*2 RONEY, Before KRAVITCH and CLARK, Judges. Circuit KRAVITCH, Judge: Circuit Manuel James and Gustavo Fernandez appeal from the district court’s amendment of their conditions for bond 18 under U.S.C. Appellants § contend that their bonds could not be proof altered absent they condition, had violated a bond that the the Northern District Florida against property bonds violates § the amended bonds denied them their eighth rights subject- amendment not to be bail, ed to excessive and that the trial court give failed to adequate reasons reject amendment. We these contentions and affirm.1 appeal preference processing disposition pursu- 1. We have over this under 3147(b). U.S.C. This case was entitled ant Eleventh Circuit Rule 12. motions Background
I. orally requested reinstatement million bond.5 $20 long-time James Fernandez are Both rejected The trial court government’s West, Florida, and have Key residents of request, but require amended bonds to family ties and there. James is an corporate million cash or $2 bond for employed attorney, Fernandez has been *3 appellant. each Neither James nor Fernan- past years by Harbor Boat for four Safe bond, dez were post able to the amended Repair September In 1981 both Company. and appeal this followed. drug men were indicted under the federal II. Amendment of Bonds under Influenced and laws and the Racketeer Cor- 18 3146 U.S.C. § rupt Organization (RICO) Act for their in- marijua- volvement in a multi-million dollar Appellants’ argument first is that a dis- enterprise smuggling operated na which trict court authority has no to increase a The charges carry from 1977 to 1981.2 presented unless evidence is to show potential parole.3 for life sentences without that the defendant has violated or is about to violate a reject condition of release. We returned, After the Judge indictment was argument. 18, Title United States Higby of the Northern District of Florida Code, 3146(e) arrests; states: § issued a warrant for (e) the warrant that bond judicial stated would set A ordering officer the re- at million.4 Both James and person $20 Fernandez lease of a any speci- on condition voluntarily surrendered to federal authori- fied in this section may any at time District, ties in the Southern and made impose amend his order to additional or appearance their initial before a federal Provided, different conditions of release: That, of that district who after a imposition if the of such additional hearing set a property million bond for or $5 different conditions results in the de- Fernandez and a consisting million bond person $1 tention of the as a result of his $50,000 $450,000 corporate surety, per- inability to meet such conditions or in the $500,000 sonal surety release of the person on a condition re- Subsequently, pre-trial James. proceedings quiring him to return custody after charges on the began hours, in the Northern specified Dis- provisions of subsec- trict, hearing pre-trial and at a (d) various tion apply.6 shall Specifically, appellants 3146(d) 2. were indicted for 6. 18 U.S.C. states: § racketeering activity in violation of 18 U.S.C. (d) person A for whom conditions of re- 2, 1961, 1963; 1962(c) (d), conspiracy §§ & imposed twenty-four lease are and who after possess marijuana import, with intent hearing hours from the time of the release conspiracy possess marijuana with intent to continues to be detained as a result of his distribute, conspiracy to distribute mari- inability release, to meet the conditions of juana, 841(a)(1), in violation of 21 §§ U.S.C. shall, upon application, be entitled to have 846, 960, 963; continuing and a criminal by judicial the conditions reviewed officer enterprise under 21 § U.S.C. 848. imposed who them. Unless the conditions of person release are amended and the is there- 3. 21 U.S.C. 848. § released, upon judicial officer shall set writing requiring forth in the reasons for Although 4. the warrant stated that bond was imposed. person conditions A who is or- million, $20 set at James and Fernandez did not requires dered released on a condition which Judge Higby make an initial before custody specified that he return to after Rather, hearing. appear- for a bond the initial shall, upon application, hours be entitled to a hearing mag- ance and bond was before federal judicial imposed review officer who Kyle istrate Patricia of the Southern District of requirement the condition. Unless the is re- Magistrate Florida. Hence we conclude that person thereupon moved and the released Kyle, Judge Higby, “releasing was the offi- condition, judicial on another officer shall cer” under § See text infra. writing continuing set forth the reasons for requirement. judi- In the event request, 5. At the time of this the court had imposed cial officer who conditions of release portion heard a substantial of the evidence available, any judicial is not other officer in against James and Fernandez as a result of the district review such conditions. suppress. their motions to
889
express statutory language,
fact intended
Thus
for additional conditions to be
judicial
permitted
officer
first sets the conditions
only upon proof
who
the defendant
“may
any
time amend his
jurisdiction.
