is reasonable probability that he will not be available at the trial, shall require the witness to post security for his appearance at the trial. If the witness fails to post security after a reasonable opportunity to do so, the judge or commissioner may order the further detention of the witness until he appears and testifies in the criminal case or until the case is finally disposed of otherwise. The bill provides that the detention of a witness as provided therein shall not constitute an arrest within the meaning of that term as used in any other law or in any rule or regulation. The bill also provides that no statement made by the witness in the course of his detention in accordance with the bill shall be used in any criminal prosecution against him. The Commissioners are authorized to provide suitable accommodations within the District of Columbia for the detention of persons who are unable to furnish security for their appearance as witnesses. This bill was drafted with the cooperation and assistance of the U.S. attorney for the District of Columbia and meets with his approval. The Commissioners strongly recommend the early introduction and enactment of the bill. The Commissioners have been advised by the Bureau of the Budget that it believes the Commissioners should give careful consideration to the significant amendments to the draft bill which have been proposed by the Department of Justice in its letter of March 11, 1963. If such consideration will take substantial time, there would be no objection to submission of the draft bill to the Congress provided a copy of such letter dated March 11 is also forwarded to the Congress. Very sincerely yours, WALTER N. TOBRINER, President, Board of Commissioners, District of Columbia. A BILL To amend the law relating to material and necessary witnesses to crimes committed in the District of Columbia Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 401, the Revised Statutes of the United States, relating to the District of Columbia (D.C. Code, § 4-144), is amended to read as follows: "SEC. 401. (a) Whenever, in a criminal case, there is reasonable ground to believe that any person is a material and necessary witness to the commission of any crime or attempt to commit any crime punishable by imprisonment for one year or more, and there is reasonable probability that such person will not be available to testify at the trial of the person charged with such offense, such person so believed to be a material and necessary witness may be taken by a member of the Metropolitan Police force, or by a Federal law enforcement officer, without unnecessary delay, before a judge of the United States District Court for the District of Columbia or a judge of the District of Columbia Court of General Sessions or a United States commissioner. Such judge or commissioner shall, after a hearing is afforded to such person and such judge or commissioner is satisfied by testimony given under oath that such person is a material and necessary witness and that there is reasonable probability that such person will not be available at the trial as provided in this subsection, require such witness to post bond or collateral as security that he will appear and testify at such trial, or upon his failure to post such bond or collateral after a reasonable opportunity to do so, to order his further detention until such time as he appears and gives testimony in such criminal case or until such criminal case has been finally disposed of otherwise. The detention, as herein provided, of any such witness shall not constitute an arrest within the meaning of that term as used in any other law or in any rule or regulation. No statement made by such witness in the course of his detention as authorized by this section shall a used in a prosecution against him for the commission of any crime. "(b) The Board of Commissioners shall provide suitable accommodations within the District of Columbia for the detention of persons who are unable to furnish security for their appearance as witnesses, as provided in subsection (a). Such accommodations shall be separate and apart from quarters used for the confinement of persons charged with crime. The said Commissioners may, in their discretion, enter into agreements with any Federal agency, including the United States courts, for the use of suitable space in a building under the jurisdiction of any such agency, and such agency is hereby authorized to allow the use of such space for the purpose of providing the accommodations required by this subsection. In carrying out the purposes of this Act, the said Commissioners may utilize any appropriate space in any building which is owned privately or which is owned or leased by the government of the District of Columbia. In the case of any witness detained by an officer other than an officer or member of the Metropolitan Police force, the District of Columbia shall be reimbursed for the accommodations furnished such witness at rates to be determined by the Commissioners." SEC. 2. District of Columbia appropriations shall be available for carrying out the purposes of this Act. Hon. KERMIT GORDON, Director, Bureau of the Budget, Washington, D.O. U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE DEPUTY ATTORNEY GENERAL, DEAR MR. GORDON: This is in response to your request for the views of the Department of Justice on a draft bill to amend the law relating to material and necessary witnesses to crimes committed in the District of Columbia submitted by the Commissioners of the District of Columbia. Section 4-144 of the District of Columbia Code, quoted in the proposed letter to the Speaker, presently empowers the Board of Commissioners to provide suitable accommodations for the detention of witnesses who are unable to furnish security for their appearance in criminal proceedings. It is stated in the same letter, by reference to a recent report of the Commissioners' Committee on Police Arrests for Investigation, that the present statutory provision is of no practical value and is almost never used. The proposal is patterned after rule 46(b) of the Federal Rules of Criminal Procedure, the constitutionality of which has never been doubted. (See Barry v. United States ex rel. Cunningham, 279 U.S. 597.) It would permit the detention under procedures designed