 1078, 1081
Moore, Hon. Douglas, Jr.. judge, District Court of Maryland, Mont-
gomery County, Sixth District Juvenile Division 125
Public Schools :
Miedema, Dr. Donald, Deputy Superintendent 744, 745
O'Toole, Dr. Thomas J., director, Department of Supplementary
Education and Services 744
Shetterly, Dr. Henry T., director of Pupil Services 744
Sander, Larry, director. Department of Corrections and Rehabilita-
tion, Montgomery County, Md 403
Montgomery County (Md. ) — Continued Page
Watkins, Col. K. W., chief, Montgomery County Police Department 1172
Murphy, I'atrick V., director, the Police Foundation 1327
National Alliance of Businessmen, Ex-Offenders Program :
Armore, John, national director 996
Cooke, Harry, D.C. manager 996
Schatz, William, staff counsel 996
National Council on Crime and Delinquency, Justus Freimund, director
of Action Services 1102
Ousley, Leonard P., president, Capitol Hill Southeast Citizens Association. 988
Police Association of the District of Columbia :
Goldring, Joseph S., president 1356
Ferguson, John T., legislative committee 1356
Prince George's County (Md. ) :
Felegy, Edward M., director of Pupil Services, Prince Georges County
Public Schools 766, 776
Marshall, Arthur A., Jr., Esq., State's Attorney, Prince Georges
County 1600
Nabors, Robert C, supervisor of Pupil Personnel, Prince Georges
County Public Schools 766, 776
Rhodes, John, chief. Prince Georges County, Md. Police Department,
accompanied by Officer Lawrence Schweinsbuk, Research and De-
velopment Division 1284
Superior Court of the District of Columbia :
Alexander, Hon. Harry T., judge 211,220
Belson, Hon. James A., judge 145, 151
Bischoff, John M., principal deputy clerk 35, 72
Greene, Hon. Harold H., chief judge 35
Malech, Arnold M., executive ofiicer 35, 74
Schuman, Alan M., director of Social Services 35, 77
Thompson, Hon. William S., judge 145
Sussman, Prof. Jack, Institute for Studies in Justice and Social Behavior__ 174
Treasury Department :
Corbin, John F., assistant director, Criminal Enforcement 1367
Davis, Rex D., director. Bureau of Alcohol, Tobacco, and Firearms__ 1367
Dessler, Marvin J., chief counsel 1367
Featherstone, James, deputy assistant secretary for enforcement 1350
Peterson, A. Atley, assistant director, Technical and Scientific
Services 1367
U.S. District Court for the District of Columbia :
Chamlee. Donald L., a.ssistant chief of probation, Administrative
Office 311
Jackson, Wayne P., chief, Division of Probation, Administrative
Office 311, 315
Pace, James R., chief, U.S. Probation Office 311
U.S. Park Police:
Housenfluck, Lt. Earl 1397
Wells, Jerry V., chief 1397-1398
U.S. Secret Service, Paul S. Rundle, deputy assistant director. Office of
Protective Forces 1350
MATERIAL SUBMITTED FOR THE RECORD
Alexander. Hon. Harry T., judge, Superior Court of the District of Co-
lumbia, memorandum to GAO re Questionnaire for Judges and Magis-
trates Supplement, dated Feb. 26, 1974 234
Alexandria (Va.) Public Schools:
Demonstration Program of School Security 706
Discipline Report Forms " 815-881
Dropout Summaries 819
Extra-Curricular Activities 795
Federal Programs 820-824
Guidelines for Discipline 798-815
Social Studies Curriculum 825-839
Ameriran Bar Association Studies :
"Expanding Government Job Opportunities for Ex-Offenders" 514-527
"Laws, Licen.ses and the Offender's Right to Work" 528-607
VI
American Bar Association Studies^Continued
Report of the Committee on Federal Legislation of the Judicial Ad- Page
ministration Division 12
Anacostians Concerned for Senior Citizens (ACSC), proposal for multi-
service senior center 970
Belson, Hon. James A., judge, Superior Court of the District of Columbia,
letter dated May 6, 1975 to Chairman Diggs 157
Commission on Accreditation for Corrections :
Correctional agency interest in 374
Membership and description 381
Statement of principles 369
Community Care Service Division, fiscal year 1975 allotment 669
Crime Index Offenses :
Consumer price index on crime 1138
Drugs and crime 1139-1142
Police manpower vs. crime 1127
Tables, January-December 1974 1121-1152
Unemployment and recession 1130-1137
Criminal Justice Coordinating Board, District of Columbia 635
D.C. Bail Agency Recommendation Criteria for Superior Court 298
District of Columbia Government :
D.C. Department of Corrections :
Employment Division Program Information 434
Jackson, Delbert C, director, letter to Chairman Diggs, dated
May 28, 1975 444-513
Statement re training program 429
District of Columbia Public Schools :
Proposed new rules governing student rights and responsibili-
ties 914-920
Pupil absenteeism for all instructional levels 913
Pupils enrolled, number and percent of dropouts 913
Pupil membership in regular day schools by grades, race, sex
and region (1973 and 1974) 841-911
Pupil truancy and percent of truancy based on absenteeism 921
Summary of membership for all school levels 912
Renshaw, Benjamin H., executive director. Office of Criminal Justice
Plans and Analysis, additional material for the record requested
by Chairman Diggs 636-651
Fairlawn (Anacostia) Citizens Association, petition for the conversion
of the Ruppert Home property for community activities 967
Gay Activists Alliance of Washington, statement 1712
General Accounting Office report entitled "Administration of the Criminal
Justice Act by U.S. Courts and the D.C. Superior Court, dated Nov. 21,
1974 85-124
Greene, Hon. Harold H., chief judge, Superior Court of the District of
Columbia, letter to Chairman Diggs, dated June 30, 1975 50
Handicapped Children, Inc., Information Center budget for Lorton
Project 1070
Jackson, Wayne P.. chief. Division of Probation. Administrative Office
of the United States Courts, letter and tables to Chairman Diggs, dated
May 22, 1975, re probation in Federal Courts 331-356
Kansas City Star, article by Nick Thimmesch, entitled "Make Capital
Safe for '7fi." dated May 22, 1975 34
Metropolitan Washington Board of Trade :
Equal Employment Opportunity Survey (1968-73) 1027
Tabulation of shoplifters and shoplifting 1024-25
Metropolitan Washington Council of Governments — Final Report entitled
"Interjurisdictional Crime in the Washington Metropolitan Area"— 1447-1479
Montgomery County (Md.) :
Annual Report (1974) Montgomery County, Md.. Department of
Police 117(5
Moore. Hon. Douglas H., Jr., judge. District Court of Maryland, let-
ter to Chairman Diggs, dated May 19, 1975 140
Public Schools :
Chautauqua School Organization 947
Correspondence 948
VII
Drug alternatives and counseling programs — Educational alter- Page
natives program 959
Memorandum 921
Planning Committee 948
ISecoud Chance Education — Louisville's alternative school pro-
gram 941
Senate Bill No. 1064— By Senator Blount 950
Summary evaluation of KAPS II (Keeping All Pupils in School) __ 921
Time schedule 947
Turned-Off Students get alternative — In the system 944
Working papers — Area IV alternative program for junior high
school students 952
Shure, Hon. Ralph G., chief judge, Sixth Judicial Circuit, letter dated
May 1, 1975, to Chairman Diggs, re criminal justice 362
National Alliance of Businessmen, fiscal year 1975 itemized budget for the
Washington Metropolitan office 1006
Outstanding warrants, telegram and responses thereto, dated May 8, 1975,
from Chairman Diggs 273-294
Prince Georges County Police Department Bicentennial Committee Infor-
mation 1262-1284
Reilly. Hon. Gerard D., chief judge, D.C. Court of Appeals, letter to Cong.
Blester, dated May 22, 1975 32
Speedy Trial Act, memorandum from Hon. Harold H. Greene, chief judge,
Superior Court of the District of Columbia 60
Sussman. Jackwell, article entitled Juvenile Justice : Even-handed or Many-
Handed? 181-195
Telegram re half-way houses, dated May 20, 1975, to Joseph P. Yeldell,
director. Department of Human Resources, and to Delbert C. Jackson,
director, Department of Corrections, with replys thereto, from Chairman
Diggs ____ 985-986
The Guardian (England), article by Simon Winchester, entitled "Kind-
ness is a Poke in the Eye", dated May 14, 1975 1010
The Washington Star :
Article by Corrie M. Anders, entitled "Tough Gun-Use Law is Urged
by Cnllinane," dated June 7, 1975 1325
Article by Winston Groom, entitled "Juvenile .Justice System — Trac-
ing One Case from Crime Through the Courts," dated June 7, 1975__ 1659
Article bv Betty James, entitled "Ex-D.C. Police Aide Suggests a Way
to Cut Kindness Day-Type Violence," dated June 7. 1975 1339
Thompson, Hon. William S.. associate judge, Superior Court of the District
of Columbia, correctionr! to statement 149
U.S. Park Polire. Fxperts from Annual Report. 1974 1401
Washington Bar Association, Ruth E. Hankins, president, statement 1710
Washington Post, article by Eugene L. Mever, entitled "Cost in Area
Shoplifting: $346 Million," dated May 22, 1975 1025
W.Tsbi'ngton Magazine, article entitled. "Yetta Galiber", dated January
1975 1086
Yates. Waverly V., executive director. Bonabond. Inc., reply to questions
submitted by Congress Gude. May 29. 1975 1100
Yeldell, Joseph P.. director, Department of Human Resources, letter to
Chairman Diggs, dated June 2, 1975 985
SUMMARY OF TESTIMONY
Absenteeism in schools 708, 756, 759
Accomplishments (1971-73) 407
Accreditation 373
Adult education 759
Advisory Neighborhood Councils 991
Alcohol, tobacco, and firearms (ATF) 1368
Alcohol program 661, 1075
Allocation of Resources 24
Alternatives — Multiactivity Center 966
Appeals 213, 245, 265, 1256
Appellate Review of Sentencing 28. 68
Arlington (Va.) and the District of Columbia 1291
VIII
Page
Arlington County Police Department 1292
Arrest records 214, 222
Arrests increase 1537
Assigning judges 1626
Assistant U.S. Attorneys Association 1669
Attendance staff ; 712
Automated information service (PROMIS) 1549
Bail 150, 244
Bail Agency :
Case load 1348
Personnel lack 160
Role 297
Staff 305
Supervisions 303, 306
Workload 310
Bail and probation figures 385
Ban on manufacturing 1393
Bar A.ssociation of D.C 1637
Bench warrants 251, 1116, 1535
Bicentennial celebration 1053, 1256, 1258, 1285, 1355
Bicentennial funding 1294, 1435
Bicentennial planning 1421
Bonabond 1091- 1095
Budget for juvenile care 680
Budget for youth 787
Business, Economic and Human Development Bureaus 1022
Calendaring cases 1652
Capitol Hill Southeast 993,994
Career cluster centers 712
Causes of crime 138, 620, 623, 653, 1103, 1105, 1328
Causes of crime increase 9,23,970
Causes of juvenile crime 1066
Cedar Knolls 1656
Chautauqua 749
COG staff — 1434
Combatting illegal gun acquisitions 1376
Commission on accreditations for corrections :
Accreditation to D.C. Department of Corrections 373, 397
Background 367
Development of policy 368
Organization and administration of commission 367
Present activities 371
Committee policy 1658
Communication among criminal justice agencies 1361
Communication with other systems 781
Communications gap 741
Communications in area 1433
Community-based programs 427, 1092
Community care service goals 666
Communitv centers 202
Community involvement 134, 1117. 1258, 1343
Community programs 132, 386, 1320
Community reaction to youth shelters 657
Community release coordinator program 408
Community resistance to halfway houses 423,425
Community response 1088
Community services for students 760
Community treatment programs 199
Compensating victims of crime 1578
Compulsory savings 420
Conditional release violations 161
Contacts with criminal justice .system 790
Conviction rate 1532, 1631
Convictions 1358
Cooperation with other jurisdictions 1171
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Page
Coordinating community resources 669
Coordinating tlie Criminal Justice System 372
398, 413, 630, 633, 664, 680, 1535, 1585
Coordinating witli otlier areas 1117, 1321
Corporal punishment 793
Corrections 1335, 1346, 1435
Corrections budget 46
Corrections-Recidivists 44
Corrections standards 373, 375
Cost of halfway houses 423,427
Cost at halfway house and Lorton 427
Cost of institutional care 410
Costs of crime 1012, 1053
Costs of incarceration 1068
Costs of rehabilitation 1049,1649
Council of Governments 1431
Counseling for delinquency prone 667
Counseling judges 29, 70
Counselors for juveniles 679
Court of Appeals case load 8
Court appointed counsel 1345
Court appointed defense counsel 1341
Court nonjudicial personnel 82
Court procedure for juveniles 134, 135
Court Reform and Criminal Procedures' Act (1970) 7,9,1532,1548
Courts Relationship with Other Agencies 25,67
Crime increases 1102
Crime prevention 54, 134, 1017, 1068
Crime problems 989, 1628
Crime rate in Prince Georges County 1286, 1290
Crime statistics 622, 1106, 1357, 1612, 1617
Crime by ones on release 307
Crimes unreported 1103
Criminal code amendments now 264
Criminal defendants counsel 1706
Criminal justice coordinating boards 309, 1169
Criminal justice planning 1432
Criminal justice system 257, 621, 1084, 1086
Criminal justice system lack 1321, 1323
Criminal justice system statistics 624
Criminal offenses 1432
Crowd control 1426
Curriculum 763
Custodial supervision 26
District of Columbia and Prince Georges County problems 1611
D.C. Bail Agency. Recommendation criteria, for Superior Court 298
Dangerous recidivists 45, 197, 205
Daytime crimes 1287
Dealers 1390
Dealers in the metropolitan area 1390
Decriminalization of felonies 1170
Defense attorneys' compensation 58
Defense counsel 217, 260
Defense counsel compensation 28
Defense counsel for indigents 225
Defense counsel seler'tion 27
Deference to State in dual violations 1579
Deficiencies in District gun laws 1392
Deficiencies in system 43
Department of Human Resources 1648, 1655
Detention facilities 133, 1612
Detention of Federal prisoners (Va.) 15S3
Detention hearing 684
Detention levels 654
Detention on post conviction 11
Detroit's experience with offenders 1021
Page
Differential detention plan 654
Discipline guidelines 695
Discipline lack 1093, 1U9S
Disposition of noncriminal cases 1652
District Attorney, elected or appointed 26, 66
District of Columbia Court Reform and Criminal Procedure Act of 19 <0 7
District of Columbia Jail 383, 1349
District of Columbia survey 1381
District offenders in Virginia 1293
Dropouts 782, 765
Drug abuse 157, 224
Drug Abuse Controlled Substances Act 151
Drug control 1167
Drug distributors 1580
Drug legislation recommended 969
Drug program 721
Drugs 620,
653, 659, 660. 661, 742, 752, 969, 1115, 1164, 1293, 1334, 1343, 1432,
1575, 1611, 1615, 1706
Dual justice 221
Early detection program 778
Economic causes of crime 1013, 1115
Economic conditions 1342
Education 414, 683. 1056
Emergency alarms ;- 1434
Employment 25, 219, 224, 304
Escapes 387
Evaluation of youth programs 687
Exclusionary rule 11, 217
Ex-offender programs 1343
Ex-offender Training Workshops 996
Expenditures 135
Expanding halfway houses 424
Extra-curricular activities 763
P'.xtraditions 1613
Fairlawn Citizens Association 978
Falsification 1375, 1377, 1587
Family support 420
Federal detention facilities 1589
Federal Firearms Laws 1370
Federal gun control requisite 1389
Federal programs 696
Female crime 159S
Financial resources 656
Financing programs 1069
Firearms imported to District 1388
First offenders 203, 266
Flock, Inc 1658
Fourth amendment 223
Fragmented Criminal Justice System 1534
Full-time judges 131
Funding for Youth Services 681. 792
Funds 253, 1285
Funds available 246
Furloughs 386, 1057, 1060. 1065, 1075, 1116
Future actions 43
Future correctional planning 388
Future plans 407
Gambling 1119
Grand jury records 249,259
Greenville project 1387
Group homes : l_l 135
Gun confiscation 1395
Gun control 620,
627, 986, 994, 1017, 1117, 1157, 1160. 1256, 1289, 1294, 1322, 1337,
1338, 1344, 1358, 1366, 1538, 1555, 1586, 1587, 1610, 1613, 1615, 1617,
1620, 1634, 1698
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Gun control Act (1968) 1368,1370
Gun Control Legislation 969, 1161
Gun licensing 1395
Gun registration 1394
Gun regulations recommended 1394
Guns and crime statistics 628
Guns displayed 1373
Guns' effectiveness 1159
Guns in schools 987,1158
Guns' origin in District 1396
H.R. 4286 — Judicial conference 8
H.R. 4287— Additional law clerks 8
Halfway houses 255,
386, 393, 416, 417, 422, 426, 969, 981, 985, 989, 991, 999, 1002, 1075,
1169, 1365
Handguns 212,228,632, 1372
Handicapped persons served 1066
Home detention 57, 1596
Homebound instruction 693
Home rule 1106, 1108
Human kindness celebration 788, 1331
Identifying gun purchasers 139I
Illegal dealer I374
Illegal sales 1375, 1376
Inappropriate legislation 380
Indeterminate sentences 1616
Individual sales 1378
Inmates' contributions 1067
Institutional costs 1080
Integration proljlems 737
Interjurisdictional communication I445
Interjurisdictional crimes 1619
Interstate compact on juveniles 136
Interstate firearms theft program 1379
Jail inmates' reduction 623
Jail population 403
Job Corps program 71,626
Job programs 754
Job training 357, 758
Jobs 1013, 1019
Jobs for ex-offenders 997, 998, 1000, 1002, 1008, 1055
Joint Committee on Criminal Defense Services 1628
Judges 1651
Judges' assignments 1539, 1708
Judicial training 1553
Jury trials for juveniles 1630, 1647
Justice system personnel training 1087
Juvenile arrests 789
Juvenile attitudes 792
Juvenile authorities 751
Juvenile court 197,
202. 737. 779. 1054, 1079. 1080, 1085, 1100, 1556, 1626. 1630, 1645
Juvenile court advisory committee 137
Juvenile court as a special court 256
Juvenile delinquency 45
Juvenile judges rotation 82, 1645, 1646
Juvenile justice 713, 1598
Juvenile Justice and Delinquency Prevention Act 1596
Juvenile laws 1089
Juvenile offenders 48,
55. 129, 267, 626, 632. 740, 1066. 1078, 1259, 1359, 1539, 1595. 1612,
1654
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Page
Juvenile problem 1644
Juvenile programs 665, 1289
Juvenile recidivists 663, 664, 686
Juvenile rehabilitation 57, 69
Juvenile services 652, 680
Juvenile status offenses 1627, 1635, 1652
Juvenile violent crimes 1090
Juveniles, confidentiality for 268
KAPS program 749
LBAA 199, 379, 1433, 1444, 1532, 1615
LEAA funds 228, 255, 631, 704, 739, 1096, 1255, 1259, 1322
Landlord-tenant cases 24
Laurel, children's center 658, 660, 662, 682
Law enforcement clearing house 1425
Law Revision Commission 1697, 1701
Legal fees 1634
Legislative proposals 1697
Legislative recommendations 157, 656, 1003, 1092, 1118, 1539, 1584
Leniency to criminals 1014, 1016
Licensing fees 1396
Limited number of dealers 1395
Limiting Federal criminal jurisdiction 1579
Liquor stores 980
Lorton 1584, 1586, 1590
Lorton alternatives 392, 393, 396, 401, 1347, 1365
Lorton capital improvements 384,391, 1075
Lorton population 389
Mandatory sentences 1345, 1555, 1576
Manpower in courts 1168
Maple Glen facility 1653
Mark Twain School 750, 755
Marshals 67, 217
Methadone i 248
Metro security 1162, 1165, 1261, 1294, 1305, 1336, 1431, 1589
Minor offenders :. 44
Misdemeanor cases 1698
Misdemeanor dispositions 1538
Misdemeanor trials 1707
Montgomery County Corrections Department 403
Montgomery County model learning center 404
Montgomery County programs recommended 1084
Mutual aid agreements 1436
Mutual Security Act of 1954 1372
National Airport jurisdiction 1589
National Alliance of Businessmen 997, 1001
National associations in Washington 1013, 1023
National Conference of Christians and Jews 696
National Council on Crime and Delinquency 1105
National standards 376, 378
Need for more judges 1548
Needs of the criminal justice system 131
Noncriminal offenses 203
Nonresident defendants 1424
Oak Hill facility 684, 1649
Occupational rehabilitation ' 56
Office of Criminal Justice Plans and Analvsis 617
Omnibus Crime and Safe Streets Act (1968) 1372
Oppose separate juvenile court 1597
Other needed code revisions 1699
Overscheduling cases 1651
Overtime for courts 1424
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Parent-Student counseling 710
Park Police aides 1423
Park Police manpower 1426
Park Police minorities 1427
Park for sports 978
Parking 990, 995
Parole 158, 1345, 1534
Parole or probation revocation 11
Pennsylvaina gun law 1383
Personnel in job training workshops 1003
Pleas 245
Plea bargaining 226, 246, 1163, 1168, 1362
Police 204, 214, 254, 993
Police and juveniles 196
Police Community Relations 992, 995
Police Foundation 1320
Police improvements 1329
Police in court 1161, 1166, 1287, 1359
Police manpower and crime 1114, 1116, 1165, 1366
Police on beat 970,1342
Police overtime 1423
Police, prosecution, court process 43
Police recruiting 1289
Police residency 1363
Preindictment diversion program 46
Prep clubs 1054
Pre-release programs 1000
Pre-sentence investigations 249
Pretrial detention 408, 1094, 1098, 1341
Pretrial release 10,409, 1093
Prevention of crime 653
Prevention programs 196, 655
Preventive detention 159, 223, 243, 256, 307, 1162, 1551
Prince Georges County 1284
Prince Georges County, crime in 1286, 1290
Priorities needed in crime attack 1575, 1580
Priority services for juvenile offenders 81
Prisoner housing crisis 1576
Prisons 268, 1057
Probation 132, 151, 158, 216, 1537
Probation and parole problems 329
Probation and parole violations 162, 249, 360
Probation officers 359
Program 404
Program evaluation 764
Prosecuting attorneys 1598
Prosecutors' assignments 1708
Prosecutor's office, another 1700, 1702
Prosecutors 215
Prostitution 1705
Public defender service 248, 270
Ratio of probation officers to probationers 81
Recidivism 1080,1288
Recidivists 10, 22, 48, 305, 386, 394, 396, 422, 1059, 1115
Recidivists 1534, 1536, 1574, 1613
Recidivists' sentencing 56
Recommendations 619, 1060
Recommendations of President's Crime Commission 658
Recreational center programs 1083'
Recruitment of minorities 1337
XIV
Page
Referral services 667
Regional needs 1320
Rehabilitation 266, 268, 357, 399, 417, 1058
Relations with other jurisdictions 158
Release conditions 302
Release for recidivists 304
Release revocations 415
Remedies 1078
Report of the Committee on Federal Legislation 12
Residency 257
Responsibilities recommended 1014
Robert L. Jones Case 1077
Rotation of judges 66
Rules for Home Detention program 672
Salaries 216
"Saturday Night Specials" 1385, 1392
School and Criminal Justice Systems 777
School, compulsory guidance 776
School-Court-Probation counselor 759
School participation in Criminal Justice System 737
School priorities 705
School, secondary occupational center 694
School situation 201
School suspensions 757
School/work programs 685, 758
Schools 132,219,252,358, 1079,1655
Schools, compulsory attendance 694, 708, 761, 776
Schools, criminal incidents in 736, 741
Schools, discipline in 707,989
Scliools, early detection program 778
Schools, programs in 1159
Schools, security of 735, 739, 780, 789
Security programs 1054
Senior Citizen Center 968
Sentencing 71, 251. 358, 381, 1395, 1548, 1552, 1575,
1585, 1588, 1616, 1617, 1618, 1631, 170«
Sentencing comparisons 1600
Sentencing for crimes with weapons 56
Sentencing review 69, 1554, 1577, 1613, 1633
Sentencing under Gun Control Act (1968) 1590
Separate juvenile court 1614
Shelter home programs 137
Sheriff for the District 1167
Shoplifting and bad check losses 1012, 1014, 1015, 1016, 1018, 1020
Social studies curriculum 697
Sources of guns 1374
Smuggling 1375
Special education 758
Special projects and activities 406
Speedy trials 212, 1094, 1097, 1099, 1358, 1577, 1616
Staffing 254
Standards 631
State laws 1383
Statistical communications gap 384
Statistical lacks 396
Statistical studies 665
Statistics of home detention program 673
XV
Page
Statistics required 385
Status offenders 1090
Street academies 791
Street crimes 1357
Street law programs 720
Street lights 994
Student drop outs 711, 756
Student employment 720
Student resource centers 749
Subpoening nonresident witnesses 159
Subsidize police cost 1292
Success of programs 654
Success rate 419
Superintendent of schools issue 713, 743
Taxi problem. -. 980
Time element in case dispositions 43, 58
Time from arrest to appeal 29
Tourist business 1013
Traffic 1425
Training programs in Lorton 420
Training workshops 998
Treatment centers 133
Treatment plans 410
Trespassers 761
Trial periods 264
Trials 218
Truancv 83, 200, 692, 706, 709, 712, 715, 717,
718, 720, 747, 757, 762, 778, 779, 1257
Types of learning programs 405
u!s. Court of Appeals for D.C 227
r.S. Secret Service 1350
I'pper world criminals 1059
Unemployment 1092, 1287, 1293
Vandalism 736, 750, 760
Vandalism in schools 705
Victimless crime 44,270,302, 1118,1170,1323,1361,1704
Victims of crime 1322
Virginia Gun law 1384
Visiting program 376
Visitor information dissemination 1424
Vocational programs 709, 758, 1079
Vocational rehabilitation 652
Vocational training 419, 687
AVashington Metropolitan area 1382
Watergate effects 1293
Witnesses 1540, 1550, 1577, 1584, 1699
Women's detention facilities 1342
Worl< release program 411, 1058
Young adult offenders 302
Youth Assistance Service Centers 790
Youtli Corrections Act ^ 84, 1536, 1657
Youth Group Homes — 681
Youth offenders 1255. 1320
Youth Programs 54, 984
Youth Services Bureau 196
Youth shelters 660
Y'outh shelters community based — 655
XVI
APPENDIX
Report on Criminal Defense Services in the District of Columbia — By the
Joint Committee of the Judicial Conference of the D.C. Circuit and the Page
D.C. Bar (unified) 1717
I. Administration of the Criminal Justice Acts 1730
II. Role of the Public Defender Service 1820
III. Quality of Representation 1838
Appendices :
A. Judicial Conference Resolutions 1856
B. Federal Criminal Justice Act, 18 U.S.C. Section 3006A 1858
C. D.C. Criminal Justice Act, D.C. Code, Section 11-2601 (1974) 1862
D. Public Defender Service statute, D.C. Code, Section 2221 1866
E. Memorandum on Standards of Effective Representation 1870
F. Interview Questionnaires 1887
The Law and The Administration of Justice in the District of Columbia — 1904
The News Media and the Washington, D.C. Courts — Some Suggestions
for Bridging the Communications Gap 1927-1978
Administration of the Criminal Justice Act 1979
Criminal Law Reform in the District of Columbia : An Assessment of Needs
and Direction --- 2018
Law Enforcement Assistance Administration, Charles R. Work, deputy
administrator for administration, letter and attachments, dated July 7,
1975 to Chairman Diggs 2068
Index nil, 2072
ADMINISTRATION OF CRIMINAL JUSTICE
TUESDAY, MAY 6, 1975
House of Represextatives,
Committee on the District of Columbia,
Washington^ B.C.
Tlie coniinittee mot, piirsimnt to notice, at 0:30 a.m., in room 1310,
Lonoworth House Otiice Building, Hon. Charles C. Diggs, Jr. (chair-
man) presiding.
Present : Representatives Diggs (presiding) ; Mann, chairman of
Judiciary Sui)conunittee ; and Fraser: Delegate Fauntroy; Repre-
sentatives ^NFazzoli. Harris. Dan Daniel, Xowak, Sharp, Gude, Blester,
Railsback. Robei't Daniel, and Whalen.
Also present: Robert B. Washington, Jr., chief counsel; James T.
Clark, legislative counsel: Daniel Freeman, assistant counsel; Mark
Matins, minority counsel ; and James Christian, deputy minority
counsel.
STATEMENT OF CHAIRMAN DIGGS
The Chairmax. The committee will come to order.
Our hearings this morning are the first in a series of oversight and
review hearings on the administration of criminal justice in the na-
tional capital area. They are called in accordance with our responsi-
bility, as we perceive it, to review the administration, application, and
execution of laws and to identify and assess conditions and trends that
mi'jlit require future legislative action. This assessment includes the
impact of, and alternatives to, present programs, particularly those
that have and those that have not been working well.
One of the major reasons for our involvement in this area grows
out of the fact that Congress has retained exclusive authority over the
composition, jurisdiction, and structure of the local courts in the Dis-
trict Tiie home rule legislation also limits the authority of the Council
to change the District's criminal laws until January 2,' 1977.
All too f i'e(|uen.tly criminal justice is expressed in terms of the rela-
tionship of the accused and the police. We do not believe our review
can be limited to these components. The criminal justice system em-
braces judges, court personnel, correction leaders, police, prosecutors,
scholars, the organized bar associations, victims, and the community at
large.
Anv examination which does not involve the range of participants
I just described may well be focusing too narrowly.
The questions we face today are a national phenomenon. They are
not restricted to our uil)an communities. It has recently been reported
(1)
52-587 O - 75 - pt. 1 - 2
that the rise in crime is today increasing more rapidly in our suburban
areas than in our urban centers. We are also experiencing increases in
white-collar crime.
So, these hearings will question and test the validity of assumptions
in this general field to ascertain whether some programs and policies
should be upgraded, modified, or perhaps discarded.
Our witnesses today, who \\ill be sharing their information and
ideas and techniques with us, will address the operation and admin-
istration of our local courts. In many ways the courts are the most
visible elements of the system. The courts must provide a process of
unquestioned integrity and competence. It must also exhibit a concern
for individual lights and freedoms and a thorough and deliberative
approach in settling all matters. Obviously, to fulfill its mission, the
court's process must be efiective, eflicient, and current in management
methods.
And obviously, to carry that out, quality judges are not the only
important factor in the court process ; court personnel must be properly
selected and reflect the community they serve.
Thus, in looking at the court system, we must also consider salary
and retirement system, prestige, opportunities to participate in crea-
tive change, and security. Quality judicial personnel is essential to any
meaningful system of criminal justice.
STATEMENT OF REPRESENTATIVE GILBERT GUDE
Mr. GuDE. Thank you, Mr. Chairman. This morning we are em-
barking on what appears to be a most useful and worthwhile under-
taking: a comprehensive review of the administration of criminal
justice in the Washington metropolitan area. These hearings are im-
portant to every man, woman, and child in this area — all of whom run
the risk of being hurt or killed by criminal activity that plagues
modern urban areas. It is appropriate for this committee to take a
close look at the area's criminal justice system. We must identify what
can be done to maintain a high level of effectiveness where we find it
and identify and implement what should be done to improve those
parts of the system in need of improvement.
Mr. Chairman, I am sure these oversight hearings are a well-intended
inquiry as to what can be done to make the District's criminal justice
system more effective. In this critical time of questioning and chal-
lenge, I think our inquiry will reveal that our Nation's Capital does
not stand apart from the rest of America's cities as having some iden-
tifiable problems present in its criminal justice system. We should not
lose sight of the conscientious efforts which have been made and are
still being made by many dedicated public servants who are a part
of the criminal justice system. In addition, during the course of these
hearings, wo must be mindful of the fact that the newly elected Dis-
trict of Columbia government and personnel of the District's criminal
justice system are laboring with antiquated detention structures which
they have inherited as a legacy from what can best be characterized
as a bygone era.
In liarinony with the stated purposes of those hearings, we are aware
of the continued need for arrest and trial with deliberate speed to pro-
tect the Irtw-abidino- cili/en. But mpaninirfiil rehabilitation is our
ovorwhelininii' neetl when we realize that it is still true that a substan-
tial number of our adult otl'enders have a prior record of juvenile
offenses. So, in particular, I look forward to hearing from the wit-
nesses to o-uide us in combatino- this hi<>-h level of recidi^•ism.
Another concern on which 1 hope we will be enlightened by these
hearings is just what can and is being done by our criminal justice
system as a response to the problems assocated with youthful offenders.
I think all of us would agree that it is most crucial that we attempt to
sohe the i)roblems of youthful offenders both from the standpoint
of the ultimate benefit to society at large and their own future
development.
our hearings will proA'ide us very useful information, which w'e can
use to make inore effective the adminstration of criminal justice in the
metropolitan area. Finally, it is my hope that these oversight hear-
ings by the full committee can help set the tone for future exchanges
between this committee, the suburban Maryland and Virginia juris-
dictions, and the District Government. For it is essential that the Con-
gress, the suburban jurisdictions, and the District work together in
partnership if we are to have a National Capital of which all of us can
be proud.
The CiiAiRMAx. We ha^-e as our lead-oft' witness this morning the
chief judcfe of the Court of Appeals of the District of Columbia,
Hon. Gerard D. Reilly.
Judge Reilly. you have a prepared statement and you may step to
the witness chair.
STATEMENT OF THE HONORABLE GERARD D. REILLY, CHIEF
JUDGE, DISTRICT OF COLUMBIA COURT OF APPEALS
Judge Reilly. Thank you.
The CiiAiRMAx. It is my understanding that you might prefer to
summarize your statement and then go right into the questions.
Judge Reilly. Yes ; since it is rather long, Mr. Chairman.
The CiiATRMAx. AVithout objection, the full written statement of
Judge Reilly will be entered into the record at this point and, Judge
Reilly. you may proceed with your summary.
[The printed statement of Judge Gerard Reilly follows :]
Statement of the Honorable Gerard D. Reilly, Chief Judge, District of
Columbia Court of Appeals
In accepting your invitation to appear here today. I should like on behalf of the
courts to thank the Committee for its continued interest and concern with the
administration of justice in the District of Columbia. As more than four years
Imve now elapsed since the effective date (Feliruary 1, 1971) of that far-reach-
ing piece of legislation — the D.C. Court Reform and Criminal Procedure Act of
1!^"^ — *^his is an appropriate time to review what has been accomplished under
that statute.
THE DISTRICT OF COLUMBIA COURT REFORM AND CRIMINAL PROCEDURE ACT OF 19T0
As you will recall, this Act was passed l)y Congress in 1970, after studies by
this Committpo whidi disolnsed a steady and alarming increase in the number
of serious street crimes in the District — murder, rape, robbery, burglary — the in-
ability of the United States District Court because of its congested calendars
to bring such cases to trial promptly, and the danger posed to society by the fact
that hundreds of persons indicted for such felonies were at large because of the
liberal provisions of the Bail Reform Act of 19(>6. The objective of the Act was
to correct these conditions. The federal trial courts were relieved of much of
their burden by transferring to the Superior Court, formerly the Court of Gen-
eral 8essi(jns, jurisdiction over all offenses including felonies, defined in the
District of Columbia Code. The Superior Court was also given jurisdiction over
probate and civil litigation arising under the common law or statutes of the
District, irrespective of the amount in controversy. The provisions of the Bail
Reform Act with respect to pretrial release of persons charged with local crimes
were tightened to some extent and tightened stringently with respect to postcon-
viction release pending appeal. The new Act also made important amendments
in the tield of criminal procedure, and elevated the position of the D.C. Court
of Appeals to that of a court of last resort on challenged judgments of the
Superior Court and decisions of local administrative agencies, subject only to
review by the United States Supreme Court. Prior thereto, orders of our court
could be reviewed in the U.S. Court of Appeals for this circuit on application for
leave to appeal.
COURT OF APPEALS CASELOAD
With this added jurisdiction, the number of criminal appeals filed in our
court over the four-year period has more than tripled — from 193 in fiscal year
19't0 to 670 in fiscal year 1974, while appeals in civil cases jumped from 178 to
404 in the corresponding years. Thus in fiscal 1974, our total caseload amounted
to 1,074 and as the trend is continuing, we expect some 1,200 filings before this
fiscal year ends.
At this point, I should like to draw to the attention of the Committee and to
request favorable consideration of two bills vitally affecting the District of
Columbia court system, which Chairman Diggs has introduced at our request,
H.R. 4287 and H.R. 4286.
H.R. 4 2 87 ADDITIONAL LAW CLERKS
H.R. 4287 is intended to assist our court in its efforts to keep abreast of this
expanding caseload by authorizing each of the appellate judges to appoint an
additional law clerk. Under the Act, each associate judge may have one, and the
chief judge, two. Favorable action on this bill by Congress would place our
court on a par with the Federal Court of Ai)peals for this circuit so far as the
number of law clerks allotted to each judge is concerned as the caseloads of
both courts is approximately the same.
Recognizing the danger of our court's becoming swamped with a hopeless back-
log of undecided cases, the Law Enforcement Assistance Administration gave the
court a grant last fall which permitted the assignment of an additional law-
clerk to each judge to assist him in the research incident to preparation of
opinions on criminal cases on his calendar. It is the consensus of the court that
such assistance has signficantly expedited the disposition of criminal appeals. As
the grant expires next Xovember, however, the need for legislation to enable the
court to retain this complement of law clerks permanently is a compelling one.
H.R. 4 2 86 JUDICIAL CONFERENCE
H.R. 4286 is a bill patterned after a provision in the United States Judicial
Code (28 U.S.C. § 333) which would direct our court to conduct the same kind
of annual judicial conference which the courts of appeal in the various federal
circuits now hold. Such conferences, attended by all appellate and trial judges
of the circuit, are conducted under rules providing that members of the bar in-
vited are actual participants, with equal voting rights, and are thus expected to
bring to the attention of the courts whatever matters of criticism they have found
to exist.
Until the federal courts here were divested of jurisdiction over purely Dis-
trict of Columbia matters — such jurisdiction lieing transferred to the Superior
Court and the D.C. Court of Appeals by the District of Columliia Court Reform
and Criminal Procedure Act of 1970 — the annual judicial conference of this cir-
cuit served a dual purpose. Frequently discussions at such conferences among
members of the bar and the appellate and trial judges in attendance resulted in
the appointment of study committees in areas of District of Columbia law in which
it was felt that reform was needed. Where such reports in particular fields were
then threshed out in ensuing conferences and gained widespread acceptance by
tlu> conferees, these reports often bore fruit in the form of Congressional
aiuendiuents to the District of Columbia Code or in amendments to rules of the
courts.
Although the U.S. Court of Appeals for this circuit has and will continue to
hold annual I'udicial conferences, the scope of those conferences is limited by
•-•S U.S.C. § 333 to "the business of the courts" of the circuit, i.e., the Federal
Court of Appeals itself and the U.S. District Court. As this excludes by impli-
cation the business of this court and our Superior Court, enactment of the
proposed bill would till this gap
BENEFITS OF 1970 ACT
I return now to the subject of your inquiry. During the first two or three years
the lltTO Act was in elTect, its operation seemed to fulfill the hopes of its sponsors.
The Superior Court, with its enlarged complement of judges, made enormous
strides in the di.spatch of its business, cleaning up a huge backlog of ca.ses which
had been awaiting trial in the old Juvenile Court, and disposing of felony ca.ses in
an average time of two months ; misdemeanor and juvenile cases in about half
that time. It was also able to speed up the civil calendar so as to provide jury
trials seven mouths after suit was commenced, and nonjury trials in 10 weeks.
Meanwhile, despite the dramatic increase in the volume of criminal appeals, our
court, by giving priority to cases where defendants were actually incarcerated,
and interlocutory appeals by the government on suppression orders, contributed
to expeditious final disposition of criminal matters.
This improvement in the judicial process had an apparent impact on criminal
activity in the District. During the first two years the new court system was
fully in effect, statistics compiled and relea.sed by the Metropolitan Police De-
partment disclosed that the niimber of reported street crimes fell off by about 10
percent — a marked contrast to the situation in comparable urban areas in other
parts of the nation. Unfortunately this encouraging trend was reversed last year
according to figures from the same source disclosing that the commi.s.sion of
serious crimes in this vicinity is very much on the rise again.
CAUSES OF CRIME INCREASE
Plainly, a major object of these hearings is to ascertain the cau.se or causes
of this phenomenon, with a view to developing legislative remedies. I do not pre-
tend to have the answer, but I doubt very much that the current national eco-
nomic recession which began about a year ago provides an explanation, even
though I recognize that the vast majority of street crimes are committed by
youn men who are not gainfully employed.
For one thing, those of us who lived through the Depression, when unem-
ployment became as high as 20 percent and the economic hardship to the laid-
off worker was not alleviated by unemployment compensation or welfare, crime
statistics dropped, and did not ri.se dramatically again until the affluent period
of the late ID.'iO's and li»GO"s. ^lore importantly, since the federal government
is to this area what the automobile industry is to Detroit or the tire industry
to Akron, viz, the principal employer — this metropolitan area has been spared
the mass layoffs with which the manufacturing centers have been confronted.
It is true that even here, large numbers of young people coming out of school
are listed as unemployed, yet any perusal of the "help wanted" columns in the
local papers reveals no dearth of job openings for rudimentary clerical skills,
to say nothing of such occupations as car washers, restaurant workers, hou.se
and lawn maintenance men.
RECIDIVISTS
In my opinion, a more relevant source of inquiry might be into the high
incidence of what are popularly called recidivist crimes. P^ach day the Metro-
politan Police Department prepares a list entitled "Individuals with Offender
Status . . . Rearrested [the iirevious day]."' Such list, varying approximately
each day from 1;") to 30 names, is broken into different categories — persons on
probation, on parole, and in lialfway houses; persons awaiting trial but released
on surety bonds or on personal recognizance — the last being an important
category.
Obviously this list, being limited to persons rearrested — and arrest amount-
ing to considerably less than half the offen.ses reported on any given day —
many of tho street crimes with respect to which no arn-^ts have been made,
also must liave been committeed by persons in "offender status". The police
estimate that crimes by repeaters (presumably including the 400 wanted on
felony bench warrants) ^ account for 25% of the serious offenses reported on
any typical day.
There has been a tendency in some quarters to blame the local courts for
the high rate of crime attributable to persons who obtained pretrail release
on personal recognizance, i.e., cases in which neither surety bonds nor cash
was required as a condition of release. In my view, such criticisms are unwar-
ranted. Despite the controversey on the floor of the House and Senate over
the inclusion in the 1970 bill of provision placing some restrictions on the
Bail Reform Act — a controversey second in bitterness only to the inclusion
of the new repealed "no-knock section" — gave judicial officers presiding over
arraignments very little discretion in denying pretrial release.
PRETTRIAL RELEASE
The Bail Reform Act prevented the setting of high bond in noncapital cases
unless there was some showing that the person charged would not appear for
trial. This made it virtually impossible to impose financial conditions for bail
unless the arrestee had a record of flight to avoid prosecution or prior failure
to appear at court proceedings. All that the pretrial detention amendments
did (except in cases where the accused was charged with threats to intimi-
date or injure a juror or prospective witness) was to authorize the trial court
to deny release of persons charged with serious crimes if it found that, based
upon a past pattern of behavior, no combination of bail conditions would rea-
sonably assure the safety of the community. Such discretion was also granted
where a crime of violence was charged against a person previously convicted
of such crime, or who was on bail, probation, or release with respect to another
crime of violence. D.C. Code 1973, § 23-1322.
Whenever detention is invoked, the new Act gives the detainee a right to
a speedy hearing in which his counsel can participate, § 23-1322 (c), and a
fight to expedited appeal if the detention order stands, § 23-1324. It has been
held that ex parte representations by the prosecution cannot sustain a detention
order or the setting of financial conditions which cannot be met. Boulmight v.
United States, D.C. App. 305 A.2d 524 (1973). Thus, by reason of the safe-
guards in the statute itself, a trial judge who orders pretrial detention faces
the prospect of reversal imless the record of the hearing upon which such action
is based clearly supports him.
PAROLE OR PROBATION REVOCATION
Insofar as persons on parole or probation are concerned, these cumbersome
procedures could be avoided if there were prompt resort to revocation measures
as soon as a re-arrest occurs. A number of detention orders appealed to our
court would seem to indicate that in many instances the parole authorities
prefer to await the outcome of the ensuing court proceedings rather than step-
ping in immediately with a revocation hearing.
OTHER CONTRIBUTING CRIME CAUSES
Another aspect of this problem which your Committee might well scrutinize
is the practice of permitting unsupervised furloughs of convicted felons before
even their minimum sentence expires, and the frequent assignment of long-term
prisoners to half-way houses, where custodial supervision is minimal, several
months before they are eligible for parole.
DETENTION ON POST CONVICTION
On postconviction detention, the 1970 amendments have been considerably
more effective in removing dangerous criminals from the streets. The Act re-
quires a convicted defendent to make an affirmative showins that he poses no-
damage to the community or is not likely to flee: and if sentenced to a prison
term, there is a substantial probability of reversal of his conviction on appeal.
1 See The Washington Star, April 30, 1975, page B-3.
EXCLUSIONARY RULE
I should like to advert briefly now to one highly controversial facet of the
l)r()liU'in of l;i\v cuforcenK'nt — the criticism directed at the appeUate courts for
beiui;' too ready to reverse convictions if tliey regard some evidence introduced
l)y the prosecution at trial to be the product of overzealous police tactics. As
a result, in a very significant number of cases, defense counsel deem it wise to
begin with a motion to suppress the incriminating evidence — and this can even
include pretrial identilication procedures as well as confessions and admis-
sions — on the ground that such evidence had been illegally obtained. Accordingly,
a successful suppression motion, if sustained on appeal, means that a person
often guilty of the crime for which he is indicted, goes free.
Such application of the exclusionary rule stems from a .series of Supreme
Court decisions — the most notable being Mapp v. Ohio — founded on the thesis
that unless illegally obtained evidence is excluded there is no way of vindi-
cating Fourth Amendment rights. Consequently, a large part of the time con-
sumed by intermediate appellate courts in deciding ci'iminal appeals has to
be devoted to analysis of challenges to the arrest or .seizure, or to the scope of
the warrant on which the seizure is based. In my opinion, some appellate courts
have extended the exclusionary doctrine further than Supreme Court decisions
justify because such key words in the Fourth Amendment as "unreasonable"
and "probable cause" are broad enough to bring into play the individual pre-
dilections of judges. In this connection, I am happy to report that some of our
court's decisions seem to have anticipated the Supreme Court's recent reluctance
to push the exclusionary rule to extreme. For example, where differences existed
between our court and the circuit on such issues as nighttime warrants in
narcotic searches, searches incident to an arrest for traffic violations, and the
exclusion of photographic identification if defendent or his counsel were not
present. Our position on these points was ultimately sustained in Gooding v.
luitcd States. — I'.S.— , !)4 S.Ct. 17S0, 40 L.Ed.2d 2.".0 (1974): RohiusoH v.
J'Hited i<t(itr.9. —U.S.—. 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) ; and Ash v. United
States. 413 U.S. 300 (1973), respectively.
But in the long run. Congress itself should determine what course the courts
should take on the exclusionary rule, after a study of Chief .Justice Burner's
views in Bivens r. Six Unlnioicn Fed. Narcotics Agents, 408 U.S. 388 (1971),
and the report of .Judge Tamm's Committee on Federal Legislation to the Ameri-
can Bar Association on the Beutsen bill.
Judfre Reilly. Mr. Chairman, and members of the Committee, I
should like to express our appreciation on behalf of the courts for your
continued interest and concern with the administration of criminal
justice in the District of Columbia. Inasmuch as 4 years have now
elapsed since the effective date of that far-reaching piece of legislation,
tlie D.C. Court Keform and Criminal Procedure Act of 1970. this is
certainly an appropriate time to review what has been accomplished
under that statute.
DISTRICT OF COLUMBIA COURT REFORM AND CRIMINAL
PROCEDURE ACT OF 1970
As you will recall, that Act originated in this Committee after your
studies had disclosed the steady and alarming increase in the number
of street crimes in the District, and the inability of the U.S. District
Court ill view of its congested calcndai- tc bring such cases to trial
l)romptly. And the committee also correctly concerned itself with
the fact that hundreds of persons indicted for such felonies as murder,
rape, robbeiv and l)urolarv were at large because of the liberal provi-
sions of the Federal Bail Keform Act of 1966.
The objective of the act was to correct these conditions, and in a two-
stage phaseout criminal cases were transferred from the Federal Dis-
8
trict Court to the superior court, which was the successor court to the
old court of general sessions whose jurisdiction up to that time had
been restricted to misdemeanors on the criminal side and to damage
actions under $10,000 on the civil side. The new act also made tlie D.C.
Court of Appeals the last appellate court of resort in the District of
Columbia, so our decisions now are like the decisions of the Federal
Circuit Court of Appeals and are reviewable only by the U.S. Supreme
Court.
COrRT OF APPEALS CASE EOAD
With this added jurisdiction, the number of criminal appeals filed
in our court over the -f-vear period has more than tripled. There were
193 in fiscal year 1970 and for fiscal year 1974, the last year for which
we have full figures, it jumped to 670. The appeals in civil cases over
the corresponding period were from 178 to 404. Thus, in fiscal 1974 our
caseload amounted to 1,074 cases, and as the trend is continuing we
expect something like 1,200 filings before the current fiscal year ends.
If I might at this time draw the attention of the committee, in view
of your interest in the improvements of the machinery of judicial ad-
ministration to two bills which Chairman Diggs introduced at our
request, H.R. 4287 and H.R. 4286.
H.R. 42 8 7 ADDITIONAL LAW CLERKS
The first of these is to assist our court in our efforts to keep abreast
of our expanding caseload by authorizing each of the appellate judges
to appoint an additional law clerk. Tender the act, each judge may now
have one, and the chief judge two. Favorable action by Congress on this
bill would place our court on a par with the Federal Court of Appeals
for this circuit so far as the number of law clerks allotted to each judge
is concerned. It seems to me this would be a very good thing to do since
the caseloads of both courts are approximately the same.
Last November the Law Enforcement Assistance Administration
became concerned with the possibility of insurmountable backlogs in
our court and gave us a year's grant so that we did retain additional
law clerks for each judge to help them in criminal appeals. But this
grant will expire in November, so the need for legislation to enable us
to continue is a compelling one.
H.R. 4 28r. JUDICIAL CONFERENCE
The other bill (H.R. 4286) . pattei-ned after a provision in the United
States Judicial Code, would direct our court to conduct the same kind
of annual judicial conference which the court of appeals in the various
Federal circuits now hold. Such conference would not only be attended
by all of the appellate and trial judges in this jurisdiction, but also
would make invited uiembers of the bar actual participants with equal
voting rights. Such conferences would thus bring attention of the
courts to whatever matters of criticism the bar may find exist.
Until the Federal courts were divested of jurisdiction over purely
D.C. matters, the annual judicial conference of the circuits served a
dual purpose, and a great deal of the reform legislation in this field
has resulted in recommendations of committee studies from those cir-
9
cuit confereiicos. liut now that this juri.-cliction has been transferred
to the Superior Court and to our court, by implication, since those con-
ferences can only deal with the business of those courts, enactment of
(he proposed bill would fill the aap as to I).(\ uiatters,
REXEFITS OF 19 70 ACT
Coming- now to the more direct subject of your in(|uiry during the
lirst -2 or 3 years the 1970 Act was in eli'ect, its operations seemed to
fulfill the hopes of its sponsors. The Superior Court, with its enlarged
comi)lement of judges, made enormous strides in cleaning np the back-
log of cases awaiting trial in the old juvenile conrt and disposed of
the new felony cases transferred to it in an average time of 2 months
for misdemeanors and for juvenile cases in about half that time. It
was also able to speetl up the civil calendar so as to provide jury trials
some months after action was commenced, and for nonjury trials in
10 w^eeks.
