The difficult task is to select a category which includes the largest number of defendants who would commit violent crimes and the smallest possible number who would not. If it were possible to select a category which included all those and only those, who commit such crimes, there would be little problem. But since this is impossible, a choice must be made. It must be decided how many defendants we should be willing to confine errenously in order to prevent how many acts of violence. This will in turn depend on the nature of the violence to be prevented and the duration of the contemplated confinement: we should be willing to tolerate fewer erroneous confinements to prevent predicted purse-snatching than predicted murder: and fewer again if the trial is a year off than if it can be over within two weeks of the arrest. Another reason why predictions of the future are less reliable than reconstructions of the past concerns the processes by which human beings make decisions. Participants in judicial decision-making-lawyers, judges, even jurors-have some sense of what it means to decide whether a specifically charged act probably was or probably was not committed. The participants bring to their decisions some basis for sorting out the relevant from the irrelevant, the believable from the incredible, the significant from the trivial. And this basis-though often rough and intuitive-is far more than the judge is likely to bring to the process of predicting the future. It is true that all judgments about human events, whether past or future, rest upon a superstructure of assumptions about how people behave; all decisionmaking requires a theory. What I am suggesting is that participants in the judicial process are better equipped by their experience to construct and employ theories about what probably occurred in the past than theories about what is likely to occur in the future. Put another way, we are all historians, but few of us are scientists. Perhaps Lewis Carroll's Queen had a "memory" that worked equally well both ways: she remembered "things that happened the week after next" even better than things that happened yesterday. But Alice spoke, for most of us when she said that her memory "only works one way . . . I can't remember things before they happen." The most serious danger inherent in any system of preventive detention is that it always seems to be working well, even when it is performing dismally; this is so because it is the nature of any system of preventive detention to display its meager successes in preventing crime while it hides its frequent errors. This has been demonstrated in other areas where detention rests on predictions of dangerousness. One such area-which I have studied in detail and about which I have written elsewhere is the confinement of the mentally ill on the basis of psychiatric predictions of injurious conduct. It has long been assumed that these psychiatric predictions are reasonably accurate; that patients who are diagnosed as dangerous would have engaged in seriously harmful conduct had they not been confined. The accuracy of these predictions has never been systematically tested, since patients predicted to be dangerous are confined and thus do not have the opportunity to demonstrate that they would not have committed the predicted act if they were at liberty. Accordingly, the psychiatrist almost never learns about his erroneous predictions of violence. But he almost always learns about his erroneous predictions of non-violence-often from newspaper headlines announcing the crime. The fact that the errors of underestimating the possibilities of violence are more visible than errors of overestimating inclines the psychiatrist-whether consciously or unconsciously--to err on the side of confining rather than of releasing. His modus operandi becomes: When in doubt, don't let him out. Recently the accuracy of psychiatric predictions has been called into considerable question. A decision of the United States Supreme Court in 1966, Bartrom v. Herald, resulted in freeing many mentally ill persons predicted to be dangerous. Grave fear was expressed for the safety of the community. But follow-up studies now indicate that the predictions of violence were grossly exaggerated, and that very few of the patients have done what the psychiatrists predicted they would do if released. Similar studies in Baltimore support this end of extreme overprediction. 2E.g.. Dershowitz, "The Psychiatrist's Power in Civil Commitment," Psychology Today, (February 1969), p. 43. 3383 U.S. 107 (1966). The same phenomenon is likely to plague efforts to predict violence pending trial if a preventive detention statute is now enacted. Judges, like psychiatrists, will rarely learn about their erroneous predictions of violence, for those defendants, being confined, will not have an opportunity to demonstrate that they would not have committed the predicted crime. But every time a judge makes an erroneous prediction of non-violence every time he decides to release someone who then does commit a violent act-he learns about his "mistake" swiftly and dramatically. Thus, if a statute is enacted authorizing pre-trial preventive detention on the basis of judicial predictions of violence, we will never know how many defendants are being erroneously confined. And as more and more information is accumulated, most of it concerning defendants who were erroneously released, judges will keep expanding the category of defendants to be detained. There is evidence that this is already being done by some judges today. During its recent hearings, the Senate Subcommittee on Constitutional Rights considered a study of decisions of two trial judges in the District of Columbia on pre-trial release and detention; one judge routinely, if unlawfully, detained all suspects whom he regarded as "bad risks"; the other judge routinely released most suspects. Over the period studied, the "tough" judge detained about half the defendants who came before him (144 out of 285); while the "lenient" judge detained only about one-fifth (46 out of 226). Of