of release
was about
to leave the
We
impose
order
additional or different con-
therefore conclude that
3143 did not
§
bar
added).
(emphasis
...”
ditions of release
trial
Cf.,
court’s action in this case.
any
language
The “at
time”
indicates that
Zuccaro,
United States v.
645 F.2d
-
an amendment of conditions
release
(2d Cir.),
denied,
-,
cert.
U.S.
any
not conditioned on
event
evidence
(1981) (“trial
S.Ct.
891 inadequate. policy disagree. óf Northern District We The basic test awas reason for against property bonds for excessive bail whether the amount is opposed as type security, altering higher reasonably than necessary to assure amount, orders reading as presence the accused’s at trial. United primary the court’s whole indicates Beaman, 85, (6th v. 631 States F.2d 86 Cir. assuring was altering concern in bonds 1981); Wright, United States v. 483 F.2d present would be that James Fernandez 1068, (4th 1973); 1070 Cir. United States v. order, body In at trial. of each for Bobrow, 124, 468 F.2d (D.C.Cir. 127 n.16 example, specifically court discussed the 1972). long As primary reason in weighing 3146 favor and factors under § setting produce bond is to the defendant’s against an amended bond. In Fernan- amount, presence, the type, final and other order, specifically dez the trial court also conditions of release within the sound bond noted that million was $2 releasing authority, discretion of the appear- “the to secure his minimum needed only we review for an abuse of that paragraph ance at trial.” In the final Cook, discretion. United v. States 428 F.2d order, moreover, the trial court James 460, (5th 1970). 461 Cir. Accord United million, stated, “I find a bond of cash $2 Archie, v. (8th States 656 F.2d 1258 corporate surety, required minimum 1981). Cir. Zuccaro, See United States v. to ensure James’ attendance trial.” (2d denied, - 645 Cir.), F.2d 106-07 cert. primary Hence we find that because the -, U.S. 102 S.Ct. 96 L.Ed.2d purpose of the this amendments (1981). case future pres- secure ence merely implement reviewing After the record and the dis- bonds, against property the amendments trict court’s orders we conclude illegal. were not the amended bond was not excessive and no abuse of discretion occurred. Appellants urge also court below specifically examined the their vari- eighth amended bond denied them and, ous factors listed in rights amendment free from excessive after hear- *6 ing bail portion and the trial court’s reasons a substantial of govern- for the the amending conditions of release were in ment’s evidence the relating case to earli- Cobb, Clyde Abbey, proceeding; of William Thomas Dan in fact he turned himself in Robinson, Lloyd Patrick and Thomas E. Alex- when he learned of this indictment. only persuasive, weighs my ander. Not is the evidence One other factor in bond modi- experienced Mr. James as an criminal attor- fication decision. James has demonstrated ney, defendants, capable ability disappear country unlike is most an to the from for accurately assessing impact period its and the fu- an extended of time. The evidence portends. against coupled ture it ability him with his to evalu- causing give great The second factor modification ate it him motivation fail appear. James’ bond is the nature and circumstances and nature circumstances of the charged being of the crime. major planner is compunction James with a crime show James has no about participant large, disobeying of and in a his oaths and court rules. His effective, wide-ranging, complex, highly prof- previous sojourn outside the itable, drug importation conspiracy ability of at departing. shows his to avoid trial years outweigh least four duration. Mr. presumption James These factors both the charged using legal his appear talents to facili- a defendant will for trial and the charges enterprise. sup- tate weighing the and other factors in James’ favor. porting $2,000,000.00, evidence indicate Mr. James would I find a bond of cash or likely exploit failings surety, corporate be as the required law’s in his is the minimum readily own behalf as as he on did the con- ensure James’ attendance at trial. All other spiracy’s. previously imposed, conditions of release in- weigh cluding in Other factors listed section 3146 restriction of travel to the Southern strong Florida, except in Mr. James’ favor. While he has no District of travel the Florida, proceedings ties the to strong family Northern District he Northern District for in this Key has ties to West in the remain in effect. District, long-time day Southern and he is a resi- DONE AND ORDERED this 20th of Jan- Key uary, dent of West. James has no convictions