"THE COURT: Put what you want on the record.
"DEFENSE COUNSEL: I would like him released on per-
sonal recognizance. He has been a life-time resident
since he was 18 years old. Steady employment and he
has no record and lives with his family, his father and
aunt.
"THE COURT: Let me say this. Because of the emergency
the bond will be $500.
"THE DEPUTY MARSHAL: Your Honor, [Name] .
"DEFENSE COUNSEL: Your Honor, I think they recom-
mend personal bond in this case.
"THE BAIL AGENCY: Yes.
"THE COURT: What is this one?
"THE DEPUTY CLERK: Felony bond.
"THE COURT: Bond is $ 1 ,000.
"THE DEPUTY MARSHAL: [Name] .
"THE DEPUTY CLERK: Felony, Your Honor.
"THE COURT: $1,000.
"THE DEPUTY MARSHAL: [Name] , Burglary Two.
"THE COURT: Do you have anything to say?
"DEFENSE COUNSEL: Yes, I request that he be released
on his personal bond. He is married, he is 49 years old
and has a regular job. He has two sons. One is 18
years and the other is 20 and is in Vietnam. He has
been a resident of the District of Columbia all his life.
"THE COURT: Because of the emergency situation in this
city and the nature of these cases, the Court takes the
position that personal bond would, in these cases,
create a danger. $ 1 ,000 bond."
Bail Setting During the Disorder;
Implementation of the Policy
A Statistical Analysis
According to official accounts of the civil disorder, the ma-
jor outbreak of looting and destruction occurred on Friday, April
27
5, and Saturday, April 6, 1968. Substantial order had been re-
stored by Monday, April 8. From Friday through Sunday, April
5-7, 95 1 bail hearings were held in the Court of General Sessions
for non-curfew defendants. 17 Of these defendants, 42.7% were
released on their own recognizance or in the custody of a third
party. For the period April 5-10, non-financial conditions were
allowed in 43.2% of 1,139 non-curfew bail determinations.
This, despite the announced policy of restricted release, is a
higher proportion of release on non-financial conditions than in
normal times. During its second year of operation (May 1967
May 1968) the D.C. Bail Agency reports that of 9,200 persons
(including the riot defendants) who appeared before a judicial of-
ficer in the District of Columbia, 41 .3% were released without fi-
nancial conditions imposed. 18
This apparent anomaly is explained by reference to statistics
(Appendix B) compiled from Bail Agency reports of the 90 1 de-
fendants interviewed by the Agency during the disorder. These
statistics show non-financial conditions of release in 5 1 .6% of the
628 cases in which information on disposition is available. 19
During the riot the Agency recommended non-financial release
for 68.5% of the 901 defendants (72.9% of all those for whom
information on recommendation was noted). The rate of recom-
mendation during the two and one-half years of operation
(1963-1966) of the D.C. Bail Project, the Bail Agency's fore-
runner, was 49%; during the Bail Agency's first seven months of
operation (November, 1966-May, 1967), only 41%. 20
The high rate of Agency recommendation during the riots
reflects the fact that by usual Agency standards the riot defend-
ants were excellent risks for non-financial release under the cri-
teria established by the Bail Reform Act. Most of the defendants
interviewed were residents of the District of Columbia (94.1%);
had lived in the District for more than one year (90.0%); lived
with members of their family (70.6%), and had some form of
employment (84.0%). Only 7.1% had a serious criminal record;
28.9% had only a record of petty misdemeanors, and 40.8% had
no criminal record whatsoever. The Agency had verified these
1 'Appendix A.
18 Dist. of Col. Bail Agency, Second Annual Report 6 (1968).
y The difference between this figure and the lower court figure is explained by the
fact that a Bail Agency recommendation itself increased the chance of release on
non-financial conditions (from 51.6% for all Bail Agency interviews to 60.6% for
those recommended).
20 Dist. of Col. Bail Agency, First Annual Report 6 (1967).
28
facts (with the exception of criminal records) in approximately
two-thirds of all cases.
In setting bail during the disorder, on the other hand, the
court followed the Agency recommendation in only 60.6% of the
cases, a much smaller proportion than in normal times. In its two
and one-half years of operation, the recommendations of the D.C.
Bail Project were followed in 84% of all cases. In the Bail
Agency's first seven months of operation, the Court of General
Sessions released 90.6% of all recommended defendants on non-
financial bail.