Meanwhile, despite the dramatic increase in the volume of criminal
appeals, our courts are giving priority to cases where defendants are
actually incarcerated, and to interlocutory appeals l)y the Government
on suppression orders Avhich contributed somewhat to the expeditious
and final disposition of cases involved in criminal procedures.
It seems that this improvement in judicial process had an apparent
impact on criminal activities in the District, but during the hrst 2 years
that the new court system was fully in effect statistics compiled by the
Metropolitan Police Department disclosed that the number of reported
street crimes fell oil about 10 percent every yeai'. Unfortunately, this
encouraging trend was reversed last year because hgures from the same
sources disclose that the commission of serious crimes in this vicinity
is very mucli on the rise again.
CAUSES OF (RIME INCREASE
Plainly, a major object of these hearings is to ascertain the cause
or causes of this phenomena with a view to developing legislative rem-
edies. I do not pretend to have the answers, but I doubt very nuicfi that
the current national economic recession which began about 1 year ago
provides an explanation, even though I recognize that the great ma-
jority of street crimes are committed by young men who are not gain-
fully employed.
For one thing, those of us who lived through the depression, when
unemployment became as high as 20 percent, and the economic hard-
ship to the laid-off worker was not alleviated by unemployment com-
pensation or public welfare, as it is today, crime statistics actually
dropped during that period and did not rise dramatically again until
the prosperous periods of the late fifties and sixties. More importantl3%
so far as the District of Coluuibia is concerned, this area has not suf-
fered the kind of layoffs which have occurred in Detroit and in other
manufacturing centers, the Federal Government being the main em-
ployer in this area.
It is true that even here, large numbers of young people coming out
of school are listed as unemployed. Yet, it does seem that from the
"Help AVanted" column that there is no lack of job openings for the
10
rudimentary office skills, to say nothinfj of such occupations for the
unskilled as car washers, restaurant workers and house and law
maintenance men.
RECIDIVnSTS
In my opinion, a more relevant source of inquiry might be into the
high incidence of what are popularly called recidivist crimes. Eveiy
day the Metropolitan Police Departinent prepares a list entitled In-
dividuals A\'ith Otiender Status— Kearrested, the previous day. No^y,
this list varies approximately each day from 15 to 30 names and is
broken down into ditierent categories, persons on probation, on parole
and in halfway houses, persons awaiting trial but released on security
bonds, or personal recognizance. The last is an important contributing
factor.
Now, this list being limited to persons actually rearrested and ar-
rests themselves amountii'.g to considerable less than half of the of-
fenses reported to the police in any given day, it is obvious that many
of the street crimes with respect to which no arrests have been made
must also have been committed by persons in so-called offender status.
The police estimate of these crimes by repeaters, presmnably including
the 400 wanted on felony bench warrants, account for perhaps 25 per-
cent of the serious ofienses connnitted here on any typical day.
There has been a tendency in some quarters to blame the local courts
for the high rate of crime attributable to persons who obtained pre-
trial release on ])ersonal recognizance; that is, those cases in which
neither surety bonds nor cash was required as a condition of release.
In my view, this criticism is unwarranted. I remember vividly the
controversy on the floor of the House and Senate over the inclusion
in the 1970 bill of provisions placing some restrictions on the Bail
Reform Act. a controversy second in bitterness only to the inclusion
of the now repealed no knock section. But. these provisions of the
bill eventually emerged and gave judicial officers presiding over ar-
raignments very little discretion in denying pretrial release.
PRETRIAL RFXEASE
The Bail Reform Act itself prevented the setting of high bond in
nonca])ital cases unless there was some showing that tlie person
charged would not appear for trial. This made it virtually impossible
to im])ose financial conditions for bail iiiUess the arrt'stee had a record
of flight to avoid prosecution, or some record of prior failure to ap-
pear at court proceedings.
What the ])retrial and detention amendments did, except in cases
Avhere the accused was charged with threats to intimidate or injure a
juroi- or a prospective witness, Avas to authorize trial clei-ks to deny
the release of ])ersons charged witli serious crimes if it found that
based uj^on a ])ast pattern of bchaNioi' no combination of bail condi-
tions would reasonably assure the safety of the commmiity. Such dis-
cretion was also granted where a ci'ime of A"iolenc(> was charged against
a pei'son previously conxicted or who was on l)ail. probation or re-
lease with respect to another crime of violenct'.
Detention cannot be invoked uidess the T'.S. Attorney requests it,
and when such motions are madi' of the new act jrixes the detainee a
11
v\<zht to a speody hoaiiiTi' in \v]iir]i liis coiiiisol can ])arti('ipate, and
tlu' riiiiit to an expedittMJ appeal it" a detention oihUm- is juranted. It
has been lield by our con it that ex-parte recommendations by the pros-
ecution cannot sustain a detention order or the setting of hifjh finan-
cial conditions. Thus, by i-eason of the safeauai'ds in the statute itself,
a trial judae who orders j)retrial detention faces the prospects of
reversal unless the record of the hearing upon which such action is
based clearly supports him.
PAROLE OR PROBATTOX REVOCATIOX
Insofar as pei'sons already on parole or j^i'obation are concerned,
some of these cumbersome procedures could be avoided if there Avere
prompt resort to revocation measures as soon as a rearrest occurs. A
numbei- of detention orders appealed to our court Avonld seem to in-
dicate that in many instances the parole authorities prefer to await
the outcome of the ensuing court proceeding rather than stepping in
immediately with a revocation hearing.
Another aspect of this problem which your committee might well
scrutini7e is the practice of permitting unsupervised furloughs of
coTivicted felons even before their ininimum sentence expires, and the
frequent assignment of long term prisoners to halfway houses where
custodial supervision is minimal several months before they are even
elicible for parole.
I should point ou*^ that this can be done without any clearance what-
soever from the coui'ts oi- from the sentencing judge.
DETEXTIOX OX' POST COX^VICTIOX^
On post-conviction detention the 1970 amendments have been con-
siderablv moi'e effective in removing dangerous criminals from the
streets. The act re(|uires a convicted defendant to make an affirmative
shoAving that he poses no danger to the community or is not likely to
flee, and if he is sentenced, sentenced to a prison term, he cannot be
released pending appeal unless there is substantial probability of i-e-
versal of his conviction.
EXCLUSIOX-^ARV RILE
I should like to advert bi'iefly now to one highly controversial facet
of the ))roblem of law enforcement, the criticism directed at a]:)pellate
coui'ts for beiiiii' too ready to reverse convictions if they regard some
e\idence introduced by the prosection at trial to be the product of
over zealous police tactics. As a result, in a very significant number
of cases, defense counsel deem it wise to begin with a motion to sup-
press the incriminating e\-idence. and this could even include pretrial
identification procedures as well as confessions and admissions, and
of course, it always included contraband that was discovered in the
course of a search, like narcotics, stolen goods, or a gun. Accordingly,
a successful suppression motion, if sustained on appeal, means that a
person often jifuilty of the crime for Avhich he is indicted goes free.
Such application of the oxclusionarv rule stems from a sei'ies of
Supreme Court decisions, the most notable being Mr//)/) v. Ohio. Those
decisions are founded on the thesis that unless the illejrallv obtained
12
evidence is excluded there is no way of vindicatin<T; fourth amend-
ment rights. Consequently, a laro;e part of tlie time consumed by in-
termediate appellate courts in deciding criminal appeal has to be
devoted to analysis of challenges to the arrest or seizure, or to the
scope of the warrant on which the seizure is based. In my opinion,
some appellate courts have extended the exclusionary doctrine further
than Supreme Court decisions justify, because such key words in the
fourth amendment as unreasonable and probable cause are broad
enough to bring into play the individual predilections of judges.
In this connection, I am happy to report that some of our court's
decisions seem to have anticipated the Supreme Coui't's recent reluc-
tance to push the exclusionary rule to extreme. For example, where
differences existed between our court and the circuit court on such
issues as nighttime warrants in narcotic searches, searches incident to
an arrest for traffic violations, and the exclusion of photogiaphic
identification if the defendant or his counsel were not present. Our
position on these points was ultimatelv sustained in the I".S. Supreme
Court.
But in the long run, Congress itself shoidd determine what course
the courts should take on the exclusionary rule after a study of Chief
Justice Burger's views in Bii'ens v. Sir Unhnovn Federal Xrireofies
Agents, a case handed down in lOTl, and the report of a committee
on federal legislation chaired by Judjre Tamm whicli was presented
to the American Bar Assoc, on the Bentsen bill.
When I submitted copies of my stateuient to the committee T did
not include a copy of this report, but with your i^ermission. ]Mr. Chaii'-
man. I have got some extra copies and slioidd like to present them.
The CiTATRMAx. Without objection, the extra material and docu-
ments will be included.
[The material referred to above follows.]
Attached is the Majority Report of the Committee on Federal Legislation of
the Jndioial Administration Division which was snhmitted to the American Bar
Association in 1973.
It was reprinted at the request of Senator Bentsen in tlie Daily ron.eressional
Record of P'ebruary 15. 19T3. The Record shows that the members of the Com-
mittee concnrrins in the Majority Report were: Chairman Edward A. Tamm,
Associate .Tndae of the T'.S. Court of Apoea's for the District of Colinnhia. Wil-
son Cowan, Chief Judge of the Court of Claims, Judges Gerard D. Reilly and
Frank Q. Nebeker, D.C. Court of Appeals, Judge Howard F. Corcoran of the
T".S. District Court. Judge James A Belson of the Superior ourt. Judge Wil-
liam F. Fay, of the Tax Court, and INIajor General Charles L. Decker, dissent-
ing were: Judge Plomer F. Ferguson of the ^Military Court of Appeals, and
Judge Samuel B. Sterrett.
Report of the Committee on Federal Legislation
S. 26.-)7. 92'1 Cong.. 1st Sess. (1971). which would define and limit the Ex-
clusionary Rule in Federal criminal proceeding.s. luis been referred to the
Committee on Federal Legislation of the Judicial Administration Division for
analysis and review. The Committee supports the underlying purpose and ef-
fort reflected in the Bill to modify the Exclusionary Rule. This report is in-
teniled to give encouragement and direction to an in-depth study of the i)roblems
created by the suiii)ression doctrine.
S. 2C).57 was introduced l)y Senator Lloyd Bentsen in response to a suggestion
by Chief .Tustice Berger in Birois v. Si.r UHkiioim FciJcral Xarcotic'f Agents,
403 T\S. 389 (1971) (dissenting opinion) that Congress develop an alternative to
the Exclusionary Rule. When he introduced the bill, the Senator stated that its
purpose was ". . . to restore some semblance of reason and balance to the rules
13
by which we administer the Fourth Amendment to see that justice is done".
Consr. Rec. S. 15905 (daily ed. Oct. <). 1!»71). Rrietiy stated, S. 2G5T is designed
to lessen the inflexibility of the Exclusionary Rule by perniittins the trial judge
to consider such factors as the extent to which the intrusion is willful, the extent
to which it deviated from sanctioned conduct, and the extent to which it invaded
the privacy of the defendant or in-ejudiced the defendant's ability to defend him-
self. The court would also consider the extent to which the exclusion of evidence
would deter such intrusions in the future and whether the evidence seized
would have been discovered despite the intrusion. If after considering the fore-
going, the Court determines the intrusion to be substantial, the evidence would
then be exc-luded.
S. 2657. as originally drafted, was patterned after a proposal of the presti-
gious American Law Institute. ALI, Model Code of Prc-Arraig)n)icnt Procedure,
Draft Xo. 1, §290.2(2) (Approved May 16, 1972). The bill" was subsequently
amended by creating a new civil remedy for persons whose Fourth Amendment
rights have been abridged. As amended, an aggrieved person would have a cause
of action against the Government and would be entitled to recover actual and
punitive damages in an amount not to exceed $25,000.
After careful considei'ation and for the reasons described below, the Com-
nuttee on Federal Legislation supports the principles which S. 2657 is obviously
intended to serve. The committee strongly favors a thorough legislative inquiry
with a view to improving the provisions of the bill including consideration of
alternative means of controlling police conduct which would not involve the
suppression of otherwise reliable, probative, tangible evidence of guilt.^
THE HISTORICAL DEVELOPMENT OF THE EXCLUSIONARY RULE
In order to better understand the need for some modification of the Exclu-
sionary Rule, a historical review of the development of the suppression doctrine
is necessary. Unfortunately, the factors of time and space will permit only an
abbreviated version.
The starting itoint for any review of the Exclusionary Rule should be the
Fourth Amendment to the United States Constitution. The Fourth Amendment
provides :
"The right of the people to be secure in their persons, houses, papers and
effec-ts, against unreasonable searches and .seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by Oath or aflSrmation,
and particularly describing the place to be searched, and the persons or things
to be .seized."
When viewed in its historical context, it is clear that the Fourth Amendment was
adopted for the specific purpose of prohibiting general search warrants and their
resulting abuses. See generally 2 Story. Constitution of the T^nited States, pp.
647-650 (5th ed. 1891) ; Lasson. History and Development of the Fourth Amcnd-
nwnd of the United States Constitution (1937) : Fraenkel, Concerning Searches
and Seizures. 34 Harv. L. Rev. 361 (1921). The most infamous general warrant
in the colonies was the Writ of Assistance which was neither limited in scope
nor in duration. Under these general warrants, the discretion afforded petty
officials was practically absolute and unlimited. Lasson, supra at 53. .54. In
England, general warrants of this type had been held to be illegal. See Fraenkel,
aupra at p. 363 and cases cited therein. Con.sequently. the adoption of the Fourth
Amendment constituted a reaffirmance of the common law rule which con-
denmed unwarranted intrusions upon personal security, liberty, and private prop-
erty. Storij. .supra at 648.
In the debates concerning the language of the Fourth Amendment, there
appears to have been no discus.sion of the notion of excluding evidence as a
means of controlling official conduct. Lasson, supra at 79-105. Such a remedy
would have l»een meaningle.ss to residents of :Massjichusetts Bay who.se homes
were subjected to extensive but fruitless .searches by custonus house officers
pursuant to writs of assistance. By attacking and prohiliiting the authority which
liermitted unrestrained searches, the procedure would not only be rendered void,
but it would give rise to common law action against the officers. At common law
an unwarranted intrusion into one's private property and personal security gave
1 Spveral comniittpp inpiiiliprs werp of flip vipw Hint tlip civil ipinodlps projiospd In S. 26.57
wonlil most likplv provp in.idpqiintp to riptpr vinlntions of tlip Fourth Aniondirifnt rights,
and thnt tlip ICxclnsionnry KiiIp sliotild not he .ibniidoncd until tlip Ipirislntnrp liad f.-ishlonpd
an altPi-native deterrpnt which could reasonably be expected to prove effective in practice.
14
rise to an action for trespass ; therefore, a search conducted under the authority
of an illegal warrant would not be justified and would constitute an actionable
tort. Entick v. Varrington and Three Other King's Messengers, 19 Howell's State
Trials 1029 (1765).
Boyd V. United States, 116 U.S. 616 (18S5), is generally recognized as the gene-
sis of the Exclusionary Rule. In Boyd, the Court held unconstitutional a for-
feiture procedure which compelled the production of a party's private books and
papers. If the requested recoi-ds were not produced, Uie allegations in the request
as to the contents of the records would be taken as confessed. Noting that an
intimate relationship existed between the Fourth and Fifth Amendments, Justice
Bradley stated :
"* * * and we are further of opinion that a compulsory production of the
private books and papers of the owner of goods sought to be forfeited in such a
suit is compelling him to be a witness against himself within the meaning of
the Fifth Amendment to the Constitution, and is the equivalent of a search and
seizure — and an unreasonable search and seizure — within the meaning of the
Fourth Amendment. Id at 034, 035."
This dictum in Boyd was relied upon by the Court in Weeks v. United States,
232 U.S. 383 (1914) when it adopted the Exclusionary Rule for violations of the
Fourth Amendment. Unlike the compulsory process of the forfeiture proceeding
in Boyd, Weeks involved the warrantless search of the defendant's home and the
seizure of private papers which were subsequently admitted into evidence at
trial. In addition, unlike the exchisionary rule alluded to in Boyd which was
intertwined with the Fifth Amendment, the Exclusionary Rule adopted in Weeks
was not predicated on the Fifth Amendment. Rather, the decision to create an
Exclusionary Rule was founded upon the propcsition that improper police con-
duct should find no sanction in the judgments of the Courts. The Court stated :
"To sanction such proceedings would be to affirm by judicial decision a mani-
fest neglect if not an open defiance of the prohibitions of the Constitution,
intended for the protection of the people against unauthorized action. Id at 394."
Prior to Weeks, it was well established law that the remedy for violations of
the Fourth Amendment did not require the exclusion of evidence, if it was other-
wise competent. Subsequent to Boyd, but prior to Weeks, the Supreme Court
stated :
"The security intended to be guaranteed by the Fourth Amendment against
wrongful search and seizures is designed to prevent violations of private security
in person and property and unlawful invasion of the sanctity of the home of the
citizen by officers of the law% acting under legislative or judicial sanction, and to
give remedy against such usurpations when attempted. But the English, and
nearly all of the American cases have decline to extend this doctrine to the
extent of excluding testimony which has been obtained by such means, if it is
otherwi.se competent. Adams v. New York, 192 U.S. 585, 589 (1904)."
The result of Weeks was the adoption of a rule of absolute exclusion — a rule
which rendered evidence inadmissible regardless of its probative value, the
nature of evidence seized, or the circumstances surrounding the constitutional
violation
The next significant expansion of the Exclusionary Rule came thirty-five years
later when the Supreme Court held that the due process clause of the Fourteenth
Amendment did not require the exclusion in a state criminal proceerling of
evidence obtained by an unreasonable search and .seizure. Wolf v. Colorado,
338 U.S. 25 (1949). In 1961, however, the Supreme Court overruled Wolf and
held that the Exclusionary Ride W'as api)licable to the states thronsrh the due
process clause nf the Fourteenth Anienflnient Mnpp v. Ohio. 30" I".S. 0-<3 (1961).
The foregoing discussion, tracing the develonment of the Exclusionarv Rule,
rai.ses the question of wdiether the Exclusionary Rule is constitutionally
mandated.
IS THE EXCTLUSIONARY RULE CONSTITUTIONALLY MANDATED?
It is an obvious but sometimes forgotten fact that the Constitution nowhere
provides for the exclusion of evidenre obtained in violation of any of its provi-
sions. In fact, due to its I'beral character, it has largely left the details of
enforcement of constitutional rights to legislation. The Constitution states ex-
pressly that "nil legislative powers herein granted shall be vested in a Congress
of the United States". U.S. Const, art. T, § 1. No legislative power, whatever, has
been left to the Supreme Court. There is no room for a judge-made law in the
15
nature of common law, as the Supreme Court itself has recognized. Wheaton v.
Peters, 8 Pet. (33 U.S.) r.'JO, G57-6o8 (1834) ; Eric v. Tompkins, 304 U.S. 64, 78
(1938).
Consequently, where the Supreme Court or a lower Federal court supplied a
ronu'dy in a case where no statutory remedy has been iirovided for by Congress,
that remedy can prevail only luitil ('(ingress. l»y apjiroprlate leiiislation. provides
another remedy and, thus, occupies the Held. In this regard, the history of
immunity statutes is illustrative. For example, the Supreme Court has stated
that the only effective remedy to vindicate Fifth Amendment ri,c:hts of persons
comi)elled to testify would he immunity provisions which "afford absolute im-
munity against future prosecution for the offense to which the question relates".
Coini.s-clnian v. Hitrlioek, 142 U.S. r)47, oSrwSO (1892). In 1970, however, Congress
enacted a statute which did not afford absolute immunity from future pro.secu-
tion but which did provide immunity from the use of compelled testimony and
evidence derived therefrom. IS U.S. Code, § (>002. This statutory provision was
recently upheld by the Supreme Court, Kastiqar v. United States, U.S.
(1972).
Another example in which the Court has recognized that non-judicial regula-
tion of police practices is possible if not desirable can be found in Wade v.
T')iite(l Stnte.<^. .S88 U.S. 218. 239 (1967). There, though a Rule of Exlusion was
applied to uncoimseled identification procedure, the Court acknowledged that
legislative or administrative strictures could cure the defect and make it un-
necessary to u.se suppression of testimony to enforce desired iwlice conduct.
The situation is in no way different when the "remedy" is the Exclusionary
Rule in aid of the Fourth Amendment. In Wolf v. Colorado, 338 U.S. 25 (1949),
the Supreme Court recognized that the Exclusionary Ride is not a command of
rlie Fourth Amendment but a judicially created rule which can be abolished by
Congress. Justice Frankfurter, writing for the Court stated :
"It rthe Exclusionary Rule] was not derived from the explicit requirements of
(lie Fourth Amendment; it was not based on legislation expressing congressional
policy in the enforcement of the Constitution. The decision is a matter of judicial
implication. Id at 28."
.Tustice Black, in a concurring opinion, noted that the Fourth Amendment does not
bar the u.se of evidence unlawfully obtained. With regard to the power of
Congress to legislate in this area. Justice Black stated:
"I agree . . . that the Federal Exclusionai-y Rule is not a command of the
Fourth Amendment but is a judicially created rule of evidence which Congress
might negate. Id at 39-40."
P.rtween 1949 and 19G1, there \Aas no change of the Fourth Amendment. Yet,
in I'.Kil in Mapj) v. Ohio a sharply divided Supreme Court declared that other
remedies were ineffective in securing the protections of the Fourth Amendment,
and based upon the dictates of prior cases, the Court stated that the Exclusionary
Hule ''is an essential part of both the Fourth and Fourteenth Amendments". 367
U.S. 643. 6."')7 (1961). A close reading of that case reveals, however, that only four
of tlie majority concurred in this pronouncement.
Xeirher the Fourth nor the Fourteenth Amendment has ever been changed b.v
the amendment process. Of course, that process, as provided for in Article V of
the Constitution, is the exclusive way to amend the Constitution. As Mr. Justice
Frankfurther stated :
"Xothiiig new can be put into the ('onstitntion except through the amendatory
process, Nothing old can 1><^ taken out without the same process. Vllnian v. United
States, 350 U.S. 422, 428 (1956)."
Under Article III of the Constitution, the Supreme Court is only empowered to
decide cases and controversies between adverse litigants and to determine what
their rights are under the law as it exists at the time of the decision. It follows,
therefore, that the Sujtreme Court has no power whatsoever to add to or sub-
tract from the language of the Constitution. Consequently, the ruling of the
Supreme Court in .1/r//;/; v. Oltio, supra, did not add the Exclusionary Rule to the
Fourth or. the P^nirteenth .\mendment, and does not prevent Congress from
develo])ing an alternative to it by legislation.
For these reason.s, the Committee on Federal Uegislation has concluded that the
Exr-lusionary Rule is not constitutionally mandated and that Congress has the
authority to adojit a legislative alternative to the Exc]usionai-y Rule. Having
concluded that the Exclusionary Rule can lie changed by legislative action, the
next question which ari.ses is: '^Should the Exclusionary Rule be modified?"
16
SHOULD THE EXCLUSION ARY RULE BE MODIEIED?
The Exclusionary Rule has Ions been criticized by jurists and legal scholars and
in recent years the criticism has intensified. The critics claim that the Exclusion-
ary Rule has not only failed to achieve its stated purposes of deterring improper
police conduct and preserving the concept of judicial integrity, but that it has
imposed substantial costs to law enforcement and society.
Indeed, it is common knowledge that in most cases where the Rule is applied
and evidence sui)pressed the accused thereby is afforded complete immunity from
prosecution. Moreover, there are instances where the Exclusionary Rule has been
expanded beyond the criminal law again to produce a re.sult contrary to the truth,
e.g., Powell V. Zuckert, 125 U.S. App. D.C. 55, 366 F.2d 634 (1966).
At this point, a brief review of tlie policy bases for the Exclusionary Rule is
in order. Returning to Weeks v. United States, supra, where the Rule was first
announced, tlie Court refused to admit the unlawfully seized evidence in order
to preserve the integrity of the judicial process. Under this theory, it was
thought that public respect for the judicial process would be eroded if courts en-
tertnined evidi nee which bad been impermissibly acquired. It is generally recog-
nized, that a contrary result has obtained. When a chai-ge is dismissed against
an ob\ ioiisly guilty person because necessary evidence has been suppressed, the
public blames the Court rather than the police. If anything, public confidence in
the judicial sy.stem has been reduced while support of the police has increased.
That there is no continuing vitality to the judicial integrity rationale appears
clear in view of the fact that the Court has long held that tangible evidence ob-
tained by an unreasonable intrusion is admis.sible for impeachment purpo.ses.
W alder v. United States. .347 I'.S. 62 (1953K See also Harris v. New York, 401
U.S. 222 (1971), to the same effect resjiecting an uncounseled statement. More-
over, the principle of judicinl integrity has obviously no relationship to the means
whereby evidence which is introduced in Court is obtained. This is implicitly
recognized by the consistent rejection of attem])ts to suppress tanglible evidence
illegally obtained by private persons. Bnrdeau v. MeBowell, 256 U.S. 465 (1921) ;
Barnes v. United States, 373 F.2d 517 (5th Cr. 1967). The concept of judicial
integrity, however, has now given way to the deterrence justification.
The deterrence theory was first enunciated in Wolf v. Colorado, supra, and
subsequent decisions indicate that deterrence of unwarranted police intrusions
i.s the primary justification for retention of the Rule. Elkiiis v. Ignited States,
864 U.S. 206 (1960) ; Linkletter v. Walker, 381 U.S. 618 (1965).
Under the deterrence theory, it is thought that the police will receive guidance
when evidence is excluded and that this educational process will lead to improved
police conduct. Justice Cardozo was an early critic of this tlieory. Noting that
it is society that is punished, not the police officer. Justice Cardozo once stated :
"The criminal is to go free becau.se becau.se the constal)le has blundered." People
v. Before, 242 X.Y. 13. 21 (1926), cert, denied, 270 U.S. 657 (1926). Profes.sor
Wigmore also (luestioned the wisdom and logic of a rvde which reprimands the
police officer by freeing the law breaker. He noted that "[ojur way of upholding
the Constitution is not to strike at the man who breaks it, but to let off some-
body else who broke something else." 8 Wiamore. Evidence, § 3184, (3d ed. 1940).
More recently, Professor Charles Allen Wright concluded that the Exclusionary
Rule is ineffective as a deterrent because :
1. The only impact of the Rule is on the trial and much law enforcement
activity is carried on without any expectation that it will lead to lu-osecution and
conviction ;
2. the police may neither know nor much care about whether a motion to
exclude the evidence they have found is ultimately granted ; and
3. a police officer wil not be deterred from an illegal search if he does not know
that it is illegal. Wright. IMust the Criminal Go Free if the Constable Blunders?,
50 Texas L. Rev. 736 (April, 1972).
Indeed, in cases where the Exclusionary Rule Is not applied until reversal at the
appellate level or higher so much time passes that the case is usually "cold" to the
police and the decision serves only as another of the nnassimilated "lessons"
which in all probal)ility cannot be applied by police in the future.
It might be observed in connection with the spate of .security frisk cases since
Terr II v. Ohio. 392 U.S. 1 (1968), that the deterrence theory can have and will
have no impact on an officer who, in good faith, fears for his own safety. The
Exclusionary Rule will not ever, nor can it be expected to, defeat the instinct
for survival, which naturally prevails in an officer's mind at the time of any
17
potentially combative or hazardous encounter. An officer can never be expected
in tjood conscience to do other than err on the side of snrvival.
Aiircciiiii' with ihc first pniposiiion, former Chief .Insticc Warren stated in
Tcriji \. OliU), .siipni at 14 (IJHiSI, the Exclnsionary Rule "is. powerless to deter
iiiv;!si(ins of constitutionally guaranteed rights where the police either have no
interest in prosecuting or are willing to forego successful prosecution in the
interest of serving some other goal."
With respect to the second proposition, Chief Justice Burger has noted:
"The presumed educational effect of judicial opinions is also reduced by the
long time lapse — often several years — between ihe original police action and its
final judicial evaluation. Given a policeman's pressing resp(msibilities, it would
lie suri)rising if he ever be -omes aware of the final results after such a delay.
liivcns V. Six rnk>io}rn Federal Xareoties Ayents, supra, at 417."
And as to I'rofessor Wright's third proposition, the Chief Justice also has
stated that :
••rolicemen do not have the time, inclination, or training to read and grasp the
new incidences of the appellate opinions that ultimately define the standards of
conduct they are to follow. The issues that these decisions resolve often admit
of neither easy or obvious answers, as sharply divided courts on what is or
iM not "reasonable" amply demonstrate. Nor can judges, in all candor, forget
that opinions .sometimes lack helpful clarity. Id. at 417."
A rei-ent decision of the Massachusetts Supreme Court expresses this same senti-
ment. After a careful study of the individual opinions in Coolidge v. .A^ch- Hamp-
shire. 405 U.S. 443 (1971), the Massachusetts Court stated:
"Having traveled the length of the high road of the leading Federal judicial
precedence without finding any very helpful signs pointing out the present state
of the law on the subject of warrantless searches of automobiles, we return to
our starting point and make a new start seeking only to determine whether
Officer Hughe.s' search of and seizure from the automobile in this ca.se were
"unreasonable" within the meaning of the Fourth Amendment. Commonwealth v.
Hacfeli, 279 X.E. 2d 915, 920 (Mass. 1972)."
Faced with a similar issue, another Court confessed that only the mind of a
medieval scholastic would be capable of gleaning the true rule concerning search
and seizure of automobiles from the tangles of Supreme Court and Federal Court
of Appeals case law, United States v. Sutton, 341 F. Supp. 320, 322 (W. D. Tenn.
1972).
Those urging retention of the Exclusionary Rule have argued that since the
adoption of the Rule there have been very few egregious cases reported. This
example of "improved" police conduct is attributed directly to the Exclusionary
Rule. Moreover, they argue that this "improvement" in police conduct has not
been at the expense of law enforcement since the number of pleas and convictions
continues to increase. Increase they have, but not in proportion to the increase
in the crime-committing population. The.se retentionists have been severely
undermined by recent empirical data. Dallin Oaks, in his highly regarded study,
Studying the Exclusionary Rule i)i Search and Seizure, 37 U. Chi. L. Rev. (1970),
concluded that the Exclusionary Rule has been ineffective as a deterrent. A
survey of motion practice in Chicago during 1969 revealed that motions to sup-
press were granted in as many as 457o "f the gaml)ling offenses, 33% of the
narcotics offenses, and 24% of the weapons offenses. Oaks, supra, at 688. A
follow-up study to the Oaks' study shows the figures in 1971 to be 24%, 36%,
and 22% respectively. Spiotto, An Empirical Study of the Exclusionary Rule,
April, 1972 (Unpublished study in University of Chicago Law School Library)
(to be published in January issue of Journal of Legal Studies, University of
Chicago Law School). Since conviction usually depends upon the admission of
the tangible evidence seized, dismissals necessarily result where a motion to
suppress has been granted. The.se dismissals respecting obviously guilty defend-
ants are not ever statistics respecting guilty pleas and convictions.
Not only has the Rule failed to achieve its stated purpose, but it has imposed
substantial costs on society in the process. First, the Exclusionary Rule affords
no protection or remedy to innocent persons whose Fonrth Amendment rights
have been infringed. Justice Frankfurter noted that "the exclusion of evidence
is a remedy which directly .serves only to protect those upon whose person or
persons something incriminating has been found". Wolf v. Colorado, supra, at
30-31. Justice Jackson also observed that the Exclusionary Rule, which "protects
one against whom incriminating evidence is discovered, does nothing to protect
52-587 O - 75 - pt. 1 - 3
18
innocent persons who are the victims of illejral but fruitless searches." Irvine v.
California, 347 U.S. 128, 136 (1954). Indeed, the Rule does not even protect a
guilty person if the police or prosecution are willing to forgo prosecution.
Tei-ry v. Ohio, supra.
Next it is clear that the Exclusionary Rule imposes a single, inflexible, and
drastic sanction without regard to the nature, circumstances, or degree of police
misconduct. Whether an honest mistake or outrageous misconduct, the result
is always the same — exclude the evidence even if it means imnuinity from
prosecution. Indeed, in those ca.'ies where a police officer, in a good faith effort
to comply with the law, secures a warrant which is later found to be technically
insufficient, the evidence is excluded and the accused goes free. The evidence
is excluded notwithstanding that the decision to search was made by a judicial
officer and not by a police officer.
It is submitted that there can be no rational basis for applying the same
sanction to an honest mistake and to outrageous misconduct. As Chief Justice
Burger stated :
"Freeing either a tiger or a mouse in a schoolroom is an illegal act, but no
rational person would suggest that these two acts should be punished in the
same way."
***** * *
"I submit that society has at least as much right to expect rationally graded
responses from judges in place of the universal 'capital punishment' we inflict on
all evidence when police error is shown in its acquisition. Bivins v. Six Unknown
Narcotics Agents, supra at 419."
Indeed, in at least two of its landmark decisions in this area the Supreme
Court appears to have left room for a measured approach to the degree of
intrusion by the police. In Mapp v. Ohio, supra, the Court spoke in terms of
"flagrant abuse" of a Fourth Amendment right. Id. at 655. In Terry v. Ohio, supra,
the "traditional responsibility" of courts under the Fourth Amendment was
described as that of guarding against "overliearing" or harassing police conduct.
It is also apparent that the Exclusionaiy Rule deceives the jury and distorts
the fact-finding process by suppressing reliable, probative, and truthful evidence.
Unlike coerced and thus untrustworthy confessions, tangible evidence is reliable
regardless of the manner in which it was seized. Since it is the duty of judges
and jurors to determine the truth, the Exclusionary Rule, by suppressing reliable
and probative evidence, imposes artificial ignorance on the fact finder or forces
him to wear blinders while 'determining" the truth.
Chief Justice Weintraub of the New Jersey Supreme Court summed up this
anomalv when he said :
"Truth and justice are inseparable. A deliberately false judgment debases the
judicial process, and no less so because the false judgment is an acquittal. On
a motion to suppress we deal with evidence of guilt, and the purpose of the
litigant is to conceal that evidence to the end that he will escape conviction
notwithstanding his guilt. Hypothetically. there could be some case in which the
evidence sought to be suppressed would falsely suggest guilt, but a judge would
be short in realism if he did not understand that the evidence he is asked to
suppress is evidence of guilt and that the judgment of not guilty, which will
ensue will likely be false. To justify so serious an insult to the judicial process
some compensating gain should be incontestable. State v. Bisacci, 279 A.2d 675,
676 (N.J. 1971)."
The Exclusionary Rule has needlessly contributed to the problem of delay in
our courts. Time-consuming hearings on motions to sujipress often consume as
much Court time as the trial itself. Spiotto. for example, showed that 34 percent
of the Court's time in Narcotics Court in Chic.Tgo during 1971 was spent on
motions to suppress. Spiotta, An Empirical Studi> of the Exclu.<iionary Rule,
supra, at p. 59. It should be remembered that the function of these hearings is
not to protect the innocent defendant but rather to view the police officer's
conduct in an adversary fashion more approi>riate to determining guilt. With
its time thus consumed, it is little wonder that the courts and the public doubt
the ability of the system to fulfill its principal function of conducting trials in
search of the truth.
The foregoing criticisms suggest that the Exclusionary Rule has not fulfilled
its intended purpose and that the cost to society has been unwarranted. The
immediacy of the need to develop a workable alternative is reflected in the
19
STOwing judicial dissatisfaction with the Rule and the mounting evidence ajrainst
its retention. Judge Carl McCiowan recently stated "in the present climate, one
does not have to declare himself uncomiiruniisingly for or against the Exclusion-
ary Kule to justify an inquiry into feasihle alternatives. Its most devoted ad-
herents may lind themselves whistling in the dark in failing to do so." See
MoGowan, Ride Making and the Police, 70 V. Mich. L. Kev. OHO, (■)74 (1972).
For the foregoing reasons, the Committee on Federal Legislation suggests
that S. 2(>r)7 provides an excellent opportunity for meaningful deliberations and
action aimed at correction of the Exclusionary Kule. To this end the Committee
urges adoption of federal legislation which would eliminate the arbitrary ap-
plication of the Exclusionary Kule and give rise to a rule of reason which takes
into account the degree of intrusion into constitutional areas, the motivation
for such intrusion, and the effect of an order of suppression on the ultimate
determination of guilt. Consideration might be given to imposing strong sanctions
upon obviously unreasonable searches and seizures including administrative or
even criminal proceedings against law officers I'esponsible for such violations.
In such deliberations it may be fruitful to consider virtual elimination of the
Exclusionary Rule from all cases in which a warrant has been secured and
executed in good faith.
It is also the view of the committee that with a federal legislative modification
of the Exclusionary Rule along the lines discus.sed herein the states would like-
wise obtain relief from that rule. It should be remembered that in Mnpp v.
OJiio, supra, the Supreme Court, after passage of forty-seven years since Weeks
v. I'nitcd States, supra, concluded "that all evidence obtained in violation of
the Constitution is, by that same authority, inadmis.sible in a state court." Id.
at G55. (Emphasis added.) The supportive rationale in Mapp was to obtain equal
treatment with the stricture placed on Federal Government. It would seem to
follow, therefore, that a valid federal modification of the Exclusionary Rule
would by force of the Mapp decision permit adoption by the states of a sub-
stantially similar solution to the problem without Supreme Court modification
of the Mapp holding that ". . . [t]he very essence of a healthy federalism
dei)eiids upon the avoidance of needless conflict between state and federal
courts. . . ." Mapp v. Ohio, supra, quoting from Elkins v. United States, 364
U.S. 20(). 221 (1960) (emphasis supplied).
We, a minority of the members of the Committee on Federal Legislation, can-
not agree with the conclusions of the majority and submit herewith our minority
report.
We oppose enactment of Senate Bill 26r)7, 92d Congress, 1st Session, on the
basis of its obvious uneon.stitutionality and the undesirability of eliminating the
rule excluding evidence obtained by means of an unlawful search and seizure.
The Fourth Amendment to the United States Constitution guarantees the
"right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures" and provides for the issuance of
search warrants on'y upon probable cau.se, "supported by oath or affirmation,
and particularly describing the place to be searched, and the persons or things
to lie seized."
This Amendment was adopted in the Bill of Rights as a limitation upon the
power of the T'nited States and similar constitutional provisions are to be found
in most of the States. It arose here not only as a part of our stormy dispiite
with Great Britain over the use of general warrants by colonial officers but
also because of a similar constitutional controversy which had raged in the
^Mother Country.
There, as here, representatives of the executive sought by its prerogative to
break and enter jirivnte dwellings without warrants or probable cause in order
to seize supposed libelous and seditious materials. In condemning the procedures.
Bri*^ish courts declared the King's representatives exercised "arbitrary power,
violatincr Magna Charta, and fattemptedl to destroy the liberty of the Kingdom
... to enter a man's house by virtue of a nameless warrant, in order to procure
evidence, is worse than the Spanish Inquisition: a law under which no English-
man would wish to live an hour: it was a most daring public attack upon the
liberty of the subject." Hurklc v. Money, 2 Wils. 205, 95 English Reprint 768.
20
In 1766, William Pitt eloquently summed up the theory of the judiciary's lim-
italiun un the powers of the Crown, declaring :
"The pourest man may, in his cottage, bid defiance to all the forces of the
Crown, it may be frail; its roof may shake; the wind may blow through it;
the storm may enter ; but the King of iingiand may not enter ; ail his force dares
not cross the threshold of the ruined tenement." [Quoted in 1 Cooley, Constitu-
tional Limitations, p. 299.]
It was this staunch insistence on the rights of an Englishman which led to our
glorious lievolution. As an aftermath, the people determined to protect them-
selves against the arbitrary abuse of Governmental power. Hence, they adopted
the Fourth Amendment to shield their homes against all unreasonable searches,
to keep out the officer representing the Executive, and to insure that he could
not enter except upon a warrant, supported by probable cause, and founded
upon his oath or affirmation.
Experience taught the Supreme Court that nothing sufficed to enforce this
shield of the citizen against his Government but the exclusion of evidence ob-
tained in violation of the Amendment's terms. Beginning with Weeks v United
States, 232 U.S. 383, 34 S Ct 341, 58 L ed 652 U914j, the Court announced
that evidence could no longer be received if it was obtained by means of an un-
lawful search and seizure. Initially, the requirement was imposed as a part of
the Court's supervisory power over the Federal Judicial system. In conformity
to its other decisions expanding the interpretation of the Due Process Clause of
the Fourteenth Amendment, however, it ultimately announced that the rule was
constitutionally mandated and inseparable from the Fourth Amendment. See
Wolf V Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. ed. 1782 (1948) and Mai)j) v
Ohio, 367 U.S. 643, 81 S. Ct. 1684, L. ed. 2d (1961).
Thus, in Mapp, Mr. Justice Clark stated for the Court :
"We hold that all evidence obtained by searches and seizures in violation of
the Constitution is, by that same authority, inadmissible in a state court."
[Mapp V Ohio, supra, at p. 655.]
That principle has been consistently applied by the Supreme Court and other
Federal and State courts since 1961. The language of the Court leaves no doubts
as to the Constitutional basis of the exclusionary rule. It is expUcit. It is plain on
its face. All evidence obtained by a search and seizure "in violation of the Con-
situation is, by that same authority" inadmissible. No conditions are set ; no
limitations are made. If the search violates the Constitution, the evidence can-
not come in.
It is for this reason that the proposed legislation appears unconstitutional.
It purports to set conditions upon the admissibility of evidence before excluding
it, even though it be conceded that the searcli which produced it violated the
Fourth Amendment. Thus, it requires consideration whether the violation of
the defendent's rights was willful, the extent of deviation from "sanctioned
conduct," and the extent to which privacy was invaded.
None of these considerations have ever affected search and seizure. Aside from
the few cases of formal defects in warrants, most unlawful searches deal with
the issue of lack of probable cause to apprehend, to search or to justify issuance
of a warrant. The limitations in Senate Bill 2657 would make these question.? —
the essence of the Fourth Amendment — immaterial so long as the blundering
policeman acted honestly and ignorantly and his conduct did not deviate from
some norm sanctioned by some unknown class. If these inroads are made, what
is to prevent other inroads to be enacted which would entirely repeal the Fourth
Amendment? It also makes the law indefinite, for who wiP ever be able to deter-
mine for the purpose of precedent what reason the trial or appellate judges have
used to decide the admissibility of the evidence. This leads to government by
men and not by law, and the foundation of our law will disappear.
A majority of the Conmiittee imply nevertheless that the exclusion-Tw rule
is not constitutionally mandated as aiiy attempt by the Court to adopt such as a
riile of constitutional dimensions would amount to an impermissible amendment
of our National Charter, beyond the authority of the Justices.
Of course, the Supreme Court cannot amend the Constitution, but It i<? clear
beyond peradventure that it is the highest judicial intepreter of that document.
Its interpretntions breathe life into the Bill of Rights and the various substantive
provisions. That is precisely what it has done in Mnpp v Ohio, supra, and no
more. It has interpreted the Fourth Amendment to require that unlawfully ob-
21
tained evidenco bo excUided from criininal ti-ials. To say that this is an amend-
ment beyond its powers is to disregard Judicial powers of interpretation which
Iiave existed from tlie adoption of the Constitution.
We submit, tlierefore. that Senate Bill 2657 is in violation of the Fourth
Amendment and should lie rejected by the Senate.
II
The (luestion whether there should be an exclusionary rule involves more
philosophical considerations. As noted above and in the majority report, the
l)rohibition against nnrea.sonable searches and seizures is deeply rooted in
Euslish and American constitutional history. "A man's home is his castle," and
our forefathers sought to insure it would remain such by providing the .safe-
guards of the Fourth Amendment. One need only reread Mapp v Ohio, supra, to
know that stating a prohibition against search and seizure is not enough. DoUree
Mapp's prenuses were invaded by police, searched at length, her protests ignored,
and apparently no warrant was ever sought. She is only one of thousands con-
cerning whom the police merely broke and entered, obtained evidence, and ulti-
mate convictions without the slightest regard for the need to apply to a neutral
and detached magistrate who might determine whether probable cause existed
to breacli the citizen's privacy.
It is sometimes urged that we should not concern ourselves with these matters,
for these people are criminals and the evidence .should be used against them. The
logic of such protests is faulty. In search and seizure cases, we see only the
guilty, becau.se some incriminating evidence was found. If the innocent home-
owner is subjected to similar treatment and no evidence is uncovered, the case
never comes to court, and his plight goes unnoticed. The Fourth Amendment does
not protect criminals. It protects all citizens against unwarranted police
intrusions.
But it is said that it is unnecessary to exclude illegally obtained evidence
in order to enforce the protection of the Amendment. In liei; thereof, it is pro-
posed that the victim be allowed to siie for damages.
Federal statutes presently provide criminal penalties for illegal searches and
.seizures. Title 18, United States Code, sections 22.34, 2235. 22,36. There is no
record of any pro.secutions under these enactments. Similarly, some courts have
permitted civil recovery for damages from unwarranted .searches. Hunt v Evans,
10 F 2d 892 (CA DC Cir) (1926) Hearxt v Black, 87 F 2d 68 (CA DC Cir)
(1937). The raft of cases in Federal and State courts solidly establish that,
despite these precedents, illegal searches continue to abound.
^Moreover, if incriminating evidence be found and utilized, what jury is going
to grant civil relief against a police officer, who, under the proposed legislation,
would be but doing his duty? The answer is clear. The proposed substitute is
no way to liandle the problem.
On the other hand, the exclusionary rule works. Policemen are pragmatic.
If they know that evidence produced by an illegal search cannot be used to
make their case, they will not bestir them.selves uselessly to break in upon the
citizen. Its adoption on a national basis in -Mapp v Ohio, supra, has led most
l)rogressive police departments to institute training programs for officers and
to encourage them to seek proper warrants. This is as it should be. Ours is a
country of laws, not men, and the police should be no more licensed to disobey
our highest law — the Constitution — than the malefactors whom they pursue for
violation of lesser commands.
The whole fabric of our judicial process is based upon obedience to the law and
respect for national order. It is encouraged by refusing to permit the exploitation
in judicial proceedings of illegal conduct by those sworn to enforce the law.
That is the es.sence of the exclusionary rule, and that is why it should be left
undisturbed.
As Mr. .Justice Clark said .so well in Mapp v Ohio, supra, at p. 659:
"The criminal goes free, but it is the law that sets him free. Nothing can
destroy a government more quickly than its failure to observe its own laws, or
worse, its disregard of the character of its own existence."
For the stated reasons, we respectfully disagree with the majority report
of the Committee and recommend against enactment of Senate Bill 2657.
Jiidofe Rkili.y. Thank yon, Mv. Chairman.
22
The CiiAiR:\rAx. Without objection also, the gentleman from INIary-
land, the ranking- minority Member, is delayed en route unavoidably
and we have an opening statement from him that without objection
will be entered into the record immediately following my opening
statement.
[The statement of Gilbert Gude appears in the record on page 2
following the chairman's opening statement.]
The Chairman. As was indicated in the call for this meetino;, this
is actually a joint meeting of the full committee and the Subcom-
mittee on the Judiciary. The chairman of the Subcommittee on the
Judiciary is the distinguished gentleman from South Carolina, Mr.
Mann, and T will recognize him now.
INIr. ]Maxx. Thank you, ]Mr. Chairman. Thank you. Judge Reilly.
RECIDIVISTS
I get the distinct impression that you feel tliat the Bail Reform Act
permits the recidivist, and we will accurately use that term, a little
too much leeway as far as being on the streets is concerned. I noticed
in the amendment, and I must confess that I am not familiar with the
precise details of the act. the court has discretion to detain a person
where a crime of violence was chai-ged against a person previously
convicted of such a crime, oi- who was on bail, probation, or release
with respect to another crime of violence. Ts the court's discretion im-
properly used if a person is on bail ])ending trial for another crime of
nonviolence, such as burglary or theft ? It would require I guess a
greater showing than that mere circumstance?
Judges Reili.y. Yes; it would, Mr. Mann. And that is why I think
that the actual administt'ation of the act would be improved if the
parole board in tliesc situations where a man is arrested, without wait-
ing to see whether he is "uiltv of the new crime for which he has been
rearrested, would properly summon him to a revocation hearin<i. and
thus avoid these jiroceedings on ])retrial detention in the courts.
Mr. Manx. AVell. I a,":ree with tliat completely. On the other hand.
I can see wliere tlie ])robation or the parole officer is verv much con-
cerned about the finding of facts |)rior to trial on the alleged offenso.
Judge Kkti,t>t. Yes.
Mr. Maxx. On the othei' hand, he is willing to take the person before
the jud.ofe on some minor misconduct such as a husband-wife ai-gument,
or habitual drunkenness or something of that sort, and it would seem
that he would l)e willing to take him before the judge if the person is
charged with robl)ery, or l)ur<j:larv or something of that sort. The
degree of ])roof. of course, befoi-e the levocation hearing is a matter
that the judge will have to determine. T presume?
Judge TvKiT.rr. AVc^ll. not on a revocation of parole or probahon so
far as actually jirovin.o- the ci'ime is concei'iied. becau-e. vou see. if he
violated the curfew rules of his parole or jiroliation. oi- failed to report
jieriodicallv to his ))roliation oflicei'. or if pnvt of tlie conditions had
l)een his rc]ioitino- regularlv for wliatever job they had found for him,
thev do not need to prove his guilt on this new crime for which he has
been rearrested.
23
Mr. ^NFaxx. It would certainly also be in the discretion of the revoca-
tion jn(l<>e to determine that the person should be detained Avithout
actunliy rovokino; his pi'ior sentence ?
Judtje Kkii.lv. Yes: it woukhsir.
Mr. Manx. Do they do that, as a matter of practice, or is that con-
sidered insensitive?
Jiuliie Kkillv. Well. I think it kinds of varies from judge to judge.
CAUSES OF CRIME IXCREASE
Mr. Maxx. Xow. I know that we are not here to talk philosophy too
much, but you referred to the drop of crime during the depression. I
am wondering if you have detected in your trial experience, as well as
your appellate experience, a diti'erence in attitude on the part of in-
dividuals since the depression insofar as their Government is con-
cerned ? If the (xovernment is not providing them with a certain
condition in life, or taking care of them in adversity, do you not think
that thei-e is a greater tendency to strike back at society now than there
Avas. and Govermnent or law, or the sovereign now than there was say
in the twenties or the thirties?
Judge Reilly. I think that is quite true. Congressman. But of course,
also during the depression there was a great deal of, since the Govern-
ment had never figui'cd very importantly in the economic Mxes of
people before, but you also had a great deal of resentment against the
leaders of industry, and so there was a fair amount of resentment of
what might be called the property classes. Perhaps that might have
been comparable to it. Of course, I have not gotten Iti, of course, such
changes in social factors as the decline in parental discipline, or the
decline in the authoi'ities of the schools and the churches which has
markedly fallen off.
^fr. AFaxx. T find it difhcult to refrain from asking your opinion
about the adequacy of ceitain law enfoirement facilities and agencies
in the District of Golumbia. but I think probably you would prefer not
to comment on those matters.
Judfre I\KiEET. I do have a rathei- high regai-d for our police force.
T think it is one of the best metiopolitan police forces in any great city
in the T'nited States And our F.S. attorney's office has very capable
young lawyeis on its staff. I do not see too much firsthand of the
coi lectioiuil authority, so I prefer not to comment upon some of their
l)olitics.
Mr. ^Iaxx. Thank you. Thank you, Mr. Chairman.
The Chathimax. Mr. Fraser ?
Afi-. Fraser. Xo questions at this time.
The CTrATR:\rAx. Afr. TTai-ris?
Mr. PTarris. Xo questions. Mr. Chairman.
The CFiAiR:\rAx. ^>\v. Sharp?
Mr. Sftarp. Xo questions, ^fr. Chairman. Thank you.
The CiTATRArAX. ^Vfinority Counsel.
AFi-. AF.\TtFTs. Xo nuesf ions at this time. AFr. Chairman.
