Mr. DOGGETT. The employers who participated last year felt that it was a successful program, and being cognizant that there will be a certain percentage that are not going to pursue the jobs that were offered to them. But this, I don't believe has disheartened the business community one iota. And I believe that this year we'll put on an added effort to attract these youths, because the business community realizes and accepts the responsibility of providing jobs and tries to encourage these people. I firmly believe that under the leadership of the business community we'll have a successful job opportunity program this year.

Mr. STEIGER. Mr. Chairman, will you yield at this point?

Mr. WHITENER. Yes.

Mr. STEIGER. Mr. Flannery, in your 11 years in the District Attorney's office here, what portion of the defendants were unemployed would you say?

Mr. FLANNERY. I really can't give an accurate answer.

Mr. STEIGER. Would it be a major portion, a minor portion?

Mr. FLANNERY. I would-a goodly portion. Let me put it that way. I just don't know what percentage. I of course have examined many defendants and one of the questions I asked them as background; do you, are you employed, and I can recall getting in many instances a "no."

Mr. STEIGER. Thank you.

Mr. WHITENER. Mr. Doggett, let us get back to your statement I certainly concur in what you point out about our experience in the great depression. While I recognize that in some cases poverty might cause crime, some of us were raised under conditions that if poverty justified crime we'd have been on the top-ten list.

I know where I was raised we weren't aware that we were so poverty stricken. Some of the best people I ever knew are among the poorest people. And I say that would be true in any community. The most God-fearing people in the community are oftentimes not people who have financial means. I think there has been too much talking about poverty as a justification for crime.

Mr. DOGGETT. I concur, Mr. Chairman. I'll just make one observation along that line. I was born in 21 K Street Northeast, and that was a predominantly Irish district. On today's standards that would be considered a slum area. In 1926 when my family moved from 21 K to the Northeast section, 3013 7th Street, I remember very vividly the emotion that was developed because we were leaving this area.

I always think it was because of the pride of neighbors and the pride of the neighborhood. I concur with your thinking sir.

Mr. WHITENER. I hear the talk around here about our Negro friends. Some say that because they are poor they are bad. When I was a boy, my playmate was a boy my age, his folks lived in a very humble cottage. But I remember it now as one of the cleanest homes I was ever in. I used to eat a lot of meals with my friend, and I still think his mother could cook fish better than anybody's I ever ate. That boy is a fine citizen today. There are many others that I could name. I think if we keep on trying to tell people that because they don't have a bank account they have a right to rob and steal, we are not going to have an effective fight on crime.

Mr. MCGEE. I think Mr. Flannery pointed out in the talk he gave before the D.C. Federation of Women two weeks ago, that the overwhelming majority of the people in the poverty areas of Washington are law abiding citizens. Unfortunately, they are also the greatest majority of being the victims. I think we have been pointing that particular point out in many of the civic organizations we have been speaking to. I am sure we will probably be pointing it out at noon today at the Mayflower and I will be making that point at the Optimist Club at the Willard at 1:00 o'clock today also. I concur with your opinion.

Mr. ADAMS. Might I ask Mr. Flannery another question.

Mr. WHITENER. Yes.

Mr. ADAMS. And, incidentally, Mr. McGee, I'm sorry I didn't get to hear your testimony but I want to compliment you on page 3 in your recognition of the problem in the D.C. Court of General Sessions, and the Probation Department, and so on there.

From what I have seen of the City crime system so far there seems to me a very difficult and sore spot; I think you got a jamming there. This is what I wanted to ask Mr. Flannery. You were in the District Attorney's office I believe you mentioned for a number of years, you were on the Federal, District Court, or both?

Mr. FLANNERY. I spent one year in the then Municipal Court and ten years in the District Court.

Mr. ADAMS. I wanted to ask you if this is true: Is there a systemas I understand there is-that felony-in otherwords a felony, evidence may be available to the Grand Jury that are referred to as being broken down or certified back to the Sessions Court, which has only misdemeanor

Mr. FLANNERY. That was a practice that was followed during the time I was in the United States Attorney's office.

Mr. ADAMS. The reason I am interested in this is one of the problems and I agree very much with the Chairman on this-is, if you have your police department function in obtaining evidence that can support a conviction on felonies-and this is broken down to a misdemeanor, with a maximum of one year, and often only six months— you get what we refer to as a swinging door operation. In other words the man is back out with more and more serious crimes each time. Is this certification still going on?

