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REFORM  OF  THE  FEDERAL  CRIMINAL  LAWS 


HEARING 

BEFORE  THE 

SUBCOMMITTEE  ON 
CEIMINAL  LAWS  AND  PROCEDURES 

OF  THE 

COMMITTEE  ON  THE  JUDICIARY 
UNITED  STATES  SENATE 

NINETY-FIFTH  CONGRESS 

riBST  SESSION  - 

""  f 

S.  1437  I 

AND  fl 

S.  31,  S. 45,  S.  181,  S. 204,  S. 260,  S.  888,  S.  979,  and' 

S.  1221 


JUNE  7,  8,  9,  20,  AND  21,  1977 


PART  XIII 

[Sentencing  and  general  codification] 


Printed  for  the  use  of  the  Committee  on  the  Judiciary 


FRANK!  TV  py^opr  y  ^.y  CENTEP 

Concof J  =  hire   03  301 

ON  DEPOSIT    "I'  M 


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Public  Libraiy 
,MA  Q2116 


REFORM  OF  THE  FEDERAL  CRIMINAL  LAWS 


HEARING 

BEFORE  THE 

SUBCOMMITTEE  ON 
CEIMINAL  LAWS  AND  PEOCEDUEES 

OF  THE 

COMMITTEE  ON  THE  JUDICIARY 

UNITED  STATES  SENATE 

NINETY-FIFTH  CONGRESS 

FIRST  SESSION 
ON 

S.  1437 

AND 

S.  31,  S.  45,  S.  181,  S.  204,  S.  260,  S.  888,  S.  979,  and 

S.  1221 


JUNE  7,  8,  9,  20,  AND  21,  1977 


PART  XIII 

[Sentencing  and  general  codification] 


Printed  for  the  use  of  the  Committee  on  the  Judiciary 


U.S.  GOVERNMENT  PRINTING  OFFICE 
92-465  WASHINGTON  :   1977 


COMMITTEE  ON  THE  JUDICIARY 
JAMBS  O.  EASTLAND,  Mississippi,  Ohairman 


JOHN  L.  McCLELLAN,  Arkansas 
EDWARD  M.  KENNEDY,  Massachusetts 
BIRCH  BAYH,  Indiana 
ROBERT  C.  BYRD,  West  Virginia 
JAMES  ABOUREZK,  South  Dakota 
JAMES  B.  ALLEN,  Alabama 
JOSEPH  R.  BIDEN,  Jr.,  Delaware 
JOHN  C.  CULVER,  Iowa 
HOWARD  M.  METZENBAUM,  Ohio 
DENNIS  DE  CONCINL  Arizona 


STROM  THURMOND,  South  Carolina 
CHARLES  McC.  MATHIAS,  JR.,  Maryland 
WILLIAM  L.  SCOTT,  Virginia 
PAUL  LAXALT,  Nevada 
ORRIN  G.  HATCH,  Utah 
MALCOLM  WALLOP,  Wyoming 


SXTBCOMMITTEE   ON   CeIMINAL   LAWS   AND   PeOCEDUBES 
JOHN  L.  McCLELLAN,  Arkansas,  Chairman 
JAMES  O.  EASTLAND,  Mississippi  STROM  THURMOND,  South  Carolina 

EDWARD  M.  KENNEDY,  Massachusetts  ORRIN  G.  HATCH,  Utah 

Padl  C.  Sdmmitt,  Chief  Counsel 
D.  Eric  Hdltman,  Minority  Counsel 


(H) 


CONTENTS 

Hearings  held  on — 

Part  I  Page 

February  10,  1971 1 

Part  II — State  Experience 

May  24,  1971 51» 

May  25,  1971 587 

September  24,  1971 683 

Part  III — Subpart  A — Policy  Questions 

February  15,  1972 923- 

February  16,  1973 1023 

February  17,  1973 1166 

Part  III — Subpart  B — Policy  Questions 

March  21,  1972 1393" 

March  22,  1972 1537 

March  23,  1973 1631 

Part  III — Subpart  C — Policy  Questions 

(Comparative  Law) 

March  21,  1972 . 1837 

Part  III — Subpart  D — Policy  Questions 

May  23,  1972 2989 

May  24,  1972 3155 

May  25,  1972 3195 

Part  IV 
Appendix 3573- 

Part  V— S.  1,  S.  716,  S.  1400,  and  S.  1401 
(Death  Penalty — Appellate  Review  of  Sentencing) 

April  16,  1973 4205 

Part  VI— S.  1,  S.  716,  and  S.   1400 

(National  Security,  Rules  of  Criminal  Procedure,  Antitrust, 
Abortion,  and  Appellate  Review  of  Sentencing) 

May  2,  3,  and  23,  1973 5427 

Part  VII— S.  1  and  S.  1400 

(National  security,  general  codification,  Indian  law,  capital 
punishment,  obscenity,  and  Federal-State  jurisdiction) 

June  8,  12,  13,  and  14,  1973 5687 

(III) 


IV 

Part  VIII— S.  1  and  S.  1400 

(Tax  law,  insanity  defense,  firearms,  and  obscenity) 

Page 
July  18  and  19,  1973 6325 

Part  IX— S.  1  and  S.  1400 

(General  codification  and  provisions  relating  to  abortion,  business  law, 
civil  rights,  death  penalty,  elections,  Indian  law,  insanity  defense,  and 
sentencing) 

July  25,  26  and  September  27,  1973 6479 

Part  X— S.  1  and  S.  1400 

(Provisions  relating  to  attempt,  complicity,  conspiracy,  drugs,  government 
operations,  insanitj^   intoxication,  jurisdiction,   national   security,   ob- 
••  scenity  and  offenses  against  the  person) 

May  9,  15,  16,  and  30,  1974 6805 

Part  XI— S.  1  and  S.  1400 

(Civil  rights  offenses,  corporate  and  business  offenses,  public  duty  offences 

sentencing  and  other  provisions) 
Hearings  held  on — 

June  13,  17,  19,  22,  1974 7673 

Part  XII— S.  1 

(Jurisdiction  over  Indian  reservations,  national  security,  and  sentencing 

provisions) 
Hearings  held  on — 

April  17,  1975 1 

April  18,  1975 149 

Part  XIII— S.  1437  and  S.  31,  S.  45,  S.  181,  S.  204,  S.  260,  S.  888,  S.  979,  and 

S.   1221 

(Sentencing  and  general  codification) 
Hearings  held  on — - 

June  7,  1977 8575 

June  8,  1977 8869 

June  9,  1977 8937 

June  20,  1977 8987 

June  21,  1977 9109 

Statement  of: 

Agne\\\  Ms.  Marian 9179 

Bell,  Hon.  Griffin  B.,  the  Attorney  General  of  the  United  States 8593 

Bentsen,  Hon.  Lloyd,  a  U.S.  Senator  from  the  State  of  Texas 8580 

Blakey,  Prof.  G.  Robert,  School  of  Law,  Cornell  University,  Ithaca, 

N.Y 8612 

Brown,  Hon.  Edmund   G.,  former  Chairman,  National  Commission 

on  Ilofnrm  of  the  Federal  Criminal  Laws,  Beverly  Hills,  Calif 8600 

Carlson,  Norman  A.,  Director,  Bureau  of  Prisons 8880 

Cloary,  John  J.,  executive  director,  Fedoral  Defenders  of  San  Diego, 

Inc.,  on  behalf  of  the  National  Legal  Aid  &  Defender  Association..  9132 

Crawford,  Curtis,  Acting  Chairman,  U.S.  Parole  Commission 9018 

Criaman,  Ms.  Nancy,  National  Prison  Project,  American  Civil  Liber- 
ties Union 9058 

Dershowitz,  Prof.  Alan,  Harvard  Law  School 9042 

Domenici,  Hon.  Pete,  a  U.S.  Senator  from  the  State  of  New  Mexico..  8583 
Emerson,  Prof.  Thomas  I.,  Yale  of  School  of  Law,  on  behalf  of  the 

National  Committee  Agninst  Repressive  Legislation 9109 

Frankel,  Hon.  Marvin  E.,  U.S.  district  judge  in  the  southern  district 

of  New  York 8870 


Statement  of — Continued 

Gainer,    Ronald,    Acting   Assistant   Attorney    General  for  Improve-     F&ge- 

ments  in  Criminal  Justice,  Department  of  Justice 8995 

Gottfredson,    Don   M.,   dean,    School   of   Criminal   Justice,    Rutgers 

University 8927 

Harris,  Ms.  Marilyn  K.,  coordinator,  on  behalf  of  the  National  Mora- 
torium on  Prison  Construction 9123 

Hart,  Hon.  Gary,  a  U.S.  Senator  from  the  State  of  Colorado S.'iS? 

Holmes,  Julian  C 9183 

Hoffman,  Peter  B.,  Director  of  Research,  U.S.  Parole  Commission...     9018 
Hruska,  Hon.  Roman  L.,  a  former  U.S.  Senator  from  the  State  of 

Nebraska 8987 

Javits,  Hon.  Jacob  K.,  a  U.S.  Senator  from  the  State  of  New  York 8591 

Koffsky,  Harold  D.,  consultant  to  the  Committee  on  the  Administra- 
tion of  the  Criminal  Law,  Judicial  Conference 8937 

Kokinda,  Ms.  Susan,  U.S.  Labor  Party 9172 

Landau,   Jack,   director,   Reporters   Committee  on  Freedom  of  the 

Press 914S 

Lasker,  Hon.  Morris  E.,  judge,  U.S.  District  Court,  Southern  District 

of  New  York 8967 

Lowenstein,  Roger,  Federal  Public  Defender,  Newark,  N.J.,  on  behalf 

of  the  National  Legal  Aid  &  Defender  Association 9144 

Mackey,    Rev.    Virginia,    chairperson,    National    Interreligion    Task 

Force  on  Criminal  Justice 9168 

Neier,  Aryeh,  executive  director,  American  Civil  Liberties  Union..  8985,  9058 

O'Donnell,  Pierce,  attorney  at  law,  Washington,  D.C 8894 

Schwartz,  Louis  B.,  former  Director,  National  Commission  on  Reform 

of  the  Federal  Criminal  Laws 8605 

Shattuck,  John  H.  F.,  director,   Washington  office,  American  Civil 

Liberties  Union 8985,  905» 

Tjoflat,  Hon.  Gerald  B.,  judge,  U.S.  Court  of  Appeals,  Fifth  Circuit-     893^ 
Tyler,   Hon.   Harold   R.,    Chairman,   Advisory   Corrections   Council, 

Judicial  Conference 8959 

van  den  Haag,  Prof.  Ernest,  adjunct  professor  of  law.  New  York  Law 

School 8915 

von  Hirsch,  Andrew,  School  of  Criminal  Justice,  Rutgers  University.     8977 
Ward,  Benjamin,  commissioner.  Department  of  Correctional  Services, 

State  of  New  York 9091 

Webster,  Hon.   William  H.,  judge,   U.S.   Court  of  Appeals,   Eighth 

Circuit 8952 

Statement  submitted  by: 

Alschuler,  Prof.  Albert  W.,  University  of  Colorado  at  Boulder,  letter 

of  June  30,  1977 9432 

American    Bar    Association,    report    with    recommendations    to    the 

Criminal  Justice  Section  Council  from  the  Committee  on  Criminal 

Code  Revision,  August  1977 9410 

American  Library  Association 9416 

Associated  Builders  &  Contractors,  Inc 9446 

Association  of  American  Publishers,  re  section  1842 9346 

Beaudin,  Bruce  D.,  Director,  District  of  Columbia  Bail  Agency,  letter 

of  June  1,  1977 9415 

Bennett,  James  V.,  former  Director,  U.S.  Bureau  of  Prisons 9269 

Blalock,  Ira,  chairman,  Oregon  State  Board  of  Parole,  letter  of  July 

7,  1977 9304 

Brooks,  Walter  O.,  Director,  Employment  Security  Agency,  Georgia 

Department  of  Labor 9266 

Burkoflf,  Prof.  John  M.,  School  of  Law,  University  of  Pittsburgh 9413 

Citizens  Commission  on  Human  Rights,  Washington,  D.C 9454 

Citizens   Committee  for  a  Just  Criminal  Code,  by  Shelvin  Singer, 

chairperson 9430' 

Cox,  Archibald,  Harvard  Law  School,  letter  of  January  7,  1977,  to 

Senator  Philip  A.  Hart 9414 

Crystal,  Daniel,  East  Orange,  N.J 936& 

Ellsworth,  Larry  P.,  Freedom  of  Information  Clearing  House 9263 

Freedom  of  Information  Clearing  House,  Larry  P.  Ellsworth 9263 

Givens,   Richard  A.,   chairman,   Committee  on  Federal  Legislation, 

New  York  County  Lawyers'  Association 9266 


VI 

statement  pubmittcd  by — Continued  Page 

Greenhalgh,  William  VV.,  ABA  Committee  on  Criminal  Code  Revision.     9410 

Ilallcck,  lion.  Charles  W.,  letter  of  July  12,  1977 9348 

-Hanson,  Arthur  B.,  general  counsel,  American  Newspapers  Publishers 

Association,  letter  of  June  21,  1977 9168 

Hickev,  J.  Patrick,  Director,  Public  Defender  Service  for  the  District 

of  Columbia 9422 

Hoffman,  Peter  B.,  Director  of  Research,  U.S.  Parole  Commission, 
Judge  Morris  E.  Lasker;  and  Professors  Wilkins,  Newman,  Tonry, 

von  Hirsch,  Zimring,  and  Gottfredson,  letter  of  July  13,  1977 9246 

Hyland,  William  F.,  attorney  general,  State  of  New  Jersej^,  letter  of 
June  16,  1977,  and  a  resolution  adojoted  by  the  National  Association 

of  State  Attorneys  General 9421 

Imlay,  Carl  H.,  General  Counsel,  Administrative  Office  of  the  United 

States  Court,  letter  of  March  31,  1977  to  Senator  McClellan 9244 

Kastenmeier,  Hon.  Robert  W.;  Hon.  Don  Edwards;  and  Hon.  Abner 

Mikva,  letter  of  June  21,  1976,  to  Senator  Kennedy 9241 

King,  Glenn,  executive  director,  International  Association  of  Chiefs 

of  Police  (lACP) 9447 

Lallv,  Msgr.  Francis  J.,  secretary.  Department  of  Social  Development 

&  World  Peace,  United  Catholic  Conference,  letter  of  July  13,  1977 __     9341 
Miskin,  Paul  J.,  professor.  Harvard  Law  School,  letter  of  December 

1975 9413 

Monohan,  John.,  professor,  Harvard  Law  School 9418 

Morris,  Prof.  Norval,  Law  School,  University  of  Chicago,  letter  of 

June  20,  1977 9267,  9306 

Parker,  Commissioner  Dorothy,  U.S.  Parole  Commission 9028 

Reed,  George  J.,  Chairman,  National  Appeals  Board,  U.S.  Parole 
Commission,    letter    of   June   21,    1977,    and   speech   presented   at 

Houghton  College  on  March  16,  1977 9037 

Rector,  Milton  G.,  president.  National  Council  on  Crime  &  De- 
linquency, mailgram  of  July  14,  1977 9345 

Thornburgh,  Richard  L.,  Assistant  Attorney  General,  Criminal 
Division,  Department  of  Justice,  letter  of  February  19,   1977,   to 

Senator  McClellan 9240 

Singer,  vShelvin,  the  Citizens  Committee  for  a  Just  Criminal   Code 9430 

Tvson,  Airs.  C  J.,  corrcspt)ndence  secretary.  Eureka  Spiings,  Ark., 

Vomens   club,   letter  of    May   20,    1977 9269 

United  States  Catholic  Conference 9341 

Utter,  Hon.  Robert  F.,  justice,  supreme  court,  State  of  Washington.     9271 

Wales,  Prof.  Ileathcote  \\\,  W^ashington,  D.C 9247 

Wilkins,  Prof.  Leslie  T.,  State  University  of  New  York,  Albany 9263 

Women's  International  League  for  Peace  &  Freedom,  Cottage  Grove, 

Oregon  Branch 9410 

Zirpoli,  Hon.  Alphonso,  judge,  U.S.  district  court,  northern  district  of 

California 8938 

Exhil  )it  s : 

Bell,  Hon.  Griffin  B.,  Attorney  General  of  the  United  States,  letter  of 
June  23,  1977,  from  Senator  McClellan  requesting  the  Attorney 
General's  comments  on  the  testimony  of  the  American  Civil  Liber- 
ties Union  and  the  Reporters'  Committee  for  Freedom  of  the  Press, 

and  the  n^ijly  from  the  Attorney  General 9229 

Jircsolin  v.  Morris,  86  Wm.  2d  241,  543  P.  2d  325  (1975) 9276 

lirawii  v.  Carlson,  75-C-493,  decided  May  6,  1977  (W.l).  Wis.) 9432 

Bureau  of  Prison's  memoranflum  of  June  14,  1977,  to  Office  of  Legis- 
lative Affairs,  Department  of  Justice 8890 

Carlson,  Norman  A.,  Director,  Bureau  of  Prisons,  letter  of  June  24, 

1977 8893 

Consumer  protection  anrl  recent  versions  of  the  proposed  new 
Federal  criminal  code,  27  record  of  the  Association  of  the  Bar  of 

^^  the  City  of  New  York,  January/FolM-uary  1077 9429 

"Dark  Doings  Among  the  Judges,"  John  P.  MacKenzie 9408 

(The)  Iiiiiiact  of  the  Federal  Courts  of  Isnactment  of  the  Proposed 
Criminal  Code,  memorandum  of  the  Department  of  Justice,  Febru- 
ary 10,  1977 9195 


"i 


VII 

Exhibits — Continued  Page 
Kennedy,  Hon.  Edward  M.,  remarks  upon  introduction  of  S.  1487___     9478 
McClellan,  Hon.  John  L.,  remarks  upon  his  introduction  of  S.   1437__     9466 
"Prisons:  A  Retreat  from  Rehabilitation,"  John  Monahan,  Los  Ange- 
les Times 9419 

Prisons:  "A  Wary  Verdict  of  Rehabilitation,"  the  Washington  Post__     9420 
"Punishment,  Desert,  and  Rehabilitation,"  Bicentennial  lecture  series 
sponsored  Ijy  the  Department  of  Justice,  presented  by  Prof.  Norval 

Morris I 9306 

Resolution  by  the  National  Association  of  Attorneys  General ""     9421 

"Save  Parole  Supervision,"  Robert  Martinson  and  Judith  Wilks,  Fed- 
eral Probation,  September    1977 9257 

'Sentencing  Reform:  The  Probable  Effect  on  the  Federal  Criminal 
Justice  System  of  Abohtion  of  Indeterminate  Sentences  and  Parole 
in  the  Context  of  a  Sentencing  Guidelines  System,"  memorandum 

by  the  Department  of  Justice 9200 

Text  of— 

S.  31 9793 

2.  45 9795 

S.  181 ~   ""  97Q7 

2.204 ::::::::::::::::::::::::  9813 

S.  260 _  __  9833 

I"  Q?Q "i::::::::::::::  9842 

si4?7 ^^^"^ 

b.   1437 9435 

United  States  v.  Williams,  Crim.  No.  35771-73,  Superior  Court  of  the 

District  of  Columbia 9349 

Zimring,  Franklin  E.,  "A  Consumer's  Guide  to" Sentencing  Reform- 
Making  the  Punishment  Fit   the  Crime" _       9423 


REFORM  OF  THE  FEDERAL  CRIMINAL  LAWS 


TUESDAY,  JUNE  7,  1977 

U.S.  Senate, 
Subcommittee  on  Criminal  Laws  and  Procedures 

OF  TiiE  Committee  on  the  Judiciary, 

Washington^  D.C. 

The  subcommittee  met,  pursuant  to  notice,  at  9 :05  a.m.,  in  room 
2228,  Dirksen  Senate  Office  Building,  Senator  Edward  M.  Kennedy 
[acting  chairaian  of  the  subcommittee]  presiding. 

Present :  Senators  Kennedy,  Thurmond,  and  Hatch. 

Staff  present :  Paul  C.  Summitt,  chief  counsel ;  D.  Eric  Hiiltman, 
minority  counsel;  Paul  H.  Robinson,  counsel;  Kenneth  Femberg, 
counsel  to  Senator  Kennedy;  and  Mabel  A.  Downey,  chief  clerk. 

Senator  Ivennedy  [acting  chairman].  The  committee  will  come  to 
order. 

At  this  point  I  will  place  in  the  record  the  statement  of  Senator 
McClellan,  the  chairman  of  the  subcommittee,  who  is  unable  to  be  with 
us  today. 

OPENING  STATEMENT  OF  CHAIRMAN  JOHN  L.  McCIELLAN 

Senator  McClellan.  Today  we  start  another  phase,  and  hopefully 
the  final  one,  in  the  effort  to  enact  a  modern  Federal  Criminal  Code. 
On  I^Iav  2,  1977,  I  introduced,  with  Senator  Kennedy  as  a  cosponsor, 
S.  1437;^  a  bill  to  codify,  revise,  and  reform  title  18  of  the  United  States 
Code,  and  for  other  purposes.  Today  we  begin  hearings  on  that  bill. 

The  Federal  Criminal  Code  reform  effort  formally  began  on  Novem- 
ber 8,  1966,  when  Congress  established  the  National  Commission  on 
Reform  of  the  Federal  Criminal  Laws.  Much  of  S.  1437  can  trace  its 
heritage  to  the  final  report  of  that  Commission,  called  the  "Brown 
Commission"  after  its  distinguished  Chairman,  former  Governor  of 
California,  Edmund  G.  "Pat"  Brown.  It  is  particularly  appropriate, 
therefore,  that  we  are  honored  today  with  the  presence  of  Governor 
Brown.  We  are  also  pleased  to  have  as  witnesses  the  Staff  Director  of 
the  Commission,  Prof.  Louis  Schwartz,  and  a  consultant  to  the  Com- 
mission. Prof.  Robert  Blakey. 

The  Commission's  work  and  final  report  have  served  as  a  work 
basis  for  legislative  reform  efforts.  Within  a  month  or  two  after  their 
report,  the  subcommittee  opened  the  first  of  a  4-year  series  of  hearings 
on  the  Brown  Commission  work  and  on  the  whole  question  of  criminal 
law  codification  and  reform. 

During  the  course  of  those  hearings,  testimony  was  received  from 
judges,  lawyers,  bar  associations,  and  from  private  citizens  and  groups 

(8575) 


8576 

of  eveiy  political  pei-suasion  and  point  of  view  culminating  in  over 
8,500  pages  of  testimony  and  exhibits  in  15  volumes  of  printed 
hearings. 

After  several  preliminary  drafts  were  studied  and  analyzed,  the 
Criminal  Justice  Reform  Act  of  1975  evolved  and  was  introduced  by 
me  on  JanuaiT  15,  1975,  with  10  cosponsors.  It  midertook  to  incorpo- 
rate the  best  of  the  earlier  Aversions  and  the  recommendations  made  by 
those  who  submitted  their  views  to  the  subcommittee. 

Obviously,  a  bill  of  that  nature,  covering  the  whole  spectrum  of 
criminal  law,  could  hardly  be  expected  to  receive  imanimous  accept- 
ance and  approval.  It  was  not  primarily  drafted  to  please,  nor  did  it 
reflect,  the  exclusive  views,  conclusions,  or  judgments  of  any  one  per- 
son— not  of  myself,  or  of  any  other  individual  Senator.  We  have  al- 
ways known  that  there  would  be  honest  differences  of  opinion  about 
some  of  its  provisions,  and,  in  the  spirit  of  compromise,  that  conces- 
sions, and  accommodations  would  have  to  be  made  in  order  to  achieve 
the  goal  of  criminal  law  reform  earnestly  sought  by  so  many  for  so 
long.  With  this  objective  and  in  this  spirit  of  compromise.  Senator 
Kennedy,  the  administration — particularly  Attorney  General  Bell 
and  his  staff — and  I,  working  from  the  compromise  suggested  last 
Congress  by  Senator  Hruska  and  mj'self ,  have  produced  the  bill  now 
before  us. 

Given  his  important  help  in  this  effort,  we  are  particularly  pleased 
that  Attorney  General  Bell  is  able  to  appear  before  the  subcommittee 
today. 

While  most  of  the  issues  in  S.  1437  have  been  examined  at  great 
length  and  in  great  detail  during  the  extensive  hearings  on  previous 
code  reform  bills,  the  sentencing  system  in  the  bill  is  significantly  dif- 
ferent from  past  bills.  It  adopts  the  use  of  sentencing  guidelines  and 
creates  the  potential  for  more  determinant  sentencing.  It  may  be  use- 
ful to  insert  in  the  record  at  this  point  a  brief  summary  of  the  provi- 
sions of  the  proposed  sentencing  system. 

[The  summary  follows :] 

Criminal  Code  Reform  Act  of  1977 — Sentencing  System 

The  major  reforms  proposed  in  the  senteneing  area  include  adoption  of  a  sen- 
tencing guideline  system  and  a  partial  move  toward  determinant  sentencing. 

Tlie  bill  would  create  a  Sentencing  Commission  and  direct  it  to  establish  guide- 
lines to  govern  the  imposition  of  sentences  for  all  federal  offenses,  taking  into 
consideration  factors  relating  to  tlic  purposes  of  sentencing,  the  characteristics 
of  tlie  olTender,  and  tlie  aggravating  and  mitigating  circumstances  of  the  offense. 
If  a  .iudge  considered  the  guideline  ran,ge  inappropriate  for  a  particular  case  he 
would  be  free  to  sentence  above  or  below  the  guideline  range  as  long  as  he  ex- 
plained his  reasons  for  doing  so.  Tf  an  offender  wore  sentenced  aiiove  tlie  range 
specified  in  tlie  guidelines  he  would  be  able  to  obtain  appellate  review  of  his  sen- 
tence;  if  he  were  sentenced  below  tlie  range  specified  in  the  guidelines  the  gov- 
ernment would  be  able  to  obtain  appellate  review  of  the  sentence.  In  addition  to 
the  guidelines,  the  Commission  would  be  autliorized  to  promulgate  policy  state- 
ments touching  on  many  otlier  aspects  of  sentencing,  including  the  proper  use  of 
the  guidelines. 

A  .iudge  would  be  authorized  to  specify  a  term  during  which  tlie  offender  would 
I>e  ineligible  for  parole,  but  snich  a  term  could  not  extend  into  the  last  tenth  of 
the  sentence  imposed.  Guidelines  for  the  iniiiosition  of  terms  of  parole  ineligibil- 
ity would  l)e  promulgated  by  tlie  Sentencing  Commission.  The  Parole  Commis- 
sion and  all  recent  reforms  to  the  parole  system  would  be  retained.  Maximum 
authorized  terms  of  imprisonniont  would  lie  modestly  reduced. 


8577 

The  Sentencing  Commission  is  proposed  to  be  a  permanent  body  which  is  a 
part  of  the  Judicial  Brancli.  Its  members  wonld  be  appointed  by  tlie  Judicial 
Conference  for  fixed,  staggered  terms,  and  tliere  would  be  no  restrictions  on  who 
may  be  appointed  a  member.  Guidelines  promulgated  by  the  Commission  would 
become  efiiective  within  ISO  days  unless  vetoed  by  Congre.ss  before  that  time. 

Other  revisions  include  such  things  as  the  explicit  recognition  and  statement 
of  the  purposes  of  sentencing  (deterrence,  protection  of  the  public,  assurance  of 
just  punishment,  and  rehabilitation).  The  maximum  authorized  fines  are  sub- 
stantially increased;  the  special  statutory  provisions  of  current  law  for  special 
dangerous  offenders,  youth  offenders,  and  narcotics  offenders  are  eliminated  un- 
der the  theory  that  the  Sentencing  Commission  giiidelines  and  policy  statements 
can  better  provide  appi'opriate  sentencing  in  these  cases ;  a  provision  is  added  to- 
require  notice  to  fraud  victims  in  order  to  facilitate  class  actions  for  recovery^ 
of  losses ;  a  provision  is  added  which  permits  an  order  of  restitution  to  be  part 
of  any  sentence;  and  the  death  penalty  provisions  are  eliminated  (except  for 
the  existing  death  penalty  for  aircraft  hijacking  which  Is  retained  in  title  49' 
of  the  United  States  Code).  Each  offense  in  the  Code  is  described  as  a  certain 
grade  of  felony  or  misdemeanor,  or  as  an  infraction,  a  shorthand  method,  used' 
in  most  modern  state  codes,  of  referring  to  the  sentencing  provisions  which  apply 
to  the  offense. 

Senator  McClellan.  The  importance  of  the  sentencino;  provisions 
and  recent  chano;ps  and  advances  in  the  philosophy  and  procedures  for 
sentencino;  criminal  offendei"s  make  it  imperative  that  this  subcommit- 
tee draw  upon  the  expertise  of  authorities  in  the  area  to  consider  all 
aspects  of  the  proposed  sentencins:  reform. 

In  that  respect  this  series  of  hearings  will  be  historic.  At  a  time 
when  the  need  for  some  sentencing  reform  is  apparent  to  all,  and 
when  many  jurisdictions  are  considering  refomi,  we  will  have  the 
benefit  of  perhaps  the  most  distinguished  and  com]:)rehensive  group 
of  witnesses  in  the  sentencing  area  ever  assembled.  Already  scheduled 
to  appear  on  the  matter  of  sentencing  reform  are  such  noted  authori- 
ties as:  Judge  Marvin  E,  Frankel,  a  Federal  district  court  judge  who 
is  daily  engaged  in  the  sentencing  business  and  is  author  of  the  book 
"Criminal  Sentences:  Law  Without  Order";  Prof.  Ernest  van  den 
Haag,  a  practicing  psychiatrist  and  author  of  the  book  "Punishing 
Criminals";  Mr.  Andrew  von  Hirsch,  author  of  the  Report  of  tJie 
Committee  for  the  Study  of  Incarceration,  published  as  a  book  en- 
titled  "Doing  Justice:   The   Choice  of  Punishments";   Mr.   Pierce 
O'Donnell,  a  practicing  attorney  and  author  of  the  book  "Toward  a 
Just  and  Effective  Sentencing  System";  IMr.  Ronald  L.  Gainer.  Act- 
ing Assistant  Attorney  General  of  the  Office  for  Improvements  in  the 
xidministration  of  Justice;   Mr.  Norman  A.   Carlson,  Director  of 
the    U.S.    Bureau    of    Prisons;    Judge    Harold    R.    Tyler,    former 
Deputy  Attorney  General  and  now  a  practicing  attorney  who  is  Chair- 
man of  the  Advisory  Corrections  Council  (a  body  established  by  IS 
U.S.C.  5002) ;  Judge  Gerald  B.  Tjoflat,  Chairman  of  the  Judicial  Con- 
ference Committee  on  the  Administration  of  the  Pi'obation  System; 
Judge  Alfonso  J.  Zirpoli,  Chairman  of  the  Judicial  Conference  Com- 
mittee on  the  Administration  of  the  Criminal  Law;  Mr.  Harold  D. 
Koffsky,  consultant  to  that  committee;  Judge  William  H.  Webster 
of  tlie  Judicial  Conference  Advisorv^  Committee  on  Criminal  Rules; 
Judge  ]\Iorris  E.  Lasker  of  the  Southern  District  of  New  York;  and 
Dean  Don  M.  Gottfredson,  Dean  of  the  Rutgers  School  of  Criminal 
Justice  and  codirector  of  the  Criminal  Justice  Research  Center  in 
Albany,  N.Y..  which  has  done  much  significant  research  on  sentencing 
guidelines  and  their  feasibility. 


