four for destroying property and six for robbery. In addition, 69
were charged with gun misdemeanors and seven with possession
of the implements of crime (the charge used against those carry-
ing molotov cocktails).
Nor, apparently, were many of these offenders detained in
custody. The 449 remanded to jail included only 17 charged
with the dangerous felonies listed above and 29 gun misdemeanor
defendants.
There is, then, no evidence that the policy of restricted re-
lease did or did not make any contribution to the quelling of
the disorder. This is not to say that the policy had no value.
It may have calmed the anxiety of the community, by letting it be
known that the court was doing all it could to prevent further
disorder. Police morale may also have been lifted by a belief
that the judges were not immediately releasing through a "revolv-
ing door" persons the police had just arrested and brought off
the street. If knowledge of the policy reached the riot areas,
some potential looters may have been deterred.
In conclusion, however, the courts had at best only a very
limited opportunity to act as an agent in the restoration of order.
That task is better left to the police, the National Guard and the
military if necessary. The courts' task is to dispense justice. As
Chief Judge Greene has pointed out, "as long as the civil courts
33 Gilbert, ed., Ten Blocks from the White House (1968).
59
operate, they must operate as courts, not as adjuncts of the Po-
lice Department or the National Guard." 34
3. The Policy in Action A Comparison
There is no question that bail-setting procedures were more
humane and implemented with greater regard for individual liber-
ties in Washington, D.C. in April than in any other large city in
the grip of a major disorder.
Accounts of bail setting in other cities in similar disorders
are typified by the comment made in the study of the civil disor-
der in Baltimore last April:
"Very few defendants were released on their own recogni-
zance, and rarely was there time or inclination on the part
of the judges to hear a defense plea for a bail geared to the
circumstances of the individual defendant." 35
In Chicago, last April, money bond was set in nearly every case,
ranging from $1,000 for disorderly conduct to $5,000 as the
minimum for a looting charge. Some bonds were set as high as
$100,000. There "was little individual variation in the setting of
bonds . . . the magistrates were acting upon the recommendation
of the state's attorney . . . magistrates [were unwilling] to allow a
rioter to be free, under a nominal bond, to return to the scene of
the riots." And it was apparently not until a mandamus action
was filed and the Cook County (the black) Bar Association put
pressure on the Chief Judge of the Circuit Court of Cook County
that the court began grudgingly to hold bond review hearings. 36
In Detroit in July, 1967, 74% of the bonds were higher than
$5,000: ". . . the judicial policy during the early states of the
disorder was to set extremely high bail." The public prosecutor
34 Greene, a Judge's View of the Riots, 35 D.C. Bar J. 24, 30 (1968). See also
Comment, The Administration of Justice in the Wake of the Detroit Civil Disorder
of July 1967, 66 Mich. L. Rev. 1542, 1576:
"an independent judiciary capable of overseeing police action is essential even
in-perhaps especially in-a civil disorder situation. When a court compromises
its position as the impartial arbiter between the individual (or masses) and the
state, it is at best a tacit admission that the law enforcement agencies cannot
adequately maintain order on their own." (Footnote omitted.)
Report of the Baltimore Commission on the Administration of Justice Under
Emergency Conditions 48 (1968).
36 Report of the Chicago Riot Study Committee 87-94 (1968).
60
"stated that his office would ask for bonds of $ 1 ,000 and up
on all persons arrested 4 so that even though they had not
been adjudged guilty, we would eliminate the danger of re-
turning some of those who had caused the riot to the street
during the time of stress.' '
One Detroit judge was quoted as saying: "We will, in matters of
this kind, allocate an extraordinary bond. We must keep these
people off the streets. We will keep them off." 37
As one judge who dissented at the time from the policy
later wrote, there was "a wholesale denial of the constitutional
rights of everyone who was arrested during that disturbance. 38
He unequivocally ascribed the harsh procedures to race preju-
dice. 39 Furthermore:
"The truth of the matter is that in the overwhelming
majority of the cases the police and the prosecutor simply
charged more than they could possibly prove. And I am of
the view that much of this was racially motivated that it was
done for the purpose of having a prohibitive bond placed
against the black defendants so they could be detained in
prison pending their examination and trial." 40
"Black citizens of Detroit find it difficult to understand
a system of criminal justice that charges 3,230 persons with
felonies and then, after imprisonment for days and the pay-
ment of thousands of dollars in attorney fees, disposes of
the first 1 ,630 of these felonies with 961 dismissals, 664
pleas to misdemeanors (trespass, petty larceny, and curfew
violations) and only two convictions after trial on the origi-
nal charge!" 41
In the Los Angeles Watts riots in August, 1967, bond on
rioters arrested was set at a minimum of $3,000. 42
37 Comment, The Administration of Justice in the Wake of the Detroit Civil Disorder
of July 1967, 66 Mich. L. Rev. 1542, 1549-50 (1968).
