The opinion of the court was delivered by: FRANKEL
OPINION AND ORDER ON APPEAL UNDER 18 U.S.C. § 3147
Four defendants appealing from a bail determination are charged with conspiring to explode bombs in a number of federal and other buildings in New York City. They seek review under 18 U.S.C. § 3147(a) of a commissioner's determination that they must post bail in amounts ranging from $100,000 to $300,000 as a condition of release pending further proceedings against them.
The objectives of the alleged conspiracy are, obviously, terrifying. The matter has generated considerable publicity and public concern, which the court, whether "judicially" or not, has inevitably noticed. In the circumstances, although the problem before the court calls for speedy resolution, it seems appropriate to make explicit at least the main factors affecting the decision. First, then, as to some first principles:
(1) While the charge is grave and alarming, the defendants are presumed to be innocent. The point must not be pressed to a logical extreme. Clearly, the very notion of bail entails the premise that an accusation is in itself a fact of legal consequence. Nevertheless, the presumption of innocence is basic among both the statutory and constitutional principles affecting bail.
(2) While we hear much these days of "preventive detention" (and the phrase has been hurled accusingly by defense counsel in the present case), there is no authority under existing law for confining defendants in noncapital cases prior to trial on the ground that they are likely to commit crimes other than the one already charged against them. Whatever some future Congress may do, the one that enacted the Bail Reform Act of 1966, by which we are now governed, made this plain beyond serious question.
(3) The task in setting conditions of release consists exclusively of ascertaining the least onerous conditions "which will reasonably assure the appearance of the person for trial * * *." 18 U.S.C. § 3146(a); see also Wood v. United States, 129 U.S.App.D.C. 143, 391 F.2d 981 (1968); Brown v. United States, 392 F.2d 189 (5th Cir. 1968); United States v. Erwing, 268 F. Supp. 879 (N.D.Cal.1967).
While the principles are quickly stated, their implementation calls for a compendious judgment upon an array of factors, none of which is neatly quantifiable, and all of which entail disconcerting elements of uncertainty, insufficient knowledge and risk. Thus, in normally hasty proceedings, on evidence which need not and cannot conform to the orthodox rules of admissibility, 18 U.S.C. § 3146(f), the judicial officer fixing conditions of release is instructed to "take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings." 18 U.S.C. § 3146(b). The complexities soon multiply in all but the simplest cases. So, to stop for only a single example, while "danger to any other person or to the community" (see note 2, supra) is not in itself a proper consideration for pretrial bail in a noncapital case, we doubt that a defendant's powerful disposition to incur further criminal liabilities could be ignored utterly in judging what will "reasonably assure" his appearance for trial.
"The Bail Reform Act creates a strong policy in favor of release on personal recognizance, and it is only if 'such a release would not reasonably assure the appearance of the person as required' that other conditions of release may be imposed." Wood v. United States, supra, 391 F.2d at 983. Those words, fairly characterizing the terms of the statute, seem to tell the whole story in terms of release - on selected conditions in progressive degrees of onerousness, but release on some conditions in any event. It does not seem to follow, however - it surely has not followed as a matter of actual practice - that the conditions for release before trial in noncapital cases must be such that every defendant will in fact be set free while awaiting trial. While the statute, § 3146(a), does not say this in so many words, it has been thought generally that there are cases in which no workable set of conditions can supply the requisite reasonable assurance of appearance for trial. To state the extreme case, which is not a hypothetical, the strong presumption favoring release may disappear for a defendant charged with a grave offense, with powerful evidence against him, who lacks family ties or employment or resources or any roots in the community, and is possessed of a poor record for fidelity to court engagements. Such a defendant may have to stay in jail pending a trial to be brought on with utmost possible speed.
The defendants now before the court have not in terms been denied all possibility of release pending trial. They are to be freed, the commissioner has held, upon the posting of bail bonds of from $100,000 to $300,000, the new amounts proposed by the United States Attorney on November 14 in lieu of the $500,000 across the board proposed by him and accepted by the commissioner the day before.
But it is apparent that in this instance, as in many others familiar to all of us, the statement of the astronomical numbers is not meant to be literally significant. It is a mildly cynical but wholly undeceptive fiction, meaning to everyone "no bail." There is, on the evidence adduced, no possibility that any of these defendants will achieve release by posting bond in anything like the amount which has been set.
According to the government's affidavit, the defendant Melville, for whom the highest figure is asked, is unemployed; his last employment as a designer of engineering systems, ended a year ago. He lives in a Manhattan apartment in a depressed area, paying a rental of $30 a month. He is separated from a wife with whom he has an 8-year-old son, and is said to be in default on support obligations. It seems clear that $300,000 is effectively as meaningless a figure for him as was $500,000. And the government, as in the cases of the other three defendants, has been unable, after earnest inquiry from the court, to explain on any relevant basis what prompted it to change the recommendation by $200,000.
The court has reviewed, similarly, the facts about the other three defendants and the figures set for them - Demmerle $200,000, Hughey $150,000, and Alpert $100,000. While the details differ, a comparable conclusion is compelled by the facts as they now appear: it is overwhelmingly likely that none of them can approach anything close to the amount of bail prescribed for his release.
While that conclusion, like all the gravest ones in court, is not a mathematical certainty, it is a solidly based working hypothesis. It becomes material, then, to ask whether these defendants, or any of them, are of such character that release should simply and candidly be denied until they have been tried. Cf. Russell v. United States, 131 U.S. App. D.C. 44, 402 F.2d 185, 186 (D.C. Cir. 1968). Before that question could be answered affirmatively, assuming (as the court does) that such an answer is sometimes necessary and within the court's power, it would have to be shown that there was no combination of possibly workable conditions that could "reasonably assure * * * appearance." By referring to some "combination of possibly workable conditions," the court means to be hedging somewhat. The phrase is not intended necessarily to signify conditions the defendants could surely meet. It is meant to imply a demanding judicial duty to experiment with conditions that at least may prove possible, and to settle upon impossible conditions - i.e., deny bail - only if experimentation discloses this to be the only acceptable course.
Taking this formulation as a guide for now, the court concludes that the commissioner's order cannot stand because it amounts practically to a denial of release conditions in a case where justification for this extreme result is not established. Lesser conditions, if they are met, will undoubtedly be attended with risk. On the other hand, there is no certainty that any of the defendants can meet the amended conditions the court will now order. But both kinds of potential discomfiture inhere in the recurrent agony of hard decisions under the Bail Reform Act. It is some consolation that, as has been noted, no such decision need be absolutely final.
Proceeding from these generalities, the court recalls again that the pending charge is a serious one, though its five-year maximum term is by no means in the highest range of those on which the court sets moderate bail, or allows release on personal recognizance, every day. The evidence (as the prosecution describes it) is seemingly substantial in the cases of two defendants (Melville and Demmerle), far less against the other two (Hughey and Alpert).
None of the defendants has an impressive employment record. None seems deeply rooted, but all have ties of consequence and reasonable length to New York City - Demmerle and Alpert apparently for all their lives, Hughey for the last three to five of his 22 years, Melville for the last 14 years. Some or all appear to be "protesters," at war with the established order and powers, tending toward lawless acts reflecting such outlooks, but not otherwise prone to the more standard varieties of conduct known to the criminal courts. Since none of them has a record of major crime, none has established major "credit" of the kind pertinent under 18 U.S.C. § 3146(b) in its reference to ...