8578 

Tliese  gentlemen  will  appear  before  this  subcommittee  tomorrow 
and  the  next  day,  June  8  and  9.  At  a  later  date  we  hope  to  hear  from 
the  U.S.  Parole  Commission;  Prof.  Alan  M.  Dershowitz,  author  of  the 
report  of  the  Twentieth  Century  Fund  Task  Force  on  Criminal  Sen- 
tencino;,  published  as  a  book  entitled  ''Fair  and  Certain  Punishment"; 
Dean  Xorval  INIorris  of  the  University  of  Chicago  Law  School,  author 
of  the  book  "The  Future  of  Imprisonment" ;  Prof.  James  Q.  "Wilson, 
author  of  "Thinking  About  Crime" ;  and  others. 

"With  this  diverse  group  of  distinguished  authorities,  I  believe  that 
the  record  we  will  produce  here  will  serve  as  a  classic  source  of  in- 
valuable information  and  expertise  on  sentencing  reform,  a  record 
which  will  serve  all  legislatures  that  may  undertake  such  a  challenge. 

While  today's  hearing  will  concern  an  overview  of  the  Federal 
Criminal  Code  reform  effort,  with  tomorrow's  hearing  begiiming  the 
series  on  sentencing  reform,  we  are  pleased  to  begin  today's  hearing 
Avith  the  appearance  of  three  of  my  distinguished  colleagues — Sena- 
tors Bentson,  Domenici,  and  Hart — who,  as  authors  of  sentencing  bills 
now  before  this  subcommittee,  have  a  special  interest  in  effective  sen- 
tencins:  reform. 


'fe 


Senator  Kexnedy.  We  open  hearings  this  morning  on  S.  1437,  the 
rocodihcation  of  the  Criminal  Code,  introduced  by  the  chairman  of 
this  committee,  Senator  John  INIcClellan  and  myself. 

We  commence  these  hearings  with  the  high  hope  that  we  Avill  be  able 
to  meet  our  responsibilities  to  the  American  people  and  finally  succeed 
in  recodifying  the  Federal  Criminal  Code. 

There  is  no  question  that  the  Criminal  Code,  which  has  not  been  co- 
dified since  the  earliest  days  of  this  Republic  is  in  dire  need  of  codi- 
fication. We  see  various  criminal  laws  scattered  throughout  50  titles, 
with  endless  differences  and  degrees  of  culpability.  We  have  a  criminal 
justice  system  which  breeds  inequity  and  unfairness;  and,  in  many  in- 
stances, we  see  a  Criminal  Code  which  allows  those  involved  in  the 
criminal  justice  system  to  effectively  play  the  odds  and  avoid  the  sure 
and  fair  judgment  of  our  criminal  justice  system. 

It  has  been  most  unfortunate  that,  even  though  the  issue  of  crime 
rouses  groat  interest  among  the  American  people,  it  has  been  tied  up 
with  the  political  sloganeering  and  shibboleths  of  the  past  decade. 

This  country  is  facing  an  energy  crisis.  We  cannot  see  a  day  go  by 
when  there  is  not  a  healthy  debate  and  discussion  on  wliat  the  Con- 
gress, what  the  Executive,  what  local  communities  and  local  govern- 
ment subdivisions  can  do  about  the  problem. 

But  Avhen  it  comes  to  crime,  we  have  silence.  We  have  waited  too 
lonjr  to  address  wliat  I  consider  to  lie  tho  n^ost  im])ortant  Criminal 
Code  improvement  effort  in  the  historv  of  this  country.  I  am  hopeful 
that  during  the  course  of  these  hearings  we  can  eliminate  the  slo- 
ganeering of  the  past  and  couie  to  grips  with  the  essential  challenge 
of  effective  criminal  justice  in  our  society. 

One  of  the  very  important  aspects  of  this  recodification  effort  is  the 
cha]^ter  dealing  with  fairness  and  equity  in  sentencing  and  the  estab- 
lishing of  a  sentencing  commission,  whi'-^h.  hopefully,  will  report  back 
to  the  Congress  Avith  guidelines  for  A'arious  Federal  crimes.  In  addi- 
tion, the  bill  requires  Avritten  reasons  be  stated  by  the  court  at  the  time 


8579 

of  sentence  and  provides  for  appellate  review  in  cases  where  tlie  sen- 
tence is  above  or  below  the  prescribed  guidelines.  The  bill  thus  deals 
with  the  critical  problem  of  sentencing  disparity.  We  will  be  insuring 
a  greater  sense  of  fairness  and  equity  in  the  criminal  justice  system. 
This  is  an  extremely  important  aspect  of  the  recodification  bill. 

Another  extremely  important  aspect  of  the  recodification  bill  is  the' 
gradual  phasing  out  of  the  Federal  parole  release  function  of  our 
criminal  justice  system. 

Parole  release  has  not  been  administered  evenhandedly  in  our  Na- 
tion. It  seems  quite  clear  that  the  time  has  come  in  our  society  for  de- 
terminate sentencing.  We  need  fairness,  both  in  tonus  of  the  pris- 
oner and  society.  We  need  fairness  in  terms  of  public  understanding 
as  to  how  the  criminal  justice  system  works. 

I  think  the  American  people  have  basic  misconceptions  as  to  how 
the  system  works  in  practice.  When  a  sentence  is  given  for  12  to  15' 
years  or  4  to  8  j^ears,  a  prisoner  does  not  basically  serve  that  tenn.  Irt 
any  review  of  the  past,  we  can  see  in  instance  after  instance  the  pre- 
vailing pattern  of  release  after  completion  of  one-third  of  the  sentence. 

In  order  for  the  public  to  understand  what  the  actual  sentence  is 
going  to  be,  as  well  as  to  provide  more  certainty  in  the  system,  I  be- 
lieve it  is  important  to  phase  out  the  parole  release  function.  We  will 
have  a  chance  to  examine  that  in  greater  detail  with  the  Attorney  Gen- 
eral here  this  morning. 

I  will  insert  into  the  record  at  this  time  the  statement  of  Senator 
Thurmond  and  any  statement  that  may  be  submitted  by  any  other 
member  of  the  subcommittee. 

Statement  by  Senator  Stkom  Thurmond 

Mr.  Chairman,  today  the  Subcommittee  commences  another  series  of  hearings 
on  the  revision  of  the  Federal  Criminal  Code.  In  addition  to  S.  1-^37,  which  has 
already  been  referred  to  by  the  Chairman,  there  are  a  number  of  other  bills 
on  sentencing  reform  that  have  been  introduced  in  this  session  of  the  Congress 
and  referred  to  the  Subcommittee. 

The  bill  before  us  today,  S.  1437,  is  the  product  of  not  only  the  efforts  of  the 
National  Commission  on  Reform  of  the  Federal  Criminal  Laws,  but  also  a 
four-year  series  of  hearings  by  the  Subcommittee.  The  bill  incorporates  the  best 
of  earlier  versions  and  recommendations  that  have  been  gleaned  from  hours 
and  hours  of  testimony. 

'Mv.  Chairman,  a  bill  of  this  magnitude,  covering  the  entire  federal  criminal 
law,  coiild  not  possibly  gain  universal  acceptance.  There  are  provisions  in  the 
bill  that  I  strongly  support.  There  are  other  provisions  that  I  do  not  support, 
hut  in  the  spirit  of  compromise  and  accommodation  might  accept  if  the  overall 
bill  would  achieve  the  goal  of  reforming  our  Federal  criminal  law. 

During  this  further  set  of  hearings  a  number  of  witnesses  with  varying  views 
will  be  heard  from,  particularly  on  the  issue  of  sentencing  reform.  I  am  looking 
forward  to  hearing  from  these  witnesses,  especially  Attorney  General  Bell  and 
Governor  Brown,  and  I  want  to  welcome  them  to  our  hearings  this  morning. 

Senator  Kennedy.  Senator  McClellan  has  been  a  tireless  champion, 
in  the  area  of  Criminal  Code  reform.  He  is  strongly  committed  to 
this  legislation.  I  am  very  hopeful  that  we  will  see  early  considera- 
tion of  S.  1437  by  the  full  committee  and  by  the  Senate. 

Senator  Bentsen? 

Senator  Bentsen,  we  are  glad  to  have  you  here.  You  have  been, 
more  than  patient  in  listening  to  me  when  I  appear  before  the 
Finance  Committee. 

AVe  welcome  you  here.  We  know  how  interested  you  are  with  this 
subject  matter. 


8580 

STATEMETTT  OF  HON.  LLOYD  BEHTSEIT,   A  U.S.   SEIJATOS  FEOM 

TEXAS 

Senator  Bentsen.  Senator  Kennedy,  I  appreciate  the  leadership 
that  you  and  Senator  McClellan  have  shown  in  this  legislation. 

I  am  delighted  to  appear  in  support  of  legislation  I  have  long 
advocated:  reform  of  sentencing  and  rape  laws.  I  have  to  admit 
to  you,  Mr.  Chairman,  I  have  not  read  this  whole  bill  3'et  but  I 
expect  to.  I  believe  that  the  modernized  Criminal  Code,  as  proposed 
by  you  and  Senator  McClellan  will  rightfully  win  the  broad  support 
that  it  deserves. 

It  is  indeed  appropriate  that  when  Attorney  General  Bell  en- 
dorsed this  effort  he  referred  to  the  Roman  Emporer  Caligula,  who 
deliberately  posted  the  law  in  very  fine  print,  at  a  higli  level  where 
the  populace  would  not  be  able  to  see  it  and  understand  it.  Today, 
when  regulations  and  laws  often  proliferate  and  complicate,  a 
simplification  and  modernization  is  well  in  order. 

Mr.  Cliairman,  I  want  to  commend  the  changes  this  bill  would 
make  in  rape  laws.  In  1975,  I  first  introduced  legislation  to  restrict 
the  use  of  evidence  regarding  the  rape  victim's  sexual  history:  to 
allow  cases  to  go  before  the  jury  without  cori'oboration  of  the 
victim's  testimony;  and  to  eliminate  the  requirement  of  evidence  of 
resistance. 

Current  rape  laws  often  treat  the  victims  in  an  unconscionable 
way  at  the  very  time  we  should  be  showing  compassion  and  con- 
cern. What  we  find  too  often  is  the  question  of  wlio  is  really  on 
trial  in  these  rape  cases:  Is  it  the  attacker  or  is  it  the  woman  who 
has  been  violated  in  the  instance? 

Current  laws  discoui'age  reporting  of  the  crimes.  They  liinder 
the  fair  prosecution  of  the  accused.  I  believe  tliat  the  clianges 
proposed  in  the  code  bill  will  be  a  step  forward  for  the  fair  and 
effective  administration  of  justice  in  these  rape  cases. 

The  second  provision  T  want  to  support  is  sentencing  reform.  In 
recent  years,  the  credibility  of  our  criminal  laws  has  come  un.der 
attack  from  diverse  sources.  Indeterminate  sentencing  has  lost  re- 
spect. Our  parole  system  has  lost  respect. 

Citizens  read  of  habitually  violent  criminals  recei^•ing  little  o:-  no 
punishment,  (/harles  IManson  is  now  being  considered  for  parole.  As 
the  Twentieth  Century  Fund  re})ort  points  out,  when  it  comes  to 
punishing,  we  have  become  a  nation  of  extremes. 

We  see  a  situation  where  a  judge  in  one  part  of  the  country  gives 
them  a  tap  on  the  wrist.  In  another  part  of  the  country,  they  may  be 
sentenced  for  an  exceedingly  long  period  of  time  for,  in  effect,  the 
same  crime. 

There  is  justifiable  public  anger  when  convicted  criminals  escape 
unpunished.  One  study  found  that  73  percent  of  convicted  armed 
robbers  with  substantial  prior  records  received  no  prison  terms  in 
Los  Angeles  in  1970.  Other  studies  report  varying  findings;  but,  re- 
gardless of  the  numbei's  involved,  current  sentencing  practices  too 
often  grant  amnesty  to  the  violent. 

At  the  other  extreme,  the  indeterminate  sentence  has  led  to 
different  prison  terms  that  are  unfair  and  contrary  to  our  notions 


8581 

of  equal  justice.  Often  these  differences  constitute  injustice  in  tlie 
name  of  the  law,  and  for  that  reason  they  are  even  more  unacceptable. 

Mr.  Chairman,  to  eliminate  the  great  and  unguided  discretion 
now  vested  in  the  judges  and  parole  boards,  I  have  introduced  the 
Fair  and  Certain  Punishment  Act,  This  bill  generally  follows  the 
format  of  the  Twentieth  Century  Fund  proposal  and  related  works 
by  others  in  the  field,  some  of  whom  will  testify  before  this  com- 
mittee. It  will  establish  presumptive  sentencing  and  provide  stand- 
ards to  guide  discretion. 

Each  crime  would  have  a  presumptive  sentence.  For  first  offenders, 
it  should  be  short  but  certain,  with  prison  for  the  dangerous  and 
alternative  punishment  considered  for  the  nondangerous.  This  pre- 
smnptive  sentence  should  increase  for  repeatedly  violent  offenders. 
For  the  most  violent,  the  primary  purpose  of  imprisonment  should 
be  detention  of  the  guilty  and  protection  of  the  public. 

Judicial  discretion  should  be  structured  but  not  eliminated.  I 
agree  with  Alexander  Hamilton  in  the  "Federalist  No.  78"  that 
judicial  discretion  must  be  defined  in  order  to  be  fairly  exercised. 

To  allow  discretion,  besides  the  presumptive  sentence  itself,  there 
should  be  two  sentence  ranges.  One  should  be  a  small  percentage 
variance,  perhaps  20  or  30  percent  above  or  below  it. 

The  second  should  allow  for  a  maximum  sentence,  or  a  suspended 
sentence,  for  extraordinary  cases  in  which  the  presumptive  sentence 
or  range  would  not  be  fair. 

Sentences  that  vary  from  the  presumptive  should  be  accompanied 
by  a  reasoned  written  opinion.  Sentences  that  deviate  from  the  small 
presumptive  range  should  be  subject  to  appellate  review.  I  would 
limit  review  because  to  extend  it  further  would  create  severe  stresses 
on  already  overburdened  courts. 

A  sentencing  hearing  should  be  held  to  determine  the  existence 
of  aggravating  or  mitigating  circumstances  or  extraordinary  factors. 
To  reduce  the  burden  on  courts,  I  would  suggest  provisions  for 
stipulation  of  facts,  reports  by  referees,  and  other  means  of  expedit- 
ing agreement  between  the  parties. 

Aggravating  and  mitigating  circumstances,  which  under  the  code 
proposal  would  be  delineated  by  the  commission,  should  be  spelled 
out  and  uniformly  applied.  They  should  relate  to  the  conduct  of 
the  criminal  and  the  seriousness  of  the  crime.  The  prior  record  of 
criminal  convictions  should  be  a  factor.  Gun  crimes  should  be  con- 
sidered aggravated. 

I  hope  that  offender  characteristics  would  be  very  carefully 
applied.  We  are  punishing  for  past  conduct,  violence,  and  crime. 
We  are  not  punishing  for  predictions  about  the  future,  joblessness, 
or  lack  of  education.  We  can  rarely  predict  future  criminal  behavior; 
yet  past  violence  is  an  important  guide. 

So,  as  we  resolve  to  severely  punish  the  most  dangerous,  we  should 
insure  that  punishment  looks  to  what  the  offender  has  done;  for 
what  we  predict  about  the  future  is  not  his  crime. 

I  would  support  the  idea  of  a  Sentencing  Commission,  with  the 
hope  that  it  would  involve  all  three  branches  of  government. 
Specifying  sentencing  laws  is  a  legislative  duty;  applying  them  to 
•convicted  defendants  is  a  judicial  duty;  parole  and  the  administra- 
tion of  corrections  is  an  executive  duty. 


8582 

I  believe  that  some  members  could  be  appointed  by  the  Judicial 
Conference,  with  others  and  perhaps  the  Executive  Director  chosen 
by  the  President.  All  would  be  approved  by  the  Senate.  This  would 
insure  full  judicial  participation,  yet  at  the  same  time,  it  would  pro- 
vide a  perspective  including  all  three  branches. 

The  time  has  come  for  a  thorough  review  and  overhaul  of  the 
parole  system.  This  complicated  topic  alone  is  worthy  of  lengthy 
hearings.  There  should  be  some  provision  for  early  release  in  those 
cases  where  new  evidence  emerges  that  would  be  relevant  to  the 
sentencing  decision. 

Generally,  inmates  should  not  be  released  early  except  for  good 
time  allowances,  which  should  be  liberalized.  Inmates  should  not 
remain  in  a  state  of  agonizing  uncertainty  about  the  time  of  their 
release. 

Perhaps  there  is  a  need  for  an  increased  postrelease  service  for 
those  released  from  prison.  They  should  be  helped  in  finding  jobs 
and  furthering  their  education,  in  adjusting  to  lawful  life. 

Rehabilitation  should  play  a  role,  after  considerations  of  justice 
establish  a  fair  term  of  imprisonment.  We  should  not  sentence  to 
rehabilitate.  After  we  sentence,  we  should  try  to  rehabilitate.  Those 
who  participate  in  these  programs  should  do  so  because  they  want 
to  better  their  opportunities,  to  stake  a  claim  in  American  life — 
not  to  seek  early  release. 

"We  must  also  carefully  consider  prison  capacity  and  needs.  I 
join  those  of  the  National  District  Attorney's  Association,  who 
believe  that  humane  prisons  could  provide  increased  protection  for 
the  public  and  law  enforcement  personnel. 

No  violent  criminal  should  remain  unpunished  because  of  in- 
adequate prisons.  No  criminal  should  be  sent  to  a  prison  so  inade- 
quate ancl  ineffective  that  it  actually  increases  the  likelihood  of 
future  criminal  conduct. 

William  Shaffer  of  MIT,  after  an  extensive  analysis  of  the 
Massachusetts  criminal  justice  system,  concluded  that  of  all  vari- 
ables, the  shortage  of  prison  capacity  is  the  critical  one  affecting  the 
ability  of  the  system  to  lower  crime  rates.  Chief  Justice  Burger 
has  time  and  time  gain  urged  a  major  improvement  of  prison 
conditions.  Groups  as  diverse  as  the  National  Sherift''s  Association 
and  civil  rights  activists  have  called  for  upgraded  corrections. 

Mr.  Chairman,  I  believe  that  the  sentencing  reforms  could  go  far 
in  making  justice  more  just  and  law  enforcement  more  effective.  We 
can  balance  the  needs  of  our  prisons  with  society's  need  to  see  that 
punishment  is  fair  and  certain,  and  that  punishment  of  the  highly 
dangerous  is  more  severe. 

I  intend  to  follow  these  hearings  closely,  because  I  see  you  have 
some  very  excellent  and  distinguislicd  witnesses.  I  want  to  commend 
the  work  of  those  who  are  involved.  Certainly  there  is  a  lot  yet  to  be 
done.  It  is  not  going  to  be  easy;  it  is  not  going  to  yield  to  simple 
answers. 

I  do  believe  it  provides  this  Congress  and  the  Nation  a  real 
opportunity  to  walk  one  step  further  down  the  road  to  simple 
justice. 

Mr.  Chairman,  I  appreciate  this  very  much. 


8583 

Senator  Kennedy.  I  want  to  thank  you,  Senator,  very  much  for 
your  comments  and  your  testimony. 

There  is  very  little  that  I  find  that  I  am  not  in  strong  agreement 
with.  You  establish  in  your  own  legislation  the  various  criteria  for 
sentencing;  we  set  out  such  criteria  for  the  Commission  to  consider 
in  terms  "of  making  its  recommendations.  There  is  some  difference 
in  terms  of  approach,  but  I  tliink  we  have  a  similar  concern  as  to 
what  should  be  done. 

Certainty  of  punishment  and  limitations  on  parole  are  issues 
which  I  think  are  essential.  You  have  outlined  the  reasons  for 
these  changes. 

I  think  that  at  the  time  of  sentencing  it  must  be  made  clear  to 
the  defendant  and  to  the  public  as  to  what  the  sentence  imposed 
is  actually  going  to  be.  That  is  an  essential  aspect  of  this  recodifica- 
tion bill. 

The  Shaffer  study  makes  one  point  very  clear ;  when  talking  about 
our  growing  prison  population,  it  points  out  that  we  have  the  wrong 
people  in  prison.  The  great  majority  of  inmates  in  State  prisons, 
in  maximum  security,  should  not  actually  be  there.  We  have  too 
many  people  that  are  being  sentenced  for  victimless  crimes,  such 
as  alcoholism,  while  the  hardened  criminal  is  placed  on  probation. 

Senator  Bentsen.  It  really  was  an  informative  study. 

Senator  Kennedy.  Yes.  And  with  the  kind  of  approach  spelled 
out  in  our  bills,  I  think  it  would  make  an  important  difference  in 
terms  of  the  prison  population. 

I  just  want  to  thank  you.  We  will  keep  you  informed.  We  welcome 
any  additional  suggestions  as  we  move  along. 

Senator  Bentsen.  Thank  you,  Mr.  Chairman. 

Senator  Kennedy.  Senator  Hatch? 

Senator  Hatch.  I  want  to  thank  the  distinguished  Senator  from 
Texas.  Thank  you  for  coming. 

Senator  Bentsen.  Thank  you. 

I  conOTatulate  vou  on  this  effort  and  this  work. 

Senator  Kennedy.  Thank  you  very  much. 

Senator  Domenici,  we  are  glad  to  welcome  you  here  this  morning. 

STATEMENT  OF  HON.  PETE  V.  DOMENICI,  A  U.S.  SENATOR  FEOM 

NEW  MEXICO 

Senator  Domenici.  Mr.  Chairman,  it  is  my  pleasure  to  appear 
before  you  and  testify  before  this  committee  on  a  subject,  you  know 
better  than  I,  needs  serious  attention.  Our  criminal  sentencing 
system  needs  improvement.  I  believe  that  several  of  the  bills  that 
you  will  be  considering  during  these  hearings  offer  a  positive  prob- 
ability for  such  improvement. 

Lowering  the  crime  rates  in  this  country  deserves  a  high  priority 
by  this  Congress.  As  with  many  of  our  complex  problems,  this  huge 
problem  is  extremely  complex  and  encompasses  many  elements. 
We  must  not,  in  my  opinion,  be  afraid  of  the  issue  just  because  it 
is  an  enormous  problem  and  has  some  overall  dimensions  that  we 
might  not  understand. 

92-465—77 2 


8584 

I  believe  that  we  can  make  positive  progress  towards  solving  the 
overall  problem  by  considering  and  enacting  into  laws  those  pro- 
posals that  offer  incremental  improvement  to  our  current  criminal 
justice  system.  The  criminal  sentencing  element  of  the  system  cer- 
tainly can  stand  improvement.  I  commend  you,  Mr.  Chairman  and 
the  committee,  for  approaching  that  aspect  of  our  judicial  system. 
I  believe  you  have  before  you  several  measures  which  offer  a  distinct 
possibility  to  improve  it. 

As  3'OU  are  awai-e,  I  am  sponsor  of  one  of  the  measures  and 
cosponsor  of  two  of  the  other  measures  now  under  consideration. 
I  would  like  to  begin  with  just  a  few  brief  thoughts  on  two  bills 
that  I  have  cosponsorcd  and  then  conclude  with  an  observation 
about  one  that  I  liave  authored  myself. 

Mr.  Chairman,  I  have  cosponsored  S.  181,  one  of  several  bills 
before  you  which  deals  with  the  concept  of  sentencing  guidelines. 
I  certainly  commend  you,  ^Ir.  Chairman,  for  your  efforts  in  that 
regard. 

This  type  of  bill  focuses  on  the  great  disparity  we  now  find  in 
sentences  imposed  in  criminal  cases  of  a  sindlar  nature  committed 
under  similar  circumstances.  In  some  of  these  cases,  sentences  im- 
posed are  perceived  by  the  public  as  unduly  lenient.  I  believe  that, 
when  the  public  has  little  confidence  in  the  impartiality  and  effec- 
tiveness of  its  criminal  sentencing  system,  the  respect  for  that 
system  may  be  seriously  compromised. 

Mr.  Chairman  and  members  of  the  committee,  I  will  not  dwell 
on  the  specific  details  of  this  measure  or  the  others  tliat  are  under 
consideration  other  than  to  say  that  the  general  concept  has  my 
wholehearted  support.  Obviously,  care  must  be  exercised  in  the 
specifics  of  the  implementing  legislation. 

In  this  regard,  I  would  urge  specifically  that  careful  consideration 
be  given  to  the  factors  relating  to  the  severity  of  sentences.  While 
under  this  bill  a  sentencing  commission  would  establisli  the  guide- 
lines, I  would  say,  Mr.  Chairman,  that  I  am  somewhat  concerned 
that  the  specific  guidelines  not  be  too  short. 

I  believe  that  a  vast  majority  of  the  law-abiding  public  has 
the  perception  that  convicted  criminals  are  back  on  the  street  far 
too  quickly  after  conviction.  "VVe  nuist  be  careful  if  we  adopt  the 
guidelines  approach  because  we  can  build  up  public  confidence  here, 
but  we  could  cause  that  confidence  to  drop  to  an  even  lower  level 
than  it  is  today  if  we  adopt  this  approach  and  then,  through  it, 
allow  the  resulting  guidelines  to  impose  sentences  which  are  unduly 
lenient. 

I  am  sure  that  we  are  all  concerned  about  that  possibility. 

We  must  be  particularly  careful  in  this  regard,  and  I  urge  the 
committee  to  focus  on  this  aspect  perhaps  even  to  the  extent  of  being 
specific  in  this  regard  in  any  legislation  that  5^ou  report  out. 

In  concluding  my  remarks  on  this  particular  subject,  I  would  note 
that  I  believe  there  is  widespread  support  for  this  general  concept. 
I  would  note  that  Chief  Justice  Burger,  while  not  proposing  any 
specific  remedy,  has  joined  the  ranks  of  those  concerned  about  the 
judicial  system  and  the  correction  officials  who  deplore  the  substan- 
tially different  sentences  meted  out  to  criminals  charged  with  similar 
crimes  and  having  similar  records. 


l^astly,  Lut  A'ery  important,  ]Mr.  Chairman,  I  would  note  that  I 
"believe  this  general  concept  will  go  a  long  way  toward  reducing 
the  tensions  that  are  very  high  and  resentment  that  occurs  among 
prisoners  over  widely  differing  sentences  and  the  perceived  vagaries 
in  tlie  parole  operations. 

Mr.  Chairman,  I  am  also  cosponsoring 

Senator  Kexxedy  [acting  chairman].  You  would  consider,  then, 
abolishing  parole  ? 

Senator  Domenici.  'Mr.  Chairman,  if  the  bill  comes  out  with  the 
notions  that  I  have  expressed  here,  where  we  can  count  on  a  judge 
having  a  very  easily  interpreted  game  plan  from  these  guidelines, 
then  I  would  think  it  has  served  its  purpose. 

As  to  S.  260,  which  is  a  proposed  amendment  to  title  18  of  the 
Federal  Code,  which  would  require  the  imposition  of  mandatory 
minimum  terms  with  respect  to  certain  criminal  offenses,  I  am 
cosponsor  of  that,  also.  My  only  reservation  about  this  specific 
bill  is  that  specific  minimum  sentences  imjiosed  in  section  4  through 
7  may  be  too  short. 

As  I  ha,ve  mentioned,  with  respect  to  S.  181,  I  would  strongly  urge 
the  connnittec  to  carefully  consider  that  issue. 

Again,  I  believe  we  must  be  particuarly  careful  not  to  imder- 
mine  public  confidence  in  our  efforts  by  making  sentences  too  lenient. 

Section  3  of  S.  2G0  is  similar  in  concept  to  S.  31,  wliicli  I  intro- 
duced early  this  session.  S.  31,  is  a  measure  to  amend  the  Gun 
Control  Act  of  1968  to  provide  separate  offenses  and  consecutive 
sentences  in  felonies  involving  the  use  of  firearms.  This  is  a  concept 
which  I  introduced  last  year.  I  urge  the  committee's  favorable 
consideration. 

I  am  pleased  that  Senators  Pell,  Curtis,  Stevens,  Thurmond,  and 
Schmitt  have  cosponsored  my  particular  bill. 

I  would  like  to  note  that  there  is  widespread  interest,  Mr.  Chair- 
man, in  this  bill  in  the  House  also.  "Wliile  there  are  several  bills 
there  that  take  different  approaches  to  the  problem,  I  would  observe 
that  one-fourth  of  the  House  Members  have  cosponsored  Congress- 
man Glenn  Anderson's  bill,  H.R.  1559,  which  proposes  this  concept. 

I  believe  that  this  type  of  legislation  is  not  only  ripe  for  passage, 
but  is  the  type  of  legislation  that  will  make  a  definite  positive  con- 
tribution towards  improvement  of  our  criminal  justice  system. 

I  believe  that  by  imposing  a  minimum  mandatory  sentence  for 
firearms-related  offenses,  a  bill  such  as  mine  will  make  the  certainty 
of  punishment  more  of  a  reality.  We  are  seeing  more  and  more 
agreement  as  to  the  need  for  this  type  of  legislation. 

I  agree  with  you,  Mr.  Chairman,  on  the  introduction  of  S.  260, 
wherein  you  stated  that  such  need  is  "to  deter  potential  offenders 
from  criminal  conduct  while  at  the  same  time  keeping  the  violent 
offender  in  jail  and  off  the  street  for  at  least  a  limited  period  of 
time." 

The  concept  of  the  measure  I  have  introduced  is  made  up  of 
several  key  elements.  First,  a  specific  minimum  sentence  is  estab- 
lished for  the  first  offense.  I  believe  this  minimum  should  be  no  less 
than  1  year,  but  the  committee  may  find  that  a  longer  minimum  is 
necessary. 


8586 

Second,  a  provision  must  be  made  for  a  more  severe  mandatory 
minimum  sentence  for  each  succeeding  offense  after  the  first. 

Last,  there  must  be  a  provision  that  would  mandate  that  the 
mandatory  minimum  sentences  not  be  served  concurrently  with  the 
substantive  offense  and  that  they  not  be  suspended  or  should  the 
sentenced  individual  be  eligible  for  parole  or  probation  during  that 
mandatory  term. 

I  would  urge  the  committee  to  include  these  elements  in  any 
mandatory   minimum  sentencing  legislation  that  they  report  out. 

I  believe,  ]\Ir.  Chairman,  that  the  soaring  crime  rate  in  this 
country,  particularly  those  involving  firearms-related  crimes,  man- 
date that  we  try  this  approach  at  this  time. 

I  need  not  bore  you  with  the  statistics,  some  of  which  are  outlined 
in  the  introduction  to  S.  31,  so  I  will  not  repeat  them.  But  I  believe 
that  the  approach  found  in  S.  31  is  the  most  satisfactory  of  all 
those  with  which  I  am  familiar.  I  believe  that  such  an  approach  is 
the  least  controversial,  both  within  the  Congress  and  from  the 
public's  standpoint. 

This  type  of  legislation  has  been  endorsed  by  groups  spanning  a 
wide  range  of  political  philosophy  and  ideologj'. 

I  believe  penalties  for  firearms-related  crimes  should  be  placed  on 
the  wrongdoers.  "VVe  should  not  punish  the  law-abiding  parts  of  our 
society  for  the  crimes  of  a  few. 

