Bugs in Bail Reform

"The good citizens of the District of Columbia had better take cover," snapped Federal Judge George L. Hart Jr. Thanks to the new Federal Bail Reform Act, he was releasing eleven criminal defendants on nothing more than their own promise to show up for trial later.

The intent of the new bail act, passed eight months ago, was to reinforce a long-ignored principle: defendants should not be jailed before trial merely because they cannot afford bail. All very well, since many federal criminal cases involve white-collar crimes and relatively responsible defendants. But the law has run onto a prickly shoal in Washington, D.C., where federal courts handle all kinds of violent big-city crimes. As a result, a grand jury has just returned the first bail-jumping indictment under the new no-bail setup. On the second day of his trial for robbery and assault, John L. Barringer, 23, saw things going against him. He then simply vanished. He was arrested two months later for another robbery, two more counts of assault, and packing a pistol. Having violated his trust the first time, he is now being held without bail, and he could eventually be sent up for as many as five extra years for ducking out of his earlier trial. But other defendants may well imitate Barringer. Says Assistant U.S. Attorney Nicholas S. Nunzio: "It won't take them long to catch on." The law allows judges to jail defendants during a court trial to prevent Barringer situations. But a judge would have to set forth in writing his reasons for believing that the defendant might be likely to flee; the defendant could then file an appeal to a higher court. The same goes for pretrial release and for the new law's provision permitting judges to impose the conditions for release, such as requiring the accused to report to the police daily. But the law has a key gap: except in capital cases and after conviction, judges cannot consider danger to the community as a factor in no-bail proceedings. The law's drafters considered including such a provision, aimed solely at Washington, but dropped it to await developments. The first results suggest that developments may be developing.

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