appear and never substantially has failed to at a court The Fernandez order was similar. not, motions, approach that the seri- a “flavor” of the new to bail pre-trial er concluded offense, Congress severity of the which established in the Act. ousness sentence, the central roles James possible applications, From its earliest the new- illegal enterprise, and Fernandez spirit ness in letter of the Bail Reform each man weight against of evidence anxiety judiciary. Act created an in the significant flight risk of which created appreciate the a trial disquiet We can expla- the amended warranted bond. may releasing feel on occasion in comported given by the trial court nation charged person with a crime dangerous 3146, and requirements of dem- with the it, requires feeling because Bail Act primary purpose that the onstrated behind at we have time shared. reasonably bond was to assure the amended Leathers, v. 169, 170 United States F.2d of James Fernandez presence (D.C.Cir.1969). Accordingly, the of the dis- trial.10 orders legislative But when the statute and its amending appel- trict court bonds history unambiguous, as is case are affirmed. lants Act, with the Bail Reform of us on none AFFIRMED. any has bench serious alternative but put personal aside his and to doubts CLARK, Judge, concurring in Circuit Act as apply Congress has written it. dissenting in part part: Id. at 170 (footnote omitted). majority’s reasoning with the agree I Congress Clearly, established in Act a cannot, however, opinion. of their I Part II approach new to bail. in either the or the result concur rationale The Act creates a presumption favor II, majority prop- III. In Part in Part releasability recognizance personal rejects contention that erly upon or execution of an unsecured appearance may an be in- before “only bond. It is if ‘such a prosecution must demonstrate creased will not reasonably ap- release assure the violated, that the defendant has or is about pearance of the person required’ violate, a condition of release. The ma- may other conditions of release be im- scholarly analy- jority reaches result posed.” Congress has established a hier- statutory only scheme. I add sis of less archy of favored conditions which the Bail Reform Act as- under reasonable considered, may but which presence surance of the defendant at only in the pre- utilized event that no the touchstone. Thus under the Act trial is adequate condition ferred is deemed something less than violation proof of appearance. assure And so it that the *7 impending violation of a of re- condition of a imposition money proper only bond is may support in lease an increase the after other all nonfinancial conditions amount terms of the bond. have found inadequate. been Nonetheless, majority give does priority given Congress The low sufficient to the intent of Con- deference monetary conditions was enacted into the expressed pre- in gress the Act and in order prevent pretrial statute deten- sumption which the Act creates. Before resulting tion from The au- indigency. exploring considering instant facts and of the Act were fully thors aware that specific claims, compelled setting I am bond because unreachable provide majority what I believe does of its amount would be tantamount Appellants weight against intimate James’ bond motion were the of the evidence amendments were the result of James’ decision James the fact that and ability James had demonstrat- cooperate beyond not to with the its ed the to remain investigation prosecution marijuana and of the United States as his 18- evidenced record, however, enterprise. sup- trip prior does not month Caribbean to the indictment. moreover, port charge. Although cooperate, of his non- was not fact James’ failure cooperation amending was bond hear- in the trial mentioned at the mentioned court’s order primary government’s ing, grounds conditions. for the bond Attorney at all. Conditions in the setting no conditions Northern District of Flori- meet are not to impossible are da. When he first which heard about the indict- radio, as devices to permitted to serve ment on the Mr. James immediately Act, plain purposes of the nor thwart surrendered to answer the indictment. they thinly to serve as a veiled cloak Mr. James testified that it was his inten- detention. preventive tion to remain in the United States and omitted). Id. (footnotes charges contest the against point- him. He ed out that he legislative history is clear: a new had access to a boat Act; pre- country was decreed in the a could have left the if he approach had chosen created; surrendered, sumption reliability was a new to do so. When he he knew arriving $20,000,000 at bail conditions his bond had method of was been set at required. particulars of the Act’s re- that at least one of the co-defendants was quirements explored will be after first re- already pled rumored have guilty and viewing the facts. cooperating was government. with the 30, 1981, September