The CiTAiRAr AX. T will yield to majoi-ity counsel for questions.
]\Fi-. AVashixctox. Thank vou verv much, Mr. Chairman.
24
Judcre Reilly, Judge Greene in his prepared testimony asserts three
principal areas that would substantially increase the etfectiveness of
the criminal justice system, and if you would, I would like for you to
comment on the three recommendations.
ALLOCATION OF RESOURCES
The first one says that the criminal justice system would be more
efficient and eflpective if we had a more favorable allocation of resources,
and he has specific reference to the courts, to the police, to the prosecu-
tors. And he says that at this time he characterizes the time as beinff
very important, and we should not allocate so much of our resources
in the areas of prostitutes, and he is not ar^juinir for a decriminaliza-
tion of prostitution, but he says w^e should not spend as much time in
the area of marihuana, and we should not spend as much time on
corporations who are wronffing consumers throuah illeTal practices.
He talks about a more sensitive and a more propitious allocation of
time of these three agencies. Do you ao-ree with hie comments?
Judire Rf.tlly. "Well, I think considerinfr these fisures which show
how dangerous the streets are, and by the stree^^s I UT^an the terrific
numbers of holdui~)S of shopkee]~)ers and the amount of housebreaking
crimes, to sav nothing; of rape, murder and mup;ging in the streets
themselves, if the police I'esources are limited, certainly this problem
should take prioi-itv over such thinqfs as having a squad to stop
gambling nnd pi'ostitution and mai'ihuana use. T have never felt, how-
ever, that it was the function of the courts to declare or to take a
narrow construction of the statu<^es that deal with so-called victimless
crimes, but I am not sure they ai'e i-eally victimless. But. I would think
that it would be a very appropriate matter for the Congress to deal
with.
LANDLORD-TENANT CASES
Mr. Washington. And in the second point he says w^e should also
reasonablv (>xpect Ix^ttev I'psults in our criminal justice system were
we to transfer uncontested landlord-tenant cases from superior court
to an executiA-e as^ency. His testimony provides that T think last year
there were 116.000 landlord-tenant cases of which only 2.200 resulted
in convictions. And his position is here again, when we talk about allo-
cation of scarce resources we would probably be better served if we
would take those cases and have those remitted to an administrative
agency. Would you aureo with that ?
Judge Reilly. Well, ^h\ Washingion, I think that is a point which
Judge Greene may have more faith in the administrative agencies than
I do. I have been a member of the National Labor Relations Board for
5 years from 1941 to 1946, and my impression is that administi-ative
agencies can easily get much more bogged down than the courts do.
And you also have tliis prolilem : an order of an administrative
agency is not self enforcing, so if it came to getting a writ of execution
for e\icton. you Mould liave to come to court cAeiitually. Similarly,
I suppose the noneviction cases that Judge Greene Avas referring to
where cases were to result in some judo-ment for a computation of rent,
and then the rent was paid or settled before an actual writ of convic-
25
tion, but an actual monetary judjofmont in the long run can only be
enforced by the courts too.
COURTS REI^VTIOXSIIll* WITH OTHER AGENCIES
]\rr. Washixgtox. Judge Keilly, to what extent does your court enjoy
coninumication with othei' segnients and components in the criminal
justice system? By that I mean the police, prosecutors, probation,
l)arole I
Judge l\EiLLY. Well, being an appellate court, not nearly as intimate
a day-to-day coiuiection as the trial courts, so with this single exception
that I am a member, but frequently represented at those meetings by
an associate judge or the deputy clerk, Mrs. Whittaker •
Mr. Wasiiixgtox. Are these monthly meetings?
Judge Reilly. Of the Criminal Justice Coordinating Board that
^Nlavor Washington has established, but outside of that
Mr. Washix'gtox. Is the frequency monthly, yearly ?
Judge Reh.ly. Those are monthly meetings, but I do not have any
periodic contact in a judicial way at all with the corrections author-
ities or the probation people.
Mr. Washix'gtox. Is there a process for a sharing of information
on the year's jirograms with regard to the meetings among the pro-
ponents and among the diiferent parts of the system ? I think as the
cliairman said in his opening statement, too frequently criminal jus-
tice is expressed in terms of the accused and the police, and very often
the victim, but very rarely in terms of the range of participants in the
criminal justice system, to be sure which is very vast, and I guess the
basic question is to what extent is there enough communication and
sharing of ideas amo-^g components in this system in order that it
runs more effectively and more efficiently ?
Judae Kkiley. It is a very good (juestion, Mr. AVashington. Occa-
sionally papers are exchanged, but not on any periodic basis. And it
might l)e more desirable. There is :i very able young man that is the
coordinator of the Board, Mr. Renshaw, but it might be more desirable
that fulh'r memoranda or papers were prepared and cii'culated more
widely among the judges as well as the correction officials and the
U.S. attorney's office.
EMPEOYMEX'T
Mr. Wasiiixotox. Your testimony states in substance that there are
availa1)l(' jobs in the area of clerical work, car washers, restaurant
workers, and house and laAvn maintenance men. My question to you,
.Judge, is how do we get persons who are part of the crimiiuil justice
system, with the badge of conviction or potential conviction, into the
emi)loyment process, into the job market ?
Judge Rkieey. Occasionally .some of the Federal agencies haA'e
actually en^coui-ag(Kl by some partial subsidy employers to hire such
liersons. AVhen I was in private pi-actice. oiie of my clients was the
Martin Maiietta Co.. and they wei-e asked to take over an old factory
here, not foi- making aircraft or missile pai-ts. It was kind of a fui-ni-
ture factoiy as T iccall it. And a (■(.iidition of their (Joveriunent loan
was that they give i)riority to people wlio had been convicted of a
crime, but who showed prospects of ichabilitation.
26
Mr. WAsrnxGTox. Do you think that employers, and by that I mean
both private and public" employers, should be required to the extent
that they can be required to" hire persons who are conditionally
released, whether it is through a pretrial diversion, or probation, or
parole ?
Judge Reilly. Well, I do not know if it should ever be a mandatory
requirement to make employers do it. but I think they should be
encouraged to do so. Mr. Washington.
DISTRICT ATTORNEY, ELECTED OR APPOINTED?
INIr. Wastiixotox. As you know, under the Home Rule Act. citizens
in D.C. now elect a Mayor and IH members of the City Council. Have
you had occasion to give consideration as to whether or not the city
ought to have a local elected district attorney as a prosecutorial arm
in the District ?
Judge Reilly. I have heard it suggested at times, but I think for
the present time it would be a great mistake. Certainly the T^.S.
attorney's office over the years has never been found wanting in its
ability to prosecute effectively. And there is always a danger — I
originally began my practice in Boston — there is always a danger with
an elected district attorney of all sorts of political pressures being
brought to bear on him. And I think one reason that, and I am speak-
ing not just of the District of Columbia but of the Federal courts in
general, I think a great deal, a greater public respect for the Federal
district court prosecutions throughout the country has been because
the U.S. attorne}' gcneially is not an elected officer, and the Attorney
General recommends him to the President for a])pointment as opposed
to recommending someone who does have considerable legal ability,
whereas quite frequently a district attorney might be elected simply
because he is a very popular figure i-ather than because he is an out-
standin<r member of the bar.
Mr. Wasiitxgtox. Would it be any different than they do in Xew
York or some other cities? Let me see if I understand your answei-.
Is it that it is unwise or unjudicious to do it today, or whether you have
some conceptual problems with this question ?
Judire Reilly. Well. I would think if it were ever goiii'v to be done
it would be better that it be taken away from the Federal Government,
that it would be better to have the district attorney appointed by the
Mayor the way the corporation counsel is. rather than being an elected
official.
Mr. Washix'Gtox^. Appointed by the Mayor and subject to Council
confirmation?
Judge Reilly. Something like that.
CUSTODIAL SFPERVISIOX
Mv. Wasiiix(;t<)X. Wliat should ])e the agencv to handle custodial
superAdsion, the function which is handled now by the U.S. marshal ?
Should we have a local ao-ency to handle custodial supervision of
inmates or persons chai'oed witli ci-ime. a local shei-iff's office, if vou
will?
27
Judg:e Keillv. I do not reullv think that it is necessary as long as
the Federal GoAornnuMit has i)(>o]:)le that are trained to do that. I
Avonld think tlie U.S. marshal's office, I would think it would be better
left there.
Mr. Wasiiixgtox. I raise that question because several members of
the local government have from time to time said that there is a prob-
lem. They ai-e generally called AvhcMi there is a disturl)ance in the U.S.
district court, and they have absolutely no authority or control or
much say over what haj^pens. because that is under the purview of
the U.S. marshal's office, and they thought that the changes are likely
to occur in the futnre where they will be called again, and it would
make a lot more sense if this city were to have a local agency, someone
more accountable to the people serving as the supervisor of custodial
care of persons incarcerated.
Judge Reilly. Well, it happens so rarely, things like that, and I
know the incident you are referring to in the Federal court when those
hostages were taken. But I think that was rather phenomenal. We
discovered, for example, in some of the trials in our small courthouse
with respect to security which was required at the Moslem trials, and
the assistance of the U.S. marshal there seemed to be very helpful.
Mr-. Wasiiixgtox. There was an article in the Washington Post
today. Ai-e you familiar with the study relating to counseling for
indigent defendants?
Judge^ Reilly. That just was released yesterday by Mr. Resnick?
Mr. Wasiiixgtox. Yes.
Judge Reilly. I am familiai- with the general lines of approach,
but I regret to say that in prepai-ing for this testimony that his report
just came out yesterday afternoon and I did not get a chance to read it.
DEEEXSE COUNSEL SELECTION
Mr. Washington. Let me ask you. if I may, as Mr. INIann indicated,
a philosophical question. Do you think that defense attornevs ought
to be appointed by judges or by an independent D.C. defender's
agency ?
Judge Reilly. Well. I think that the judges just select them from
a panel. We have just sent out rather elaborate questionnaires to the
bar looking for volunteers, and on this questionnaire we ask them to
list their experience, and the actual mechanics of the roster will be
handled, as it has been in the past, by the Public Defender's office, and
so that generally speaking, unless it is an exceptional case in which a
judge has some particular idea that this is a case where a lawyer of
a particular tyjje of background should handle it, the trial judge
would just go down tlie list. Of course, if he recognizes somebody
that he perhaps tangles with temperamentally or something of that
sort, he would pass him by and go down to somebody else. But insofar
as our court is concerned, generally speaking we try to appoint trial
counsel to handle the matter on appeals because of the savings in
transcript costs, and on the occasions in which we have to deviate
from that because counsel has conflicts of interest, or has some friction
with his client and withdraws, we take them pretty much just in order.
28
DEFENSE COUNSEL COMPENSATION
Mr. Washington. The study recommends paying lawyers $40 an
hour instead of $30 for court appearances and $20 as a ceiling outside
of court. Do you believe that the new sums recommended would
enable lawyers to do a better job for their clients and to attract better
lawyers to this type of work?
Judge Reilly. Well, I think it perhaps would induce more lawyers
to volunteer. I suppose the reason that the $40 figure was selected
rather than the $30 figure was that in the Criminal Justice Act which
was passed 10 years ago, not the District of Columbia act, but the
Federal act which was applicable here until 2 years ago, that was the
figure then, so it was simply adding on kind of an inflation factor.
JSlr. Washington. Fine.
Mr. Chairman, one last question of Judge Reilly.
appellate review of sentencing
If an appellate review of sentencino; were established, would the
court of appeals have the authority to increase or decrease sentences?
Judge Reilly. I know that is an issue that has been very hotly
debated in the bar associations and the law institute. I Avould be very
reluctant on the basis of my own experience ever to recommend that
an appellate court should have the review over sentencing. AYe do
have a rather limited review in that we have to place a sentence that
is within the range of the statutes, and also on this issue of whether
or not a trial judge should have resorted to the Youth Offender Act
rather than the acts describing the penalty for the specific crime. But
aside from that, obviously a trial judge who observed the actual case
of a particular defendant is in a much better position to evaluate him
than the appellate judge who is just looking at the cold record.
Mr. Washington. Thank you very much.
Judge Reilly. Thank you, Mr. Washington.
The Chairman. Mr. Gude ?
Mr. Gude. Thank you, Mv. Chairman.
I regret that I was late in arriving, but Mr. Fauntroy, our colleague,
was having a press conference on voting representation for the District
and I was torn ; I wanted to be there as well as I wanted to be here.
It is my hope that these oversight hearings by the full committee
can help set the tone for future exchanges between this committee,
and the suburban Maryland and Virginia jurisdictions and the
District of Columbia. It is essential that the Congress and the sub-
urban jurisdictions and the District work together if we are going
to lick this problem.
In harmony with the stated purposes of these hearings, we are
aware of the continued need for arrest and trial with deliberate speed
to protect the law-abiding citizen. But meaningful rehabilitation is
our overwhelming need when we realize tliat it is still true that a
substantial number of our adult offenders have prior records of juve-
nile offenses. I look forward in particular, in these meetings, to hear
from the witnesses who may guide us in combating this liigh level of
recidivism.
29
COUNSELING JUDGES
Judge Keilly, to that end I was just wojidering if you could com-
ment as to what extent the judges in our system liere liave adequate
support in so far as counseling goes in arriving at the appropriate
sentences and the appropriate ways to handle the different classes
of offenders according to age, previous criminal records, and their
prospects of rehabilitation? It seems to me this is the most critical
area because we have had great success in developing trials with
deliberate speed, but recidivism is the menace that lurks in the back-
ground.
Judge Reilly. Yes, sir. It is a major problem. So far as the actual
mechanics of that, in preparing our statement, Chief Judge Greene
and I ditl not want to duplicate too much since we are dealing with
such an extensive field, and his statement does touch on that, so I
think that he would be more competent to answer that question than
I would, ]Mr. Gude.
Mr. Gude. Thank you very much. Judge Reilly. And thank you,
Mr. Chairman.
The Chairman. Mr. Blester.
TIME FROM ARREST TO APPEAL
Mr. BiESTER. Thank you, Mr. Chairman. I am wondering, Judge
Reilly, if there is an average time that you can give us from arrest to
the consummation of final appeal ? Can you give us some range of how
much time it takes between the arrest and the final consummation of
appeals or the final judgment?
Judge Reilly. We do have such figures in our annual report, and
generally speaking the cases are — now, I am not speaking of the inter-
locutory appeals. I am speaking of appeals of a conviction.
Mr. Biester. After conviction, right.
Judge Reilly. And usually — well, Mrs. Whittaker just gave it to
me. The appeal, of course, must be noted within 5 or 10 days, so that
from the time of the notice of appeal, and these are 1974 figures, the
lecord is about 62 days from the filing of the record. From the filing
of the record until the trial is completed is 90 days, and from the
time that both briefs are in for argument, 62 days, another 2 months.
And the time from argument to clecision. because of the backlog this
has been increasing, I regret to say, 101 days. So the overall time from
the notice of appeal to the final decision is 315 days.
]Mr. Biester. Almost a year?
Judge Reilly. Almost a year, yes, sir.
Mr. Biester. Some of that time depends upon the capacity of the
court stenographer to get his transcripts completed ?
Judge Reilly. Yes. That is a fairly important problem, especially
with the kind of turnover among court reporters.
]\Ir. Biester. And 62 days does seem like a long time for that. And
90 days for the lawyers to prepare briefs also seems like a long time to
me. Are you working on that, or are you attempting to get counsel in
the position of filing liriefs more promptly ?
Judge Reilly. Well, usually unless the defendant is incarcerated if
counsel on both sides agree for a kind of a continuance on the briefing
30
schedule, once the record is completed, the appellate then has 30 days to
file his brief, on the outside in a criminal case and the U.S. attorney
has equal time to file a brief. And frequently the U.S. Attorney's Ap-
pellate Division, because they also handle their appeals in the Federal
circuit, might be jammed up, so that they quite frequently ask for con-
tinuance. And if the appellant opposed it, which he frequently would
not do, he would fjenerally get it, so that is what kind of leads to this
average time of 90 days. Of course, in some cases, it is much more than
that.
Mr. BiESTER. This is the average, right ?
Judge Reilly. This is the average, and then we run into delay times
on these intern counsel cases where we have appointed counsel and he
has also been simultaneously appointed to cases in the trial court in
which he fails to get his brief in on time. And we first send him a warn-
ing, and then a rule to show cause why he should not be relieved of the
assignment, and have it given to somebody else. And he can be held in
contempt if he disregards an order.
Mr. BiESTER. How many such rules to show cause are actually filed?
Judge Reilly. Well, there perhaps would be maybe 2 or 3 a
month, but considering the intake during the month, it would be pretty
close to 100.
Mr. Riester. One hundred ?
Judge Reilly. Yes, sir. I mean, of the 100 cases
Mr. BiESTER. Two or three percent ?
Judge Reilly. Right.
Mr. BiESTER. Now then, after the briefs are in, there is another 62
day average span of time. What was that again ?
Jud.oe Reilly. That Avould be the time it takes to put it on the calen-
dar. For example, let us suppose both briefs were completed during
the month of June. There are quite a few of the judges who are aM-ay in
June and July, and quite a number during the month of August, and
quite frequently a lot of those cases that are fully briefed would not be
put on the calendar until September.
And then, of course, there might be months in which all of the judges
were around and sitting but in which the calendar was already so full
that it would be impractical to add more cases to it.
]Mr. BiESTER. But at least during those 62 days, the briefs are avail-
able to the court ?
Judge Reilly. That is correct, sir ; yes.
Mr. BiESTER. And the transcripts are available ?
Judge Reilly. And the transcripts, yes. T might say that our court,
under the rule, does not require printed designation of record, so that,
wliile three judges sit on every appeal, there is only one transcript
oi'dinarilv, one complete transcript.
Mr. BiESTER. It is shared among the three ?
Judge Reilly. Which is shared among the three, yes. But, of course,
the briefs are duplicated, the brief is not printed either, but they are
duplicated and sent to all three judges.
Mr. BiESTER. Then after the day of argument, it is 101 days before
a final opinion ?
Judge Reilly. Yes, I might say those figures, these are not criminal
case figures, you understand, these are overall figures.
31
Mr. BiESTER. I understand.
Jiidjre Reilly. And one of the things, of course, one type of case that
is rather slow for quick decision is some of tliese administrative a<>ency
cases, especially the public utility cases where the records are very com-
plex, and in some cases where you have complex questions in civil liti-
<ration, and there is a tendency also for the judo;e, and I know I am
ouilty of this myself, when an opinion is assigned to me, of not taking
them up necessarily in order, let us say. But if, say a criminal case, in
which the issue is rather simple, I would work on that and then come
back later to the more complex civil cases.
^rr. BiKSTEi;. The time delays that we have here — if we had an
isolated set of averages for criminal cases, would they be shorter or
longer i
Judge Reilly. It would be much shorter, if it was broken down as to
criminal cases.
]Mr. BiESTER. Do you have the breakdown ?
Judge Reilly. I am not sure that we have ever made one. Have we,
Mrs. Whittaker?
Mrs. WiirrTAKEK. "We have one from November until the end of
March. We have a breakdown because we have been tracking our Law
Enforcement Assistance grants.
The Chairmax. Does the gentleman desire that information for the
record ?
Mr. BiESTER. Yes ; I would like to have it, if I could.
The Chairmax. What period ?
Mr BiESTER. P^or whatever period you have.
Judge Reilly. We will be glad to furnish it, sir.
[The material referred to follows :]
32
DISTRICT OF COLUMBIA COURT OF APPEALS
WASHINGTON, D. C.
CHAMBERS OF
CHIEF JUDGE GEHAHD D. REIU-Y
May 22, 1975
Honorable Edward G. Blester, Jr.
House of Representatives
Room 2351, Rayburn Building
Washington, D.C.
Re: Coinmittee of the District of Columbia
Hearings on Crime in the District of
Columbia, May 5, 1975. Response to
your inquiry.
Dear Mr. Blester:
In response to the question you raised during the
House District Committee Hearings on May 5, 1975,
regarding the time interval from notice of appeal to
decision in criminal cases only (the time interval for
all cases being submitted at the hearings) , the latest
figures of District of Columbia Court of Appeals show
that the average time interval for the sample period
(November, 1974, through April, 1975) indicates that
the criminal appeals are usually disposed of in less
time than appeals in civil cases (including petitions
for review of administrative agency orders) .
Average Time in Days from Notice
oi Appeal to Dispooition
All Cases 346 days
Criminal Cases only 260 days
This reduction in time is partly attributable to
the institution of the summary calendar which is made
up of criminal cases involving relatively limited
issues and therefore susceptible to expedited" consid-
eration. The average time interval for criminal cases
placed on the sumiF.ary calendar is 233 or 113 days less
than the average time interval for all cases.
33
May 22. 1975
Page Two
Wider utilization of the summary calendar procedure
has been made possible by the award of a Law Enforcement
Assistance Administration grant for nine additional law
clerks. Your Committee has before it for consideration
a proposed bill (H.R. 4287) which would amend D.C. Code
§ 11-708 to authorize two law clerks for each associate
judge and three for the Chief Judge. Favorable passage
of this legislation would enable the grant positions to
be incorporated into the permanent staff of the Court
and thereby continue the trend toward expedited criminal
appeals .
Faithfully yours ,
Gerard D. Reil
Chief Judge
cc : Honorable Charles C. Diggs , Jr.
For inclusion in the Record
of Proceedings of May 5, 1975
52-587 O - 75 - pt. 1 - 4
34
/from THE KANSAS CITY STAR, May 22, 1975^/
Thor.d.y. M.y 12. 1975 THE KANSAS CITY STAR M
Nick Thimmesch
Make Capital Safe for '76
WashmEton— There s a great
boui ot soui searchinc going on
here about the safety of the 40
miliicn people expected to trek
to the capital for the celebra-
tion of the Republic's Bicenten-
nial anniversary.
The ttider.pread violence and
robbing by young black thugs
at "Human Kindn ss Day."
with the Washington Monu-
ment providing the Maypole,
left the biggest stink in this
town since Watergate.
For those who missed the ac-
counts of how some 500 young
toughs (park police estimate)
roamed through the crowd of
125.000 (whose human kindness
juices were supposed to be
flowing), wielding weapons
ranging from fists to ice picks,
well, it was some outing.
The score card now shows 627
complaints of larceny, robbery
and assault: 150 or 86 injuries
requiring hospital treatment
(depending on whose estimate
you believe): 650 District of Co-
lumbia and park service police
in the area, and a remarkably
small number of arrests — 33.
Officials of the National Park
Service, cosponsors of the rock
concert, declared they wanted
no more such celebrations.
Maurice Cullinane. Washington
police chief, says all rock con-
certs. Human Kindness Day or
whatever, are always trouble,
period, and are to be avoided
by any cop with his head
screwed on right. Some angry
citizens claim the cops were
just standing around, doing a
good job of avoiding the concert
anyway.
The mayor and other honchos
of the black bourgeoisie which
run Washington all uttered ex-
pressions of dismay, declared
violence must stop and called
for a searching inquiry to de-
termine how it all came about.
The Rev. Walter E. Foun-
troy. a black member of Con-
gress who represents the partly
franchised District of Colum-
bia, seems to be confused. He
doesn't think the beatings of
whites, including senior citi-
zens, by young black gangs can
be put on "racism or the po-
lice." but he also urged theciti-
zenry to start asking itself why
its children are so full of race
hatred.
Rep. Ronald Dellums (D-
Calif.). also black, deplored the
violence but criticized the me-
dia lor their "white racist" cov-
erage of Human Kindness Day.
claiming the press ignored its
"positive aspects."
I suppose Dellums expects
the press to ignore the scores of
busted heads, flesh wounds (in-
cluding one eye lost by knifing)
and pockethooks and other
worldly belongings robbed just
because blacks were the bad
guys and white folks the vic-
iims.
Representative Dellums
should be more sensitive to
such matters, especially since
he likely suffers parental pain
over his own son. Michael,
■^'oung Dellums (18) was
booked in Oakland, Calif., re-
cently on charges of knocking
down an 83-year-old woman
and stealing her purse. He was
on a weekend pass from a boys'
camp where he was serving a
term on a robbery conviction.
When the Ku Klux Klan and
other cowardly white-suprema-
cist gangs were beating and
killing blacks, the press would
have been remiss not to write
about it, and Dellums would
rightfully have been the first to
complain.
The trouble is we have a local
court system whose judges
keep one eye on the Supreme
Court for liberal approval and
the other on the door, inhopes
of leaving early for a. golf
game.
If Representative Fauntroy
doesn't know that, I feel sorry
for him.
You folks out there across the
Republic have a right to come
to Washington without fearing
for your wallets or skulls. You
would be smart to let important
people here know this, like:
The aforementioned members
of Congress: Sen. Thomas Ea-
gleton (D-Mo.). and Rep.
Charles Diggs. (D-Mich.).
chairmen of committees deal-
ing with Washington, and
maybe even the national chair-
persons of the Democratic and
Republican parties, since they
always blow hot air about hu-
man rights and our lovely capi-
tal.
If nothing is done by Wash-
ington authorities to cut down
this hoodlumism, well, you
might as well stay away. foks.
Who needs it'
Los Angfles Times SyntJiCitt ■
35
^h: BiKSTKH. ^^'llat percentage of your appeal cases wind up with a
lengthy opinion, and what percentage end up witli a liind of a per
curiam?
Judge Reilly. I would say almost half of them end up in kind of a
per curiam which might run for two or three pages, but what would
be called a judgment and with the kind of repeat considerations that
ma}' have been announced before rather than going to the expense of
sending it to the printer and going to West Publishing Co. for the
repoit, and we would just serve it on the parties.
Mr. BiESTEK. Eight.
Judge Keilly. 13ut, about half of the cases do result in formal
printecl opinions.
Mr. BiESTER. And about half on a per curiam basis?
Judge Keilly. Kight.
Mr. BiESTER. Thank you, Mr. Chainnan.
The Chairmax. ^Nlr. Whalen?
Mr. Whalen. 1 have no questions, Mr. Chairman.
The Chairman. Thank you very much. Judge.
Judge Reilly. Thank you, Mr. Chairman and members of the
committee.
The Chairman. Now, I would like to call the chief judge of the
Superior Court of the District of Columbia, the Honorable Harold
H. Greene, accompanied by Mr. xVlan M. Schuman, Director of So-
cial Services for the Superior Court; Mr. Arnold Malech, Executive
Officer of the D.C. Courts; and Mr. John Bischoff, the Principal
Deputy Clerk of the Family Division of the Superior Court.
Judge Greene, we have before us your prepared statement. How do
you wish to proceed?
STATEMENT OF HON. HAROLD H. GREENE, CHIEF JUDGE, SUPERIOR
COURT OF THE DISTRICT OF COLUMBIA, ACCOMPANIED BY ALAN
M. SCHUMAN, DIRECTOR OF SOCIAL SERVICES; ARNOLD M.
MALECH, EXECUTIVE OFFICER; AND JOHN M. BISCHOFF, PRINCI-
PAL DEPUTY CLERK, FAMILY DIVISION
Judge Greene. Mr. Chairman, with your permission I would like to
have the statement inserted in the record without reading it. I have
a summary and if 1 could, I would simply read that.
The Chairman. Without objection, the prepared statement of
Judge Greene will be carried in the record at this point.
[The prepared statement of Judge Harold H. Greene follows:]
Statement of Chief Judge Harold H. Greene, Superior Court of the Uistkict
OF Columbia
It is a privilege to appear before this Committee to tesify in its lieariugs on
the administration of criminal justice.
This is a singularly appropriate time to consider on a broad scale the pi-ob-
lem of crime and what can and slioidd be done to deal with it. For there is
today, both in the District of Columbia and in the Nation at large, a crisis in
crime and in the administration of criminal justice. We have had crises before,
notably during the latter part of the 196Us when crime was on the rise as it is
today and when the crime rate actually reached higher levels than it has thus
far in the most recent upward movement.
36
SITUATION TODAY
But there is, in my judgment, a basic difference between the situation as it
existed tlien and the situation now : the mood of the citizenry is far less patient,
far more demanding of action, of real solutions, than it was ten years ago. That
change in mood can be attributed, at least in part, to the fact that when a new
Administration took over the rr^ins of the federal government in 1968, promises
were made that the cancer of the crime problem would be dealt with, and a num-
ber of concrete solutions were oftere.i. Thi> Committee v\ill remember such mens-
ures as preventive detention, no-knock, increases in penalties for certain types of
offenders, changes in criminal procedure, the establishment of the Law Enforce-
ment Assistance Administration, court reorganization here in the District, and
others.
It is not clear to what extent these specific measures may or may not have
had an effect on crime. However, collectively they certainly did have the effect
of calming the public. The feeling was engendered thar something was being
done, and that, with a little patience, crime would soon reced to become the
relatively minor ))roblem it hnd l)een a generation of two earlier.
Today we have no such positive assurances, no such promises that, if only a
certain course were followed, we would not be plagued by crime or criminals.
The media have reported that the President and the Dei»artment of .Justice are
presently working on a comprehensive anti-crime program. It may well be that,
when that program is presented, considered, and implemented, it will be a sub-
stantive success and that it will also give a psychological lift to those citizens
who genuinely and legitimately worry about the crimes that threaten their
peaceful lives. However, as of now, as of today. I sense from the letters I re-
ceive, and from the people I talk to, that a feeling of frustration exists about
this problem that has no parallel in recent times.
I agree with those who demand action. Insecurity in the streets and homes
on the scale that exists now is clearly intolernble. As President Ford said the
other day, one of the prime purposes of this government, or of any government,
is to insure domestic tranquility. The people of this Nation and of this city
demand domestic tranquility, that is, freedom from fear of injury to life and
property, and they have a right to demand it.
The history of nations has shown, Mr. Chairman, that when the inhabitants
of any particular country were ^'aced w'^^h a choice lietween civil liberties ac-
companied by widespread disorder, on the one hand, and order even at the
price of the loss of liberty, on the other, they have ahuost always chosen ordtr.
Thus, there is a real danger that if something is not done soon to remedy the
crime situation, popular an-'-er and frustration will find outlets in ways that
none of us will like or appreciate.
It is for that reason, among others, that I believe that it is appropriate that
this Committee has cho.sen the representatives of the courts to be its first wit-
nesses. It is not that the courts have it in their power by their own actions to
provide the remedy. For reasons on which I will elaborate in a moment, the
principal solutions lie elsewhere. But I suggest to you, Mr, Chairman, that
because of their particular constitutional and legal responslliilities, and their
daily contact with both crime and constitutional protections, the courts are
particularly sensitive to the need for keeping in perspective both the im])ortance
of the battle against crime and the necessity for maintaining our liberties.
Solutions may be proposed to the Committee in the course of these hearings
which do not take account of the importance of lioth order and liberty, tranquility
and justice. I hope the Committee will be wary of such solutions. It is because
I am conscious of the central place of the courts in the justice system, and my
particular role as chief judge of the District's trial court, that I have decided
to address myself in this statement to the jiroblems of criminal justice and
crime in their broad sense rather than to limit myself to matters directly
affecting the courts.
courts' role
With that general statement of the problem in mind, it is fair to ask what
I believe can or should be done about crime in this city, and more specifically,
what is or should be the role of the courts in the over-all crime-fighting context.
Let me address myself first to the role of the courts.
The various studies and investigations that were conducted in the late 1960s
found the courts deficient principally in two areas. First, it was concluded that
37
two much time elapsed between arrest and trial for the criminal law to play
its appropriate deterrent role. Second, it was claimed that in too many instances
sei-ious felony charges were broken down into rehitively minor misdemeanors,
with the result that individuals guilty of serious oiTenses could be and were
sentenced only to relatively short terms of imprisoimient rather than to the
penalties that" were actually called for. 1 believe lioth of tliese char^^^s had merit.
The delay between indictment and trial in felony cases frequently reached a
year or more; in Juvenile Court the time intervals between apprehension and
adjudication were even longer; and in the Court of General Sessions, it often
took two years or more to bring even civil jury ca.ses to trial. Likewise, the
U.S. District Court, because it was faced with the twin burdens of trying both
.serious local criminal cases as well as extremely important federal cases with
national implications, generally found it impossilile to dispose of more than
about two thou.sand felonies per year, and that was the approximate number
of indictments which was returned annually. Felonies in excess of that number
had to be reduced to misdemeanor status, with the con.^equences I have already
described.
What the Congress primarily expected of us as a result of court reorganization
was to remedy these two conditions. There were other expectations of other
components of the criminal justice system : but I believe that it is fair to state
that the principal contributions the new Superior Court was expected to make
in the fight against crime was to eliminate unwarranted trial delays and to
increase the number of felonies that could be treated and disposed of as felonies
rather than as reduced misdemeanors. I submit to this Committee, JNIr. Chairman,
that the Superior Court has fully achieved those goals.
SUPERIOB COURT CASELOAD
Our court today disposes of its caseload in time periods which for- brevity are
not exceeded and are probably not eipialled in courts in other large cities of this
Nation. Felonies are disposed of in an average of sixty days from arraignment
to trial, and misdemeanors in thirty to forty days. Indeed, the Superior Court
today dispo.-^es of its criminal caseload in timeframes which the Congress, under
rhe Speedy Trial Act, expects of the federal cf)urts only five years from now. For
the record, I would like the submit the results of a study of all criminal cases
(luring a tyi)ical month last Fall which suppcu-ts this conclusion.
These results were not achieved at the expense of other calendars. Juvenile
cases are brought to trial within approximately forty -five days on the average
after the charge is first brought. The time interval between joinder of issue and
disposition has been reduced in civil jury cases from over two years to eight
months, and in civil non-jury and domestic relations cases from about eight
months to eight to ten weeks. In short, insofar as speed of disposition is concerned,
the Superior Court has met any legitimate expectation. Criminal charges are
disiKised of as quickly as justice and the needs for trial preparation by the
presecution and the defense allow. I mentioned earlier the two thousand indict-
ments returned annually prior to court reorganization. This i)ast year, 3,514
indictments were returned in Superior Court and 931 in U.S. District Court, for a
total of 4.445 indictments. What this means is that the chances that an individual
who commits a felony in the District of Columbia will be prosecuted for that
felony rather than for a reduced misdemanor have more than doubled since the
time the courts were reorganized.
I submit, Mr. Chairman, that in the two central areas in which court reorgani-
zation was to hav(> assisted in fighting crime, that reorganizaton has been fully
effective.
lliat does not mean, of cour.se, that roou) for improvement does not exist in
the oi)erations of the courts of the District. Mistakes in administration continue
to be made: in i.solated instances, there are unwarranted delays; errors in judg-
ment do occur. But I can assure you. Mr. Chairman, that everything possible is
constantly being done to maintain and further improve the high standards which.
I respectfully suggest, the Superior Court has attained in its operation.
CRIMINAL JUSTICE SYSTEM IN WASHINGTON
Let me turn now to .some observations about the criminal justice system of
the District generally, and more particularly aliout some possible approaches that
might l)e taken to cope with the crime problem. Before I discuss specifics, I wish
38
to make two general observations. First, I am as aware as anyone that the crime
problem does not exist in isolation and cannot be solved in isolation. The root
causes of crime must be addressed if lasting results arc to be achieved. The
heritage of centuries of discrimination is still with us ; persistent poverty is
being aggravated by the crisis in the economy ; lack of an adequate education
drives to criminal activity many who would otherwise be useful, productive
citizens. To consider crime and criminals without taking account of these factors
is unrealistic and is likely to impair the usefulness of other measures. I am not
addressing myself to these issues only because, with limited exceptions, they are
beyond the capability of the local criminal justice agencies to solve.
Second, such specific solutions as I shall discuss are offered not as proposals
for action but only as topics for discussion. They do not represent fully developed
remedies and they certainly do not necessarily represent the views of all the
judges of the Superior Court. The framing of solutions must come largely from the
so-called political branches of government — the President and the Congress, the
INIayor and the City Council. This consideration is particularly important now
that the executive and legislative officials of the District are directly responsible
to the electorate. I would regard it as improper for me, as a memljer of the .Judi-
ciary, to do more than to suggest areas for inquiry and debate to tho.se who were
elected by the people to make decisions in fields which, by their very nature, are
political in the best and most profotmd sense of that term.
For purposes of analysis, this part of the discussion may be divided into three
parts. First, iirolilems related to the ])olice-prosecution-court process: second,
problems related to corrections; and third, problems related to juveniles.
POLICE-PROSECUTION-COURT PROCESS
I believe that we have a police force, a prosecutor's office, and a court s.vstem
that in quality and in effectiveness of performance are second to none. Yet it is
obvious that, even with their excellence, they have difficulty coping with all of
the criminal activity that plagues this city. The ^Metropolitan Police Department
clears, or solves. 2.")% or le.ss of the offenses that are brought to its attention. The
resources of the U.S. Attorney are strained; and the court, while it has been
able to avoid the accumulation of unwarranted backlogs, is severely taxed by
constantly increasing caseloads.
With that background in mind, we should remember. I l)elieve. what it is that
the public is i)rimarly concerned about — violent crime. Public anxiety is focused
on robberies, burglaries, rapes, murders, aggravated a.ssaults, and simi'ar s*^reet
crimes. They lie at the heart of the yearnini-- for domestic tranquility, and at the
core of the frustration and the impatience of the public. That being the case, it
seems logical that the necessarily limited resources of the police, the pntspcutors,
and the courts should be concentrated on these categories of criminal activity.
VICTIMLESS CRIME
We clearly cannot, for reasons of obvious public jiolicy, reduce our efforts to
ferret out and to punish crimes committed by public officials nor can we abandon
efforts to bring to justice those whose victims are injured severely thougli not in
a violent fashion — the swindler, the corporation which rob.s consumers through
illegal i)ractices. the purveyor of unsafe mercliandise. That, it seems to me, leaves
for exploration only one major category of crime with respect to which considera-
tion miffht be given to a reduction in Inw enforcement effort, and that is the
area of the so-called victimless crimes. What I am speaking of, of cour.se, are such
offenses as the possession of marijuana, soliciting for prostitution, the illegal sale
of liquor, gambling, and rbe like. Last y -ar well over S.noo misdemeanor cases, or
about one-third of the court's misdemeanor caseload, involved (barges for such
offenses, and many thousands of hours of police, prosecution, and court time were
spent on them.
Let me hasten to add that I realize that there is no such tbin'>- as a trnly victim-
less crime. The ii'dividu.nl \\ho loses bis wa2:«>s on the numbers game niav to that
extent deprive his family of funds for needed groceries and rent. Prostitutes who
infest neigbborboods not ciily ;iiniov the )ieaceful citizens who live tlier(>. but they
mav .nttract other criminal activities to that area. We do not yet know the extent
to which marijuana may or may not be harmful in the long nm or what problems
it may immediately cause to tho.se under its influence, in diiving, for example.
Alcohol abu.se harms many people, not only the abuser.
39
But even if all of these reservations are taken into account, I suggest to this
Committee that. I».v {(imiiarisou with such crimes as armed robberies, murders,
or raiK's. tlie olfenses 1 have just listed are relatively victimless. I repeat. I do not
advocate that these activities be decriminalized at this time, certainly not
soliciting for prostitution. That decision is for legislative and executive bodies
to nmke after careful consideration of all of the factors, including particularly
what can be done to protect adjoining homeowners if the prostitution laws were
less strictly enforced. Hut 1 do suggest that, unless criminal justice resources are
to be signiticantly increased, those resources that are available should be concen-
trated on violent crime. If that were done, fewer resources would be available to
deal with other aspects of the criminal law, and the area of victimless crime
readily conies to mind as one in which the active use of such resources might well
be substantially diminished.
MINOR OFFENDERS
In a similar vein, more offenders charged with relatively minor offenses might
be diverted from the criminal process. The Court now operates two diversion
programs. I'n.ject Crossroads and the Narcotics Diversion Program. The U.S.
Attorney's Office has its own First Offender Treatment program. Thus, in the
diver.^ion field, as in many others, the District is a leader among jurisdictions.
But I believe a greater effort is pcjssible here, too. A i>erson who is diverted
from the criminal process on condition that he remain free of criminal activity
for a definite period of time, and who succeeds in doing so, is far more likely
to be and to remain rehaliilitated than one who is indelibly labelled with the
ex-convict stamp. And those who are so diverted do not distract the criminal
justice system from its principal task — to make the city safe from violent crime.
Other possible activities which now comi)ete with concentration on such crime
which might l)e considered for handling elsewhere than in the court system are
traffic (iffen.ses and landlord-tenant matters, Minor traffic violations are handled
extra-judicially in many cities, and there is no reason why that could not be
done here. The over 116.0UO landlord-tenant complaints filed in Superior Court
resulted in only some 2.200 evictions. These statistics seem to indicate that the
court process is being used in the vast majority of the cases for purposes other
than to secure enforceable judicial judgments. It may well be possible to transfer
most of this work to an independent executive agency and to leave in the courts
only those landlord-tenant matters that are truly contested.
All of these suggestions are presented in an effort to demonstrate that there are
arc.is that could profitably be explored by the Congress or the City Council —
whichever may have jurisdiction over the particular subject matter — so as to
free the criminal justice system to deal vigorously, without diversion of attention
liy les.ser matters, in almost task-force-like fa.shion, with violent crime. The court
would be prepared to cooperate in such a task-force apiiroach by allocating
judicial and other resources freed from other responsibilities to the swift and
vigorous disposition of charges involving violent crime. I believe such an ap-
proach can yield significant results.
CORRECTIONS-RECIDIVISTS
Let nic turn now to adult corrections. In my opinion, our present approach to
corrections does not work. This is in no way to be regarded as an indictment of
our local Department of Corrections, for the results it achieves are apparently
not significantly different from those of similar agencies throughout the country.
P.ut with a recidivism rate of almost 30 per cent within two years of release of
tho.^e who have been through the District of Columbia corrections process, it is
siiiii)ly imiio.'^siiile to .^ay that that process is in sound condition. It is, of cour.se.
tar easier to pronounce that kind of a judgment than to come up with alterna-
tives. Let me suggest that essentially there are but two principal choices.
During the late IMCOs and the early 1970s, resources were allocated to the
I)olice. the jiro.secutors. and the courts, .so as to enable them better to perform
their tasks. As I suggested earlier, it is my judgment that the District's police
prosecution, and c(»nrt system is extremely effective, certainly by comparison
with similar a.tren ies in other cities. This effecriveness, I am convinced, is due
in no small measure to the resources that have been allocated to these functions.
40
REHABILITATION
At the same time, the resources allocated strictly to rehabilitation in correc-
tions are iuadequate. To be sure, the budget of the D.C. Department of Correc-
tions was increased from .$8,403,900 in 1964 to .$31,835,400 in 1974, but most of
that increase has gone to the simple physical functions of housing the prisoners,
feeding them, providing security, and the like. Only 11 percent of the budget of
the Department of Corrections is allocated to what might be called rehabilitative
purposes — to psychologists, job counselors, physicians, teachers, social workers,
and the like.
If rehabilitation in correctional institutions is to have any real chance of
success, far more must be done to provide sound and realistic rehabilitative
services. The job market for license plate makers is very limited outside the
prison walls. Unless those in confinement are to be taught trades and occupations
that are likely to be truly useful, unless they are to be given individual attention
by counselors, social workers, and other professionals of various types, they
will almost inevitably, upon release, revert back to the old patterns of crime and
delinquency.
I would not presume to say whether this kind of program of rehabilitation
could be implemented within the framework of the present budget of the Depart-
ment of Corrections by a reallocation of funds or whether additional funds
would he needed. If effective rehabilitation cannot be carried out at the present
funding level, then it would ultimately be up to the citizens and their represen-
tatives in this body and in the local government to decide whether they are
willing to pay the necessary price.
The other alternative is that suggested recently by Mr. Norman Carlson, the
Director of the U.S. Bureau of Prisons. If the entire job could not lie done within
the present framewcn-k, we might stop deluding ourselves and others that reha-
bilitation of hardened recidivists is taking place or can occur on a significant
scale in correctional institutions as presently constituted. "What might be done
instead would be simply to take oiT the streets those deemed by their l)ehavior
to be too dangerous to be at larse, and to stoji wisting s'-nrce funds on attempting
to rehabilitate those whose past record has shown that they are unlikely to be
rehabilitated.
If that approach were followed, the nuthoritips con'^erned with corrections and
rehabilitation would be free to concentrate their efforts and funds on those in
the middle group — those not so dangerous that they must be incarcerated for
substantial i)eriods of time yet not so harndess that they can be diverted from
the criminal pror-ess altoiret^hpr. Tbose effovfs and tho«p funds could then go
to effective probation supervision, to work release, to halfway houses and other
community corrections, and to similar programs for defendants in this group.
I firmly believe that the likelihood of salvaging these individuals by such i)ro-
gressive, imaginative, and well-administered i)rograms is greater than are the
chances of their rehabilitation in penitentiaries in the companv of incorrigibles.
Mv own preference would be for the first of these two alternatives. But I
suggest to this Committee. Mr. Chairman, that a choice must be made between
these two fundamental approaches to adult corrections. The present process,
built on the mere hope that the future will be better than the experiences of
the past, simply will not do.
.JUVENILE DELINQUENCY
That brings me to the problem of juvenile delinquency, perhaps the most
difficult of all of those that we face. .Juvenile arrests account for almost one-half
of all arrests. Crimes by juveniles have by no means been lindted to shopliftinc
or joyriding: in stolen cnrs, but cbild'-en are often responsible for armed rob-
beries, burfflaries of inhabited dwellings, even murders and rapes. That trend
must be arrested. The victim of a crime conunitted by a juvenile suffers as nmch
as the victim of a similar offense committed by an adult. ^Moreover, juvenile
crinunals grow up to be adult criminals, and they continue to terrorize peaceful
citizens for years, even decades.
Yet, we must also recognize that children cannot simply be equated with or
treate^i like adults.
In the first place, even more than is true with resnct to afMdt offenders, the
criminnl activitv of juvenHes is often attribut:ible primarily to the conrlitions
in which thpy live A fifteen-year o'd who has never known anvtbing but a life
on the streets, in the company of drug pushers and other criminals, without the
41
benefit of any significant parental supervision, cannot morally be held as respon-
sil>le for his misdeeds as a mature individual who presumably has onoujih under-
standins and experience to make rational choices between good ancT evil,
lawfulness and criminality, ^loreover. if rehabilitation works at all, it is most
likely to work with the young. A child at the threshold of life is more likely to
be salvageable than a hardened adult criminal.
Thus, we are faced with a dilemma. On the one hand, it is essential that we
fli-mly protect society from juvenile crime; on the other, Ave should not want to
raise a generation of adult criminals by unnecessarily subjecting juveniles to
long incarceration in institutions which n)ore often than not become .schools for
crime rather than centers for true improvement.
RECOMMENDATIONS AS TO JUVENILES
While I do not pretend to have the answer to this baffling problem, I do want
to suggest some approaches to the problem of juvenile otfenders. These proposed
changes rest on three premises.
(1) Incarceration must remain, as it is now, a solution of last resort, to be
employed only after other reasonable means of control and rehabilitation out-
side the institutional setting have been exhausted.
(2) The existing methods of supervision and rehabilitation of juveniles short
of institutionalization are inadequate. Whether the particular type of control
in the connnunity falls into the category pre-trial commitment, or probation, or
after-care, the contacts between the children and those who have the responsi-
bility for guiding and counseling them are by and large too fleeting to have any
lasting effect. Children not now in institutions get into trouble too often because
the facilities and the pei-sonnel available for their rehabilitation are wholly
inadequate. The result of that inadequacy is that the same children appear in
court again and again, accused of one law violation or one anti-social act after
another, until finally the patience of the system and those who are a part of it
is exhausted, and the child is then sent to the Children's Center in Laurel. There,
too, not a great deal is happening, except that after a period of a few months
the child is released, another one takes its place, and the entire dreary cycle
begins over again.
It seems to me that if this revolving door cycle is to be broken, far more
than is being doue today must be done to expand and improve community facil-
ities for community suiiervision and rehabilitation of juveniles. The home deten-
tion program for children awaiting trial repre.sents a good example of the kind
of ex])ansion of jiersonnel I have in mind. That program employs one counselor
for every five children, nnd becau.se of this low caseload, the counselor can pro-
vide the concentrated advice, guidance, and supervision that is needed. Addi-
tionally, there is a need for more group homes; more and better remedial
education; adequate residential psychiatric facilities; meaningful trade schools
for tho.se old enough to lienefit from them ; more counseling and tighter supervi-
sion. T'ntil we have provided that kind of concentrated assistance and sujiervision
for children who have been adjudicated delinquent, we cannot say that we have
done everything feasible before resorting to incarceration. Conversely, if we do
l)rovide that kind of concentrated support, recidivism by juveniles is likely to
be reduced. Unlike adults, whose lives and habits are fully formed, most children
can still be molded to behave in acceptable ways rather than in wnys that harm
the communitv and its citizens.
The kind of program I am .suggestimr would not be inexpensive. Indeed, it is
likely to cost a great deal in funds, skilled personnel, and dedication. Yet. if we
are to begin to make a dent in the over-all problem of crime it must be right nt
that i)oint — at the point where a juvenile first comes into contact with the law.
If that anproach is successful, the price tair will be worth it.
(Jovernmental funds are not inexhaustible. The budget of government is paid
for bv the tax payments of its citizen.s. Yet if I h.od the power to allocate funds,
it is rin-ht there where T would place the niaior emph.nsis: on the guidance and
counselling of juveniles before they hnve so far entered the criminal subculture
th.it they can no lonsrer be removed from it.
C3) Even if community facilities were v.istly improved, there would be some,
perbnps more than some, who would continue to commit serious and violent
offenses. Sudi juveniles wouhl have to be sent to institutions, and they would
have to he kent there for substantial periods of time, something that is not gen-
erally true todav.
42
DANGEROUS RECIDIVISTS
I w'-ould welcome a team effort by the police, the Corporation Counsel, the
Social Services Division of the Court, and the eDpartment of Human Resources,
to designate those wlio they believe are in the dangerous, recidivist category.
Such a program of designation \\ould have to be more precise than the so-called
Major \'iolator Program that the Police Department now operates which indis-
criminately lumps together arrests with convictions, major crimes with offenses
which are relatively less grave, true recidivism with individuals who because of
the nature or circumstances of their crimes are not likely to be repeaters. How-
ever, in my view, juveniles over a certain age involved in violent crime who have
prior juvenile records would generally qualify for such designation. Cases of such
juveniles would be given priority in scheduling in the court ; if not detained
prior to the fact-timiing hearing, the Court's Social Services Division would give
them particularly intensive supervision during the interim ; upon a finding of
involvement in a law violation, that Division would normally recommend that
tliey be ordered committed ; and they would be subjected to special scrutiny prior
to any release by the Department of Human Kesources.
All of this presupposes, however, that a real effort be made at community
rehabilitation before institutionalization and special designation as a dangerous
recidivist are resorted to. If such a genuine effort is made, then, it seems to me,
once it is decided that commitment is the only answer, detention must be con-
siderably longer than in practice it is now. It must be of a sufficient length of
time to give the institutional personnel a chance to make yet one more real
effort to rehabilitate the youngster and to restore him to an acceptable mode
of behavior, and it must be long enough to impress on tho.se who insist on break-
ing the law that the law is not a joke and that when the rights of others are
seriously infringed upon, society will take action. Implementation of this ijha.se
of the program may mean that adequate policies for longer periods of detention
should be developed within the Department of Human Resources or that the
court have the power of an automatic review and veto l)ef(U'e a juvenile delin-
quent may be released from an institution.
I believe we can break the cycle that condemns many of our citizens to a life
of crime from the ages of 14 to 40, and which condemns the rest of us to be the
passive victims of their criminal acts. As our experience in the early part of this
decade shows, it will take more than tough rhetoric and stringent laws. It will
take, on the one hand, a tine and discriminating effort to sort out the various
groups and classes of crimes and offenders from each other and to deal with each
different class in a different way. On the other hand, it may take public funds
in considerable amounts. This, the time of a downturn in the economy and a
ri.se in unemployment, is hardly the best moment for suggesting considerable
expenditure of funds for the reformation of criniinals. Yet if the people as a
whole are as concerned about this problem as I believe they are, and if they
understand that, short of scrapjiing our liberties, there is no real alternative if
the menace of crime is to be brought under control, I believe they will respond
favorably. I certaintly hope they will.