Thus, what happened is this: the Agency recommended a
far higher percentage of defendants for release during the disor-
der than in normal times, but the court released twenty-five to
thirty percent fewer recommended persons than in normal times.
The difference was primarily the result of the policy of restricted
release urged by the U.S. Attorney and by Judge Greene, a policy
based on considerations other than the likelihood that riot de-
fendants would return to trial.
This is confirmed by the treatment of individuals inter-
viewed by the Agency who could be characterized as "model"
defendants. These were persons who were recommended for re-
lease by the Agency, were District residents for one year or more,
lived with spouse, parents or other family members, were em-
ployed for one year or more and had no record or a record only
of petty misdemeanors. For the 98 (out of 137) such persons for
whom information was available on conditions of release, a surety
bond or percentage money bond was imposed in 37.0% of the
cases.
On the other hand, the same statistics make it clear that the
policy was far from uniformly applied.
The court records from which the overall figures are com-
piled do not distinguish between persons released on personal
recognizance and persons released in the custody of a third party,
or whether the money bond was a surety, cash percentage or the
rare unsecured appearance bond. 21 The Bail Agency and other
data indicate, however, that about 50%, or something more than
50%, of the non-financial releases were on personal recognizance.
The Bail Agency data (Appendix B) breaks down the 5 1 .6%
non-financial release orders into 18.5% third party custody and
33.5% personal recognizance or (3.1%) unsecured appearance
21 A cash bond, set at a percentage (usually 10%) of the principal amount, has the
advantage that the defendant may post it himself and need not find a surety.
29
bond. Statistics from transcripts of 415 bail hearings (Appendix
C) indicate 41% non-financial conditions: 20% personal recog-
nizance and 21% third party custody. The Bail Agency data for
money bond breaks down into 38.5% surety bond and 9.6%
cash percentage out of 48.1% money bonds. The transcript data
breakdown for the 56.8% money bond is 34.3% surety and
22.5% cash.
Moreover, the judges were releasing defendants on personal
recognizance as well as third party custody on each day of the
civil disturbance. The court records show that 47% of non-curfew
defendants were released on non-financial conditions on Friday,
April 5; 32% on Saturday, April 6; 48.5% on Sunday, April 7,
and 55% on Monday, April 8. The Bail Agency records show
the hearing date in only 29% of all cases. This sample indicates,
nevertheless, that judges were releasing persons on personal re-
cognizance on every day of the disorder. 22 The sample of bail
hearing transcripts also shows that judges were releasing persons
on personal recognizance throughout the disorder period. 23
A Day-by-Day Review
The statistics show that overall, but far from uniformly, the
judges of the Court of General Sessions were following a policy
of restricted release. Further analysis of the statistics, examina-
tion of transcripts and interviews with judges demonstrate that
there was no uniformity in practice; that the treatment of defend-
ants varied greatly from judge to judge, from day to day, and be-
tween day and night. The following pattern emerges:
(a) While some of the judges adopted a uniform money
bond policy, others did not even though they may
have weighed community safety in their case by case
determinations.
(b) The judges who followed the policy were stricter dur-
ing the night than in the daytime and about releasing
persons on Friday and Saturday than on Sunday and
Monday.
(c) Even judges who were strict at the start became more
flexible when they realized that the riot arrestees had
22 April 5, 24 out of 33; April 6, 23 out of 38; April 7, 30 out of 61; April 8,
18 out of 69 (Appendix B).
23 April 5, 37% personal recognizance; April ,6, 30.9%; April 7, 10.6%; April 8,
6.8% (Appendix C).
30
substantial community ties and relatively insignificant
criminal records.
The most detailed complete picture of bail setting in the
Court of General Sessions is in the transcripts of the bail hearings
described in Appendix C. The following account of bail setting is
based on those transcripts.
Judges did not always articulate their criteria for making de-
terminations in particular cases. Often, the "statement of facts"
in the case or the information and recommendation given by the
Bail Agency are not on the record, since the judge often read this
information without comment. Indications of a "policy" some-
times arise only from the pattern evident in a number of consecu-
tively recorded hearings. The transcript picture itself therefore
requires some interpretation. The picture drawn from the tran-
scripts has been compared with, and checked against, the judges'
own recollections of their bail-setting practices and the opinions
of the lawyers who responded to the project's questionnaire.