On testimony taken, After a recess was District of Florida conducted Southern called after which the following transpired: hearing. Mary Lloyd, an extensive bond a MR. ZIMET United States [Assistant of Mr. friend James’s mother and a teacher Attorney]: Honor, Your during the re- Florida, West, Key testified as to Mr. cess, spoke Geeker, I to Mr. who is the reliability James’s dependability United States Attorney for the Northern pledged security her home as for his release. Florida; District of and I informed him happened of what had during the course Scafuti, Joseph Mr. James’s brother-in- hearing bond I and advised him as law and the Vice President of the First to the testimony of Mr. James and the Savings Key Federal & Loan Association of testimony of the other witnesses and the West, reliability attested to Mr. James’s position Court’s towards the bond. personal knowledge based on both and a He long-term professional relationship. has informed me light Mr. that in evidence prepared' presented here, Scafuti and his wife were which was as pledge approximately their home valued at well as other factors which he under- $100,000, $20,000, in Florida lot valued at stands about that he recom- as well as their interest in a piece third mends that the Government recommend property as surety collateral for a bond. following to the Court the I have —and spoken to Mr. [Attorney Sclafani for Mr. Mr. James testified that he had been a and I believe these terms are ac- James] lifelong Key West resident. After attend- ceptable one, to Mr. Sclafani —number ing college and law school in the state of that Mr. James’ bond be reduced to the Florida, he had served a city attorney as dollars; amount of one million that bond West, Key Florida. In November of form; $50,000 be in the following cor- Although he left the United States. he was porate bond, $500,000 surety personal ongoing then aware of the investigation, he bond, surety $450,000 person- well as a poor testified that he left because of his al which is secured health and because he had been advised property which we have heard testified to *8 Department that the Florida of Criminal during the course of by the examination learned, through Law Enforcement had a today. witnesses wiretap, a being put contract out on his Additionally, reduction, part as of that life. He returned to the United States Mr. James will waive September daughter Suzy’s today of 1980 for his removal to birthday, in March of when Northern District of Florida and spent he be West, day Key present in finally and a half in the Northern District of Flori- August. place He further testified that while he da at a time and discussed with Mr. Sclafani, Geeker, was out of the United he was in States Mr. sometime tomor- Geeker, frequent contact with Mr. the U. row. S. parties’ agree- by and from Pensacola as at 105-06. ordered
Transcript magistrate hesi- notwithstanding, the ment at a time and date by Court as ordered tated. agreed upon Court or as Mr. between Scla- commencing Court morn- approved
Prior to fani and Mr. Geeker as conceivably when ing, my practice, it is Transcript at 117 (emphasis sup- Court.” Judge Higby who telephoned I possible, plied). more than ex- me that he was advised majority’s account the proceedings bond; reluctant to reduce the ceedingly Judge Higby amplification. before needs reduced; the bond that he did not want hearing was held four months after the hearing he wanted bond time, hearing, during initial bond which held in Pensacola. everything else parenthetically, James had attended several recess, During Transcript at 110. hearings in Pensacola. Consideration of magistrate Judge Hig- contacted again had happened what on January 1982is nec- light that in of the by and indicated to him essary to understand this case completely. testimony she would set what she believed bond. reasonable The bond modification occurred at Judge Higby respectfully disagreed days hearings end of three concerning Judge Higby me. advised me that pretrial various motions. The defendants situation, that, light he felt of the government’s were not notified of the in- Attorney’s the United States Office tention to seek an increase in the bond. At opportunity should have the to conduct a beginning hearing, of the the United hearing Mag- in Pensacola before a bond Attorney States moved to