38 Crockett, Recorder's Court and the 1967 Civil Disturbance, 45 Journal of Urban
Law 841 (1968).
39 Id. at 842.
40 /d at 844.
41 /d at 847. Emphasis in original.
42 Report by Evelle J. Younger, District Attorney, Los Angeles County, to the
Governor's Commission on the Los Angeles Riots 16 (1965).
61
To sum up, as the Kerner Commission noted, "No attempt
was made in most cases [in the 1967 summer riots] to individual-
ize the bail-setting process." 43
What happened in the District of Columbia is in strong con-
trast.
The practice of giving individual consideration to each case
and attempting to act fairly in spite of distress at what was hap-
pening outside was, in one judge's view, responsible for cooling
the tempers in his courtroom. For many present, defendants and
their relatives and friends, it was their first time in a courtroom;
for them the system was on trial. They were, the judge felt, dis-
trustful of the court until the hearing process convinced them
that the judge was attempting to act fairly and to release as many
persons as he felt he could.
The judges were generally willing to be flexible. Not only
did they release 43.2% of the riot defendants on non-financial
conditions but released many on personal recognizance. Most
judges gave each defendant individual consideration, listened to
information from the Bail Agency and the representations of the
defendants' attorneys. By following the procedure of the bail
hearing in normal times, judges became aware of the fact that
many riot defendants were reliable citizens with substantial com-
munity ties and no prior criminal records. This put the judges in
a position to make exceptions to the policy, based on the indi-
vidual circumstances of each defendant.
As we have seen, some judges declined to adopt the policy.
A few judges followed the Bail Reform Act consistently, releas-
ing on personal recognizance persons who had substantial com-
munity ties that could be verified. These judges might condition
release on compliance with the curfew, warning the defendant
that if he violated these conditions he would face new criminal
charges.
For most of the judges (with one notable exception see
p. 42, supra) who followed the policy, the third party custody
device saved the results from being more restrictive than they
might have been. They were willing to rely on the persuasion of
a responsible relative to keep the individual out of trouble, and
to impress on him that the court was "taking a chance" in releas-
ing him because somebody was willing to speak for him and
promise that he would keep out of trouble.
3 Report of the National Advisory Commission on Civil Disorders 185 (1968).
62
It may even be true that the relatively high quality of the
administration of justice in the District of Columbia during the
April disorders was a factor contributing to the restoration of or-
der. The Kerner Commission stated as one of the goals of the ad-
ministration of criminal justice during a disorder the provision of
"fair judicial hearings for arrested persons under conditions which
do not aggravate grievances within the affected areas." 44
It was speculated, with respect to Detroit, that "it is at least
plausible that as to many of the arrestees fair treatment by the
court and release on bond with appropriate judicial admonitions
would have been a sufficiently sobering experience to prevent re-
involvement." 45 The result of Detroit's harshness seems to have
been
"that police-Negro tension in our City today is almost as
high as it was immediately after last summer's events. The
simple truth is that Detroit's black community has no confi-
dence in the administration of justice in their city; they be-
lieve that the temple of Criminal justice is sagging, is totter-
ing. They feel the beams resting upon their necks. What is
particularly disturbing is the refusal of the Establishment to
open its eyes to the fact and take corrective measures before
it is too late" 46
4. The Policy in Action-The Results
Given its stated objective, not of detaining all arrestees but
of reducing substantially the number who might return to the
scene of disorder, the policy of restricted release adopted and as
it was implemented in Washington, D.C. in April was fairly effec-
tive. 75% of the persons on whom money bond was imposed
were remanded to custody. Virtually no one was released before
Monday, April 8, when relative tranquility had been restored to
the city. Many were effectively isolated at least for the duration
of the disorder.
