History Appendix M: Views of Rep. Sensenbrenner on Pretrial ServicesTHE DISSENTING VIEWS OF CONGRESSMAN SENSENBRENNER ON PRETRIAL SERVICES
Apparently infused with divine inspiration, and at long last, the Second Session of the 96th Congress has recently embarked on a course of fiscal responsibility by attempting to balance the budget. Essential to this endeavor are drastically cutting, completely excising, and restricting the urge to initiate unnecessary programs and bureaucracies.
Flying in the face of this long overdue trend, the Committee of the Judiciary has reported H. R. 7084, the Pretrial Services Act of 1980. If enacted, H.R. 7084 would extend an existing demonstration program operating in the Federal Judicial Districts into a nationwide network of pretrial services agencies and new bureaucracy. The proponents of this bill argue that the "success" of the demonstration program illustrates a need for these services, that the mechanisms for providing them under the bill are appropriate and effective, and that the bill encourages cost effectiveness. I strongly disagree on all counts.
Although some of the evidence received by the Subcommittee on Crime suggests that the demonstration program enjoyed a measure of success, it has been grossly overestimated. Even the most laudatory statements in favor of the program, the reliability of which is in great doubt because of the statistical problems, acknowledge that the indices of the program's success (i.e., declines in pretrial crime, pretrial detention and failure to appear) were also experienced in districts which did not "benefit" from these services. Furthermore, several Members of this committee, including myself, have been advised by Federal District Court judges that they have not found the services worthwhile. Indeed, in testimony before the Subcommittee, one acknowledged, with refreshing frankness that "there are a number of judges in our district who have serious doubts as to the efficacy of and need for any pretrial services in the Federal System . . ."
Leaving aside the question of need, the bill's second problem stems from the mechanism used to implement pretrial services. Despite the fact that existing probation offices can perform these services adequately and efficiently, and in fact, have been doing so in many non-demonstration program districts, H. R. 7084 would encourage the establishment of new agencies. The Committee's decision to remove the prohibition against the probation officers serving as the chief pretrial service officer is an improvement, of course, but does not remedy the serious failure to require probation administered services. At the very least, this bill should contain a presumption that the services be performed in that manner, unless extraordinary circumstances necessitate otherwise.
Some supporters of H.R. 7084 have advanced two reasons for failure to delegate pretrial duties to the probation facilities. First, they argue that the pretrial services would take a backseat to probation functions in these offices, as they allegedly did in the demonstration program. Second, they urge that probation officers, who ordinarily deal with convicts, possess a "probation mentality" which renders them incapable of dealing with those presumed innocent until proven guilty. Both of these rationales are faulty. According to the AO report, the probation-administered districts in the demonstration program achieved greater reductions in crime committed on bail and in failures to appear. The independent agencies, on the other hand, perform slightly better in terms of decreasing pretrial detention rates, performing a greater variety of social services, and more frequently recommending non-monetary bail. Thus the appropriate conclusion from the AO's statistics is a function of one's priorities: if the goal is to decrease crime and failures to appear at trial, probation officers are the most effective vehicles for providing these services. On the other hand, if the goal is to provide extensive social welfare services at great expense to taxpayers and to make bail easier for those accused of crime, the Committee's approach is preferable. The "probation mentality" innuendo is equally fallacious, and was never supported by hard evidence submitted to the Subcommittee. Indeed, many federal district court judges have found probation officers invaluable in providing these services. Finally it is worthy of note, that, of the three reports which address this issue, the AO report is alone in recommending the independent agency over the probation office.
This brings us to the cost concern. Again, assuming arguendo that these services are needed, our goal should be to provide them in the most cost efficient manner. Comparing the statistics provided by the Administrative Office with those of probation officers working in the field who have first hand knowledge of these operations, probation administered services win easily. Costs projected by the latter ($4,000,000) are roughly 1/3 of former's estimate ($I2,000,000.). Common sense would suggest that the probation offices should administer these services, but this is not the approach chosen by the Committee. Instead, a "flexible" approach, which will only encourage increased costs, has been recommended.
Three amendments adopted by the Committee improve the original bill. Removing the requirement that these agencies provide a long laundry list of social services to persons released on bail will prevent unnecessary expenditure and duplication. The "sunset" provision will give this Committee another opportunity to review the improvident decision in the relatively near future. Finally, the Committee's insistence upon the inclusion of a specific dollar authorization for appropriations will provide at least a minimal cap on expenditures. Unfortunately, the figure ultimately approved by the Committee for fiscal year 1982 is closer to the Administrative Office's figures than those of the frugal probation officers. In sum, because of the insufficient demonstration of need for these services and because of the Committee's failure to mandate the most cost effective means for providing these services I strongly disagree with the Committee's decision to favorably report H. R. 7084.
|