Friday Afternoon, April 5
Before any restricted release policy was articulated, Judge
Edgerton and Judge Hyde were releasing most civil disorder de-
fendants on personal recognizance. A transcript of 22 of Judge
Edgerton's hearings prior to the United States Attorney's argu-
ment for a uniform policy of money bond indicates that he was
following the Bail Reform Act and rejecting any consideration of
potential "dangerousness." Of the 22 defendants, 15 were re-
leased on personal bond, 10 with a curfew restriction; two were
released in the custody of third parties; only five were required to
post money bond. 24 In all five cases, the Bail Agency and de-
fense counsel were unable to verify the community ties of the in-
dividuals. Similarly, Judge Hyde in nine recorded hearings re-
leased five on personal bond. In four cases, money bond was set
at $500 (three) and $300 (one). In each, the Bail Agency and
counsel were unable to verify community ties information.
Judge Edgerton left the bench soon after the United States
Attorney's argument. In that case he set bond at $1,000. In the
one last case on the transcript, Judge Edgerton released on per-
sonal recognizance a defendant with strong community ties
where the information had been verified by the Bail Agency.
24 One at more than $1,000, one at $1,000, two at $500 and one at $300.
31
Judge Hyde, on the other hand, citing the emergency as his rea-
son, set money bond in five of the six remaining cases on the tran-
script. He set $ 1 ,000 bond for defendants charged with felonies
(four) and $500 on a misdemeanor charge. In the last case on
the transcript that afternoon, Judge Hyde made an exception and
granted personal recognizance in a misdemeanor case in which
the defendant had thirteen children, was employed and had no
prior record.
Friday Night, April 5-6
On Friday evening, two of the three judges assigned to hear
riot cases were committed to a uniform money bond policy.
Judge Murphy, in open court, stated that it was the "unanimous
view of all the judges. . ." to set money bond in looting cases:
"THE COURT: A thousand dollar bond will be set on all
looters, and we also have been advised that the District
Court Judges will be present for habeas corpus petitions
on all these cases. Nobody involved in looting is to be
released on their personal bond. So, one thousand dol-
lar bond in each case."
Judge Murphy set a $ 1 ,000 bond in 1 1 cases and a $2,500
bond in two out of 1 5 cases. He found the community ties of
the defendant so strong in two cases that he allowed third party
custody in one and personal recognizance in the other. In one of
the cases, after the attorney pointed out that the defendant was
employed, had no criminal record, and was recommended by the
Bail Agency, Judge Murphy remarked: "This is what's wrong
with automatic bond on looters." He passed the case, ruling that
he would grant third party custody if a member of the family
"can insure the Court that the boy is at home at all times until
the trouble settles down." Judge Murphy made it a condition of
release that defendants observe all curfews.
Judge Halleck cited the emergency as a reason for denying
release on personal bond. In one case, the defense counsel argued
that there was "no evidence of flight." Judge Halleck replied:
"THE COURT: lam not interested in that. I am interested
in all of the circumstances which the Bond Agency re-
quires. I have to consider this man's past record, and
the nature of the case and of the circumstances and the
facts that we are faced with and they all lead me to re-
ject your idea of personal recognizance in this case.
32
And I am trying to set some sort of reasonable bond to
insure his presence." (Emphasis added.)
Judge Halleck set money bond in 14 out of 22 cases. 25
There were no Bail Agency reports in most cases, although the
lawyers usually represented that they had verified their clients'
community ties. The representations of the lawyers about com-
munity ties persuaded Judge Halleck to grant personal recogni-
zance or unsecured personal bond for eight defendants, five of
them women with family responsibilities.
Judge Burka released seven defendants out of 1 on personal
recognizance despite the Assistant U.S. Attorney's request for a
$3,000 bond in every case:
[THE ASSISTANT U.S. ATTORNEY] : The problem, Your
Honor, is that a number of defendants earlier today
were let out on personal bond and they have been
brought back this evening picked up again for looting,
the same charge they were charged with the first time."
Judge Burka set bond in three cases at $ 1 ,000, two where the
Bail Agency was unable to verify information or recommend re-
lease, and one involving an alcoholic, stating that such a person
was highly unreliable in keeping court appointments. Judge
Burka made it a condition of release that defendants observe all
curfews and warned each defendant that bond would be set at
$50,000 if he was rearrested.