INIr.  Chairman,  I  have  only  a  few  remaining  remarks.  I  know  of 
3'our  busy  schedule. 

Only  by  putting  the  criminal  on  notice  that  his  misdeeds  will 
cost  him  dearly  can  we  hope  to  correct  this  critical  problem.  Accord- 
ingly, I  strongly  urge  this  committee  to  act  favorably  on  this  type 
of  measure. 

I  thank  the  chairman  and  members  of  the  committee  for  giving 
me  this  opportunity.  I  commend  you  for  the  hearings. 

The  three  areas  I  have  covered  I  think  are  of  extreme  importance. 
They  are  not  easy.  They  will  take  a  lot  of  sensitivity  and  concern 
for  the  overall  judicial  system  and  people. 

I  just  hope  we  will  get  something  done  this  year,  ISIr.  Chairman. 

Senator  Kennedy.  Thank  you  very  much.  Senator.  We  appreciate 
your  interest  and  concern  and  your  comments  here  this  morning. 

They  are  very  much  along  the  lines  of  the  testimony  heard  earlier 
and  Senator  INIcClellan's  and  my  own  views. 

Senator  Hatch? 

Senator  Hatch.  I  would  like  to  commend  you  for  your  viewpoints 
here  this  morning,  Senator  Domenici. 

I  would  like  to  look  over  S.  181  and  S.  260  and  consider  those  per- 
sonally. I  would  like  to  be  listed  at  this  time  as  a  cosponsor  on  S.  31. 
I  think  that  is  an  excellent  approach.  I  think  that  puts  a  premium  on 
not  using  a  weapon  in  the  commission  of  a  crime. 

Senator  Domenici.  Thank  you.  Senator  Hatch. 

Senator  Hatch.  I  commend  you  as  usual  for  your  great  perceptioni 
here  in  the  U.S.  Senate. 

Senator  Kennedy.  Thank  you.  Senator  Domenici. 

Senator  Domenici.  Thank  you,  Mr.  Chairman. 

Senator  Kennedy.  Senator  Hart  ? 

We  welcome  you  here. 


8587 

TESTIMONY  OF  SENATOR  GARY  HART 

Mr.  Hart.  Mr.  Chairman,  members  of  the  subcommittee,  I  appre- 
•ciate  the  opportunity  to  appear  before  you  to  offer  some  thoughts  on 
legislation  to  restructure  our  Federal  criminal  laws.  The  need  for 
improving  our  system  of  criminal  justice  is  apparent  to  anyone  famil- 
iar with  how  the  system  operates.  I  am  particularly  concerned  that 
we  devise  the  means  to  provide  clear  standards  for  criminal  sentenc- 
ing. 

Sentences  imposed  in  criminal  cases  are  often  perceived  by  the  pub- 
lic as  unduly  lenient  or  unduly  severe.  When  the  public  has  little  con- 
fidence in  tlie  impartiality  and  general  effectiveness  of  its  judicial 
-system,  respect  for  the  law  is  seriously  compromised. 

Together  with  Senator  Jacob  Javits,  I  introduced  Senate  bill  204, 
i:he  Federal  Sentencing  Standards  Act  of  1977.  The  bill  would  apply 
a  general  definition  of  justice  under  which  like  cases  are  treated  alike 
and  unlike  cases  are  treated  proportionately  to  their  differences. 

I  should  note  at  the  outset  the  numerous  and  invaluable  contribu- 
tions to  this  bill  by  Senator  Javits  and  his  staff.  His  role  in  helping 
to  foster  and  develop  this  piece  of  legislation  from  its  inception  was 
irreplaceable,  and  he  should  be  commended  for  continuing  his  long- 
standing interest  in  enhancing  the  quality  of  our  juidicial  system. 

The  bill  Senator  Javits  and  I  have  offered  contains  four  main  ele- 
ments. First,  it  would  narrow  the  discretion  which  can  be  exercisedby 
sentencing  judges  by  employing  the  presumptive  sentencing  device. 
For  each  gradation  of  seriousness  of  criminal  behavior,  a  defuiite  pen- 
alty— the  presumptive  sentence — would  be  set.  Individuals  convicted 
of  crimes  of  that  degree  of  seriousness  would  receive  the  presumptive 
sentence,  unless  there  were  special,  carefully  defined  circumstances  of 
aggravation  or  mitigation.  Under  our  bill,  a  second  serious  offense 
would  automatically  be  considered  an  aggravating  circumstance,  re- 
quiring a  more  severe  sentence  than  the  presumptive  sentence. 

Second,  the  presumptive  sentences  and  the  permitted  aggravating 
and  mitigating  circumstances  would  be  prescribed  by  a  Federal  Sen- 
tencing Commission.  The  Commission's  guidelines  would  take  effect 
within  45  calendar  days  of  issuance,  unless  both  houses  of  Congress 
adopted  a  resolution  of  disapproval.  The  Federal  Sentencing  Com- 
mission would  have  an  initial  life  of  6  years. 

Third,  the  bill  sets  forth  the  rationale  which  the  Commission  must 
follow  in  prescribing  its  sentences:  namely,  a  just  deserts  rationale. 
The  severity  of  a  sentence  would  have  to  based  on  the  seriousness  of 
the  individual's  offense,  rather  than  on  his  likelihood  of  recidivism  or 
need  for  treatment.  Imprisonment,  as  a  severe  penalty,  would  be  re- 
stricted to  serious  crimes.  For  lesser  offenses,  penalties  other  than  im- 
prisonment would  be  prescribed,  such  as  intermittent  confinement, 
supervision  in  the  community,  fine  or  forfeiture,  curfew  or  other 
travel  restrictions,  and  community  service. 

Finally,  since  the  sentence  will  be  based  on  the  seriousness  of  the 
offense,  indeterminancy  of  sentence  will  be  phased  out.  By  insuring 
that  the  offender  serves  the  sentence  determined  by  the  sentencing 
judge,  the  public  and  the  offender  are  assured  of  both  the  certainty 
of  punishment  and  the  date  of  its  completion. 


8588 

This  bill  "was  based  on  the  recommendation  of  the  Report  of  the 
Committee  for  the  Study  of  Incarceration,  "Doing  Justice,  the  Choice 
of  Punishments."  Prof.  Andrew  Von  Hirsch,  the  principal  author  of 
"Doing  Justice,"  aided  substantially  in  the  drafting  of  this  legisla- 
tion. The  bill  was  also  based  in  part  on  the  work  done  by  other  ex- 
perts in  the  field  of  crime  and  punishment,  including  Richard  Singer, 
Alan  Derschowitz,  Marvin  Frankel  and  Norval  Morris,  some  of  whom 
will  be  testifying  before  you  in  the  next  couple  of  days. 

^Ir.  Chairman,  the  Hart-Javits  bill — S.  201 — is  very  similar  to 
proposals  put  forth  by  Senator  Bentsen  and  by  Senators  Kennedy 
and  McClellan.  I  know  that  several  members  of  this  subcommittee 
are  sponsors  or  cosponsors  of  proposals  relating  to  criminal  sentenc- 

I  am  happy  there  is  so  much  interest  in  this  issue.  Together,  these 
various  proposals  provide  an  excellent  framework  within  which  to 
reevaluate  the  way  we  deal  with  those  convicted  of  criminal  conduct. 

The  major  difference  between  our  bill  and  Senator  Bentsen's  bill, 
S.  979,  is  that  while  the  Bentsen  bill  incorporates  the  sentencing 
guidelines  within  the  text  of  the  bill,  our  bill — as  well  as  the  Kennedy- 
McClellan  bill — delegates  this  task  to  a  Federal  Sentencing  Commis- 
sion. 

The  concept  of  a  sentencing  commission  is  a  good  one.  Issues  relat- 
ing to  criminal  sentencing  can  best  be  considered  in  an  orderly,  dis- 
passionate fashion  by  a  group  intimately  familiar  with  crime  and 
punishment  and  somewhat  insulated  from  the  politics  of  the  situation. 
Both  the  Hart-Javits  bill  and  the  Kennedy-McClellan  bill  require  the 
commission  to  hold  public  hearings  and  to  insure  an  acceptable  de- 
gree of  ]:)ublic  participation. 

Traditionally,  the  promulgation  of  Federal  sentencing  standards 
has  been  the  responsibility  of  the  Congress.  This  has  not  changed. 
Under  both  the  Hart-Javits  bill  and  the  Kennedy-McClellan  bill,  the 
sentencing  guidelines  suggested  by  Sentencing  Commission  would  not 
go  into  effect  if  Congress  disapproves. 

There  are  three  important  points  which  distinguish  the  Ilart-Javits 
bill,  S.  204,  and  the  sentencing  provisions  contained  in  the  Kennedy- 
McClellan  bills,  S.  181  and  S.  1437.  The  three  basic  differences  are: 
(1)  The  Avay  in  which  the  standards  are  developed  by  the  Commis- 
sion; (2)  how  closely  the  sentencing  judge  must  ndhere  to  the  Com- 
mission's standards:  and  (o)  the  mode  of  appointing  members  to  the 
Sentencing  Commission. 

S.  204— -the  Hart-Javits  bill — requires  the  Commission,  in  deter- 
mining the  presum])tive  sentences,  to  consider  only  the  seriousness  of 
the  offense  and  factors  which  directly  relate  to  how  the  offense  Avas 
perpetrated.  The  Kennedy-McClellan  bills,  on  the  other  hand,  allow 
the  Commission — and  would  allow  sentencing  judges — to  consider  not 
only  the  seriousness  of  the  offense  but  also  (quoting  from  pnge  303  of 
S.  1437),  "age;  education;  vocational  skills;  mental  and  emotional 
condition  .  .  .  previous  employment  record;  family  ties  and  responsi- 
bilities; community  ties;  role  in  the  offense;  .  .  .  prior  criminal  activ- 
ity not  remlf'/ng  rn  rotrvictloii-'i  (emphasis  added)  .  .  .  and  degree  of 
dependence  upon  criminal  activity  for  a  livelihood." 


8589 

Mr.  Cliairman,  I  have  serious  reservations  about  these  provisions.  I 
am  especially  troubled  by  the  idea  of  judges  considering-  reports  relat- 
ing to  an  offender's  past",  apart  from  prior  convictions.  I  fear  certain 
of  these  provisions  might  compromise  the  foundation  of  our  rules  of 
courtroom  procedure,  the  presumption  of  innocence.  I  am  also  con- 
cerned about  the  threat  to  civil  liberties  inherent  in  employing  eval- 
uations of  an  offender's  "state  of  mind,"  "previous  employment  rec- 
ord," "need  for  treatment"  or  likelihood  of  recidivism  in  determining 
a  sentence  commensurate  with  the  seriousness  of  the  offense. 

Under  the  provisions  of  the  Hart-Javits  bill,  the  discretion  allowed 
sentencing  judges  is  strictly  defined  by  the  presumptive  sentences  and 
permitted  aggravating  and  mitigating  circumstances.  The  Kennedy- 
McClellan  bills  would  allow  the  sentencing  judge  to  sentence  outside 
the  guidelines  established  by  the  Sentencing  Commission.  I  have  seri- 
ous reservations  about  this  provision.  I  realize  many  feel  strongly 
that  it  is  impossible  to  anticipate  the  circumstances  surrounding 
criminal  behavior  enough  to  warrant  reducing  judicial  discretion  to 
the  degree  required  by  the  Hart-Javits  bill. 

My  support  for  the  sentencing  scheme  outlined  in  S.  204  rests  on 
the  belief  that  the  potential  risk  of  harm  to  any  one  offender  is  more 
than  offset  by  the  potential  harm  to  many  under  a  more  open-ended 
scheme  as  proposed  by  S.  181  or  S.  1437,  or  by  the  harm  done  to  many 
every  day  under  the  so-called  "individualized"  sentencing  we  have 
today. 

I  want  to  emphasize  that  our  bill,  by  requiring  that  the  severity  of 
a  sentence  be  commensurate  with  the  seriousness  of  the  offense,  in  no 
way  ignores  the  importance  of  deterring  crime  or  of  meeting  the 
offender's  need  for  education  or  vocational  training,  medical  care,  or 
other  correctional  treatment.  ^ 

S.  204  recognizes  the  need  to  protect  the  public.  It  reflects  the  judg- 
ment that  this  is  best  done  by  equalizing  punishments  for  similar 
crimes  and  by  ensuring  that  anyone  convicted  of  a  serious  crime  will 
in  fact  receive  a  term  of  imprisonment.  The  proposals  offered  by 
Senators  Kennedy  and  IMcClellan  do  not  provide  this  assurance. 
Under  those  bills,  a  sentencing  judge  is  allowed  to  sentence  outside 
the  sentencing  guidelines.  While  this  is  grounds  for  appeal,  the  fact 
remains  that  under  such  a  scheme  a  serious  offender  may  receive  pro- 
bation or  a  suspended  sentence,  while  a  non-serious  offender  may 
receive  a  lengthy  term  of  incarceration. 

It  should  be  clear  that  there  is  a  basic  philosophical  difference  be- 
tween the  Kennedy-McClellan  bill  and  the  Hart-Javits  bill.  The  sen- 
tencing provisions  under  the  former  allow  an  individual  to  be  im- 
prisoned for  reasons  unrelated  to  the  seriousness  of  the  offense.  For 
example,  a  person  could  be  imprisoned  and  forced  to  participate  in 
educational  or  vocational  programs  as  a  condition  of  his  or  her 
release. 

Under  the  Hart-Javits  bill,  no  one  would  be  imprisoned  for  a  pe- 
riod of  time  beyond  that  which  could  be  commensurate  with  the  seri- 
ousness of  the  offense. 

_  It  is  true  that  the  sentencing  scheme  outlined  in  S.  204  might  be 
viewed  as  a  punitive  model.  But  this  does  not  mean  the  end  of  re- 
habilitative programs  within  prisons.  It  does  not  declare  rehabilita- 


8590 

tion  a  failure.  It  does  declare  widespread  judicial  discretion — in  the 
name  of  rehabilitation — a  failure,  and  it  declares  that  rehabilitation, 
as  the  primary  purpose  or  justification  for  depriving  someone  of  his 
or  her  civil  liberties,  is  both  inappropriate  and  unfair. 

We  should  work  to  expand  and  improve  rehabilitative  programs 
within  prisons.  We  need  to  do  what  we  can  to  provide  alternatives  to 
imprisonment,  and  to  understand  the  "why's"  of  criminal  behavior 
so  we  can  attack  the  crime  problem  at  its  roots.  But  rehabilitative 
j)rograms,  generally  speaking,  should  be  voluntary.  Tying  a  prison- 
er's release  to  someone's  evaluation  of  his  or  her  state  of  mmd  or 
likelihood  of  recidivism  can  be  more  cruel  than  a  frankly  punitive 
model  for  sentencing. 

Mr.  Chairman,  rank-ordering  crimes  and  assigning  appropriate 
sentences  is  a  difficult  task  which  requires  a  good  bit  of  subjective 
judgment  and  arbitrary  line-drawing.  My  hope  is  that  the  subcom- 
mittee will  carefully  determine  the  right  amount  of  flexibility  to 
allow  the  Sentencing  Commission — should  the  Congress  choose  to 
establish  such  a  body — in  carrying  out  its  responsibilities. 

The  Commission  will  need  to  develop  a  coherent,  internally-con- 
sistent set  of  sentencing  standards.  The  members  of  the  Commission 
should  be  given  a  clear  direction  to  follow,  but  should  not  be  ham- 
strung in  their  deliberations  by  too  many  constraints.  I  hope  that  the 
factors  to  be  considered  by  the  Commission  suggested  in  S.  1437,  for 
example,  are  for  illustrative  purposes,  and  that  the  Commission  would 
not  be  required  to  account  for  the  weight  given  each  one  in  developing 
its  standards. 

The  other  major  difference  between  S.  204  and  the  Kennedy- 
McClellan  bills  is  the  w^ay  the  Sentencing  Commission  is  established. 
S.  204  provides  for  the  President  to  appoint  its  members,  and  envi- 
sions the  Commission  as  an  independent  rulemaking  agency,  techni- 
cally a  part  of  the  executive  branch.  S.  181  and  S.  1437,  by  contrast, 
provide  for  the  Judicial  Conference  of  the  United  States  to  select 
Commission  members  and  envisions  the  Commission  as  part  of  the 
judicial  branch. 

There  might  be  some  merit  in  placing  this  Commission  more  or  less 
in  the  judiciary.  But  considering  the  importance  of  this  issue,  and  the 
magnitude  of  the  problems  the  Commission  will  confront,  perhaps 
some  of  the  Commission  members  should  be  appointed  by  the  Presi- 
dent, by  and  with  the  consent  of  the  Senate.  Certainly  this  question 
merits  careful  study. 

Mr.  Chairman,  it  has  been  suggested  that  a  society  can  best  be 
judged  by  how  it  treats  those  who  do  not  conform  to  its  rules.  We 
should  recognize  that,  by  any  standard,  the  reality  of  our  criminal 
justice  sj^stems  falls  far  short  of  the  values  it  is  designed  to  promote. 
Recodifying  the  criminal  code  will  not  solve  all  of  the  problems,  but 
it  will  go  a  long  way  toward  simplifying  the  administi-ation  of  justice 
and  providing  coherent  standards  by  wliich  it  can  be  judged. 

In  so  doing,  the  subconnnittee,  its  staff  and  all  who  have  contributed 
to  the  proposals  you  are  now  considering  will  have  done  much  to 
restore  respect  for  the  law.  You  should  be  commended  for  the  hard 
work  that  will  go  into  holding  these  hearings  and  developing  appro- 
priate legislation. 


8591 

The  sentencing  provisions  of  S.  204,  S.  181,  and  S.  979— as  well  as 
the  sentencing  provisions  of  S.  1437,  the  "Criminal  Code  Reform  Act 
of  1977" — are  all  a  step  in  the  right  direction.  They  each  narrow  the 
discretion  which  can  be  exercised  by  sentencing  judges.  Surely  reduc- 
ing the  disparity  in  sentences  imposed  in  similar  cases  is  an  essential 
component  of  any  meaningful  reform  in  this  area. 

But  there  is  a  good  deal  of  disagreement  as  to  whether  imprison- 
ment is  intended  to  punish,  protect  law-abiding  citizens,  rehabilitate 
criminals,  or  to  accomplish  a  combination  of  these  goals.  We  must 
address  ourselves  to  these  uncertainties  in  any  new  sentencing  stand- 
ards we  might  adopt,  or  else  we  will  simply  add  to  the  confusion. 

Mr.  Chairman,  I  want  to  thank  you  again  for  the  opportunity  to 
appear  before  the  subcommittee.  I  would  be  happy  to  answer  any 
questions  you  might  have,  and  I  am  eager,  as  I  am  sure  my  cosponsor, 
Senator  Javits,  to  help  the  subcommittee  in  any  way  I  can.  Thank 
you. 

Senator  Kennedy  [acting  chairman].  Thank  you  very  much. 

"We  welcome  Senator  Javits,  a  former  member  of  this  committee. 
His  interest  in  criminal  justice  continues.  He  has  always  been  an  ac- 
tive member  in  this  field.  We  welcome  your  comments. 

Obviously,  the  differences  between  your  and  our  approach  are  im- 
portant; but  they  are  minimal.  I  think  some  of  the  points  that  you 
made  here  are  important  for  us  to  think  through.  For  example,  you 
take  the  Presidential  route  in  the  formation  of  the  Commission;  we 
do  it  through  the  Judicial  Conference.  We  will  evaluate  closely  the 
reasons  why  you  felt  that  variation  was  important.  I  do  not  think 
that  is  a  serious  difference.  I  would  like  to  give  some  consideration 
to  it.  Also,  concerning  the  presumptive  sentences,  in  whatever  is  going 
to  be  recommended  by  the  Commission,  there  will  be  some  minor  de- 
gree of  flexibility.  You  would  rather  have  a  flat  presumptive  sentence, 
as  I  understand  it,  while  we  favor  some  additional  flexibility. 

It  seems  that  we  are  certainly  in  the  same  ballpark,  in  terms  of 
meeting  the  challenges. 

Senator  Javits  ? 

STATEMENT  OF  HON.  JACOB  K.  JAVITS,  A  U.S.  SENATOR  FEOM 

NEW  YORK 

Senator  Javits.  Mr.  Chairman,  I  would  like  to  express  my  admira- 
tion for  Senator  Hart.  I  think  he  devoted  himself  to  this  measure  in 
a  very  effective  way. 

Drawing  on  my  own  experience  as  attorney  general  of  the  State  of 
New  York,  I  was  impelled  to  go  on  this  bill,  especially  considering 
the  grave  difficulties  we  have  had  in  the  prisons  in  New  York.  At 
Attica  we  had  a  prime  demonstration  of  what  happens  when  frustra- 
tion and  despair  have  reached  their  end ;  terrible  tragedy  resulted. 

Senator  Hart  has  testified  very  ably  on  the  details  of  the  bill  and 
the  philosophy  which  animated  it.  I  would  like  to  make  just  two- 
observations. 

I  am  as  interested  as  the  chairman  and  Senator  McClellan  in  re- 
habilitation and  the  reconstruction  of  a  life.  Our  record,  however, 
shows  that  the  rate  of  recidivism  is  extremely  high.  An  estimate  of 


8592 

75  percent  is  not  excessive.  Hence,  tlie  problem  which  inheres  in  that 
indnced  me  to  go  with  Senator  Hart  on  this  bilL 

I  believe  that  sentences  are  likely  to  be  shorter  when  they  are  defi- 
nite. The  speculation  and  gamble  about  parole,  once  removed,  will 
result  in  a  much  better  administration  of  prisons  and  a  much  greater 
dedication  by  the  prisoner  and  the  authorities  to  the  matter  of  re- 
habilitation, education,  training,  et  cetera.  That  will  be  that.  Every 
inmate  will  know  that  he  must  serve  a  definite  sentence. 

Today,  we  have  a  complete  guessing  game.  No  matter  how  long  you 
sentence  an  individual  for,  the  moment  he  goes  to  jail  he  is  already 
speculating  about  what  is  going  to  be  the  outcome  at  the  other  end, 
how  the  parole  commission  is  going  to  deal  with  him. 

The  second  point  is  the  confidence  of  the  public.  The  public  has  lost 
a  great  deal  of  its  faith  in  the  American  criminal  justice  system.  This 
bill  is  designed  in  a  very  real  way  to  firmly  reestablish  the  public's 
faith  in  the  criminal  justice  system. 

I  welcome.  Senator  Kennedy,  your  suggestion  that  the  parameters 
between  your  bill  and  Senator  Hart's  and  mine  are  relatively  narrow. 
I,  too,  look  forward  to  the  reconciliation  of  those  differences  by  the 
committee. 

Senator  Hart.  Mr.  Chairman,  I  would  only  support  the  points 
m.ade  by  Senator  Javits  here  and  by  the  chairman. 

The  similarity  and  philosophy  bet^veen  the  bills  introduced  bv  the 
subcommittee  chairman  Senator  McClellan  and  Senator  Kennedy  and 
Senator  Javits  and  myself  are  much  greater  than  the  dissimilarities. 
The  dissimilarities  are  narrow  but,  I  think,  important.  I  am  sure  the 
subcommittee  will  keep  those  in  mind  in  its  deliberation. 

I  also  want  to  tliank  Senator  Javits  again  for  his  support  of  this 
measure.  His  long  background  and  concern  about  the  judicial  system 
in  this  country  and  the  system  of  crime  and  punishment  is  extremely 
important  to  the  measure,  and  I  think  it  adds  considerable  weight 
and  merit. 

I  know  the  subcommittee  will  give  this  bill  its  consideration  in  the 
future. 

Senator  Kexnedy.  Thank  you  very  much. 
Senator  Thurmond  ? 

Senator  Thurmond.  Mr.  Chairman,  I  would  like  to  join  in  welcom- 
ing Senator  Hart  and  Senator  Javits.  We  are  very  pleased  to  have 
you  distinguished  gentlemen  come  in  and  give  us  your  opinion  on  the 
bills. 

This  criminal  code  is  something  that  has  been  worked  on  for  years 
and  years,  ^yo  thought  we  had  it  nailed  down  several  times,  and'mat- 
ters  keep  coming  up. 

We  are  very  pleased  to  have  your  opinion.  Thank  you  for  coming. 
I  am  sorry,  Mr.  Chairman,  but  I  have  got  to  leave  in  just  a  minute 
to  go  to  the  Foreign  Relal  ions  Couunittee.  We  have  a  new  ambassador 
to  Saudi  Arabia;  he  is  from  my  State.  I  have  to  be  over  there.  Also 
there  is  a  conference  committee  meeting  on  the  Armed  Services  bill. 
Thank  you  very  much,  Mr.  Chairman. 
Senator  Kennedy.  Senator  Hatch  ? 

Senator  Hatch.  I  would  just  like  to  thank  Senators  Javits  and 
Hart  for  their  appearance  here  toda3\ 


8593 

Senator  Kennedy.  We  will  be  moving  on  this  legislation,  Senators, 
and  we  hope  that  you  and  your  staffs  will  stay  in  close  touch  with  us 
because  we  very  much  value  your  comments. 

Thank  you  very  much. 

Senator  Javits.  Thank  you. 

Senator  Hart.  Thank  you. 

Senator  Kennedy.  Attorney  General  Bell '? 

We  want  to  point  out  at  the  outset  that  this  proposal  has  really 
moved  as  far  and  as  fast  because  of  your  interest  in  working  very 
closely  with  the  members  of  this  committee  and  obviously  because  of 
the  President's  interest. 

I  know  you  are  very  well  aware,  as  all  of  us  are,  of  the  complexi- 
ties of  it  and  the  very  substantial  amount  of  work  that  has  been  done 
prior  to  this  latest  effort. 

We  welcome  you  here  and  commend  the  efforts  you  have  made  to 
date. 

STATEMENT  OF  HON.  GEIFFIN  B.  BELL,  ATTOENEY  GENEEAL  OF 
THE  UNITED  STATES,  ACCOMPANIED  BY  PETEE  FLAHEETY, 
DEPUTY  ATTOENEY  GENEEAL;  AND  EONALD  L.  GAINEE,  DI- 
EECTOE,  TASK  FOECE  ON  CEIMINAL  CODE  EEVISION 

General  Bell.  Thank  you,  Mr.  Chairman. 

I  am  appearing  here  today  with  high  expectations,  expectations 
that  the  bill  now  before  you,  S.  1437,  marks  the  final  stage  of  the  long 
effort  to  obtain  a  modern  Federal  Criminal  Code,  an  effort  that  has 
the  full  support  of  this  administration. 

In  1962,  the  Model  Penal  Code  of  the  American  Law  Institute 
pointed  the  general  direction  for  reform  of  American  criminal  laws. 
Numerous  States  have  since  revised  their  laws  accordingly. 

In  1971,  the  Final  Report  of  the  National  Commission  on  Reform 
of  Federal  Criminal  Laws  showed  the  way  in  which  such  reform 
could  be  adapted  to  the  Federal  criminal  justice  system.  The  Chair- 
man of  that  Commission,  former  Gov.  Pat  Brown  of  California, 
and  the  Commission's  staff  director,  Pro.f.  Louis  Schwartz  of  the 
University  of  Pennsylvania,  deserve  major  credit  for  that  innovative 
:  accomplishment. 

After  6  years  of  further  work,  marked  by  the  compilation  of  a 
hearing  record  exceeding  8,500  printed  pages,  there  is  now  before  you 
a  detailed  new  Federal  Criminal  Code  that  is  read}^  for  enactment. 

The  ^lembers  of  the  Senate  who  have  been  the  principal  contribu- 
tors to  the  shaping  of  this  new  code  have  been,  of  course,  Senators 
McClellan  and  Kennedy,  former  Senator  Hruska,  and  the  late  Sena- 
tor Philip  Hart.  I  am  pleased  to  have  participated  with  the  Members 
of  the  Senate  in  the  extensive  reviews  and  negotiations  that  took 
place  earlier  this  year  and  that  led  to  the  joint  drafting  of  S.  1437. 

Almost  all  of  us  in  this  hearing  room  know  firsthand  that  existing 
Tederal  criminal  laws  are  in  serious  need  of  revision.  Their  deficien- 
cies are  particularly  apparent  to  those  of  us  who  must  work  with  them 
•on  a  daily  basis.  Two  and  a  half  centuries  ago,  an  English  judge 
noted  that  "an  act  of  Parliament  can  do  no  wrong,  though  it  may  do 
several  things  which  look  pretty  odd."  We  have  some  things  which 
look  "pretty  odd"  in  our  existing  Federal  statutes. 


8594 

Side  by  side,  we  have  statutes  that  are  well  drafted  and  statutes 
that  are  ambiguous ;  statutes  that  meet  current  needs  and  statutes  that 
are  outmoded;  statutes  that  work  as  intended  and  statutes  that  are 
unenforcible.  In  some  areas  where  there  should  be  statutory  cover- 
age there  is  nothing;  other  areas  are  papered  with  overlapping  and 
often  inconsistent  provisions. 

The  sentencing  process  is  a  prime  example  of  an  area  that  needs 
reform.  Under  present  law  the  punisliment  levels  for  similar  offenses 
vary  irrationally,  thus  raising  questions  about  the  rationality  of  the 
Federal  criminal  justice  system  itself. 

It  is  partly  because  of  this  confusing  state  of  our  law  that  so  much 
attention  is  focused  in  individual  cases  upon  attempting  to  unscram- 
ble and  rationalize  the  law.  This  causes  an  expenditure  of  precious 
time  on  the  part  of  judges  and  lawyers  that  would  be  unnecessary 
under  a  more  modern  criminal  code. 

It  also  introduces  unfairness  into  our  Federal  criminal  justice  sys- 
tem— unfairness  because  of  the  delay  caused  by  the  confusion  in  the 
present  system,  and  unfairness  because  the  current  law  is  almost  in- 
comprehensible to  ordinary  citizens. 

By  inadvertence  rather  than  by  design,  we  have  almost  reached  the 
situation  that  existed  in  Rome  at  the  time  of  the  Emperor  Caligula 
when  the  laws  were  deliberately  posted  on  columns  so  far  above  eye 
level  that  the  citizens  could  not  read  them. 

S.  1437  provides  a  remedy  for  these  problems  by  establishing  for 
the  first  time  an  integrated  code  of  virtually  all  statutes  and  rules 
concerning  Federal  crimes  and  the  Federal  criminal  justice  process. 
Probably  its  single  most  important  contribution  is  in  setting  forth  the 
law  in  a  far  more  comprehensive,  orderly,  and  simple  manner  than 
the  statutes  existing  today. 

This  itself  is  a  major,  progressive  step.  It  will  make  the  law  far 
more  understandable  to  professionals  and  laymen  alike.  It  incorpo- 
rates most  major  areas  of  judge-developed  law  into  associated  statu- 
tory provisions,  leaving  uncodified  only  a  few  areas — such  as  defenses 
to  prosecution — where  compromise  has  made  necessary,  for  the  time 
being,  the  continuance  of  the  practice  of  deferring  to  judges  on  the 
exceptions  to  criminal  liability.  Thus,  the  new  code  provides,  with  the 
exception  of  the  statement  of  defenses,  a  single,  basic  source  of  Fed- 
eral criminal  law. 

The  new  code's  value  goes  far  beyond  its  simplicity  and  compre- 
hensiveness. It  contains  literally  hundreds  of  improvements  over  the 
existing  state  of  the  law.  Certainly  it  will  make  the  criminal  justice 
system  more  efficient,  permitting  the  Department  of  Justice  and  the 
courts  to  respond  to  crime — from  organized  crime  to  white-collar 
crime — in  a  more  effective  manner. 