to safeguard the rights of individuals, of any person for whom there is reasonable ground to believe he is a material and necessary witness in a criminal case involving a crime punishable by imprisonment for 1 year or more and there is also a reasonable probability he will not be available to testify at the trial of such case. The proposal specifies with particularity the procedures which must be followed in order to effect the detention of such a witness. These include bringing the witness before a judge of the U.S. District Court for the District of Columbia, a judge of the District of Columbia court of general sessions, or a U.S. commissioner, without unnecessary delay. After a hearing is afforded to the witness and the judge or commissioner is satisfied, by testimony under oath, that the person detained is a material and necessary witness, and that there is reasonable probability he will not be available at the trial, the witness may be required to post bond or collateral to insure his appearance. Upon the witness' failure to post bond or collateral, he would be detained until his appearance as a witness in the trial or until the criminal case is finally disposed of otherwise. The proposal further provides that such detention shall not constitute an arrest within the meaning of that term in any other law, rule, or regulation and that any statement made by such witness in the course of his detention shall not be used in any criminal prosecution against him. Provision also is made authorizing the Commissioners to provide suitable accommodations for such detained witnesses separate and apart from quarters used for the confinement of persons charged with crimes. The effect of these provisions is to prescribe with greater particularity than under existing law the procedures under which material witnesses may be detained to insure their appearance in criminal cases. The Department of Justice favors this proposal and has no objection to its submission by the Commissioners of the District of Columbia. However, we do have the following suggestions to offer: It is suggested that consideration be given to a provision which will relieve witnesses who are unable to post bonds because of their poverty from being confined for unduly long periods of time. In some States, by statute, once the defendant is apprehended the deposition of the witness may be taken, and the defendant afforded the right of cross-examination. Rule 15(a) of the Federal Rules of Criminal Procedure has a similar provision. While the rules of criminal procedure for the District of Columbia provide for depositions of material witnesses for the defendant who are about to leave the District (District of Columbia Code, sec. 23-111), no like provision is made for deposition of witnesses for the Government. It is suggested that although the witness is not accused of a crime, he should have the right to counsel and be advised of this right. An analogous situation is the right of an accused to counsel in a preliminary hearing. There is prece dent for this practice. In New York, for example, the magistrate advises the witness of his right to counsel, and if he cannot pay for it, the court will assign an attorney to serve without compensation. (See 40 Neb. L. Rev. 503, 510; 511, note 42 commenting on "Imprisonment of the Material Witness for Failure to Give Bond.") It is also suggested that consideration be given to compensating a witness for time spent in detention awaiting interrogation or trial. While there are provisions in the District of Columbia Code for witness fees for attendance in court (District of Columbia Code, sec. 11-1501 and 23-109), under the weight of authority, these provisions would not be broad enough to permit payment of compensation to a material witness under detention. Even if detention is a public duty which a person may properly be called on to perform, it may operate as an intolerable burden on a witness and his family, if, while pre vented from working, he is denied reimbursement during the detention period which under some circumstances might be prolonged for several months. As is provided in rule 46(b) of the Federal Rules of Criminal Procedure, consideration should be given to a provision which would authorize the judge or commissioner to order the release of the witness if he has been detained for an unreasonable amount of time, and to modify at any time the requirement as to bail. Under the language of the bill the police apparently would, without judicial process, be empowered physically to take the material witness before the judge on the basis of their own determination that the statutory grounds exist. As a practical matter this would seem to be necessary where a witness is taken into custody at the scene of the crime. However, with respect to witnesses other than those taken into custody at the scene of the crime we suggest that consideration be given to a revision of the proposal which would provide that such witnesses may not be taken before a judge except pursuant to a courtissued subpena which could be based on an ex parte affidavit or petition. Such a revision would be consistent with rule 46(b) of the Federal Rules of Criminal Procedure. Also, consistent with rule 40(b) it is suggested that the word "shall" on line 1 of page 2 should be changed to "may" in order that the traditional exercise of discretion by the court in this area may not be questioned. Also, the word "may" on line 15, page 1 of the draft bill should be changed to "shall" so that the duty of the police to bring the "witness" before the judicial officer "without unreasonable delay" would be mandatory. Sincerely yours, NICHOLAS DEB. KATZENBACH, Mr. WHITENER. Mr. Tobriner, did you want to go into the other areas of legislation? Mr. TOBRINER. If I may, sir. IV. FOUR-TIME LOSER (H.R. 1893) Mr. TOBRINER. What is referred to next on this agenda is the fourtime loser bill, which I think is somewhat similar to the Baumes Act in New York-if you will indulge me for just a moment. This, Mr. Chairman, and members of the committee, is a bill which was introduced by Congressman Becker. It provides, in brief, that on the fourth conviction for a felony, whether the previous felonies are committed in the District of Columbia or not, the defendant shall be sentenced to life imprisonment, with