reinstate the istrate .... original saying bond that the court had had Transcript magistrate at 111. The indi- opportunity an to hear a substantial experience it cated that in her was often amount of the evidence and that the bond futile for a to set a bond which Finally, was a bond. he argued judge’s was not in accord with district that Mr. James had “demonstrated an abili- pursuant wishes. She indicated to the ty to remain beyond agreements had been made between United In response, States.” counsel for parties attempted she had to contact pointed Mr. James out that Mr. James had Judge Higby again, but he had left his immediately upon surrendered the issuing recess, office. After another the court set indictments, noting that he could the bond. have been outside the reach of the United Okay. THE COURT: That is over. States at that time. He noted the exten- simple. It’s real sive evidence that was before magis- legal I have the and absolute authority trate at the bond hearing and that Mr. to set a bond that I want I to set that appeared every James had proceeding in appropriate. feel is I only not have the the Northern District up of Florida to that so, authority to do I’m directed law to time. Mr. James told the court that his do so. put up every piece mother and sister had hereby Bond is set in the amount of property they owned. The court then re- $50,000 one million dollars of which shall sponded: $500,000 surety; personal shall be bond, I’m going your to revoke but James; $450,- to be Mr. signed I don’t think the bond is sufficient at the personal surety signed 000 shall be to be with, present time. To start off we don’t James, today by Mr. and Mrs. the De- accept property in the Northern District fendant’s mother and father. [The of Florida surety. co-signed by Elizabeth James and Joseph F. Scafuti.] Transcript (emphasis supplied). at 9 Transcript at 116. it, I don’t who accepted know but the *9 accepted Maybe
Mr. James was restricted to travel within Court hasn’t it. the U. it, accepted the Southern District of Florida and “travel Attorney S. has but I certain- that we’re not in the litigat- it until it was business of haven’t. I didn’t know ly or the yesterday ing property to me here bonds in the Northern Dis- pointed out I the situation. property that that was trict of Florida. If the is day before worth situation was. worth, know what the bond didn’t what it is said it can be money put hocked and the can be up in point, At this the U. S. Transcript at 9. property. lieu of the Attorney indicated: Moore] [Mr. Consequently, going I’m to change the address point There was one I didn’t conditions of release of Mr. Fernandez to original- was that was that this bond $2,000,000 he require post that a cash or District of Florida ly set in the Southern surety regard corpo- full bond without magistrate there. I don’t have the by the surety, regard any rate without prop- transcript hearing, of that but there was likewise, erty put up. deed And the same At- with the United States conversation James, apply post will to Mr. that he will of Flori- torney for the Northern District $2,000,000 corporate surety a full cash or to Mr. [apparent da reference Geeker] bond. going what was to be set. far as fact, factually I in error on this As a matter of it will And amount to a may have but I think Mr. James reduction of Fernandez’ bond because point, his Attorney 5,000,000, spoken got to the U. S. bond is set at but he’s prop- himself that, time, at that my understanding erty up unacceptable. which is it’s So he’s of Mr. James’ going put up there was some discussion to have to full cash or corporate surety with the Government. And will cooperation same hold James, $2,000,000 me Attorney has indicated to with Mr. full the U. S. true cash heavily agree- in his weighed corporate surety. that or bond, an alteration of the ment that —to Transcript (emphasis supplied). at 13-14 understanding with the that Mr. James Discussion continued for some time. At one immediately present would himself in the point judge after indicated that a possibly engage District Northern $2,000,000 bond full cash corporate or sure- coop- himself in conversation toward reasonable, said, “I’m ty changing he eration. (em- Transcript bond conditions.” at 19 at 10-11. After the defense re- Transcript phasis supplied). arrangements to quested 72 hours to make Property Policy Question Bond —The bond, denied,