Judge Greexe. Mr. Chairman, this is an especially appropriate time
for the hearings on the administi-ation of justice. Crime rates have been
rising both in the city and throughout the Nation, and the public is
justifiably alarmed.
The public mood is today less patient and more demanding of effec-
tive action than ever before. I believe we in the criminal justice system
have an obligation to take action.
As the President said the other day, one of the principal purposes
of government is to insure domestic tranquillity ancl that means safety
in the streets and homes and freedom from injury to life and property.
The task which we have is, of coui'se, complicated by the need, as the
chairman pointed out in his opening statement, to comliine effective
action to curb crime with the necessity for safeguarding constitutional
liberties. I would hope whatever legislative solutions may emerge pos-
sibly from these hearnigs would reflect these twin goals.
43
DEFICIENCrES IN SYSTEIM
Insofar as performance of the courts is concerned, the Court Reor-
<i:anization Act of 1070 pro\i(le(l us with our charter. Studies have
shown tliat with respect to an ctfective fight against crime, the court,
tlie District couit system, was deficient principally in two areas, and it
was ho})ed and expected of us that the reorganization of the courts
would remedy ]^rimarily these two deficiencies.
First, it was found that too much time elapsed between arrest and
trial, thereby dissipating the elective administration of criminal law.
The!-e delays reached well over a year in felony cases, and at times as
nuich as 2 years in juvenile delinquency cases.
TIME ELEMENT IN CASE DISPOSITIONS
As a consequence of the Court Reorganization Act, the superior
court is noAv disposing of felonies, depending on the complexity of the
case, on the average of 60 and 90 days, and misdemeanors are disposed
of in 30 to 40 days, and juvenile actions in 45 days. I doubt that there
is a court in any other large city in this Nation that can match this
record of swiftness. The superior court today disposes of criminal
cases in this time frame, which the Congress, under the Federal Trial
Act, expects of Federal courts only 5 years from now.
Second, because of the court reorganization, practical considerations
dictated an upper limit of about 2,000 indictments a year, and a great
many felonies in excess of that number were broken down into mis-
demeanor charges with the effect that many individuals actually guilty
of serious offenses could be sentenced only to relatively short terms al-
lowed by the misdemeanor law^s. The upper limit of 2,000 indictments
annually, which prevailed in the District for approximately 20 years,
was finally overcome by court reorganization.
This past year a total of almost 4,500 indictments were returned in
the superior court in the U.S. district courts combined, or more than
double the court reorganization limit.
I submit, ]Mr. Chairman, that in these two central areas in which
court reorganization was to have assisted in fighting crime, that reor-
ganization has been fully effective.
FUTUKE ACTIONS
Now. let me turn to our future actions by the criminal justice system
to combat crime. I would like very briefly to deal with the possibility
for such action under three different headings.
First, the police, prosecution, court process; second, corrections ; and.
third, juvenile delinquency.
POLICE, PROSECUTION, COURT PROCESS
In my oi)inion, the District has a police force and a prosecutor's
office and court system that is second to none. It is also clear that all
three of these components have difficulty coping with the crime wave
that plagues this city. The police clear only up to 25 percent or less of
all crimes reported to them. The resources of the U.S. attorney are
44
strained and so are those of the court. It seems to me that what should
be done is to concentrate laAv enforcement elforts in the areas that are
of most concern to the public, that of violent street crime. If that were
done, and assuming that there is no significant increase in total re-
sources, then it inevitably follows that the corresponding reduction
effort would have to take place somewhere else.
VICTIMLESS CRIME
The only category which comes to mind, and in which such a reduc-
tion may be possible, is that of the so-called victimless crime, posses-
sion of mariiuana, gambling, the illegal sale of liquor, and. possibly,
prostitution, which combined amount to one-third of our misdemeanor
caseload. And I should say in this connection, that either I misunder-
stood Mr. Washington or he misunderstood me. but in my prepared
statement I did not indicate that we sliould abandon our efforts at
prosecuting corporations which victimize consumers with these other
categories. I said that was one cateirorv that we could not abandon,
and I want to make it clear, to ^'si back to the victimless crimes, that
I am not advocating the decriminalization of these activities, for in the
first place, this is a decision for the so-called political branches to make
rather than the members of the judiciary and secondly, there are obvi-
ous problems with decriminalization wliich would have to be fully ex-
plored, particularly the effects on adjoining homeowners on decrimi-
nalization of prostitution.
A careful look needs to be taken at victimless crimes, and if that
determination be made, then law enforcement efforts might usefully
be concentrated elsewhere ; that is, in the violent street crimes.
MIXOR OITEXDERS
Another additional method of freeing up resources to permit the
system to deal more vigorously with violent crime is to di\ert more
minor offenders entirely fi'om the criminal justice process, and ]^er-
haps to relieve the courts from such functions as the adjudication of
minor traffic offenders landlord-tenant disputes. There are obvious ob-
jections to all of these suggestions, but it seems to me we cannot afford
to keep on operatin.o' as we have in the i^ast. The public denrands more
action against robbei-y, rapes, murders, aggravated assaults, and
similar offenses, and that is where our prioi-ities must be. Tliat may
tmean that a lesser effort Avill have to be made in some or all of the
areas that I have mentioned. But, of course, it would be up to this
Conf^ress or to the City Council to decide where law enforcement efforts
could be divei'ted to street crimes with the least damage to other legiti-
mate interests.
CORRECTIOXS — -RECIDIVISTS
Let me turn now brieflv to con-ections. Our present approach to cor-
rections does not woi-k. The recidivism rate is too hip"h. the rehgtbilita-
tion rate is too Ioav. T'nless there is to be a significant increase in funds
allocated for rehabilitative i:)urposes aiid con-ections. there too the con-
centration must be on the essentials and a reduction of effort
elsewhere.
45
The Diroctoi' of tlu> U.S. Bureau of Prisons has su.a-^ested, and 1
aijree. that as a i)i:ut ical matter, some lonij-time recidivists simply
cannot be rehnhilitated. and instead of wastino- limited funds on those
whose past records show they are unlikely to be reformed, those funds
uiioht more pi'operly be used for intensified attempts to reliabilitate
(liose in the middle o-roup, those not so dangerous that they must be
incarcerated for substantial periods of time, yet not so harmless that
they can be devoided from the criminal justice system altogethei'.
These funds could then go to more eft'ectiA'e probation supervision,
work-release, halfway houses and other community corrections for
defendants in this category.
The likelihood of salvaging these individuals by such progressive,
imaginative and well administered programs is far greater than are
the chances of rehabilitation in the penitentiaries in the company of
incorrigibles.
JUVEXILE DELIXQUEXCY
That brings me to probably what is the most difficult of all subjects,
that of juvenile delinquency. The victim of the crime committed by a
juvenile sutfers as jnuch as if the offense had been committed by an
adult. The juvenile offenses account for almost half of all crime
and we must act firmly to protect society. At the same time, we
cannot forget that children are not adults. Even more than is true
with adult offenders, the criminal activities are often attributable to
the conditions in which they live, lack of parental discipline and they
are opei'ating freriuently in the company of criminals, and inadequate
educational systems and other factors also, and as a society, we cer-
tainly cannot give up on our children as easily as we can on the hard-
ened adult criminal.
"With proper guidance, juvenile delinquents could be molded into
responsible citi/.ens. but this is not happening now largely because the
existing methods of supervision and rehabilitation of juveniles outside
of the institutions are inadequate. Thei-e should, in my opinion, be
moi-e frequent, more intensive contacts between the probation or after-
care officer and the juveniles whom they supervise, and there should
be more group homes, better lemedial education, more residential
psychintT-ic fnciHties and meaningful job training programs.
Providing this kind of services may be expensive, but if we are to
make a dent in the overall ])roblem of crime, it must be done right at
that point, at the ]:)oint where the juvenile first comes into contact
with the law. Just as is true with adults, there are some juveniles Avho
Avill continue to commit violent offenses and such recidivists w^ould
have to be sent to institutions and ke]it thei-e for longer i^eriods than
is often true now. I propose that such violent recidivists be identified
by the various agencies concerned with juvenile delinquents, including
the court and the social services division and the police, and they be
given special supervision and longer terms of commitment then they
now receive.
DANGEROUS RECIDIVISTS
In short, ^Nlr. Chairman, in the field of rehabilitation, Avhether adult
or juvenile. I propose that more careful distinctions be made between
those who are now and are likely to remain dangerous to society, and
46
for that reason must be kept under tiofht and relatively lone: institu-
tional detention and those who can and should be rehabilitated in the
community setting. With vastly improved and upgraded facilities and
services, I believe that the hfrht afrainst crime can be won if the req-
uisite effort is made. Certainly insofar as the su])erior court is con-
cerned, we will cooperate with all other criminal justice agencies
toward that end.
The CiiAiR:\r.\x. Thank you very much. Judge Greeup.
Just as with Judge Eeilly, your testimony is rich in substance.
CORRECTIOXS BUDGET
I would like to direct your attention to a (statement made on page 14
of your testimony, because I think it serves to dramatize a problem
here, and I wish you could expand upon it. You talk here about the
budget of the D.C. Department of Corrections on that page, and you
point out that in 10 years, from 1904 to 1074. that that budget has
gone from $8,408,900 to $31,835,400. and that only 11 percent of that
budget is allocated to what might be called rehabilitative purposes:
that is, to psychologists, job counselors, physicians, teachers, social
workers, and the rest.
Now, with due allowance. Judge, for inflation during that 10-year
period, what part of that 88 ])ercent that did go into rehabilitation
would you attribute to these other i)hysical aspects of the rehabilita-
tion or the correction process? I am trying to pin this thing down
in order to ascertain the net amount that is really going into what you
Mould perceive to be result-oriented action ?
Judge Greene. jSIr. Chairman, of those figures we have here which
came from the Department of Corrections, apparently about $3.5 mil-
lion of the $31 million goes to rehabilitation and the remainder goes
to these other aspects of simply maintaining the prisoners, security,
food, housing, and so on.
Now, I am not competent to say Avhether any of the remaining $28
million could be diverted to rehabilitation. Obviously, my hope would
be that that could be done, that more of the greater ])ercentage of the
funds that we spent for corrections would go to rehabilitation and less
for simply the physical needs, because without rehabilitation there is
very little that corrections can accomplish except to keep persons off
the streets for a certain period of time.
The Chairman. Mr. :Mann.
PREINDICTMENT DIVERSION PROGRAM
Mr. Mann, Is there any preindictment diversion program going on
in the District at this time ?
Judge Greene. Yes, Con.<Tressman. "We have two diversion ]:)ro-
grams, one in our narcotics diversion program, or three actually, two
run by the narcotics diversion program run by the court, the so-called
Project Crossroads that was job oriented which i<5 run by the court,
and the first offender treatment program, which is run bv the T^.S.
attorney. I must say when you mention preindictment. that would
imply that it would deal with felonies, or at least it would imply that
in this city. They do not generally apply to felons. Most of these pro-
grams, by and large, at least, deal with misdemeanors only.
47
Mr. ^Taxx. In youi- summary statement, I get the impression tliat
you feel tliat that i)ro<i:i'am sliould he ex[)an(le(l more, at U'ast coordi-
nated l)etter with oth(M' facets of law enforcement.
.Tudiie (lUKKXE. I helieve it should he expanded, yes, Congressman.
Basically, of course, the decision on whether a person can or cannot be
diverted lies with the jirosecutor. It is up to him whether he will file
charges, or will defer filing cliai'ges pending the diversion effort. My
hop(^ lias been, and in my discussions with the U.S. attorney I have
proposed from time to time that the categories be expanded.
Of course, obviously we are not talking about armed robbers, or
rapists, but they could. I think, safely be expanded.
Mr. Maxx'. I am very impiessed by your time segments of disposi-
tion of cases. What does the District of Columbia procedure call .for
in the way of arraignment after arrest? How quickly is that
accomi)lished?
Judge Greexk. The defendant is presented the next day, except if
he is arrested — he may be presented the same day for that matter, if
he were arrested in the morning. Except on Saturdays, if the defend-
ant is arrested on Saturdays, he will not be presented until Monday
morning.
Otherwise, he is arrested, and after he is arrested, the same day or
the next day he is arraigned.
Mr. Maxx. Thank you. Judge.
The CfrAiR:\rAX. Mr. Blester.
Mr. BiESTER. Thank vou. Mr. Chairman.
Is there a formal diversion program which would authorize tlie
prosecutor to not indict, but provide for some kind of a fi-month or 1-
year form of program ? Let us take, for example, drunken driving.
A man who is arrested for drunken driving. At the time of arraign-
ment the prosecutor says: "This is the first offense. I do not ])ropose
to indict or seek indictment, but he will have to go ^nto some kind of
school or take some kind of a program for a period of time. If he does
so voluntarily and cooperates with that, we will not seek an indict-
ment and we will ask for a nol-])ros. or whatevei' arraigment ])TOcess
has taken place on the first offendei* situation." Do vou have such a
program ?
Judge Greene. The prosecutor's first offender pi-ogram operates
exactly that way. The narcotics diversion program opei-ates somewhat
differently. There the defendant is required to enter a plea, and he is
observed or kept under supervision for a period, I believe, of 9 or 10
months. After 6 months, if he has not gotten into any further trouble,
he may withdraw the ]ilea, and after 9 or 10 months the charges are
dropped. So, we have very varied variations of programs in that
respect.
Mr. BiESTER. How long have you had such a program ?
Judge Greexe. Project Ciossroads has been with us for about 4
years.
Mr. BiESTER. HaA'e you been able to ascertain recidivism rates with
lespect to that pro"-ram ?
Judcre Greexe. I do not have them here, but the recidivism rates
are low. I will furnish them, be glad to fui'nish them on all of the
programs.
48
Mr. BiESTER. I would apiM-eriate tliat. I would assume they would be
low. That has been the experience generally across the country, is
that not correct ?
Juda-e Gri'-.exe. That is true.
[The material referred to appears on p. 50.]
RECIDIVISTS
Mr. BiESTER. Now, with respect to the disposition of those who are
persistently recidivists, particularly in violent crime, the 4th, 5th,
8th, 10th offender, do you have any magic solution as far as that is
concerned?
Judge Greene. No, I do not have any magic solution. I think Mr.
Carlson, the Director of the Bureau of Prisons, is correct in saying,
and he is certainly more expert in it than I am. that there are certain
tvpes of offenders whom we simply have not found a way to rehabili-
tate, and obviously the ])ul)lic must be protected. And so the only thing
to do is to impose relatively lengthy terms of confinment so that at
least they will not bother peaceful citizens.
Mr. BiESTER. Thank you, Mr. Chairman.
The Chairman. ]Mr. Harris.
Mr. Harris. Thank you, Mr. Chairuuin.
Judge Greene, may I say that I particularly appreciated your
statement, and I was much encouraged by what I felt was your attempt
to grapple with the real world, and I am sensitive to the problems
that the court has had, and the whole system has had, not just here
but other places. And I am very heartened by the attitudes that I have
heard expressed here this morning by you. and I would like to com-
pliment you for them.
Judge Greene. Thank you. Congressman.
]\[i-. Harris. I would like to ask just a couple of questions in an
area of particular concei'u to me. Sometimes, frankly, I feel that as
our ci'iminal judicial system has proceeded, we have pretty well
screwed up enough in the upper ranks that the only real light of
hope is with our juvenile approach, and mayl)e we will stop breeding
as many criminals as we have in tlie ]iast. and maybe tliis is the light
at the end of the tunnel. I do not ask you to comment on that, that is
just a statement of opinion.
JUVENILE OFFENDERS
You noted, I believe, that you have some large part of your activities
in the juvenile area. "Was I mistaken about that ?
Judge Greene. That is correct.
Mr. Harris. Was 50 ]:)ercent the figure that you used or did I
misunderstand?
Judge Greene. Not necessarily in our court, but overall tlie arrest
figures are I believe 48 percent of all arrests for criminal offenses are
made of juveniles.
Mr. Harris. That is what T heard said, and T would like to kind of
underscore that and put that in big cai^s. if I may.
Now. those arrests, you would not know offhand how many of those
ai'c for rather minor crimes like shoplifting oi- that sort of thing?
49
Jiulirt' (tRf.kxk. I liavo some li<»;ures, 1 believe, although I don't
believe they ;ne broken down in that way.
The CiiAiKMAX. I think that would be valuable for (he I'ecord, and
if you do not lunc them with you, Judffe. 1 wish you would provide
them, that breaktlown.
Judae Grkkxk. Yes. Yes. Mr. Chairman. 1 certainly will.
Ml'. Harris. I would a|)])reciate it.
[The niat(M';al icfei'i'cd to follows :]
52-587 O - 75 - pt. 1 - 5
Harolb IL <&issnt
50
g>upprujr CEaurt of t\\B Diatrirt of (Columbia
SSaaliinston. S. (E. 20001
June 30, 19 75
Honorable Charles C. Diggs , Jr.
Chairman, Committee on the
District of Columbia
U. S. House of Representatives
Washington, D. C. 20515
Dear Mr. Chairman:
I am responding to your request that in connection with the
hearings of the Committee on the District of Columbia data be
submitted (1) on juvenile case dispositions and (2) on recidivism
rates in Project Crossroads, the Court's adult diversion project
for misdemeanant first offenders.
Please forgive the tardiness of my response. It was necessi-
tated by the fact that the precise type of information you requested
on juvenile dispositions could not be pulled from our existing
computer programs or data bases. Therefore, a thorough case-by-
case docket study had to be conducted in order to provide you with
a complete picture of our case disposition record. It must be noted,
however, that even with this individual docket study there are certain
broad docket entries which encompass a number of subcategories of
dispositions. I will provide you with a full explanation of the
subcategories involved in each instance.
1. The attached table represents dispositions in juvenile cases
that were referred to the Court between March 1, 19 74, and March 1,
1975. Within this twelve-month period, 5,989 cases involving the
enumerated offenses were referred by the Metropolitan Police
Department to the Director of Social Services of the Superior Court.
The Director has established an Intake Section in the Juvenile
Court pursuant to Superior Court Juvenile Rule 102 which implements
D.C. Code §16-2305. 765 of the total number of referrals were closed
at intake. This means, essentially, that the Intake Section, in
applying the criteria for filing a petition that is found in Superior
Court Juvenile Rule 103, had made a determination that the best
interest of the public or the child would not be met by the filing
51
- 2 -
of a petition against the child In a particular case. Under the
statute, the Corporation Counsel for the District of Columbia,
may, and usually does, review this determination, and he has the
authority to file a complaint with the Court not withstanding the
view of the Intake Section.
A total of 5,224 cases were brought before the court after
the intake decision, and of these cases 2,657 were dismissed before
or after adjudication of involvement. This dismissal figure
includes (1) cases where the juvenile was adjudicated "not involved"
in the law violation, (2) those which were dismissed because the
Court already had jurisdiction of the child in another case, (3)
those with respect to which the prosecutor agreed to the dismissal
before or after a court hearing on the case, and (4) those which
were dismissed by the Court pursuant to Superior Court Juvenile
Rule 48(b) which provides for a dismissal when the Interests of
justice and the welfare of the child warrant such action. 2,053
juveniles were either found involved in the law violation or the
juveniles entered into consent decrees pursuant to D.C. Code §16-2314
and Superior Court Juvenile Rule 104.
A consent decree is similar in purpose and effect to a plea of
guilty in an adult criminal case. Once the decree is entered, the
juvenile is placed under the Court's supervision for a minimum of
six months. He is discharged from supervision when he has fulfilled
the express conditions of the decree.
The Court exerted its supervisory jurisdiction over 1,784 of
the juveniles studied in the attached table. This supervision
included cases in which consent decrees had been negotiated and
cases in which the child had been placed on probation after adjudi-
cated involved in the law violation.
269 juveniles who were adjudicated involved were committed to
the various juvenile detention facilities in the District of Columbia.
2. Recidivism figures for the Court's adult diversion program
for first offender misdemeanants were encouraging this past year.
In 1974, 516 defendants were referred to Project Crossroads by the
United States Attorney. Of these referrals, 396 persons successfully
completed the program and were diverted from further court action by
dismissal of the charges against them by the United States Attorney.
Of those not diverted, 71 were returned to the U.S. Attorney's
Office, including 16 who were rearrested and 55 who simply failed
to respond to the program.
52
- 3 -
I hope the above information and the attached table are useful
to you. If you have any additional questions concerning these or
other matters, please do not hesitate to call on me. I remain.
Sincerely,
53
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54
Judtje Greenp:. I have some fio;ures here. I knew I had some figures.
This is for 1 moiitli, February 1975 ; 25 percent of all juveniles referred
to the court were for offenses against persons; 50 percent, approxi-
mately, were for offenses against pi-operty and assaults, which is a
relatively minor offense as far as juveniles are concerned; 10 percent
were for acts against public order, such as disorderly conduct, and
possession of di'ugs. And 5 percent were neglected children, children
in need of supervision.
Mr. Harris. Very good. I have noted and have seen, frankly, the
use of the juvenile courts by some mass marketing businesses, and I
was wondering if you see this as a ])roblem ? I see great big stores with
barrels of merchandise lying around that are virtually unattended, and
while the store may have a mininunn of clerks, it always seems to have
at least one or tAvo security people walking aroiuid in plainclothes.
And I just wondered how many referrals of this type is the juvenile
court getting?
Judge Greexe. A great many.
Mr. Harris. It spends a lot of time on this, does it ?
Judge Greene. Well, it does, certainly if they are repeaters. Now,
if they are first-time ofl'enders, tliey frequently are diverted from
the court itself. They may be on an infoimal type of probation and
so on. But, certainly, if they have become repeaters, there is a great
deal of effort and time by the judge, by the probation department, and
by, of course, l)y the corpoi'ation counsel that prosecutes the cases and
otliers taken n\) with those kinds of cases. Yet. they are more typical
of juveniles than other offenders.
CRIME PREVENTIOX
Mr. Harris. From the experience of the court, do you feel like a
part of the correction of this could be a better attendance to the super-
vision at the store, as distinguished from prosecution in the juvenile
court, or do you have any views on that ?
Judge Greexe. Well, the police department and I believe the FBI
seem to feel that the installation of locking devices on steering wheels
has liad a consideral)le affect on auto thefts, so thata may be a ]iartial
answer to your fpiestion. If better precautions are taken by tliose who
are likely to be the victims of crime, obviously tliat would reduce
crime. But, I certainly would not say. would not want to say. that that
alone will eliminate it. You might have to have an ai'my of security
guards to eliminate shoplifting altogetlior. or to reduce it to a tolera-
ble degree.
Yoirni Progra:\is
INFr. Harris. As you s))ealc of the progi-ams. and I am coiisrious of
my tiiiic limitation here, but thci-e is one othei'area that I wanted to in-
quire on, as you speak to ]U'ogi'ams to hel]") the juvenile off(>iuler aftoi-
he oi- she is introdnced into tlie system, are there any pi'ograms that
you ]ia\-e dii'ect cognizance^ ovei- tliat j^redate the introduction into the
system, are tluM-c an\ ])r()gr;!ins that ti'v to help the j^otential offender
l)efor(> he lias an adiudication ?
Judii'e (^RKKNi;. "Well, thei'e aic a great many youth i)r()<i"i'ams in
the District. We have a vouth authoritv, T believi- it is called the Office
55
of Youth ScM'vices, and tlu-v iiin a e:reat number of different programs.
Now. tlicv :i)(' pioirrams designed for educational purposes, tliey are
pro<i-ranis desioi-ed I'oi' rcM-ivnt ional purposes, foi' job training, and so
on.
Now. hopefully, to an extent, it will be of benefit and reduce crime by
those proan^nis.
Mr. TT.\i;i;is. ,Iust one other (juestion, if T may, ^Nfr. Chaii-man. With
reo-ard to ju\enile court proccediiiiis. Are these held confidential. Are
these proceedings and the adjudications contidential ?
Judge Gkkkxi:. 'i'es. Yes, they are. lender our statutes, they must
be confidential.
Ml'. IIaiuus. We lun'e a system in Virginia where we have them con-
fidential, too, excejit when they apply for a driver's license, they have
to say whether or not they have had an adjudication, and how the ad-
judication came out. Is there any system similar to this in tlie District
of (^olumbia ^
Judge Grkexe. Not so far as T know. Of course. I do not knoAv what
someone might ask and what the juvenile might say, but as far as we
aro eoncei-ned. we are not releasing juvenile records to anyone except
fluMH' a IV about six or eight except ions in the statutes, such as for
legitimate law enforcement purposes, that kind of thing. But, other-
wise, we do not release the juvenile records.
Mr. IIaiuus. Thank you. ^fr. Chairman.
The CiiAnnrAX. Mr. (lude.
Mr. (irnr. \o (|uestions. ^Nfr. Chairman.
The Ctiair.aiax. Mi-. Whalen?
Mr. Wtiai.ex. Thank you. ^Nlr. Chairman.
.TI'\KX'ILK OFFEX'DERS
-fudge (irreene. the figures tliat we have from the ^Metropolitan
Police Department indicate about 4,000 juveniles are arrested
annually. Do you ha^e any informtition as to how many of these are
rejieaters. and, second, how many of these actually go to ti'ial.
Judge CiKEKxi:. (\)ngressman. I camiot give you a s})ccihc figure. I
do not knoA\' \\ hat pci-iod the 4,000 refers to.
I can say tliis. that -'^T percent of the juveniles who are ai'rested are
released by the ))olice. Under our system, the j^olice have authority to
release a ju\"enilc. oi- the Social Services Division has the authority,
aiul ultimately, tlic jnd're lias the authority. Xow. 213 out of some 5r''>7
were i-eleased by the police. 18 peicent wei-e released by Social Services
Division at the receiving home, 4 peirent wei'e released by others, and
T am not sure who that is It must be the judge. And 4(i ])ercent were
detained pending the hearing.
Xow. I am not sui-e that that is a full answer to youi' (|uestion, be-
cause I do not know what the outcome of the cases ultimately were. l)ut
I think in the case of juveniles an-ests ai'e probably even more mis-
leading in the sense of delin<|uencv in ciimes than in the case of adults,
because in the case of juveniles, chaiges are fi-e(|uently dropped when
it is deemed by everyone concenuMl, including th(> prosecutors, that it
wo)dd be in the best interests if tlie child is minor, for example.
56
RECIDIVISTS SEXTENCING
Mr. AViiALEN. Getting back to tlie question posed by Cororessman
Biester on recidivists, I understand that the D.C. Code provides for
stricter sentences for those wlio are convicted of repeat crimes. Is that
provision being used by the couits ?
Judge Greexk. Yes, it is being used. The prosecutor typically must
file, under the statute, a statement of the pi-ior oft'enses. and when that
is filed, the court will take that into consideration. Xow, it would be
dilHcult for me to say with specificity how any particular sentence was
arrived at, because sometimes the maximum may be 20 years, and if he
is a i-epeat offender, there may be 10 years added and the judge may
have sentenced a ]>erson to 20 years, which he jjrobably would not have
done if he had not been a repeat offender. So, you I'eally have to psycho-
analyze the judge to know how nmch he was influenced or how much
he took that into consideration.
So far as I can ascertain, the judges are inffnenced by the fact
that these are repeat olfendeis and those pajiers, of course, permit the
judge a wider range of penalties than otherwise would be possible.
SEX'TENCIXG FOR CRIMES W^ITII WEAPOXS
]\Ir. WiiALEX. And I thiidv the D.C. Code also provides foi- certain
minimum sentences for those crimes that are conunitted with the use of
weapons. It is my understanding that this is not being used. Am I cor-
rect in that assumption, and if I am. should it be used more? What are
your views on that ?
Judge (treexe. Well, no, if the code provides for mandatory mini-
mum sentences, it is used We have no choice in it, and I would hope
that all of the judges follow the law. And if the law provides, in very
rare instances, for repeat offenders accused of ceitain armed offenses
are subject to mandatory minimum sentences, and first degree murders
are subject to mandatory mininunn sentences. I am not sure there are
many otliers but then those where mandatory minimum sentences exist,
the judges, I am (|uite certain, follow the law. Otherwise, I would not
doubt that the prosecutor would take him to the court of apj;eals.
Mr. WliAEEX. Thank you, Mr. Cliairman.
The CiiAiRMAX. Chief Counsel.
Mr. A^^^sIIIX(;Tox. Tliaidc you.
Judge (ireene, I would also like to commend you on a very excellent
statement.
.fudge Greexe. Thank you, ^fr. Washington.
jNIr. Wastiixgtox. And my apologies for including corporal ions
with mai-ihuana and alcoholics.
OCCUrATIONAL REHARILITA TIOX
On page 1-1 of your statement, you i-ecommend that adults in con-
finement, and I (|ii()N': "be taught ti'ades and occuj^ations that are
likely to be truly useful." and I quote again : 'i)e given individual at-
tention by counseloi'S, social workers and other professionals of vari-
ous types."
My (|uestion to you. Judge Greene, is do you know of other States
where this is being done, and do you have any results as to these types
of programs?
57
Judge Grki:ne. I do know th;it in the Federal Institution at Mor-
"jantown, A^'. Va., tliere is a very large and excellent occupational re-
habilitation pi'ogram. The California Youth Authority, I am given to
believe, has filled really the resources by way of counselors and social
workers and so on, hut 1 am unable to say at this point what the Cali-
fornia figures are with respect to recividists who have been through
that tyi3e of process.
But. other States have expanded and put a greater proportion of
their resources on those types of programs than we have.
Mr. Washington. Rather than custodial care?
Judge Greene. Yes.
JUVENILE REHABILITATION
]Mr. "Washington. On page 18 of your statement, you criticize the
Children's Center in Laurel with the words, and I quote : "not a great
deal is happening." Is there not a rehabilitation program of juveniles
at Laurel ?
Judge Greene. There is a rehabilitation program, but I do not be-
lieve it is adequate. I have been there and I have seen it, and I have had
reports from others. And certainly, the figures of those who have been
there, and are rearrested and rearrested, and are sent back again and
again. Avould indicate that it is not terribly effective. I do not believe
that the rehabilitation program at Laurel is as effective as it should
be, and besides, tlie facility is becoming overcrowded.
home detentions
Mr. Washington. Thank you. On page 18 of your testimony, you
I'ecouunend greater use of home detention programs and group homes.
Does the court have experience that indicates that these programs are
successful ?
Judge Greene. I can speak particularly about home detention pro-
grams. AVhen some years ago, about ?> or 4 years ago. a suit was brought
in our court attacking and questioning the validity of the continued
use of the receiving home for children prior to their trial in juvenile
court, this matter happened to come up before me, and in my judg-
ment, I gave the competent authorities 2 years in which to provide a
better facility. Two years were up, and no other facility was provided
and I was forced at that time to simply close the receiving home. And
some of the children were sent to other institutions, including the
childien's center at Laurel, but that was the genesis of the home-deten-
tion ])rogram.
A number of these, about 150 to 200 of them, were placed in home
detention. The way that program works is that instead of the usual
ratio of one probation officer for 40 or 50 children oi- adults, for that
mattei". there is one probation officer for every five, and very intensive
su])ervisio)i at home and in school and everywhere else. T am told by
the juvenile authorities and the experience I have had myself when I
was sitting in juvenile court, that (he progi'am is exti-emely successful.
It is so successful, in fact, that there is a constant waiting list, and we
cnanot get eiuiujrh iieojile into the ]U'ogram because the judges want
to use it so much because it has been so effective.
58
DEFENSE attorneys' COMPENSATION
Mr. Washington. Thank you. I would like to turn your cattention
to an article in the Washington Poh-t this morning and the question I
asked Judge Reilly. It relates to the study which recommends paying
lawyers $40 an hour instead of $30 for court appearances and $20 as a
ceiling for outside of the court. Is it vour view that the increases in
incomes to laAvyers would enable the system to attract better lawyers
and ultimately the beneficiaries would be the clients that they serve?
Judge Greene. Yes, I do, Mr. Washington. I believe I am in agree-
ment, I have seen the report, I read it, an earlier draft of the report,
and I am in agreement with a number of the recommendations made
in the report, including the raising of the hourly liuiit, including the
elimination of the $18,000 ceiling, which was placed on the annual
funds that an individual lawyer could receive.
I am not certain I am in favor of all of the recommendations, and
particularly including the one which would have required us to pro-
vide for a lawyer for the 30.000 otl'euses prosecuted by the corporation
counsel, including 17.600 speeding cases. If we had done that, the re-
port suggests that we are in violation of the law for not doing that,
if we had provided lawyers for this 17,600 people tliat were accused
of speeding in the District, we would not have had any lawyers for
persons accused of more serious offenses, which would have been a
catastrophy in terms of the administration of justice. So, I think the
report, while it lias some useful and very constructive suggestions, is
not entirely without faults and is not fully balanced, particularly in
its inability to recognize that many of the problems to which it
addresses itself are due to lack of funds, which, of couree, are always
lacking.
But. if all of the recommendations were implemented, I believe the
annual amounts spent for defense services would go up from about $2
million to $15 million or $20 million, and I would have some doubts
whether either the city or the appropriations committees of this Con-
gress would view that with favor. So. T think we have to be somewhat
selective among these recommendations. I agree witli the general
thrust of the report that defense services ought to be improved, but
not necessarily with all of the details.
TIME element in CASE DISPOSITIONS
Mr. Washington. Thank you. You indicate that felonies are dis-
posed of on an average of 60 days from arraignment to trial. I am par-
ticularly impressed with that, but I would ask you to comment on a
letter that you sent to the Judiciary Committee, where I tliink in sub-
stance you said that it would be inap])ropriate to include the D.C.
Courts in the Speedy Trial Act since, in fact, you are in compliance
with the provisions of that act. Would you care to comment on that?
Judge rrrEF.NE Well, tliat was mv feeling and that is mv feeling
today. In the fii-st place, the Speedy Trial Act was primarily adflressed
to the l^ederal courts. Its entire machinery was geared to the F'^deral
courts and reports had to l)e submitted to the administrative office of
the T^.S. courts, nnd the aiu^ronrintious had to ])o sono-ht tlirough the
Judiciarv Subcommittees of the Appropriations Committees of the
Congress.
)-
59
I felt that, therefore, for the su|K>rior court to be involved with
tliat would mean probabl}^ you would ^et lost in the shuffle, and it
wouKl. in a sense, be inconsistent with the spirit of home rule for us
to be a part of that aeneral uiachinery. That was one problem.
The othei- objection 1 had we really did not need it. We were, we
are, and we wei-e tryino;, disposing of cases in timeframes Avhich the
Speedy Trial Act requires not for today, but requires the Federal
roui'ts to iii(>ot 5 years fioin now. and we ai'e nieetino- those today. And
1 did not believe, and I do not l)elieve, that we have to be under a
compulsion of law to do something which we are doing anyway,
[Subse(|uciilly. Judge Gi-eene submitted the following memoran-
dum for the r(H-ord : I
60
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
MEMORANDUM TO THE JUDGES RE SPEEDY TRIAL ACT
The Speedy Trial Act, which the President signed into law on
January 3, 1975, exempts the Superior Court from its provisions
in accordance with our request. As you know, the statute prescribes
that defendants in criminal cases must be arraigned within ten days
from the filing date of an information or indictment and they then
must be tried within certain time limits. Specifically, during
the first effective year of the Act (January 1976 - January 1977)
their trials must commence within six months of arraignment, during
the second effective year trials must commence within four months
of arraignment, during the third effective year within eighty days,
and from January 1979 on defendants must be brought to trial within
sixty days of arraignment. Under the new legislation, certain
periods are not counted toward those mandatory time limits. These
include such periods as delays attributable to mental examinations,
to hearings on pretrial motions, to unavailability of essential
witnesses, to the complexity of a case requiring extended preparation,
and the like.
61
- 2 -
While the bill was pending, my Office conducted a hand-count
survey of the criminal business cf the Superior Court during one
typical month to determine core precisely than had been possible
in the past cne time intervals between the commencement of prose-
cutions and their disposition, as well as the reasons for continu-
ances in criminal cases.* All entries on the court jackets and
many of the actual pleadings were examined to determine the exact
status of the cases, what postponements had occurred and why. The
analysis of that survey has now been completed, and since it bears
on the bill that has just been enacted, I felt you would be inter-
>
ested in the results.
Included in the survey were all felonies pending or disposed
of in the Superior Court during the month of September, 1974", and
all misdemeanors disposed of during that month.**
The figures show that there were a total of 2,233 cases in
the categories actually surveyed. Of that number 1.327, or 60%,
were disposed of in less than 60 days (90 days in the case of the
* My staff used the Senate Speedy Trial Bill, S. 754, as its guide
in compiling the statistics. Under that bill the time limits were
fixed from the date of Indictment to the date of trial. Under the
House bill that was ultimately enacted into law, the time limits
were changed to begin running from the date of arraignment to the
date of the commencement of the trial. This change provides, of
course, more time within which to bring defendants to trial.
** Pending misdemeanor cases were not included in the hand count
because of practical difficulties in view of their large numbers
and the disruption that would have been caused if these jackets
were kept out of circulation for any length of time.
62
- 3
major felonies of murder, rape, or multiple armed robbery, which
may be assumed to be included in the category of cases that are
complex and require extended preparation). A6% of the felonies
were disposed of in that time frame nnd 78% of the misdemeanors.
')0b cases, or 40% (668 or 5^7. of the felonies, and 238 or
22% of the misdemeanors) were disposed of after, or had been pend-
ing for, more than 60 days. However, the trials of 553 of these
906 cases, or 2A% of the total, had been postponed for reasons which
constitute exceptions under the speedy trial statute and which would
even five years from now clearly permit extensions beyond the 60-day
time limit of the Act, '
This left only 353 cases, or 16% of the total, in which there
was any question about adherence to the time limits ultimately
provided for under the speedy trial law. However, courtroom clerks
up to now have indicated on the court jacket frequently only the
fact of a continuance, without showing who requested it and for
what reasons. Based on the experience with the cases in which
grounds for postponement were provided on the court papers, it may
legitimately be assumed that in many, if act most, of the remaining
353 cases the reasons for the delay, if ascertainable, would like-
wise be acceptable as exceptions under the speedy trial statute.
03
- 4 -
In short, it appears (1) that the average disposition time of
felonies Is approximately 60 days, and (2) that where the 60-day
period is exceeded, it Is in tr.e overwhelming majority of cases
for reasons which would constitute excusable delays under the
speedy trial law.
The conrlusion that the Superior Court is In essence disposing
of its criminal caseload now in a time frame that the Speedy Trial
Act demands of the federal courts four years from now is, of course,
gratifying. Nevertheless, it obviously is the Court's duty to law
enforcement, to the defendants, and to the community to continue
to ensure the swift and effective disposition of criminal trials.
Indeed, I consider that 'the congressional action exempting this
Court from the speedy trial law imposes a special obligation on
the Court to remain current on its own initiative. Toward that
end, a number of actions are being taken effective immediately.
First. The courtroom clerks are being instructed to enter on
each criminal court jacket the reasons for any continuance and the
identity of the party requesting the continuance. A standardized
list of the most common reasons for continuance is being furnished
to each courtroom clerk in order that the jacket entries may easily
be transferred to the Court's computer. This will hereafter permit
improved control of continuances and analysis of the reasons for
postponement without resort to the elaborate and time-consuming
hand-count method.
64
5 -
Second. The Data Processing Division of the Court is now
compiling, and will furnish monLhly to each judge, each Aesistant
United States Attorney, and each defense counsel a list of all
felony cases for which that particular iiidividual is responsible,
in any case where charges are still pending sixty days or more after
the arraignment (ninety days where the principal charge is of the
Felony I category). Judges, prosecutors, and defense counsel will
be expected thereafter to give priority in scheduling to defendants
on that list.
Third. Thirty days later, and every thirty days thereafter
as necessary, similar li«ts showing the time c''"pR'='^ since the
arraignment will be furnished to each judge. Assistant U.S. Attorney,
and defense counsel handling felonies, and these lists will also
show the reasons for the various continuances. Copies of these
lists will be supplied to the United States Attorney, the Public
Defender, the Criminal Justice Coordinator, and to me.
If the indications are that some cases have been continued for
too long a period of time due to the excessive workload assignments
of certain Assistant U.S. Attorneys or certain As-Distant Public
Defenders, the United States Attorney or the Public Defender, as
the case may be, will be expected to reassign cases to other
Assistants so as to facilitate the speedy dispositions of these
cases. If cases are being repeatedly continued because certain
65
- 6
private defense counsel have been assigned to more cases than they
can expeditiously handle, the CJA Coordinator will bring this fact
to the attention of the AxralgT-Tient Judge, so that it may be taken
into account in making new assignments, or, in especially aggravated
Instances, in determining whether counsel should be relieved of
some of his existing assignments. If the reports show that some
judges have a larger felony caseload than they can expeditiously
handle, I shall reassign part of that caseload to other judges.
Fourth. Depending upon the results achieved by these experi-
mental measures, I may recommend permanent rules changes to the
Board of Judges.
It is my expectation that these steps will enable the Court
to continue to maintain the speedy and effective disposition of its
caseload without the necessity of legislative Intervention. If
experience should indicate otherwise, I will not hesitate to request
legislative assistance.
Harold H. Greene
Chief Judge
January 7, 1975
52-587 O - 75 - pt. 1 - 6
66
DISTRICT ATTORNEY, ELECTED OR APPOINTED
Mr. Washington. In the spirit of self-government and home rule,
would you ao:ree that Washington ought to have its own elected
district attorney ?
Judge Oreenk. I tliink certainly philosophically, yes. It seems tome
that in the spirit of home rule, the prosecutor ought to be local, just
as the marshall or the sheriff ought to be local.
Insofar as the district attorney problem is concerned, it is compli-
cated by the fact that we happen to have a very excellent US.
attorney's office and very capable, and l)ecause of the high prestige
which it enjoys, it attracts the finest law graduates and young lawyers
from all over the r-oimtry. I would hate to see that practical advantage
dissipated. So, it really Avoid d be for someone else to make the judg-
ment as to where the priorities lie. It may be that if we had a local
district attorney, he might be equally capable of attracting capable,
good lawyers. But. T certainly do not have any objection or would not
voice any objection to any such move.
Mr. Wasiiin(;ton. Tliaidc you. ITow do you caVulate your 60 days
between arraignment and trial? Do you include nolle pross in the
calculation ?
Judge Greene. Xo, we do not. We calculate the 60 days, those are
only the cases that are disposed of by the court.
ROTATION OF JUDGES
Mr. Wasttington. Your court has a I'otating schedule for the assign-
ment of judges to get different divisions. Do you feel that this is the
best way to utilize judicial expertise and experience?
Judge Greene. Yes. I do. I believe that one of the purposes of the
Court Reorganization Act was to permit that kind o^^ flexil)ility- There
are some who believe that judges can and should be experts in one
particulai' field, and oidy deal with that pai'tindar field. I believe
experience has shown that that is not necessarilv the best system.
lender our pi-esent system, where I have the fle^il)ility of assigning
and reassigning judges, when I find, for example, as I d^d several
months ago. that tlie juvenile case load Avas increasing, and our backlog
of cases was increasing, not alarmingly, but somewhat, then I was able
to take some jud.'^es and move them from elsewhere to try to reduce
that kind of increase in numbers.
There are also other advanta,q:es to it. T think jud^fes who do rotate
fi'om lu'aneh to lu-anrh. fi-om division to division, do not noressarilv
get as stale as judges who simply work in one single fieVl. It is, I ''hink,
on the whole better to have judofes rotatinc; even as betAveen felonies
and traffic. People frequently haxo said Avell. you can't haA'e a major
felonv judge sitting in traffic court. I think people in traffic court and
the small claims are as entitled to good judicial manpoAver as people
any place else, and so it seems to me from many points of vicAv that
rotation is a good system.
Mr. Washington. It might ho helpful for us. in our examination.
Judge Gi-eene. to knoAv what the factors are tliat vou take into account
in assigning judges to different areas, to juA'cniles, to felonies, mis-
demeanors, or are there any objectiA^e standards that you would look to ?
67
Judge CiiiEENE. Well, the standards are objective in the sense that,
not that they are put down on paper any place, but 1 try generally, to
the extent possible, to consider somewhat the preference of the judge.
If the judge feels particularly comfortable in trying civil cases, or in
trying family division cases, he will be there more often. 1 will also
consider the tact of workload. Some branches are notoriously heavy for
the demands it makes on the judge.
Say, for example, trailic court is a good example. If a judge has been
in trattic court this month, then next month 1 try to give him a lighter
assignment. And then 1 consider the particular expertise of the judge,
depending on what I feel are his strong points, and I will try to assign
him more often to branches and divisions in which he could be most
useful to the court.
MARSHALS
Mr. Wasiiixgtox. We have heard complaints regarding the marshal
service. Are you satished with the quality of the marshal services as
the}' relate to your court (
f Judge Greene. Not entirely, no. The marshal service is by and
large inadequate, and particularly in regard to the work that it per-
formed in pi'oducing defendants who are incarcerated before judges in
the amount of time 1 consider reasonable. It frequently takes the
marshal service a half an hour to 40 minutes to produce a defendant
in a courtroom, with the judge, defense lawyers and prosecutors and
rhe witness and everybody sitting around waiting. And no one can go
forward. And we are losing a great deal of valuable judicial time
because the marshal service is unable to bring the defendant up from
the cellblock.
Whether that is due to inadequate manpower, or whether it is due
to other factors. I cannot tell. But, at the moment, that part of the
service, at least, is not satisfactory.
Mr. Wasiiixgtox. What about your own support services, your own
shops, are you satisfied with the quality ?
Judge Greene. Yes. I think we have an excellent social services
division, and we have a very good clerk "s office. I really have no com-
l^laints at this time with any of our own support services.
courts RELATION'S I IIP WITH OTHER AGEXCIES
Mr. Washixgton. To what extent does your court have communica-
tion with other components of the criminal justice system, and we can
base this as monthly, annually.
Judge Greene. We meet both formally and informally quite fre-
quently, with some agencies more than with others. I see the U.S.
attorney cei'tainly at least thi-ee or foui- times a month, sometimes
more often than that, and his assistants more frequently than that.
I am frequently in communication with the chief of police. I used to
be more in communication with Chief Wilson than Mr. Cullinane,
who is still new on the job. so we have not really had that much time
to get together. I meet with others in the justice system, and we have
somewhat less communication with the I)ei)artment of Corrections.
Mr. Wasiiixgtox. Is there any reason for that? By implication, you
are commending the police and the prosecutors and the court, and
68
I am wonderino: whether or not anythino; was intended by the omission
of the Corrections Department ?
Judfre Greene. I do not really know. It may well be that Ave simply
do not have that many problems in common. So far as the police is
concerned and the prosecutors, they are in our courts and we meet,
we must meet with them because we have common problems of sched-
ulinc: or thins^s of that nature. So far as Corrections are concerned,
by and lar^e. after we deliver them, if a person is sentenced we deliver
them to the Department of Corrections and the Department of Cor-
rections does not really want to hear from us anymore. They are the
ones who now are in charge of correcting: the person, and the judjje
and the law certainly supports that view, that the judjre loses any
control over the defendant after he is delivered to the Department
of Corrections. So, it may just be that we have less by way of mutual
day-to-day problems.
I should say also in addition. thou_eh, that the Criminal Justice
Coordinatino; Board that Jud^-e Reilly mentioned, and on which I also
sit, has many committees and Mr. Schuman and others from the court
are on these committees as my representatives and the representatives
from the Department of Corrections are on those committees. So, in
that re^-ard, there is a fairly constant communication and contact.
Mr. Washtxgtox. Are you satisfied and do you think the process
is adequate for the sharing; of information, ideas, programs and the
like, amon.of the constituents or components of the criminal justice
system ? By that, I mean the full ranije.
I mean, I think as we have said before, too frequently we perceive
criminal justice as the police. ])rosecutor, and courts, rather than the
other services, and what is terriby important is that the whole reha-
bilitation process be factored into criminal justice. I am interested and
the committee would be interested in havinc: your views on how fre-
quently this kind of information is shared.
Judge Greene. I think there is probably more contact here amons:
the various agencies of the criminal justice system than there is in
other places. Particularly insofar as rehabilitation is concerned, our
Social Services Division has compiled, on the basis of information
g:iven to us from the Department of Human Resources and others,
a manual of all prosframs that are available in the city for various
rehabilitative purposes, and that is constantly beinc: kept up to date
by contacts that are beino; made with these various ajjencies.
So. while I would not want to say that it has been completely ade-
quate, there couM alwavs be more, I believe on — balance the contacts
and communications are sufficient.
APPEELATE REVIEW^ OF SENTENCING
Mr. Wastttncton. Tliis mav be a philosophical last question, but
would appellate review of sentences lead toward a more uniform sys-
tem of sentences in vour view ?
Judw Greene. I do not believe so. T do iiot believe that an appellate
iud<Te reading a cold ti'ansci'ipt is really better oquii^ped to make a
judgment than the trial judge who has heard the case and read the
presentence report and so on.
69
T havo suir^ested in the jiast. and T liope wo can inipleniont a pro-
gram wliereby our judaes would indicate on a 1-year pilot projjram
basis, on a soi't of (]uestionnaire typo checklist, the basis for each
sentence that he ini])oses. And that would then be correlated and you
could draw some conclusions, that perhaps for the first time, as to
why certain defendants are the way they are. But, for an appellate
cou!'t to review, there would have to be standards that are readily
ascertainable, and there just ai'e not any such standards now.
Mv. Washington. Thank you very much.
The Chairman. Mr. Railsback.
JUN^NILE REHABILITATION
Mr. Ratlsback. Judfre, in your judfjment, which rehabilitative pro-
<rrams for juveniles have worked effectively? In other words, what
are you uro:ino; be done ?
.Tudofe Greene. Well, job training is — it depends on what you speak
of. For instance, you have among the juveniles, about one-third of the
juveniles that come to us have school problems, so as to them some-
thinir has to be done to educate them, to try to ^ret them perhaps into
remedial education.
When we are talkinof about adult offenders, many of them, many of
the juveniles, too, have emotional problems, so you need psychological,
psychiatric services.
But overall. I would think that job training, meaningful job train-
ing is the key. The i:)erson who does not have a job is much more likely
to go back to peddling dope or holding up liquor stores than anybody
else. And I am not saying that unemployment is the key to it, because
obviously it is not only people who cannot find jobs who resort to
crime, but good job training for meaningful jobs, not making up
license plates, but for jobs that somebody could find when he gets outs,
seems to me is the most imnorfant factor.
Mr. Railsback. In the District right now, what kind of diagnostic
facilities do they have to place or assign juveniles ?
Judge Greene. I am not sure I understand.
Mr. Railsback. Well, for example, in some State prison systems and
also some Federal prison svstems, when a person is incarcerated he is
first subjected to rather thorough psychiatric testing and, based on
those results, he will be assigned to a pai'ticular facility that may be
more suited for him. Does the District have a system like that?
Judge Greene. Well, the court itself has a psychological guidance
clinic and has some psychologists for juveniles. In the superior court
itself, we have some services of psychologists for that kind of testing.
If children are found to be involved in law violations, and they are
sent to one of the institutions in the Department of Human Re-
sources, I am quite certain — is that not right, we have a diagnostic —
Mr. Schuman informs me they have a diagnostic unit at the Children's
Center.
sentencing review
Mr. Railsback. Would vou favor pome kind of a sentencing review
by peers? For example. I think Chief Justice Burger is proposing that
70
instead of havinfj an appellate review of sentencing he is jroing to have
District judges form panels for sentencing review. This arrangement
would permit an individual judge who was personally involved to have
some directive in the review mechanism.
Judge Greexk. We do that right now. Congressman. We have and
we have had sentencing councils for about H or 4 years. And the way
it works, I am not sure it works exactly by way of review process, but
we do have for felonies a setup, we set up panels of three, four, five
judges, every month, and those judges, before they impose sentence,
will meet with the other judges on the panel and they will all discuss
each other's sentences on the basis of presentence reports from the pro-
bation Department, and each one will make a recommendation, and
each one will give his input and his reasons as to why he would sen-
tence the Avay he would.