Moreover,  it  will  make  the  system  more  fair — more  fair  in  provid- 
ing clearer  notice  of  what  is  considered  criminal  conduct,  and  more 
fair  in  providing  for  greater  rationality  and  equity  in  sentencing.  The 
code's  sentencing  system  will  apply  guidelines  to  determine  objec- 
tively what  kind  of  sentence  would  be  appropriate  for  a  particular 
case  and  will  grant  appellate  review  of  sentences  outside  the  range 
specified  in  the  applicable  guidelines. 

This  system  provides  an  ingenious  means  of  assuring  sentences  that 
are  not  only  fair  to  individual  defendants  but  fair  to  the  public  as 
well. 


8595 

As  this  committee  proceeds  with  its  work  on  the  new  code,  one  thing 
must  be  kept  in  mind.  This  bill  is  a  compromise — a  very  good  com- 
promise. An  editorial  in  the  New  York  Times  even  referred  to  it  as 
a  "masterly"  compromise.  A  tremendous  amount  of  time  on  the  part 
of  the  congressional  sponsors  and  on  the  part  of  the  Department  of 
Justice  has  gone  into  the  drafting  of  the  bill. 

I  firmly  believe  that  the  result  is  as  fair  and  workable  a  Federal 
criminal  code  as  has  yet  been  devised.  It  is  a  careful,  yet  progressive, 
balance ;  and  care  must  be  taken  to  assure  that  this  is  not  upset  by 
well-intended  attempts  to  shift  the  code's  emphasis  either  toward  the 
views  of  those  who  would  emphasize  the  need  of  our  communities  for 
more  effective  law  enforcement,  or  toward  the  views  of  those  who 
would  emphasize  the  equally  important  need  for  strong  assurance  of 
individual  liberties. 

Severable  issues  should  be  just  that, — severable.  There  will  be  time 
enough  in  the  future  to  make  further  changes  in  individual  provisions 
of  the  code  when  the  need  is  sufficiently  apparent  to  achieve  a  con- 
sensus. 

S.  1437  has  my  strong  personal  support  and  the  support  of  the  De- 
partment of  Justice.  As  I  said  earlier,  it  also  has  the  support  of  the 
administration.  It  is  now  cleared  through  the  Office  of  Management 
and  Budget  and  all  the  offices  that  must  approve  of  proposed  legisla- 
tion before  the  administration  can  be  said  to  support  it. 

We  will  be  pleased  to  be  of  further  assistance  during  your  continu- 
ing work  on  the  bill.  I  look  forward  to  its  early  passage. 

Senator  Kennedy  [acting  chairman].  Thank  you  very  much.  Gen- 
eral Bell,  for  your  comments  here  and  for  your  support  for  this  com- 
prehensive approach. 

One  of  the  most  important,  if  not  the  most  important,  aspects  of 
this  legislation  deals  with  the  sentencing  provisions.  I  think  you 
would  agree  with  me  on  that. 

General  Bell.  I  do  agree. 

Senator  Kennedy.  One  of  the  essential  purposes  of  this  bill's  sen- 
tencing provisions  is  the  desire  to  eliminate  disparity — the  real  as 
well  as  the  apparent  disparity — in  sentencing. 

We  believe  that,  with  the  commission  and  the  enactment  of  other 
provisions,  that  goal  will  be  achieved. 

But  otherdisparity  also  exists.  That  is  in  the  area  of  parole. 

I  wonder  if  you  would  agree  with  me — and  I  understand  from  your 
recent  comments  that  you  might — that  it  is  also  essential,  because  of 
past  abuses  and  the  promise  of  continued  abuse,  that  we  eliminate 
parole  release  and  establish  at  the  time  of  sentence  the  amount  of  time 
that  individuals  will  spend  in  prison  for  given  crimes. 

General  Bell.  I  do  agree  with  that.  I  think  it  will  follow,  after  we 
set  up  the  sentencing  system  under  S.  1437,  that  the  parole  authority 
ought  to  be  removed  prospectively.  I  do  not  know  how  we  can  do  it 
retroactively  for  the  people  already  in  prison. 

Several  things  would  be  accomplished  by  that.  It  would  make  the 
system  more  rational  in  the  eyes  of  the  public.  It  would  restore  the 
confidence  of  the  public  in  the  legal  system.  We  see  these  aberrations 
of  juries  who  sentence  people  to  1,433  years  in  Texas,  for  example, 
because  they  think  they  will  have  to  serve  longer  before  they  can  get 
out  on  parole. 


8596 

I  think  it  would  be  a  deterrent  to  crime  if  a  person  knew  that  his 
sentence  was  goino;  to  be  fair  but  that  he  would  have  to  serve  the  sen- 
tence. He  would  still  have  the  opportunity  to  earn  good  time  in  prison. 
Also,  probation  would  still  bo  a  large  part  of  the  law  for  the  first 
offender. 

In  the  end,  we  are  going  to  have  to  get  away  from  the  parole  sys- 
tem ;  I  agree  with  you. 

Senator  Kennedy.  Is  it  your  sense  that,  in  reviewing  the  current 
status  of  parole  release  and  how  it  is  used,  that  the  record  is  clear 
that  we  really  do  a  very  poor  job  in  being  able  to  readily  predict  the 
rehabilitation  of  criminals  ? 

General  Bell.  We  do. 

Senator  Kennedy.  This  is  troublesome,  in  terms  of  both  the  appear- 
ance and  the  reality  of  injustice  in  our  criminal  justice  system.  In 
so  many  instances  parole  is  based  on  factors  which  bear  little  rele- 
vance to  whether  or  not  the  criminal  has  been  rehabilitated. 

Can  one  really  coercively  rehabilitate  someone?  I  suppose  that  is 
the  question. 

General  Bell.  You  cannot.  You  exacerbate  the  disparity  through 
the  pai'ole  system  because  one  person  will  be  paroled  and  another 
one  will  not  be. 

It  has  been  necessary  to  set  parole  guidelines  that  indicate  the 
factors  whicli  the  parole  commission  is  to  consider  in  determining 
the  parole  release  date.  But  there  is  still  disparity. 

I  do  not  know  how  the  parole  release  system  rehabilitates  anyone. 
In  fact,  I  do  not  know  of  anyone  that  has  really  been  rehabilitated 
by  being  put  in  prison.  You  rehabilitate  people  by  putting  them  on 
probation.  It  might  be,  in  a  rare  case,  that  somebody  is  rehabilitated 
by  being  in  prison.  But  the  American  prison  system  is  in  such 
desperate  shape  that  that  will  have  to  bo  a  subject  to  be  discussed 
with  your  committee  later  on,  this  fall,  perhaps. 

There  is  not  nuich  rehabilitation  in  the  prison  system;  I  will  put 
it  like  that. 

Senator  Kennedy.  I  think  most  would  agree  with  that  statement. 

Wliat  we  are  really  attempting,  as  I  understand,  in  terms  of  sen- 
tencing is  that  we  do  not  believe  that  a  prison  term  should  be  bnsed 
on  the  idea  of  reliabilitation.  Rehabilitation  is  an  important  goal. 
It  is  an  essential  one,  I  believe.  Tt  is  one  that  must  have  the  support 
of  Congress  and  the  administration. 

But  wliat  we  are  basically  saying  is  that  rehabilitation  is  not  a 
purpose  of  sentencing.  They  have  been  blended  in  the  past.  Wliat 
I  am  saying,  Avhat  you  are  saying,  and  Avhat  this  leo-islation  is  saying 
is  that,  whon  a  sentence  is  declared  by  the  judge,  that  is  the  sentence 
to  be  served. 

General  Bell.  That  is  it,  and  that  is  the  way  it  ought  to  be. 

Senator  Kennei>y.  Under  the  current  system,  when  you  have  a 
12-  to  15-year  sentence — maybe  some  of  the  public  thinks  tliat  the 
defendant  is  going  to  be  in  for  15  yeaj's.  Yet  he  is  paroled  in  5  years. 
This  the  public  cannot  understand.  They  road  about  this. 

All  of  those  factors  contribute  to  both  injustice,  unfairness,  and 
misuse  in  terms  of  the  individual  as  well  as  the  i)ublic's  perception 
of  the  criminal  justice  system. 
General  Bell.  That  is  correct. 


8597 

Senator  Kennedy.  I  would  like  to  ask  you  about  the  marihuana 
provisions  in  the  bill.  There  is  great  interest  in  the  Congress  and 
great  concern  by  i)arents  and  by  younger  people. 

I  think  it  is  important  that  your  position  be  extremely  clear.  As  I 
have  heard  it  in  the  past,  it  is  the  belief  that  the  most  troublesome 
r.spects  of  the  drug  issue  in  our  society  involve  hard  drugs  such  as 
heroin,  and  the  trafficking  in  such  hard  drugs.  The  resources  of  the 
Federal  Government  ouglit  to  be  devoted  and  targeted  in  these  areas 
which  cause  such  tragic  damage  to  individuals,  families,  and  our 
American  society. 

I  think  it  is  important  that  we  understand  clearly  your  position 
and  that  of  the  administration. 

General  Bell.  The  provision  in  S.  1437  essentially  reflects  the 
practice  that  we  follow  now.  As  I  testified  at  the  confirmation  hear- 
ings, we  devote  Federal  resources  to  apprehending  traffickers.  We 
do  not  devote  Federal  resources  to  apprehending  people  in  posses- 
sion of  small  amounts  of  marihuana.  Vv^e  leave  that  to  the  states. 

We  consider  that  to  be  essentially  a  state  and  local  problem.  So, 
this  bill  really  codifies  what  our  practice  has  been. 

Senator  Kennedy.  You  think  that  makes  a  good  deal  of  sense  from 
a  law  enforcement  point  of  view  in  dealing  with  that  aspect  of  the 
drug  trade  which  is  the  most  dangerous  to  our  society. 
General  Bell.  Exactly. 

Senator  Kennedy.  Could  you,  General  Bell,  review  very  briefly 
why  you  think  tliat  this  legislation  is  important  from  a  law  enforce- 
ment point  of  view? 

General  Bell.  It  is  important  to  have  a  code  of  laws  that  the 
courts  and  law  enforcement  officials  can  understand.  It  is  important 
from  the  standpoint  of  deterrence  that  the  public  understand  what 
the  law  is. 

We  have  a  crazy  quilt  of  laws  now  in  many  areas. 
That  is  important.  As  you  have  noted,  the  sentencing  part  of  the 
bill  is  very  important.  We  certainl}'  haA'e  got  to  bring  some  stability 
and  rationality  into  the  criminal  justice  system.  We  do  not  have 
that  now. 

The  law  now,  in  many  ways,  can  be  described  as  a  nonsystem  or 
nonsst  of  laws  because  there  is  so  much  overlap.  It  is  important  to 
have  a  code  of  laws  that  makes  sense  and  that  the  people  can  under- 
stand. 

I  think  that  that  would  be  the  best  answer. 

The  fact  that  we  are  so  far  behind  the  states  is  something  that  is 
of  great  concern  to  me. 

Senator  Kennedy.  Thirty-five  states  have  either  completed  or  are 
working  on  this. 

General  Bell.  They  have  codified  the  laws  or  are  working  on  it. 
We  in  Georgia  long  ago  recodified  our  criminal  laws.  Since  then  we 
have  even  recodified  our  crimiinal  procedural  law.  The  Federal  Gov- 
ernment is  just  out  of  step  and  behind;  that  is  what  it  gets  down  to. 

Senator  Kenxedy.  It  seems  to  me  that  the  public  might  get  the 
impression  that  either  we  are  not  serious  about  improving  and 
strengthening  our  criminal  justice  s3-stem  or  that  we  are  indifferent 
about  it. 

^  You  are  satisfied  that  this  bill  also  does  add  some  important  addi- 
tional protections  for  the  civil  liberties  of  the  American  people  ? 


8598 

General  Bell.  There  is  no  question  about  that. 

The  best  protection  for  individual  liberties  is  to  have  specific  laws. 
This  does  that.  And  it  also  improves  civil  rights,  for  example. 

Getting  back  to  the  question  before  this,  I  think  that  this  code  will 
enable  the  Department  of  Justice  to  make  better  efforts  in  the  area 
of  organized  crime  and  wliite-collar  crime. 

Senator  Kennedy.  "Wliite-collar  crime  provisions  have  been  added, 
as  well  as  election  offense  provisions,  extensions  of  the  civil  rights 
laws,  and  the  provisions  on  rape. 

General  Bell.  I  think  tliat  is  an  improvement. 

Senator  Kennedy.  Let  me  ask  tliis  question.  There  have  been  those 
that  say,  well,  this  bill  is  too  comprehensive,  it  is  too  all-inclusive. 
It  is  too  vast  and  too  complex.  Why  shouldn't  w^e  do  this  piecemeal  I 
Why  shouldn't  we  take  this  bit  by  bit  ?  Every  one  of  these  provisions 
is  complex.  Why  shouldn't  we  just  take  our  time  and  do  it  bit  by 
bit  and  not  address  this  in  a  comprehensive  way? 

How  do  you  answer  that? 

General  Bell.  There  are  two  reasons. 

One  is  that  it  is  not  that  diflicult  to  master  this  code.  I  thought  the 
working  draft  was  fairly  long  myself.  But  I  had  people  working  on 
it  with  me,  and  initially  I  spent  about  half  a  day  with  them  going 
over  it.  I  did  further  reading  after  that.  We  came  up  with  a  few 
things  that  we  did  not  agree  with  and  a  great  deal  that  we  did.  We 
found  it  easy  to  amend.  It  is  not  so  difficult  that  it  cannot  be  compre- 
hended or  managed. 

Tlie  second  and  more  important  reason  is  that  this  is  a  compre- 
hensive approach  to  recodifying  the  law.  It  really  involves  a  balance. 
You  get  law  out  of  balance  if  you  change  one  part  of  the  law  without 
changing  all  of  it. 

I  do  not  tliink  it  is  a  reasonable  way  to  proceed  to  do  just  patt 
of  it  now  and  some  more  next  year  and  some  more  tlie  year  after 
next.  I  think  it  ought  to  be  done  at  one  time.  You  might  end  up  with 
greater  inconsistencies  or  greater  irrationalities  than  you  have  now 
if  we  do  it  piecemeal. 

Senator  Kennedy.  You  would  agree  that  the  interrelationship  of 
the  various  titles  is  essential?  It  is  (lifficult  to  do  one  title  and  perhaps 
not  do  the  others  in  terms  of  definitions,  reorganization  and  terms 
of  culpability. 

General  Bell.  Right. 

Senator  Kennedy.  If  we  are  going  to  reduce  the  80  different  defini- 
tions of  culpability  to  4,  which  we  are  doing,  it  is  important  and 
essential  that  this  be  done  throughout  the  criminal  code.  It  w^ould 
not  make  such  sense  to  do  one  title  here  and  one  title  there.  It  seems 
that  we  would  just  be  adding  again  to  the  mishmash  of  current 
provisions. 

General  Bell.  I  think  that  it  is  especially  important  not  to  split 
off  the  sentencing  provisions.  I  do  not  think  you  can  set  uj)  this 
sentencing  system  unless  you  change  the  substantive  law  to  go  along 
with  it. 

Senator  Kennedy.  They  are  really  interrelated. 

General  Bell.  Yes. 

Senator  Kennedy.  In  terms  of  equity  and  fairness  both. 


8599 

General  Bell,  I  do  not  know  any  other  way  to  proceed  to  recodify 
the  law  except  by  having  a  long  bill.  If  the  bill  is  not  so  long  that 
it  cannot  be  understood,  then  there  is  nothing  wrong  with  that 
approach. 

Senator  Kennedy.  There  is  a  vote  on  the  floor  on  the  Eagleton 
amendment. 

Senator  Hatch? 

Senator  Hatch.  Thank  you,  Mr.  Chairman. 

I  want  to  compliment  you  and  your  staff.  General,  for  the  leader- 
ship that  you  have  taken  in  trying  to  formulate  a  better  criminal 
code  in  the  United  States. 

I  think  it  is  important  to  point  out  for  the  people  here  today  that 
this  bill  does  not  decriminalize  marihuana. 

General  Bell.  Right. 

Senator  Hatch.  AVhat  it  does  is  put  the  emphasis  on  apprehending 
traffickers.  As  I  read  the  bill,  it  does  make  a  person  guilty  of  various 
class  felonies,  for  possessing  10  grams  or  more.  Ten  grams  is  a  little 
more  than  a  third  of  an  ounce  of  marihuana. 

It  has  been  indicated  in  testimony  here  in  the  past  that  65  to  75 
marihuana  cigarettes  could  be  made  from  1  ounce.  So,  I  have  to 
admit  that  I  like  this  bill  better  than  what  has  been  advocated  here 
in  the  past.  I  suspect  you  do,  also. 

General  Bell.  I  am  not  familiar  with  that  past  testimony;  I  take 
my  own  position. 

Senator  PIatch.  You  bet. 

Do  you  feel  as  I  do,  then,  that  marihuana  is  something  for  which 
repeated  possession  of  substantial  quantities  should  be  categorized 
as  something  more  than  just  a  minor  offense  with  a  decriminalized 
penalty  ? 

General  Bell.  I  do  take  that  position.  "We  are  not  decriminalizing. 

Senator  Hatch.  That  is  right. 

General  Bell.  We  are  not  making  possession  of  a  small  amount 
a  Federal  crime.  It  is  still  a  local  crime  or  a  State  crime.  We  cannot 
enforce  all  tlie  local  laws  on  the  Federal  level. 

Senator  Hatch.  I  understand. 

General  Bell.  We  want  to  devote  our  resources  to  catching  the 
traffickers  in  hard  drugs  and  marihuana  also. 

Senator  Hatch.  I  commend  you  for  that. 

I  want  again  to  say  that  I  think  you  have  provided  some  energetic 
leadership — you  and  your  staff — in  this  particular  area.  I,  for  one, 
want  to  congratulate  you  for  it. 

General  Bell.  Thank  you. 

Senator  Kennedy.  General,  we  will  perhaps  submit  additional 
questions  to  you.  We  appreciate  very  much  your  presence  here.  I 
want  to  work  very  closely  with  you  and  the  Administration  in 
expediting  this. 

I  note  Mr.  Flaherty's  and  Mr.  Gainer's  presence  here.  Mr.  Gainer 
also  has  been  very,  very  helpful  to  us. 

General  Bell.  It  is  a  pleasure  for  us  to  work  with  you.  Thank  you. 

Senator  Kennedy.  Thank  you. 

We  are  going  to  suspend  now.  I  will  not  be  here  when  we  recon- 
vene. Before  we  do  suspend,  I  want  to  give  a  warm  word  of  welcome 

92-465 — 77 3 


8600 

to  the  former  Governor  of  California,  Governor  Brown.  He  has 
probably  been  more  concerned  about  this  issue  than  anj'  single 
individual. 

It  has  been  a  long,  hard,  and  persistent  matter  of  interest  and 
concern  to  Pat  Brown.  He  has  come  all  the  way  from  Indonesia.  He 
arrived  just  a  few  hours  ago  to  be  with  us  here  this  morning. 

Governor,  we  are  going  to  hear  from  you  shortly  when  we  recon- 
vene. "We  are  going  to  recess. 

But  I  want  to  add  a  very  warm  personal  welcome  to  3^ou.  Your 
very  sigTial  work  in  this  area  does  not  go  unnoticed. 

Senator  Hatch.  Likewise. 

I  wdll  be  back  soon.  Governor  Brown,  to  begin  your  testimon}'. 

[Recess  taken.] 

Senator  Hatch  [acting  chairman] .  The  subcommittee  hearing  will 
come  to  order. 

Governor,  welcome  to  our  committee.  We  are  happy  to  have  you 
with  us  today  and  we  thank  you  for  the  efforts  which  3'ou  have  put 
forth  with  regard  to  this  bill. 

MVe  are  pleased  to  welcome  you  to  our  committee. 

Mr.  Brown.  Thank  you  very  much,  ISIr.  Chairman. 

I  have  asked  Professor  Schwartz,  who  is  the  executive  officer  of 
our  commission,  to  sit  beside  me.  He  has  studied  all  of  these  code 
revisions  and  has  written  several  articles  on  them.  I  know  he  is  going 
to  testify  after  I  testify. 

Senator  Hatch.  We  are  happy  to  have  you  here  also.  Professor 
Schwartz.  We  w^elcome  you. 

Mr.  Schwartz.  Thank  you,  Mr.  Chairman. 

STATEMENT  OE  EDMUND  G.  BEOWN,  FORMER  CHAIRMAN.  NA- 
TIONAL COMMISSION  ON  REFORM  OF  THE  FEDERAL  CRIMINAL 
LAWS 

Governor  Brown.  Thank  you,  Mr.  Chairman,  and  members  of  this 
committee. 

I  want  to  thank  you  for  permitting  me  to  testify.  I  am  a  member 
of  the  State  bar  of  California  and  a  partner  in  the  law  firm  of  Ball, 
Hunt,  Hart,  Brown,  and  Baerwitz.  I  am  former  Governor  of  Cali- 
fornia and  former  attorney  general  of  California. 

In  1966,  President  Johnson  appointed  me  Chairman  of  the  Na- 
tional Commission  on  Reform  of  the  Fedei-al  Criminal  Laws,  and 
I  served  in  that  capacity  until  the  Commission  filed  its  report  with 
the  Congress  and  the  President  in  lOTl.  Since  then,  I  have  continued 
my  interest  in  the  revision  of  title  18  of  the  United  States  Code.  I  am 
here  today  to  urge  the  Senate  Judiciary  Committee  to  report  favor- 
ably on  the  new  bill,  S.  1487,  introduced  by  Senators  McClellnn  and 
Kennedy.  I  believe  that  the  broad  subject  matter  embraced  by  tliis 
bill  is  ol"  importance  to  the  wb.ole  country  and  that  Congress  sb.ould 
address  itself  to  the  problem  of  revision  with  the  least  possible  delay. 

I  had  some  reservations  with  regard  to  the  wisdom  of  certain 
provisions  contained  in  the  former  bill,  S.  1,  although  I  was  con- 
vinced that  a  very  substantial  ))art  of  that  bill  constituted  sound 
legislation  and  a  great  improvement  over  the  existing  provisions 


8601 

of  title  18.  Last  year  I  urged  Senators  McClellan,  Hruska,  Kennedy, 
and  Hart  to  adopt  a  compromise  which  would  eliminate  certain  of 
the  more  controversial  sections  of  the  earlier  bill  and  retain  the 
existing  law  in  place  of  those  provisions.  Senators  Llansfield  and 
Scott,  then  majority  and  minority  leaders  of  the  Senate,  evidently 
thought  well  of  the  suggestions  and  urged  the  adoption  of  a  compro- 
mise which  might  speed  the  legislation  toward  passage  by  the 
Senate.  A  prodigious  etfort  was  iiiade  by  the  four  members  of  the. 
committee  toward  tliat  end,  and  substantial  agreement  was  reached 
concerning  elimination  of  the  more  controversial  sections  of  the  bill. 
While  our  hopes  were  not  wholly  fulfilled,  the  stalf  work  on  the 
legislation  continued,  and  I  sincerely  congratulate  Senators  McClellan 
and  Kennedy  and  their  respective  staffs  on  their  ability  to  join  in 
the  introduction  of  S.  1437.  I  am  particularly  gratified  that  Attorney 
General  Bell  is  lending  his  support  to  a  bill  that  constitutes  a  bal- 
anced compromise  and  yet,  at  the  same  time,  is  progressive  legislation. 

I  cannot  claim  total  familiarity  with  all  of  the  revisions  of  this 
new  bill,  but  I  believe  that  it  incorporates  many  of  the  recommenda- 
tions which  the  National  Commission  made  to  Congress  6  years  ago. 

When  you  consider  that  we  took  31/^  years  to  write  the  original 
recommendations  that  were  presented  in  our  report,  it  will  take 
some  time  to  go  through  this  new  bill  and  find  the  differences  between 
the  report  that  we  made  and  the  bill  that  was  introduced.  I  am  very 
proud  of  the  work  that  our  Commission  accomplished,  and  I  am 
glad  to  see  that  it  is  given  recognition  in  this  bill. 

I  recognize,  of  course,  that  before  the  enactment  of  comprehensive 
legislation  such  as  that  before  this  committee,  some  opposition  will 
be  encountered  from  those  whose  concern  focuses  primarily  on  strong 
law  enforcement,  and,  likewise,  from  others  whose  approach  to  the 
problems  of  crime  relate  solely  to  the  goal  of  protecting  the  civil 
liberties  of  our  citizens.  I  have  usually  found  myself  within  the  ranks 
of  the  civil  libertarian  group.  At  this  particular  time,  however,  I 
would  urge  Members  of  Congress  and  all  other  protagonists  for 
change  in  our  criminal  laws  to  set  to  one  side  their  preoccupation 
with  their  own  views  as  to  all — and  I  emphasize  "all" — needed 
change  regardless  of  direction.  Instead,  I  would  urge  that  we  join 
together  and  fix  our  sights  on  the  vital  and  transcending  need  for  a 
general  revision  of  the  law. 

It  is  certainly  unnecessary  for  me  to  enumerate  the  deficiencies  of 
title  18  of  the  United  States  Code  as  it  presently  stands,  since  they 
have  been  thoroughly  documented  and  are  matters  of  which  I  am 
sure  this  committee  is  already  fully  aware. 

Nor  do  I  believe  that  there  is  any  need  for  me  to  point  out  the 
unlikelihood  that  anyone  will  proclaim  that  the  revisions  of  S.  1437 
constitute  the  best  criminal  code  that  could  be  devised.  No  one  has 
yet  put  together  a  document  that  could  reach  such  a  broad  goal.  I 
suspect  that  a  bill  of  that  nature  would  have  so  little  chance  of 
enactment  that  we  would  be  wasting  our  time  if  we  were  discussing  it 
today.  A  consensus  could  not  be  obtained. 

I  suggest  that  Congress  has  three  possible  courses  which  it  might 
pursue  in  the  modernization  and  revision  of  title  18. 

First,  it  could  make  a  serious  and  detailed  attempt  to  deal  with 
each  section  or  chapter  needing  revision  in  separate  bills.  Paren- 


8602 

tlietically,  I  submit  to  you  that  every  chapter  ultimately  needs  such 
treatment.  That  course  would  have  the  advantage  of  educating  the 
Congress  and  the  public  with  regard  to  all  the  intricacies  of  the 
criminal  law.  But  it  would  obviously  take  forever.  One  hundred 
yeai's  from  now  w^hen  the  last  chapter  might  be  addressed,  it  would 
be  time  to  start  all  over  again.  Meanwhile,  an  endless  amount  of 
effort  would  have  taken  the  time  of  the  Congress  away  from  other 
important  affairs. 

A  second  course  would  be  for  Congress  to  seek  a  single,  compre- 
hensive revision  of  the  whole  code  on  a  unified  basis,  embracing 
therewith  a  determination  to  settle  all  disputes  with  regard  to  every 
section.  In  the  usual  effort  to  update  and  amend  the  Federal  laws 
in  a  particular  area,  that  may  seem  the  obvious  solution.  In  a  matter 
so  packed  with  difficulties,  honest  disagreement  and  serious  contro- 
versy as  to  the  administration  of  the  criminal  laws,  however,  an 
attempt  to  iron  out  all  disputes  in  a  single  piece  of  legislation  would 
almost  inevitably  doom  the  revision  to  frustration  and  final  defeat. 

S.  1437  seems  to  me  to  follow  the  middle  ground  which  is  emi- 
nently sensible  and  pragmatic.  There  are  certain  broad  areas  in  the 
scope  of  title  18  which  can  be  revised  on  a  modern  and  acceptable 
basis,  without  stirring  deep  controversy.  The  bill  addresses  itself 
to  those  broad  areas.  There  are,  however,  certain  additional  areas 
which  do  arouse  strong  differences  of  opinion  and  controversy,  but 
which  might  be  resolved  without  jeopardizing  the  success  of  the 
whole  revisionary  effort.  The  proposals  for  decriminalization  of 
marijuana  possession  and  a  modern  sentencing  structure  might  be 
cited  as  obvious  examples.  Immediate  changes  in  those  laws  would 
seem  to  be  imperative.  One  might  realistically  expect  that  differences 
in  approach  might  be  ironed  out. 

In  other  areas,  however,  the  difficulties  were  too  deepseated  to 
have  permitted  joint  sponsorship  of  this  bill  and  any  attempt  to 
deal  with  them  in  broad  legislation,  such  as  S.  1437,  would  only  have 
resulted  in  seriously  jeopardizing  any  chance  of  passage  of  this 
much-needed  legislation.  Such  matters  as  the  secrecy  provisions, 
which  were  contained  in  S.  1,  gun  registration  and  wire  tapping, 
could  only  have  been  resolved  after  struggles  which  almost  inevitably 
would  have  destroyed  any  chance  of  passage.  I  believe  this  was  the 
primary  difficulty  faced  by  S.  1. 

Separate  bills  addressing  themselves  to  narrow,  specific  contro- 
versial pi'oblems,  seem  to  me  to  be  the  obvious  way  of  handling  those 
matters.  When  enacted,  they  will,  of  course,  become  part  of  the 
now  code. 

I,  therefore,  ui-ge  all  my  friends  in  the  American  Civil  Liberties 
T^^nion,  as  well  as  those  who  are  convinced  that  some  form  of  more 
effective  criminal  justice  is  absolutely  critical,  to  direct  their  efforts 
toward  securing  what  is  immediately  possible  and  realistic  in  the 
w'ay  of  revision  and  improvement  in  the  criminal  hiAvs. 

it  is  obvious  that  S.  1437  represents  a  delicate  balance  between  the 
se]iarnte  viewpoints  of  what  might  be  termed  conservatives  and 
liberals.  Any  attempt  to  upset  that  balance  by  piling  on  tlie  special 
concerns  of  one  group  or  the  other  may  doom  the  legislation  to 
almost  certain  defeat.  In  my  opinion,  it  should  be  pressed  towards 


8603 

passage  with  its  provisions  virtually  intact.  Thereafter,  there  will 
be  enough  time  to  secure  through  separate  bills  all  the  changes  that 
either  group  may  deem  desirable. 

Thank  you  again  for  allowing  me  to  testify. 

Senator  Hatch.  Thank  you,  Governor. 

^ye  will  hear  now  from  Professor  Schwartz,  and  then  I  will  have 
some  questions  for  both  of  you. 

STATEMENT  OF  PROF.  LOUIS  B.  SCHWARTZ,  FORMER  DIRECTOR, 
NATIONAL  COMMISSION  ON  REFORM  OF  THE  FEDERAL  CRIMI- 
NAL LAWS 

Mr.  Schwartz.  Thank  you.  Senator. 