post the which the Avoided stated: court majority does not address the sub- Well, stung I have been THE COURT: stance of attack on the North- many times' on these bonds that these so ern District of Florida’s accept refusal precede make it you characters that kind property They agree bonds. seem to a hard act to follow. I’ve had defend- policy contrary refusal behind up of a million quarter ants show under a majority 3146. The notes: “We would get ready and then when we dollar bonds difficulty upholding legality have trial, go they’re gone, as in Mr. denying altering property bond sole- up who had showed for a three- Gonzales ly policy against because of a stated those smuggling week trial in Puerto Rico presented bonds. Such a situation is not everyday, acquitted, which was had a however.” appearance. record of good event, any going change approach, no-property-bond I’m Under this In of the bond for the reasons would forever be immune from at- conditions is, stronger I tack. I can conceive of no case in Attorney; stated the U. S. had before which a bond is denied because of don’t believe policy. unacceptability such local weight him or her the of the evidence days type allowed Mr. James is the that I have considered in these three Higby’s hearings. primarily Judge But for the reason first reason stated in order. *10 proven when modifying considering Mr. Fernandez’s the reasons In the order release, Judge Higby states: “The charges conditions of modification. and supporting evidence indicate Mr. James would be as lawyers property the the According to exploit the likely failings laws’ in his own agreed by the United security was readily conspira- behalf as as he did on the Attorney. The At- United States States reasoning goes cies.” Such further than a however, of judge is not a torney, of the consideration nature and circum- cannot alter this district’s district and of the crime. character stances The of the property against long-standing was improperly light defendant viewed in modified policy, of that I bonds. Because changed of the circumstances taken as Mr. conditions of release Fernandez’ proven. require corporate surety. cash or transcript from As indicated in the of judge The lowered Fernandez’ bond the hear- $5,000,000 $2,000,000 ing, judge his belief because of was also influenced hav- $2,000,000 recently ing “stung” by previous that was the minimum needed been de- Thus, only is as unproven secure his attendance trial. fendants. did “[I]t defendants, cash weigh against effective an when backed facts assurance but the $5,000,000 corporate surety put as the se- accusations forth against sup- others Thus, ported, judge’s eyes, the trial only by property cured notes.” modifica- these Mr. tion in defendants’ bail. particularly in Fernandez’ only modify reason of conditions Property The Bond Policy Affront —An prop- unacceptability release was the of Legislative Intent erty bonds. majority acknowledges that they Judge during made clear the hear- Higby difficulty upholding would have the North- ing modifying he principally that ern of property poli- District Florida’s bond; is, that of condition of the the nature cy. agree. I The legislative history of the it rather than the amount. Each time his Bail Act Reform of 1966 is a substantial reasons he nature given, discusses the hurdle which the majority crossing. avoids of the bond as a bond first or the Additionally, an examination of that history term is used. The “primarily” nature judge elucidates how the improperly trial primary bond must be the reason for his inquiry modifying focused when change light in bond condition in quote history bail. I from extensively. weakness the other factors noted States, practices In United bail defendants, Judge he Higby. As to both rights developed pattern a different from strong weight relies on evidence England. eighth that in amendment against and, Mr. and Mr. James Fernandez to the Constitution of the United States James, as experience to Mr. his as a crimi- only states that “Excessive bail shall not nal it attorney, the latter because made required.” Thus, specifical- be there is no capable assessing James accurately ly granted right to bail. Since Judici- impact earlier of the evidence. After the 1789, however, Act of ary Congress has hearings, the defendants were as well provided persons shall admitted strength aware of the the case upon to bail arrest in criminal cases ex- might brought against them. Mr. James cept punishment may where the be death. experienced January was no more than provided It discretionary also that bail is he September. was in capital upon cases depending the na-