Mr. Railsback. I see.
Judge Greene. But the ultimate responsibility rests with the judge
who heard the trial. But we do use sentencing councils.
Mr. Railsback. I have just one last question. What is the job place-
ment mechanism right now for placing olfenders once they have served
their time?
Judge Greene. I am not certain I can answer that, because we have
no — the Department of Coi-rections would liave to pi'ovide that answer.
I simply don't know.
Mr. Railsback. Thank you.
The CiTATRMAX»]\rr. Giide, do you have any questions?
Mr. GunE. Yes. Thank you. ^Nfr. Chairman.
I certainly want to commend Judge Greene for his leadership and
hard work. He is a constituent of mine.
( "OUXSEETXG JUnOES
In addition to the question of uniform sentencing standards, the
adequacy of services to the judges in making sentences and disposi-
tions of cases, and the adequacy of the rehabilitative facilities, are
other areas in which I think we must be involved insofar as the courts
and recidivism are concerned.
Are the facilities as far as support for the judges in making disposi-
tions of cases adequate? I gather that they are from your point of
view ?
Judge Greene. Yes. I have no complaints. As far as I am concerned,
the presentence reports tliat we receive from our Social Services Divi-
sion of adult probationers as well as juvenile are adequate. Obviously,
they, like everything else, they vary in quality. Some are better than
others. But I have no complaints there. They are perfectely useful for
the purpose for which thev are intended, and T think our judp^es do
have a full background of the person whom they have in front of them
at the time they impose sentence.
Mr. GuoE. So there nre no staffino- inadequacies in that area?
Judge Greene. Xo. T do not believe so. They may think they need
more people, but 1 do not.
Mr. GiTDE. Would you say this represents the .q'eneral consensus as
far as the other judo-es are concei-ned? Have you heard them complain
about the adequacy ?
71
Ju(I<re Grkkni:. They lmv(> not (•()ini)laiiuHl. 1 should say that it is
possible tiiat out of 44 iud<i:es, just as I suppose with all of the mem-
bers of this committee, you would (ind a diverjLience of views and some
may not be satisfied. Hut. I would say that I am expi'essiuji; the con-
sensus of the views of the judges when 1 say that we are satistied.
SKXTKNCIXG
Mr. Gi'OK. So. it would ai)peai' tliat the divergence of sentencing,
what appears to be erratic sentencinu-, would not be due to the inade-
quacies of counseling oi- outside su2)port (
.Judge (tkkkxk. Well. Congressman Gude, I am not certain I would
accept the pivmise that the sentences are eri'atic. It is difficult to quan-
tify really how a person should be sentenced. It is not something that
you can just take out of a computer and say. well, a bui'glary should
be given such and such a sentence. If you have a person who breaks
into an abandoned warehouse to sleep during the winter on the one
hand, and on the other hand you have a person who breaks into some-
body's home to try to steal, rob his safe, they are both burglaries, but
they do not necessarily deserve the same kind of sentence.
And when one may have been younger, or older, one may have been
from a stable background or one may have a prior record, all of these
things are taken into account. And when newspapers come out wnth
sentencing statistics, and they simply say well, look at the variations,
well, the variations may at times be explainable by the different char-
acteristics of the persons we are dealing with.
Xow, I am not saying that there may not be disparities that are
unjustified, and that is why I am proposing that we have this study
where at least on a 1-year basis, the judges Avould indicate on a rela-
tively simple form why they are sentencing the way they do. And then
we would have an indei)endent outside organization evaluate this, and
some sort of standard against which to measure future sentences.
But. beyond that, it seems to me at the moment difficult to go
^fr. Gi'DK. Tlien the disparity, in your opinion, at this time w-ould
be the excepti(m rather than the rule in sentencing?
Judge Greene. Well, it is hard, it is hard to say. I think, I would
be frank. I would have to say some judges do sentence more harshly
or more leniently, dependin.g on how you want to look at it. than others.
And until we have made this kind of a study, it is really difficult to
know. Xo one knows. I do not think anywhere in the country a real
statistical, scientifically based study has been made on what consti-
tutes a uniformly acceptable sentence.
JOB CORPS PROGRAM
!Mr. GroE. Yesterday evening, a group called Women in Community
Service had a reception here on the Hill and they were in strong sup-
port of expanding the Job Corps program. One of their pi'incipal
arguments was that this, the Job Corps served dropouts from school
in poverty areas. I was wondering if you had any familiarity with this
proflfram ? Do you think this is a successful program or not ?
Judge Greene. My impiession is that it has been successful, and I
tliink it should be expanded if funds can be found for it.
72
Mr. GuDE. Do you think this type of program does get to the root
cause ?
Judge Greene. It certainly is very useful, and I did not particularly
go into the question of the root causes of crime, because the criminal
justice system is relatively powerless to deal with them. But I certainly
think no one can neglect them, and can simply deal with the symptoms
if we do not address ourselves to some of those root causes, and then
the rest of it will be more bandaid than anything else.
Mr. Gt'de. Thank you, Mr. Chairman.
The Chairman. Each one of the three supporting panelists has a
prepared statement. Without oSjection, the statements of Mr. Schu-
man, Mr. Malech, and Mr. Bischoff will be entered into the record
at this point.
[The statements of Mr. Schuman, Mr. Malech. and Mr. Bischoff
follow :]
Statement of John M. Bischoff, Principal Deputy Clerk. Family
Division. Superior Court of the District of Columbia
Mr. Chairman and members of the Committee, m.v name is John M. Bischoff.
and I am the Principal Deputy Clerlv and Director of the Family Division of
the Superior Court of the District of Columbia. I consider it a privilege to have
been invited to appear before this committee to testify in its hearings on crime
in our area.
juvenile delinquency
It is particularly gratifying that this committee is reaching down below the
level of adult crime to explore its root area : that seedbed referred to as "juvenile
delinquency." I believe it is important to stress, at the outset, the role of the
Family Division in the Superior Court in terms of its expected accomplishments
at the time of its creation by the Court Reorganization Act : what it has accom-
plished and what it cannot accomplish. Petitions relating to juvenile delinquency
and Persons In Need of Supervision are processed in the Juvenile Branch of this
division. Two other branches deal with domestic relations matters and intra-
family and neglect cases. .Juvenile cases represent approximately 50% of the
total workload of the Division, thereby requiring a considerable proportion of
our resources in terms of both judicial and non-judicial efforts. Moreover, the
nature of the proceeding is such that various other internal and external agencies
must also be extensively involved.
My own role with regard to the Division's function is that of administrator
of its overall day-to-day operations, advisor to the Chief Judge with regard to
utilization of judge-power, liaison officer to the bar and other concerned groups,
advisor to the Division's committee on Rules and Procedures, as well as a link
to its past. In this latter role, I believe it to be important for the court, the
community and this committee to be aware of some of the expectations for this
division at its inception and how they relate to actual accomplishments. Tliere
was in 1970. and for many years prior thereto, a concept which remains strong
today with regard to the mission of a family court, but which somehow falls
short of being in the real world. It is often vaguely anticipated that somehow by
placing all matters relating to family litigation under one jurisdictional um-
brella, a panacea for all past problems will be found. We can quickly come past
all of the arguments pro and con regarding the American Bar As^ioclation's
recommendations as set out in its Model Family Court Act, because the District
of Columbia with its court reorganization adojited all of them. While the basic
premise that the litigious ills of the family can better be treated in a total unit
approach is a laudable one. it is one extremely difficult to implement with prac-
tical results. Please permit me to use your present explorations as an example.
We will discuss this morning the prolilems regarding iuvenile delinquenc.v. and
while it represents the single largest segment of the Division's activities as above
noted, we are still not di'^cussing the domestic relations problems which have a
bearing on jnvenilf^ deMnquenc.v. nor are we discussing intra-fnmily and neglect
matters which are possibly even more closely tied to juvenile delinquency. Yet we
73
espouse that the Family Division, by having all of these elements under its roof,
can somehow consider all of them together as we seek to diagnose one specific
malady and recommend a cure. While I submit that tlie broad theory is a good
one, and one which perhaps is appropriate for the sociologist, 1 must also hasten
to warn that the problem of having to adjudicate vastly different legal rights
in these cases may preclude any magical merger of the family unit ills for my
division's considerations, however worthy. Simply assigning a rather euphemistic
name and creating a logical organizational structure cannot by itself breathe life
into the theory.
But despite all this, let us look for a moment at the juvenile delinquency prob-
lem in the District of Columbia. The Family Division, as well as the other divi-
sions of the Court, has met all legitimate expectations regarding speed of
disposition of its cases. Xo longer do juvenile respondents langui.sh between
apprehension and trial to a degree that there is little or no mental correlation
between the alleged act and the court's intervention. The foresight of earlier
congressional committees and community planners gave the courts a compre-
hensive statute regulating juvenile proceedings which is a model in the adminis-
tration of justice in this area. There are safeguards within the statute that pre-
clude a youngster from being lost in the system until he has reached his majority
as was too often the case in earlier days. The same statutes guarantee all adult
rights to juveniles including but not limited to the reclamation of the true
prosecutorial function as well as that of defense counsel. Yet with all of this
there remains a deep and abiding concern of the community with resiiect to the
reports that 50% of all crime in the Metropolitan Area is committed by juveniles.
While solutions are illusive and fall outside of my own specific role, and indeed
perhaps that of the Court itself, I would like to make the.se few observations.
Courts charged with administration of juvenile justice are faced with a con-
tinuing philosophical dilemma. Without delving deeply into the background and
history of the evobition of the juvenile justice .system in this country, .suffice it to
say that this dilemma basically consi.sts of trying to be responsive to the com-
munity's rights of in-()tection on the one hand, while attempting to follow a course
of action which is hoped to ultimately reform or rehabilitate human beings at
a time when such efforts are felt to be more prone to success, namely at an early
age. These two horns cannot be mutually exclusive, and stretched between them
is a very thin tightrope upon which the court must balance as it exercises its
discretion in the disi)osition of juvenile cases.
PROBATION
I have observed the judges, in their concern to maintain this delicate balance,
lean more and more toward the utilization of probation and away from institu-
tionalization. While on the surface this may appear to fly in the face of the
mandate to provide protection to the community, a deeper motivation must be
recognized. With the probation tool, there can at least be a more positive scrutiny
maintained with the juvenile through eyeball contact of probation officers and
frequent court reviews while at the same time maintaining him in some normalcy
of lifestyle. Moreover, whether by reason of lack of resources, time, faulty theory,
or any combination, the rehabilitative results of institutionalization in it.s present
framework has been less than impressive.
REC0MMRNDATI0:VS AS TO JUVENILES
Perhaps it is time to re-examine the whole juvenile ju.stice philosophy. The
reformation-in-lieu-of-punishment idea is ]tre.sently being reaffirmed and cast
aside by rather equal camps. There are those now calling for a change citing a
theory of "children's right to punishment" and throwing aside the idealogical
argument that criminal conduct is a symptom of a child's need for help. This
growing body of thought finds is unacceptable that the courts are not enough
concerned with deterrence because of an overwhelming emphasis on reform and
rehabilitation. All of this is i)erhaps far deeper than it is anticipated to explore
at this time. However. I believe it important that it be mentioned. There are
some specific suggestions which might prove useful at least to stimulate thought.
1. There is a possible need to remove the so-called "status crime" from the
court .scene. The category now known as Persons In Xeed of Supervision (PINS)
is one which could be considered for diversion prior to any entry into the juvenile
74
justice system. School truancy, Beyond Control of Parents and the like are
activities or symptoms which lend themselves to treatment by resources far
removed from an adversary justice system.
2. The overwhelming preoccupation with secrecy in regard to juvenile pro-
ceedings and identification of offenders might be turned completely around so as
to become a possible deterrent. There are, I understand, jurisdictions in which
publication of offenders' names and their offenses in the local press has proved
fruitful. This would not go to the matter of sealing of records and perhaps right-
fully so, because there should be a limit as to how long a juvenile offense should
be carried by an offender.
3. Somehow there should be formal emphasis given to family responsibility
for the acts of its offspring such as establishment of specific civil and/or criminal
liabilities. There has been, over the past several years, an unfortunate abdication
of this responsibility which must contribute in great part to the overall problem.
School systems have raised up in arms against the expectation that they be
required to become substitute parents as well as instructors. Juvenile justice
systems should not seek out the role of parens patriae to the extent that this
abdication is encouraged.
In conclusion, I submit that the Family Division is meeting its obligations
within the bounds of its mandate and the philosophical framework established by
the community. It has been said that the courts are not only slow but reluctant
to change, but I would urge that deliberateness should not be confused with
speed, nor caution with reluctance. I am confident, not on'y that our record will
bear out a willingness for innovation, but that the community will continue to
recognize that is only with their support and direction that we can continue to
be effective.
Statement of Arnold M. Malech, Executive Officer, District of Columbia
Courts
Mr. Chairman, and Mr. Mann, thank you for affording me an opportunity to
appear before the Committee on the District of Columbia in connection with its
study of the administration of criminal justice in the National Capital Area.
COURT ADMINISTRATION
Among such other information that you and members of the Committee and
the staff are gathering, you might be interested in hearing something about the
functions of a Court Administrator. Several years ago the Chief Justice of the
United States sounded a clarion call for the development of professional, non-
judicial resources and trained personnel to provide the means for the courts to
meet the increased and increasing burdens placed upon them in an era of modern
technology, increased awareness of individual rights and sizable increases in the
work load. In a 1960 speech before the American Bar Association in Dallas.
Texas, in which he made this call. Chief Justice Warren E. Burger announced
to the members assembled, and through them to the American public, that there
was a .substantial need in the American judiciary for trained Court Adminis-
trators. The Congress, recognizing the need and the accuracy of the Chief Justice's
call, shortly thereafter enacted into law two separate bi'ls providing for Court
Administrators. One of them, the Circuit Executive I^aw. Public Law 91-647. 84
Stat. 1907 (January .'i. 1971). authorized the appointment of a Circuit Executive
in each of the eleven T''nited States Circuit Courts of Appeal. The other bill,
the District of Columbia Court Reform and Criminal Procedure Act of 1970.
Public Lnw 91-35S. S4 Sfaf. 473 (July 29. 1970). provided for the position of Ex-
ecutive Offipor of the District of Columbia Courts. Mr. Chairman, I appear before
you today in that capacity.
In the six years sim^e the Chief Ju'^tice of the T'nited States issued his call for
trained Court Administrators to relieve judges of the non-iudicial aspects of a
judicial system, there has lieen established a trainine: institute for Court Ad-
ministrators and Court Executives and a ng,tionwide increase in the number of
Court Administrators serving at both the trial court level and the state court
level. The Court Administrator brinur'; to a judicial system, in a professional
capacity, knowledge of th" most modern methods and techninues of business
practices and the principles of management. He brings with him. or is able to
75
identify fur the court system, methods, procedures and technology that could
hv adapted to the use of courts in order to assist in the management of the
judiciary in a complex largely urban multi-judge court environment.
EXECUTIVE officer's FUNCTION
It is with this background that I would like to explain the function of the
Executive Officer of the District of Columbia Courts. To begin with, the position
is different from that of other Court Executives, Executive Officers, or Court
Administrators throughout the United States in that it encompasses the func-
tions of what in anotlier jurisdiction would be divided between the State Court
Administrator, on the one hand, and a Trial Court Administrator on the other.
The position I occupy, Mr. Chairman, is the equivalent of that in other jurisdic-
tions of their State Court Administrator, and, as a matter of fact, entitles the
incumbent to membership in the Conference of State Court Administrators, whose
membership is limited to State Court Administrators. The position also encom-
passes the functions of a Trial Court Administrator, which, as I have just
indicated, is a separate function in other jurisdictions. Under the Court Reform
and Criminal Procedure Act of 1970, a governing body for the local courts is
established. It is also known as the Joint Committee on Judicial Administration
in the District of Columbia and is responsible for sulmiitting the budget of the
Courts, for certain specific kinds of policy formulation and for implementation
within the court system. The Joint Committee and the Executive Officer have
certain duties in common.
Let us, then, view the position of Executive Officer from three different perspec-
tives. First, the incumbent serves as the staff arm and adviser to the Joint
Committee within matters for which it is responsible, and simultaneously, he
serves as staff arm and adviser to the Chief Judges of the District of Columbia
Court of Appeals and the Supreme Court of the District of Columbia. The Chief
Judge in each ca.se has ultimate administrative responsibility for the court of
which he is Chief Judge. The first viewpoint of the position of Executive Officer,
then, is as the staff arm and advi.^er to the Joint Committee and to the Chief
Judges.
The second viewpoint of the position may be described best as that of manag-
ing director for the everyday business of the Courts, and in this capacity the
Executive Officer is akin to the chief executive offcer or president of a business
corporation. For this purpose the Clerks of both Courts have been designated
principal assistants to the Executive Officer for each respective Court, and the
Clerks continue to administer clerical operations of their Courts.
EXECUTIVE officer's RESPONSIBILITIES
The Executive Officer supervises the Fiscal Officer of the District of Columbia
Courts and the Director of Social Services. In the former capacity the Executive
Officer is akin to a comptroller of a business corporation. He also supervises the
Court Reporters, who are full-time employees of the Courts. He is mandated to
))rescrlbe rules, practices and procedures i)ertaining to fees for transcripts. In
March 1073. ru'es were developed and promulgated pursuant to the mandate.
In addition to that, other Court personnel may report to him in the conduct
fif ongoing business of the Courts. Within this area, other responsibilities of the
Executive Officer are:
1. Recruitment, appointment and retention of non-judicial personnel.
2. Fixing compensation of non-judicial employees.
i^. In-service training.
4. Management of buildings and space assigned to the Courts.
o. Procurenipnt of eciuipment. supplies and services.
fi. ContrnctinjT for equipment. supj)1ies and services.
7. ^laintaining and safegimrding the records of the Courts.
5. Maintai'iinsr Unison with other local and federal agencies and courts.
f>. .Turv minasrement.
10. Publication of Annual Report.
n. Justification of the court system's budget before the City Council and the
Concress.
12. Condnctinc ^tud'e* and rfsearch concerning Court ojierations.
1.3. Recomending changes in Court rules.
76
14. Collecting and compiling statistical information with respect to the volume
and disposition of tiie work of the Courts and the personnel of the Courts.
15. Mechanizing and computerizing Court operations where feasible.
16. Serving as public information officer.
17. Keeping the Courts advised of pending legislation and executive actions
relating to the Courts.
Continuing within this framework, the Executive Officer, subject to the super-
vision of a Chief Judge of one of the Courts, performs whatever services that
Chief Judge may assign to him.
Finally, the third viewpoint from which the position may be seen is that
which I like to describe as experimental or innovative. There is latitude to try
new procedures and new technology within the framework of the law. It is
only by trial and error and with experimentation or innovation that new proce-
dures and more efficient practices may be developed.
All three functions of a trial court administrator are equal and coordinate.
By applying his professional qualifications to these functions, he has an over-
view of the court's administrative operations.
Mr. Chairman, you may be familiar with the work of the National Advisory
Commission on Criminal Justice Standards and Goals undertaken on behalf
of the Law Enforcement Assistance Administration of the Department of Justice
several yea7s ago. Within Standard 9.3 relating to Trial Court Administrators,
there are twelve standards described. As a principal contributor to the task
force which developed these standard.s, I believe that their use by a court
should have a salutary effect on the administration of criminal justice. I submit
that the District of Columbia is in substantial compliance with the standards
set forth for Trial Court Administrators in the Report on Courts of the
National Advisory Commission.
To relate a connection between the function of the position of Executive
Officer and the administration of criminal justice, I am a member of the District
of Columbia's Criminal Justice Coordinating Board, the State Planning Agency
establishe<l pursuant to the Omnibus Crime and Safe Streets Act of 1968. The
Board makes policy and coordinates and dis.seminates information between and
among public agencies and the community. I am deeply involved as a member
of the Board in developing, coordinating, planning and implementing a criminal
justice overview and the allocation of resources for the community. Recently,
the Board was engaged in a two-day session of intensive meetings, in which I
participated actively, in order to accomplish some of these things. One of the
things I kept stressing and stress to you now is entry of persons as defendants
into the criminal justice system. We should. Mr. Chairman, provide resources
to keep youngsters from entering the criminal justice system in the first place
and provide the means for those who have been througli the system to refrain
from entering it again. Chief Judge Greene has already indicated how effective
the Superior Court is with respect to the speed with which trials are held. I
agree with his assessment, but I should like to point out to you that we must
maintain an eternal vigil to insure that criminal trials are conducted promptly.
JURIES
Some of the things that may be involved with speedy trials are jury manage-
ment and attorney scheduling. With respect to the former. I have analyzed
juror usage in the Court over a period of time and have been able to effectuate
some modification that resulted in improved juror utilization. One of these
was to have jurors report for actual service on enrolment day, and another
was to combine the excusal day with the enrollment day. A problem does exist
in this regard which relates to speedy trial and the flow of cases. It is the
question of voir dire. The District of Columbia might, perhaps, consider what
some other states do by allowing only the judge to ask questions on the roir dire.
Another possible way of reducing the time involved in the selection of a jury
is to reduce the number of peremptory challenges.
An idea I have for possible future use and implementation is to place controls
on juror usage by means of a computer. Each juror would be issued a plastic
card in the beginning of his term of .service which would bear his coded juror
numlter. When a panel is requested by a judge, a random selection would be
made by the computer which would then print the juror list both in the jury
lounge and in the courtroom on remote terminals containing printers. When
the panel is assembled in the courtroom, each juror's card would be processed
77
by the Clerk through the remote terminal to indicate his presence. As a juror
is selecrcil his card would be processed accordingly by the Clerk in the remote
terminal, and as a juror is stricken his card would be processed accordingly
in the remote terminal, thereby restoring his name to the list of available jurors
before he physically returns to the jury lounge. This system has not yet been
tried, but I probably would like to experiment with it at some time in the future.
ATTORNEYS
Another interesting use of an information system could be attorney scheduling.
One of the principal ingredients in speedy trials is the availability and pre.sence
of an attorney. It should be possible for attorney schedules to be placed on
a central computer so that all courts in the jurisdiction would have access to it
and would be able to tell by a simple inquiry the availability of a given attorney
for a specific day. The use of automatic data processing equipment for this
purpose may aid substantially in keeping calendars current.
APPEALS
Speedy trial also addresses itself to the release of persons accused of crime
and the balance between that kind of Constitutional issue and the cry that some-
times ri.ses in the community for the incarceration of persons accused of crime.
If it were possible to emulate the British system, I would be much in favor of it.
In England, a trial starts shortly after the alleged offense and may last only a
brief period of time, but upon conclusion of the trial any appeal is heard and
decided far more swiftly than is the custom in the United States, which leads me
to the question of finality of judgment. Persons who have been convicted of crime
in this jurisdiction and others throughout the United States sometimes defer the
start of their sentences, pending an appeal to a higher court. I Tyonder, Mr.
Chairman, whether we should not examine the requirements for perfecting rec-
ords on appeal in order to make them much more .simple and far less arduous to
accomplish. Do we need, for example, a verbatim transcript of the proceedings?
Production of these transcripts frequently takes a substantial amount of time.
Should we consider the possibility of restricting appealable matters so that those
cases which are appealed and heard are decided much more swiftly?
Once there is finality of judgment there may be a series of post conviction
remedies sought, each of which consumes valuable judicial time. At this point,
Mr. Chairman, I should like to make a prediction. I predict that within a genera-
tion and, perhaps, within a decade, it will be the law of the land and the law of
this jurisdiction, that any change in a sentence imposed by a judge will require
a judicial hearing. By this I mean that the process of parole or early release from
incarceration may be transferred to the judicial branch of government, although
the power of pardon will remain with the executive. What this means is that
should the change take place, the number of judicial hearings will increase enor-
mously, and somewhere down the road I see the need for an increased number of
judges, as well as supporting personnel.
INDIGENT DEFENDANTS
With respect to representation by counsel for the indigent, I have worked
clo.sely with the District of Columbia Bar, the Public Defender Service, and the
Joint Committee in developing procedures and forms to implement the District
of Columbia's Criminal Justice Act. Prior to the beginning of this fiscal year, pay-
ments for indigent defendants in criminal cases were processed through the
Administrative Office of the United States Courts pursuant to an appropriation
made on behalf of the federal judiciary. This is the fir.st year in which the pay-
ments are being made iiy the District of Columbia, and we are in our first year
of experience with boUi the forms and the procedures, which, incidentally, have
been the subject of accolades from the trial bar.
Thank you.
Statement of Alan M. Schuman, Director of Social Services,
District of Columbia Superior Court
Chairman Diggs, Congressman Mann and other distinguished congressmen on
the Committee on the District of Columbia, I would like to thank this Committee
78
for allowing me the privilege of participating in these meaningful and necessary
hearings concerning the administration of justice in the Washington Metro-
politan area.
SOCIAL SERVICES DIVISION
The Social Services Division of the Superior Court of the District of Colum-
bia is responsible for providing social information and recommendations to assist
the Court in making individualized decisions in all phases of the adjudicative
process ; providing Court supervised alternatives to incarceration ; and provid-
ing supportive social services to persons whose problems bring them within the
purview of the Court. The Division is organized into three major branches : the
Adult Branch which provides diagnostic and supervision services for adult of-
fenders ; the Juvenile Branch which provides intake, diagnostic and supervision
services for juvenile offenders ; and the Intrafamily, Neglect and Conciliation
Branch which provides intake, counseling and supervision services for family
members involved in intrafamily offenses and for children and/or their parents
in neglect situations, as well as the supervision of children born-out-of-the-wed-
lock cases. Three other units, functionally attached to the branches, provide
specialized services : Project Crossroads is a diversion program for adult mis-
demeanant first offenders; the Child Guidance Clinic provides psychological test-
ing and evaluation of juveniles : and the Conciliation Service offers marriage
counseling to persons involved in divorce proceedings on a volunteer, no-cost
basis.
SUPERIOR COURT CASES
For calendar year 1974 the Juvenile Branch of the Social Services Division
received 1,089 new consent decrees and 817 new probation cases. Consent de-
crees are those cases in which a juvenile is placed under six months supervi-
sion prior to adjudication and the charges against him dismissed upon successful
completion of the supervision. The branch completed 1,887 social reports and
handled a total of 4,464 cases received at intake during 1974.
A total of 2,300 cases were removed during the year including 1,793 expira-
tions, 320 terminations and 187 revocations. During the first three months of
this present year there were 337 rearrests from among our total workload of
3.438 youth — (this figure includes 1.029 pending intake cases). Of these rearrests
121 or 36 percent were for crimes against persons such as assault, rape, armed
robbery, robbery force and violence, assault with a dangerous weapon, and
homicide (2).
For the first three months of 1975 we had 199 or 11 percent rearrests and 53
or 3 percent revocations.
The Child Guidance Clinic consisting of four profes.sional psychologists com-
pleted 1,426 diagnostic reports, administered 5.704 A-arious psychological tests,
held 509 case conferences with staff probation officers, and provided 330 man-
hours of therapy.
The Infrafamily, Neglect and Conciliation Branch of the Social Services
Division serviced a variety of cases. During 1974, Intrafamily received a total
of 4,059 new cases consisting of 3,024 intrafamily, 851 neglect, and 184 child
support cases. In addition they completed 546 social investigations and had a
total of 109 referrals for conciliation services.
The Adult Branch of the Social Services Division received 2.523 new cases for
supervision during 1974, of which 1.769 were misdemeanants nnd 754 felony
cases. They also received 4,011 requests for presentence investigation reports.
There were 1,713 expirations of probation, 651 early terminations, and 20,5 pro-
bation revocations for a total of 2,569 cases remover! during the year. During
1974 the Adult Branch hnd a total .nt risk probation population of 6.102. (Total
at risk population is defined as offenders who at some time during the year were
on active probation.) There wer^ 1,026 or 17 percent rearrests. For the first three
months of 1975 there have been 276 rearrests or 7 percent of the total at ri.sk pop-
ulation of 4,192. Revocations are at the one percent level.
CROSSROADS PROJECT
During the past year Project Crossroads, the Court's adult diversion pro-
gram for mi.sdemeannnt first offenders, received a total of 516 first offenders.
Of the.se referrals 77 percent (or .396 persons) succes.sfully completed the pro-
gram and were diverted from further Court action. Of those not diverted, 71
were returned to the U.S. Attorney's Office, including 16 who were rearre.sted
79
and 55 who failed to respond to the program. There were 521 referrals made to
employment resources; employment counselors placed 185 divei'sion clients in
employment or training positions and in the area of education, a total of 166
clients received tutorial services ; G persons took the GED test. Of the 16
persons rearrested, 5 were on misdemeanant charges and 11 on felony charges.
The thrust of the Social Services Division is to see that persons under Court
supervision receive maximum community services that will result in permanent
resolution of problems that brought them into the criminal justice system. As
part of this focus on involving and utilizing the community and its resources
a Community Resources Manual was developed and completed this year. This
manual list various community service agencies along with the supporting data
required for referral purposes. Compiled to aid probation officers in becoming
more aware of the many different agencies available and the diverse services
they provide, the manuals were distributed to every probation officer and all
Superior Court judges. In this way, as various treatment plans are being con-
sidered, the manual can be referenced and the availability of agency resources
can be ascertained prior to recommending their use.
COLLATERAL SERVICE AGENCIES
In continuing the Division's policy of making maximum use of the city's
collateral services agencies, over 24,400 referrals of i>ersons under supervision
were made to other city agencies. During 1974, 9,471 referrals were made to
aeencies involved in job placement and employment counseling, 2,780 to agen-
cies for drug testing and treatment, 1,195 to alcoholic treatment programs,
3,529 to agencies concerned with psychiatric examination and treatment and
2,540 to programs for further education and vocational rehabilitation. Con-
sistent with the Social Services Division policy of utilizing community resources,
the Friends of the Superior Court, a community citizen's core of volunteers
affiliated with the Superior Court continue to provide many valuable services.
Citizens of the community lend their time and talents to the criminal justice
system through a number of volunteer programs. The program also provides
students from seven area colleges with the opportunity to supplement their
academic studies with practical experience. Some volunteers work as proba-
tion aides, helping Court probation officers with their caseloads, others provide
tutoring services. During the summer the Friends provided over 200 camp
slots for juveniles on probation.
LEGAL SERVICES
A group of volunteer lawyers provide free legal representation for children
in cases of neglect and child abuse. This program which began as a service
provided by attorneys only, new includes law students from the several local
universities. Second-year law students are used as investigators and research-
ers, while third-year law students repre.sent clients under the supervision of the
volunteer attorneys. Law students from George Washington, Antioch and
Georgetown Universities, serving as volunteers from their respective schools,
have given almost 1.400 hours to this program over the past year. From No-
vember 1, 1978 through October 31, 1974, the volunteer attorney program han-
dled representations for children in 1,789 cases, representing a total of 3,120
children. This program, if it were supported by ])ublic funds in providing these
services, would have cost taxpayers approximately $80,000.
This summer the Friends implemented the planned Child Care Center, which
operates to care for children Avhose parents are required to appear in Court.
Eligible for the Center's services are the children of defendants, witnesses, jury
members, and police. Two professional staff employees, aided by volunteers,
care for the children.
JtrVENILE OFFENDERS
I am in complete agreement with Chief .Judge Greene when he states that
the srreatest imnact on the total criminal justice system Is likely to be achieved
by providing rehabilitative services to juvenile offenders who are not criminally
sophisticated.
Despite some of the obvious efforts this Division has made in attempting to
nrnvide the erente.st protection to the community and the best possible serv-
ices to the offenders under Court supervision. I am deeply disturbed by the
high rearrest rate of juvenile offenders who go through our system. The fact
80
that 24 percent of juveniles do not successfully complete the Court's supervision
program continues to be of grave concern to everyone charged with admin-
istering the criminal justice system.
TREATMENT SER\T:CES REQUIRED
It has not been difficult for staff to diagnose the numerous problems that
confront the juveniles coming into the Court system. The problem lies in the
paucity of treatment services available to these youths. The Court in conjunc-
tion with the Department of Human Resources and the school system have
identified many crucial treatment needs of juveniles. In order to' make any
significant impact on the rising juvenile crime problem, the city must provide
priority services in the five following categories :
1. Group Homes — residences for adjudicated juveniles capable of making a
good community adjustment ; but without adeciuate care and/or supervision
in their own homes.
2. Residential Treatment Centers for emotionally disturbed juveniles, pro-
viding a therapeutic environment and flexible admissions and discharge policies.
3. Special Education Programs : This would include diagnosis of individual
need.'j such as for remedial education ; vocational training on the Junior High
School level ; special school placements for juveniles with physical handicaps
and/or behavior problems who cannot fit into the public school system. This
should be a meaningful special education program for juveniles with learning
disabilities and emotional difficulties.
4. Job Training and Apprenticeship programs for non-academically motivated
juveniles. As part of this program for job training would be development of a
job bank for youth.
5. Recreational Programs. Expertly run recreation programs in every neigh-
borhood where delinquency is high. These would be for after school, Saturday
and summer activities. It should include a strong athletic program, handicrafts
and varied cultural enrichment program during the summer.
The Superior Court is about to participate in an exciting new experimental
approach to delivery of services to persons under the Court's jurisdiction. Under
the auspices of an LEAA funded grant the Social Services Division has initiated
a project to decentralize part of its organization into the community. Beginning
June 1. 1975, this pilot project will handle all of the cases from its designated
area in a comprehen.sive caseload. Probation officers will be working with the
entire family as a unit ; each probation officer will thus be handling cases from
each of the three Branches. In addition, the pilot project has included a research
component as part of its design respon.sible for evaluating the program's effec-
tiveness, as well as for basic research into causative factors of recidivism.
The underlying assumption of the project is that the "family unit" concept, along
with having the probation officer out in the community with his clients and
better able to develop community resources for meeting client needs will provide
a more viable approach to increasing effectiveness in the rehaltilitative process.
Of the 142 juveniles living within the pilot project area of Washington, data
collected by probation officers through diagnostic evaluations indicates that the
most significant problems for juvenile appears to be related to school. Truancy
accounts for 21 percent of all school problems. The next most frequently reported
symptoms were lack of motivation, behavior problems and low grades.
Seventy-two of the 142 juveniles, or 50.7 percent were reported to have prob-
lems in school. This group constitutes 59.9 percent of all children listed as having
school problems.
The area of family problems was the second most significant problem category
mentioned for juveniles. A total of 63 or 45.7 percent of the children were
reported to have one or more family problems. The most serious problem areas
reported were: (1) lack of parental supervision, (2) conflict with parent and,
(3) broken homes with no male figure.
The Pilot Project plans to gear its program services to these specific needs
of juveniles along with the other significant adult and juvenile needs such as
employment, mental health, physical problems with vocational training. If this
experimental program receives a positive research evaluation, it will be adapted
on a larger scale throughout the Division.
I have tried to present to this Committee the highlights of some of the priori-
ties our probation system must address. Again, I would like to thank you for the
opportunity to testify and answer any questions you may have concerning the
Social Services Division.
81
The CiiAiiorAx. Based upon our advanced set of testimony, we have
a few pertinent questions.
RATIO or PROBATION OFFICERS TO PROBATIONERS
I would like to ask Mr. Schunian about the ratio of probation offi-
cers to probationers. Is it a ratio that permits adequate supervision, in
your view?
Mr. ScHUMAN. Chairman Diggs, we have what I consider an ade-
quate ratio in our divisions. The ratio for juveniles is approximately
50 work units per juvenile and the ratio in our adult probation sec-
tion is slightly higher, around 67 to 68 percent probation officers per
probationer and our interfaniily negligency branch has approximately
a l-t-l-to-l ratio. But that is a misleading figure, because we have a
large number of our cases in the interfamily branch that are children
born out of wedlock that were originally criminal offenses and, there-
fore, do not need the same kind of supervision that some other cases
need.
And I would say with the ability to transfer our stajff around,
according to the needs in juvenile or in adult, that we have adequate
staffing.
PRIORITY SERVICES FOR JUVENILE OFFENDERS
The Chairman. Now, you talk about five categories for priority
services, and could you tell us to what extent significant efforts are
being made to provide these services?
]\Ir. Schuman. Congressman, are you referring to the information
on juvenile offenders?
The Chairman. That is correct.
Mr. Schuman. All right, the group homes, residential treatment
centers for emotionally disturbed juveniles, job training, recreational
programs, and special education, those five areas?
The Chairman. That is right.
Mr. Schuman. The group homes are run by the Department of
Human Resoui-ces. We work pi-etty closely with the Department of
Human Resources on all of these program areas. I do not know the
exact number, but I think there are one or two residential homes, group
liomes f(jr probationers, that we would be dealing with. As far as
i-esidential ti-eatment centers for emotionally disturbed juvejiiles, we
have Hillcrest, we have a few private facilities, and they are woefully
inadequate. There are not nearly the facilities that we need to service
eveii the juveniles under our jurisdiction, and I would venture to say
that ^Ir. Yeldell would indicate that services for juveniles under his
jurisdiction are the same.
Special education programs— I would like to add that we did a
study in our pilot project of 142 juveniles and their basic problem
areas, and it a]ipears as though there were two major problems for
juveniles in our caseload. One was school. The major problems in
school being truancy, lack of motivation in school, behavior problems,
and low grades.
I would like to draw back on my experience as the former superin-
tendent of the Laurel Youth Center which goes back quite a few years
now, and we found, we tested every youthful offender that came into
52-587 O - 75 - p!. 1
82
the Youth Center and they were functioning basically three grade
levels below the grade that "they had actually completed in the school
system. In other words, if they 'had gone through the 11th grade, they
were basically functioning at an eighth-grade level. So we considered
schools, special education programs, programs for acting out juveniles,
as probably one of the most crucial areas in particular for the juvenile
oifender.
We also find that the family unit breakdown is very crucial in this
area and especially in the sense of the problems or the lack of parental
supervision and conflict with parents and basically broken homes with
no male figures. We are very, very much concerned about these prob-
lem areas.
COURT XONJUDICIAL PERSONNEL
The Chairman. Mr. ISIalech, about 2 years ago, it does not seem to
be that long, but apparently it has been, we asked for a table of organi-
zation of the nonjudicial personnel under the supervision of the D.C.
courts and we were rather startled at the result, because it certainly
did not reflect the profile of the community. As a matter of fact, it was
so far off of it that it raised some very serious questions about the selec-
tion process or whatever the process is that is the basis of selection of
your personnel.
And what we would for you to do is to provide us with a table of
organization of your nonjudicial personnel which would properly
reflect by sex, by race, and other similar categories of people who go
to make up that particular staff.
Do you have any comment to make upon my evaluation of the last
table, as we say it ?
Mr. ]\Ialech. I do not believe that that request that was made. Mr.
Chairman, 2 years ago came to me. It may have come to someone else.
But, I do wish to express a viewpoint that in a review of the staffing
patterns of the District of Columbia courts in comparison with that
of the remainder of the District of Columbia government and even,
indeed, with that of the Federal Government, certain very strong
characteristics were shown. That is, that the courts do have' a better
minority hiring practice. More specifically, there are more minority
employees of the courts in higher paid and more significant positions
of responsibility than exist elsewhere in the District of Columbia and
even in the Federal Government.
But, I will comply with your request, ]Mr. Chairman, and give you
a listing by sex, by race, and by organizational component, and I hope
you will be a little less startled with the results this time than you
were 2 years ago.
JUVENILE JUDGES, ROTATING OR NOT
The Chairman. Mr. Bischoff, I would like to get your opinion about
the question of a full-time juvenile judge versus a rotating system.
We do have a juvenile court in my jurisdiction and it works very well.
And, as a matter of fact, the principal juvenile court judge has b^en
there almost as long as I have been in Congress ; he was an old politi-
cal comrade in arms from those days, and he certainly has not gotten
83
stnlp. Ho is one of tho loadino; juvenile jndires in the eountry and I am
just curious about your opinion on that matter.
Mr. BisciiOFF. Mr. Cliairman. I have a distinct opinion on that. The
matter of becominir stale after too lon<r in any particular assignment,
of course, is one that has to be wei<ihed against many things, one of
which is expertise, and particularly in this area.
Now, I do not believe that rotation, a rotation system that we have
now, is such that it precludes having expertise. There may be occasions
when it would appear that judges, for whatever reason, might seem
to be shifting in and out of the division simply because we have a
monthly rotation but, in fact, a f\dl check of the individual assign-
ments over a period of time, as I do from time to time, would shoAv
that we find that several key figures remain in that assignment. Now,
we are not talking in terms of 1 year, 2 years, and I know that in some
jurisdictions, as a matter of fact in most, I would suggest, judges
would serve a minimum of 1 or 2 years in the juvenile or in a family
division type of assignment. I am not prepared to say that that is too
lon<r or too short. All I can suggest is that the jurisdictions such as
Washington State, Kings County in particular, have evolved or
developed a plan to sort of satisfy both ends of this by having a panel-
type situation within a court of general jurisdiction, which they have
similar to ours and in the process of an internal rotational system still
maintained more continuity.
The chief judge and I confer on this from time to time, and as it can
fit in with the overall flexibility which is a problem of some magnitude
with us, we are prepared to implement it as we can, and we have done
that, particularly at the outset of our reorganization.
The CiiAiRMAx. Well, we did not go into a lot of detail when this
question was raised before. In my jurisdiction, we have referees w'ho
operate in that court and who relieve the judges of some of the tedium
that might lead to the staleness that has been referred to here today.
And I guess one would have to evaluate such a system with that kind
of component as a very important supporting element here.
Mr. BiscHOFF. But, Mr. Cliairman, we are fortunate in having the
type of component in our division as well. And this is a great relief
to us in the overall volume of caseload.
TRUANCY
Tlie Chairman. How does the tremendous truancy problem in the
District relate to your problems and to what extent is there some com-
munication and more than communication, coordination, between the
Board of Education and the School Adinistration and the courts on
this matter?
Mr. BisciTOFF. In actual operation, Mr. Chairman, the school system
maintains a liasion officer physically in our system. However, the con-
tact as far as policy and so on in the petitioning of cases is maintained
more directly Avith the Office of the Corporation Counsel, and I believe
Mr. Schuman's division. The figures that we look at from time to time
on tlie matter of so-called status crimes, and truancy is certainly one
of the larger groups, does not seem to be a pressing problem as far as
volume of actual petitions filed in the court.
84
This leads me to believe, and I have no substantiation for it, and
I believe this would be more appropriately spoken to by the school
system itself, leads me to believe that there has been an upswing in
administrative efforts to divert this type of situation out of the actual
juvenile justice system, which I personally believe to be commendable.
I do not believe that the court is here particularly to try the criminal,
quasi-criminal type thing as truancy from school.
YOUTH CORRECTIONS ACT
The Chairman. Just one final question. Judge Greene, the committee
recently made a tour of half-way houses in the District, and we heard
a lot of complaints from the Correction officials al)out the Federal
Youth Corrections Act, and how it is being used by the local judiciary.
As you know, there is a great deal of flexibility under this act for
those that are within the 18 to 22 year-old category, and the com-
plaints center around the repeats, the recidivism between 18 and 22
and the judges continuing to try people under this Youth Corrections
Act rather than as adults. And you did not allude to this act or the
age category, perhaps you did allude to it, but I wish you would
address yourself to that particular matter more comprehensively as
to why we do not try more of these 18, 21, and 22 year olds as adults
rather than under the Federal Youth Corrections Act ; that is, these
repeaters that are constantly menacing this community?
Judge Greene. Mr. Chairman, up until about 8 or 10 months ago,
the law in the District appeared to be, as decided by the U.S. Court
of Appeals, that a person between the ages of 18 and 22 had to be
sentenced under the Youth Corrections Act unless the judge made a
finding that there was absolutely no way in which the act would
benefit him.
As a practical matter, as a result of the nmnber of decisions handed
down by the XLS. Court of Appeals, both the U.S. District Court and
the Superior Court were generally under the impression that no such
showing could be made and the decisions of the T^.S. Court of Appeals
simply compelled us to sentence every offender in that category under
the Youth Corrections Act.
It so happens that I have some personal familiarity Avith it. because
there was a case before me of a rather vicious first-degree murder and
rape and burglary and robbery by someone 21 years old. And although
I suppose that lower court judges are not supposed to do that. I wrote
an opinion in which I in effect sa^d that I disagreed with those views
and I refused to commit that particular young man under the Youth
Corrections Act. That case has since gone to the District of Columbia
Court of Appeals, which affirmed it.
Coincidentally. and perhaps more importantly, the Supreme Court
of the I'^nited States has held that the actual showing which previously
everyone thought was required, that the defendant could not possibly
be rehabilitated under the Youth Act, was no longer in effect, so that
as 6 months ago. I would say, the judo-es have far more flexibility,
and we can now and do now sentence persons in that category as adult -
offenders far more often than in the past.
The Chairman. Thank you very much. Judge Greene, and thank
you, members of the supporting panel.
85
Jiid^e Greexe. Thank you, INIr. Cliairnian.
The CiiAiHMAx. At this point, wo will insert the GAO report en-
titled "Administration of the Criniinai Justice Act by U.S. Courts
and the D.C. Superior Court", dated November 21, 1974.
[The report i-eferred to follows :]
86
fZ^lS
•^c-cout^-^'
Administration Of The
Criminal Justice Act
By U.S. Courts
And The D.C. Superior Court
8-179849
Judicial Branch
BY THE COMPTROLLER GENERAL
OF THE UNITED STATES
87
COMPTROLLER GENERAL OF THE UNITED STATES
WASHINGTON. DC 20Ua
6-179849
The Honoraole Sam J. Ervin, Jr
Chairman, Subcommittee on
Constitutional Rights
Committee on the Judiciary
United States Senate
Dear Mr
Cha irman :
On October 10, 1973, you requested that we review the
administration of the Internal Security Division of the
Department of Justice and the administration of the Criminal
Justice Act's system of payments to private attorneys.
On October 4, 1974, we sent you our report on admin-
istrative matters of the former Internal Security Division
of the Department of Justice.
This is our report on the administration and operation
of the Criminal Justice Act. We discussed the matters in
this report with judges and agency officials and have in-
corporated their comments into the report.
We do not plan to distribute this report further unless
you agree or publicly announce its contents.
Sincerely yours.
/^ /mttf
Comptroller General
of the United States
88
Contents
Page
DIGEST i
CHAPTER
1 INTRODUCTION 1
Scope of review 1
Program activities 1
2 THE CJA PROGRAM IN THE D.C. SUPERIOR COURT 4
Appointment of counsel 4
Questionnaire results 6
Applicability of CJA in D.C. local courts 7
Feasibility of transfer 10
3 ADMINISTRATION AND OPERATION OF DEFENDER
ORGANIZATIONS AND PRIVATE ATTORNEY
PANELS IN 10 U.S. COURT DISTRICTS 12
Defender organizations 12
Panel attorneys 16
Determining need for appointed counsel 19
Allocation of cases between panel attor-
neys and defender organizations 19
Court procedure for reviewing vouchers 21
Adequacy of payments 24
Comparison of CJA court plans 25
APPENDIX
I Summary of responses to Criminal Justice Act
Questionnaire 27
II Letter dated October 10, 1973, from the
Chairman, Subcommittee on Constitutional
Rights, United States Senate 32
ABBREVIATIONS
CJA Criminal Justice Act
GAO General Accounting Office
PDS Public Defender Service
89
COMPTROLLER GENERAL'S REPORT
TO THE SUBCOMMITTEE ON
CONSTITUTIONAL RIGHTS
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ADMINISTRATION OF THE
CRIMINAL JUSTICE ACT
BY U.S. COURTS
AND THE D.C. SUPERIOR COURT
B-179849
DIGEST
WHY THE REVIEW WAS MADE
The Criminal Justice Act
states that each U.S. dis-
trict court shall place in
operation a plan for furnish-
ing representation to defend-
ants who cannot afford an
adequate defense. Under the
plan counsel can be provided
by
— private attorneys,
--bar association attorneys
or legal aid agencies, and
— defender organizations.
The Chairman of the Senate
Subcommittee on Constitu-
tional Rights, Committee on
the Judiciary, asked GAO to
furnish information concern-
ing implementation of the
Criminal Justice Act and, in
particular, how the Superior
Court of the District of
Columbia administered its
program. The Chairman asked
GAO to review several court
districts and specifically
the Districts of California
Southern, Arizona, and the
District of Columbia.
The Chairman wanted to know
if it was feasible to trans-
fer the budget and accounting
functions of the District of
Columbia's Criminal Justice
Act program from the Adminis-
trative Office of the U.S.
Courts to the D.C. government.
On September
trict of Col
tice Act ( Pu
passed. The
the District
sibility for
Justice Act
enactment of
GAO briefed
the feasibil
fer .
3, 1974, the Dis-
umbia Criminal Jus-
blic Law 93-412;. was
act transferred to
of Columbia respon-
its own Criminal
program. Before the
this legislation,
the Subcommittee on
i ty of such a trans-
We have discussed the matters in
this report with judges and
agency officials and have incor-
porated their comments into the
report .
FINDINGS
AND
CONCLUSIONS
Appointme
!nt
if counsel in
the D.C.
Supe
rior Court
In accordance with the District
of Columbia's court plan of 1971
the District's Public Defender
Service was responsible for com-
piling a list of practicing at-
torneys who would be available
for criminal cases. Its list
for the superior court contained
approximately 2,900 private at-
torneys. The list was divided
into three panels on the basis
of attorneys' exoerience.
Instead of using the Public
Defender Service oanels, the
superior court requested a much
Tear Sheet. Upon removal, the report
cover date should be noted hereon.
90
smaller panel of 500 attorneys
experienced in criminal trial
work. At the time of GAO's
review this panel contained
about 650 attorneys. (See
p. 5.)
The Public Defender Service's
Criminal Justice Act office
screens vouchers of private
attorneys handling superior
court cases to insure that
they do not exceed the court
adopted $18,000 per year
limit. (See p. 5.)
The superior court's actual
use of its panel has been
sparse. For example, in
fiscal year 1973 the Public
Defender Service handled
approximately 25 percent of
the 13,300 indigent defend-
ants and a pool of volunteer
attorneys defended the
remainder .
Questionnaire results
Thirty-seven judges of the
D.C. Superior Court responded
to a GAO questionnaire con-
cerning the
better than
sentation .
retained repre-
(See p. 6.)
— — a/^ Q -^
w -1 U-
ot
1 ^_ .1 .
sentation.
--procedures for reviewing
vouchers submitted by Crim-
inal Justice Act attorneys,
and
--the adequacy of Criminal
Justice Act payment limits.
Those responding generally
found the representation pro-
vided by panel and Public De-
fender Service attorneys ade-
quate and often as good as or
Applicability of the Criminal
Justice Act
of Columbia
to the District
The Criminal Justice Act has
applied in the local court sys-
tem of the District of Columbia
since 1966. For 6 years there-
after funds for its operation
were included in accropr iation
requests of the Federal Judi-
ciary.
In 1972, however, the Judicial
Conference of the United States
decided, despite a Comptroller
General's decision to the con-
trary, that it would no longer
include funds for the D.C.
courts in tho Federal Judiciary
appropriation requests.
The D.C. courts began efforts
to find financing for the opera-
tion of the Criminal Justice
Act program in the District of
Columbia. The District of
Columbia assumed responsibility
for payments to private attor-
neys on July 1, i974. In
September the District of
Columbia Criminal Justice Act
(Public Law 93-412) was en-
ar ti=rl . ( Rf^p n , 10 , )
Feasibility of transferring
program responsibili ty
to the District of Columbia
ReSponsibil
qeting and
tions of th
tice Act pr
D.C. courts
ferred from
tive Office
government
culty. The
ties involv
ity for the bud-
accounting func-
e Criminal Jus-
ogram for the
could be trans-
the Administra-
te the D.C.
without diffi-
responsioili-
ed are clerical
11
91
and could be easily trans-
ferred . (See p. 10. )
Defender organizations
As of May 29, 1974, there
were 15 Federal public de-
fender organizations and
8 community defender organ-
izations funded under the
Criminal Justice Act.