As we have seen, however, there is no evidence that the in-
carceration of these individuals did or did not make any contribu-
tion to the restoration of order. On the other hand, the strongest
argument against money bail or any other device that results in
44 Report of the National Advisory Commission on Civil Disorders 184 (1968).
45 Comment, The Administration of Justice in the Wake of the Detroit Civil Disorder
of July 1967, 66 Mich. L. Rev. 1542, 1574 (1968).
46 Crockett, op. cit. supra, p. 83, n. 2 at 847.
63
pre-trial detention is the number of persons so detained whose
cases do not result in conviction. These are persons who remain
presumed innocent but who have nevertheless served time in
prison. Information on the disposition of the cases of 410 of the
449 prisoners is available (Appendix D). One hundred and ten
were convicted. Three, curfew violators, forfeited collateral. But
the cases against 1 58, or 38% of those for whom there is informa-
tion, were dismissed or resulted in acquittal. These are persons
who, so far as the law and the judicial process is concerned, are
presumed innocent of any wrongdoing. This figure, indeed, will
probably increase. The cases of 139 were pending (as of January
1, 1969), almost all on felony indictments in the United States
District Court, and the rate of acquittals and dismissals in that
court (see Part III, infra} has been running at about 25%.
Inequality of Treatment. A crucial test of the administra-
tion of justice is whether persons similarly situated receive equal
treatment. This is the plain meaning of the phrase in the Consti-
tution, "equal protection of the laws." We have already noted
(p. 44, supra) the variations in treatment of defendants depend-
ing upon various factors. The kind of inequalities evident in the
administration of the restricted release policy can be divided into
three categories.
First are inequalities inherent in the nature of the restricted
release policy and its implementation. Thus, persons who had
community roots and who could find third party family mem-
bers or others to come to court and vouch for them or take third
party custody could obtain release; others with community roots
whose friends or family could not get to court because of the
curfew, illness, the need to care for children or the like, were
likely to have money bond imposed. This was compounded
where a defendant happened to be brought up for his hearing in
the evening or night hours, when it was much more difficult for a
third party to come to court. The employment of money bond
as a detention device discriminates between the poor and the not-
so-poor; where a surety bond was set, release at court often would
depend upon the chance of encountering a (or the) bondsman in
or near the Courthouse, and the availability of a friend or relative,
or the willingness of the defense lawyer, to seek out a bondsman.
Second are inequalities inherent in the judicial system in
normal times or necessarily resulting from the state of disorder,
that would have resulted even without a policy of restricted re-
lease. Judges were much more sympathetic to women, granting
to them release on non-financial conditions much more often
64
than to men. Administration of the Bail Reform Act depends
upon verification; the Bail Agency's lack of facilities and person-
nel and the confusion in the court and in the city made verifica-
tion difficult. As we have seen, if the facts of a defendant's com-
munity ties were verified he had a much greater chance of
obtaining release on non-financial conditions.
Finally are inequalities resulting from the administration by
more than a dozen different judges, with varying philosophies
and predilections, of a vague and ill-defined standard of commu-
nity safety or the potential dangerousness of the defendant. One
of the judges sitting on Sunday evening, April 7, released 90% of
the defendants before him on non-financial conditions; another,
sitting at the same time, imposed money bond in every case. See
Appendix C for how different factors affected dispositions by
the 13 judges there listed.
There seemed to have been no agreement among the judges
as to what might make a person dangerous. If a defendant had a
record of convictions of serious crimes, his chances of release on
non-financial conditions were substantially reduced; nevertheless,
some defendants with such records were so released. If a defend-
ant was arrested with a weapon in his possession, or if his offense
involved a weapon or violence, his chances of release on non-
financial conditions were reduced; nevertheless, some defendants
so charged were released. If a defendant was charged with having
acted in concert with others, his chances of release on non-
financial conditons were reduced; nevertheless, some defendants
so charged were released.