Saturday Daytime, April 6
Transcripts of only two judges' proceedings are available for
Saturday during the day. Both of them seemed to be following
the policy of restricted release. Judge Beard set a money bond
(usually $ 1 ,000) in 20 out of 2 1 cases and released the remaining
defendant in third party custody. Judge Mclntyre released 9 out
of 1 7 defendants, seven in third party custody and two on per-
sonal recognizance. Judge Mclntyre set money bond in four
cases, three at $1,000 and one at $500.
Judge Beard was primarily concerned with the statement of
facts in each case and whether the defendant had a prior record.
Bail Agency recommendations were unavailable in most cases but
Judge Beard set a money bond even when they were. Judge
25 Four $1,000; three more than $1,000; three $500; three $300.
33
Beard did allow 12 of the 14 defendants against whom a $1,000
bond was set to post 1 0% cash.
On the record, Judge Mclntyre stated that he was concerned
about the danger to the community posed by releasing the de-
fendants arrested during the disorder and that he was taking this
into consideration:
"THE COURT: My concern right now is to be assured that
these men don't get involved again, as well as the fact
that they report back to the Court on their trial date."
The circumstance was, however, that in Judge Mclntyre's
courtroom relatives were often available to assume custody of the
defendants. He had them undertake to see to it that the defend-
ant obeyed the curfew and stayed away from the scene of disor-
der. Even if the Bail Agency recommended release, as it did in 8
out of 15 cases which came before him, Judge Mclntyre would
request a third party to assume control over the individual and if
no one was available he set a $ 1 ,000 bond.
Saturday Night, April 6-7
The policy of restricted release was followed most uniformly
on Saturday night. Transcripts of 133 hearings before four judges
are available. Eighteen of the hearings were for curfew violators.
The judges, Judge Hyde announced, had decided to release cur-
few arrestees on their own recognizance, and Judge Hyde released
all 18. Of the remaining 1 15 defendants, only eight were released
on non-financial conditions. Every judge stated in open court
that the emergency situation was being taken into consideration
in his bail determinations and that he was concerned with the pos-
sibility that defendants would return to the disorder and engage
in further illegal acts.
Judge Hyde made the most explicit reference to the exist-
ence of an express policy:
"THE COURT: I'm not going to release anybody on per-
sonal bond; not on the arrangement we have with the
United States Attorney's office."
For attorneys who argued that the Bail Reform Act required re-
lease on personal recognizance, Judge Hyde was willing to make
the record clear for any appeal.
34
"THE COURT: Because of the emergency situation in the
city, of riots and widespread arson, and because of the
fact that it has been reported to us that many people
released on bond when they were in trouble originally,
have started to return to the streets and engage in the
same activities, and because of the representations
made by the United States Attorney for the District of
Columbia, the Court feels obliged to set bond in this
case. Bond will be set at one thousand dollars. I think
that makes the record sufficient for you if you wish to
do something about it."
Judge Hyde applied the policy uniformly, without reference
to the individual circumstances of each defendant. Substantial
community ties were irrelevant:
"THE COURT: [I]n most all of these cases, the people
where these appeals are made, do not have a record,
have strong ties, and have had jobs."
"We don't, at the time we set these things, we can't
make distinctions here from one, between the different
persons that engage in this activity, when all of them
practically all of them, I should say-are in about the
same position that your clients are in.
"The only difference is that you (the attorney in the
case) have one difference with respect to the fact that
your client, one of them, at least, I think you say is a
District of Columbia employee, but that doesn't seem
to me to alter the situation, whether he is a District of
Columbia employee or an employee of the telephone
company or the electric company, or B.C. Coal Com-
pany, or whoever they are employees of, I should say."
"We were criticized when the trouble first started for
letting people loose and now we're being criticized for
not following the Bail Agency Act."
Recommendation by the Bail Agency was irrelevant. "I know
what the bail bond agency has recommended in this case, and
probably what they will have to recommend, but we're in a state
of emergency here." In 18 non-curfew hearings Judge Hyde set a
35
$1,000 bond in 13 cases and a $500 bond in the remaining five
(three at 10%). In remarking on the $500 bond amount, set in
cases where community ties were substantial and verified, Judge
Hyde remarked: "That, in itself, is an exception."
Judge Halleck likewise made few exceptions. One hearing is
illustrative:
"THE DEPUTY MARSHAL: One-thirty-two: [Name];
charged with burglary in the second degree.