Along with the D.C. Public
Defender Service, GAO re-
viewed three Federal and
three community defender
organizations. (See p. 12.)
The defender organizations
have not established spe-
cific criteria for hiring
attorneys. All but one of
the chief defenders con-
sidered the law experience
of an applicant a major
factor, but each has hired
attorneys with little law
experience. (See p. 14.)
Though the seven defender
organizations varied con-
siderably in size, they
generally had the same type
of staff. All had a basic
complement of a chief de-
fender, assistant defenders,
and clerical personnel.
(See p. 14.)
Sixty-seven judges and magis-
trates responding to a GAO
questionnaire believed the de-
fender organizations provided
adequate representation. In
addition, about half the re-
spondents believed the de-
fenders did a better job than
retained attorneys or attorneys
from the districts' indigent
defense panels, (See p. 15.)
Private attorney panels
Each of the 10 U.S. district
courts reviewed had approved a
list of panel attorneys but the
management of these panels dif-
fered. California Central's
panel of approximately 30 at-
torneys, for example, is managed
by a committee of 5 attorneys.
The panel has been kept small
and essentially closed to rota-
tion to insure competent repre-
sentation and to make serving on
the panel financially worth-
while for each attorney. In
comparison, Missouri Western's
panel is managed by magistrates
and consists of 700 attorneys.
A desire to serve and admittance
to the bar are the only require-
ments for appointment. (See
pp. 17 and 18.)
During fiscal year 1973 approxi-
mately 56,000 persons were
represented by appointed counsel
in the 94 U.S. district courts
and the D.C. Superior Court and
Court of Appeals. During fiscal
year 1973 panel attorneys in the
10 districts reviewed represented
10,165 persons, and about 13,300
oersons were represented by at-
torneys appointed by the judges
of the D.C. Superior Court and
Court of Appeals. (See pd. 3
and 18. )
Judges and magistrates in
these districts were gener-
ally satisfied with the rep-
resentation provided by
panel attorneys. Of 85
judges and magistrates, 73
considered the representa-
tion provided by panel at-
torneys equal to or better
Tear Sheet
111
92
than retained representa-
tion . ( See p. 18 . )
Determining need for
appointed counsel
Methods used to determine a
defendant's need for ap-
pointed counsel varied only
slightly between the 10 dis-
trict courts. Generally, a
magistrate made the deter-
mination at a defendant's
first appearance before the
court. Information about a
defendant's financial status
was obtained by means of a
financial affidavit and/or
open court inquiry. (See
p. 19.)
The Criminal Justice Act plan
adopted by the U.S. District
Court of the District of
Columbia called for the Public
Defendei: Service to represent
not more than 60 percent of
the indigent defendants. The
Public Defender Service han-
dled between 25 and 33 percent
of all indigent cases before
magistrates of the district
court but very few cases be-
fore judges. Defendants not
represented by the Public
Defender Service were repre-
sented by volunteers or by
panel attorneys. (See p. 20.)
Court procedures for
reviewing vouchers
The courts' procedure for
reviewing reimbursement vouchers
varied among districts and among
judges and magistrates within a
district. Some judges indicated
that verifying the validity of
certain charges, such as claims
for out-of-court time, was im-
possible. However, judges and
magistrates reduce the amount
claimed on a voucher if they be-
lieve that the quality of repre-
sentation did not justify the
amount claimed. (See p. 21.)
Adequacy of Criminal Justice
Act payments
The Criminal Justice Act estab-
lished the maximum hourly rate
for panel attorneys at $30 an
hour for in-court time and $20
an hour for out-of-court time.
In addition, the act established
maximum limits:
Misdemeanors $ 400
Felonies 1,000
Post-trial motions 250
Direct appeals 1,000
Most judges and magistrates re-
sponding to the GAO questionnaire
believed that the maximum hourly
rates and limits were adequate.
The most disagreement concerned
the felony limit — 31 of 81 re-
spondents believed the felony
limit should be raised. (See
p. 25.)
IV
93
CHAPTER 1
INTRODUCTION
The Criminal Justice Act (CJA) of 1964, as amended, provides
in part that each U.S. district court, with the approval of
the judicial council of the circuit, shall place in operation
a plan for furnishing representation for defendants who are
financially unable to obtain an adequate defense. Representation
under each plan must include counsel and investigative, expert,
and other necessary services. Each plan must also include a
provision for private attorneys. In addition, the plan may in-
clude one or both of the following (1) representation by attor-
neys furnished by a bar association or a legal aid agency or
(2) representation by attorneys furnished by a defender organiza-
tion. Before approving a plan for a district, the judicial
council of the circuit is to supplement the plan with provisions
for representing defendants, in appeal cases, financially unable
to obtain representation.
SCOPE OF REVIEW
In response to a request from the Chairman of the Senate
Subcommittee on Constitutional Rights, Committee on the Judiciary,
we reviewed the implementation of CJA with particular interest
in the manner in which the D.C. Superior Court administered its
program. In addition, the Chairman wanted to know the feasibility
of transferring the budgeting and accounting functions of the
District's CJA program from the Administrative Office of the U.S.
Courts to the D.C. government. The CJA program provides for reim-
bursing private attorneys appointed in the U.S. District Court
and Court of Appeals for the District of Columbia Circuit as well
as those appointed by the judges of the D.C. Superior Court and
Court of Appeals.
The Chairman requested that we review several court districts
and that the Districts of California Southern, Arizona, and the
District of Columbia be included as part of this review. The
Chairman later requested that we review three additional district
courts having Federal defender programs.
PROGRAM ACT I VITIES
During fiscal year 1973 the D.C. Superior Court and the 10
Federal districts reviewed accounted for more than 53 percent of
the approximately 56,000 persons represented under CJA. The fol-
lowing table shows the court districts selected and the total
number of criminal cases begun and terminated for fiscal year 1973,
94
CRIMINAL CASES BEGUN AND TERMINATED BY COURT DISTRICT
FOR
FISCAL YEAR 1973
District of
California
Cal ifornia
Mary-
Columbia
Arizona
Central
Southern
land
Cases
begun
1,337
1,527
2,183
2,044
635
Cases
terminated
2,610
1,416
2,058
1,882
647
Michigan
Missouri
Pennsylvania
Puerto
Virgin
Eastern
Western
Eastern
Rico
Islands
Cases
begun
1,661
557
692
261
240
Cases
terminated
1,458
542
943
277
257
CJA was enacted on August 20, 1964, and gave rise to four
important principles:
--To be eligible for appointed counsel or other defense
services, a person accused of a Federal crime (other
than a petty offense) need not be destitute or indigent;
he need only be financially unable to obtain adequate
representation .
--The interests of justice and adequate representation require
that an appointed counsel be compensated and reimbursed for
his out-of-pocket expenses.
--To insure an adequate defense, eligible defendants should
also be provided with necessary defense services other
than counsel .
--Each U.S. district court or court of appeals would devise
its own plan for furnishing representation by a private
attorney or a defender organization.
Funds for representation by court-appointed counsel and the
operation of defender organizations are provided for by the
Congress in the annual appropriations to the Federal Judiciary.
For example, for fiscal year 1973 the Congress appropriated about
$17.5 million for the CJA program. Of this amount about $1.5 mil-
lion was earmarked for the compensation and reimbursement of ex-
penses of attorneys appointed by the judges of the D.C. Superior
Court and Court of Appeals), For fiscal year 1974 the Congress ap-
propriated about $16.6 million with the provision that $1 million
of the funds be made avaiflable for compensation and reimbursement
of attorneys appointed by judges of these two courts.
95
Approximately 56,000 persons were represented under CJA
during fiscal year 1973. Of this total, 10,537 were assigned
to defender organizations. There were approximately 13,300
persons represented by attorneys appointed by the judges of
the D.C. Court of Appeals and Superior Court.
In all U.S. court districts, 158 of approximately 17,000
private attorneys received compensation in excess of $6,000
under CJA programs during fiscal year 1973. Of these private
attorneys, 109 received their oayments from D.C.'s 2 CJA-
funded court systems.
There were 12 attorneys who received compensation payments
in excess of $25,000 in the District of Columbia during fiscal
year 1973. The following table lists the amounts paid to these
attorneys by court. The table also shows that most attorneys
tended to limit their CJA practice to one of the two court
systems .
Total Amount of
compensation Amount of compensation
for FY 1973 compensation U.S. district court
( note a ) D.C. Superior Court and court of appeals
$ 70,312 $ 14,854 $ 54,998
59,636 1,627 58,009
39,953 1,180 38,773
36,162 31,664 4,498
34,331 973 33,218
33,325 19,157 12,998
31,562 12,912 18,200
27,915 • 16,260 11,655
27,267 22,852 2,305
26,058 23,323 2,415
25,237 1,245 22,732
25,159 24,684
$436,917 $170,731 $259,801
a/Total includes compensation received in the D.C. Court
of Appeals.
In all other U.S. court districts only three CJA attorneys
received compensation in excess of $25,000. All three attorneys
practiced in the second circuit.
90
C HAPTER 2
THE CJA PROGRAM IN
THE D.C. SUPERIOR COURT
The 1970 amendments to CJA required revision of existing
CJA plans throughout the country. The revised act commanded
each Federal district court to reestablish a plan for furnishing
representation in cases covered by the act. Each plan was required
to include a provision for participation by private attorneys
in "a substantial proportion of cases."
APPOINTMENT OF COUNSEL
In 1971 a new CJA plan was adopted for the District of
Columbia. The plan specified that the administration of the ap-
pointment system would be vested in the Public Defender Service
(PDS) but the responsibility for appointing counsel would remain
with the D.C. courts. (See ch . 3.)
D.C.'s CJA plan called for appointments to be made by the
superior court from its list of attorneys on a rotational basis.
Full use was also to be made of those volunteer attorneys who de-
sired to concentrate their practice in the area of cour t-appoin'..ed
representation, and it was anticipated that nonvolunteer attorneys
would be called on to serve only about once a year.
In the superior court, because of the variety of cases coming
within its jurisdiction, separate panels were established for
felonies, misdemeanors, and family division cases. Attorneys
could, if they desired, volunteer to serve on the panels for
additional courts and could volunteer to take additional cases
on the panel to which they had been assigned.
PDS was to notify attorneys approximately 30 days in advance
that they were to report to the court on a specific date for ap-
pointment. If, after an attorney's name had been submitted to
the court, unusual circumstances made it impc/.sible for him to
serve as appointed counsel at that time, he could file a motion
to withdraw. It was anticipated that these motions would be
granted only in extraordinary cases.
In 1971 PDS compiled a list of attorneys practicing in the
District of Columbia. The list also contained a certain minimum
amount of information on their courtroom experience. The PDS
superior court list contained approximately 2,900 private attor-
neys potentially available for appointment in criminal cases.
97
These attorneys were divided according to exoerience into a felony
panel of 600, a misdemeanor panel of 1,200, and a family division
panel of 1,100. To prevent an unequal burden of representation,
an attorney's name was not placed on more than one panel.
A superior court judge explained that the panels developed
by PDS contained too many inexperienced criminal trial attorneys
and therefore the court requested that PDS develop a panel con-
sisting of the 500 attorneys most experienced in criminal law.
The panel of 500 attorneys developed by PDS has been expanded
by the superior court to 650.
A committee of the D.C. Bar Association found that the supe-
rior court's actual use of its panel has been sparse. During
January 1, 1973, through June 30, 1973, superior court panel
attorneys were appointed to 141 felony, misdemeanor, and family
division cases. According to the PDS director, the superior
court annually handles approximately 13,300 cases involving
indigent defendants. Of these cases, PDS handles approximately
25 percent. The remainder are handled by a pool of 300 volunteer
private attorneys of which approximately 150 attorneys do so with
some frequency. All attorneys appointed under CJA are compensated
at the rate of $30 an hour for in-court time and $20 an hour for
out-of-court time. A limit has been set by superior court judges
that no attorney can be paid more than $18,000 per year. The CJA
program office of PDS enforces the limit by not appointing attor-
neys to new cases after they have earned $18,000 under the program.
The CJA program office is further charged with issuing quarterly
reports to the courts describing the operation of the appointed
counsel program.
The Administrative Office performs the disbursing and account-
ing functions for funds appropriated for the operation of the
CJA program. Funds for administering the CJA program are appro-
priated to the Federal Judiciary with the provision that a stated
amount be made available for payments to private attorneys ap-
pointed to defend indigents by judges of the D.C. Superior Court
and Court of Appeals.
At the conclusion of a court case, the CJA private attorney
prepares and submits his voucher to the court for payment. The
court reviews the voucher to determine acceptability and reason-
ableness. If the judge who was involved with the case accepts
the attorney's charges, he signs the voucher and sends it to the
CJA program office of PDS. The program office reviews vouchers
before they are sent to the Administrative Office for payment.
52-587 O - 75 - pt. 1
98
The program office conducts this preliminary screening of
vouchers to insure that private attorneys handling superior
court cases do not exceed the court adopted $18,000 a year
limi*- Tn -^-^'H^n- f-he program office oreoares the contribu-
tion orders requirincj persons of limited financial resources
to contribute to their defense. Interviewing defendants to
asce'tain fTnanci=!l status and ability to retain counsel,
however, is the program office's primary function,
V^'hen the Administrative Office receives a voucher, it is
matched with the appointment order that the court filed earlier,
The voucher is then audited for accuracy and completeness, and
then it is orocessed for payment.
Should the Administrative Office identify a problem, it
sends the voucher back to the court for resolution. According
to Administrative Office officials, this is done because the
Administrative Office does not have the authority to reject
vouchers after they have been approved by district court
magistrates and judges.
QUESTIONNAIRE RESULTS
The 44 judges comprising the D.C. Superior Court were sur-
veyed by questionnaire. Thirty-seven responded to questions
concerr: l ■:•■■' the (1) adequacy of indigent representation,
(2) Diorcures for reviewing vouchers submitted by CJA attor-
neys, ■■■:■." (3) adequacy of CJA payment limits. For a comparison
of tlij ..erior court responses with the other district courts
revievr- , see appendix I.
Adequacy of representati on
Thirty-five judges responded that the representation pro-
vided by panel attorneys and PDS attorneys was adequate. When
asked to contrast the representation provided by panel and PDS
attorneys with that of retaineu counsel, 30 judges responded
that panel attorneys orovided as good as, if not better, repre-
sentation as retained attorneys; 35 judges responded that PDS
attorneys provided as good or better representation than re-
tained attorneys; and 22 concluded that PDS attorney represen-
tation was better than that provided by panel attorneys.
Procedures for reviewi ng vouchers
Tne judges were asked to indicate the procedure they used
in reviewing vouchers submitted by panel attorneys. Twenty
judges stated that they assumed the burden of review; nine
judges had others review the vouchers for arithmetic accuracy,
although the\' considered the qualitv of representation; four
99
reviewed only those vouchers determined by other personnel
to need the judge's attention; and four used some other
method. Thirty judges believed that the information sub-
mitted by attorneys in support of the vouchers was adequate.
A total of 30 judges believed that it was necessary and/or
desirable for judges to continue reviewing and approving
vouchers .
Adequacy of CJA payments
Most judges (28) responding to questions concerning
payments to panel attorneys believed the hourly rates to
be adequate. Twenty-six responded that the maximum limits
of $400 per case for misdemeanors and $250 oer case for
post-trial motions were reasonable; 23 answered that the
$1,000 per case maximum limit for felonies was reasonable;
and 21 replied that the $1,000 per case maximum limit for
direct appeals was reasonable.
APPLICABILITY OF CJA IN D.C. LOCAL COURTS
On March 21, 1974, the Chief Judge of the D.C. Superior
Court testified before a subcommittee of the Senate Committee
on Appropriations on the applicability of CJA in the D.C.
courts. The main points of his testimony follow.
CJA has applied in the local D.C. court system since 1966,
following an order in the case of United States v. Walker and
a later ruling of the Comptroller General of the United States,
For the 6 years after 1966, funds for the operation of the CJA
program in the local court system were included in the appro-
priation requests of the Federal Judiciary.
While the District of Columbia Court Reform and Criminal
Procedure Act of 1970 (Public Law 91-358) was pending before
the Congress, the question of the applicability of CJA to the
reorganized D.C. court system was explicitly considered in
amendments to CJA. CJA, as amended (18 U.S.C. 3006A (1)),
directs that
"the provisions of this act [except
those relating to the public defender]
* * * shall be applicable in the Dis-
trict of Columbia. The olan of the
District of Columbia shall be approved
jointly by the Judicial Council of
the District of Columbia Circuit and
the District of Columbia Court of
Appeals ."
100
Both this statutory language and the legislative history of
this amendment fully support the conclusion that the intent
of the Congress was to continue as before the operation of CJA
in the reorganized local court system.
Due to the enactment of the court reorganization statute
and the amendments to CJA, the Administrative Office of the
U.S. Courts sought an opinion from the Comotroller General
concerning the continued applicability of CJA in the local
cour ts .
The Comptroller General stated, in an opinion dated
May 26, 1972, (B-175429) that
"the Administrative Office of the
United States Courts should handle the
administration of, and budgeting for,
the CJA program in the District of
Columbia's local courts generally in
the same manner as it has in the past
and to the extent possible as it adminis-
ters and budgets for programs of the Fed-
eral district courts, * * *."
Despite this opinion the Judicial Conference of the United
States decided in October 1972 that it would no longer include
funds for CJA disbursements for the D.C. courts in the Federal
Judiciary appropriation requests.
At about this same time, apparently in response to news
stories indicating that some attorneys practicing in the local
court system had received excessive amounts of CJA funds during
previous fiscal years, the Subcommittee on the Federal Judici-
ary, House Appropriations Committee, was instrumental in having
a rider inserted in the 1973 appropriation ending participation
of the local court system in the CJA appropriations. A $1 mil-
lion ceiling on local CJA expenditures was later substituted for
this rider, although it was clear that this amount would not
be adequate to finance CJA operations in the local court sys-
tem throughout fiscal year 1973.
In January 1973 the Administrative Office submitted a
supplemental appropriation request to cover the payment of
counsel fees and other expenses for CJA cases in the D.C. Court
of Appeals and Superior Court. In developing this request for
the Administrative Office, D.C. court officials used "current"
101
average cost per case figures rather than the higher projected
cost per case figures which apolied to the outstanding attor-
ney vouchers. Outstanding vouchers are usually for long,
drawn-out and more costly cases and are submitted by attorneys
toward the end of the fiscal year or later. As a result the
supplemental request submitted by the Administrative Office
was approximately $800,000 below what was later projected to
be needed .
The D.C. courts began a search for a means of financing
the operation of the CJA program in the District of Columbia
for fiscal year 1974 and thereafter. The efforts of the courts
included discussions and meetings with the Chief Justice of the
United States, the Mayor of the District of Columbia, represen-
tatives of the Administrative Office, congressional staff
members, local budget officials, representatives of the Depart-
ment of Justice, leaders of the local bar association, and
others. The city government indicated that it could not
assume responsibility for funding the program before fiscal
year 1975.
In a letter to Chief Justice Warren Burger, the Mayor
reiterated the reasons for the District's inability to include
a request for funding for the CJA program in its fiscal year
1974 budget. First, the District lacks any statutory authority
for carrying out the CJA program. In the absence of enabling
legislation, there is no legal basis for a D.C. request for
an appropriation. Second, the D.C. budget is required to be
balanced. In November 1972, when the District first learned
of the decision of the Judicial Conference, the District's
fiscal year 1974 budget had already been completed and was in
balance. It could have been altered at that point only by a
considerable dislocation in the District's ability to provide
services and by the elimination of funds for programs already
approved ,
The fiscal year 1974 appropriation for the Federal
Judiciary originally passed the House of Representatives with
no provisions for any funding for the local CJA program. The
Senate amended the House bill to provide $2 million for oper-
ating the CJA program in the District of Columbia for fiscal
year 1974, The House conferees refused to agree to this
action by the Senate, and the final conference report con-
tained $1 million for the local program and a provision ex-
pressing the Conference Committee's understanding that addi-
tional funds for fiscal year 1974 and future fiscal years
would come from the D.C, budget.
During the Senate debate on the conference report it was
noted that the $1 million figure would carry the program only
102
through the first half of fiscal year 1974 and that there
might be problems in obtaining the additional appropriations
necessary.
By February 15, 1974, all appropriated money had been
spent. A congressional conference committee, in May, passed
an emergency $2 million supplemental aopropr iation providing
sufficient funds to cover unpaid prior expenses and costs
through June 30. On July 1, 1974, the District of Columbia
assumed responsibility for payments to private attorneys ap-
pointed by the superior court and court of appeals. By August
both Houses of Congress had passed a bill authorizing the
District of Columbia to assume responsibility for its own CJA
program. The act was signed into law on September 3, 1974.
The new District of Columbia Criminal Justice Act (Public
Law 93-412) amended the District's Code and authorized a plan
for the representation of defendants who are financially
unable to obtain an adequate defense in the O.C. Superior Court
and Court of Appeals.
FEASIBILITY OF TRANSFER
We examined the feasibility of transferring to the District
of Columbia the responsibility for administration of CJA funds.
We foresee no problems with such a transfer. Basically, all
that is involved in the administration of CJA funds is a match-
ing of vouchers with the orders of appointment. The vouchers
are audited for accuracy and completeness and then processed
for payment. Officials of the Administrative Office believe
that it does not have the authority to reject vouchers after
they have been approved for payment by a judge or magistrate.
Therefore, if a problem is identified with a voucher during
an audit, the voucher is sent back to the originating court
for resolution. The feasibility of making a transfer of re-
sponsibility is further enhanced by the fact that the CJA
program office of PDS reviews all D.C. vouchers before sending
them to the Administrative Office.
Administrative Office officials said that the Administra-
tive Office was in favor of transferring responsibility for
the administration of CJA funds to the District of Columbia.
A primary problem, according to one Administrative Office
official, was that the Judiciary did not have the authority
or responsibility for control over the obligation of funds
by the D.C. Superior Court and Court of Appeals. The official
went on to point out that when funds became over obligated,
it was the Judiciary not the D.C. government that had to go
before the Congress for supplemental funds.
10
103
The District of Columbia assumed responsibility for pay-
ments to private attorneys, on a permanent basis, starting
July 1, 1974. Vouchers submitted by attorneys who have been
appointed to cases since July 1 are being held at the office
of the CJA program coordinator of PDS. The reason, according
to the coordinator, is that the District government has not
yet set up an office to which he can submit the vouchers for
payment. Vouchers for appointments made before July 1 are
still being submitted to the Administrative Office for payment,
11
104
CHAPTER 3
ADMINISTRATION AND OPERATION OF
DEFENDER ORGANIZATIONS AND PRIVATE ATTORNEY
PANELS IN 10 U.S. COURT DISTRICTS
DEFENDER ORGANIZATIONS
CJA, as amended, provides that a district court may establish
a defender organization if 200 or more persons annually require
the appointment of counsel. Except for PDS of the District of
Columbia, a defender organization can be either a Federal public
defender or a community defender. A Federal public defender organ-
ization is a Government entity established to provide defense counsel
services in Federal courts. A community defender organization, on
the other hand, is a nonprofit defense counsel service established
and administered by a group authorized by a district court. As of
May 29, 1974, there were 15 Federal public defender organizations
and 3 community defender organizations. The table on this page shows
the defender organizations we reviewed.
PDS in the District of Columbia was established by the District
of Columbia Court Reform and Criminal Procedure Act of 1970 (Public
Law 91-358). PDS' major responsibility is to represent persons fi-
nancially unable to obtain adequate legal representation in felony
and misdemeanor cases in the U.S. district court and in the D.C.
Superior Court, proceedings before the superior court's family divi-
sion, proceedings before the Commission on Mental Health involving
civil commitments, appeals in the foregoing matters before the U.S.
Court of Appeals, and any proceedings ancillary or collateral to the
aoove representation.
Defender Organizations Reviewed
Name of de-
Type of defender Year fender orga-
Name of district organization established nization
District of Columbia Public a/1971 PDS
Arizona Federal 1971
California Central Federal 1971
California Southern Community a/1971 Federal Defenders
~ San Diego, Inc.
Michigan Eastern Community a/1971 Legal Aid and De-
fender Associa-
tion of Detroit
Missouri Western Federal 1971
Pennsylvania Eastern Community a/1971 Defender Associa-
~ tion of
Philadelphia
3/' Organization existed before date it was designated as a defender
~ organization under CJA.
12
105
Cost and funding of defender organizations
Funds for the administration of CJA are appropriated to
the Federal Judiciary and the Administrative Office performs
the disbursing and accounting functions for these funds.
Federal public defender organizations are required by CJA
to submit their proposed budget to the Administrative Office.
All eight community defender organizations received initial
grants from the Judicial Conference for expenses necessary to
establish their organizations; seven of these received periodic
sustaining grants. One organization in the California Southern
District is compensated on a case-by-case basis as are private
attorneys under CJA.
Unlike Federal public defender organizations, PDS of the
District of Columbia receives its funds from the D.C. appropria-
tion. The Administrative Office performs the disbursing and
accounting functions for the PDS funds.
The following table shows the actual costs, number of cases
terminated, and the average cost per case for each defender or-
aanization in fiscal vear 1973.
Fisca l Year Cost and Case Data for
Defender Organizations Reviewed
Publ ic _ Federal Community ^__
District of '" California nrssourT Cal i torn ia~~Michl^an PennsyrvanTa
Columbia ftrizona Central Western Southern Eastern Eastern
Actual costs
FY 1973
(note a) SI, 739, 500 S277,700 S535,100 S170,600 d/S297,800 S160,700 $167,200
Cases termi-
nated
FY 1973 b/6,946 1,242 1,748 645 1,839 506 803
Averaqe cost
per cas?
termina ted
(note c) 5 254 S 224 S 306 S 264 S 162 S 318 S 208
a/ Rounded to nearest hundred.
D/ Cases terminated include esses in the D.C. Superior Court, Mental Health
Conmission, and the district court.
c/ Costs oer case are not directly comoarable because the districts do not have
the sa^ne types of caseloads.
d/ Represents Administrative Office reimbursements to the defender organization.
(See text o. 13.)
13
106
staffing and experience of dgfende r , . : jm i zations
Although many of the attorneys hirec'i oy "-he defender
organizations have had experience with FedeLa.l or local
prosecuting agencies or other uubiic cl--,r>.-j-, oi-i,.. .... ions,
each organization has hired attorneys with little law ex-
per ience .
The defender organizations have not esaablished spe-
cific criteria for hiring attorneys. All the chief de-
fenders, with the exception of the chief defender of
California Southern — who preferred to hire his staff at-
torneys directly from law school — indicated they con-
sidered the law experience of an applicant a major factor.
Dedication, enthusiasm, and commitment to defender organi-
zations are other factors considered in selecting attorneys.
The following table shows the experience of the at-
torneys, including the chief defender, before joining the
defender organization. The table also shows the average
salary and salary range of each defender organization.
Defender Otqaniza t i ons ' Salary and
experience Ranc^e foe Att o rney5
District of
Columbia
Ar 1 zona
Cal i focnia
Central
"Hlssour 1
Western
Call fornia
Southern
Michiqan
Eastern
Pennsylvar
Eastern
Clief defender:
Salary
S36,000
530,500
532,200
530,600
532,500
530,000
526,500
years of
exDer ience
3
n
11
i
11
10
5
\s-,istait de-
fenders:
Average
salary
520,471
519,025
520,757
519, 733
)16,2^1
517,714
517, son
>alary ranqe;
LOW
High
514,700
535,600
512,600
523,900
5 14,700
527,600
517, >n(i
521, 100
513, 200
525,000
514,500
5 2 3,000
515,500
523,000
\-jeca-ie years of
exoec ience
2.6
6.0
3.0
3.5
1.4
3.6
2.0
"xper ience ranqe
in years:
LOU
Hiqh
19
IS
8
1
5
4
9
6
Though the seven organizations varied considerably in
size, all the organizations had a basic complement: of a
chief defender, assistant defenders, and clerical oersonnel
The following table shows the staffing of each
organi za tion .
14
107
Permanent staffing ot Defender Organizations
by Filled Positions
Public
Federal
Community
District of
{alifor
nia
Missour 1
Cal i tornia
Michigan
Pe
nnsylvania
Position
Columbia
Arizona
Cent;
_al
Western
Southern
Eastern
Eastern
Chief defender
1
1
I
1
1
1
1
Assistant de-
fenders
41
8
IS
«
H
7
5
Investigators
5
2
3
1
4
2
Researchers
2
C
Social workers
8
1
a/1
b/D
Secretarial and
cler leal
22
6
12
4
7
3
—
Total
77
17
32
12
25
12
11
a/ A volunteer Catholic priest-
b/ Had access to social workers through the Defender Association of Philadelphia.
Assignment of cases to staff attorneys
The seven defender organizations generally assign
cases to attorneys on a rotation basis. All staff at-
torneys handle a full caseload with the exception of the
chief defender and sometimes his assistant.
Rotation procedures are sometimes ignored when diffi-
cult or complex cases are brought before the court. Such
cases are usually assigned to the more experienced attorneys.
Adequacy of representation provided
District judges and magistrates were pleased with the
representation provided by the defender organizations.
Sixty-seven judges and magistrates responded to a question
concerning the adequacy of the representation provided by
attorneys of defender organizations. All responded that the
defender organizations' attorneys provided adequate repre-
sentation. In addition, about half of the respondents be-
lieved the defenders did a better job than retained attorneys
or attorneys from the districts' indigent defense panels.
(See following table.)
15
108
Responses to GAP Questionna i res by Juriqes and
Magistrates Concerning tbi' Pe z i esenl.a t ion
Provided by~ref'ende; J: janTza tio'ns
P"'^^'^ ["ederal ^ ___^___^^ Comtrunity
District of California Missouri California MTchigan Pennsylvania
Questions
Columbia
At I zona
Central
Western
Southern
Eastern
Eastern
Tot.
1. Generally, the
representation
provided by Fed-
eral or community
defender organi-
zation attorneys
is
a. Adequate
b. Inadequate
6
7
12
6
7
9
20
67
c. No response
-
-
1
-
-
-
-
1
2. Compare the
representation
provided by de-
fender organiza-
tions with that
of retained
attorneys
a. Better
b. About the
3
6
5
5
2
5
6
32
same
c. Not as good
3
1
6
1
1
5
4
12
2
32
3
1
d. No response
-
-
1
-
-
-
3. Compare the
representation
provided by de-
fender organiza-
tions with that
of indigent panel
attorneys
a. Better
b. About the
3
6
5
5
2
7
7
35
same
c. Not as good
3
1
6
1
1
4
1
2
12
1
29
3
1
d. No response
-
-
1
-
-
PANEL ATTORNEYS
CJA required each district court to designate or
approve a panel of private attorneys and to appoint these
attorneys in a substantial portion of cases assigned under
the act.
Each district court reviewed had approved a list of
panel attorneys. Seven of the district courts initially
asked local bar associations and legal aid agencies to pre-
pare lists of attorneys who, in their opinion, were compe-
tent to adequately represent defendants. The courts, on
the basis of such lists and their own inquiries, approved
panels of private attorneys.
Missouri Western, because of lack of interest by the
local bar association, used a different method. A magis-
trate and a U.S. attorney aided by the local bar directory,
the telephone directory's yellow pages, and district court
judges listed all attorneys considered adequate to represent
defendants in Federal court. The magistrate and the judges
then evaluated the list and deleted the names of attorneys
they believed could not provide adequate representation.
In Puerto Rico and the Virgin Islands the panels are
composed of all attorneys who practice before the district
cour t .
16
109
Panel management
The district courts' management of their private attor-
ney panels differs among the 10 districts. California Central's
panel is managed by a committee of five attorneys appointed by
the local bar association and approved by the judges. The com-
mittee chairman stated that the panel has been kept small (about
30 attorneys) and essentially closed to rotation to insure compe-
tent representation and sufficient cases to make serving on the
panel financially worthwhile. The chairman believes that con-
trolling the quality of representation provided by a few attor-
neys is easier than controlling an open panel with numerous at-
torneys .
California Southern's panel is managed by a committee that
consists of two judges and two magistrates. The committee meets
each June and December to rotate attorneys off the panel and to
admit new ones. Attorneys are rotated off the panel after serving
2 years, but can be reinstated after 1 year. Although the panel
is open to all attorneys, the committee chairman indicated that
the requirements for appointment are (1) written application,
(2) apprenticeship involving active participation in two felony
trials under the direct supervision of a qualified attorney,
(3) completion of an educational program in Federal criminal law,
(4) 6 to 12 months of legal experience, and (5) there is no
strong objection by a judge. The committee strives to keep the
number on the panel below 60.
In Pennsylvania Eastern a committee of judges manages the
panel. The court requires some experience before adding an at-
torney to the panel. However, the amount of experience necessary
has not been set. The Federal public defender essentially man-
ages Arizona's panel; whereas, in Maryland a magistrate manages
the panel. Attorneys in Maryland who want to be included on the
panel submit a letter with a resume of qualifications. Aoolicants
must have at least 1 year's criminal court experience either as
a practicing attorney or as a law clerk.
In the District of Columbia a magistrate manages the panel.
To be selected for the panel, an attorney completes a questionnaire
about his background and experience. A magistrate interviews each
applicant, and the three magistrates of the district court review
all applications. The magistrates submit their recommendations
to a committee of district court judges who make the final selec-
tions.
Magistrates also manage the panels of Michigan Eastern and
Missouri Western. A desire to serve and admittance to the bar are
the only requirements for appointment to these panels.
The following table summarizes how the 10 districts manage
their panels.
17
no
now Trie 1 District Courts
Manage The ic Panels
District couc ts Distr let courts ^
orstfTct'of farrfornTa '"Carrrornia fflcFTgan "Uissour i Pennsylvania Puerto Virqin
Columbia ftr i zona Central Southern Mar ylan i Eastern Western Eastern Rico Islands
"x.:.i 1 1 ions to or
:->l -jt ions from
•■■i panel :nay
.;e -ade apon
tr.e f ecoTimenda-
t ion of :
federal puDl ic
defenders - x - - -
Comni ttee of
ludqes - - - - "
Committee of
judges and
maq isttates - - - "
Local bars - - x - -
laqisttates b/x - - - "
)ther "" - - - - £/"
..; tn t inal ap-
r:i oval o£ :
All judqes - - x » -
Ml senior
] jdges - X - - -
CI lef ■) udge - - - - ~
CoiiTii ttee of
] jdqes X - - - ~
la:} I stcates - - - * x
; i exuer lence ce-
o J I red to be
-i jcea on panel?
yes X - X K X
•to - X - - -
j^a-iel per lod i-
-ally changed - - - i -
.1 ■-: of panel at-
• '• -^evs -na n-
■ 1 .-,.^iJ by:
heder a 1 oubl ic
defenders - x - - -
Magistrates « - - x x
iJffice of the
rlerx of the
court - - X - -
:.sc mated no-noer
! ^anel attorneys 27S 253 28 5i 300
.V10 has passed the b»t and apnl les is aoDO in ted .
■ r d f'S add to the list but do not dele te naTies from the I ist .
- 5rtorT?ys oquest to oe olaced on or deleted from the panels.
. • r "ineys who nr act ice before the district cour t ,
Adequacy of representation provided
Panel attorneys in the 10 districts represented 10,165
oersons during fiscal year 1973. Judges and magistrates
were generally satisfied with the representation provided.
Of 35 judges and magistrates responding to our question-
naire, 73 considered the representation provided bv panel
attorneys equal to or better than retained representation.
The following table summarizes this information.
18
Ill
Re soonsgg to Qugstions on the Adequacy of
Representation Provided by Panel ^tto^ne ys
District courts
Pennivf-
District of California California Hicni-jan Missouri vania Puerto Vinn
Co^uTtbia »r liona Central Southern Maryland E astern w estern f:astern Pico Islands Total
O-tnorally, is
tne represen-
tfition oro-
■ 1 i^ t -.y oanel
Attorneys ade-
<*jjte?
a. Yes S 7 13 1 11 9 6 19 4 1 13
•>. NO - - - -- --l-i;
c. 'to response - - - -- ----..
Co-^oar? the reo-
rosentstion oro-
V 1 lej 0/ in-iiqent
oeneV attorneys
witn retainetl
: t;or«sent it Ion .
a.Jetter - - 3 1- I - 2 - - 7
o. ■\oout tne
same « 6 7 i> 11 6 6 14 3 1 6li
c. \'ot as Qood - 1 3 - - 2- 4 1112
a. "to response - - - -- ---___
•JuBosr of do-
f-?njafits repre-
it*iri?j oy oanel
attorneys uorino
'.i;oil yenr 1973. l,9j« 634 931 "i.OO'i 640 330 230 193 1S6 1 S5 10,1'ii
DETERMINING NEED FOR APPOINTED COUNSEL
A defendant was considered financially unable to obtain
counsel if his net financial resources and anticipated in-
come before the trial date were insufficient to enable him
to obtain qualified counsel. In determining this need, the
amount of the cash deposit the defendant was required to
make to secure his release on bond.
The methods used to determine the need for appointed
counsel varied only slightly among the 10 district courts.
Generally, a magistrate determined need at a defendant's
first appearance before the court. Information regarding
a defendant's financial status is obtained by neans of a
financial affidavit and/or open court inquiry. Financial
affidavits were not used in Pennsylvania Eastern or
California Southern.
ALLOCATION OF CASES BETWEEN PANEL
ATTORNEYS AND DEFENDER ORGANIZATIONS
Five district courts attempted to allocate 75 percent
of the defendants needing appointed counsel to the defender
organization and 25 percent to panel attorneys. One dis-
trict court sought to assign 60 percent to its defender
organization and 40 oercent to its panel attorneys. Gener-
ally, in these districts, allocations were met by assigning
defender organizations all defendants except those in
multiple defendant or other conflict cases — these defendants
were assigned to the oanel attorneys.
19
112
In the District of Columbia the district court adopted
a CJA plan which called for PDS to represent not more than
60 percent of the defendants needing appointed legal serv-
ices. The director of PDS stated that his agency handles
25 percent to 33 percent of all the indigent cases before
magistrates but very few cases before judges in the district
court. Indigent defendants are represented by volunteer or
panel attorneys.
Generally all the districts distributed cases among
panel attorneys on a rotation basis. In the District of
Columbia, however, a magistrate appoints oanel attorneys
from those attorneys who have volunteered for cases on that
day. To insure an equitable distribution of cases, the
magistrate will assign the cases to the attorneys with the
lightest district court CJA caseload.
The method used to rotate the cases varied among the
district courts. For example, every 6 months the magis-
trates in California Southern prepare an alohabetical
schedule interspersing panel attorneys with attorneys of the
defender organization. The defender organization's attor-
neys appear three times to every two panel attorneys. The
magistrate assigns cases sequentially to the attorneys
listed on the schedule,
California Central's panel is divided into five sub-
panels with four to seven attorneys on each subpanel. The
subpanels rotate their appearances in court, thus rotating
cases among the attorneys. A deputy clerk informs the mag-
istrate which subpanel is appearing and the name of the
panel attorneys to be appointed to the next cases.
In Arizona the Federal public defender maintains the
list of panel attorneys. When a conflict case necessitates
the appointment of a panel attorney, the Federal public de-
fender calls a panel attorney to see if he is available for
appointment. If the attorney is availabli^ the defender in-
forms the magistrate and the magistrate makes the appoint-
ment. If the attorney is not available or is not in, the
defender calls the next attorney on the list. Under this
system each attorney may not receive an equal number of
appointments; however, each attorney receives an equal
number of chances for appointment.
The magistrates in Michigan Eastern, Missouri Western,
and Pennsylvania Eastern made the assignments to the panel
attorneys. Rotation was achieved by recording each assign-
ment and then assigning the next case to the next listed
a ttorney.
20
113
All districts, in an unusual or complex case, will dis-
regard rotation and appoint the best qualified attorney.
That attorney is passed over on his next turn for appoint-
ment.
The following table shows how each court distributes
cases among the panel attorneys.
Proposed M locat Ion of Cases Between
Detendef Organization an3 Panel Attorneys and Method Used
to Distribute Cases Among the Panel Attorneys
District courts
California Cal i fornia Michigan Missour i PennsyTvanTa PuerTo 7TrqTn"
Central Southern Maryland Eastern Western Ea stern Bico Islands
75% 60* (a) 7S% 75% 75% (a)
25% 40% 100% 25% 25% 25% 100%
District of
"
Columbia
Arizona
Proposed allo-
cation o£
cases:
Defender
orqani-
z^stion
60%
75%
Panel at-
torneys
40%
25%
Persons adrain-
isterinq the
assignment o£
cases to pansl
attorneys:
Magistrates
X
-
Office of
the cleric
of court
-
-
Federal
public de-
fender
-
X
Judge
-
-
Method of rota-
tion;
Rotate sub-
oanels
-
-
Aopoint ing
attorney
next on
list ( if
available )
-
X
Assign attor
ney with
lightest
CJA case-
load
X
-
a/ Did not have defender ocaanization at time of review.
COURT PROCEDURE FOR REVIEWING VOUCHERS
The courts' procedure for reviewing vouchers for
reimbursement varied among districts and among judges and
magistrates within a district. Of 85 judges and magistrates
responding to questions on their procedure for reviewing
vouchers, 43 stated that they assumed the major burden of
review. Forty-one respondents stated that other court oer-
sonnel, such as law clerks and deputy clerks, performed some
portion of the review and, of these, 12 stated that such
other court personnel performed the major burden of the i
view. However, 71 of 85 respondents believed that their
review and approval of the vouchers was necessary.
Some judges indicated that verifying the validity of
certain charges was impossible. For instance, judges had to
rely upon an attorney's honesty that the charges for out-of-
re-
21
52-587 O - 75 - pt. 1 - 9
114
court time were accurate. However, judges and maqistrates
reduce the amount claimed on a voucher if they believe that
the quality of the representation provided did not justify
the amount. Of the 79 respondents to the question of
whether additional supporting information should be pro-
vided, 30 believed it should.
During fiscal year 1974 the Administrative Office
directed the district courts to require attorneys claiming
in excess of $300 for out-of-court time to submit with their
voucher a memorandum detailing how the time was spent.
Only one of the district courts reviewed had estab-
lished guidelines for reviewing vouchers. Missouri Western,
at the direction of the Chief Judge of the Eighth Circuit,
used the following guidelines in determining compensation to
be allowed for representing a defendant in a criminal case.
Disposition without trial $ 175
Disposition with trial:
Trial for 1 day or less 250
Trial for more than 1 day,
but not over 2 days 400
Trial of more than 2 days,
but not over 3 days 550
Trial of more than 3 days,
but not over 4 days 700
Trial of more than 4 days,
but not over 5 days 950
Trial of more than 5 days,
but not over 6 days 1,000
The following table shows the procedures used in re-
viewing the vouchers and the number of judges and magis-
trates using each method.
115
OlStl ict o
ColUHPlB
_^^ 01«tr ict couctt
Callfotnia focnl* H.icy- Hichiqan
C>nttal Southern l.«nd Eaattrn
Miaaoji 1
"Pennayr^"
vsnia
Eaatetn
What ar« the ptoe«dure8
fot reviewiriQ the attor-
ficyi' vouchees?
(«1 Uw cleciiB. deputy
clerks, or other cour •
petaohnel review the
voucnere for proper
for* ana coirecCneeB
with ]udqe or magis-
trate consider inq
quality of teoteaen-
tatlon versus amount
claimed
(o) Hajor burden ot eK-
asininq vouchers as-
sumed by law clerks,
deooty clerka, or
otner court personnel
with ]tjdqe or tnaqis-
trate approving all
vouchers e«cept t^ose
specifically flagged
by reviewing personnel
(c) Ha]or burden of e«-
amining vouchers as-
sumed by ]udge or
mag iBtrate
(d) Some other procedure
(e) No response
Are court records rou-
tinely consulted to
verify the In-court time
claimed by attorneys?
(a) Yes
(b) MO
(C) Ho response
What IS the average time
spent by a judge or mag-
istrate reviewing each
vouchee?
(a) Leas than 5 minutes
(b) 5 to 15 minutes
(c) 15 to 30 minutes
(d) Over 30 minutes
(e) Ho response
Should mote supporting
information be required
with the vouchers?
(a) Yes
(b) No
(c) Ho response
Is It necessary or
desirable to require a
] udge or mag i s tr a te to
review and approve the
voucher s?
(a) Yes
(b) t)o
(C) No response
When attorneys" vouchers
are lowered are they In-
foraed of the reason?
(•1 ifes
(b) (to
(ci No response
If yea, how are they
informed?
IS) In writing
(b) Orally
ic) Both wr Itten and
orally
(d) No response
5
13
71
14
23
116
ADEQUACY OF PAYMENTS
CJA established the maximum hourly rate for oanel
attorneys at $30 an hour for in-court time and $20 an hour
for out-of-court time. The act also established maximum
1 imits :
Misdemeanors
Felonies
Post-trial motions
Direct appeals
$ 400
1,000
250
1,000
As indicated by the followi
magistrates responding to o
the maximum hourly rates we
the hourly rates should be
the maximum hourly rates to
rates should be at least $4
at least $30 an hour for ti
they believed the rates sho
in court and $29 an hour fo
judges and magistrates also
oer case were adequate.
ng table, 68 of the judges and
ur questionnaire believed that
re adequate and 16 believed that
increased. Of those believing
be too low, most suggested the
an hour for time in court and
me out of court. (On the average
uld be about $44 an hour for time
r time out of court.) Most
believed that the maximum limits
Responses to Questions on the Adequacy
ot
_CJA_
Hourly
^at
es
and Ha<t
imuT^
ner
_Case_Li
mas
Oisttict of
Columbia
for
Sout
D
str ict cour ts
^_
izor
a
California
Central
nia
hern
Mary-
land
Michnan
Eastern
Missoor I
Western
Pennsyl-
vania
Eastern
Are tw hourly rates
adequate?
ia\ yes
riJl :Jo
ic] No response
6
7
10
1
b
1
10
1
7
2
6
12
7
1
\r9 the maKitnum li-nits
Dec case reasonable?
»lisderaeanocs 5400
(d| Ves
(D) No
(cl No resoonse
S
1
6
1
11
2
8
3
6
2
I
6
13
6
1
^■-lo.^les $1,000
Ul Yes
(n| No
(c) No resnonse
4
1
1
7
3
1
3
8
5
3
1
6
10
9
1
Post tcial motions Si'iO
(a) Yes
(bl Uo
(c) No response
3
2
1
6
1
9
4
8
2
1
7
I
1
6
14
5
I
Direct appeals SI, 000
la) Yes
ID) llO
(Cl No response
4
1
1
*1
1
II
2
7
2
6
2
1
6
16
1
1
Puce to Virq in
Pico Islands Toial
24
117
The following table shows the range of proposed amounts
for maximum case limits and the number of respondents who
disagreed with the estaolished amounts. The largest dis-
agreement concerned the felony limit--31 respondents be-
lieved the felony limit should be raised.
Proposed
amount
$
400
500
550
600
750
800
1
,000
1,
,200
1
,500
2,
,000
2,
,500
5
,000
No
limit
NO
sug-
gestion
Maximum Limits by Type of Case
Number of respondents who disagreed
with maximum limit for
Post-tr ial
Misdemeanor
4
1
2
3
1
2
Felony
Total
18
1
9
8
4
2
7
31
motion
1
9
4
_1
21
Direct
appeal
1
3
1
1
1
5
12
COMPARISON OF CJA COURT PLANS
CJA, as noted in chapter 1, required each U.S. district
court to place into operation a plan for furnishing indigent
defendants with adequate representation. The Judicial Con-
ference of the United States approved recommended guidelines
to be used by the district courts when devising CJA plans.
Two model plans were transmitted to the districts as an aid
in drafting their plans. One model plan was oriented toward
districts with public defenders. The other was oriented to-
ward districts with community defenders.
We reviewed CJA plans for 16 Federal district courts to
determine if tnere were any significant differences among
these plans. Our review included the 10 district courts pre-
viously discussed in this chapter and the 6 court districts
listed below. Also shown below are the major metropolitan
areas included in each district.
25
118
Federal district court
Northern Illinois
Southern Florida
Southern New York
Eastern New York
Northern Georgia
Northern California
Metropolitan area
Chicaqo
Miami
New York City
New York City
Atlanta
San Francisco
We found no significant differences between the olans.
We believe the general uniformity of the olans can be at-
tributed to the Judicial Conference's guidelines and model
plans .
26
119
APPENDIX I
SUMMARY OF RESPONSES TO CJA QUESTIONNAIRE
Questions asked judges and
magistrates (note a )
I. ADEQUACY OF REPRESENTATION
A. Generally, is the repre-
sentation provided by
the
Responses from
10 U. S. dis- D.C. Super io r
trict courts Court
1. Indigent panel attor-
neys
adequate 83
inadequate 2
no response -
2. Defender organization
attorneys
adequate 67
inadequate
r.o response 1
Compare the representa-
tion provided by indi-
gent panel attorneys
with retained repre-
sentation
better 7
about the same 66
not as good 12
no response
35
1
1
36
1
4
26
6
1
Compare the representa-
tion provided by de-
fender organization
attorneys with re-
tained representation
better
about the same
not as good
no resDonse
32
32
3
1
13
22
2
27
120
APPENDIX I
SUMMARY OF RESPONSES TO CJA QUESTIONNAIRE (continued)
Responses from
Questions asked judges and 10 U.S. dis- D.C. SuDerFor
magistrates trict courts Court
I. ADEQUACY OF REPRESENTATION
{ continued )
D. Compare the representa-
tion provided by de-
fender organization at-
torneys with indigent
panel attorneys
better 35 22
about the same 29 13
not as good 3 2
II
no response 1
COURT PROCEDURES FOR
RE-
VIEWING
"APPOINTMENT
AND
VOUCHER
FOR COUNSELING
SERVICES
;" (CJA 20)
A. What is your procedure
for reviewing the attor-
neys' vouchers?
Law clerks, deputy clerks,
or other court personnel
review the vouchers for
proper form and correct-
ness with judge or magis-
trate considering quality
of representation versus
amount claimed 29
Major burden of examin-
ing vouchers assumed by
law clerks, deputy
clerks, or other court
personnel with judge or
magistrate approving all
vouchers except those
specifically flagged by
reviewing personnel 12
28
121
APPENDIX I
SUMMARY OF RESPONSES TO CJA QUESTIONNAIRE (continued
Responses from
;tions asked judges and 10 U.S. dis- D.C. Supei
magistrates trict courts Court
II. COURT PROCEDURES FOR RE -
VIEWING "APPOINTMENT AND
VOUCHER FOR COUNSELING
SERVICES" (CJA 257
( continued )
Major burden of examin-
ing vouchers assumed by
judge or magistrate 43 20
Some other procedure - 4
no response -
B. Are court records rou-
tinely consulted to
verify the in-court time
claimed by attorneys?
Yes 49 15
No 33 21
no response 3 1
C. What is the average time
you spend reviewing each
voucher?
less than 5 minutes 28 6
5 to 15 minutes 48 27
15 to 30 minutes 9 3
over 30 minutes - 2
no response _
D. Should more supporting
information be required
with the vouchers than
is currently required?
Yes 30 4
No 49 30
no response 6 3
29
122
APPENDIX I
SUMMARY OF RESPONSES TO CJA QUESTIONNAIRE (continued)
Responses from
Questions asked judges and 10 U.S. dis- D.C. Superior
magistrates trict courts Court
II. COURT PROCEDURES FOR R E-
VIEWING "APPOINTMENf ~AND
VOUCHER FOR COUN SELING
SERVICES"' ( CJA ~T6 ~)
( continue~31
E. Do you believe that it
is necessary or desir-
able to require that a
judge or magistrate re-
view and approve the
vouchers?
Yes 71 30
No 14 6
other - 1
no response
F. When attorneys' vouchers
are lowered are they in-
formed of the reason?
