For the sixth time in a little over a decade, the District of Columbia is debating the merits of preventive detention and bail reform. But this time a new voice has entered the fray, that of Sen. Alfonse D'Amato (R- N.Y.). D'Amato already has pressured the D.C. Council into enacting "emergency" legislation to increase the period of allowable pretrial detention from 60 to 90 days, and to deny bail entirely to persons accused of murder.
But the senator complains that this legislation does not go far enough. In particular, he urges changes in the law to make it even easier to detain a suspected criminal, either directly, by easing the standards for preventive detention, or surreptitiously, by setting excessively high bail. D'Amato bases his support for stronger (and probably unconstitutional) bail laws on the fact that many suspected criminals, arrested by the police in the morning, are being released the same day. As the senator put it, "There's not much deterrent in that."
But D'Amato misperceives the purpose of bail in this country, which--historically and legally--has never been punishment or deterrence, but to ensure a defendant's appearance at trial. Then and only then may punishment be meted out. If D'Amato is serious about reducing pretrial crime and punishing repeat offenders, the solution is not to tinker further with a bail law that is already stretched to its constitutional limits. Instead, he should concentrate on bringing the accused to trial.
To the extent that pretrial crime is a real problem in the District--less than 2 percent of defendants on pretrial release are ultimately convicted of commiting serious crimes while awaiting trial--it is committed by a few offenders, six to eight months after they are initially released. Statistically, the least likely times for an accused to be rearrested are shortly after his arrest and just before his trial.
Most studies conclude that speedy trials would do far more to deal with pretrial crime than any change in the bail law. In fact, Judge Harold Greene testified several years ago, "If we could have trials in six weeks to two months, the entire problem of pretrial crime would disappear . . ."
Yet D.C. has no speedy trial law and neither the U.S. Attorney's Office nor the courts have the personnel to try the most serious offenders swiftly. The District was excluded from the provisions of the federal Speedy Trial Act of 1975 because local court reorganization was just getting under way. Now, seven years later, it takes an average offender in the District 224 days to go to trial.
The District already has the strongest bail law in the country. It was the first jurisdiction to authorize pretrial detention. D'Amato should use his influence to ensure that prosecutors and courts (whose budgets, for the most part, are out of control of local governments) have sufficient resources to bring the most serious offenders to trial promptly.
If a person is dangerous enough to warrant special attention, then our criminal justice system should channel its energies to have his case adjudicated with all deliberate speed, as the constitution demands. A speedy trial preserves the presumption of innocence and, at the same time, ensures the safety of the community by visiting swift, certain justice on those convicted of a crime.