Mr. FLANNERY. I understand it is. I left that office five years ago. But I understand that practice is still going, and quite a bit of it, which is evidenced by the fact that Judge Green told me recently that 80 percent of the serious criminal cases are tried in his Court, which is a misdemeanor court.

Mr. ADAMS. That's what I wanted to bring up. That is what I understand is true, and I wanted to see if you could help with it. But most of the serious criminal felonies in this jurisdiction now are being tried in the General Sessions Court which has jurisdiction of only one year maximum penalty.

Mr. FLANNERY. Yes.

Mr. ADAMS. Is this because of some kind of practice in the Federal District Courts? Because I understand there are 16 sections in the U.S. District Court for the District of Columbia, is that correct? Mr. FLANNERY. There are 15 District Court Judges.

Mr. ADAMS. How many General Session Court judges are there? Mr. FLANNERY. 21 Judges, although I think they are one under authorized strength.

Mr. ADAMS. Is there some limitation of the number of felonies that can be tried that the District Attorney's office can present to the Federal District Court here? Is there a calendar limitation? Is there a formal limitation? Is there an informal agreement? I want to know if this is happening. I think the committee is interested in what can be done about it.

Mr. FLANNERY. There isn't any formal arrangement. There is some type of informal arrangement.

Mr. ADAMS. In other words when you get to so many cases in the backlog in the District area, they've got to go back to the General Sessions Court?

Mr. FLANNERY. The backlog gets to intolerable heights. Unless something is done by way of breaking these cases down and disposing of it. It is not a good practice but in my view many of these cases are broken down-they are-they just have to be disposed of.

Mr. ADAMS. In other words the system is overloaded. If you didn't do that it would stop completely.

Mr. FLANNERY. It would.

Mr. HARSHA. Mr. Flannery, would it help the situation to expand or enlarge the General Sessions jurisdiction?

Mr. FLANNERY. Yes.

Mr. HARSHA. By that I mean let's give them more authority to pass judgment and have more severe penalties.

Mr. FLANNERY. Yes; I think it would and it is something I have though about. However, I think that the Court of General Sessions, since they are not handling the present workload-and I am told they merely would be able to handle it adequately should they get five more-it would be impractical under the present situation to increase their jurisdiction. Although, as a long-range thing, I think the answer to this calendar problem, criminal wise, may lie in giving increased jurisdiction to the Court of General Sessions and have all title 21 offenses tried in that Court and just let the Federal crimes which are relatively few in number be tried in the Federal District Court here. Mr. HARSHA. Thank you.

Mr. WHITENER. Before I forget it, Mr. Hagan of Georgia could not be here today. He wanted us to get your feeling of having the problem of public drunkenness handled through public health techniques rather than by police as provided in a bill, that is H.R. 6143.

Mr. FLANNERY. I would be in favor of handling these unfortunate alcoholics, chronic alcoholics in some administrative fashion rather than processing them through the Court of General Sessions.

Mr. WHITENER. How do you get them to be processed if police don't pick them up?

Mr. FLANNERY. I suppose the police would still have to be involved to a degree but at least they wouldn't have to sit around in court all day and wait to testify.

Mr. WHITENER. They still would have to have a criminal violation to buttress their arrest to the individual, wouldn't they?

Mr. FLANNERY. I wouldn't know that they would. It wouldn't really technically be an arrest, for a crime now. It would be merely 76-376-67- 11

taking this person that is a sick person into custody so he could get treatment. He wouldn't be charged with a criminal offense.

Mr. WHITENER. Getting back to Mr. McGee's statement, I did want to mention one section of it, and I am certainly not being critical. That is, on page 5. I think you have fallen into the error that some of the judges here have, with reference to the Bail Reform Act. Your premise that a judge may hold a prisoner because that judge feels that this prisoner in a non-capital case may commit another crime the next day is absolutely contrary to the basic constitutional principles of this country, in my judgment. I don't think we have ever permitted that. The Constitution itself prohibits excessive bail, and as far back as 1789, the Congress in the Judiciary Act provided that upon all arrests in criminal cases bail shall be admitted except where the punishment may be death.