Yes 54 14
No 28 22
no response 3 1
If yes, how are they
informed?
in writing 14 6
orally 20 5
both writing and
orally 13 2
no response 38 24
III. ADEQUACY OF PAYMENTS
A. Are the hourly rates
($30 in-court time and
$20 out-of-court time)
adequate?
Yes 68 28
No 16 8
no response 1 1
30
123
APPENDIX I
SUMMARY OF RESPONSES TO CJA QUESTIONNAIRE (continued)
Responses from
Questions asked judges and 10 U.S. dis- D.C. Super ior
magistrates tcict courts Court
III. ADEQUACY OF PAYMENTS
( continued )
B. Are the maximum limits
per case reasonable?
Misdemeanors $400
Yes 63 26
No 18 9
no response 4 2
■ Felonies $1,000
Yes 50 23
NO 31 13
no response 4 1
Post-trial motions
$250
Yes 60 26
No 21 6
no response 4 5
Direct appeals
$1,000
Yes 64 21
No 12 6
no response 9 10
Number of questionnaires
distributed 110 44
Number of questionnaires
received 85 37
a/ Questions concerning defender organizations were not ap-
plicable to Maryland, Puerto Rico, and the Virgin Islands
since these court districts had no defender organizations,
31
124
APPENDIX II
MAMLOW W. COOK, KV.
CHftRlXI MCC. MATMIAIiiMMMO*
ei>WAnu M. frmiKtyr, »"
nmCM DAvn. ino.
fionrfiT c. nvno, w. va,
MHN V. IWtlNBr, CAUr.
• TfioM THunMoito, n e>
• V, TU'«NCV, CAUir.
LAwnFMCr M. n*icr<m
CHICr COUNIIl. A'tO BTArr DincCTtin
iOHH H. HOIO-OMAN III
wHkHP COUNSKt. AMO aTArr DIIIUT0A
'^CmlcJ) /IpHcLji; .T^maie
COMMITVEICON THE JUDICIARY
•UBCOMMITTCe ON CONSTItUTlONAL niOHT*
(mhuamt to •CO. •. a. ncs, it, Vlo coi^snus)
WAOHINOTON, O.O. 20SI0
. .,:,October 10, 1973'
i.'onorable Elmer B. Staats
Coru[)trollGi" General
'A'., oral. Accoiuitina Office
'iM G Street, N.W.
VLiGhinti-'con, D.C. 205*46
Dear General Staats:
Meiabers of the staff of the Constitutional lUcVitc rjubcommi bbco Im-'c
tiiscuGsecl with GAO representatives, I'Vank Wild, Dan Stanton nno Vinci:ut
Griffithc the possibility of conducting two inquirieo which would bt of
Creat assistanco to the Subcommittee.
The first hns to do with tho Subcommittee '8 oxomination of bhc
Ir.i.cnvil Security Division of the Department of Ju.stico from Jdnu.^vy, , ,
1970 Ihrouch March, 3.973' The cecond has to do v/ith the adminir.tr;' i^ion ' //
o.' lilic Ci'imiiial Justice Act system bT'prj.yitTont.'r'to private "uttf>rn(!y3,
<ripocially with rcepCcfto'thd'Act't; oporation in the DiotriCt of (JuJumbia.
One a.'ipcct of this latter problem was addrenscd in your IcttcV oj^inich
V,-l'r)'i29, May 26, 1972 to Mr. Rowland Kirke, Director of the Adminiatrufcivc
orfico of tho U.S. Courts.
'•
Vhe purpoao of this Icttor ii; \,c> requcub formally that GAO uiuUn-oiiKc
ohese inquiries. Since each is likely to be the uubject of hourinfjii in
one first six months of the new year, I would appreciate whatever you can
do to expedite the GAO' 6 examination.
With kindest wishes,
Sincerely yours,
Sam J. Ki'Vin, Jr.
Chairman
SJs/lbh
32
125
The Cttatrmax. The Chair would now like to yield to the gentleman
from ^Maryland, ]Mr. Glide, to introduce the next witness to the panel.
Mr. GuDE. ^Ir. Chairman, it is a distinct honor to have Judge Doug-
las Moore. Jr.. of the District Court of Maryland, Montgomery County,
the Sixth District Juvenile Division with us today. He has an out-
standing record of service on behalf of law enforcement activities in
Montgomery County. It is a great pleasure to have you here. Judge
Moore, to help us with the crime problems of the metropolitan area.
STATEMENT OF JUDGE DOUGLAS MOORE, JR., DISTRICT COURT OF
MARYLAND, MONTGOMERY COUNTY, SIXTH DISTRICT JUVENILE
DIVISION
Judge Moore. Thank you, ]Mr. Gude, and Mr. Chairman and mem-
bers of the Committee. I have filed with the Committee, as Mr. Gude
has indicated, a statement, which if you will receive in the record, I
would like to briefly highlight some of the highlights of the statement,
and, of course, answer any questions that the Committee would like to
ask, and I will be glad to try and answer them.
The Chairmax. Without objection, the full statement will be entered
in the record and the gentleman may proceed with his summary.
[The full prepared statement of Judge Douglas ^loore folloAvs :]
Statement of Douglas H. INIoore, .Jr., Judge, District Court of Maryland,
Montgomery County, Sixth District, .Juvenile Division
Mr. Chairman, members of the Committee, I am Douglas H. Moore, Jr., senior
judge of the Juvenile Divi.sion of the District Court of Maryland, District Six.
comprising Montgomery County. I liave been a full-time judge for juvenile causes
since August, 1967.
My membershii) in a number of professional organizations in areas related to
the criminal and juvenile justice systems Includes the Maryland and National
Councils of Juvenile Court Judges and the Metropolitan Area Coiuicil of Juvenile
Court Judges. The latter, of which I am the current Chairman, was organized
approximately fifteen years ago to enable the juvenile court judges and chief
probation officers from the District of Columbia and the surrounding suburban
communities in Maryland and Virginia to meet regularly and explore means of
facilitating inter-jurisdictional problems and procedures.
I am a native of this community and my parents and grandparents were raised
in Washington. D.C.. their ties here going back well before the turn of the
century. Prior to my conunencing the practice of law in Montgomery County, I
was employed in private industry in the District and, in the mid-fifties, as an
A.ssistant Cor])firation Counsel. I am a judicial member of both the Maryland and
District of Columbia Bars. I say this to emphasize not only that I have, there-
fore, in my opinion, an appreciation of many of the problems that confront the
Metropolitan Area and this Committee, but that I maintain a genuine interest
and concern for the present and future of the Metropolitan Area and its citizens.
JUVENILE offenders
This Committee is justifiably concerned over the increase in criminal activity
in this area. Close to one-half, if not a majority, of serious offenses are committed
by juveniles, young men and women under eighteen years of age. In my County,
these offenders do not necessarily come from the poorer homes or broken families.
To the contrary, in the past several years I have noticed a marked increase in
robberies, aggravated assaults, multiple burglaries, together with other crimes,
committed by youths from upper middle class communities, whose motives could
have no relationship to economic conditions.
Of concern to me is what appears to be a "new breed" of juvenile delinquents :
adolescents who, when brought to court, often show a casual or indifferent if not
126
bored attitude toward the entire process. Their offenses now demonstrate even
more a disregard for the personal and property rights of others, their victims.
Girls are now committing more serious offenses such as robbery, housebreaking,
ear theft, whereas shoplifting was their usual and most serious offen.se two or
three years ago. Many delinquent acts, especially assaults, disorderly conduct
and major traffic offenses prove to be related to alcohol consumption. Some are in
need of treatment as alcoholics. Drug offenses have correspondingly declined with
the increase in alcohol-related arrests.
In the matters coming before my Court I see little correlation between the
present economic situation and the increase in juvenile offenses. I am of the
opinion from my discussions with persons in this field from the District and based
on my experiences during a recent assignment to the Juvenile Court in Baltimore
City that such a correlation may exist in the larger cities.
To say that the problem is complex is an understatement. It is my belief that
a significant factor in the cause of acting out behavior of juveniles is a general
breakdown in discipline in the homes and schools. This, coupled with the wide-
spread belief among our youth that nothing will happen the first, second or even
third time in juvenile court may well account for the casual attitude I have
referred to when a juvenile is arrested or brought before the court.
COMMUNITY BESOUKCES
Unfortunately, this belief often becomes a reality. Police and probation officers
cognizant of court backlogs in some jurisdictions and frustrated by the lack of
sufficient community resources will refrain from sending the more minor of-
fenses to court or, occasionally, the more serious incident if the perpetrator is
a fir.st offender. The juvenile thus discovers, as do his friends and neighbors,
that, if caught, he may never get beyond a police station or a lecture by an
overworked probation-intake officer.
Similarly, judges, in attempting to balance the interests of the juvenile with
that of the community, may take the calculated ri.sk of releasing a youth on
probation rather than utilizing an understaffed, under-programmed and severely
overcrowded training .school from which an early release in sixty to ninety days
would be recommended by its staff. The judge's reluctance at institutionaliza-
tion here is often interpreted by the youth and the community as a softness
by the courts toward criminal behavior.
TKAININQ SCHOOLS
For the more serious offender, or the juvenile who fails repeatedly on proba-
tion, the training schools provide questionable benefits from which the commu-
nity also derives very little. The deterrent effect is questionable on the major-
ity of these juveniles. The lack of adequate staff to work with the.se youth and
to insulate the less aggressive and sophisticated from the emotionally disturbed
and hard-core inmates, the vast overcrowding causing urgent staff requests for
a juvenile's early or premature release, together with the want, if not absence,
of sound treatment and rehabilitative programs, frequently results in the juve-
nile offender's early return to his family and former neighborhood with little
if any improvement in his attitude or behavior or advancement in his academic
or vocational skills. On the other hand, he may well have acquired a far more
negative attitude, a more aggressive and combative approach to family, school
authorities and other youngsters and adults, and "technicnl" skills learned
from training school peers that, predictably, will lead to further acting out.
JUVENILES WAIVED TO ADULT COURTS
The discretionary waiver by a juvenile court to the adult court of the hard-
core offender after finding probation and training schools had been or would be
incapable of rehabilitating this youth, may provirle a respite for juvenile institu-
tional and probation services, but places that offender into another justice sys-
tem that, to the best of my knowledge, is beset with even greater problems and
fewer alternatives. In my exnerience, many adult court judges, confronted with
sentencing a sixteen or .seventeen year old waived from the juvenile court, will
first attempt probation or a suspended sentence in lieu of imprisonment with its
atendant overcrowding, aggressive adult prisoners and minimal treatment or
rehabilitative programs. And what impact or impression is thus made on this
youth, his peers and the community?
127
It is imperative tliat we address ourselves not only to the need for community
and institutional services for delinquent juveniles, but to similar alternatives
for those children whose circumstances or behavior have not, thus far, resulted
in their being involved in delinquency charges. The truant, the runaway, the
child beyond parental control, as well as the dependent and neglected youngster
who may grow up in a series of foster and shelter homes, the retarded or
severely emotionally disturbed child, are all in need of such .services. Many of
these are the potential delinquent youth for who early care and treatment is
imperative if we are to be at all successful in the field of prevention.
RECOMMENDATIONS RE JUVENILES
Based on my experience primarily in the area of juvenile problems, and ad-
dressing myself to those needs, and with the assumption that some or all of the
suggestions below are applicable and are not being met or currently proposed,
I respectfully recommend that this Committee consider the following for possible
Congressional and local action :
I. That emphasis be placed on community programs for both delinquent and
non-delinquent juveniles and their families.
A. — In most Metropolitan Area jurisdictions there exists a critical need for
group and shelter homes with trained professional live-in staff. The group homes
would provide counseling programs for residents and their parents. Group homes
for younger boys or girls could and, in some instances, should have in-house
education in lieu of public school attendance.
B. — Services by both public and private agencies should be available in suffi-
cient numbers of staff and in locations to serve the need for psychiatric and
psychological otU-patient treatment and counselling for juveniles and their fam-
ilies. This would be utilized by children living with parents as well as those in
group, shelter and foster homes. In Montgomery County, a local hospital provides
an intensive 9 :00 A.M. to 4 :00 P.M. day-treatment program with group and in-
dividual therapy, education, crafts and recreation programs.
C. — Probation services should be strengthened where necessary to provide suf-
ficient numbers of competent, trained probation officers. Large caseloads often
permit only infrequent and brief contact with the juvenile and to a lesser extent,
his parents. The more capable and experienced probation counselors are rapidly
promoted to better-paying supervisory and administrative positions, thereby
leaving much of the crucial direct involvement with the youth to the newer or
less capable counselors. Probation officers should insist on strict adherence by
their clients to the court's orders of probation and should not be reluctant to
refer violations of directives or restrictions to the court. The courts must then,
of course. supi)ort the probation officer in his efforts with the juvenile and
his family.
Rostitution to the victim for his injuries or loss should always be a condition
of the juvenile's probation and/or assessed against the parents. Laws to provide
for parental liability should be enacted or strengthened, where applicable.
D. — Educational piograms must stress the needs of the retarded and
handicapped and of the child with learning disabilities. It is also my opinion
that most Area communities do not now, or did not until ver>' recently, em-
l)hasize the nee<l for strons, intensive remedial programs in the lower grades
where the problem usually begins or a broad selection of good vocational training
opportunities for the older student.
II. That adequate institutional facilities and programs for delinquent and non-
delinqurnt youth 6c provided.
A. — Similar to the need for out-patient treatment seirices as previously noted,
a psychiatric residential treatment facility .«hould be available on a community
or regional basis for in-patient treatment and education of the ps.vchotic or more
.severelv emotionally disturbed youth or for the less seriously disturbed juvenile
who otherwise presents a danger to the community or is a security risk and who
is in need of a treatment setting. This institution should be so located as to enable
the youth's parents to participate regularly in the treatment program as well as
to visit their child.
In Maryland, the .seriously disturbed or psychotic juvenile, regardless of age,
one who is suicidal or a danger to the physical safety of others, must be housed
in a State mental institution, usually in a ward with psychotic adults. The ex-
cp])tinn is where a family has sufficient funds or access to high-option insurance
to manage the three-to-five thousand dollars per month rate of one of the private
facilities in the area.
128
B. — Detention facilities for the delinquent or alleged delinquent juveniles while
awaiting hearing or further placement should not only be secure, but adequately
and professionally staffed and large enough to serve the needs of its jurisdiction.
It should also be of sufficient size and design to enable, when necessary, some
separation of the more aggressive sophisticated offenders from the younger or
less aggressive juveniles. For some juveniles, a minimum-security detention
center will insure their presence while waiting further action by the courts and
ancillary services.
For others a community detention program, as is in operation in the City of
Baltimore, can be utilized. Here, alleged delinquent juveniles after being referred
by the court for detention, are screened by probation counsellors assigned speci-
ally to the program and if believed not a major security risk or a danger to the
commimity are allowed temporarily to continue at home under daily probation
officer contact and supervision while awaiting hearing or disposition. Failure of
the juvenile to qualify for community detention or any violation of curfew or
other imposed rules results in immediate detention.
C. — Training schools, as with secure detention centers, must be of adequate
size and with sufficient numbers of trained, competent staff to provide the neces-
sary care and treatment of youthful offenders over a long term. Protection and
separation of the youncer or less aggressive youth is mandatory. Equally essential
are realistic academic, vocational and counselling programs of sufficient flexibility
to meet the needs of all youth in the facility.
The training school must have the capability of housing the juveniles committed
there for a sufficient length of time to provide maximum benefit from these
programs.
Psychiatric and psychological treatment and consultation must be provided as
a part of the training school program for those diagnosed as being in need of
such treatment. This need is even more urgent if the previously recommended
residential treatment facility is not available.
I firmly believe that if the juvenile courts were to have at their disposal ade-
quate institutional facilities such as I have envisioned here, they would then be
more willing to make full use of them, in many instances for the first offender.
I further believe that this could, in time, bring about some changes in the atti-
tudes of juveniles toward their becoming involved with the juvenile justice
system.
III. That judges ie designated to sit in juvenile courts on a fulltime non-rotat-
ing basis. This is a special area and should be reserved for judges who demon-
strate competance as well as preference for the assignment and, wherever possi-
ble, have had some training or experience as a judge or attorney in this or
related fields. Assignment should be for two or, if practicable, five years as a
minimum.
The juvenile court in Montgomery Court, now a division of the District
Court, has been for over twenty years a full-time juvenile court with non-rotating
assignment of judges.
Juvenile courts must be adequately staffed with judges and clerical, probation
and security personnel. Sufficient courtroom and other physical facilities are
essential.
IV. That laws pertaining to juveniles be realistic, fair and in keeping with
the over-all philosophy of the juvenile justice system.
The preceding suggestion as to full-time, non-rotating judicial assignments
could be part of any juvetnile court act.
Assuming adequate court staff and community and institutional facilities, a
juvenile law should provide that all offenses committed by persons under eigh-
teen years of age be within the original jurisdiction of the juvenile court system.
This would not, of course, preclude waiver in appropriate cases to the adult court
but would leave that decision within the province of that system wherein the
responsibility for evaluating and determining the needs and problems of youth
should lie.
As I have indicated before, referral of some categories of juveniles to the adult
system only adds to its burden and, in many cases, provides less rehabilitation
and. as a result, less protection for the community.
V. Prevention program have been discussed briefly and may ultimately be the
real answer to many of the problems that the court and institutional systems are
now trying to deal with after the fact.
129
Many communities now recognize that early identification and treatment of the
young juvenile offender outtiide of the court system or the young child and family
with the potential for future more serious problems is an absolute necessity both
from the standpoint of the child's and family's interests and that of the com-
munity. Intervention and diversion programs are being developed by both private
and public agencies and should be encouraged and supported by Federal, state and
hx-al governments.
As previously stated, we should not overlook the needs of the non-delinquent
child— the runaway, truant, the dependent, neglected, mentally handicapped —
in the area of prevention programs. To the contrary, greater emphasis should be
placed by such programs and agencies on these youth as potential juvenile
offenders.
VI. That juvenile court advisory committees 6e established in the District of
Columbia and the other Metropolitan Area jurisdiction by law, comprised of
citizens appointed by the local governing body.
Montgomery County, exclusively, for over twenty-five years, has had an active
Juvenile Court Committee, created by State law, appointed by the County
government, for the purpose of advising with the Juvenile Court judges on all
areas of juvenile matters and to serve as a liaison between the Court and State
and County governments. Effective July 1, 1975, the revised juvenile law for
Maryland creates a similar committee for all counties in the State. A few other
states have created these advisory committees.
The importance of direct and active citizen involvement in the juvenile justice
system is vital and cannot be overstressed. While I anticipate further testimony
on this subject will be presented to you at a later date, our Committee in
Montgomery County has, in brief, among other accomplishments, testified at
State and County legislative and budget hearings, conferred with State and local
officials regarding juvenile training centers and programs both existing and
proposed, conducted educational programs for citizens and, in general, has
through its efforts, performed an invaluable service to the Court and the
community.
In conclusion, I have stressed, for two reasons, primarily the problems and
needs of juveniles and the juvenile justice system. First, this is and has been
the field in which I have worked as both a judge and, to a somewhat lesser
extent, as an attorney, for a total of almost twenty years.
Secondly, I feel that we should assign our priorities to youth and their
problems. It is quite obvious that the juvenile offender of today will become
tomorrow's adult offender unless we can successfully rehabilitate him while he
is still a juvenile.
Few, if any, of the facilities and programs I have discussed can be provided
without expenditure of considerable sums of money. This is where the need
arises for community education education and wareness not only that a serious
problem exists, but what must be done to alleviate it and, again, where the
community's priorities must be assigned.
I greatly appreciate this Committee's interest and concern in this very complex
area and for your inviting me to appear before you.
I shall welcome any questions that the Committee may have and would ask
that you call upon me at any time in the future if I can be of assistance.
Judge Moore. For the record, I am the senior judge of the Juvenile
Court in Montgomery County. I have been a full-time judge, assigned
to juvenile causes for approximately 8 years, since my appointment in
August 1967. Prior to me, my predecessor to the bench, who is now
retired Judge Alfred Xoyes. was the judge of the Juvenile Court exclu-
sively again, full-time, for a period of approximately 25 years.
JUVENILE OFFENDERS
By keeping in mind the Committee's line of inquirv, I have in my
statement addressed myself primarily, if not exclusively, to the juve-
nile problem for two reasons, and of course the two reasons are because
52-587 O - 75 - pt. 1 - 10
130
that is my field, and I do not pretend to have all of the answers in the
adult criminal justice complex, but I think secondly, possibly more
importantly, I think this is the area within which or toward which
we should focus our main attention. As we have heard from previous
speakers, approximately 50 percent or in a range anywhere from 45
to 55 percent, depending on what statistics you read, and what com-
munities you are attending to, approximately this number of offenses
are committed by our juvenile population, persons under the age of 18
in most jurisdictions.
And 1 think it should also be noted, although I don't have the sta-
tistics on it, that a great majority of the adult offenders, and particu-
larly the serious adult offenders, the criminal offenders have had
extensive juvenile records before they got into the adult criminal jus-
tice system.
So I would suggest to you that this is where we must necessarily
spend the money and provide the programs if we are going to make
any dent in the complex and increasing adult criminal justice system.
I do not suggest that we ignore the adult penal correction system, but
I think we must focus our attention on the problems of youth.
There is an increase in major offenses committed by juveniles, and
an increase in my county, and I believe this is true throughout other
jurisdictions. I know it is true in the State of Maryland.
My statement, although it is an 18-page statement, is nevertheless
rather a broad overview within the context of the needs, as I know
them to be, within the State of Maryland and my own county. I, of
course, made assumptions that most of these needs are also present
within the District of Columbia, and in hearing from Chief Judge
Greene today, apparently we share the same frustrations and the same
problems to a great extent.
I have noted, as I say, an increase in juvenile offenders, serious
offenses committed by juveniles, more serious delinquency offenses
committed by girls when several years ago shoplifting offenses were
the major crimes committed by juvenile girls. I have noticed an atti-
tude in the last several years of one of indifference, a casual approach
to the court system, which makes me believe that we are not making a
sufficient impression on the youth in our communities and I note that
there is an increasing breakdown in the structure of the family, family
structure, discipline in the schools, discipline in the homes.
And I feel that part of this problem can in time be alleviated if
we provide the juvenile courts and the related service agencies with
the necessary tools and the necessary resources to possibly alleviate
tlie impression which is to a great deal proved that nothing much is
going to happen to you as a youngster when and if you come into the
juvenile court. And at least, for your first offense, and possibly for
several thereafter, and the judges are going to have to bend over
backward, as it were, to avoid sending a youngster to one of the train-
ing school facilities knowing, as he does, that the training school
facilities are going to make little, if any, impression, or little if any
progress toward rehabilitation.
And, of course, this in turn is interpreted by t^e youth, his peers,
the neighborhood and the community as a whole, that the judges
and the courts are soft on crime, soft on the offenders and are letting
131
the serious offender roam the street. And again, as I say, the im-
pression is correct in the sense that we are turning probably far too
many loose because we know we have difficulties in rehabilitating
them.
NEEDS OF THE CRIMINAL JUSTICE SYSTEM
I have noted some needs that I would like to just briefly run over.
There are six of them, broad or general needs. They are not neces-
sarily in the order of what I feel is the priority. 1 think many of
these, if not all of them, should be put side by side, because it is
difficult to say this deserves priority over the other.
I feel that the court system, that is the juvenile court system, should
be upgraded, should be given the necessary attention and prestige
that it deserves. 1 think there has been and continues to be an attitude
in some jurisdictions at least that the Juvenile Court is the low end
of the totem pole. That is the least experienced or the least competent
judges perhaps should be assigned there, that it is a place where many
adult court judges want nothing to do with, and it may be from a
lack of understanding of it.
But also, I think they feel it lacks prestige. We have the problem
of having the newest defense counsel, the newest prosecutors being
assigned to the juvenile courts, and this is true to a great extent in
my own court, and it is used as a proving ground. And the more com-
petent and the more capable go ahead to the adult court system, and
into the circuit court for jury trials and in the major cases. So, I do
not think that this is the place to train attorneys as prosecutors or
as public defenders, and I feel that this should also be the focus on
the police who work in juvenile matters.
In Montgomery County I feel, and I do not feel I am subject to
correction, we have an excellent juvenile aid bureau or juvenile section
of the police. There are people that have requested the work for the
most part. They have special aptitudes and temperament in dealing
with youth, and are the major, I think, asset to the police system and
to the community.
FULL-TIME JUDGES
I feel that the judges in the juvenile courts should be assigned full-
time. There should be no rotation for a minimum of 2 years, if prac-
ticable, for a minimum of 5 years. Judges assigned to the juvenile
court should be those, I feel, who request this assignment, or are at
least willing to take it without any major disagreement over the as-
signment, and that if possible they have some training or some
previous experience or background in the area of juvenile matters,
either as attorneys, possibly in their undergraduate background or
as judges, if possible.
I do not say that other judges in these same courts systems, and
I try to encourage this in our own court in conjunction with our
administrative judge and the other judges, at least of having a speak-
ing acquaintance with the court on juvenile matters and problems,
for the obvious reason that we have illness, and we have vacations,
and we have sudden surges of emergency cases where we need some
help, and I think one sitting in the court should have some prior
knowledge of it.
132
But I think it is a specialized field. It takes, I would say, at least
a year for a judge to acquaint himself with the procedures and with
the resources with which he must work. My personal view is that
there should be no rotation, and my personal belief again, and we do
not have masters in our Montgomery County, is that masters or ref-
erees should not be utilized in juvenile offenses or any other, primarily
any other juvenile court area.
COMMUNITY PROGRAMS
On community programs, I think this is one of our answers to the
problem, but it must be an adequate program that is fully supported
by the governing bodies and by the community. We need group shelter
programs and group and shelter homes for the youth that cannot, for
one reason or another, be in their own homes. These are not detention
facilities. In most cases, these facilities in which the youngsters are
subject to the rules of the home and the court, they are free to work,
go to school in the community and some of these homes to have in-
house educational programs and are more restrictive, at least in the
initial, the youngster's initial placement in the home. But shelter
homes, I think, follow along the same lines for those that need tempo-
rary housing out of their own home, but are not security risks or
otherwise dangerous to the community.
In this same area of community programs, out-patient treatment
programs, psychiatric, psychological family counseling, I think is
essential as a backup for the court or for those that do not at this
point need the services of the district court.
PROBATION
Good, sound probation services are, I think, essential, and I think it
follows that we must have competent, dedicated probation officers.
And perhaps one way to get this is to be in a position to pay them
salaries that I think are more commensurate with their education and
with their duties. I think a probation officer must be firm and fair,
he must be willing to bring a child ba^^k to court if he does not foHow
the dictates of the court or of the probation officer and, of course, the
courts must backup these people if they are to be expected to per-
form their role.
SCHOOLS
In the school system, I think we are lacking skill and in Montgomery
County, which is supposed to have one of the highest, or at least the
higher cost educational systems, I think more attention must be paid
to the remedial programs, the programs that will aid the children with
programs that are for those who are interested not in the academics
the learning disabilities and the retarded children. Also vocational
but do have certain skills and interests in a trade or vocation. I think
there is a lacking, at least in my county, of vocational schools as such.
There are programs which are usually an adjunct to the academic pro-
grams within these several schools, the high schools.
133
TREATMENT CENTERS
Institutions, unfortunately, are important, and I think will always
bo with us. at least for the foreseeable future. A residential treatment
center which would be in-patient, psychiatric and psychological treat-
ment, and would also be located regionally or in the community to
involve the parents in the program I think is necessary for the child
with severe emotional i)roblems, for the psychotic child, the child that
is suicidal or whose aggressive tendencies are a physical danger to the
community. Detention centers, of course, for those awaiting hearings
and those who are awaiting some other placement, most communities
have these, but in most communities, to my knowledge, they are over-
crowded, understaffed, and there should be at least some program by
way of recreation, crafts and education for the youth who are admit-
tedly there for a brief time. There must be capabilities of protecting
the less aggressive, the less disturbed, the less sophisticated child from
the more aggressive, the more hard-core youth within the center.
DETENTION FACILITIES
There also has been touched on, I believe by Chief Judge Greene,
the minimum security type detention facilities, and also community
detention which is in operation in Baltimore City, and I think on about
a l-to-8 ratio, probation officers to client. And from an experience 1
had in Baltimore City where I was assigned to the juvenile court for
1 month recently, the month of February, I feel that that is an excel-
lent program, and I am trying to encourage its beginnings in Mont-
gomery County.
I think that when I mentioned the deterrent effects, I believe,
briefly on the attitude of youngsters toward the fact that the courts
are not going to do an>i:hing to them, I think if we pro%dde the judges
with adequate, sound institutions, that are sufficiently large to retain a
youngster for the necessary length of time for him to receive some
good rehabilitation programs within the institution, I think then the
judjres will utilize these facilities more, and possibly even for the first
offender, if he believes he is in need of treatment.
In our State now, the training schools are so overcrowded that we
are requested to release a youngster within 60 to 90 days, no matter
what the offense is. It is not a question of is he rehabilitated, it is just
a question as to whether a given individual is likely to be a danger
more than the felon in the next cottage or in the next bunk, and I feel
that this is one of the reasons why the judges are not utilizing these
training school facilities. The other reason is we know that there is
veiw little rehabilitation, verA' little by way of education or vocational
training, and no psychological or psvchiatric treatment for those who
are suffering from some emotional disturbances. And I think that the
latter program within our training schools is a necessity. I have tried
to advocate it with little success. I do not know whether you have some
similar programs or such a program within the training schools
within the District of Columbia.
134
COURT PROCEDURE FOR JUVENILES
Just very briefly ; I think laws should be fair, should be reasonable,
should be in keeping with the philosophy of the juvenile court. My
personal view is that all offenses coniniitted by pei-sons under the age
of 18 should originally come before the Juvenile Court. More serious
offenses on hard-core offenders would, of course, be subject to waiver
or transfer to the adult court.
In Maryland, and I believe it is true in the District of Columbia,
certain categories of offenses become adult offenses at ages 15, 16 and
so forth. Armed robbery in Maryland is 16, a person 16 will almost
automatically become an adult, and for capital offenses, it is 14 and up,
which become adult offenses. I feel all of these should be within the
juvenile system initially, because I like to think this is where the ex-
pertise is, and the resources lie, and we should have the first look to
see whether the needs can be met within the juvenile system or should
be transferred to the adult courts.
CRIME PREVENTION
Prevention has been mentioned, and I think it is essential. I think
this is where the answer may lie, and it is difficult to get started, and
from my understanding, difficult to obtain funds for this. We are talk-
ing about diversion projects, and we have some in Montgomery
County under our family services programs, attempts to identify the
potential offender at a young age and to work with him and his fam-
ily. And I am talking here about not so much the delinquent, but the
child in need of supervision, the nmaway, the incorrigible, the truant,
the dependent child who from birth practically is abandoned or abused
and will spend most of his life in foster homes. These are the youth —
in my estimation, Mr. Chairman, and members of the committee — who
are potentially delinquent offenders, not all of them by a long shot,
but many of them and I feel if properly worked with, treated, if iden-
tified at an early time, possibly in the area of prevention we may be
diverting a number of our youth who are now gradually, through
foster homes, through out- of -control matters in the home, getting into
the delinquent behavior.
COMMUNITY INVOLVEMENT
Citizen involvement, I feel, is essential. We are talking about pro-
grams that need public support, both from the financial or fiscal as-
pects as well as just an understanding and an awareness of what the
needs are and what the problems are. In Montgomery County, and as
of July 1 this year, throughout the State, community or rather juve-
nile court committees, advisory committees to the court, are created by
State law and in INIontgomei-y County we have had such committees,
juvenile court committees and citizen panels, citizen committees created
by State law for over 20 years. I believe more like 25 years.
With me in the hearing room to day is Mrs. Marion Mattingly who
is the chairperson, who is in her second term as the chairperson of the
Montgomerv Countv Juvenile Court Committee, and I believe Mr.
Gude and also membei-s of our State Legislature will attest to the fact
135
that Mrs. Mattingly and members of her committee maintain a con-
tinuous and an active role in attempting to support the needs of the
juvenile court, not only in Montgomery County, but throughout the
State. And they have been invaluable aids, I feel, and I would recom-
mend to you that this type of committee be created, I would recom-
mend it to you, and I tJiink it should be created by statute to give it
the authority and to give it the prestige of a statutorially created body.
In conclusion, I think I discovered it, for these programs we need
a great deal of public understanding and awareness. The public is
apprehensive, justifiably, about the increase in crime. As I have noted,
they are critical of the courts for turning too many offenders loose,
both adults and juveniles. And I think there is a ^reat need for public
education to acquaint them with the needs and with the problems and
also to obtain their support.
EXPENDITURES
I do not see how this can be provided without ^reat expenditures,
and, consequently, I think the public needs to be involved in this as
to where their priorities are going to be to encourage, through their
elected officials, local and Federal, as to whether these expenditures are
going to be in this field of criminal justice and corrections and pre-
vention, or whether they are going to be into some other areas which
have no relation to the sj^ stem.
Thank you, Mr. Chairman.
The Chairman. Thank you very much. Judge Moore.
Mr. Mann?
Mr. Mann. Judge, you have given us a lot to think about. Are you
familiar with the Massachusetts program put into effect by Dr. Je-
rome Miller which closed all of the State juvenile institutions and
switched to group homes and treatment centers?
Judge Moore. I have heard just Avhat you have told me. I am not
familiar with the program nor of the success or failure of it.
Mr. Mann. Well, I was hoping you w'ere, because I am not familiar
with its results and I wanted your opinion as to whether or not it
might be adaptable to the type of situation that we find here in the
District.
GROUP HOMES
Judge MooRE. Well, we do have group homes in Montgomery
County that are successful for a certain category of youngsters, some
of the minor offenders. Unfortunately, there are those who need
institutionalization.
Mr. ]NTann. Well, that is one thing which would concern me about
closing all institutions, because we know there are more serious of-
fenders and the ones in that gray area of age. So, where is your
dividing line of jurisdiction on age for juveniles in Maryland?
COURT PROCEDURE FOR JUVENILES
Jud.rre MooRE. Eighteen with exceptions. In Montgomery County
it will be effective July 1 at 16 up for robbery with a deadly w^eapon,
136
14 and up for any so-called capital offense, first degree murder, rape,
kidnaping, and otherwise on the other offenses they are all at the age
of 18, subject to waiver at 15.
Mr. Mann. Based on your experience, would you make any adjust-
ment in those age categories?
Judge MooRE. Well, as I believe I indicated, my belief is, and I
think it is proposed in some other States, I believe Michigan is one
if I am not mistaken, it is proposed, at least, that all offenses come
initially to the juvenile court for anyone under the age of 18 and then,
of course, the waiver authority to determine whether the youngster
is amenable to treatment within the juvenile system is then, of course,
a discretionary thing with the juvenile court judge who has, as an
aid to him, as I do, as we do, all of the various diagnostic services
of the probation office, the social services, psychiatric services, and so
forth. I do not mean to say we have an excess of these services, but
this is where I think the expertise lies to determine whether these
offenses should go to the adult courts.
Mr. Mann. Thank you. Judge.
The Chairman. Minority counsel?
Mr. Mathis. Thank you, Mr. Chairman.
Judge Moore, you indicated in your statement that you presently are
serving as chairman of the Metropolitan Area Council of Juvenile
Court Judges. It is my understanding that this is a group composed
of juvenile court judges and chief probation officers from different
jurisdictions here in the Washington area.
To what extent has this group recognized that there are differences
in juvenile programs within the different jurisdictions within the
Washington area, and to what extent have they tried to recommend
to the different jurisdictions those programs which some jurisdictions
have found successful?
INTERSTATE COMPACT ON JUVENILES
Judge MooRE. If I could answer it this way, the group was formed
about 15 years ago by Judge Noyes, who I have mentioned and Judge
Ketchum of this bench in the District of Columbia and the late Judge
Hugh Reid from Arlington County, because of interjurisdictional
problems that the outlying counties were experiencing with the Dis-
trict of Columbia and vice versa. Much of this has been alleviated,
some of these problems have been alleviated by the Interstate Com-
pact on Juveniles, which, of course, within the last — what — 3 or 4
years, I believe, was signed by the District of Columbia as well as
other jurisdictions.
We, of course, recognize there are problems and that there are dif-
ferences in the laws of the respective jurisdictions.
We tried within the framework of those laws to work out an in-
formal agreement whereby we can expedite our procedures. For ex-
ample, we have succeeded in expeditin<r much of the. I guess I don't
know what the word for the redtape of the Interstate Compact would
be, but we have been able to smooth some of this procedure to bring
youngsters back from the District of Columbia or from Maryland into
137
the District of Columbia for a hearing, and supervisory, cooperative
supervisory agreements have been Avorked out with this committee
for probation supervision.
I think we have not readied the point of advocating changes in our
respective laws, but I think we have smoothed many of the rough
spots where we feel that we can operate without a change in the law
and have been able to alleviate some of our problems.
Mr. Mathis. Are there programs in Montgomery County which
presently do not exist in other local jurisdictions in the Washington
area which you think should exist? For instance, in your testimony
you cite as one example the Juvenile Court Advisory Committee, of
which Mrs. Mattingly is the chairman. Are there other types of pro-
grams in Montgomery County or other jurisdictions which exist and
are successful and which are not present in other jurisdictions?
SHELTER HOME PROGRAMS
Judge MooRE. From talking to other people, people in other juris-
dictions, I believe we have as compared to some. I know at least com-
pared to some jurisdictions in Maryland, a larger and more active
group in shelter home piograms. This, I might say, is a private cor-
poration. However, it is subsidized to some extent by the county and
the State Department of Juvenile Services and can compare with it,
but it is not a goverjnnent owned and operated system.
"We have the group homes operated by the Boy's Home, Inc., and
Chamera Academy, which initially was a drug treatment group home
facility for girls and boys, but now deals with other areas of juvenile
acting out behavior. I think in that sense we are more fortunate than
at least some of the Maryland communities. I think it is probably more
a matter of comparison of the programs that do exist or needs that
do or not exist, rather than things that we have that other jurisdic-
tions do not.
Other than, as I mentioned, the Citizens Advisory Committee, which
is a creature of statute, which I do not believe prevails in other juris-
dictions. I think our laws are not all that dissimilar. Obviously, some
of our problems are different from the more urban counties or larger
counties or the District of Columbia. I cannot think of anything
otherwise.
JUVENILE COURT ADVISORY COMMITTEE
Mr. Mathis. Would you describe briefly exactly what the Juvenile
Court Advisory Conmiittee activities are?
Judge ^SIooRE. It was originally created by laAv when we were a
county court, and part of their duties was to advise the court and
appear before the county council on the court's budget. Of course, this
is no longer within their bailiwick. But, they do, by the present statute,
advise with the judges and with the legislators on all matters pertain-
ing to juvenile delinquency prevention programs for delinquents and
nondelinquents, testify at legislative hearings and before committees
of this composition. They are liaison with the local government pri-
marily, and they arc appointed by the county government, the execu-
tive, and subject to the County Council's approval.
138
And in this sense, particularly since we are now a State court, they
are an invaluable liaison and act in this capacity with the local and
State officials. They are instrumental, they testify — I think when I
said budget hearings, I did not mean to be misleading. They do testify
at budget lieai'ings to support and advocate county programs such as
support for the group homes that I have mentioned.
The members of the committee, and Mrs. Mattingly was one who
managed to convince the State officials that money should be expended
for a regional detention diagnostic center in Montgomery County, and
it is supposed to break ground hopefully in November after about 4
or 5 years, and along these lines are within the duties and workings of
the committee.
CAUSES or CRIME
Mr. Mathis. One further question. You indicated in your statement
that based on your experiences during the recent assignment to the
juvenile court in Baltimore that you gained the impression that there
was, in fact, a correlation between the present economic situation and
the increase in juvenile offenses in large cities. Could you elaborate on
that statement ?
Judge Moore. Probably not too much. It became obvious to me that
in the city, Baltimore, as compared to Montgomery County, that we
were dealing with the poorer youth, youth of poorer families^ and from
just the things that were said, impressions I received from the children
themselves, the youngsters, their parents, and probation officers, I felt
that there M'as a definite correlation between their economic status
and their attitude toward authority, their attitude toward the property
rights, particularly, of others, and I just would have to assume that
the economic conditions do nothing more than wor-sen their approach.
I do not find that to be true in the majority of the cases in Montgomery
County, because our offenses seem to be committed by youngsters who
have no basis, in my opinion, to steal for their own needs, so to speak.
Mr. Mathis. Thank you, Mr. Chairman.
The Chairman. Mr. Fauntroy?
Mr. Fauntroy. No questions, Mr. Chairman.
The Chairman. We have several questions here for you, Judge
Moore, but I understand you have a very pressing engagement and
have requested to be relieved on or about 12 :30.
Judge MooRE. Mr. Chairman, if there are a couple of questions, I
will be glad to try to answer them. My problem was a court docket
this afternoon, but if there is something that I can answer for you,
I will be happy to do it.
The Chairman. Well, we can submit the questions to you and you
can respond in writing.
Judge ]MooRE. I will be more than happy to.
The Chairman. Without objection, the record at this point will
remain open for the responses of Judge Moore to the questions that
will be submitted to him in writing.
Thank you very much.
Mr. Mathis. Mr. Chairman. I would also like to indicate that Mr.
Crude had some questions for Judge Moore, but had to respond to a
rolcall. With the permission of the Chair, I think we would like to
submit those questions m writing to Judge Moore and have the ques-
tions and answers put in the record.
139
The Chairman. "Without objection, so ordered.
Judge Moore. Thank you, Mr. Chairman.
[The above-mentioned questions to Judge Moore and his written
responses follow.]
140
■^ to/.'
DISTRICT COURT OF MARYLAND
Juvenile Division
District Nunntier 6
DOUGLAS H. MOORE. JR.
Judge
1582 5aS94 S'ladv Grove Road
RocKvilla. Maryland 20850
May 19, 1975
Honorable Charles C. Diggs, Jr., Chairman
U.S. House of Representatives
Committee on the District of Columbia
Room 1310, Longworth House Office Building
Dear Mr . Diggs :
In accordance with your request of May 9, 1975, I am
enclosing herewith my response to the Committee's written
questions .
Please do not hesitate to contact me if I can provide
additional information.
Lincerely, -
-Detfgla's H. Mop're, Jr.
Judg^^
per
Enclosures
141
DOUGLAS H. MOORE. JR.
Judge
DISTRICT COURT OF MARYLAND
Juvenile Division
District Numtier 6
1582 5 aJSl Shady Grove RoaB
RockvllJe. Maryland 20850
May 19, 1975
Response to Questions
1. (a) How many group homes are there in Montgomery County?
9 group homes, 5 for girls and 4 for boys
2 group (as opposed to private family) shelter homes,
both housing girls and boys
The nine 'group homes will accommodate a total
population of 70 juveniles and the two shelter homes, 26.
(b) Do any of them provide in-house education in lieu of
public school attendance?
6 of the group homes provide in-house education programs,
the remainder utilize public schools and/or employment in
the community.
1 of the shelter homes provides in-house education.
(c) Are these homes successful in helping their residents
overcome their problems?
The group homes and, to a lesser extent, the shelter
homes have been quite successful in meeting a majority of
the needs of their residents. Group counseling programs,
especially where parents are fully coopera_tive, have
helped to reconcile juveniles and their families and have
apparently also had some impact on reducing the
incidence of further acting out. Vocational programs
142
Response to Questions
May 19, 1975
Page 2
would meet an additional need, although limited resources
are available in this community. Many of the residents
need "parenting" rather than counseling, and this is
difficult for young professional staff to provide.
2. In what programs for juveniles are the local governments in
the Washington metropolitan area cooperating? Are there
other programs in which they should be cooperating?
As set forth in my original statement, the
Metropolitan Area Council of Juvenile Court Judges and
Chief Probation Officers has contributed a great deal
toward opening lines of communication between the several
area jurisdictions as well as expediting procedures under
the Interstate Compact on Juveniles.
Efforts at cooperation between our respective juvenile
probation offices have been generally successful although
hampered on occasions by heavy caseloads of individual
officers. Transfer of probation supervision, with regular
receipt of reports, has greatly improved in the last year.
This Court has in recent months coordinated closely
with Mr. Musa Bey's Southeast Enrichment Center and the
range of services offered by that program.
It is my opinion that there is still room for more
effective communication between the several area
jurisdictions. This may be an area in which the Council
of Governments could play a more active role or study
means of alleviating this problem.
3. Are there significant differences in the way that juveniles
are treated in the different Washington area jurisdictions?
Presently, significant differences exist between
Montgomery County's juvenile code and that' of the other
Maryland counties. These main differences will no longer
exist as of July 1, 1975, when a uniform state law goes
into effect.
I
143
Response to Questions
May 19. 1975
Page 3
It is my understanding that such differences prevail
between Maryland, the District of Columbia and Virginia
wherein certain categories of offenses for certain ages
of juveniles are automatically adult charges, as, for
example, armed robbery, housebreaking.
In Virginia, the juvenile Courts, under certain
criteria, may sentence a juvenile to an adult facility
after a finding of delinquency.
It is my opinion that it would be in our
respective communities' interests if more uniform
substantive and procedural laws existed in these
communities .
4. Are job programs for juveniles in Montgomery County preparing
participants for meaningful employment?
There is very little available in job programs for
youth in this community. Attempts have been made through
volunteer programs but with only a small amount of success.
Recently a General Motors auto mechanics program for
17 1/2 year olds has begun which has a great potential,
in my opinion. However, similar programs in other
skills such as construction trades, food service, etc.,
and for younger children through on-the-job training
are badly needed.
5. Is there a problem with re-arrests of juveniles in Montgomery
County?
Yes. In ca lendar year 1974, out of 6,166 total
juvenile arrests, 2,499 were "multiple repeaters"
(3 or more arrests) and 1,121 were "repeaters"
(2 arrests) . Therefore, approximately 59% were
re-arrests .
6. How many juveniles are assigned to the average probation
officer in Montgomery County?
52 juveniles
144
Response to Questions
May 19, 1975
Page 4
7. (a) How many judges are on the bench of the District Court of
Maryland for the Sixth District?
8 judges total on bench of 6th District
(b) How many are assigned to the Juvenile Division?
2.6 of the above total are assigned to Juvenile
Division - 2 judges are assigned full time and 1 judge
sits in juvenile causes 2 1/2 to 3 days each week.
8. (a) How many cases involving criminal offenses were
instituted in the District Court of Maryland for the
Sixth District in 1974?
For fiscal year 1974 there were 5,442 adult criminal
charges involving 5,077 defendants.
For the' period July 1, 1974, through March 30, 1975,
there were 5,018 adult criminal charges involving
4,435 defendants.
It should be noted that, in addition to the above
figures, under a program initiated in Montgomery County
almost three years ago, approximately 1,000 adult
criminal cases per year are eliminated through a
pre-arrest screening by para-professionals assigned to
the Office of the State's Attorney.
(b) How many involved juveniles?
For calendar year 1974, there were 5,032 juvenile
cases referred to Court, of which 3,829 were
delinquency charges.
In addition to the above, 2,337 juvenile delinquency
charges were screened out and retained by 'the Juvenile
Section of the Montgomery County Police Department.
145
The Chatrmax. "We Avould like our final panelists to come forward
tooethcr : Jud^e William S. Thompson, of the D.C. Superior Court and
Judoje James A. Belson, of the D.C. Superior Court.
AVe have their written testimony, and if tliey would like to have
theii- written testimony entered into the record in full at this point,
and then make some kind of a summary statement and submit to ques-
tions, we will be prepared, based upon their advance testimony, to
arrange that.
STATEMENTS OF JUDGE WILLIAM S. THOMPSON, AND JUDGE
JAMES A. BELSON. SUPERIOR COURT, DISTRICT OE COLUMBIA
Judge TiioMPSox. Mr. Chairman, and members of the committee,
first I would like to express my appreciation for having been given the
opportunity to appear before you today. I have acceeded to your
request for 40 copies, pursuant to the conversation which I had with
the staff member, and the}" have been submitted to your committee.
I would like to just make a brief statement in summary and then
submit to any questions you or the staff members may have.
[The prepared statement of Judge Thompson in full follows :]
Statement of William S. Thompson, Associate Judge, Superior Court
OP THE District of Columbia
I am honored to have been invited to appear before this Committee to testify
on Bail and Probation in the Superior Court for the District of Columbia. These
are areas for which the Courts have constitutional and legal resiwnsibilities in
connection with order and liberty, tranqulity and justice. Bail affects the liberty
of the accused prior to determination of his innocence or guilt ; probation con-
cerns the liberty of the criminal defendant after the determination of his guilt.
Certainly they are of concern to the individuals involved and to the public,
particularly in the pre-trial release or detention of those accused of crime.
The Congress of the United States in the past decade has -given particular
attention to the matter of Bail in the courts, first, in its consideration and passage
of the Federal Bail Reform Act of 1966. applicable to the District of Columbia,
and more recently, in its replacement of that Act for the District of Columbia,
with "Release and Pretrial Detention" provisions in the "District of Columbia
Court Reform And Criminal Procedure Act of 1970" (P.L. 91-3.58; 84 Stat. 473),
D.C. Code 1973, §§ 23-1.321-23-1331.
Before commenting on Bail practice as affected by the provisions of the several
acts, let me state that I and my colleagues strive to apply the Bail law as Con-
gress has written it on the basis of available information received from the
Distrirt of Columbia Bail Agency, or other source, and in the exercise of sound
judicial discretion.
BAIL PRIOR TO 1970
The setting of a judge's plight and the mood of the public, prior to the 1970
Act. is voiced in a per curiam decision of the United States Court of Appeals
for the Distrirt nf Columbia Ciroiut in United States v. Leathers, 134 U.S. App.
D.C. .38, 39. 412 F.2d 169. 170 (1969). It stated :
"* * * We can appreciate the disquiet a trial judge may feel on occasion in re-
leasing a person charced with a dangerous crime liecause the Bail Act requires it,
a feeling we have at time shared. We can also understand the pressures placed
on a judffe who sincerely believes that pretrial release in a particular case is
incompatible with the public safety, and who also knows that sTibstantial modi-
fication of the Bail Act is currently under consideration by the Congress.
"The life of the Bail Act has been marked by woefully inadequate awareness
of its requirements by the lay public, resulting in often .savage and invariably
unfair criticism of iudefes for sininly abidins by their sworn oaths to administer
the laws of the United States. But when the statute and its legislative history
are unambieuous, as is the ca.se with the Bail Reform Act. none of us on the
bench has anv sprious aUernative l>ut to put a.side his personal doubts and to
apply the Act as Congress has written it.
52-587 O - 75 - pi. 1 - 11
146
"The Bail Reform Act was an effort by Congress to give meaning to some of
our highest ideals of justice. It was, by common consent, a legislative interven-
tion in a field where reform was badly needed, not only in the interest of individ-
uals charged with crime but of the taxpayers as well.' '(Footnote omitted)
The Circuit Court in the Leathers case did rule, however, that under the Bail
Reform Act, in "noncapital cases, pretrial detention cannot be premised upon
an assessment of danger to the public should the accused be released." Since
it did not appear that suflScient attention had been given to fashioning programs
of release based upon nonfinancial conditions rather than upon unreachable
money bonds, the Court remanded the case to the District Court for considera-
tion of those minimal nonfinancial conditions of release which would assure the
appearances of the respective defendants as required.
BAIL REFORM ACT
The chief innovation made by Congress, in furnishing the District of Columbia
with its own bail provisions was the grant of authority for ajudicial oflScer
to consider danger to the community in setting conditions of release for those
charged with non-capital cases. It may well be, as recognized in United States v.
Leathers, supra, that the lay public is not fully aware of the restrictions and
limirations upon pretrial detention. I propose to state them and the considera-
tions that need be made before i>ersons charged with non-capital offenses may
be detained pending trial, as well as some observations with respect to pre-trial
release.