Additionally, considered the na- ture and circumstances of the offense and ture and usages circumstances of the crime. of the evidence and of law. The had the before practice private too indictment providing her and knew of the nature circum- personally who would guarantee pro- stances of the crime when bail. I his proved inadequate. she set duce bailee Even- note with concern Judge Higby tually, some bail posting became the takes against the accusations professional Mr. James function of a bondsman who *11 trial, money premium guaran- ration for employment, in return for a retention of of the defendant teed the family, relations with his his attitude to- It was also in this time of trial. justice, ward social the outcome of the posting of bail bonds manner trial, severity and the of the sentence. commercial venture. became a example, preparation trial, For in for his years of bail experience many The jail defendant who remains in does became the practices in the United States not have the same access to his counsel as in the subject of criticism 1920’s. Since the man free on bail. He is limited in his then, procedures the bail have been sub- ability to collect witnesses for his defense. increasing ject criticism. Studies Often, he his employment, loses his fami- justice criminal the administration of ly may subjects become the of welfare many in instances these have shown that payments, and in many instances in the actually give proper fail procedures system Federal he becomes a financial rights essential protection to the burden to the Federal Government in admitting per- in practice accused. The the Federal Government reimburses places primary reliance sons to bail which local authorities when a defendant is in- financial inducements as the means to on jail. carcerated in a local of the accused at the presence assure the opinion your It is the committee that ignore time of trial seems to the fact that the enactment legislation of this will re- who those defendants of limited means sult in achieving goal of eliminating the necessary are unable to secure bail the evils which system are inherent in a impossible are faced with an situation. predicated solely upon monetary bail. It Attorney Recently, the General’s Com- will provide reforms that are long over- Poverty and Administra- mittee on badly due and needed. sub- tion of Criminal Justice Procedure States, The President of the United where it this con- report mitted its made his recent crime message to the Congress, clusion: requested system. reform of the bail system The bail administered in the message That stated as follows: courts, fi- relying primarily Federal We must reform our system. bail pres- nancial inducements to secure trial, of the accused at the results ence The jus- administration of criminal problems in serious for defendants of tice must be fair as well as effective. means, imperils the effective limited person, Whether a released after ar- n operation adversary system, rest, is likely to flee before trial or may provide even ef- fail to most endanger society is not determined nonappearance by fective deterrence of the wealth he commands. Yet all too persons. accused weeks, often we imprison men for present system monetary bail months, years and even we —before if all it. adequate would could afford give day them their solely court — however, facts, contrary. are to the they because cannot afford bail. professional crimi- The rich man and the Effective law-enforcement does not readily regardless raise bail nal require imprisonment.1 such man, poor lacking amount. But it is the The “wealth” of the middle and lower funds, who remains incarcerat- sufficient income classes is the equity value in prior their ed to trial. But the mere incarcera- property, principally Often, their homes. only tion is not the evil effect of the here, a defendant monetary system. additionally sup- bail have Studies ported by the property shown that failure to release has other wealth of family upon prepa- By bonds, adverse effects the accused’s and friends. denying property printed H.R.Rep.No.1541, [1966] U.S.Code 89th Cong., Cong. 2d & Ad.News Sess., re- 2298-99. (4) severely practices District of Florida the Northern Bail rely primari- which ability of members of those ly weakens the on financial inevitably consideration pending trial. This clear- classes to be free disadvantage persons and families of purpose of the Bail Reform ly means; violates limited Act, (5) high cost unnecessary de- practices relating to which is to revise impose tention a severe financial bur- *12 persons, regardless to assure that all bail den taxpayers on the deplete public and status, financial shall not need- of their funds which could be better used for pending their lessly appear- be detained public purposes; other charges, testify, to answer ance (6) Family ties, community and pending appeal, when