Nor does there seem to have been any agreement on what
factors insured a defendant's harmlessness to the community.
The rate of release on personal recognizance for the 98 "model"
risks (p. 29, supra) was 37.8%, considerably higher than the over-
all rate of 30.4%; nevertheless, 36.7% of these people were or-
dered to make money bond or to go to jail.
This difference in result and variation in interpretation of a
standard of "dangerousness" is not surprising. The different fac-
tors judges did or would rely upon in determining dangerousness
were brought out in interviews. Some judges believe that they
could tell intuitively whether or not a person was dangerous. One
judge likened the procedure to playing a violin. One judge re-
ferred to the "dark glasses, green pants," the "fourteenth street
crowd." Another judge relied on the defendant's attitude,
whether he seemed to show remorse. Still another judge based
65
his determination on whether he thought the defendant was tell-
ing the truth.
Most judges said that they would look at a defendant's prior
criminal record to see if it evidenced "dangerous proclivities."
The criminal records reported by the Metropolitan Police Depart-
ment for the 46 repeaters who might have been detained by the
court (Appendix E) suggest that even this, perhaps the most ob-
jective of the standards proposed for preventive detention deci-
sions, is unreliable. Of those 46, 26 had no prior criminal record
at all.
Most of the judges also would look at the nature of the of-
fense charged to see if it evidenced dangerousness. To the objec-
tion that the charge was not yet proved, one judge replied that in
that context the presumption of innocence was "madness," that
it is a procedural matter for trial but should not affect the court's
decision on pre-trial release.
Finally, as one judge remarked, the possible detention of in-
nocent persons is the price that "we" must pay for order.
5. The Role of the Prosecutor
Considerable information is available about the administra-
tion of justice in three major riots-Chicago in April, 1968; De-
troit in July, 1967, and Watts (Los Angeles) in August, 1965. In
each of them the courts adopted a draconian bail policy admit-
tedly intended to effect wholesale preventive detention. (See pp.
60-61 , supra.) In each of them the initiative for the policy came
from the prosecutor's office.
In Los Angeles, the District Attorney reported, he "took
the position that to release a large number of these arrested per-
sons on bail could result in their returning to the riot area and in-
creasing the difficulty of control," 47 and attempted to persuade
the court not to set bail at all. In Detroit the District Attorney
stated that:
"When it became clear on Sunday night that a full scale riot
was in process, I publicly announced that I was recommend-
ing a $10,000 bond on all those arrested for looting. The
courts generally followed that recommendation, and some
criticism ensued in the form of statements to the effect that
the riot was extraneous to the individual consideration of
Younger Report, p. 61 n.42 supra, at 15.
66
bond and to the point that it was considered by some to be
excessively high. I felt then, and I still feel, that the court's
response to my recommendation was justified." 48
In Chicago the high bail policy was in part the result of
"the kind of political pressures under which the judiciary
was operating. On Saturday night, April 6, an assistant pub-
lic defender was in the midst of a bond hearing when the
Corporation Counsel, Richard Elrod, came up to the judge
and told him that no bonds were to be set below $ 1 ,000.
The public defender assumed that the word had come from
'on high' and noted that after that no bonds were set at be-
low $ 1 ,000, whereas previously some variation in the bonds
had been evident and some individual consideration given." 4 '
In the District of Columbia in April, also, as we have seen,
the policy of restricted release was initiated at the instance of the
prosecutor, the United States Attorney. As he put it in open
court,
"in the absence of conditions of release under the Bail Re-
form Act which are proposed by the defendant, which
would assure not only his appearance in court but assure a
nonreturn to the kind of conduct that is involved in the
charge, the United States Attorney recommends and urges
the Court to require a bond not less than $1 ,000."