Certainly you are not recommending that because a man is charged with a crime you could throw the Constitution out the window and hold him in jail because some judge thinks he might do something next week.

Mr. McGEE. No, sir. We are basically saying it should be amended and that the person that might be a danger to the community should be held or should not be let out on his personal bond. Here is another area of the subcommittee, Mr. Flannery was charged with looking into this Bail Reform Act, amending it.

Mr. WHITENER. We dealt with the Bail Reform Act of 1966 in the Judiciary Committee. Then we came here to this committee with the local act (P.L. 89-519, approved July 26, 1966, 80 Stat. 327) implementing the national Bail Reform Act. We asked the judges of the District of Columbia to help us work out language which would meet the problem here. We then called in the bail reform people, working under a foundation grant, and no one contemplated that the Courts would take the positions which they have taken.

Now, to me the Bail Reform Act is very clear. It does not prevent a judge taking into account the inclination of the defendant to commit a crime, because the national Bail Reform Act (P.L. 89-465, approved June 22, 1966, 80 Stat. 214) says, in Section 3146, Subsection (b):

In determining which condition of release will reasonably insure appearance the judicial officer shall, on the basis of available information take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family status, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at Court proceedings, or flight to avoid prosecution or failure to appear in this proceeding.

So the judge is enjoined by the clear language of the Bail Reform Act to take into account, among other things, the prisoner's record of convictions.

Mr. FLANNERY. Many of the judges apparently are that language isn't as clear to some of the judges as they should be.

Mr. WHITENER. Maybe you could tell us how to make it clearer. Mr. FLANNERY. Perhaps that the judge can consider the potential danger that the defendant may present to the community in deciding what bond to fix.

Mr. WHITENER. Well, the committee report by the Judiciary Committee thoroughly explained that Section. Perhaps if the judges adhered to what our Judiciary Committee said about it-contrary to what you said and what some of the judges here said, there is nothing

in the national Bail Reform Act which requires the release of every defendant on a personal or unsecured appearance bond. The law provides that the judge can do several things.

First, he can place the person into custody of a designated person or organization who would agree to supervise him. Second, he can place restriction on travel, association or place of abode of a person during that period of release. Third, he can require the execution of an appearance bond in a specified amount and deposit it in the registry of the Court in cash or other security, as directed, of a sum not to exceed 10 percent of the amount of the bond. Such deposit to be returned upon the performance of release. Fourth, he can require the execution of a bail bond with sufficient surety, or the deposit of cash in lieu thereof. Fifth, he can impose any other condition deemed reasonably necessary to insure appearance and require, including a condition requiring that the person return to custody after a specified hour.

Now I happened to have had something to do with that last provision. As the bill was sent to the Judiciary Committee, Justice Department, it provided that the Court could require the person to return to custody at night. We amended it because we recognized that some persons work at night and that it would be proper to have them return to jail in the daytime in that situation.

In any event, contrary to what you say here, Mr. McGee, and contrary to what some of the judges have said, the Bail Reform Act offers six alternatives to a judge fixing bail. Apparently they aren't reading the total Act. It certainly provides that a man's record of convictions, his mental condition, and other factors which would lead him to believe that the accused would commit other crimes, may be inquired into. Now, why do we need any more law?

Mr. FLANNERY. Apparently there are different views on it. The D.C. Crime Commission report recognizes a problem in that area. The D.C. Crime Commission report as I recall has a recomendation in it that potential dangers of a defendant to the community should be considered in fixing bond, and that the bail reform act be amended.

Mr. WHITENER. What would you as a lawyer say? Would you say that the court could not take into account the record of previous convictions?

Mr. FLANNERY. I think perhaps I agree with you, not that you have explained it, it is certainly clear to me. Perhaps it could be made a little bit clearer by a more clear-cut statement, that in fixing bond the potential danger of the defendant to the community be considered in addition to the probability that he would appear for trial.

Mr. WHITENER. Would you agree with me that it would be undesirable and probably constitutionally impermissible, for a Court to fix a bond for any purpose other than to insure the appearance of the Defendant for trial in a noncapital case?

Mr. FLANNERY. I would agree with you, it would raise a Constitutional question. I am not at all convinced that it would be clearly unconstitutional.

Mr. ADAMS. Mr. Chairman, would you yield for a moment, I would like to ask a question.

Mr. WHITENER. Yes.