detention serves job, residence in the community, and justice public neither the ends of nor the the absence of a substantial criminal interest.2 record, are likely factors more to assure person of a than the Analysis The Elements of Bail Contrast —A bail; posting of and Styles (7) persons Accused should not be A number of witnesses who testified dur- unnecessarily subjected detained and ing hearings expressed the Bail Reform Act persons influence of convicted of opinion primary focus of bail life; crimes jail and the effects of nor hearings stability should be on the accused’s should their families suffer needless and his roots in the community. legis- public derision and support, loss of history lative testimony reflects that (b) The purpose of this Act is to revise led, part, to the additional factors stated practices relating to bail to assure condition, Act: in the accused’s mental persons, that all regardless of their finan- ties, family employment, length of resi- status, cial shall not needlessly be de- in the community, ap- dence record of and pending tained their appearance to an- pearance. charges, swer testify, or pending ap- priority The Act establishes a system peal, when detention serves neither the with the least restrictive form of restraint justice ends of public nor the interest.3 preferable over the more restrictive. magistrate, who, Unlike the in accord- Again, legislative history helpful. ance with the purposes of the Bail Reform (a) 2. The Congress SEC. finds that— Act, family ties, focused on community (1) practices Present Federal bail job, residence in the community, and ab- repugnant spirit to the Constitu- sence of a record, substantial criminal tion and dilute basic tenets that a Judge Higby focused weight on the of the person presumed prov- innocent until evidence, crime, the nature prin- guilty by en a court of law and that cipally, me, appears it the use a prop- justice equal should be and accessible erty bond. Judge Higby’s approach then all; more closely resembled the older con- (2) reasonably expected Persons approach demned approach and less the re- appear proceedings future should quired under the Bail Reform Act. deprived not be of their liberty solely Noncooperation “Element” of inability because of their financial bail; post I take issue with majority’s treatment (3) Respect for law and major order is di- of a issue in this case in a footnote. minished when the pre- attainment of In footnote the majority says the record liberty trial depends solely upon the does support contention accused; financial status of an that “James’ bond amendments were the Id S.Rep.No.750, Cong., 2. at 2299. 3. 89th 1st Sess. These expanded findings purpose eventually were condensed in the final version. cooperate not to of James’ decision result investigation in its
with the WEST SEATTLE GENERAL HOSPI- marijuana enter- prosecution of TAL, INC., Washington fact majority concedes that the prise.” Corporation noncooperation was mentioned at v. Nonetheless, as with the hearing. bond The UNITED issue, STATES. majority insists grounds govern- for the primary No. 480-79C. evi- weight action were the ment’s against James and his demonstrated dence United States Court of Claims. ability beyond to remain March Decided the United States. cooperate was not men-
James’s failure *13 amending in the trial court’s order
tioned There nothing
the bond conditions. in
the record to it was the indicate basis Nonetheless, Judge Higby’s decision. ignore that the
we cannot had
agreed Sep- to certain conditions of bond in January sought
tember and in to have those changed. It is also not
conditions refuted set, were in conditions least
part, because of some indication that might cooperate
defendant
government. By January the defendant cooperated.
had not There be circum- which, although there
stances has been a cooperate accompanied by
failure
change government position, additional justify
considerations bail modification. At least, however, very such a situation scrutiny by appel-
should receive close
late court. I believe that the trial judge’s
action here would not withstand such scru-
tiny.
Conclusion
The majority legali- does not consider the policy
ty property ap- which forbids
pearance bonds. The Northern District of policy adversely impacts
Florida’s
group of defendants classified on economic
lines. Under policy, members of
lower and middle economic classes are much likely enjoy pretrial
less freedom than persons. affluent
more Such a result
precisely Congress sought what to avoid in
enacting the Bail Reform Act. I cannot result,
concur such a and I would strike
down the as violative of the Act.