"THE COURT: Would you like a preliminary hearing, Con-
gressman?
"CONGRESSMAN : I would appreciate a preliminary
hearing within the next week or two.
"THE COURT: You can have it Thursday or Friday.
"CONGRESSMAN : I'll be available either day, Your
Honor. I have familiarized myself with the story of
[the defendant], and this seems to me a most marginal
charge. He's regularly employed, and he's taking care
of his two children. He's never been arrested or con-
victed. He's twenty-five years old.
"THE COURT: The police officer saw him inside the Safe-
way Store looting. You ought to drive up and see
what's left of the Safeway Store, Congressman.
"CONGRESSMAN : His story was that he was walk-
ing home from work, passing the store. It seems to me
he's entitled to his day in court.
"THE COURT: Oh, indeed so.
"CONGRESSMAN : I would hope that the bail can
be fixed as low as possible. I would like to see him go
back to work so he can provide for his children.
"THE COURT: Bond is a thousand dollars. This will be set
for Thursday.
"CONGRESSMAN : I have ascertained from [the de-
fendant] that he can raise fifty or seventy-five dollars.
I would ask the Court to consider his unblemished rec-
ord, and that a five percent be imposed.
"THE COURT: Did you vote for the Bail Reform Act?
"CONGRESSMAN : Yes, sir; I voted for it.
"THE COURT: All right. Five percent, on the condition
that he goes home and stays there.
"CONGRESSMAN : I'll make that part of my duties
as his lawyer, Your Honor.
"THE COURT: Very well."
36
Of 38 bond hearings on the transcript, only three persons were re-
leased, one, arrested for looting a Safeway store, on personal re-
cognizance after his attorney represented that the defendant was a
Safeway employee, and two in third party custody. In 18 cases,
bond was set at a flat $ 1 ,000. In several cases where the attor-
neys attempted to argue for a reduction, Judge Halleck would
threaten to raise the amount.
"THE COURT: What was it you were moving for?
"[DEFENSE ATTORNEY]: Ten percent.
"THE COURT: Denied. Would you like me to raise the
bond?
"[DEFENSE ATTORNEY] : No, Your Honor.
"THE COURT: All right. [The defense attorney], you
ought to go up Fourteenth Street, or up Seventh
Street, and take a look at some of the results of these
civil disturbances."
The emergency was Judge Halleck's first consideration in
determining bail:
"THE COURT: The way things are now, I'd rather have a
bondsman with a little something on the line looking
for him. There's a report that they're getting ready to
take Baltimore apart.
"[DEFENSE ATTORNEY] : He's not going to Baltimore.
Actually, it's difficult to make a $ 1 ,000 bond.
"THE COURT: Do the best you can, and if you can't make
it in twenty-four hours, then file a motion for recon-
sideration.
"[DEFENSE ATTORNEY] : Would you consider ten per-
cent?
"THE COURT: I might reconsider anything when I get a
little more information from you and things get quieted
down a little; when we find out where people are and
how we stand. As it stands now, things are a little in-
definite."
An individual who could not make bond would be kept out
of the riot area:
"[DEFENSE ATTORNEY] : Your Honor, the defendant
doesn't have any money at this time to make bond,
and his folks can't possibly raise the money in light of
the curfew; they can't seek out a bondsman and make
collateral.
37
"THE COURT: Well, that will keep him out of trouble to-
night.
"[DEFENSE ATTORNEY] : There's no indication that
there will be any trouble tonight. The presumption of
innocence is on the defendant until proven guilty.
Would Your Honor reduce the bond?
"THE COURT: I'll consider it in twenty-four hours."
If the defendant had strong community ties, the attorney
would suggest personal recognizance. Judge Halleck's response
was that "It might be the case on Wednesday; but not tonight."
With the disposition seemingly predetermined in most cases, the
bond hearing was often extremely abrupt:
"THE DEPUTY MARSHAL: Two-seventy-six: [Name] .
"THE ATTORNEY: Your Honor, this is a matter for a pre-
liminary hearing. I would request it be set for an early
date.
"THE COURT: Thursday.
"THE ATTORNEY: I am advised by [the defendant] that
he moved into the District of Columbia thirteen years
ago.
"THE COURT: One thousand dollars."
At least on Saturday night, the presumption of innocence was
not on the side of the defendants.
"THE ATTORNEY: He has no other record, Your Honor.
"THE COURT: He has a big one, now."