those released by the tough judge, twelve were charged with offenses either felonies or misdemeanorswhile awaiting trial; while of those released by the lenient judge, sixteen were accused of such offenses. In other words, in order to prevent about four more crimes (some of them misdemeanors), the tough judge had to confine almost a hundred more defendants. Moreover, of the 144 persons detained by the tough judge, thirty-six subsequently had their cases dismissed and another "large percentage of them" were acquitted. Most of the defendants in this latter group were therefore the victims of a compounded legal error; not only did they not commit the predicted crimes; they were not even guilty-so the process determined-of the past crime with which they stood charged. Now it may be that eventually criteria for confinement can be refined to the point where such errors are minimized. Perhaps the high rate of violent crime by certain categories of released defendants will permit a high degree of crime prevention without too many erroneous confinements. It is claimed, for example, that a very high percentage of defendants charged with armed robbery in the District of Columbia-some place the figure as high as 34%, others as low as 11% commit new felonies while awaiting trial. But if a statute were to be enacted now authorizing the confinement of all persons awaiting trial who, on the basis of specified criteria, were predicted to commit violent crimes, then the development of such refined criteria would be seriously retarded. It must never be forgotten that many years of experience administering an untested system will not always increase the accuracy of that system. Many years of experience are often only one year of experience repeated many times. The unknown mistake of the past becomes the foundation for a confident, but erroneous, prediction of the future. This was demonstrated many years ago, in a famous "experiment" conducted by the Harvard psychologist Thorndike, who had a student throw darts repeatedly at a board to test the thesis that aim improves with experience. But he blind folded the student and never told him when he hit or missed the target. Needless to say, his aim did not improve with "experience." Nor would the accuracy of judicial predictions necessarily improve simply as a result of judges spending more and more years meting out preventive detention without any accurate way to test their predictions. The time is not yet ripe for resolving definitively by legislation the dilemma of pre-trial preventive detention. We have just begun to understand what the problem is but we do not yet have enough information to know what the optimal solutions are. We have not even tried other-less drastic amelioratives, such as speedier trials, more supervision for released defendants, and perhaps even increased penalties for crimes committed while out on bail. If such solutions were tried, the problem of crimes committed by released defendants might become a very small one indeed. What must be avoided is a simple solution that freezes knowledge at its existing low state. And this is See Rappeport, The Clinical Evaluation of the Dangerousness of the Mentally Ill (Thomas, 1967). precisely what would occur if Congress now enacted a statute authorizing confinement of all defendants predicted to commit acts of violence while awaiting trial. What must be encouraged is an approach that is tentative; that continues to gather information; and that is in the nature of an experiment. What I suggest is that any proposed criteria for confinement be tested to determine how accurate or inaccurate they are in predicting violence. This could be done in a number of ways. Judges might be asked to apply the criteria being tested-for example, those in the statute proposed by Senator Tydings' and to predict on the basis of those criteria which defendants awaiting trial would engage in violent crimes. All of the defendants would then be released, even those who the judges think should be detained. Careful studies should then be conducted to determine how accurate the judges were in their predictions. There is, however, a serious problem with this kind of test. If the judges know that everyone will be released and their actions observed, they might be extremely cautious about predicting violence, more cautious than if they knew that the predicted criminals would be safely confined. This suggests a variation which would increase the accuracy of the test, but at a substantial cost in human liberty. The judges would again decide who should be detained on the basis of the criteria being tested, but, this time, only some say half-of those selected for detention would be randomly released and observed. The other half would be detained. This suggestion is not free of difficulties either, for the status of experimentation under the law is far from clear. But I am confident that a workable and constitutional approach can be devised. Then we can see how many of these defendants would, in fact, fulfill the predictions. What we learn about our ability to predict may be discouraging to those who advocate preventive detention. But it is far better to know the discouraging truth than to build a house-especially one with bars-on untested assumptions. Would preventive detention reduce residivism? The anwser is probably “yes”: a system of preventive detention might well reduce recidivism (at least in the short run). But that answer is a misleading half-truth. The cost of any such system-in terms of unnecessary confinement-would be extremely high; too high, in my view, to justify preventive detention. 5 Tydings would permit confinement if the defendant is charged with any of the following: (1) armed robbery or a related offense; (2) a felony involving serious bodily harm committed while the defendant was out on bail; (3) a felony involving serious bodily harm where the government alleges that if released he will inflict such harm or pose, because of his prior pattern of conduct, a substantial danger to others or the community. 