There  is  very  little  left  to  say  after  what  you  have  already  heard 
this  morning.  I  have  said   it  in  writing,  and  a  copy  has  been  filed. 
[Material  follows :] 

Summary  of  Testimony  of  Louis  B.  Schwartz,  Benjamin  Franklin 
Professor  of  Law,  University  of  Pennsylvania,  and  Director, 
National  Commission  on  Reform  of  Federal  Criminal  Laws 

I  am  grateful  for  the  opportunity  to  testify  in  favor  of  prompt  reform  of 
the  Federal  criminal  code,  and  to  support  the  McClellan-Kennedy  bill,  S.  1-137. 
S.  14S7  proposes  numerous  important  improvements  in  existing  law,  following 
in  the  main  the  recommendations  of  the  National  Commission  on  Reform  of 
Federal  Criminal  Laws,  hereinafter  referred  to  as  the  "National  Commission". 
It  would  enhance  the  effectiveness  aid  fairness  of  law  enforcement  without 
undermining  constitutional  rights.  It  will  help  to  make  the  law  respectable,  and 
thus  promote  respect  for  law.  It  has  it's  shortcomings  from  my  point  of  view; 
and  some  issues  such  as  capital  punishment,  gun  control,  insanity  and  other 
defenses  have  been  passed  over  as  politically  insoluble  for  the  present.  Some 
of  my  concerns  are  listed  in  an  appendix  to  this  summary,  and  many  of  my 
views  are  more  completely  stated  in  Reform  of  the  Federal  Criminal  Laws: 
Issues,  Tactics  and  Prospects,  1977  Duke  Law  Journal  173.  But  in  a  democracy 
all  legislation  must  compromise  among  countending  points  of  view.  Insistence 
by  any  faction  on  complete  adoption  of  its  program  is  the  surest  way  of  blocking 
any  progress. 

ADVANCES  OVER  PRESENT  FEDERAL  CRIMINAL  LAW 

1.  Organization;  Simplification;  Modernized  Definitions  of  Crime;  Elimina- 
tion of  Obsolete  Offenses. 

2.  Sentencing — Introducing  Order  and  Reason  Into  the  Chaos  of  Sentencing. — 
There  are  two  central  aspects  of  any  penal  code:  (i)  what  activity  is  penalized, 
and  (ii)  what  punishments  are  authorized  and  how  much  discretion  is  allo- 
cated to  judges,  parole  officials  and  others  in  relation  to  the  imposition  and 
service  of  sentences.  Present  Federal  law  is  notoriously  defective  in  the  loose- 
ness with  which  sentencing  is  regulated.  Prosecutors  have  enormous  power  over 
sentence  although  sentencing  is  generally  thought  to  be  a  judicial  function. 
They  have  this  power  because  of  virtually  uncontrolled  discretion  in  selecting 
the  charges  to  bring  against  the  accused,  in  bargaining  to  drop  charges  in  ex- 
change for  pleas  of  guilty,  and  in  making  sentence  recommendations  which  are 
often  deferred  to  by  the  sentencing  judge.  The  Federal  prosecutor  can  cumu- 
late charges  arbitrarily,  as  in  the  notorious  instance  of  mail  fraud,  where  a 
single  fraud  can  be  treated  by  the  prosecutor  as  one  crime  or  as  10  or  20 
crimes  depending  on  how  many  letters  the  prosecutor  decides  to  put  into 
separate  counts  of  the  indictment.  The  judges  have  virtually  uncontrolled  dis- 
cretion to  fix  a  term  of  imprisonment  anywhere  within  very  broad  maxima 
set  by  present  Federal  criminal  laws  or  to  impose  no  imprisonment  whatever. 
Outrageous  differences  in  treatment  of  similar  offenses  and  offenders  have  been 
reported  among  different  Federal  judicial  districts  and  among  judges  of  the 
same  district.  The  judge's  discretic  n  (and  opportunities  for  arbitrary  action) 
are  enlarged  by   his   freedom   to   those   between   consecutive  and   concurrent 


8604 

sentencing  when  defendant  has  been  convicted  of  a  number  of  offenses.  There 
is  no  existing  provision  for  appellate  review  of  arbitrary  sentences.  The  Parole 
Commission's  discretion,  under  indeterminate  sentences  with  very  long  maxima, 
is  virtually  boundless,  although,  to  its  credit,  the  Commission  has  often  used 
its  discretion  to  temper  the  unjust  discrepancies  in  judicially  imposed  sentences 
and.  in  recent  years,  has  sought  to  put  the  exercise  of  discretion  on  a  rational 
basis  by  formulating  a  set  of  Guidelines. 

S.  1437  addresses  itself  to  these  problems  constructively: 

(1)  Prosecutorial  overcharging  based  on  the  technicalities  of  mail  fraud  and 
other  Federal  jurisdictional  niceties  is  restrained  by  section  201(b)  :  "Proof  of 
more  than  one  [Federal  jurisdictional  peg]  does  not  increase  the  number  of 
offenses  that  may  be  found  to  have  been  committed." 

(2)  Judicial  discretion  to  give  consecutive  sentences  is  restrained  by  section 
2304  permitting  consecutive  sentences  to  aggregate  no  more  than  (roughly) 
double  the  longest  sentence  for  any  one  of  the  offenses. 

(3)  Sentencing  arbitrariness  will  be  notably  restrained  by  providing  for 
appeal  from  sentence.  Section  3725. 

(4)  Parole  discretion  would  be  subjected  to  congressional  guidance  by 
specifying  considerations  to  be  taken  into  account,  by  limiting  tlie  duration  of 
parole,  by  mandating  parole  for  at  least  the  final  one-tenth  of  the  prison  term 
imposed,  by  providing  for  administrative  appeals  from  denial  or  revocation  of 
parole,  and  by  regulation  of  parole  procedure. 

(5)  An  innovative  proposal  to  develop  a  national  sentencing  policy  is  em- 
bodied in  Part  E  of  the  bill,  establishing  a  Sentencing  Commission  to  develop 
Guidelines  for  the  judges  as  well  as  the  Parole  Commission.  Although  the 
Federal  judges  would  not  be  bound  to  sentence  within  the  range  suggested  by 
the  Commission's  guidelines,  they  would  have  to  state  their  reasons  for  not 
doing  so,  and  sentences  outside  the  guidelines  would  be  appealable.  One  can 
admire  the  creative  power  of  this  proposal  without  being  certain,  at  this  stage, 
that  it  is  preferable  to  or  combinable  with  other  options,  e.g.,  intensification  of 
the  reform  of  parole. 

3.  The  Rigidities  of  Mandatory  Minimum  Sentencing  Are  Avoided. — ^Where 
prior  legislation  has  mandated  prison  sentences,  e.g.,  for  narcotics  and  weapons 
offenses.  S.  1-137  opens  the  gate  to  some  guided  exercise  of  judgement.  Sections 
1811.  1823.  The  commendable  desire  of  Congress  to  express  national  penal 
policy  is  far  better  served  ]iy  declaring  policy  preferences  or  guidelines  than 
by  seemingly  absolute  requirements  w^hich  are  easily  evaded  by  prosecutors 
and  others. 

4.  Offrnsca  Are  Reasonal)ly  Graded. — The  principle  that  big  thieves  deserve 
harsher  treatment  than  petty  thieves  is  embodied  not  only  in  the  provision  on 
theft,  but  also  in  tax  and  other  laws.  A  modernized  treatment  of  ar.«?on  gets 
away  from  grading  (inherited  from  feudalism)  that  makes  burning  a  dwelling 
or  an  "outhouse"  thereof  the  most  serious  offense:  section  1701  deals  with 
burning  or  exploding  "public  facilities  and  structures",  i.e.  schools,  theaters, 
office  buildings,  systems  of  communication.  enerGry.  water,  sanitation,  etc. 
Antique  and  perverse  grading  of  homicide  is  eliminated.  No  longer  will  killing 
by  an  agonizing  parent  or  sponse  to  end  the  tortures  of  a  dying  loved  one  be 
trentfd  as  "first  degree"  (potentially  capital  murder— because  it  is  "deliber- 
ate"— while  a  wanton  slaying  on  impulse  "for  kicks"  is  second  degree  murder  be- 
cause it  lacked  "premeditation".  No  longer  will  a  killing  provoked  by  vile 
racist  insults  be  treated  more  harshly  than  a  killing  provoked  by  a  slap. 

5.  Civil  TAherties  Are  E.rtendcd. — Perhaps  tho  greatest  extension  of  civil 
liberties  inheres  in  the  sentencing  reforms  mentioned  above,  insofar  as  they 
guard  against  arliitrary  deprivation  of  lil»orty.  Care  has  been  taken  to  avoid 
penalizing  "leaks"  of  information  from  the  government,  except  in  a  few  cate- 
gories of  vital  defense  secrets  and  private  information  furnished  to  the  gov- 
ernment in  confidence.  Discrimination  based  on  sex  becomes  criminal.  Section 
1.504.  The  Smith  Act  with  its  notorious  threat  to  freedom  of  speech  and  mem- 
bership in  radical  political  organizations  has;  boon  eliminated.  Propped  also 
are  the  relic  of  World  "War  T  hysteria  directed  acainst  circulating  false  rumors 
in  wartime  (18  U.S.C.  f^jec.  2388),  and  the  obsolete  18th  century  act  purporting 
to  restrain  American  citizens'  contacts  with  other  nations.  Disobedience  of  a 
clearly  invalid  judicial  Injunction  is  exclude!  from  punishable  contempt  (but 
that  does  not  palliate  the  unfortunate  upgrading  of  contempt  to  the  level  of 
felony).  Section  1335.  Sex  offenses  have  l«oen  appropriately  narrowed,  e.g..  by 
limiting  criminality  in  both  heterosexual  and  homosexual  relation.ships  to  force 


8605 

and  imposition  on  children;  so-called  statutory  rape  is  relieved  of  some  of  its 
absurdities  by  excluding  sexual  incidents  between  juveniles  of  approximately 
the  same  age. 

Probably  a  major  target  of  the  American  Civil  Liberties  Union  and  others 
will  be  the  obscenity  law,  which  is  indeed  unsatisfactory  (see  Appendix)  al- 
though not  more  unsatisfactory  than  present  judge-made  law. 

6.  Corporate  Crime-Control  Is  Meaninofully  Strengthened. — Officers  are  made 
responsible  if  their  "reckless  failure  to  supervise"  contributes  to  corporate 
criminality,  section  403(c).  Convicted  corporations  may  be  required  to  advertise 
their  disgrace.  Section  2005.  Restitution  to  "victims"  may  be  ordered.  Section 
2006.  Fines  may  go  as  high  as  twice  the  gain  from  the  crime  or  the  loss  caused 
by  the  crime.  Section  2201(c). 

7.  Minor  Marijuana  Offenses  Are  Decriminalized. — Possession  of  less  than  10 
grams  is  decriminalized  in  section  1813.  This  is  a  hopeful  beginning  in  the  dis- 
mantling of  a  widely  disregarded  system  of  controls  that  has  failed  as  notori- 
ously as  liquor  prohibition.  S.  1437  does  not  go  far  enough  in  decriminalizing 
marijuana :  to  buy,  transfer,  possess  with  intent  to  transfer,  or  to  grow — all 
these  constitute  felonious  "trafficking",  however  petty  the  quantity  involved 
and  however  free  of  commercialism.  Section  1812.  Nevertheless,  S.  1437  marks 
progress. 

The  achievement  of  such  gains  would  be  magnificent  progress,  even  if  many 
of  us  would  like  to  se  additional  reforms,  including  some  mentioned  in  the  fol- 
lowing list  of  concerns  which  I  still  have  about  S.  1437. 

Appendix 
concerns  about  s.   1437;  agenda  for  further  reforms 

1.  Scope  of  the  Bill. — Public  comprehension  might  be  facilitated  by  splitting 
off  the  substantive  code  (plus  a  few  items  like  appeal  of  sentence,  parole,  victim 
compensation,  and  sentencing  commission)  from  the  remainder  of  the  bill.  The 
substantive  code  would  then  amount  to  only  200  pages. 

On  the  other  hand  it  is  vital  not  to  yield  to  pressures  to  reform  the  code 
piecemeal.  The  code  is  integrated.  One  cannot  define  crimes  without  knowing 
what  the  general  definitions  are.  One  cannot  set  maximum  terms  of  imprison- 
ment except  in  the  light  of  consecutive  sentence  provisions  and  parole  arrange- 
ments. One  cannot  in  grading  tax  offenses  or  property  damage  offenses  disregard 
the  grading  of  theft  by  amount  stolen. 

2.  Defenses. — See  sections  501,  502  ("common  law").  The  draftsmen  have  aban- 
doned all  attempt  to  define  exculpating  insanity,  self-defense,  privilege  to  use 
force  in  law  enforcement,  etc.  My  reasons  for  opposing  this  are  set  forth  in 
Reform  of  the  Federal  Criminal  Laws:  Issues,  Tactics  and  Prospects,  1977 
Duke  Law  Journal  173. 

3.  Harsh  Sentence  Maxima. — Although  the  statutory  maxima  are  generally 
not  higher  than  under  existing  law,  they  are  effectively  higher  insofar  as  the 
parole  period  is  added  to  the  specified  prison  sentence,  section  2303,  3834(b), 
whereas  imder  present  law  and  the  National  Commission's  recommendations  the 
parole  period  is  deducted  from  the  specified  prison  sentence.  Restoring  parole  as 
a  deductible  would  be  a  simple  way  to  ameliorate  the  sentence  structure  of 
S.  1437.  Examples  of  harsh  maxima  in  S.  1437  include:  (i)  .section  1611,  "maim- 
ing", carrying  12  years  imprisonment  plus  3  years  parole,  and  defined  so  loosely 
as  to  include  cases  where  the  victim  lost  the  use  of  a  finger  or  toe,  or  was 
slightly  but  permanently  deafened  by  a  slap  on  his  ear.  (ii)  section  1612,  "aggra- 
vated battery",  carrying  up  to  6  years  for  a  fist  fight  if  one  combatant  is 
knocked  unconscious.  Moreover,  departing  from  the  National  Commission's  code, 
upper  ranges  of  authorized  maxima  are  not  reserved  for  defined  classes  of 
specially  dangerous  offenders.  The  proposed  Sentencing  Commission  Act  pro- 
vides that  "a  substantial  sentence  of  imprisonment  shall  be  provided  in  the 
guidelines  for  most  [such]  cases." 

4.  Vndesirahle  Short-Term  Imprisonments. — The  National  Commission  pro- 
vided for  a  lowest-level  offense  that  should  carry  no  imprisonment,  but  fine 
only:  the  "infraction".  It  was  peculiarly  suitable  to  unwitting,  non-dangerous 
breach  of  traffic  rules,  administrative  regulations,  and  the  like.  The  penalty  has 
been  increased  in  S.  1437  to  5  days  in  jail,  an  expensive,  useless  indignity,  which 
will  inevitably  be  imposed  in  a  selected  few  of  the  innumerable  cases  in  which 
it  is  applicable. 


S606 

It  can  be  defended  as  an  improvement  over  the  30-day  and  6-month  penalties 
thoughtlessly  authorized  in  much  exrant  legislation.  But  it  would  be  better 
eliminated. 

Above  the  "infraction",  S.  1437  provides  three  classes  of  misdemeanors,  with 
maxima  of  30  days,  6  months,  and  1  year,  respectively.  Section  2301(b).  Short 
term  imprisonment  is  probably  essential  for  some  minor  crimes,  but  the  deter- 
rent effect  that  can  be  gained  from  it  is  fully  realized  in  a  30-day  sentence. 
Additional  jail  up  to  a  year  is  gratuitous  and  socially  costly  cruelty.  Only 
recidivists  should  be  subject  to  substantial  sentences.  Cf.  National  Commission 
section  3003. 

5.  Legislative  Policy  on  ProMtion  and  Parole  Is  Not  Established. — The  bill 
states  what  factors  shall  be  "considered"  in  making  these  crucial  decisions,  but 
fails  to  adopt  the  National  Commission  proposal  that  non-jail  alternatives  be 
favored  unless  the  deciding  official  believes  that  imprisonment  better  serves  the 
public  interest. 

6.  Conspiracy. — The  bill  in  effect  continues  existing  law  requiring  merely  that 
two  persons  "agree"  and  do  "any  conduct"  to  effectuate  the  agreement.  The 
conduct  need  not  be  such  as  "indicates  intent  that  the  crime  be  completed", 
as  in  the  case  of  attempt.  It  is  time  for  a  more  radical  cut-back  on  conspiracy. 
Since  conspirators  are  accomplices  if  the  crime  is  carried  out  or  in  any  attempt 
to  carry  it  out,  the  only  need  is  for  a  narrowly  defined  offense  of  organizing 
or  leading  a  substantial  and  continuous  criminal  business.  Cf.  section  1005  of 
the  National  Commission's  Study  Draft  and  the  Racketeering  provisions  of  the 
present  bill.  Sections  1801  et  seq. 

7.  Obscenity. — The  attempt  at  federal  enforcement  of  morals  in  this  area  is  a 
shambles,  makes  the  law  look  ridiculous,  and  operates  with  extreme  unfairness 
as  between  publishers  of  like  material.  Insofar  as  section  1842  penalizes  "com- 
mercial dissemination"  to  adults  where  nothing  is  thrust  upon  an  unwilling 
person,  it  ought  to  be  dropped.  The  felony  classification  is  in  any  event  exces- 
sive. The  reliance  on  "community  standards",  originally  introduced  in  the 
American  Law  Institute's  Model  Penal  Code  as  a  restraint  on  efforts  to  penalize 
widely  accepted  material,  has  been  converted  by  Supreme  Court  decisions  into 
a  weapon  by  which  the  most  prudish  local  prosecutor  can  jeopardize  a 
nationally-distributed  publication.  There  is  in  section  1842  not  even  an  exemp- 
tion for  material  going  to  a  state  where  it  is  lawful,  although  section  1843 
dealing  with  prostitution  makes  it  a  defense  to  federal  prosecution  that  the 
activity  is  lawful  in  localities  where  it  is  carried  on. 

8.  False  Oral  Statements  to  Investigating  Officers. — Section  1343  is  too  broad. 
It  makes  it  a  crime  even  to  deny  guilt  iindor  interrogation  by  an  officer.  Family, 
friends,  informants  and  others  can  be  convicted  under  this  section  on  the  basis 
of  statements  in  private  interviews  with  officers,  if  the  officer  is  prepared  to 
testify  later  that  the  false  statement  was  "volunteered"  or  made  after  advice 
that  it  is  an  offense  to  lie  to  policemen.  The  National  Commission  was  much 
more  circumspect.  Final  Report  sections  1352(3),  1354  (penalizing  false  oral 
statements  only  when  made  in  the  protective  context  of  an  "official  proceeding", 
except  for  fire  alarms,  bomb  scares,  false  incrimination  of  innocents). 

,9.  Dispersal  and  Other  Police  Orders  in  Riots  and  Emergencies. — Disobedience 
of  "public  safety  orders"  was  proposed  by  the  National  Commission  as  a  non- 
jail  infraction  to  facilitate  discrimination  between  mere  presence  at  a  riot  and 
participating  or  law  obstructive  behavior.  Safeguards  included  the  requirement 
that  the  order  be  authorized  by  a  supervising  officer.  Infractions  in  S.  1437  are 
punishable  by  5  days  imprisonment,  a  penalty  that  should  not  be  within  the 
power  of  a  single  policeman  to  allot  to  someone  he  is  prepared  to  say  "dis- 
obeyed" him.  The  infraction  .should  in  any  event  be  limited  so  that  police  can- 
not prevent  representatives  of  the  press  and  elected  officials  from  attending, 
observing,  photographing,  and  reporting  confused  events  of  high  public  interest. 

10.  Disorderly  Conduct. — In  response  to  mistaken  pressure  of  civil  liberties 
groups,  the  National  Commission's  carefully  delimited  infraction,  publishable  by 
fine  only,  has  been  dropped.  The  effect  of  this  is  preci.sely  the  opposite  of  what 
was  intended.  Disorderly  conduct  is  not  thereby  eliminated  as  a  federal  crime, 
in  federal  enclaves  for  example.  On  the  contrary,  it  is  retained  as  an  adoption 
from  neighboring  states  and  communities,  section  1862.  with  varying,  notoriously 
loose  definitions  and  with  penalties  up  to  one  year's  imprisonment. 

11.  Possessing  Burglary  Tools. — Election  1715  penalizes  possession  of  objects 
"commonly  used"  for  burglary,  if  the  possessor  "intends"  to  use  them  for  that 
purpose.  This  is  a  common  state  statutory  provision  that  too  easily  lends  itself 


8:607 

to  arrest  without  real  probable  cause  and  to  unjust  convictions.  Instruments 
commonly  used  for  burglary  include  screw-drivers,  hammers  and  other  tools 
which  are  just  as  commonly  used  for  innocent  purposes.  Section  1715  does  not 
even  require  that  the  circumstances  are  favorable  to  imminent  use,  or  that  the 
intention  to  use  be  manifest  in  the  conduct  of  the  accused.  This  is  punishment 
of  "mere  preparation"  run  riot.  A  federal  code,  on  which  many  states  will  pat- 
tern themselves,  should  get  rid  of  this  concept,  and  content  itself  with  banning 
attempts. 

12.  Weapons  Offense. — The  issue  of  effective  national  hand  gun  control  has 
been  pretermitted  as  to  violently  controversial.  Instead  S.  1437  has  adopted 
"mandatory"  consecutive  sentences  for  engaging  in  a  crime  and  for  using  or 
displaying  a  weapon  in  committing  the  offense.  Since  crimes  in  which  weapons 
are  employed,  e.g.,  robbery,  aggravated  battery,  carry  heavier  maximum  sen- 
tences precisely  because  of  that  circumstance,  there  is  no  need  for  mandatory 
consecutive  sentences,  no  added  deterrent  value,  and  no  justification  for  what 
amounts  to  punishing  twice  for  the  same  behavior. 

12.  Espionage. — Important  defects  in  this  area  have  gone  unremedied,  as  exist- 
ing legislation  is  reenacted.  E.g.,  sections  1121(a),  1122.  The  defects  relate  to 
such  matters  as  overcomprehensiveness  and  vagueness  of  "information  related 
to  national  defense,"  and  failure  to  distinguish  adequately  for  penalty  purposes 
between  intent  to  injure  the  United  States,  intention  to  "aid  a  foreign  power" 
(without  hostile  intent  against  the  U.S.),  and  various  degrees  of  negligence. 

IJf.  Regulatory  Offenses. — S.  1437  fails  to  adopt  a  proposal  of  the  National 
Commission,  Final  Report  section  1006,  which  would  begin  to  tame  the  unreason- 
able and  chaotic  penalties  (often  imposable  without  regard  to  culpability)  found 
in  existing  regulatory  legislation. 

15.  Racketeering. — The  provisions,  sections  1801  et  seq.,  taken  from  existing 
law,  are  needlessly  complex  as  compared  wuth  alternatives  (see  Conspiracy 
above).  They  are  also  perverse  insofar  as  they  purport  to  make  investment  (of 
"tainted"  money)  in  lawful  enterprises  a  felony.  Section  1803.  The  provision  is 
probably  ineffectual  anyway  since  it  operates  only  when  accused  are  shown  to 
be  guilty  of  other  severely  punishable  offenses,  and  since  conviction  requires 
very  difficult  tracing  of  the  source  of  funds  back  to  a  "racketeering"  activity. 

16.  Federal  State  Relations. — S.  1437  fails  to  adopt  a  proposal  by  the  National 
Commission,  Final  Report  section  207,  which  would  make  local  authorities  pri- 
marily responsible  for  essentially  local  law  enforcement,  even  if  federal  juris- 
diction exists  technically,  e.g.,  because  of  the  incidental  use  of  the  mails  or 
interstate  communications.  S.  1437  does  not  address  the  important  issue  of 
federal  and  state  prosecutions  duplicating  each  other.  Cf.  National  Commission, 
Final  Report  section  703  et  seq.  Finally,  S.  1437  needlessly  complicates  and 
lengthens  the  code  by  repetitious  federal  jurisdictional  sections,  e.g.,  sections 
1601(e),  1621(c)  (4), '1731(c).  The  problem  was  neatly  solved  by  the  National 
Commission's  use  of  a  single  "catalogue"  of  jurisdictional  bases  to  which 
succinct  cross-references  were  made. 

17.  Burden  of  Proof. — Problems  occur  in  relation  to  "affirmative  defenses", 
on  which  the  burden  of  proof  is  put  on  the  defendant.  Section  111.  There  are 
occasions  when  this  may  be  appropriate,  e.g.,  defense  of  renunciation  of  con- 
spiracy or  attempt,  sections  1001(b),  1002(b),  because  a  new  defense  is  being 
extended  where  no  defense  at  all  has  previously  been  available  and  the  facts 
are  peculiarly  within  the  knowledge  of  a  defendant  who  has,  by  hypothesis, 
been  engaged  in  a  criminal  course  of  conduct.  But  it  is  inadmissible  to  shift  the 
burden  to  defendant  on  the  issue  like  owner's  consent  to  a  property  depriva- 
tion. Section  1703(a). 

Mr.  Schwartz.  I  will  only  emphasize  my  own  feeling,  as  an 
academic  reformer  with  some  practical  background,  that  this  is  a 
magriificent  democratic  synthesis.  AVliile  there  remains  an  as'enda 
for  reform  in  the  future,  as  there  will  always  remain  an  ao-enda  for 
future  reform,  it  would  be  a  miraculous  gain  if  the  McClellan/ 
Kennedy  bill  would  pass. 

In  my  statement,  I  have  enumerated  the  principle  scores  on  which 
this  bill  is  to  be  commended.  I  pass  over  obvious  matters  of  organi- 
zation and  simplification  and  modernization  and  elimination  of 
obsolete  defenses.  The  Attorney  General  testified  about  that  and  I 
think  nothing  needs  to  be  added. 


8608 

The  core  of  any  criminal  code  is  the  definition  of  wliat  shall  be 
penalized  and  what  kind  of  behavior  subjects  you  to  treatment  by 
the  official  establishment.  Secondly,  who  makes  tlie  critical  decisions 
abont  how  much  punishment  shall  be  handed  down.  That  is  the 
critical  civil  liberties  issue  in  an}^  penal  code:  the  distribution  of 
discretion  to  subject  to  the  indignities  of  imprisonment  and  other 
punishment.  This  code  makes  magnificent  advances  in  the  regu- 
larization  of  this  discretion. 

We  have  to  look  back  to  the  time  when,  in  the  English  ancestor 
of  our  law,  i^unishment  was  totally  discretionarj-.  One  can  envision 
a  criminal  code  which  says  that  anybody  who  does  anything  wrong 
fihall  be  punished  at  the  discretion  of  the  judge.  That  was  virtually 
the  state  of  the  law  at  one  time  in  England.  The  whole  development 
of  specific  offenses  on  the  one  hand  and  of  controlled  discretion  on 
the  other  hand  is  the  progress  of  civilization  in  this  area. 

The  way  this  bill  promotes  order  in  what  has  been  described  as  a 
regime  of  law  witliout  order — that  is  to  say,  our  present  sentencing 
systein — is,  first  of  all,  by  defining  offenses  distinctly,  second,  by 
grading  offenses  rationally,  and,  third,  by  providing  judicial  re- 
view of  sentence.  It  is  a  scandal  that  at  present  sentencing  is  not 
subject  to  review  in  the  Federal  system.  The  very  introduction  of 
judicial  review  will  lead  to  a  considerable  improvement  in  the 
equality  of  justice  handed  out  in  the  Federal  courts. 

Now  I  come  to  that  remarkable  innovation  in  the  legislation — the 
sentencing  guidelines  proposal.  As  you  know,  this  means  that  a 
commission  will  develop  catalogs  of  offenders  and  catalogs  of 
offenses.  The  offender  catalog  will  take  into  account  the  usual  circum- 
stances— youth,  mental  defect,  dependency — all  the  things  that  any 
intelligent  judge  would  take  account  of  in  the  personal  situation  of 
the  convict.  The  catalog  of  offenses  will  reflect  in  general  civilized 
views  of  what  is  more  serious  and  what  is  less.  Out  of  this  there  will 
develop  a  set  of  guidelines.  I  emphasize,  not  a  dictation  to  the  judges 
as  to  what  sentence  shall  be,  but  a  range  of  permissible  sentences.  If 
the  judge  imposes  a  sentence  within  the  permissible  range,  there 
will  be  no  appeal.  If  it  is  outside  the  permissible  range,  the  judge  is 
required  to  state  his  reasons,  which  in  itself  will  induce  rational 
action.  With  good  or  bad  reasons,  the  sentence  will  then  become 
ai:)pealable. 

I  note  with  pleasure  another  innovation  in  the  bill.  In  place  of 
absolutely  mandatory  sentences  prescribed  in  certain  instances  under 
current  lav/,  the  l)ill  provides  a  limited  escape  in  the  basis  of  judicial 
disci'etion.  The  improvement  has  to  do  with  tAvo  tilings:  tlie  proper 
I'ole  of  the  legislature  and  the  proper  role  of  the  judge.  The  Congress 
of  the  TTnited  States,  the  elected  representatives,  should  define  penal 
policy.  It  is  entii'ely  appropriate  that  Cono:rcss  sliould  say:  In  such 
and  such  a  class  of  offenses,  it  is  our  policy  that  prison  should  be 
preferred,  leaving  it  then  to  the  judge  to  carry  out  that  policy  as  he 
must  carry  out  many  other  policies. 

On  the  other  hand,  it  is  always  a  mistake  to  mandate  sentences 
absolutely,  liecnuse  it  is  necessary  to  take  into  account — as  the 
Supreme  Court  has  held  in  the  case  of  capital  punishment — vast 
differences  among  people  who  commit  what  are  superficially  similar 
offenses.  Therefore,  this  aspect  of  the  bill  seems  to  me  commendable. 


8609 

I  note  witli  pleasure  the  considerable  extensions  made  in  the  pro- 
tection of  constitutional  rights  and  guarantees  of  civil  liberties.  Not 
only  are  the  secrecy  provisions  deleted,  but  we  have  extended  pro- 
tection of  the  criminal  law  to  discrimination  based  on  sex  and 
alienage.  In  many  other  respects,  we  have  strengthened  constitutional 
liberty  while  at  the  same  time    tightening  up  law  enforcement. 

I  was  ^particularly  happy,  as  a  teacher  of  criminal  law  and  as  a 
former  practitioner  in  the  Department  of  Justice,  to  note  the 
strengthening  of  white  collar  provisions,  particularly  the  subjection 
of  corporate  crime  to  effective  sanctions.  Among  these  are  notably 
an  invention  of  the  Brown  Commission,  the  declaration  that  reckless 
default  in  supervision  is  enough  to  implicate  a  corporate  officer  when 
that  default  contributed  to  the  occurence  of  the  corporate  crime. 

Another  thing  that  is  done  is  to  provide  for  notice  to  the  public 
when  a  corporation  has  been  involved  in  dirty  business.  Part  of  the 
penalty  which  the  judge  may  order — and  you  can't  send  a  corporation 
to  prison — is  a  little  blow  to  the  corporate  image.  That  is  to  say, 
appropriate  publicization  of  the  corporate  default.  There  is  also 
provision  for  ordering  restitution  to  victims.  I  should  have  preferred 
to  see  a  class  action  outlined  as  a  consequence  of  corporate  conviction, 
but  I  know  that  class  action  gets  into  the  field  of  civil  law,  and  I 
don't  claim  any  expertise  as  to  that. 

Finally,  I  will  mention  the  marihuana  improvement.  It  is  the 
beginning  of  a  reform  that  is  long  overdue.  Almost  everybody  who 
has  studied  this  subject  has  had  to  compare  the  marihuana  sumptuary 
contiols  to  that  notorious  failed  experiment,  alcohol  prohibition.  The 
bill  decriminalizes  possession  of  small  quantities  of  marihuana.  As 
I  point  out  in  my  agenda  for  further  reforms,  which  is  an  appendix 
to  my  statement,  that  this  is  a  very  meager  beginning  indeed.  Al- 
though possession,  as  such,  is  decriminalized,  under  some  of  the 
definitions  of  trafficking,  possession  with  intent  to  transfer — which 
might  mean  intent  to  hand  over  just  a  petty  quantity  to  somebody 
else  even  without  pay — could  still  be  prosecuted. 