the right of parole terminated. The Commissioners' position Mr. WHITENER. Let me ask you, Mr. Tobriner. Now I am going to get on the other side of the argument. When I was elected to Con gress, I was walking down the hall of the courthouse one day and one of my old colored friends walked up to me and said, "I understand you be on the other side now." I had quit prosecuting. Do you think that the suggestion of closing the door permanently on an individual in prison is consistent with the best interests of the country? Mr. TOBRINER. No, sir; I do not. That is our position on this bill. We feel that the bill goes too far. It prevents a judge from considering the circumstances surrounding the fourth conviction or the previous convictions. Mr. WITENER. Well, it would go further than that, would it not, and prevent the parole authorities from considering it. I am not concerned about the courts in this connection. I would like to see them not have the discretion in many types of cases. But I think some where Mr. TOBRINER. It prevents parole action. And further we feel that it makes no distinction between convictions for a felony involving nonviolent offenses, such as embezzlement, forgery, and the like, and convictions for felonies which relate to serious offenses of an aggravated character, such as rape, robbery, assault, and the like. So we are against the bill, sir. Mr. WHITENER. Well, there is another thing about this bill-and I have not studied it carefully as yet, but I did read it casually. The language that an offense committed in another jurisdiction, another State, which would be a felony in the District of Columbia troubles me. In my State, we keep changing the law about the value of property to be taken in a breaking-and-entering case as the determining factor as to felony or misdemeanor. I think you could get into some real knotty problems as to whether a breaking-and-entering case in North Carolina would involve-whether there is no need for strict proof of the value of property stolen, because of the action that the North Carolina court took-you would run into a real problem deciding whether that would be a felony here in the District. It seems to me you would almost have to try the North Carolina case in the District of Columbia. Mr. TOBRINER. Right. Mr. WHITENER. Another thing that we ran into on our study of the Fugitive Felon Act, in the last Congress, in the Judiciary Committee is that in some States a particular offense is a felony; in others it is a misdemeanor. It seems to me if we are going to pass an act like this, that we should, instead of saying that it would be a felony if it had been committeed here, we should say, committed a crime which was punishable by the laws of the State in which it was committed by more than 2 years, or more than 5 years, or something of that sort, so that the question of proof will be simplified. Mr. TOBRINER. I feel, as the chairman has pointed out, that this robs the parole authorities of any discretion. And I think in my mind at least there is a definite distinction between crimes against property, which are felonies, and crimes against a person. Mr. WHITENER. Well, I do not see anything wrong with mandatory sentences; that is, the statutes providing that the courts impose certain mandatory sentences. But I have some serious doubt about whether once the court has imposed such sentence that the executive and administrative bodies having responsibility for rehabilitation and correction should have the doors closed on them. A person who has all hope closed out is going to be pretty hard to manage. Any questions? Mr. BROYHILL. No questions. Mr. WHITENER. All right. The bells are ringing, but you go ahead with the next one. Mr. TOBRINER. I will be as brief as I can, sir. This is the police reserve. V. ACTIVATION OF POLICE RESERVES (H.R. 4322) OR COMPENSATORY TIME TO OFF-DUTY POLICE Mr. TOBRINER. I believe this bill passed the House last year. I am not sure about that. But it was introduced in the House at least last year. We have had reserves in the police department since 1952. Currently there are 1,034 members, of which 700 are active. They have reasonably good training. They take refresher courses. There are currently active reserve forces in the 9th and 13th precincts. It is estimated that the activation of a police reserve would cost $210,000 the first year for uniforms and equipment, and $70,000 thereafter. Under the Code of the District of Columbia, the Park Police have the right to create a police reserve in the same manner that we are seeking authority for the Metropolitan Police. It is our intention-and I think it would be the intention of the Chief of Police that if the authorization for such a reserve were granted, these men would serve on double beats, with regular officers of the Metropolitan Police Force, thus relieving regular officers for additional duties elsewhere. Mr. WHITENER. In other words, they would become the partner of a regular policeman. Mr. TOBRINER. That is correct, sir. That is our intention. And we would have no objection if such a provision, out of caution, were written into the bill. Mr. WHITENER. At this point, we shall insert the formal recom mendations of the Commissioners when submitting their bill, which was later introduced by the chairman, Mr. McMillan, as H.R. 4322. (The report referred to follows:) Hon. JOHN W. MCCORMACK, The Speaker, U.S. House of Representatives, Washington, D.C. GOVERNMENT OF THE DISTRICT OF COLUMBIA, MY DEAR MR. SPEAKER: The Commissioners of the District of Columbia have the honor to submit herewith a draft of a bill "To authorize the Commissioners of the District of Columbia to utilize volunteers for active police duty." The purpose of the bill is to authorize the Commissioners to "select, organize, train and equip reserve police officers for duty in connection with the policing of the District of Columbia." The Commissioners would, in addition, be authorized to bestow upon such police reserve officers such of the powers and duties of regular officers and members of the Metropolitan Police Department as the Commissioners deem necessary and proper. The bill also provides that reserve officers shall serve without compensation and not be considered employees of the government of the District of Columbia or of the United States. |