History Appendix O: Remarks of Rep. Hughes on Pretrial ServicesINTRODUCTORY REMARKS OF REP. WILLIAM J. HUGHES AUGUST 10, 1984
Today, I am introducing legislation of this sort - legislation to insure that laws already on the books are complied with. Here, regrettably, the branch of Government failing to comply with the law is the branch charged with seeing that the law is complied with - the judiciary.
The law in question, the Pretrial Services Act of 1982, is important anti-crime legislation, in that, when fully implemented, it will provide valuable assistance to Federal courts in determining conditions which should be set in releasing defendants while awaiting trial, and in supervising those who need it pending trial.
Beginning in 1975, we subjected this program to a test run, to determine the most effective and economical way to provide the services. The trial run showed that these improved bail practices can have a direct positive anti-crime effect by reducing crime on bail, failure to show for trial, and the cost of jailing people awaiting trial. We tested two different approaches in 10 Federal district courts - five operated by probation officers, and five by separate operations. We found that we got a better product overall from the separate offices, and that the cost was the same either way. This normally would result in a decision to have all 94 districts served by pretrial services separate from our probation offices, but probation officers mounted a heavy lobbying effort to convince Congress they could do the job for little or no additional cost. They also lobbied, very effectively I might add, their immediate bosses, the chief judges of the district courts, who supported their position in Congress. As a result, we passed a law which, in effect, gave them a second chance. The 1982 law instructed the courts to let probation officers have a shot at providing pretrial services for 18 months in those districts not already under the program. Where they have shown that they can in fact provide the services with existing personnel, the statute says let them do it on a permanent basis. Where they cannot, the law directs that the new people hired to perform the job work outside the supervision of the chief probation officer, since our 5 year test run clearly showed that, dollar for dollar, we got a better product this way.
At the end of this additional trial run - nearly 10 years after the initial legislation was passed - the Administrative Office of the U. S. courts advised the Congress that this further experience confirmed what we had known all along - with very few exceptions, it will take the same number of staff and cost the same number of dollars to provide pretrial services under either management structure. The Administrative Office also concedes that under these circumstances, congressional intent as expressed in the 1982 legislation is clear that the districts which need to add new staff for pretrial services must establish these positions separate from the probation office. However, having conceded that the intent of the law is clear, the Administrative Office finds 'ambiguity" in the fact that the statute gives what the Administrative Office calls 'unfettered" discretion to the individual district courts. These courts have overwhelmingly elected to disregard the law, assign the pretrial services function to their probation office, and to hire all new staff for this function.
The Administrative Office in turn has expressed its intent to assign appropriated funds to these offices despite the clear intent of the law to the contrary. The director of the Administrative Office justifies this defiance of the law on the grounds that the same law charges him with providing the services to the courts regardless of whether the courts elect, in their "unfettered" discretion, to establish the services in compliance with or in defiance of the law.
I find it ironic that this unfettered discretion, apparently subject to review and reversal no where on this Earth or in this life, is being claimed on the part of district court judges in applying the law to themselves. In applying the law to others, they are subject to reversal by higher courts for good faith misinterpretations of complex statutes or arcane rulings by hiring courts; they can be and are reversed for failing to properly carry out clerical functions, such as execution of documents; yet, we are told that they are free to disregard this statute directed specifically to the courts, and, when they do so, the administrative head of the courts has a duty to provide public funds to carry out that defiance.
The director of the Administrative Office of the U. S. courts claims he is between a rock and a hard place. While he knows and understands that what the district courts are doing is contrary to what Congress intended, he does not run the program, but merely carries it out in accordance with the unfettered manner in which the individual district courts chose to implement or fail to implement the law. Many of which, incidentally, have also announced their decisions to rewrite the substance of the pretrial services law; one even said, "No thanks, we've decided that we don't need this law, and will not apply it."
To insure compliance with the law, and to extricate the director of the Administrative Office of the U.S. courts from the agonizing choice of obeying the law or obeying the judges, my bill simply assigns clear responsibility to the director for the implementation of the program, including responsibility to see that congressional mandates as to the substance and structure of the program are carried out. It makes no sense, from a management standpoint, to mandate a uniform national program in the area of administration of justice, and to permit 94 separate principalities to decide whether, and to what extent, they will carry out the law, just as it would make no sense to formulate national pure food standards and to allow regional Federal program administrators to each rewrite these standards to suit their own whims.
This seems to me to be a simple, straightforward resolution to the chaos that the Federal judiciary has created, chaos which has delayed the implementation and threatened the integrity and future of pretrial services. There is another solution which is even more simple, straightforward, and immediate, and I encourage the judiciary to take this course. This is to comply with the law as it already exists. I believe that they were given considerable impetus to do just this last week when the House Senate Conference on the Judiciary's appropriation, under the able and responsible leadership of Congressman Neal Smith, rebuffed their arrogant claim for appropriation of public money to finance their disregard of the law.
One way or the other, we must get this anticrime program up and running in all of our Federal district courts. While this is a relatively small program, it has demonstrated that it can have a strong positive impact on crime control. Beyond this program itself, the regrettable manner in which the Federal judiciary has gone about implementing this and other recent legislation, most particularly the bankruptcy law, has caused me and some of my colleagues to reexamine our support for the appointment of a sentencing commission by the judicial conference under the sentencing reform legislation which we expect to vote on in the House in September. As I indicated during Judiciary Committee consideration of that legislation earlier this week, the disregard for the law demonstrated in these two instances suggests to me that my original support for judicial conference appointment of a sentencing commission was ill advised, and my present inclination is to begin mounting a concrete effort to convince my colleagues of the wisdom of the administration's position on Presidential appointment of the sentencing commission.
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