The  Attorney  General  has  testified  that  it  is  not  the  present  prac- 
tice of  the  Department  to  prosecute  in  such  cases,  but  I  would  prefer 
to  see  more  effective  restraints  in  the  statute  itself. 

I  conclude.  Senator  Hatch,  because  I  have  referred  to  some  areas 
in  which  I  have  reservations,  by  repeating  my  very  strong  plea  to 
the  Congress  to  move  us  a  great  step  forward  by  enacting  the 
[McClellaTn/Kennedy  bill. 

Senator  Hatch.  We  appreciate  your  testimony.  You  have  covered 
a  lot  of  areas. 

Governor  Brown,  what  do  you  feel  about  some  of  the  new  provi- 
sions not  contained  in  the  previous  bills?  You  might  care  to  remark 
on  this  also.  Give  me  some  of  your  thoughts  about  the  areas  not 
covered  in  previous  bills,  such  as  victims  of  crime,  rape,  political 
offenses,  and  civil  rights. 

INIr.  Brown.  I  think  if  you  get  into  some  of  those  things,  you  are 
going  to  make  the  bill  a  very  controversial  one. 

Senator  Hatch.  They  are  in  there  now. 

^h\  Brown".  Some  of  them  are,  but  a  great  many  have  been 
eliminated. 


8610 

I  thought  you  asked  tlie  question  of  whether  or  not  they  should 
have  been  included.  I  think  the  important  thing  is  the  adoption  of 
this  code,  because  there  is  nothing  in  the  days  ahead  that  we  can't 
either  add  to  or  eliminate  other  sections  as  we  go  along. 

As  I  tried  to  state  in  my  statement,  if  we  are  ever  going  to  get  a 
code,  we  are  going  to  have  to  leave  something  to  specific  bills  after 
the  adoption  of  the  code  itself. 

Senator  Hatch.  I  see. 

Professor,  would  you  care  to  remark? 

INIr.  Schwartz.  "With  regard  to  the  victim  compensation  fund 
particularly? 

Senator  Hatch.  Sure.  Or  the  rape  provisions. 

Mr.  Schwartz.  The  rape  provisions,  I  think,  are  a  splendid  for- 
ward movement.  It  brings  us  up  to  date  by  treating  all  kinds  of 
forceful  and  impositional  sexual  relations  alike,  whether  they  are 
heterosexual  or  homosexual.  I  think  that  is — I  was  going  to  say 
the  wave  of  the  future,  but  it  is  already  present  in  the  criminal  laws 
of  many  States  which  followed  the  Model  Penal  Code. 

Senator  Hatch.  As  I  understand  it.  the  offense  of  rape,  as 
described  in  the  bill  will  no  longer  require  separate  corroboration 
of  the  victim's  testimony. 

Mr.  Schwartz.  Yes ;  there  is  also  a  provision,  somewhat  ambiguous, 
that  "except  as  required  by  the  Constitution."  there  is  to  be  no 
inquiry  into  the  sexual  practices  of  the  victim  before  or  after  the 
alleged  crime.  In  my  opinion,  that  constitutional  caution  is  quite 
appropriate.  There  have  been,  of  course,  many,  many  abuses  by 
police  and  in  the  courts  of  this  cross-examination  regarding  sexual 
behavior  of  the  complaining  witness.  Questions  as  to  whether  the 
complaining  witness  was  a  virgin  or  had  had  sexual  relations  before. 
These  are  outrageous,  in  my  opinion,  and  really  should  have  been 
ruled  out  as  irrelevant. 

On  the  other  hand,  I  would  be  quite  opposed  to  a  total  ban  on 
cross-exnmination  about  all  types  of  sexual  experience.  I  say  that 
because  I  had  in  mind  Brady  versus  Maryland,  a  decision  of  the 
Supreme  Court  of  the  United  States  of  about  10  years  ago  in  which 
the  facts  were  that  the  complaining  16-year-old  told  a  story  of  violent 
ravishment  by  two  black  men.  They  receieved  death  penalties  on  the 
basis  of  her  testimony.  It  was  only  years  later  that  it  was  established 
that  she  had  regularly  had  sexual  relations  with  anybody  on  any 
occasion,  and  with  whole  classes  of  people.  How  any  jury,  judge,  or 
society  could  sentence  the  death  of  two  men  on  testimony  of  some- 
body who  was  known  to  be  sick  like  this  I  can't  answer. 

Therefore,  it  is  obvious  to  me  that  some  degree  of  inquiry,  care- 
fully controlled  by  the  judge,  is  constitutionally  necessary  as  the 
bill  itself  indicates.  '  * 

Senator  Hatch.  I  think  those  are  astute  conunents. 

With  regard  to  the  section  on  labor  bribery,  and  I  don't  mean  to  be 
picking  isolated  sections,  but  recognizing  your  authority  and  allowing 
for  all  the  time  you  need  to  spend  on  this,  I  would  just  like  to  ask  one 
question. 
^  I  notice  that  with  regard  to  labor  bribery,  it  seems  to  impose  penal- 
ties on  the  employer.  Are  there  any  penalties  imposed  on  the  em- 
ployee ? 


8611 

Mr.  Schwartz.  I  disclaim  any  expertise  on  this  section.  It  was 
drafted  subsequent  to  our  work  on  the  Brown  Commission.  Would  you 
be  satisfied  if  I  say  that  my  own  position  is  that  corruption  by  any- 
body ought  to  be  penalized  ? 

Senator  Hatch.  I  agree  with  that,  but  this  section  appears  to  read 
only  that  the  employer  can  be  found  criminally  liable  for  labor 
bribery.  I  think  it  should  go  both  ways  if  we're  going  to  be  objective 
here. 

]Mr.  Schwartz.  I  will  examine  it  more  fully  and  write  you,  Senator. 

Senator  Hatch.  I  would  appreciate  that  because  I  need  to  examine 
it  also. 

I  would  like  your  expert  opinion  after  you  do  examine  it,  because  I 
am  concerned  that  it  be  fair. 

Mr.  Schwartz.  If  it  failed  to  penalize  corruption  or  bribery  on  the 
Union  side,  it  would  not  be  the  only  compromise  embodied  in  this 
bill.  I  understand  the  pressures  for  that. 

Senator  Hatch.  It  might  not  be  constitutional,  however,  if  it  im- 
poses criminal  liabilities  on  one  side  of  the  dispute,  but  not  on  the 
other. 

Mr.  Schwartz,  You  mean  the  denial  of  equal  protection,  or  some- 
thing of  that  sort  ? 

Senator  Hatch.  That,  plus  there  may  be  some  other  constitutional 
problem. 

Mr.  Schwartz.  I  will  write  to  you,  Senator. 

Senator  Hatch.  I  would  appreciate  it. 

With  regard  to  marihuana,  the  intent  of  this  bill,  it  seems  to  me, 
is  to  decriminalize  the  mere  possession  of  marihuana  of  less  than  10 
grams  which  is  a  pretty  small  amount.  This  means  that  an  indiscrete 
young  person  who  might  have  a  marihuana  cigarette  in  his  hands 
when  he  is  picked  up,  or  something  like  that.  But  that's  considerably 
less  than  an  ounce. 

Do  you,  as  a  top  criminal  law  professor,  agree  with  that  particular 
section  ? 

Mr.  Schwartz.  I  agree  with  it  as  a  beginner.  I  don't  think  it  goes 
far  enough,  as  I  say  in  my  memorandum.  It  is  a  very  conservative 
beginning. 

Senator  Hatch.  I  see. 

With  regard  to  the  political  offenses,  did  you  participate  in  the 
writing  of  those  provisions  ? 

Mr.  Schwartz.  We  had  the  section  on  political  offenses  but  they 
have  been  considerably  changed  in  this  bill. 

Senator  Hatch.  I  see. 

Do  you  basically  endorse  this  section  ? 

Mr.  Schwartz.  Yes ;  I  do. 

I  had  some  twinges  with  regard  to  some  features  of  it.  I  remember, 
for  example,  an  aspect  of  it  that  made  it  a  crime,  or  perhaps  a  felony 
for  any  alien  to  make  a  contribution  to  a  political  campaign.  I  wasn't 
sure  that  I  thought  that  was  totally  consistent  with  my  notions.  I  can 
understand  not  wanting  foreign  powers  financing  our  campaigns,  but 
we  have  resident  aliens  who  have  interests  in  legislation ;  for  exam- 
ple, in  immigration  and  denaturalization  legislation.  I  thought  it 
went  a  little  far  to  say  that  a  resident  alien  might  not  make  any  po- 


8612 

litical  contributions.  And  I  have  other  reservations.  But  I  think  thejr 
are  peripheral. 

None  of  these  reservations  cause  me  to  hesitate  about  the  McClel- 
lan/Kennedy  compromise,  vrhich  it  is.  It  is  a  compromise  in  the  high- 
est tradition  of  democratic  legislation. 

Senator  Hatch.  We  appreciate  the  testimony  of  both  of  you,  and 
we  are  happy  to  have  had  you  before  us  this  morning. 

Our  concluding  witness  is  Prof.  G.  Robert  Blakey,  former  consult- 
ant to  the  National  Commission  on  Reform  of  the  Federal  Criminal 
Laws.  Welcome. 

STATEMENT  OE  PEOE.  Ct.  ROBERT  BLAKEY,  EORMER  CONSULTANT 
TO  THE  NATIONAL  COMMISSION  ON  REEORM  OF  THE  FEDERAL 
CRIMINAL  LAWS 

Mr.  Blakey.  ISIy  name  is  G.  Robert  Blakey.  I  am  a  professor  of 
law  at  the  Cornell  Law  School.  I  am  also  director  of  its  Institute  on 
Organized  Crime. 

My  appearance  here  today,  however,  is  personal.  Nothing  that  I  say 
should  be  attributed  to  any  organization  with  which  I  am  associated. 

It  is  a  pleasure  to  return  to  the  committee.  As  Senator  Hatch  may 
be  aware,  I  was  its  chief  counsel  between  1969  and  1973.  In  a  sense^ 
this  is  a  coming  home  rather  than  an  appearance  before  a  strange 
forum. 

Oliver  Cromwell  in  1656  told  the  Second  Protectorate  Parliament : 

The  truth  of  it  is,  there  are  wicked  and  abominable  Laws  which  it  will  be 
in  your  power  to  alter.  To  hang  a  man  for  Six-and-e'ght  pence,  and  I  know  not 
what ;  to  hang  for  a  trifle,  and  acquit  murder — is  in  the  ministration  of  law^ 
through  the  ill-framing  of  it.  *  *  *  And  I  wish  it  may  not  lie  upon  this  Nation 
a  day  longer  than  you  have  an  opportunity  to  give  a  remedy.  [Quoted  iu 
"Essays  in  the  History  of  Early  American  Law,"  at  182  (Flaherty  ed.  i960).] 

This  quote,  from  some  300  years  ago  establishes,  I  think,  the  endur- 
ing need  for  the  reform  of  the  criminal  laws. 

Cromwell's  position  on  law  reform  was  commented  on  by  Jeremy 
Bentham,  the  English  reformer,  in  these  words : 

Behold  what  was  said  in  his  day  by  Cromwell!  In  my  eyes,  it  ranks  that 
wonderful  man  higher  than  anything  else  I  have  read  of  him: — it  will  not 
lower  him  in  yours.  [IV  Works  501   (1858  ed.).] 

Any  issue  of  public  policy  that  can  bring  together  men  so  diverse 
as  Cromwell  and  Bentham  is  surely  one  that  should  command  the 
support  of  the  majority  of  the  American  people.  Indeed,  if  we  look 
through  history,  we  can  see  an  illustrious  list  of  names  associated  with 
the  reform  of  the  criminal  law:  Caesar,  Theodosius,  Tribonian,  Jus- 
tinian, Beccoria,  Bentham,  Napolean,  ISIcCauley,  Stephen,  Livingston,. 
Field,  and,  in  recent  times  in  tlie  United  States,  Prof.  Herbert  "Wechs- 
ler,  of  Columbia  and  Prof.  Louis  B.  Schwartz  of  the  University  of 
Pennsylvania. 

If  each  of  these  men  so  diverse  in  time,  place,  and  ideology  could 
come  together  and  agree  on  tlie  need  for  the  clarification  and  simplifi- 
cation of  law,  it  establishes  beyond  any  real  question,  I  think,  that 
what  faces  this  committee  is  not  a  question  of  ideology — not  a  ques- 
tion of  liberal  or  conservative — but  it  is  a  question  of  a  tradition  that 


8613 

stems  from  our  Koman  heritage — it  is  not  less  tlian  a  question  of  the 
rule  of  law. 

In  the  last  several  weeks,  I  have  had  the  opportunity  to  examine 
the  draft  of  the  criminal  code  now  pending  before  the  committee, 
S.  1437.  I  found  much  in  it  that  I  am  familiar  with  that  stems  from 
the  Model  Penal  Code.  I  found  much  in  it  that  I  am  familiar  with 
based  on  the  work  of  the  Brown  Commission.  I  found  much  in  it  that 
I  am  familiar  with  based  on  the  work  of  the  subcommittee  in  the  92d 
and  93d  Congress  when  I  was  intimately  involved  in  its  draftsman- 
ship. I  found  much  in  it,  also,  that  is  new,  particularly  its  sentencing 
scheme.  It  would  be  wrong  to  suggest,  however,  that  the  sentencing 
scheme  is  really  new.  It  is  not  terribly  different  from  that  which  was 
suggested  by  Beccaria  in  his  seminal  essay  "On  Crime  and  Punish- 
ment," which  was  first  published  in  the  18th  century. 

But  I  suppose  the  last  entry  in  a  ledger  on  the  examination  of  a 
bill  that  is  this  long  and  complex  is  the  one  expressed  by  Professor 
Schwartz. 

I  can  put  it  to  you  perhaps  best  in  this  way :  If  I  were  a  Senator 
and  this  bill  were  presented  to  me  on  final  passage  in  its  present  form^ 
I  would  vote  for  it. 

If  I  were  the  President  and  this  bill  in  its  present  form  was  pre- 
sented to  me  for  signature,  I  would  sign  it. 

I  might  add.  Senator  Hatch,  that  I  have  little  expectation  that  I 
will  either  be  a  Senator  or  a  President.  My  role,  as  a  law  professor,, 
will  be  limited  to  commenting  on  what  others  do. 

In  that  spirit,  I  have  to  also  say  that  I  do  have  some  individual 
comments  on  the  bill.  Some  of  them  are  technical  in  nature,  and  I 
will  not  bore  you  with  them  or  clutter  your  record  with  them.  I  will 
make  them  available  to  the  very  able  staff  of  this  committee  for  their 
own  consideration. 

Senator  Hatch.  We  would  be  happy  to  incorporate  anything  in  the 
record  that  you  would  desire  to  have  included  in  the  record. 

Mr.  Blakey.  There  are,  however,  certain  policy  questions  that  I 
think  merit  at  least  brief  mention  in  a  public  forum.  If  I  may,  I 
would  like,  given  your  limitations  of  time  and  endurance  in  a  long- 
hearing  of  this  kind,  to  briefly  mention  them. 

The  first  is  apparently  a  technical  amendment,  but  I  think  it  goes 
to  the  very  heart  of  what  should  characterize  the  draftsmanship  of 
this  code. 

My  suggestion  to  you  is  that  the  state-of-mind  requirement  for  the 
crime  "complicity"  be  changed  from  "knowingly"  to  "intentionally." 
[See  sec.  401.] 

My  argument  is  essentially  that  of  the  drafters  of  the  Model  Penal 
Code.  The  scope  of  liability  embraced  by  the  term  "knowingly"  is 
simply  too  wide.  It  would  include  within  it,  for  example,  a  cab  driver 
could  be  held  to  be  an  accomplice  in  the  crime  of  running  a  house  of 
who,  on  one  occasion,  drove  a  patron  to  a  house  of  prostitution.  He 
could  be  lield  to  be  an  accomplice  in  the  crime  of  running  a  house  of 
prostitution  because  he  knowingly  engaged  in  the  conduct  that  aided 
it,  [See  sec.  1843.] 

Similarly,  a  statement  of  complicity  so  broadly  drafted  would  in- 
corporate in  criminality  the  Hertz  Corp.,  which  rents  a  car  to  two 


8614 

executives,  ^vlio  stand  before  the  car  rental  desk  discussing  a  price 
fixing  meeting  to  be  held  at  a  hotel  or  a  motel  on  a  mountain. 

If  that  car  was  a  necessary  means  of  transportation  to  the  motel  or 
hotel,  and  it  was  knowingly  provided,  Hertz  could  find  itself  as  a 
corporation  in  complicity  with  the  executives  in  price  fixing. 

Obviously,  I  have  given  you  two  extreme  cases  illustrating  a  broad 
statement  of  liability.  I  would  not  expect  that  the  new  Code  would 
be  enforced  at  this  breadth.  Nevertheless,  if  it  were  not  enforced  at 
this  breadth,  it  would  not  be  enforced  as  a  matter  of  prosecutive  dis- 
cretion and  not  as  a  matter  of  law.  [But  see  Wilcox  v.  Jefer?/,  1  All 
Eng.  Eept.  464  (Kings  Bench  1951)  (Spectator  Newspapermen  at 
concert  held  liable  for  violation  of  player) .] 

I  would  prefer  to  see  a  statement  of  complicity  developed  by  Judge 
Learned  Hand — "a  stake  in  the  venture" — reflected  in  the  code's 
draftsmanship. 

I  would  like  now  to  comment  on  two  series  of  provisions  in  the 
code.  First,  in  the  order  of  time,  are  those  dealing  with  smuggling. 
Section  1411,  1412,  and  1413.  They  are  paralleled  in  section  1731, 
1732,  and  1733,  which  deal  with  theft.  _ 

I  was  very  pleased  to  see,  in  examining  the  draftsmanship  of  the 
statute,  that  the  provisions  in  the  various  sections  are,  indeed,  parallel 
and  can  and  should  be  interpreted  in  pari  materia. 

Essentially,  my  comments  grow  out  of  work  I  did  for  the  National 
Association  of  Attorneys  General  in  the  last  several  years  in  drafting 
model  antifencing  legislation. 

Mr.  Chairman,  I  would  ask  at  this  point  that  the  committee  incor- 
porate in  my  testimony  pages  1614  through  1626  of  an  article  that  I 
published  in  the  Michigan  Law  Review,  volume  74,  1976.  The  article 
includes  statistics  on  theft  and  fencing  in  the  United  States  from 
1960-1975 ;  it  also  includes  the  text  of  the  model  statute  supported  by 
the  National  Association  of  Attorneys  General.  I  might  add  that 
Florida  and  Arizona  have  recently  adopted  legislation  modeled  on 
this  proposal. 

[Article  appears  at  end  of  Prof.  Blakey's  testimony,  p.  8623.] 

The  essence  of  that  study  is  that  the  role  of  the  fence  in  theft  must 
be  recognized  as  more  significant  than  the  role  of  the  tliief.  Neverthe- 
less, the  grading  provisions  in  theft  and  fencing  make  the  trafficker  in 
stolen  property  only  equal  to  the  thief. 

I  would  suggest  that  the  trafficker  in  stolen  property  should  be 
graded  at  a  level  higher  than  the  thief  and  that  that  class  of  fence 
who  is  both  a  thief  and  a  receiver  of  stolen  property  should  be  graded 
at  an  even  higher  level. 

I  would  also  suggest  to  you  that  parallel  amendments  be  made  in 
the  smuggling  sections — (sections  1411, 1412, 1413). 

I  would  also  suggest  that  the  committee  give  consideration  to  adopt- 
ing a  new  criminal  prohibition — probably  at  a  low  level — against  the 
possession  of  altered  property.  B^y  altered  I  mean  property  where  the 
identifying  physical  characteristics  have  been  changed  as  a  means  of 
hiding  stolen  property  in  the  stream  of  commerce. 

I  would  also  suggest  to  you  tlie  adoption  of  additional  evidentiary 
inferences  that  would  facilitate  proof  in  fencing  cases,  that  is,  raising 
an  inference  of  risk-taking  where  property  is  bought  out  of  the 
regular  course  of  business. 


8615 

The  toxt  of  the  suggestions  are  included  in  tlie  law  reAiew  article, 
and  I  Avould  refer  the  start'  and  the  coinniittee  to  it  there. 

Next,  I  would  like  to  commend  the  committee  in  its  bill  on  the 
major  improvements  reflected  in  the  crime  of  rape.  Certainly,  they 
are  major  improvements  over  the  suggestions  that  appeared  in  the 
Brown  connnission  document. 

The  Brown  connnission  document,  as  you  know,  saw  rape  as  two 
crimes — one  dealin<>-  with  aggravated  involuntai-y  sodomv — which  is 
homosexual  rape — and  the  ti-aditional  rape — or  lieterosexual  rape. 

It  included  some  suggestions  for  evidentiary  restrictions  in  rape 
trials. 

I  am  glad  that  the  connnittee  has  consolidated  these  two  crimes 
into  one  ort'ense  called  I'ape,  and  it  has  made  an  eil'ort  to  eliminate 
some  of  the  special  evidentiary  restrictions  found  in  present  law.  I 
would  suggest,  however,  that  you  haven't  gone  far  enough. 

I  would  suggest,  for  example,  that  it  should  be  put  on  the  face 
of  the  statute  tliat  lack  of  consent  in  a  rape  case  can  be  proved  with- 
out resistance  to  the  utmost. 

Here  I  would  also  direct  the  committee's  attention  to  the  recent 
reforms  in  this  area,  both  in  the  state  of  California  and  in  ^Michigan. 
These  two  States  have  developed  comprehensive  api)roaches  to  the 
very  sophisticated  problem  alluded  to  by  l^rofessor  Scliwartz,  that 
is,  tiie  prior  sexual  conduct  or  reputation  of  a  woman  complainant. 
Clearly,  it  is  a  question  of  balancing  between  the  woman's  right  to 
privacy  and  the  defendant's  right  of  fair  trial.  The  legislation  in 
Micliigan  and  California  has  made  an  excellent  ert'ort  to  do  this.  I 
would  conunend  it  to  the  committee's  attention. 

Xext,  I  would  draw  the  committee's  attention  to  its  gambling  pro- 
vision, appearing  as  section  1841  and  raise  this  general  issue  with  you. 

The  statute  is  apparently  designed  to  codify  the  present  gambling 
policy  of  the  Ignited  States.  Careful  analysis  of  it  would  indicate, 
however,  that  the  model  the  committee  had  in  mind  was  private, 
illicit  gambling.  The  potential  application  of  the  statute  to  publicly 
owned  or  publicly  controlled  legal  gambling  was  not  carefully  con- 
sidered. 

For  example,  the  definition  of  "'enterprise'' — sec.  Ill — does  not 
include  a  goveinment.  Similarly,  "person"  and  "organization"  do 
not  include  a  "government'' — sec.  111.  If  the  definitions  of  "enter- 
pi-ise.''  "person,"  and  "organization"  do  not  include  a  "government," 
it  might  not  be  possible  to  enforce  federal  gambling  policy  against 
government  coi'porations  that  will  appear  and  are  now  in  operation 
engaged  in  various  forms  of  legal  gambling. 

This  is  certainly  a  major  issue  in  the  area  of  state  run  lotteries. 
A  number  of  states,  in  fact,  are  enoaijed  in  lotteries  and  the  Federal 
Government  has  articulated  a  number  of  policy  judgments  as  to  how 
those  lotteries  should  be  run  consistent  with  the  policy  of  sister 
States. 

I  would  hope  that  the  committee  would  carefully  examine  the  scope 
of  this  gambling  statute  to  see  to  it  that  there  is  no  doubt  but  that  it 
applies  to  state-run  or  state-owned  gabling  acivities. 

At  the  same  time,  I  would  suggest  that  if  the  law  is  clarified  in  this 
area,  it  should  be  clarified  to  indicate  that  only  civil  remedies  would 
be  appropriate  in  dealing  with  state  agencies. 

92-465  O  -  77  -  4 


8616 

It  seems  to  me  wholly  inappropriate  to  raise  the  spector  of  a  crimi- 
mil  prosecution  of  a  trovernor  of  a  State  or  even  State  employees  who 
are  following  what  they  believe  in  good  faith  to  be  the  policy  of  that 
State. 

The  committee  has  already  embodied  in  its  bill  a  similar  remedy 
for  fraud  in  section  4021.  I  would  suggest  that  it  be  expanded  in  a 
parallel  way  to  authorize  the  enforcement  of  the  gambling  section, 
section  1841,  by  civil  remedies,  at  least  in  the  area  where  it  deals 
with  government  agencies. 

Next,  I  would  make  this  general  comment  on  the  obscenity  section, 
section  1842. 

As  I  read  it,  it  would  not  prohibit  the  noncommercial  dissemina- 
tion of  obscenity  among  consenting  adults. 

While  much  can  be  said  for  that  general  proposition,  I  would 
raise  with  the  committee  whether  we  ought  to  extend  that  measure 
of  the  decriminalization  of  obscenity  to  what  is  properl}'  known  as 
kiddie  porn. 

I  would  suggest  that  whatever  interest  our  society  may  have  in 
maintaining  the  right  of  individuals  to  do  whatever  they  want  as 
long  as  it  harms  no  one  other  than  themselves  perhaps  that  ought 
not  to  extend  to  what  has  come  to  be  called  kiddie  porn.  The  commit- 
tee might  wonder  whether  that  is  too  great  a  degree  of  decriminaliza- 
tion in  this  area. 

Xext,  I  would  draw  the  conmiittee's  attention  to  the  problem  of 
sentencing  in  organized  crime  cases.  While  I  was  chief  counsel  for 
this  committee,  it  conducted  a  study  of  sentencing  in  organized  crime 
cases  and  came  up  with  some  rather  shocking  statistics  that  indicated 
that  federal  judges  simply  did  not  sentence  adequately  what  we  ulti- 
mately came  to  call  dangerous  special  offenders.  [See  S.  Eopt.  Xo. 
91-617,  pist  Cong.,  1st  Sess.,  at  84-85  (1969).] 

This  is  the  other  half  of  the  disparity  problem  mentioned  by  a 
number  of  previous  witnesses.  If  it  is  true — and  indeed  I  think  it  is — 
and  I  would  associate  myself  with  those  remarks — that  in  many 
situations,  sentencing  in  our  federal  courts  is  outrageously  high, 
unjust,  and  discriminatory. 

At  the  same  time,  it  is,  in  other  cases,  outrageously  low,  unjust,  and 
discriminatory. 

At  this  point,  Mr.  Chairman,  I  would  like  to  incorporate  in  the 
record  a  copy  of  the  GAO  study  of  the  experience  of  organized  crime 
sentencing  and  mention  a  few  of  the  statistics  to  you  to  bring  out  in 
a  more  dramatic  way  their  impact. 

[Material  at  end  of  Prof.  Blakey's  testimony,  ]).  8741.] 

The  GAO  studied  the  sentencing  experience  in  organized  crime 
cases  in  some  six  Federal  strike  forces.  They  indicated  that  in  52 
percent  of  the  organized  crime  cases,  no  jail  time  was  given  at  all. 

In  those  cases  in  which  jail  time  was  given,  58  percent  of  the  cases 
had  jail  time  imposed  of  less  than  2  years. 

If  we  examine,  out  of  the  general  category  of  organized  crime, 
just  those  identified  members  of  the  Costa  Xostra,  we  have  128  sen- 
tences out  of  a  possible  241.  Tliey  found  (hat  51  percent  received  no 
jail  or  that  less  than  2  years. 

In  the  period  1974  to  1975,  they  examined  56  cases.  Again,  only  a 
small  fraction  of  the  authorized  maximum  was  given. 


8617 

Indeed,  five  of  the  six  strike  forces  had  not  employed  the  dangerous 
special  offender  sentencing  in  title  10  of  the  Organized  Crime  Control 
Act. 

Frankly,  Senator  Hatch,  I  find  this  a  shocking  failure  on  the  part 
of  the  Department  of  Justice  to  implement  the  statute  and  of  the 
Judiciary  to  sentence  appropriately  in  regular  cases. 

They  certainly  have  the  power  in  man}^  ways  under  present  law 
to  deal  with  this  problem. 

To  indicate  the  scope  of  that  power,  I  would  like  to  incorporate  in 
my  testimony  at  this  time  a  memorandum  prepared  by  the  staff  of 
the  Cornell  Institute  on  Organized  Crime,  dealing  with  the  power 
of  the  courts,  consistent  with  due  process,  to  impose  adequate  sen- 
tences. 

Senator  Hatch.  Without  objection,  it  will  be  entered  in  the  record, 
as  will  your  prior  submissions. 

[Material  follows  at  conclusion  of  Professor  Blakey's  testimony, 
p.  8834.] 

Mr.  Blake Y.  I  would  also  like  to  incorporate  at  this  time  a  copy 
of  a  brief  I  prepared  on  behalf  of  the  Americans  for  Effective  Law 
Enforcement,  dealing  with  the  constitutionality  of  title  10  sentencing. 
It  Avas  submitted  to  the  eighth  circuit  in  United  Sfafc!^  v.  Duardu 
529  F.2d  123  (8th  Cir.  1975). 

Senator  Hatch.  Without  objection,  it  is  so  entered. 
[Material  follows  at  conclusion  of  Professor  Blakev's  testimony, 
p.  8818.1 

Mr.  Blakfa'.  The  basic  constitutionality  of  title  10  sentencing  has 
been  sustained  so  far  in  three  circuit  court  opinion:  Steioart  in  the 
sixth  circuit  (531  F.2d  326  (1967),  cert,  denied,  96  S.  ct.  2629  (1977), 
Bailey  in  the  fifth  circuit  (537  F.2d  845  (1977),  and  Neary  in  the 

seventh  circuit  ( ) . 

If  its  constitutionality  is  clear,  I  would  see  no  reason  for  not  mak- 
ing an  effort  to  making  it  a  part  of  this  bill. 

The  committee  has  insofar  as  you  are  dealing  with  upper  range 
sentencing  under  class  C  and  B  sentences  reflected  the  concept  of 
dangerous  special  offender  sentencing,  suggesting — and,  indeed,  nian- 
dating — for  the  sentencing  commission  upper  range  sentencing. 
Where  you  are  dealing  with  the  possible  12-  or  25-year  penalty,  this 
is  appropriate. 

I  am  concerned,  however,  with  the  situation  at  the  lower  range  of 
the  penalties.  I  am  speaking  now  of  the  class  D  and  E  crimes,  for 
"which  6  and  3  years  are  authorized. 

It  may  Avell  be  that  in  lowering  the  general  penalty  level — a  par- 
ticular goal  with  which  I  associate  myself  in  the  codification  effort — 
we  may  well  have  foregone  an  opportunity  to  secure  that  degree 
of  incapacitation  that  might  be  appropriate  in  the  area  of  the  dan- 
gerous special  offender. 

I  would  suggest,  therefore,  that  the  concept  of  the  extended  term, 
as  opposed  to  the  concept  of  the  upper  range  penalty,  that  is  present 
now  in  title  10  be  preserved  and  carried  forward,  at  least  in  class  D 
and  E  felonies. 