His initiative was effective, as we have seen. It is under-
standable, too, that in a time of emergency judges may have inter-
preted his position to an extreme. As one judge seems to have
understood it,
"The United States Attorney for the District of Colum-
bia, as much as is possible for a man in his position to do so,
with the Court, practically insisted that money bonds be set
in these cases, regardless of the Bail Agency Act. I won't go
into all the details about how strongly that was put."
The United States Attorney was of course acting in accord
with his duty as he saw it. He felt that the policy he urged was
imperative to help restore order and he acted on the basis of in-
formation available to him in a time of confusion. There is a
48 Cahalan, The Detroit Riot at 3-4 (unpublished).
49 Platt, The Administration of Justice in Crisis: Chicago, April, 1968 at 7
(unpublished).
67
question, however, whether a prosecutor should properly view
his role as that of an agency for the restoration of order. Doubt-
less, some prosecutors and the United States Attorney for the
District of Columbia do so view their job.
6. Impact of the Policy and its Potential Dangers
Separation from relatives and incarceration in jail is not a
cherished experience, especially if a person was never in trouble
before or was innocent of the charge or was entitled to release
under applicable law. Many defendants who had bond set spent
ten or more days in jail. A few were still in jail in July because
judges refused to reduce amounts set or because attorneys failed
to pursue such review as was possible under law. Such detention
can mean the loss of a job for a marginal man and the further dis-
ruption of his family life. Even a short detention for women ar-
rested in the disorder results in their separation from children,
many of them infants.
The fourteen defendants who went to jail who were inter-
viewed (see Appendix H) cannot, of course, be considered a rep-
resentative sample. Yet, of the fourteen, five said that they lost
wages in time away from work, from one day to one week, and
four said that they lost their jobs because they were unable to re-
port for work. Two found new jobs only after a month; the other
two said they were still unemployed.
Some advocates of preventive detention during civil disorder
like to argue that the policy is reasonable since people only go to
jail for a "few days." But is "a few days" a legitimate price for
any person to pay, if his detention is neither supported in law nor
shown to be necessary in terms of the general community goal of
restoring order? And not all riots are guaranteed to end in "a few
days."
It has been argued, in a similar vein, that any detention last
April was not serious because it only lasted through the weekend.
It has been suggested that if the courts had been closed, as they
are in normal times, defendants would have spent the weekend in
jail anyway. But that argument does not justify detention or-
dered by a court that was open on the weekend, detention that
was hence a consequence of judicial decision. And not all riots
are guaranteed to occur on weekends.
68
PART III. THE PROSECUTION;
PROCEEDINGS AFTER THE EMERGENCY
The U.S. Attorney's Guidelines
Preliminary hearings for felony defendants to determine
whether probable cause existed to hold them for the grand jury
began shortly after order was restored. 50 The office of the
United States Attorney began preparation of a detailed set of
guidelines to govern the disposition of the principal kinds of loot-
ing cases. The United States Attorney has furnished us with the
substance of the guidelines; he did not make available the written
memorandum in which they are recorded. The substance of the
guidelines was:
1 . If the defendant was seen breaking and entering, the Bur-
glary II charge (which carries a penalty of from 2 to 1 5 years im-
prisonment) would not be reduced.
2. If the defendant was seen in, going in or coming out of a
store, and had merchandise of more than a nominal amount, and
had a criminal record involving moral turpitude, 51 the Burglary II
charges would not be reduced.
3. In the circumstances of paragraph 2, except that the de-
fendant had no record, the Burglary II charge would be reduced,
but only for a plea to charges of petty larceny, unlawful entry
and riot. If the charge of riot was not appropriate, the plea would
be to attempted burglary and petty larceny. (These offenses
carry a penalty of a maximum of one year imprisonment.)
4. In the circumstances of paragraph 3, except that the de-
fendant had no merchandise in his possession, the Burglary II
charge would be reduced to attempted burglary, and riot where
^Preliminary hearings are not necessary to indictment. The U.S. Attorney may
bring a defendant directly to the grand jury as an "original."
51 Useable for purposes of impeachment under D.C. Code 14-305 (1967) and called a
"Luck-type" record after Luck v. United States, 121 U.S. App. D.C. 151, 348 F.2d
763 (1965), which established ground rules for the exercise of the District Court's