6 Perhaps the proposed criteria for confinement could first be tested on records of past cases before they are applied-even experimentally-to live defendants. This could be done by giving to judges the past records of defendants, some of whom did and some of whom did not commit crimes while out on bail; they would then be asked to "predict" or more accurately, postdict-which defendants fall into which category. S. 30 AND RELATED BILLS THURSDAY, JULY 23, 1970 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE No. 5 OF THE The subcommittee met at 9:45 a.m., pursuant to notice, in room 2141, Rayburn House Office Building, Hon. Emanuel Celler (chairman of the committee) presiding. Present: Representatives Celler, Rodino, Donohue, Edwards of California, McCulloch, McClory, and Poff. Staff members present: Benjamin L. Zelenko, general counsel, and Franklin G. Polk, associate counsel. The CHAIRMAN. The committee will come to order. Our first witness this morning is Mr. Edward L. Wright, the president-elect of the American Bar Association. He will be accompanied by Mr. Samuel Dash, chairman-elect of the section on criminal law, American Bar Association. Mr. Wright, we welcome you here this morning. Mr. Dash, we welcome you, too. Will you name your other gentleman with you, sir, for the record? STATEMENT OF EDWARD L. WRIGHT, PRESIDENT-ELECT, AMERICAN BAR ASSOCIATION; ACCOMPANIED BY SAMUEL DASH, CHAIRMAN-ELECT, SECTION ON CRIMINAL LAW, ABA; AND H. L. EDWARDS, DEPUTY DIRECTOR, WASHINGTON OFFICE, ABA Mr. WRIGHT. Mr. Chairman and gentlemen, I am Edward L. Wright of the American Bar Association. On my right is Mr. Samuel Dash, who has a rich history in the field of criminal justice, is a former district attorney of Philadelphia, a former president of the National Association of Defense Lawyers in Criminal Cases. He is professor of criminal law at Georgetown Law Center here and he is chairmanelect of the criminal law section. On my left is Mr. H. L. Edwards, who is deputy director of the Washington office of the American Bar Association. Mr. Edwards is full-time staff director for the section of criminal law of the American Bar Association. He retired after 28 years of distinguished service with the Federal Bureau of Investigation and has been with the American Bar Association since March 1969. At the outset I wish to make it plain that I profess no expertise in the field of criminal law. I have been designated by the board to present the views of the association pursuant to the resolution adopted at a special meeting of the board on July 15, last week. The CHAIRMAN. We are pleased to have all three of you with us. We are always anxious to get the views of the American Bar Association on the various bills before us. We will hear you with great interest, Mr. Wright. Mr. WRIGHT. Thank you, Mr. Chairman. The interest of the American Bar Association in the field of criminal law is a long and deep one. In 1964, there was created a special committee for the development of standards of criminal justice. This was headed by Chief Judge J. Edward Lumbard of the second circuit and he served until 1968 when, then, Judge Warren E. Burger became chairman, who resigned when he became Chief Justice, and the present chairman of the section is U.S. District Judge William J. Jameson of Montana. I mention that, Mr. Chairman and gentlemen, because there were some of the recommendations of the American Bar Association embodied in the resolution, which is an appendix to the prepared statement, and are based on previously announced positions soberly taken by the American Bar Association." I assume, Mr. Chairman, that the statement, which has been distributed to the members of the committee and the reporter, may be received as a part of the record. The CHAIRMAN. Yes; that will be made part of the record. Of course, we only received this statement this morning. We haven't had an opportunity to digest it, much less read it. Mr. WRIGHT. Mr. Chairman, you are not much different than the rest of us. This came off the typewriter at 2 o'clock this morning. We apologize. But in the exigencies of time, we have no alternative. Thank you, sir. (Statement follows:) STATEMENT OF EDWARD L. WRIGHT, PRESIDENT-ELECT OF THE AMERICAN BAR ASSOCIATION Mr. Chairman and Members of the Subcommitte, I appreciate this opportunity to appear before you today to present the views of the American Bar Association on the vitally important legislation pending before you, Senate Bill Number 30, known as the "Organized Crime Control Act of 1969”. As President-Elect and designated spokesman on this occasion for the American Bar Association, which represents nearly 150,000 members of the bench and bar of this country, I am pleased to inform you that the Association strongly endorses this legislation in principle. In so doing, we are very mindful of the expressed objectives set forth in the Statement of Findings and Purpose contained in the introductory portion of the Act. As lawyers and as citizens, we of the American Bar Association fully share feelings of uneasiness, alarm and deep concern of the nation over the growing menace of organized crime and the extent to which it reputedly has infiltrated legitimate activities. Accordingly, we in the American Bar Association pledge our collective support of the objectives of this legislation. We respectfully urge the Congress to proceed with all possible dispatch in processing this legislation to final enactment. Adoption of this legislation will supply powerful additional tools to law enforcement officers and the others charged with the responsibility of combatting and controlling organized crime. The American Bar Association is unqualified in its support of S. 30. We recommend, however, that urgent consideration be given to amendments in certain particulars. For several reasons, we suggest a limited number of amendments. First, we believe that the bill as drafted will be either strengthened or clarified by amendments. Second, certain provisions are inconsistent with previous statements of policy enunciated by the American Bar Association which we believe are sound. |