I  would  also  make  another  suggestion.  Given  the  demonstrated 
failure  over  a  significant  period  of  time  of  the  federal  judiciary  to 


8618 

implement  high  sentencing  for  the  serious  offender  and  of  the  De- 
partment of  Justice  to  speak  in  belialf  of  the  public  interest  for  more 
appropriate  sentencing  at  the  higher  range,  I  would  suggest  that 
there  be  a  requirement  on  the  face  of  the  code  that  in  each  case  the 
attorney  for  the  government  should  make  its  recommendation — not 
necessarily  an  argument — but  a  recommendation  for  sentence,  in 
order  that  the  public  can  hear  from  the  Department  as  to  what  it 
thinks  is  appropriate.  iSIaybe  we  can  also  do  at  least  some  good  in 
stimulating  them  to  think  through  the  problem  of  sentencing  and  to 
express  their  views  on  it. 

Normally,  the  only  time  you  hear  from  prosecutors  on  the  ques- 
tion of  sentencing  is  when  they  complain  later  that  the  judge 
didn't  impose  a  high  enough  sentence.  The  reality  of  it  is  that  in 
most  cases,  the  sentence  is  something  that  the  prosecutor  accepts 
or  makes  no  comment  on  at  all  and  then  merely  second-guesses  the 
judge.  I  think  that  practice  should  stop. 

Lastly,  I  note  that  in  a  comment  on  the  guidelines  that  incorporate 
the  DSO  sentencing  provisions  (sec.  994 (e))  you  have  omitted 
the  requirement  of  present  law,  18  USC  3575  (ej  (2),  dealing  with 
"special  skill  or  expertise." 

You  have  also  omitted  the  requirement  of  present  law  in  section 
3575(e)(3),  dealing  with  bribery  or  violence  as  it  plays  a  part  in 
organized  crime  conspiracy.  I  would  suggest  that  they  be  incorpor- 
ated back  in  to  the  statute's  provisions. 

Let  me  turn  my  comments  next  to  a  provision  that  first  became 
law  in  the  Organized  Crime  Control  Act  of  1970  in  title  IT,  which 
authorized  for  the  first  time  on  the  Federal  level  what  is  called 
"use"  immunity. 

At  that  time,  it  was  objected  to  by  many  people  as  a  departure 
from  sound  constitutional  theory.  Candidly,  Senator  Hatch,  I  never 
really  understood  the  bases  for  the  objections. 

Let  me  quote  two  passages  from  two  leading  scholars  in  the  law 
of  evidence  that  I  think  sum  up  the  position  that  one  ought  to 
take  on  the  issue  of  use  immunity. 

Dean  Wigmore  said,  and  T  quote : 

The  constitutional  efficacy  of  use  statutes  was  well  expounded  in  earlier 
opinions  written  at  a  period  nearer  to  the  era  of  constitutional  makins:  when 
the  cohweh.s  of  artificial  fantasy  had  not  ))eKun  to  obscure  its  plain  meaninp. 
[IX  WiKmore  at  523  (3d  ed.  1942).] 

Charles  INIcCormick,  another  leading  expert  in  the  law  of  evidence, 
commented  on  the  Supremo  Court's  decision  in  Counselman  [142 
U.S.  547(1892)1.  It  struck  down  use  immunity  at  the  turn  of  the 
century.  He  said: 

Surely  (Cniinsrlninn)  *  *  *  was  a  wronpr  turning  at  a  critical  point.  Perhaps 
few  decisions  in  history  have  resulted  in  freeing  more  rascals  from  puni.shment. 
♦  *  •  Surely  *  *  •  protection  (from  use  plus  fruits)  is  all  that  (should)  ♦  ♦  ♦ 
reasonal)ly  l)e  demanded,  and  the  insi.stence  upon  complete  immunities  for 
punishment  is  an  uniust  and  unnecessary  obstruction  to  law  enforcement. 
fMcCormack.  at  285-86  (1954).! 

I  set  out  that  background.  Senator  Hatch,  because  I  think  it  is 
time  for  this  committee  to  consider  Avhether  "use"  immunity  ought 
not  to  be  extended  to  the  defense  as  well. 

It  is  coumionly  assumed  that  use  immunity  is  a  concept  useful 
only  for  the  prosecution  in  obtaining  evidence,  AAHiat  many  people 


8619 

fail  to  recognize  is  that  the  defense  has  an  equal  need  for  evidence 
in  criminal  cases. 

I  recognize  that  title  2  is  not  inconsistent  with  the  granting  of 
use  immunity  for  defense  witnesses.  Indeed,  in  drafting  it,  the  staff 
and  the  committee  was  very  careful  not  to  prejudge  the  issue  and 
it  wasn't  discusssed  or  decided  either  way.  I  also  note  that  the 
seventh  circuit  in  United  States  v.  Allstate  Mortgage  [507  F.2d 
494-95  (7th  Cir.  1975).]  has  correctly  interpreted  the  statute  to 
say  that  it  is  not  required  as  a  matter  of  law  that  defense  witnesses 
receive  use  immunity. 

I  would  suggest,  however,  that  that  issue  should  be  clarified  on 
the  face  of  title  2. 

Use  immunity  is  a  theory  that  will  reconcile  the  sixth  amendment 
privilege  of  a  defendant  to  compulsory  process  for  witnesses  in  his 
behalf.  With  those  witnesses'  legitimate  and  appropriate  fifth 
amendment  claim  against  self-incrimination.  Use  immunity  would 
permit  both  the  witness  not  to  be  prosecuted  based  on  what  he  said 
and  the  defendant  to  be  freed  based  on  their  testimony.  I  see  no 
reason  in  a  society  characterized  by  even-handed  justice  not  to 
extend  use  immunity  to  the  defense  under  appropriate  safeguards, 
including  approval  by  court  order  after  the  prosecution  has  had 
an  opportunity  to  be  heard  and  to  protect  its  evidence  in  order  that 
subsequent  prosecution  could  be  brought  on  independent  grounds. 

I  would  commend  that  extension  of  the  present  law  to  your 
attention. 

Next,  I  would  like  to  raise  this  issue  with  you.  Senator  Hatch. 

I  recognize  the  realities  of  political  compromise.  I  have  been 
associated  with  some  political  compromises  in  the  work  of  this 
committee  in  the  past.  Nevertheless,  as  a  scholar  and  as  one  con- 
cerned with  the  reform  of  the  Federal  criminal  law,  I  must  say 
that  I  cannot  accept  a  political  compromise  and  associate  myself 
with  the  integrity  of  a  code  that  omits  a  statement  of  defenses. 

I  find  it  sad,  but  perhaps  necessary,  that  the  defenses  be  omitted. 

Similarly,  I  felt  it  was  sad,  but  perhaps  necessary,  that  the  issue 
of  privilege  be  omitted  when  the  Federal  Rules  of  Evidence  went 
through. 

What  I  am  concerned  about  is  the  long-term  implications  for 
reform.  It  seems  to  me  issues  like  privilege  and  defenses  are  capable 
of  being  resolved  by  our  legislative  bodies.  The  failure  to  do  so  calls 
into  question  the  power  of  the  Congress  to  govern. 

What  I  am  suggesting  to  you,  therefore,  is  that  this  committee 
should  institutionalize  the  process  of  reform  that  ultimately  led  to 
the  drafting  of  this  bill  and  that  it  incorporate  in  the  text  of  the 
bill  a  permanent  Criminal  Law  Reform  Commission. 

This  idea  is  not  new.  Plato,  the  Greek  philosopher,  in  his  essay 
on  the  laws  [Laios.  pp.  515  et  seq.  (Penguin  Classic  1970).]  sug- 
gested such  a  connnission  after  he  had  sketched  out  what  was  for 
him  an  ideal  set  of  laws  for  his  own  ideal  republic. 

It  is  a  practice  widely  followed  in  continental  jurisprudence,  and 
it  would  provide  a  mechanism  to  feed  back  to  the  Congress  on 
nonpartisan,  nonideological  basis  recommendations  for  each  of  the 
major  defenses :  insanity,  mistake  of  law,  and  the  like. 

Perhaps  Congress  could  digest,  one  by  one,  what  it  is  apparently 
unable  to  digest  as  a  whole. 


8620 

I  would  hate  to  see  this  reform  go  through  and  no  mechanisms 
for  future  reform  be  put  in  place. 

That  body  might  be  a  particularly  well-suited  body  to  formulate 
a  set  of  uniform  jury  instructions  that  should  ultimately  be  pronuil- 
gated  to  implement  the  new  code. 

I  would  like  to  make  one  additional  suggestion  to  you  for  reform. 

Much  has  been  said— and,  indeed,  in  these  hearings — of  the  degree 
to  which  this  new  code  takes  into  consideration  the  lessons  of 
Watergate.  The  lessons  of  Wategate,  I  take  it,  are  reflected  in 
campaign  contribution  limitations  and  the  obstruction  of  elections 
proA^isions. 

Let  me  add  one  further  lesson  that  I  think  comes  from  Watergate. 
That  is  the  obstruction  by  the  legal  profession  of  investigations. 

John  Dean's  role  in  orchestrating  the  obstruction  of  justice  that 
led  to  the  recent  incarceration  of  the  Attorney  General  of  the 
United  States  and  some  others  teaches  us  a  lesson  that  we  should 
learn,  that  is,  that  extreme  care  must  be  taken  in  regidating  the 
representation  hj  lawyers  of  witnesses  in  grand  jury  investigations. 

I  have  prepared  and  ask  that  it  be  incorporated  in  the  record 
a  memorandum  that  is  given  out  at  the  Institute  on  Organized 
Crime  for  prosecutors  facing  the  problem  of  obstruction  of  justice 
by  unethical  and  disreputable  attorneys. 

I  am  sure  the  committee  will  find  the  memorandum  of  interest. 

Senator  Hatch.  Without  objection,  it  is  so  ordered. 

TMaterial  follows  Professor  Blaukey's  testimony,  p.  <S811.| 

Mr.  Blakey.  I  would  also  suggest  to  you  that  the  committee  should 
take  the  bull  by  the  horns  and  formulate  an  additional  statute,  in 
its  1800  series,  dealing  with  the  obstruction  of  grand  jury  investiga- 
tions. The  type  of  statute  I  have  in  mind  would  prohibit  any  counsel 
from  I'epresenting  more  than  one  witness  who  had  been  served 
with  a  grand  jury  subpoena.  Xo  lawyer  would  be  permitted  to 
I'epresent  two  witnesses  in  the  same  grand  jury  investigation. 

I  would  also  extend  that  prohibition  against  multiple  ivpresenta- 
tion  to  lawyers  in  his  firm  or  associated  with  him  in  practice. 

T  would  also  raise  with  you  the  A-ery  difficult  issue  of  fees  being 
paid  by  corporate,  union,  and  other  organizations  for  witnesses  in 
grand  jury  investigations. 

T  recognize  that  extremely  serious  and  sensitive  freedom  of 
association  issues  are  raised  by  a  restriction  on  third  parties  from 
paying  fees.  I  would  resolve  them  by  sugcesting  that  no  lawyer 
should  accept  a  fee  from  one  other  than  the  client  he  deals  with 
without  prior  approval  by  a  court,  where  all  of  the  various  values — 
including  interest  tlie  interest  of  the  appearance  of  justice — can  be 
evaluated  by  an  independent  body. 

Let  me  conclude  Avith  a  quote  from  Edmund  Burke,  who  in  1780 
addressed  the  House  of  Conunons  on  the  issue  of  electoral  reform : 

Consider  the  wisrloms  of  a  timely  leforui.  Early  reformations  are  amicable 
arrangements  with  a  friend  in  i)()\ver ;  late  reformations  are  terms  imposed 
upon  a  conquered  enemy;  early  reformations  are  made  in  cool  hlood ;  late 
reformations  are  made  under  a  state  of  ijitlammation.  In  that  state  of  things, 
the  iieoi)le  behold  in  government  nothing  that  is  res|)ectable.  They  .see  the 
abuse,  and  they  will  see  nothing  else.  They  fall  under  the  temper  of"  a  furious 
jiopulace  provoked  at  the  disorder  of  a  house  of  ill  fame:  they  never  attempt 
to  correct  or  to  regulate;  they  go  to  work  by  the  shortest  wav  ;  thev  abate  the 
nuisance,  they  pull  down  the  house.  \K.  lUirke :  Selected  Writings  and  Speeches, 
at  287  (P.  Stanlis  ed.  190.3 ).l 


8621 

What  Burke  said  of  reform  of  the  electoral  process  in  1780, 
can  be  said  of  the  criminal  justice  system  in  this  country  today,  in- 
cluding criminal  justice  on  the  Federal  level. 

People  in  this  country  arc  fed  up  with  the  way  the  criminal 
justice  system  does  not  work.  It  docs  not  work  in  behalf  of  society's 
interest;  it  does  not  work  in  behalf  of  the  individual's  interest. 

If  Congress  does  not  have  the  courage  and  the  will  to  carry 
forward  this  reform,  it  will  be  carried  forward  by  otlier  people  who 
follow  us.  I  suggest  to  you  it  will  probably  not  be  carried  forward 
with  the  care  for  civil  liberties  that  might  be  expected  at  this  time. 

I  am  seriously  concerned  that  unless  we  bring  a  sense  of  justice 
to  our  system  of  justice,  the  reformations  that  come  later  will  be  at 
tlie  price  of  our  liberties.  And  that  is  a  price  too  high  for  me  to  pay. 

Thank  3'OU,  Senator. 

Senator  Hatch.  Thank  you.  Professor. 

I  think  that  you  have  given  us  some  tremendous  insights  into 
some  of  the  difficulties  and  some  of  the  good  aspects  of  this  bill. 

I'm  sure  our  staff  will  look  this  over  very  carefully,  especially 
since  you  have  had  such  a  tremendous  background  with  the  com- 
mittee and  in  this  particular  area. 

We  will  continue  these  proceedings  tomorrow  morning  at  10 
o'clock. 

We  appreciate  those  who  have  testified  today. 

[Whereupon,  at  11 :45  a.m.,  the  committee  .stood  in  recess  to  meet 
Wednesday,  June  8,  1977.] 

[Material  submitted  for  the  Record  by  Professor  Blakey  follows :] 


8623 


Michigan 
Law  Review 


CRIMINAL  REDISTRIBUTION  OF  STOLEN 
PROPERTY:   THE  NEED  FOR  LAW  REFORM 


By  G.  Robert  Blakey  and  Michael  Goldsmith 


Reprinted  from  Michigan  Uw  Review,  August  1976,  Vol.  74,  No.  8 
Copyright  by  the  Michigan  Law  Review  Association  1977 


^M^dk 


'"iiiiiir-'^^'^"'''ii"'"' ••• 


8625 

CRIMINAL  REDISTRIBUTION  OF  STOLEN 
PROPERTY:    THE  NEED  FOR  LAW  REFORM 

G.  Robert  Blakey  and  Michael  Goldsmith 
Table  of  Contents 

I.     The  Realities  of  Modern  Fencing  Systems 1523 

A.  Marketing  Theory  and  the  Fence 1523 

B.  Patterns  of  Redistribution 1528 

1.  The  "Neighborhood  Connection" 1529 

2.  The  Outlet  Fence  1531 

3.  The  Professional  Fence  1533 

4.  The  Master  Fence  . 1535 

5.  The  Role  of  Organized  Crime  1538 

II.  Social  Control  Through  Law 1542 

A.  Criminal  Sanctions  — -  1542 

1.  The  Development  of  the  Law  1542 

2.  Receiving  Stolen  Property:  A  Modern 

Perspective 1 545 

a.  The  "receipt"  of  property  1545 

b.  The  goods  must  be  stolen 1551 

c.  The  state  of  mind  requirement  _ 1558 

(i).  The  appropriate  mens  rea  . 1559 

(ii).  The  availability  of  direct  evidence  es- 
tablishing mens  rea  1562 

(iii).  The  use  of  circumstantial  evidence  to 

establish  mens  rea 1572 

(iv).  Strict  liability  1589 

(v).  Affirmative  defense 1593 

3.  Sentencing  Convicted  Receivers 1597 

B.  C/v/7  Remedies  for  Fencing  Crimes 1601 

III.  Conclusion:   Basic  Tactics  and  Strategy  for  Law 

Enforcement  1611 

Appendix  A  1614 

Appendix  B  1620 

1511 


8626 

CRIMINAL  REDISTRIBUTION  OF  STOLEN 
PROPERTY:   THE  NEED  FOR  LAW  REFORM 

G.  Robert  Blakey*  and  Michael  Goldsmith*  *i 

Our  society  is  permeated  by  a  consciousness  of  theft:  triple-locked 
doors  of  city  apartments,  guard  dogs  prowling  stores  and  warehouses 
at  night,  retail  prices  and  insurance  rates  based  on  the  assumption 
that  large  quantities  of  merchandise  are  simply  going  to  disappear. 
But  our  consciousness  of  theft  tends  to  be  limited.  It  is  easy  to  imag- 
ine the  act  itself — the  forced  lock  or  smashed  window  in  the  dead 
of  night,  the  hijacker  ordering  the  driver  out  of  his  truck  cab  at  pistol 
point.  It  is  harder  to  keep  in  mind  that  these  acts  aren't  random 
or  self-contained  but  are  usually  practical  ways  of  acquiring  goods 
for  an  established  buyer.  As  for  the  dealer  in  stolen  goods — the 
"fence" — there  our  imagination  seldom  goes  beyond  the  owner  of  a 
seedy  pawnshop  or  the  character  who  sidles  up  on  the  street  and  mut- 
ters, "Hey  buddy,  wanna  buy  a  watch?"^ 

THE  development  of  sophisticated  fencing  systems  for  the  sale  of 
stolen  property  to  consumers  has  paralleled  the  industrialization 
of  society.  Although  crimes  against  property  and  attempts  to  con- 
trol them  have  ancient  origins,^  most  theft  before  the  Industrial 
Revolution  was  committed  for  immediate  consumption  by  the  thieves 
and  their  accomplices  rather  than  for  redistribution  in  the  market- 
place,^    Society's  small  population,  inadequate  transportation  and 

*  Professor  of  Law,  Cornell  Law  School,  and  Director  of  the  Cornell  Institute 
on  Organized  Crime. — Ed. 

♦♦  Deputy  State  Attorney,  Burlington,  Vt.  A.B.  1972,  J.D.  1975,  Cornell  Univer- 
sity.— Ed. 

t  These  materials  originated  in  work  begun  during  the  processing  of  S.13,  93d 
Cong.  1st  Sess.  (1973);  S.  Rep.  No.  93-80,  93d  Cong.,  1st  Sess.  (1973).  The  bill 
passed  the  Senate  by  a  vote  of  81  to  0  in  1972  as  S.16,  92d  Cong.,  2d  Sess.  (1972) 
(118  Cong.  Rec.  29379  (1972))  and  passed  again  in  1973  by  a  voice  vote  (119 
Cong.  Rec.  10319  (1973)).  No  action  was  taken  in  the  House  Judiciary  Committee, 
"not  .  .  .  [because  of]  a  lack  of  support  for  the  bill  but  .  .  .  [because  of]  the  com- 
mittee's heavy  work  load."  N.Y.  Times,  May  5,  1974,  at  69,  col.  3  (late  city  ed.). 
New  legislation  was  not  introduced  in  the  94th  Congress. 

1.  Chasan,  Good  Fences  Make  Bad  Neighbors,  N.Y.  Times,  Dec.  29,  1974,  §  6 
(Magazine),  at  12. 

2.  Biblical  tradition  has  it  that  disobedience  began  with  God's  first  command  to 
man.  See  Genesis  2:16-17,  3:4-6.  Laws  concerning  theft  and  robbery  may  be  found 
in  many  sections  of  the  Old  Testament.  See,  e.g..  Exodus  22:1-4;  Leviticus  6:1-5, 
19:13;  Proverbs  29:24.  For  a  discussion  of  theft  in  primitive  society,  see  A.  Du- 
MOND,  The  Evolution  of  Law  and  Order  12,  35,  50-51,  108-15  (1951). 

3.  "Until  the  seventeenth  century  the  amount  of  movable  property  available  for 
theft  and  the  opportunities  to  dispose  of  this  property  except  by  personal  consumption 


8627 


August  1976]        Criminal  Distribution  of  Stolen  Property  1513 

communication  systems,  and  technological  inability  to  mass  produce 
identical  goods  constrained  large-scale  fencing  because  there  were 
few  buyers  and  because  stolen  property  could  be  readily  identified.* 
The  unprecedented  economic^  and  demographic*'  growth  in  eight- 
eenth-century Europe,  however,  removed  these  practical  constraints 
and  made  possible  the  profitable  fencing  operations^  that  are  now 
firmly  institutionalized  in  industrial  societies. 

Although  these  social  and  technological  developments  are  impor- 
tant, they  do  not  provide  a  complete  explanation  for  the  rising  theft 
rate  or  for  the  tremendous  amount  of  property  successfully  redistrib- 
uted armually.®  Instead,  these  problems  must  be  attributed  in  large 
part  to  our  society's  failure  to  identify  properly  the  economic  rela- 
tionship underlying  theft  and  redistribution  and,  consequently,  to  our 
inability  to  develop  successful  methods  of  legal  control.'' 

An  understanding  of  the  economic  causes  of  property  theft  re- 
quires brief  consideration  of  the  relationship  between  the  two  major 
participants  in  redistribution  systems.  First,  there  are  the  fences 
who  often  find  it  both  profitable  and  not  very  risky*"  to  purchase 

were  limited."  Chappell  &  Walsh,  'Wo  Questions  Asked,"  A  Consideration  of  the 
Crime  of  Criminal  Receiving,  20  Crime  &  Delinquency  157,  160  (1974)  [here- 
inafter Chappell  &  Walsh,  "No  Questions  Askeil"]. 

4.  Prior  to  the  development  of  mass  production  techniques,  a  fence  was  faced 
with  "the  situation  of  highly  individualized  property  owned  on  a  limited  scale  .  .  .  ." 
Id.  at  168.  Limited  production  and  limited  ownership  foreclosed  the  possibility  of 
fencing  stolen  goods  on  a  large  scale  because  there  were  too  few  buyers,  and  property 
could  be  too  readily  identified.  See  generally  P.  Mantoux,  The  Industrial  Revolu- 
tion IN  THE  Eighteenth  Century  108-12  (rev.  ed.  1961). 

5.  Eighteenth  century  England  experienced  an  expansion  of  trade  that  was  of 
"geometric  proportions."  J.  Hall,  Theft,  Law  and  Society  77  (2d  ed.  1952).  See 
P.  Mantoux,  supra  note  4,  at  99-108.  See  generally  H.  Beales,  The  Industrial 
Revolution  1780-1850:  An  Introductory  Essay  48-56  (1958). 

6.  See  M.  Flinn,  An  Economic  and  Social  History  of  Britain,  1066-1939,  at 
115  (1965)  and  B.  Murphy,  A  History  of  the  British  Economy  1086-1970,  at 
61-62,  100-01,  229-33,  324-34  (1973)  (describing  dramatic  growth  of  British  popula- 
tion). During  this  period  the  world  population  experienced  similar  growth.  See  K. 
Chen,  World  Population  Growth  and  Living  Standards  64  (1960). 

7.  "(T]oday's  fence  .  .  .  faces  an  economy  in  which  imperceptibly  differing  con- 
sumer goods  are  mass-produced  and  mass-owned  and  for  which  there  seems  to  be  an 
insatiable  desire."  Chappel  &  Walsh,  "No  Questions  Asked,"  168.  "The  relative  im- 
personality of  property  items,  and  the  lack  of  adequate  identifying  marks  on  most 
categories  of  goods,  frequently  prevents  the  establishment  of  a  nexus  between  the 
fence  and  stolen  property  items,  or  the  return  of  recovered  property  to  its  original 
owner."  Chappell  &  Walsh,  Receiving  Stolen  Properly:  The  Need  for  Systemic 
Inquiry  into  the  Fencing  Process,  11  Criminology  484,  490  (1974)  [hereinafter 
Chappell  &  Walsh,  Receiving  Stolen  Property]. 

8.  See  Hearings  on  Criminal  Redistribution  (Fencing)  Systems  Before  the  Senate 
Select  Comm.  on  Small  Business,  93d  Cong.,  1st  Sess.,  pt.  1  (1973)  [hereinafter 
Hearings  on  Fencing]. 

9.  See  section  II  infra. 

10.  See  text  at  notes  22-29  infra. 


8628 


1514  Michigan  Law  Review  [Vol.  74:1511 

stolen  goods  from  thieves  and  resell  them  at  retail  and  wholesale 
levels.  Frequently  masquerading  as  legitimate  businessmen/^  so- 
phisticated fences  not  only  use  cheap  stolen  merchandise  to  increase 
their  profits  and  to  undercut  legitimate  competitors,^-  but  also  operate 
without  much  risk  of  detection  since  they  can  easily  remove  identify- 
ing labels  from  the  goods,  falsify  records  to  hide  illegal  purchases, 
or  otherwise  "legitimize"  the  goods,  and  then  quickly  dispose  of 
them  in  the  marketplace.^^  Second,  there  are  the  thieves  who,  with 
the  growth  of  viable  fencing  schemes,  have  available  purchasers  for 
their  stolen  property.  Thus,  they  too  can  rapidly  dispose  of  the  evi- 
dence of  their  crimes  and  are  then  presumably  better  able  to  avoid 
arrest  and  conviction.^*  In  general  terms,  a  symbiotic  relationship 
between  fences  and  thieves  appears  to  have  developed. 

Any  sketch  of  this  relationship  must  recognize  the  primary  role 
played  by  receivers.  Such  recognition  is  crucial  if  proper  legal  tech- 
niques for  controlling  theft  are  to  be  developed.  Unfortunately,  law 
enforcement  efforts  in  the  United  States  have  traditionally  focused 
on  capturing  the  thief  rather  than  on  eliminating  the  fence.  ^°  This 
"theft-oriented"  approach  was  perhaps  sufficient  in  preindustrial  so- 
ciety but  is  inadequate  and  seriously  misdirected  today  because  it 
fails  to  recognize  that  thieves  steal  primarily  for  profit  rather  than 
for  personal  consumption.^*    Fencing  systems  play  a  vital  role  in 

11.  See  note  126  infra.  Although  criminal  redistribution  systems  function  with 
varying  degrees  of  sophistication,  all  successful  fences,  regardless  of  caliber,  must  de- 
velop sufficient  business  acumen  and  marketing  skills  to  maintain  the  continued  prof- 
itability of  their  operations.  See  notes  64-88  infra  and  accompanying  text.  See  gen- 
erally J.  Hall,  supra  note  5,  at  156-57. 

12.  TTiis  competitive  advantage,  however,  does  not  necessarily  assure  the  fence  a 
greater  profit  margin.    See  C.  Klockars,  The  Professional  Fence  77  n.2  (1974). 

13.  See  text  at  notes  1 15-53  infra. 

14.  "[A]  ready  market  for  stolen  goods  is  the  thief's  most  urgent  need."  Chap- 
pell  &  Walsh,  "No  Questions  Asked"  167.  Obviously,  thieves  are  anxious  to  dispose 
of  their  goods,  since  prolonged  retention  increases  the  possibility  of  detection.  See 
Hearings  on  Fencing  160.  See  generally  W.  LaFave  &  A.  Scott,  Handbook  on 
Criminal  Law  682-91  (1972). 

15.  Chappell  and  Walsh  have  maintained  "that  the  historical  neglect  of  the  crimi- 
nal receiver  has  led  to  a  shortsighted  view  of  his  actual  and  potential  role  in  property 
crime  and  to  an  undeserved  relegation  of  his  activities  to  a  category  of  insignifi- 
cance .  .  .  ."  Chappell  &  Walsh  "No  Questions  Asked"  158.  See  Staff  of  Sen- 
ate Select  Comm.  on  Small  Business,  92d  Cong.,  2d  Sess.,  An  Analysis  of 
Criminal  Redistribution  Systems  and  Their  Economic  Impact  on  Small  Busi- 
ness 2  (Comm.  Print  1972)  [hereinafter  Staff  Report  on  Small  Business].  Sec 
notes  16-21  infra  and  accompanying  text. 

16.  "Nearly  all  professional  theft  is  undertaken  with  the  aim  of  selling  the  goods 
thereafter."  President's  Comm.  on  Law  Enforcement  and  Administration  of 
Justice,  Task  Force  Report:  Crime  and  Its  Impact — An  Assessment  99  (1967) 
[hereinafter  Task  Force  Report,  An  Assessment].  See  C.  Conwell,  The  Pro- 
fessional Thief  by  a  Professional  Thief  146  (1937);  W.  Lafave  &  A.  Scott, 
supra  note  14,  at  682. 


i 


8629 


August  1976]        Criminal  Distribution  of  Stolen  Property  1515 

theft  activity  because  most  thieves  are  unable  to  deal  directly  with 
the  consuming  public  and  must  therefore  operate  through  middle- 
men who  have  the  financial  resources  to  purchase  stolen  goods  and 
the  contacts  to  help  in  their  redistribution."  Although  thieves  usu- 
ally receive  only  a  small  fraction  of  the  retail  value  of  their  goods,^* 
the  ability  of  most  fences  to  make  prompt  payment^ ^  facilitates  rapid 
disposal  of  stolen  property  and  reduces  the  risk  of  detection  that  pro- 
longed possession  entails.  Without  fences,  few  thieves  could  sur- 
vive*** because  fences  both  satisfy  their  motive  for  stealing  and  pro- 
vide an  incentive  for  future  theft.*^    Thus,  the  first  step  in  combat- 


it  was  recently  noted  that,  at  least  according  to  some  researchers,  "virtually  noth- 
ing is  itoien  today  without  a  prearranged  market  for  its  disposal."  Chasan,  supra 
note  1,  at  12.  "[N]ot  even  an  inexperienced  junkie  will  steal  something  without  be- 
ing assured  of  a  ready  market."  Id.  at  17.  See  generally  Hearings  on  Fencing,  30- 
34. 

17.  See  Task  Force  Report,  An  Assessment  99. 

18.  "[A]  norm  that  has  governed  the  asking  price  of  thieves  for  centuries  says 
simply,  'When  you  take  something  to  a  fence  you  should  try  to  get  a  third  of  the 
value  of  the  goods.'  "  C.  Kusckars,  supra  note  12,  at  1 14.  The  thief  asks  for  a 
third  of  the  retail  price  because  he  knows  that  he  cannot  get  a  half,  which  is  the 
standard  wholesale  value.  Typically,  even  though  bargaining  may  begin  at  the  one- 
third  price  level,  few  fences  ever  pay  this  much.  Id.  at  1 14  n.6.  Most,  in  fact,  pay 
much  less.  See  Hearings  on  Organized  Crime,  Stolen  Securities  Before  the  Perma- 
nent Subcomm.  on  Investigations  of  the  Senate  Comm.  on  Government  Operations, 
92d  Cong.,  1st  Sess.,  pt.  1,  at  39,  212  (1971)  [hereinafter  Hearings  on  Stolen  Securi- 
ties]; C.  Kjx)CKARS,  supra  note  12,  at  114  (analyzing  fencing  from  a  marketing  per- 
spective). Frequently,  payment  may  simply  take  the  form  of  drugs.  See,  e.g.,  Cha- 
san, supra  note  1,  at  14;  U.S.  Dept.  of  Justice,  Strategies  for  Combatting  the 
Criminal  Receiver  (Fence)  of  Stolen  Goods  16-18  (August  1976)  [hereinafter 
Strategies]  (barter  transaction  typical  of  West  Coast).  Thieves  are  frequently  ig- 
norant of  the  value  of  their  goods,  and  have  little  bargaining  power  against  the  fence. 
See  C.  Klockars,  supra  note  12,  at  115-26.  To  avoid  paying  the  one-third  price, 
the  more  sophisticated  fences  have  developed  a  variety  of  methods  to  deceive  their 
suppliers.  Id.  at  115-27.  To  combat  these  practices  some  of  the  smarter  thieves  ap- 
pear to  be  taking  courses  (such  as  gemmology)  so  that  fences  will  no  longer  be  able 
to  "exploit  [their]  ignorance."    Chasan,  supra  note  1,  at  16. 