The theme of consideration of danger to the public is added, in D.C. Code
1973, § 23-1321, to the criterion, of its coimterpart in the Bail Reform Act of
1966 (18 U.S.C. §3146), for setting conditions of pre-trial release for defendants
charged with non-capital crimes in the District of Columbia. So, § 23-1321
continues the practice under 18 U.S.C. 3146, of providing for release of such
persons upon personal recognizance or upon unsecured bond in an amount speci-
fied by the judicial ofiicer. Now, however, if the judicial officer believes such
release will not reasonably assure the appearance of a person as required or the
safety of any other person or the community, he either in lieu of or in addition
to, may impose certain enumerated conditions (essentially the same as in 18
U.S.C. 3146), in order of their listing, or any combination, that will reasonably
assure the appearance of the person for trial or the safety of any other person
or the community. Those conditions are: (1) third-party custody; (2) restric-
tions on travel, association, or place of abode; (3) appearance bond and per-
centage cash deposit or other security; (4) bail bond with surety or cash in
lieu thereof; (5) impose any other condition, including a condition that the
defendant return to custody after specified hours of release for employment or
other limited purpose. (Language in italics is a modification of the fifth condi-
tion in 18 U.S.C. 3146.)
Section 23-1321 (a) of the D.C. Code specifically prohibits a judicial officer
from imposing a financial condition to assure the safety of any other person or
the community.
Section 23-1321 (b) of the D.C. Code lists the factors which the judicial officer
may take into account in setting conditions of lelease which are the same as
those li.sted in the Bail Reform Act with the exception of the addition of "past
conduct" which is relevant to dangerousness and also flight.
D.C. BAIL AGENCY
At this point, it seems appropriate to mention the role of the D.C. Bail Agency
in assisting the Superior Court pursuant to the Bail Agency statute, D.C. Code
1973, § 23-1301 et seq. It is by statute the investigative arm of court charged
with securing verified information and preparing a written report of information
relating to the accused, his family, his community ties, residence, employment,
prior criminal record, and other verified information available to the agency.
The report may contain a recommendation as to whether the person charged
with an offense shouM be released or detained under any of the conditions
specified under § 23-1321 et seq. ; or the report may make no recommendation. D.C.
Code 1973, § 23-1303 (a). Judges of the Superior Court are not only mandated by
the D.C. Bail Agency statute (§ 23-1303(g) ) to consider the report and its accom-
panying recommendation, if any, but rely heavily on it, in making orders as to
detention or pre-trial release.
147
Tho Court is also informed bv the Agency when a person released on bail
conditions is rearrested or has failed to comply with pre-trial release conditions.
PRE-TRIAL RELEASE
One cannot help being aware of the upswing of crime in the District of Colum-
bia with its accompanying number of crimes charged to persons at liberty on
Parole. Probation, or pre-trial release. Absent a motion by the Government for a
pre-trial detention hearing, provisions for which will be outlined herein, generally,
the matter of pre-trial release of a person charged with a crime while at liberty
on another charge is considered under the provisions of D.C. Code 1973, § 23-1321
(release in non-capital cases prior to trial). Taking into account the factors to
he weighed under §23-1331(3)' together with available information, if possible,
because of a statutory presumption of the right to pre-trial release, we fashion
such release conditions as will reasonably a.ssure the appearance of the person
as required or the safety of any other person or the community.
PRE-TRIAL DETENTION
Very briefly, the pre-trial detention provisions of the D.C. Code. §§ 23-1322
et. .>^eq. with respect to non-capital defendants pertains to three (3) classes of
defendants; (1) a person charged with a "dangerous crime" as defined in
§1331(3) such as sale of drugs, robbery, rape, burglary, arson, and indecent
liberties with a child under 16 as defined in the code, provided the prosecutor
ce rifles by motion that based on the ijerson's pattern of behavior consisting
of his past and present conduct, and on the other factors set out in § 23-1321 (b)
(footnote 1 herein), there is no condition or combination of conditions which will
reasonably assure the safety of the community; (2) a person charged with a
"crime of violence," which, as deflned in § 23-1331(4), includes murder, forcible
rape, mayhem, kidnapping, robbery, burglary, assault with a dangerous weapon,
and other enumerated offenses; and (3) a person charged with any offense who
in order to obstruct justice threatens, injures, intimidates or attempts to threaten,
injure, or intimidate any prospective witness or juror.
Separate provisions incidentally are made for detention of an addict charged
with a crime of violence. D.C. Code 1973, § 23-1323.
No person who falls into one of the above three (3) classes may be ordered
detained without a pre-trial detention hearing in accordance with the procedures
set forth in sub.section (c) of §23-1322. Without detailing these, the defendant
may testify, present evidence and be represented by counsel. Nor may the
defendant be detained unless at the conclusion of the hearing the Court makes
the following findings and issues an order of detention accompanied by written
findings of fact and the reasons for its entry: (1) that there is clear and con-
vincing proof that the person charged is a person described in either of the three
(3) classes set out above; (2) that, in the case of a person charged with a
dangerous crime, based on his pattern of behavior consisting of his past and
present conduct, and on the other factors set out in D.C. Code 1973, § 23-1321 (b).
and for the persons falling in classes (2) and (3) above, based on factors listed
in § 2.3-1321 (b), there is no condition or combination of conditions of release
which will reasonably assure the safety of any other person or the community ;
and (3) that, except for a person allegedly obstructing or trying to obstruct
justice, on the basis of information presented by proffer or otherwise, there is a
substantial probability that the perscm committed the offense with which he is
charged. It is to he noted that the legislative history indicates that the finding of
substantial probability that the person committed the offense requires more
proof than mere probable cause needed for a preliminary hearing or indictment.
It is also less than the proof needed at trial to convict — "beyond a reasonable
doubt." It is equated with that used to secure a civil injunction — likelihood of
success on the merits.
There are a number of other provisions which are different than those of the
Bail Reform Act of 1966, which times does not permit the inclusion in this
statement.
^ ". . . take Into acponnt such matters as the nature and clrrnnistances of the offense
charged, the weight of the evidence against such person, his family ties, employment,
financial resources, character pnH mental conditions, past conduct, length of residence in
the community, record of convictions, and any record of appearance at court proceedings,
flight to avoid prosecution, or failure to appear at court proceedings."
148
Hopefully, what has emerged from the statements herein, particularly with
respect to the preventive detention provisions, is that the law does not permit
preventive pre-trial detention merely because a person is charged with a danger-
ous or violent crime. Protective procedures must be followed under the standards
mentioned and in the exercise of sound judicial discretion.
Rather recently, the District of Columbia Court of Appeals in Blunt v. United
States, D.C.App., 322 A.2d 579 (1974), affirmed the action of a Superior Court
judge in ordering the pre-trial detention of a defendant charged with a crime of
violence, having a lengthy record of serious crime and who was found at a
hearing to have attempted to obstruct justice, threaten, injure or intimidate a
prospective witness. The Court specifically declared the provisions of D.C. Code
1973, § 23-1322 (a) (3) constitutional, but also, though by dictum, found the
provisions of D.C. Code 1973, §§ 23-1322(a) (1) and (a)(2) constitutional not-
withstanding traditional claims under the Eighth Amendment, presumption of
innocence and due process.
In the light of this decision and our understanding that the D.C. Bail Agency,
because of the problem generated by the rearrest of persons on pre-trial release,
has begun recommending preventive detention hearings in certain cases, more
preventive detentions can be expected.
PROBATION
It has been said that, "the central goal of the Probation System is to enhance
the safety of the community by reducing the incidence of criminal acts by per-
sons previously convicted. The goal is achieved through the counseling, guidance,
assistance, surveillance and restraint of offenders to enable their reintegration
into society as law abiding and productive members." ^ While the welfare of the
community takes precedence over the welfare of the individual, yet probation
offers an offender the opportunity to rehabilitate himself without confinement.
Under D.C. Code 1973, § 710. the Superior Court of the District of Columbia,
in criminal cases, is authorized, upon conviction to suspend the imposition of
sentence or impose sentence and suspend the execution thereof for such time and
upon such terms as it deems best, if it appears to the satisfaction of the court
that the ends of justice and the best interests of the public and the defendant
would be served thereby. In such instances the court may place the defendant on
probation under the supervision and control of a probation officer. Probationer is
to be furnished with a written statement of the terms and conditions of his pro-
bation at the time when he is placed thereon. A person may not be put on proba-
tion without his consent.
The rules of Court permit a Judge to continue the sentencing of a guilty de-
fendant and direct the probation service of the court to make a presentence in-
vestigation and report to the Judge before the pronouncement of sentence. The
probation office prepares an in depth report containing information as to any prior
criminal record of the defendant and such information about the defendant's
characteristics, financial conditions and the circumstances affecting his behavior
as may be helpful in imposing sentence or in granting probation or in the cor-
rectional treatment of the defendant, and such other information as may be
required by the court. A great deal of consideration and reliance is given to the
Report in the exercise of the court's final judgment as whether to order the
Incarceration of the defendant or to permit probation and the conditions thereof.
As indicated above, in exercising discretion under the Probation statiite, D.C.
Code 1973, § 1(5-710. a judge may choose to suspend the imposition of sentence or
suspend the execution thereof. When imposition of sentence is suspended, the
defendant receives a probation sentence for a specified term. If probation is re-
voked before the expiration of the probationary period, the judge may then
impose any sentence authorized by the substantive statute under which the de-
fendant was convicted. In the case of suspension of execution of sentence, the
defendant is sentenced to a specific term of confinement, execution of which is
suspended and the defendant is placed on probation for a specified term. If pro-
bation is revoked the court may order execution of the original sentence or any
lesser sentence. D.C. Code 1973, § 24-104 contains provisions for discharge from
or continuance of probation and modification or revocation of the order.
1 Merrill A. Smith, "As A Matter Of Fact ... an Introduction to federal probation,"
the Federal Judicial Center. Washington, D.C. 1973.
149
Probation may not be granted after conviction for first degree murder or for
a second crime of violence while armed.
Certain standard conditions of probation may be imposed as well as certain
special ones, such as requiring a defendant to reside at a community center,
and continuous contact and cooperation with treatment or habilitation agencies.
There are other areas and aspects which I have not elaborated upon, but I
will be pleased to respond, if I can, to any questions the Committee may desire
to ask.
Jud^e Thompson. First, I would like to have permission to present
a supplemental statement. In my desire to comply with the request
for the 40 copies, I found some typographical errors, and I have pre-
sented a short copy, and they are just typographical errors and some
i-eferences to citations in the D.C. Code.
The CiiAiRMAX. Without objection, Judge Thompson, that addi-
tional testimony or corrections will be included in the record.
[The above mentioned statement follows :]
Superior Court of the District of Columbia,
Washington, D.C.
To : House District of Columbia Committee.
From : William S. Thompson, Associate Judge, Superior Court of the District
of Columbia.
In the aftermath of the rush to present my statement to the Committee by
Friday, May 2, 1975, certain errors have been found in the statement. Will you
kindly correct your copies as indicated on the attached correction sheet.
William S. Thompson.
correorions to statement of william s. thompson, associate judge,
Superior Court of the District of Columbia
1. Reference to section 3146 of Title 18 U.S. Code, on pages 3 and 4. was made
to "18 U.S.C. 1346." This should be corrected to read "18 U.S.C. § 1346."
2. On page 5, line 6, the phrase following the semi-colon should be "or the
report may make no recommendation," instead of "or the report may make no
report."
3. On page 5, paragraph 1. last line, the word "release" should be inserted after
the word "pre-trial" so that the phrase shall read "pre-trial release conditions."
4. On page 6, first paragraph, line 5, the section referred to should be
"§23-1331(3)."
5. On page 7, paragraph 2, third sentence, line 6. the letter "a" should be in
serted after the word is. so that the phrase reads "charged is a person."
6. On page 8, paragraph 2. line 4, instead of the word "he" insert the phrase
"a person."
7. On page 8, last paragraph, line 2. the citation should be "322 A.2d 579," in-
stead of ".332 A.2d 579."
8. On page 10, second line from top the word "interest" should be "interests."
9. On page 11, paragraph 1 is not accurately stated. Quite obviously probation
is not granted in first degree murder cases, but the reference to "a second crime
of violence" should have been "a second crime of violence while armed."
Judge Thompson. Very well.
Mr. Chairman, I have been asked to discuss bail and probation, two
quite hard subjects. These are areas with which the courts have consti-
tutional and legal responsibilities in connection with order and liberty,
tranquility and justice. Bail affects the liberty of the accused prior to
the determination of his innocense or guilt. Probation concerns the lib-
erty of the criminal defendant after the determination of his guilt.
Certainly there are of concern to the individuals involved and to the
public, particularly in the pretrial release or detention of those ac-
cused of crime.
150
BAIL
The Congress of the United States in the past decade has given par-
ticular attention to the matter of bail in the courts, first, in its consid-
eration and passage of the Federal Bail Reform Act of 1966, applica-
ble to the District of Columbia, and more recently, in its replacement
of that act for the District of Columbia, with release and pretrial de-
tention provisions in the District of Columbia Court Reform and
Criminal Procedure Act of 1970 (Public Law 91-358; 84 Stat. 473),
D.C. Code 1973, S. 23-1312-23-1331.
Before commenting on bail practice as affected by the provisions of
the several acts, let me state that I and my colleagues strive to apply
the bail law as Congress has written it on the basis of available infor-
mation received from the District of Columbia Bail Agency, and other
sources, and in the exercise of sound judicial discretion.
The theme of consideration of danger to the public is added, in D.C.
Code 1973, S. 23-1321, to the criterion, of its counterpart in the Bail
Reform' Act of 1966 (18 U.S.C. 3146), for setting conditions of pre-
trial release for defendants charged with non-capital crimes in the
District of Columbia. So, S-23-1321 continues the practice under 18
U.S.C. 3146, of providing for release of such persons upon personal
recognizance or upon unsecured bond in an amount specified by the
judicial officer. Now, however, if the judicial officer believes such re-
lease will not reasonably assure the appearance of a person as required
or the safety of any other person or the community, he, either in lieu
of or in addition to, may impose certain enumerated conditions — essen-
tially the same as in 18 U.S.C. 3146 — in order of their listing, or any
combination, that will reasonably assure the appearance of the person
for trial or the safety of any other person or the community.
These conditions are: (1) third-party custody; (2) restrictions on
travel, association, or place of abode; (3) appearance bond and per-
centage cash deposit or other security; (4) bail bond with surety or
cash in lieu thereof; (5) impose any other condition, including a con-
dition that the defendant return to custody after specified hours of
release for employment or other limited purpose.
Very briefly, the pretrial detention provisions of the D.C. Code,
S. 21-1322 et seq. with respect to noncapital defendants pertains to
three (3) classes of defendants; (1) a person charged with a danger-
ous crime as defined in S. 1331 (3) , such as sale of drugs, robbery, rape,
burglary, arson, and indecent liberties with a child under 16 as de-
fined in the code, provided the prosecutor certifies by motion that
based on the person's pattern of behavior consisting of his past and
present conduct, and on the other factors set out in S. 23-1321 (b),^
there is no condition or combination of conditions which Avill reason-
ably assure the safety of the community; (2) a person charged with
a crime of violence, which, as defined in S. 23-1331(4), includes mur-
der, forcible rape, mayhem, kidnapping, robbery, burglary, assasult
Avith a dangerous weapon, and other enumerated offenses; and (3) a
person charged with any offense who in order to obstruct justice
1 ..* * * ^aijp ji^j-Q account such matters as the nature and circumstances of the offense
charged, the weight of the evidence acninst such person, liis family ties, employment,
financial resources, character and mental conditions, past conduct, length of residence
in the communit.v, record of convictions, and any record of appearnnce at court proceed-
ings, flight to avoid prosecution, or failure to appear at court proceedings."
151
threatens, injures, intimidates or attempts to threaten, injure, or in-
timidate any prospective witness or juror.
Separate provisions, incidentally, are made for detention of an
addict charged with a crime of violence.
PROBATION
Now, reference to probation and a short statement.
It has been said :
Tht^ central goal of the Probation System is to enhance the safety of the
community by reducing the incidence of criminal acts by persons previously
convicted. The goal is achieved througli the counseling, guidance, assistance,
surveillance and restraint of offenders to enable their reintegration into society
as law abiding and productive members.'
While the welfare of the community takes precedence over the wel-
fare of the individual, yet probation offers an offender the opportunity
to rehabilitate himself without confinement.
Mr. Chairman, subject to your and the committee's approval, I
would be glad to attempt to answer any questions.
The Chairman. May we now receive testimony from your colleague ?
Judge Thompson. Yes, sir. Yes, sir.
The Chairman. And then we will proceed to the questions.
Judge Belson. Thank you, Mr. Chairman. I too, would like to thank
you for this invitation to testify before this committee. And I also
Avould ask the inclusion of my formal statement, as a part of the record,
along with the addendum which I submitted to Mr. Freeman of your
staff this morning.
The Chairman. Without objection, so ordered.
[The prepared statement of Judge James A. Belson and the above-
mentioned addendum follows :]
Statement of Judge James A. Belson, Superior Court of the District of
Columbia
Judge Belson. I am grateful for the opportunity to appear before this Commit-
tee to testify at its hearings on the administration of criminal justice in the
Washington Metropolitan Area.
legislation suggested
Since Chief Judge Greene has presented an overview of the role of the criminal
justice system in dealing with the phenomenon of rising crime, I will address
myself to some particular areas in which the Congress might legislate in order
to make the administration of criminal justice more effective. Several of my
proposals relate to the important objective of securing the maximum degree of
cooperation among the several jurisdictions comprising the metropolitan area
with respect to matters which have considerable impact on the actual operation
of the justice system. My suggestions arise out of problems I have encountered
in my daily work as a trial judge and as Chairman of the Rules Committee of
the Superior Court.
drug abuse controlled substances act
At the present time, narcotics offenses are prosecuted in the Superior Court
under the Unform Narcotics Act. D.C. Code 1973, §33-401 rt .tcq., and the
Dangerous Drug Act, D.C. Code 1973. § 33-701 ct scq. Consideration should be
given to the enactment of a District of Columbia Controlled Substances Act which
t».^^''^'"'",'\- ?/".'*.'' V."^* -^ Matter of Fact • * * an introduction to Federal probation,"
the Federal Judicial Center, Wasliington, DC, 1973.
152
would parallel the provisions of the Comprehensive Drug Abuse Prevention and
Control Act of 1970 (Public Law 91-513) 21 U.S.C. §801 et seq. (1970), Title
II of which is referred to as the Federal Controlled Substances Act. The National
Conference of Commissioners on Uniform State Laws adopted in 1970 the Uni-
form Controlled Substances Act which has since been enacted by the vast
majority of the states including Virginia and Maryland. It parallels the fed-
eral act. Legislation adopting the Uniform Act for the District of Columbia
has never been enacted. Such bills were introduced in the Senate (S. 2692) and
House of Representatives (H.R. 11268) in the 92nd Congress. The latter was
the subject of a thorough evaluation in H.R. Rep. No. 92-1505, 92nd Cong.. 2d
Sess. (1972). When those efforts did not achieve fruition. Congressman Nelsen
reintroduced the bill in the 93rd Congress (H.R. 7765). It was not enacted.
So far as I can ascertain, no such legislation has been introduced in this
Congress.
It is suggested that there are a number of advantages to following the
approach of the Uniform Controlled Substances Act. One beneficial feature
of the Act is the thoroughness and precision with which various drugs are
categorized and the built-in flexibility for constant revision of the classifica-
tions. There are five schedules of controlled substances and the schedules are
to be updated on a regular basis. 21 U.S.C. § 812 (1970). Other features of the Act
which I deem desirable are the provisions for probation without verdict for a
first offense of simple possession and for expungement of the defendant's arrest
record if he was under 21 years of age at the time of the offense.
It is especially appropriate that a local controlled substances act be adopted
promptly since, at the present time, a person under 21 years of age who is
charged with possession of any of several controlled substances may, at the op-
tion of the government, be prosecuted in the U.S. District Court where he may
receive probation without verdict and have his record expunged, or be prose-
cuted in the Superior Court where he enjoys neither of those possible benefits.
I do not suggest the government is abusing this statutory anomaly, but it
should not exist. Another undesirable anomaly is that the substance marijuana is
defined as a narcotic by the law applicable in the Superior Court hut as a non-
narcotic by the law applicable in the federal court.
Although the suggested legislation wou^d not necessarily lead to a substan-
tial increase in the number of cases brought in the Superior Court rather than
in the U.S. District Court, it could have that effect. If so, the Superior Court
might require additional judees and support personnel.
It should be noted that, although criminal offenses are involved, this may be
a subject over which the City Council has concurrent jurisdiction, since pmend-
ment of provision of Title 33 of the D.C. Code would be involved. Without com-
menting on that jurisdictional matter, I respectfully suggest that the necessary
legislation be considered.
REVISION OF PROBATION STATUTES
Chapter 1 of Title 24 of the D.C. Code contains the statutory provisions gov-
erning probation. Consideration should be given to modernizing it. In Wriffht v.
United States, 315 A.2d 839 (D.C. App. 1974), the District of Columbia Court of
Appeals was required to construe D.C. Code 1973, § 24-104 as it applied to a split
sentence, that is, a two part sentence, the first portion of which consisted of a
period of commitment, and the second portion a period of probation. In doing so.
the Court declined to apply the statute literally because of the absurd result
which might have followed, viz., the trial court might have been precluded from
revoking probation despite crimin.il misbehavior b.v the probationer during the
initial, or commitment, portion of his split sentence. The Court of Appeals com-
mented, "It hardly needs saying that absurdity is a result courts should view
with disfavor." Wrioht, supra, at 841. In avoiding such a result in the case before
it. the Court of Appeals referred in its opinion to the more modern comparable
federal stntutes. In a footnote the court remarked :
D.C. Code 1973. § 24-104. was enacted in 1910. Since that date it has not
been amended. If for no other reason, and without regard to this case, it
woiild appear that the government might review the probation statutes to de-
termine if legislative recommendations are in order. Id. at 841 n.5.
In reviewing the statutes relating to probation, consideration mieht be given
to including specific authorization for split sentences and to permitting proba-
tion without verdict in specified circumstances, a .sentencing alternntive which
is available under the law of Maryland. Md. Ann. Code art. 27, § 640 (Supp. 1973).
153
INTEBSTATE COMPACT FOB SUPEBVISION OF PAROLEES AND PROBATIONERS
Consideration should be given to enacting legislation which would enter the
District of Columbia into the Interstate Parole and Probation Compact. The
District of Columbia is the only jurisdiction in the country which is not a par-
ticipant in this Compact. Inclusion of the District of Columbia in the Compact
has been endorsed by the Regional Corrections Advisory Committee, the Board of
Directors of the Metropolitan Washington Council of Governments, and the chief
judges of the various courts of the metropolitan area at their meeting of Decem-
ber 4, 1973. In 1973, a bill (H.R. 8521) was introduced which would have au-
thorized D.C. to enter the Compact, but it was not reported out of committee. The
provisions of the Interstate Probation and Parole Compact enable the states to
act as each other's agents in the supervision of persons on probation or parole
and authorize the return of those who violate conditions of probation or parole to
the sending state without cumbersome extradition proceedings where the oflScials
of the sending state deem the violation as sufficiently serious.
EXTRADITION OR REMOVAL OF MISDEMEANANTS
The District of Columbia is the only jurisdiction which does not have the
authority to secure the return of persons charged with misdemeanors. Legisla-
tion should be considered to provide for the removal of misdemeanants from other
states to the District of Columbia.
The United States Constitution, Article IV, Section 2, Clause 2, provides :
A person charged in any state with treason, felony, or other crimes, who
shall tlee from justice, and be found in another State, shall on demand of
the executive authority of the State from which he fled, be delivered up
to be removed to the State having jurisdiction of the crime.
The Uniform Criminal Extradition Act, which is in effect in Maryland and
Virginia, is based upon the constitutional provision. Md. Ann. Code art. 41, §16
et seq. (1957) : Va. Ann. Code §19.1-49 et seq. (1950). Maryland and Virginia
law provides for extradition of misdemeanants as well as felons and for statutory
and common law crimes as well as for conduct which is not criminal in the state
to which the fugitive has fled.
District of Columbia law utilizes removal procedures rather than extradition
and their reach is .somewhat restricted. (D.C. Code 1973. §§23-563, 23-701.) The
removal authority is tied into the authority to issue arrest warrants. D.C. Code
1973. §23-563 (a) authorizes the Superior Court to issue warrants for felonies
to be served anywhere in the United States, and so there is no problem in obtain-
ing removal of felons. Section (b) of the same statute, however, limits the serv-
ice of warrants for misdemeanors to places within the District. Therefore, the
law of the District of Columbia, unlike that of Maryland, Virginia and every
other jurisdiction in the United States makes no provision for requesting the
return of misdemeanants from other jurisdictions.
In order to give the District of Columbia parity with other jurisdictions with
respect to the return of mi.gdemeanants. it will be necessary either (1) to amend
the D.C. Code to permit warrants to issue outside of the District or (2) to aban-
don the removal procedure and adopt the Uniform Extradition Act with necessary
modifications. I observe that the removal method offers the advantage of sim-
plicity.
ENFORCEMENT OF SUBPOENAS
Legislation is needed to confirm the authority of the Superior Court to enforce
subpoenas .served outside the District of Columbia. The Superior Court is given
the authority by D.C. Code 1973. §11-942 to issue subpoenas which may be
served within 25 miles of the place of the hearing or trial in misdemeanor or
civi' cases and anywhere in the nation in felony cases. The concomitant author-
ity to enforce such subpoenas when a witness fails to appear, however, is not
clearly delineated.
If a witness fails to comply with a subpoena, issuance of a bench warrant is
the ordinary procedure used to enforce it. The warrant is issued on the premise
that faihire to comply with a subpo^^na constitutes a contempt of court. Superior
Court Rule of Criminal Procedure 17 fg). Since contempt of court is not a felony,
however, the bench warrant is arguably limited by D.C. Cotle 1973. §23-563(b)
which .states that a warrant or summons issued for a misdemeanor may be served
only in the District of Columbia.
154
What is needed is clarification of tlie Superior Court's power to issue bench
warrants to enforce its subpoenas whicli have been properly served outside of
the District of Columbia. I note that a number of judges have interpreted the
statutory provision mentioned above to allow such extra-territorial enforcement
of subpoenas.
The Uniform Act to Secure Attendance of Witnesses from Without a State
in Criminal Proceedings, D.C. Code 1973, § 23-1501 et seq. does provide a proce-
dure which may be used to compel the attendance of a witness who resides outside
of the District of Columbia. This procedure, however, does not take into account
the subpoena powers Congress has given the Superior Court.
It would be most helpful if Congress would confirm the Superior Court's power
to enforce the subpoenas Congress has authorized. It would also appear appro-
priate for the Congress to explore the possibility of extending reciprocal subpoena
powers to the courts of neighboring jurisdictions located within the metropolitan
area.
MINIMUM SENTENCES AND PAROLE
Sentences imposed in felony cases in the Superior Court are required to be
"indeterminate," that is to say, they must include both (1) a maximum term
and (2) a minimum term which is % or less of the maximum, e.g., 5 (or fewer)
to 15 years. It has been found by a Judge of the Superior Court that, "the current
practices of the [D.C. Board of Parole] demonstrate that contrary to statutory
mandate and prevailing sentencing philosophy, it paroles without regard to
whether a given prisoner ... is in fact rehabilitated." I respectfully refer the
Committee to the opinion of the Honorable Leonard Braman issued on January 14,
1975, in United States v. Samuels, Criminal No. 2331-73, attached hereto as Ap-
pendix A, for a more detailed explanation of the matter. The Committee may wish
to ascertain whether, in its view, the statute, D.C. Code 1973, § 24-204, is being
correctly applied and, if it is not, whether a change in the statute or other reme-
dial action is indicated.
My testimony has been devoted in the main to suggesting some practical means
of making the operation of the criminal justice system more efficient. I have not
spoken of the institutions which inculcate the self control and respect for the
rights of others which keep the majority of our citizens from ever becoming
caught up in the criminal justice system. I refer to family, school and other
social institutions which, in my view, have a potential for preventing crime infi-
nitely greater than that supplied by the threat or actuality of imprisonment. I am
most heartened by the pilot project of the Social Services Division of the Superior
Court will include efforts by probation oflScers to deal with families as units, as
described b.v Mr. Schuman in his statement ; and I hope that other witnes.ses,
experts in their fields, will also speak of means of preserving and enhancing the
role of family, school and other such institutions in the improvement of social
conduct.
I will be pleased to respond to any questions the Committee may have con-
cerning the projwsals I have made and to offer what assistance I can in the
formulation of statutory language to remedy any of the problems to which I have
referred.
Superior Court of the District of Columbia Criminal Division — Felony
Branch
(Criminal No. 2331-73)
United States of America
i>.
Michael Samuels, defendant
memorandum and order
This matter is before the court upon defendant's motion for reduction of
sentence, filed with the court on September 2.S, 1974. and the government's opposi-
tions to motion for reduction of sentence, filed with the court on September 26 and
'October 18, 1974. A hearing was also held on December 20, 1974, at which
Reverend H. Albion Ferrell, Vice-Chairman of the District of Columbia Board of
155
Parole testified on the Board's general procedures and policies. (No questioning
was permitted on the application of those procedures and policies to the
defendant. )
On March 27, 1973, the defendant plead guilty to assault with intent to commit
rape and to robbery. On August It, rj73, he was sentenced to not less than three (3)
nor more than fifteen (15) years on each charge, the sentences to run concurrently
with each otiier and with any other sentence the defendant might then be serving.'
The defendant filed a notice of appeal, but that appeal was dismissed at the
defendant's request on May 24, 1974.
Under his present sentence, the defendant will be eligible for parole in August,
1976. In the instant motion, the defendant seeks to have the court effect his im-
mediate eligibility for parole by ordering the reduction of his minimum sentence
to time served. The defendant asserts that he is now rehabilitated as a result of
the remedial programs afforded by Lorton. He seeks instant parole eligibility by
reduction of his minimum sentence on the confident assiunption that he will be
promptly paroled."
Apart from his claimed rehabilitation, however, the record militates against
defendant's motion. A substantial minimum sentence is constrained by reason of
the seriousness of the offenses and the gravity of defendant's considerable
criminal history.^ Nor is the result changed if, as defendant would have it, we
view the motion from the perspective of rehabilitation, which we will arguendo
assume he has attained. For inasmuch as the motion presupposes that his recla-
mated status vel non will be dispositive of the parole issue before the D.C. Board
of Parole if only his minimum sentence is judicially reduced, the motion seeks
relief on a false notion. As will be shown, the current practices of the Board
demonstrate that, contrary to statutory mandate and prevailing sentencing
philosophy, it paroles without regard to whether a given prisoner (in this case
Mr. Samuels) is in fact rehabilitated.
Ideally, minimum sentences for the non-dangerous offender should be reason-
ably short in order to avoid the danger of freezing the incarceration phase of
the sentence beyond the point when it is most advantageous to conditionally
release the offender. ABA Standards Relating to Sentencing Alternatives and
Procedures § 3.2(d) (Approved Draft 1968). Again permitting the dangerous
offender, the minimum phase of the sentence is, in a real sense, a forecast of
when the offender will be ready for parole. But manifestly, fitness for parole
should be determined by diagnosis instead of prognosis, i.e., it is better to
determine suitability while the sentence is being served than to guess at sen-
tencing when it is likely to occur. With relatively short minimum sentences,
the parole authority, drawing upon its expertise and the most current informa-
tion regarding the applicant, can exercise a particularized discretion and so
time parole that optimum advantage of a prisoner's actual progress toward re-
habilitation is achieved.
Section 24-204 of the D.C. Code, which is the Board of Parole's charter in
authorizing release of prisoners on parole, presupposes such an individualized
exercise of discretion by the Board. Before granting parole, it must "appear
to the Board of Parole that there is a reasonable probaMlity that a prisoner
will live and remain at liberty without violating the law [and] that his release
is not incompatible with the welfare society." (Emphasis added.) How the
Board can parole without the exercise of an individualized, informed dis-
cretion leading to a finding that rehabilitation has probably been achieved is
not readily apparent ; but the Board seems to have found a way.
The Board does not review- a prisoner's records and then make a positive
determination, in accordance with § 24-204, that the particular prisoner is
entitled to parole. Instead, as Reverend Terrell's admirably candid testimony
makes clear, the Board presumes that every prisoner w'ho completes his mini-
mum sentence is ready to be paroled, and parole is only denied if something
significant appears in the prisoner's record to overcome that presumption :
Q. Then I take it then, as a general conceptual wrap-up, that in general with-
out looking at the individual's record or before you look at the individual's record,
the presumption is that a i)risoner should be admitted to the benefits of parole
'The defendant was sentenced under IS U.S.C. § .TOlO(d) after a finding by the court
that he would not derive benefit from commitment under 18 U.S.C. § § 5010(b) or (c).
" See Defendant's Motion, p. 6. The defendant does not request that his maximum term
of imprisonment be shortened, seeliinp only to "prove" himself on parole. Id.
' The adult portion of defendant's criminal record is stated at p. 5, infra.
156 I
if there is no prison deficiency ; no record of prison deficiency while he was incar-
cerated, unless there are substantial factors which are contrary or in opposition
to parole?
A. Yes, I think that would be a fair wrap-up, Your Honor.
Transcript at 20 (emphasis added)/ As a consequence of this approach, the
vast majority of prisoners make parole at the initial hearing.^
The Board lias in practice, tlierefore, substituted a presumption of rehabilita-
tion for the statutory precondition that rehabilitation "appear" to a "reasonable
probability." But this administrative presumption cannot be made to do service
for the statute's plain command. To parole an individual because a preconceived
state of rehabilitation is untraversed is not the same as releasing him because the
evidence affirmatively establishes a reasonable probability of rehabilitation.
Accordingly, to reduce defendant's minimum sentence would not merely place
him before the Board so that it might exercise an informed discretion to deter-
mine whether he is, as he claims, )-eliabilitated. Instead, the granting of defend-
ant's motion would most likely result in his automatic release. Premature release
of the defendant could prove disastrous, as the instant offenses demonstrate. The
sexual attack and robbery (shown by the government's proffer to have been car-
ried out at knife point) were committed while the defendant was living at a half-
way house under pre-parole release from sentences for two robberies (one was
armed). Unhappily, the current practices of the Board provide no assurance that
the requisite di&cretion \\ ould be exercised in passing upon a parole request by
the defendant. Under those circumstances, defendant's motion for reduction of
his minimum sentence must be denied.
The court recognizes that in so ruling it has done so not because it disputes
the defendant's assertions that he is ready for parole " but because of the Board's
failure to properly i)erform its statutory responsibilities. The defendant may
well wish to seek appellate reA'ie\\' of the court's approach in this regard. In the
interim, however, the court remains convinced that because of the situation
detailed above, it cannot in good conscience further consider or order a reduc-
tion of defendant's minimum sentence to time served.
Alternatively, the defendant seeks reduction of his minimum sentence to re-
flect the time from December 7, 1972 (the date of his arrest for the instant
offenses) until August 9, 1973 (the date of sentencing), during which defendant
was incarcerated at the Lorton Youth Center. Under 18 U.S.C. § 356S, the de-
fendant is entitled to credit for time spent in custody "in connection with the
offense or acts for which sentence was imposed." The defendant was committed
to Lorton Youth Center in January, 1972 under 18 U.S.C. § 5010(b) after having
been found guilty of two counts of robbery and attempted robbery. He was trans-
ferred from Lorton to the Community Treatment Center for Youths, a halfway
house, on October 30, 1972. After his arrest on December 7, 1972, however, he
was returned to Lorton and did not receive an administrative parole from his
§ 5010(b) commitment until August 24, 1973, fifteen days after his sentence in
this case. Therefore, the time spent at Lorton between arrest and sentencing
was "in connection with" his prior commitment under § 5010(b), not the instant
offenses, and the defendant is not entitled to any credit toward service of the
* The witness further amplified :
A. A second part of the presumption during that one year [of a one to three year
sentence] is that tlie institutional staff and personnel has addressed itself to prepare
this man for return to the community during that period of the minimum sentence.
I have heard the institutional personnel say that they begin to prepare a man for
release from the day of his entry. And. one makes the assumption without going into
details of the particular situation, that they have — that those efforts have been
attended by some degree of success.
*******
Q. Reverend, is it then your testimony that for a — a prisoner — routine prisoner
where tliere are none of the considerations, out of the ordinary considerations that
you discussed with the judge, that that type of prisoner would in all lilselihood be
paroled after he did the minimum part of his sentence?
A. Yes, that is true, Mr. Wechsler.
Transcript at 21-22.
^ Unpublislied figures supplied by the Board of Parole indicate that in fiscal 1074 the
Board considered a total of 1191 applications for parole — 047 of these were intitial re-
quests, 244 involved rehearings. Parole was granted in 8(59 cases (7."?% of the total
requests). The Board does not record how often parole is granted at initial hearings, but
assuming that parole was granted in all 244 rehearings — an unlikely assumption at
best — parole would have been granted in 62.'3 of the 947 initial hearings, or 66% of the
time.
" Candor, however, compels an admission of skepticism.
157
seuteuce imposed on August 9. 1973. Accordingly, it is this 14tli day of January,
1975.
ORDERED, that defendant's motion for reduction of sentence be, and the
same hereby is, denied in all respects.
Leonard Brown, Judge.
Superior Court of thf District of Columbia,
Washington, D.C., May 6, 1975.
Hon. Charles C. Diggs, Jr.,
U.S. House of Representatives,
Washington, B.C.
My Dear Mr. Diggs : I wish to express my appreciation for the invitation
conveyed me by your letters of April 28 and 29, 1975, to testify before the Com-
mittee on the District of Columbia at its hearinjis on criminal justice in the
Washington Metropolitan Area. In accordance with your request, forty copies of
my statement were delivered to the Committee on May 2, 1975.
I write for the purpose of adding certain pertinent information to the discus-
sion at pages 7 and 8 of that statement concerning the need for clarification of
the power of the Superior Court to enforce subpoenas duly served outside of the
District of Columbia. In describing the problem of securing warrants to enforce
such subpoenas, it was noted that the Court's power to issue bench warrants for
failure to appear is limited, arguably, by D.C. Code 1973, § 23-503 (b) since the
contempt of failure to appear is not a felony. In this regard it should be made
cleai- that tlie D.C. Code sets no specific limit on the .sentence one can receive
for contempt, and that if a jury trial is accorded a sentence in excess of one
year can be imposed. D.C. Code'l973, § 11 :944 and § 16:705(b) (1) ; see also 18
U.S.C. §402.
I supply this information for the sake of completeness and accuracy. I add
that my further discussions in recent days with judges, prosecutors and other
attorneys has reinforced my view that the Superior Court's power to issue war-
rants to enforce subpoenas served outside the District of Columbia would benefit
by legislative clarification.
Sincerely,
James A. Belson.
Judge Belsox. Thank you, sir.
LEGISLATT\^ RECOMMENDATIONS
I was aware that Chief Judge Greene would present a broad over-
view of problems in the field of criminal justice and, therefore, I have
attempted to present some specific suggestions for legislation which
would make the administration of justice more effective. And I have
included among them certain proposals which would promote cooper-
ation among the jurisdictions of the metropolitan area. I have raised
three specific matters which relate to the District of Columbia.
DRUG ABUSE
First, with respect to drug abuse, we have coexisting in this juris-
diction two distinctly different legislative approaches to prosecution
of drug offenses. Our superior court operates under the antiquated
Uniform Narcotics Act and the Dangerous Drug Act. The U.S. dis-
trict court, on the other hand, operates under the far more modern and
humane Federal Controlled Substances Act. I would like to point out
the differences in treatment which offenders may receive depending
upon the court to which they are brought.
A first offender who is brought before the U.S. district court may
obtain the advantage of probation without verdict, and if he is under
21 he may obtain the advantage of expungement of his arrest record.
158
On the other hand, if the same person is found guilty of possession, of
simple possession of the same drug in the superior court, he enjoys
neither of these benefits.
Now, there is the Uniform Controlled Substances Act which the vast
majority of the States of the Union have adopted. It contains desir-
able features of the Federal Act, and I urge that consideration be
given to its adoption for the District of Columbia. But I must add a
very important caveat in making that suggestion. I am informed that
approximately 40 percent of the indictments being returned at the
present time in the U.S. district court here in the District of Columbia
are under the Federal Controlled Substances Act. Since the suggested
legislation would almost certainly affect the transfer of most of those
cases to the superior court, it would have to be accompanied by pro-
vision for additional judge power and additional staff. Otherwise, it
might jeopardize our ability to remain current.
PROBATION
Next, I suggest that consideration be given to updating our District
of Columbia probation statute. Our basic probation statute has gone
without change, has gone unamended since 1910. Specific provisions
could be made in it for the split sentences, for example, a matter that
I discuss in my prepared statement, and innovation such as probation
without verdict might also be added to our probation statute.
PAROLE
As to parole practices, the opinion of Judge Leonard Brayman of
our court, which is appended to my statement, raises a most serious
question. Judge Brayman found that release after the minimum time
of a sentence is virtually automatic ; that is, the District of Columbia
Parole Board indulges a presumption that rehabilitation has been
brought about by service of the minimum term unless there is some
misbehavior in the prison or some other specific counterveiling factor.
The controlling statute, the act of Congress involved requires, on the
other hand, an affirmative finding of rehabilitation, and this commit-
tee may wish to look into that particular matter.
RELATIONS WITH OTHER JURISDICTIONS
Turning briefly to matters which affect relationships between the
District and otlier jurisdictions, I note that we in the District of Co-
lurnbia labor under two handicaps which are not suffered by other
jurisdictions. The District of Columbia is the only jurisdiction which
has no means of securing the return of an alleged misdemeanant who
is beyond our borders. And we are the only jurisdiction in the country
which has failed to join the interstate compact by which all other
jurisdictions undertake both to supervise parolees and probationers for
one another and to secure their return to the sentencing or sending
State without the need for resort to expedition procedures.
I suggest that the District of Columbia is entitled to parity with the
50 States in these two regards, and I also suggest that the other 50
States could benefit if we receive that parity.
159
SUBPOENING XONRESTDENT WITNESSES
Final 1}^ as the members of this committee are aware, Congress gave
us. along with court reorganization, the power to subpena witnesses.
In felony cases we can subpena witnesses from anywhere in the coun-
try, and in all other cases we can subpena witnesses from anywhere
within 25 miles of the courthouse. However, we do not have any clearly
expressed statutory authority to follow up on those subpenas with
warrants if the witness should fail to appear. AYhile that power is im-
plied, it would assist us greatly if it were spelled out.
Now, I might close, Mr. Chairman, by observing that it might seem
unfair or inequitable that our court has the general power to subpena
persons from nearby jurisdictions within 25 miles of our courthouse
while courts in adjacent counties cannot subpena persons from the
District, I urge this committee to explore the possibility of extending
reciprocity to Maryland and to Virginia regarding the 25-mile sub-
pena range.
I thank you all for considering these suggestions, and I will be
happy, along with Judge Thompson, to attempt to respond to any
questions you may have.
The Chairman. Thank you very much.
Mr. Fauntroy?
Mr. Fauntroy. No questions, Mr. Chairman.
The Chairman. Mr, Gude?
Mr. GtiDE. No questions right now, Mr. Chairman.
The Chairman. Chief Counsel ?
Mr. Washington. Thank you. Thank you very much for those legis-
lative proposals, and thank you. Judge Thompson.
PREVENTIVE DETENTION
Judge Thompson, on page 9 of your prepared statement you state
the District of Columbia Bail Agency, because of the problem gener-
ated by the rearrest of persons on pretrial release, has begun recom-
mending preventive detention hearings in certain cases, with results
likely to be more detainees. My question to you is: Are you satisfied
with the qualitv of work done by the investigative arm of the court
in verifying information on persons accused of crimes, specifically the
Bail Agency ?
Judge Thompson. Yes; I am. The system of the Bail Agency is that
the person is arrested and incarcerated in Building A of our court and
at 6 in the morning this defendant is interviewed. And as far as the
interviewer, he can give us an up-to-date report of one. the marital
status of the arrestee, his emplovment record, whether he is livin<r at
home with his wife and his criminal record. Now. th's verification has
to be made by 9. Now. it is not always possible to do that. Thev call the
person who the arrestee gives as the name of the person that the ar-
restee is employed by. and whenever this can be checked out it is
checked out and completed. The judge in the arraignment court, and
this is where the degfendant is brought the first time when the de-
fendant is called up. will get from a representative of the Bail Bond
Agency in court a form, he passes up to the judge a form that sets forth
the results of his inteiwiew and recommendation.
160
Now, it is within the judicial discretion of the court to abide by this
recommendation or not abide by it, because we usually have an assistant
U.S. attorney who is in court at that particular time to make a part of
the record what the situation is, how this happened and the judicial
officer also is guided by a statement, and since the U.S. attorney, of
course, is there and we have defense counsel necessarily from the de-
fendant, but to answer your question specifically, so far as personally,
I cannot say I speak for the entire 43 of my other colleagues, but per-
sonally I am satisfied with the work of the investigative arm of the
Bail Agency.
I have a list of the questions which they ask the defendants if you
would like.
Mr. Washington. Would you submit that for the record ?
Judge Thompson. Yes, sir.
BAIL AGENCY PERSONNEL LACK
Mr. Washington. Judge Thompson, in our research and examina-
tion of the Bail Agency we were a bit surprised to learn that there are
approximately 50, 54 employees in that Agency, and last year there
were in excess of 30.000 matters. And my inquiry and concern was
generated as a result of that examination as to whether or not — and
they had 20 persons on the initial intake, approximately 20 persons on
the initial intake examining 30,000 matters of potentially 30,000 per-
sons. They are not 30,000 persons because you have some repeaters and
rearrests, but you have a substantial number of persons coming into
the criminal justice system, and this is simply in the District of Colum-
bia and not the metropolitan area. I am asking to what extent is there
any supervision or exnmination by the court over the work product of
its investi.o-ative arm, if any ?
Judge Thompson. Well. I am sure that there is some because there
is a committee, as you know, under the Reorganization Act. There
are five 1>^embevs includinfi: two Chief Judges who sort of supervise
the working of the courts, and from time to time we have meetings
with the director of the Bail Bond Agency as well as other heads
of other departments, and we are required to give a report from time
to time, especially a yearly report.
Maybe the 30,000 which you mention — I could not agree with you
more that with 54 employees it seems humanly impossible to super-
vise 30,000 persons, but here I think maybe is the situation
Mr. Washington. I do not want to leave the impression that they
have 30.000 that they supervise. The number is much less. Thirty
thousand come into the system on an annual basis, and as a result of
the statutory requirement they have to do the initial intake, and
I am told that since there is such a limited staff that the extent of
the intake is a telephone verification, and there is absolutely no or
very little personal examination or evaluation. If it cannot be done by
phone, it is not done.
Judge Thompson. Right. But I think, Mr. Washington, where the
line of demarcation is, let us say he is arrested at 10 at night, I will
.frive vou a hvnothetical case, and he calls the bondsman in, and the
bondsman will be there at 11 and comes down to the precinct where
the lieutenant sets the bond at night, and that bond is $1,000, and I
161
believe it's 8 or 10 percent that he has to put up to the bondsman.
The defendant is out. Now, that defendant is within the system, but
the defendant is perhaps never interviewed by the Bail Bond Agency.
Why ? Because the bondsman took a chance on him as a result of the
premium of $1,000 being set which the defendant was able to pay.
So, now the first time the arraignment judges sees the defendant is
when he comes into court the next morning with his bondsman, when
he comes before the judge, so the 30,000 does not necessarily pertain
to all lockups, because a substantial number of people can get out
on bail and at night, and the courts are not going to, the judge is
not going to call for an arraignment.
Mr. Washington. I have a lot of questions, but I would like the
other ones, Mr. Chairman, to be submitted to the two judges. But I
would like to ask two last questions.
CONDITIONAL RELEASE ^^[OLATIONS
To what extent, if any, are violations of conditional release brought
to the immediate attention of the court ? By that I mean pretrial, or
diversion, probation or parole? How frequently and expeditiously
are violations brought to the attention of the court, and what is the
procedure for the resolution of these violations ?
Judge Thompson. Let us first take the arraignment. An agent from
the Bail Bond Agency, a representative of the Bail Bond Agency is
supposed to give us a list, and I do not have a copy of that with me, but
I will submit a copy of the questions that are asked and on which
answers are required. This is given to the court, and simultaneously
with the representative of the Bail Bond Agency having called police
headquarters, or through the district attorney's office to find out one,
the type of record that the defendant has, to call the probation office to
find out if this defendant, let us say, is on probation for some other
offense or on parole.
I would say that we can have this information by the time court
opens for arraiarnment. and it usually opens at 9 :30 in the morning.
Now, with reference to after conviction, we receive a probation offi-
cer's report and the probation officer is giA-en from 5 to 6 weeks. "\^Tien
I say we, I mean the members of the judiciary require a probation re-
port in all felony cases and this probation report sets out the history of
the defendant, his entire record, possibility of obtaining employment,
his educational background, his marital background, and it is just sort
of a map of his life, where he was born, how many people in the family.
Mr. Washington. Thank you. Judge Thompson.
Judsre Belson. are prehearing conferences and meetings disposed of
consistently; namely, that there is a disinclination on the part of the
trial judges to really expeditiously consider violations of conditional
release because in thie eyes or in the minds of those judges those viola-
tions are diminimous in juxtaposition to the substantive crime, and
generally nothincr happens. And it is a matter for trial, but we are
really talkinc: about, we are talkina: about Washinsrton, and we talk
about the administration of criminal justice, and I think the chairman
said earlier we are talking about a national phenomena, be it here in
Washington or elsewhere, and there is a group of recidivists or types
who are rearrested, and they continue to commit most of the crimes
52-587 O - 75 - pt. 1 - 12
162
and they get away with it, because they can violate their conditional
release almost with impunity because the judges, as a matter of course,
do not act expeditiously at that point. Is that a factual, is that a fair
statement ?
Judge Belson. Well, Mr. Washington, I will try to respond to that,
and Judge Thompson may wish to add to it since this is basically
within the framework of his submission today.
I think that the judges handle each report of a bail violation on a
case-by-case basis. I can speak only for myself in this regard, but that
is the way that I treat them. And where I see one which is serious
enough to warrant some action, I take it.
However, I think it is important for the committee to know that
Chief Judge Greene has addressed himself to this problem and set up,
as I understand it, a mechanism with the cooperation of the Bail
Agency and the U.S. attorney's office so that serious bail violations may
be called to the attention of one particular judge who is designated
monthly to handle serious bail violations. And this is the current prac-
tice as I understand it.
PROBATION AND PAROLE VIOLATIONS
Mr. Washington. I am impressed that there is now process in place
to handle bail, but what about probation and parole violations ?
Judge Belson. Parole violations, of course, are outside of our juris-
diction except to the extent that we can place a brief hold, a 6-day hold
on a person in violation of parole, or in fact, on parole at the time that
he is brought before us for arraignment or presentment.
With respect to probation, this again is a matter which we have to
take up strictly on a case-by-case basis, and I think that it is the prac-
tice of most judges to take a look at the particular case, see what the
new oifense is for which the person has been rearrested, discuss it with
the probation officer and see how the gentleman involved has been
performing on probation. I also secure a copy of the PD-153, the
standard record of offense.
Mr. Washington. That is not the probation report?
Judge Belson. No; the probation officer secures for me a copy of
the PD-153, the standard police report of offense, and considering all
of these matters I make a recommendation at that point whether there
should be an immediate revocation hearing, whether the gentleman's
probation should be temporarily suspended and a revocation hearing
scheduled later after the new trial is disposed of, or whether I should
do nothing except wait and see for the resuUs of the new case.
Mr. Washington. Thank you. We will submit some further ques-
tions. Thank you both very much.
Mr. GuDE. Mr. Chairman, just one question.
The Chairman. Mr. Gude.
Mr. GxjDE. Judge Belson, in reference to a misdemeanor that might
be committed on the new Metro system going from the District into
Maryland or Virginia^ — it would be impossible to extradite under
those circ 