When  a  fence  negotiates  a  price  he  must  be  aware  of  his  economic  costs  which 
include  the  risk  of  detection,  storage  and  transportation  expenses,  cash  outlay,  repairs, 
and  other  middlemen  services.  See  Roselius  &  Benton,  Stolen  and  Fenced  Goods: 
A  New  Laboratory  for  Marketing  Theory  [hereinafter  Roselius  &  Benton,  Stolen 
Gocyds],  in  Hearings  on  Fencing  182. 

19.  See  Roselius  &  Benton,  Marketing  Theory  and  the  Fencing  of  Stolen  Goods 
in  50  Denver  L.J.  177  (1973)  [hereinafter  Roselius  &  Benton,  Marketing  Theory]. 

20.  See  R.  Barnes,  Are  You  Safe  from  Burglars?  142  (1971).  At  least  one 
critic,  however,  has  rejected  this  explanation  as  too  simplistic: 

A  history  of  attentions  to  criminal  receiving  and  the  trade  in  stolen  property 
could  be  written  about  the  saying  "if  there  were  no  receivers  there  would  be  no 
thieves."  .  .  .  [T]he  observation  itself  is  better  understood  as  an  hyperbolic 
plea  for  attention  to  the  criminal  receiver  than  as  an  accurate  statement  of  his 
relationship  to  theft.  ...  In  brief,  if  there  were  no  receivers,  there  would  still 
be  all  sorts  of  thieves,  and  possibly  more  thieves  of  sorts  we  don't  like  than  we 
have  now. 
C.  Klockars,  supra  note  12,  at  164-66  (citations  omitted). 

21.  "It  seems  that  fencing  schemes  provide  the  profit  motive  for  the  original 
theft."    Hearings  on  Fencing  2  (opening  statement  of  Senator  Alan  Bible).    See  also 


8630 


1516  Michigan  Law  Review  [Vol.  74:1511 

ing  the  theft  problem  is  to  realize  that  law  enforcement  efforts 
should  be  primarily  directed  at  the  fence. 

A  major  obstacle  to  dealing  effectively  with  theft  is  that,  despite 
the  institutionalization  of  criminal  redistribution  systems,  receiving 
is  a  so-called  invisible  crime  largely  free  from  public  scrutiny,^^ 
It  is  difficult  to  identify  stolen  property  under  any  circumstances;  the 
task  is  made  virtually  impossible  after  a  fence  sells  those  goods  to 
unsuspecting  customers,  for  evidence  of  the  crime  is  then  effectively 
destroyed. ^^  In  short,  once  stolen  property  is  successfully  fenced  no 
"smoking  gun"  remains.  This  invisibility  has  several  undesirable 
consequences.  Police  investigations  of  fencing  activity  usually  are 
unsuccessful  because  the  crime  is  not  readily  detected  by  conven- 
tional police  surveillance  techniques. ^^  Moreover,  the  crime  of  re- 
ceiving generally  has  not  been  subject  to  comprehensive  academic 
analysis^"^  because  police  enforcement  problems  are  reflected  in  the 
absence  of  accurate  statistics  exposing  methods  of  redistribution  and 

id.  at  41-43   (statement  of  Franklyn  H.  Snitow,  Assistant  District  Attorney,  New 
York  County). 

22.  Since  the  1700s  "[t]he  fence  has  .  .  .  been  recognized  as  a  very  important 
part  of  the  theft  problem  and  as  a  crucial  figure  in  the  support  and  maintenance  of 
the  thief."  Chappell  &  Walsh,  Receiving  Stolen  Property  485.  See  Observations  on 
the  Buyers  or  Receivers  of  Stolen  Goods — A  Letter  tc  a  Member  of  Parliament,  3 
Law  Pamphlets  No.  5  (1751). 

23.  "This  is  in  sharp  contrast  to  .  .  .  'conventional  crimes'  such  as  murder,  as- 
saultive offenses,  and  theft.  These  activities,  even  when  successful  for  the  perpetra- 
tor ..  .  still  leave  substantial  proof  of  their  occurence."  Chappell  &  Walsh,  Receiv- 
ing Stolen  Property  494.  Consequently,  the  only  data  that  directly  document  fencing 
activity  are  those  that  become  available  when  a  particular  fencing  operation  has  been 
discovered  by  the  police. 

24.  See  notes  207-20  infra  and  accompanying  text. 

25.  See  Chappell  &  Walsh,  Receiving  Stolen  Property  486;  C.  Klockars,  supra 
note  12,  at  1-2;  The  Impact  of  Crime  on  Small  Business — Part  VI  (Criminal 
Redistribution  (Fencing)  Systems),  S.  Rep.  No.  93-1318,  93d  Cong.,  2d  Sess. 
29-30  (1974)  [hereinafter  Report,  The  Impact  of  Crime]. 

Chappell  and  Walsh  suggest  that  one  reason  for  this  situation  is  that  the  fence 
has  never  been  viewed  as  an  appropriate  subject  for  criminological  research: 

Criminology's  search  for  crime  causality,  bolstered  by  inputs  from  the  disciplines 
of  psychology  and  sociology,  has  greatly  influenced  the  choice  of  research  topics 
for  students  of  the  field.  .  .  .  The  quest  to  develop  a  psychological  and  so- 
ciological competence  in  the  study  of  crime  causation  meant  ...  the  rejection 
of  the  simplicity  which  economics  had  introduced.  It  came  also  to  mean,  how- 
ever, the  virtual  rejection  of  the  discipline  of  economics  with  its  rational  ex- 
planations, as  irrelevant  and  inappropriate.  .  .  .  Lacking  any  obvious  psy- 
chological difficulties  and  remaining  a  well-integrated  participant  in  the  socio- 
nomic  structure,  the  fence  could  hold  little  interest  for  criminologists  who  were 
searching  for  more  deviant  personalities  to  study.  The  same  is  true  of  the  white- 
collar  criminal,  those  individuals  associated  with  organized  crime,  and  many  pro- 
fessional thieves.  It  seems  clear  that  until  economics  is  again  accepted  as  a  le- 
gitimate input  into  the  criminological  research  process,  the  rational  criminal — 
in  particular  the  criminal  receiver — will  remain  little  studied  and  even  less  un- 
derstood. 
Chappell  &  Walsh,  Receiving  Stolen  Property  487-88. 


8631 


August  1976]        Criminal  Distribution  of  Stolen  Property  1517 

measuring  the  amount  of  property  actually  redistributed.^'  Under- 
standably, researchers  have  directed  their  attention  to  more  visible 
crimes  such  as  theft  itself  or  violent  crimes  against  persons  for  which 
statistics  are  available."  Further,  surprisingly  carefree  public  atti- 
tudes that  insurance  will  cover  theft  losses'*  and  that  the  purchase 
of  stolen  goods  is  acceptable  social  conduct^^  reinforce  the  neglect 
afforded  fencing  operations.  Partly  as  a  result  of  inadequate  re- 
search, society's  theft-oriented  approach  has  long  remained  free 
from  rigorous  scrutiny,  and  the  development  of  effective  and  creative 
legal  techniques  for  controlling  the  problem  has  been  delayed. 

The  absence  of  accurate  statistics  directly  measuring  fencing  ac- 
tivity, however,  has  not  foreclosed  other,  sometimes  intuitive,  means 
of  estimating  its  significance;  this  in  turn  allows  appreciation  of 
theft's  economic  basis  and  makes  it  possible  to  devise  reasoned  solu- 
tions. Crimes  against  property  have  increased  230.5  per  cent  since 
1960,^°  and  by  conservative  estimates  property  crimes  cost  Ameri- 
can businesses,  and  ultimately  American  consumers,^^  20.3  billion 

26.  There  is  a  "relative  paucity  of  data"  to  support  fencing  research.  Chappell 
&  Walsh,  Receiving  Stolen  Property  492.  "Most  of  the  information  that  does  exist 
is  of  an  anecdotal,  historical,  or  "police  intelligence'  nature."  Id.  at  493.  Further, 
police  "[i]ntelligence  information  is  rarely  made  available  for  public  scrutiny  ....*' 
id.  For  a  comprehensive  discussion  of  the  difficulties  involved  in  researching  fencing 
activity,  see  C.  Klockars,  supra  note  12,  at  197-226. 

27.  See  Chappell  &  Walsh,  Receiving  Stolen  Property  494-95. 

28.  See  Report,  The  Impact  of  Crime  25-26.  This  view  is  shortsighted  be- 
cause rising  rates  are  now  making  insurance  premiums  for  many  businesses  and  indi- 
viduals prohibitively  expensive.    See  note  5 1  infra  and  accompanying  text. 

29.  Chappell  &  Walsh,  Receiving  Stolen  Property  491;  Chasan,  supra  note  1,  at 
17;  notes  45-47,  511  and  accompanying  text  infra.  One  discount  store  in  Chicago 
was  so  well  known  for  bargains  in  stolen  goods  that  the  owner  even  removed  labels 
from  legitimately  acquired  goods  to  make  his  customers  think  they  were  getting  hot 
articles.  See  U.S.  News  and  World  Report,  March  17,  1969,  at  44.  Similar  prac- 
tices have  become  commonplace  in  the  underworld.  See  V.  Teresa  &  T.  Renner, 
My  Life  in  the  Mafia  70  (1974)  [hereinafter  V.  Teresa];  C.  Klockars,  supra  note 
12,  at  79.    See  generally  Roselius  &  Benton,  Marketing  Theory  177,  189. 

30.  Uniform  Crime  Reports  for  the  United  States,  49  (1976)  (data  for  1960 
through  1975). 

31.  There  is  little  question  that  the  consuming  public  must  ultimately  shoulder 
the  burden  of  paying  for  the  increased  costs  that  are  engendered  by  theft  and  fencing 
activity.  See  U.S.  Dept.  of  Justice  (Law  Enforcement  Assistance  Admin.)  & 
Dept  of  Transportation,  Cargo  Theft  and  Organized  Crime:  A  Deskbook  for 
Management  and  Law  Enforcement  8  (1972)  [hereinafter  Cargo  Theft  and 
Organized  Crime].  It  is  not  clear,  however,  that  the  consumer,  who  so  quickly  pays 
for  theft,  would  just  as  quickly  reap  the  benefit  of  an  anti-theft  and  fencing  effort. 
The  immediate  effect  would  be  on  insurance  claims.  This  could  affect  rates  and  con- 
sequently profits,  prices,  or  both.  How  far  down  the  line  the  benefits  would  actually 
flow  is  not  evident.  But  it  seems  obvious  that,  while  the  effect  of  an  increasing  theft 
rate  on  the  consumer  tends  to  be  immediate  and  adverse,  the  effect  of  a  decreasing 
theft  rate  would,  in  all  likelihood,  be  gradual  and  only  potentially  positive. 

92-465  O  -  77  -  5 


8632 


1518  Michigan  Law  Review  [Vol.  74:1511 

dollars  annually.^^  Of  this  amount  ordinary  crimes,  including  bur- 
glary, robbery,  vandalism,  shoplifting,  employee  theft  and  passing 
bad  checks,  account  for  approximately  16.1  biUion  dollars. ^^  Presented 
with  similar  statistics,  a  recent  Senate  investigation  concluded  that 
since  "[t]he  magnitude  of  theft  is  so  great  ...  the  only  reasonable 
outlet  must  be  to  legitimate  consumers."'*  Obviously,  stolen  goods 
must  be  channeled  through  criminal  redistribution  systems.^"^ 

One  original  study  of  property  theft  and  recovery  rates  appears 
in  appendix  A  to  this  article.  Research  shows  that,  for  every  one 
hundred  persons,  the  value  of  property  annually  stolen,  measured 
in  constant  "1960"  dollars  to  account  for  inflation,  jumped  from  502 
dollars  in  1960  to  1061  dollars  in  1975,  an  increase  of  1 1 1  per  cent.'^ 

32.  The  20.3  billion  dollar  figure  for  1974  was  broken  down  into  the  following 
categories : 

Estimates  in  This  Study  1974  (Billions) 

Retailing  $  5.8 

Manufacturing  2.8 

Wholesaling  2.1 

Services  3.5 

Transportation  1.9 

Arson  0.3 

Preventive  3.9 


$20.3 
U.S.  Dept.  of  Commerce,  The  Cost  of  Crimes  Against  Business  7  (1974)  (up- 
date of  1972  study).  The  ratio  of  losses  to  total  capital  expenditures  is  equal  to 
about  17  per  cent  of  total  corporate  profits.  Id.  For  the  1972  Study,  see  U.S.  Dept. 
OF  Commerce,  The  Economic  Impact  of  Crimes  Against  Business,  Preliminary 
Staff  Report  5  (1972)  [hereinafter  Commerce  Dept.  Report].  "In  almost  every 
case,  the  estimates  are  conservatively  stated,  inasmuch  as  they  do  not  attempt  to  in- 
clude unreported  crimes,  which  are  considered  to  be  high."  Id.  at  4.  Significantly, 
"small  business  suffers  an  impact  that  is  3.2  times  the  average,  and  35  times  that 
of  businesses  with  receipts  over  $5  million."  Id.  at  9.  See  Cargo  Theft  and  Or- 
GANI2ED  Crime  5-6. 

33.  U.S.  Dept.  of  Commerce,  The  Cost  of  Crimes  Against  Business  7 
(1974). 

34.  Staff  Report  on  Small  Business  3.  See  Cargo  Theft  and  Organized 
Crime  28.  See  generally  Roselius  &  Benton,  Stolen  Goods  174;  Hearings  on  Stolen 
Securities  210-213. 

35.  Los  Angeles  authorities  have  reported,  for  example,  that  95  per  cent  of  stolen 
property  is  ultimately  redistributed.  Hearings  on  Fencing  3.  Chappell  and  Walsh 
state : 

Reflected  in  each  auto  theft,  in  each  burglary,  and  in  many  robberies  and 
muggings   is   evidence   of   fencing.      No   goods,    whether   created    through    the 
productive  process  or  acquired  by  theft,  have  value  to  the  possessor  unless  they 
are  distributed  and  sold — and  that  is  the  fence's  job.     Fencing,  then,  represents 
a  major  pixjportion  of  the  nation's  yearly  crime  figures  .... 
Chappell  &  Walsh,  Receiving  Stolen  Property  495.     Chappell  and  Walsh,  however, 
may  overstate  the  case,  at  least  in  the  auto  theft  area.     Most  auto  thefts  are  appar- 
ently made  not  for  resale  but  for  short  term  transportation.     Young  people  (under 
18)  represent  a  major  portion  of  those  arrested  for  the  offense  (55  per  cent  in  1975). 
Similarly,  a  high  proportion  (62  per  cent  in  1975)  of  stolen  autos  are  recovered.    Id. 
at  178.    Uniform  Crime  Reports  for  the  United  Statf.s  37  (1975)  [hereinafter 
U.C.R.  1975]. 

36.  See  Table  2,  Appendix  A. 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1519 

Moreover,  during  the  same  period  the  percentage  of  stolen  property 
recovered  declined  from  52.4  per  cent  to  29.9  per  cent.^^  Rising 
theft  rates  and  declining  recovery  rates,  especially  of  goods  recently 
manufactured  for  sale  to  consumers,  are  consistent  with  the  theory 
that  theft  is  the  by-product  of  sophisticated  fencing  schemes  that  quick- 
ly redistribute  stolen  goods  and  frustrate  police  procedures  currently 
employed  to  control  them. 

These  conclusions  are  supported  by  other  observations  reported 
in  appendix  A.  First,  the  increase  in  personal  property  thefts  is  pri- 
marily accounted  for  by  a  rapid  increase  in  thefts  of  "miscellaneous" 
property,^^  as  classified  by  the  Federal  Bureau  of  Investigation  in 
its  Uniform  Crime  Reports.  "Miscellaneous"  property  includes  of- 
fice equipment,  televisions,  radios,  stereophonic  equipment,  fire- 
arms, household  goods,  consumable  goods  and  livestock,^®  goods 
which  are  constantly  in  high  demand  by  consumers.  These  goods 
also  are  usually  quite  easy  to  conceal  and  transport,  and  can  often 
be  "legitimized"  simply  by  removing  identifying  labels  since  they  are 
rarely  not  marked  with  serial  numbers;  they  are  thus  easy  to  fence.*" 
Second,  the  increase  in  the  value  of  property  recovered  kept  pace 
with  the  increase  in  the  value  of  property  stolen  until  1966  when 
the  recovery  rate  droped  dramatically.  This  drop  coincides  with  the 
acceleration  of  thefts  of  miscellaneous  property.**  Finally,  the  sta- 
tistics indicate  that  although  the  overall  recovery  rate  declined,  the 
ability  of  law  enforcement  authorities  to  recover  most  types  of  stolen 
property  did  in  fact  improve.*^  Nevertheless,  improved  police  pro- 
cedures for  recovering  such  items  as  automobiles,  furs,  and  jewelry 
have  been  more  than  offset  in  the  overall  recovery  rate  by  the  inade- 
quacy of  existing  investigative  techniques  to  recover  miscellaneous 
property. 

This  study  supports  other  commentary  that  postulates  a  high  cor- 
relation between  merchandise  frequently  stolen  and  that  readily  de- 
manded by  consumers.**  It  also  reinforces  more  intuitive  observa- 
tions that  thieves  do  not  hijack  truck  loads  of  razor  blades,  tires  or 
tuna  fish  for  personal  consumption.**  Redistribution  for  profit  is  al- 
ways the  ultimate  objective  of  these  thefts,  and  the  consumer  mar- 

37.  See  Table  4,  Appendix  A. 

38.  See  section  A,  Appendix  A. 

39.  See  id. 

40.  See  section  B(6),  Appendix  A. 

41.  See  section  B(3),  Appendix  A. 

42.  See  section  B(4),  Appendix  A. 

43.  Roselius  &  Benton,  Stolen  Goods  182;  see  text  at  note  71  infra. 

44.  See  V.  Teresa,  supra  note  29,  at  141-42  (theft  of  razor  blades). 


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1520  Michigan  Law  Review  [Vol.  74:1511 

ket  is  generally  quite  willing  to  absorb  stolen  goods.*''  Although 
consumers  are  often  unaware  they  are  purchasing  stolen  property/" 
many  bargain  hunters  have  displayed  a  marked  proclivity  to  buy  such 
merchandise  when  it  is  available.*^  In  this  regard,  reference  already 
has  been  made  to  the  importance  of  apparently  legitimate  business- 
men who  seek  a  competitive  edge  by  selling  stolen  merchandise*® 
and  whose  cash  resources  facilitate  redistribution.  Clearly,  there- 
fore, the  survival  of  criminal  redistribution  systems  depends  upon  the 
continued  propensity  of  consumers  and  businesses  to  buy  illegal 
goods.*® 

The  ultimate  consequences  of  theft  and  fencing  for  both  the  na- 
tional economy  and  American  society  is  not  completely  reflected  in 
the  estimated  20.3  billion  dollar  cost  of  property  crimes. °°  On  one 
level,  rising  theft  rates  for  many  legitimate  businesses  mean  higher  in- 

45.  "[M]any  of  these  things  are  stolen  for  order  and  they  are  handled  by  or- 
ganized crime.  The  markets  are  already  established  and  the  property  is  absorbed  into 
our  economic  system  just  like  a  huge  dry  sponge.  It  just  sucks  it  all  up  and  it  disap- 
pears .  .  .  ."  Report,  The  Impact  of  Crime  3;  see  id.  at  13-14,  23-24;  Roselius 
&  Benton,  Stolen  Goods  174. 

46.  Staff  Report  on  Small  Business  7. 

47.  See  note  29  supra. 

48.  See  C.  Klockars,  supra  note  12,  at  62,  111-12;  Report,  The  Impact  of 
Crime  3,  13-14,  23-24;  notes  117-25  infra  and  accompanying  text.  Some  establish- 
ments may  be  reluctant  "to  buy  from  irregular,  noninstitutionalized  sources  of  supply," 
but  will  ultimately  wind  up  obtaining  stolen  property  because  of  their  failure  to  check 
the  purchasing  practices  of  their  buyers,  or  because  a  fence  has  successfully  estab- 
lished a  quasi-legitimate  front.  See  Roselius  &  Benton,  Stolen  Goods  183;  Emerson, 
They  Can  Get  It  for  You  Cheaper  Than  Wholesale,  New  York  Magazine,  Nov.  22, 
1971,  at  37. 

The  greed  of  legitimate  businessmen  is  a  prime  support  of  fencing  activity.  See 
generally  Hearings  on  Fencing  4.  Thieves  often  feel  "completely  safe  in  making  an 
offer  to  an  apparently  legitimate  store."  Id.  Pure  greed  may  not  be  the  only  factor. 
"Given  current  economic  conditions,  many  small  businessmen  are  only  too  glad  to 
get  merchandise  at  low  swag  [stolen  property]  market  prices."  Emerson,  supra,  at 
37.  "\}]n  poor  areas  of  the  inner  city,  where  small  businesses  have  an  enormous  rate 
of  failure,  fencing  may  make  the  difference  between  survival  and  failure."  Chasan, 
supra  note  1,  at  17.  Finally,  in  other  situations,  organized  crime  may  be  coercing 
businessmen  to  trade  in  stolen  goods.    See  note  119  infra  and  accompanying  text. 

49.  By  analogy,  it  has  been  said  that  "the  American  confederation  of  organized 
crime  thrives  because  a  large  minority  of  citizens  demand  illicit  goods  .  .  .  that  it 
has  for  sale."  Crcssey,  Methodological  Problems  in  the  Study  of  Organized  Crime 
as  a  Social  Problem.  374  Annals  of  the  Am.  Academy  of  Pol.  &  Soc.  Sci.  101, 
107  (1967).  See  President's  Commission  on  Law  ENFORCE>fFNT  and  Admin- 
istp^tion  OF  Justice,  Task  Force  Report,  Organized  Crime  2  (1967)  [hereinafter 
Task  Force  Report,  Organized  Crime]  For  a  discussion  of  the  role  of  or-anized 
crime  in  fencing  activity,  see  notes  1 50-69  infra  and  accompanying  text. 

50.  See  Cargo  Theft  and  Organized  Crime  3  (actual  dollar  value  of  lost  cargo 
does  not  reflect  other  consequences  of  the  theft);  Hearings  on  S.  16.  S.  J3,  S.  750, 
S.  J  946,  S.  2087,  S.  2426,  S.  2748,  S.  2856,  S.  2994,  and  S.  2995  Before  the  Subcomm. 
on  Criminal  Laws  and  Procedures  of  the  Senate  Comm.  on  the  Judiciary,  92d  Cong., 
IstScss.  309,  356  (1972)  [hereinafter  yffeann^j  on  Criminal  Lcws\. 


8635 


August  1976]        Criminal  Distribution  of  Stolen  Property  1521 

surance  rates°^  and  administrative  costs,**^  strained  customer  rela- 
tions,'^ and  lost  profits.'*  In  many  cases,  the  free  flow  of  commerce 
may  be  impeded.''  On  another  level,  although  the  sophistication  of 
fencing  schemes  varies  considerably,  the  typical  fence  operates  as  a 
businessman,  often  selling  goods  at  discount  and  undercutting  legiti- 
mate competitors.  Ultimately,  therefore,  widespread  and  sophisticated 
theft  and  fencing  threatens  the  free  enterprise  system'®  as  tax  reve- 
nues decline"  and  legitimate  businesses  are  forced  to  lay  off  employ- 
ees,'® to  relocate,  to  use  other  methods  of  shipping  goods,  or,  per- 
haps, to  declare  bankruptcy.'® 

There  is  a  clear  and  pressing  need,  therefore,  to  recognize  the 
undesirable  consequences  of  fencing  operations  and  to  deal  with 
them  forcefully.  An  important  factor  in  our  society's  neglect  of  the 
fence's  role  in  the  theft  problem,  however,  has  been  his  singular  suc- 
cess in  avoiding  prosecution  and  conviction.®*'    To  a  limited  extent, 

51.  See  Senate  Select  Comm.  on  Small  Business,  T^e  Impact  of  Crime  on 
Small  Business— Part  III,  S.  Rep.  No.  91-1547,  91st  Cong.,  2d  Sess.  3-4  (1970) 
[hereinafter  Select  Comm.  on  Small  Business];  Hearings  on  Stolen  Securities  66. 

52.  See  Select  Comm.  on  Small  Business  3;  Cargo  Theft  and  Organized 
Crime  4. 

53.  See  Cargo  Theft  and  Organized  Crime  4. 

54.  See,  e.g.,  id.  at  4-5. 

55.  See  id.  at  5. 

56.  Ironically,  since  most  stolen  goods  are  eventually  resold  in  the  stream  of  con- 
sumer commerce,  they  are  often  used  in  direct  competition  against  the  very  business- 
men who  originally  attempted  to  import  them.  See  Hearings  on  Criminal  Laws  356; 
Cargo  Theft  and  Organized  Crime  8. 

57.  Cargo  Theft  and  Organized  Crime  8. 

58.  See  generally  note  3 1  supra. 

59.  See  generally  Cargo  Theft  and  Organized  Crime  5.  V/hen  a  particular 
carrier  or  port  of  entry  establishes  a  poor  safety  record  with  respect  to  the  security 
of  its  cargo  facilities,  a  poor  image  may  be  acquired  that  would  motivate  shippers 
to  divert  their  cargo  to  alternative  routes  or  modes  of  transportation.  Id.  at  7-8.  A 
poor  image,  once  acquired,  is  difficult  to  lose.    Id. 

A  recent  report  issued  by  the  Waterfront  Commission  of  New  York  Harbor  re- 
veals that  airline  theft  may  be  valued  at  a  figure  as  high  as  $16  million  per  year 
at  Kennedy,  La  Guardia  and  Newark  airports  (more  than  in  the  rest  of  the  country 
combined);  it  also  casts  doubt  on  previous  evidence  given  to  Congress  that  the  theft 
problem  was  being  brought  under  control.  Waterfront  Commn.  of  N.Y.  Harbor, 
Report  on  the  True  Extent  of  Cargo  Theft  at  the  New  York-New  Jersey  Air- 
ports 2-3  (1975).    The  Commission  concluded: 

The  thefts  at  our  airports  are  really  only  symptomatic  of  the  more  basic 
problem  of  criminal  control  of  the  air  freight  industry.  Large-scale  theft  of 
gold,  silver,  platinum,  rare  metals,  furs,  jewelry,  diamonds,  etc.  are  not  thefts  of 
individual  impulse,  but  rather  require  sophisticated  planning  in  advance  by  or- 
ganized groups  as  well  as  previously  arranged  distribution  channels  to  get  such 
commodities  into  manufacturing  and  consumer  markets. 
W.  at31. 

60.  Hearings  on  Criminal  Laws  309-10.  Compare  Report,  The  Impact  of 
Crime  10,  with  J.  Hall,  supra  note  5,  at  197-98.  Nationally,  the  crime  of  receiving 
stolen  property  has  had  a  conviction  rate  (offense  charged)  of  38  per  cent  for  a  num- 


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1522  Michigan  Law  Review  [Vol.  74:1511 

this  success  is  a  product  of  current  law  enforcement  practices  that 
tolerate  fencing  as  a  quid  pro  quo  for  information  concerning  theft^^ 
and  other  crimes  that  police  consider  more  important.  While  these 
law  enforcement  priorities  reveal  a  failure  to  recognize  receiving  as 
a  cause  of  other  crime,  they  also  reflect  deficiencies  both  in  tech- 
niques used  to  detect  fencing  and  in  the  substantive  law  that  frus- 
trates the  prosecution  of  alleged  fences.*^  Thus,  partial  responsibil- 
ity for  the  rising  theft  rate  and  the  tremendous  amount  of  property 
successfully  redistributed  annually  may  be  attributed  to  a  failure  of 
the  legal  system  to  recognize  the  character  and  consequences  of 
modem  theft  and  fencing  operations. ^^  Section  I  of  this  article  de- 
scribes various  theft  and  fencing  operations.  As  will  be  evident  from 
that  discussion,  the  most  sophisticated  fences  are  far  removed  from 
those  receivers  who  are  owners  of  seedy  pawnshops  or  who  indis- 
criminately select  potential  customers  on  the  street,  and  thus  they 
pose  peculiar  problems  for  law  enforcement.  Section  II  then  iden- 
tifies inadequacies  in  existing  investigative  techniques  and  in  the  sub- 
stantive laws  of  receiving  in  light  of  modem  theft  and  fencing  opera- 
tions. It  proposes  changes  in  the  law  and  suggests  appropriate  law 
enforcement  strategies  to  facilitate  the  detection  and  conviction  of 
alleged  fences.  Needed  changes  in  the  civil  law  are  also  discussed. 
Throughout  these  sections  of  the  article,  reference  will  be  made  to 
the  provisions  of  a  Model  Theft  and  Fencing  Act  set  forth  in  appen- 
dix B. 

ber  of  years.  See.  e.g.,  U.C.R.  1975,  at  174.  Historically,  gaps  in  the  substantive 
law  have  made  it  difficult  to  convict  fences.  See  J.  Hall,  supra  note  5,  at  173. 
There  have  also  been  other  barriers  to  successful  prosecution : 

It  has  always  been  difficult  to  convict  professional  receivers.  .  .  .     [Tlhey 
have  been  shrewd  enough  to  devise  methods  of  operation  which  [escape]  public 
notice.    They  dress  their  illegal  traffic  in  all  the  paraphernalia  of  lawful  enter- 
prise; they  conduct  their  businesses  secretly;  they  are  equipped  both  mentally 
and  financially  to  take  full  advantage  of  the  weaknesses  in  the  administrative 
machine,  should  prosecution  be  initiated. 
J.  Hall,  supra  note  5,  at  195.     At  least  some  law  enforcement  officials  today  feel 
that  the  substantive  law  related  to  fencing  activity  is  satisfactory,  believing  that  the 
"difficulties  arise  in  the  practical  application  of  the  law  especially  in  the  evidentiary 
and  procedural  area."     Hearings  on  Fencing  46.     Chappell  and  Walsh  have  stated 
that  "fencing  should  be  considered  and  attacked  as  a  problem  of  legal  revision,  of 
updating   the   law   to  the  contemporary   situation."     Chappell  &  Walsh,   Receiving 
Stolen  Property  489. 

61.  See  Chappell  &  Walsh,  "No  Questions  Asked"  166-67;  C.  Klockars,  supra 
note  12,  at  27-28,  194-95.    See  generally  J.  Hall,  supra  note  5,  at  201-02. 

62.  See  notes  175-467  infra  and  accompanying  text. 

63.  Chappell  and  Walsh  attribute  partial  responsibility  for  the  legal  system's  in- 
adequacies to  society's  inaccurate  perception  of  the  fence:  "[T]o  deal  effectively 
with  the  fence,  we  must  first  alter  our  perceptions  of  him.  .  .  .  The  law,  after  all, 
can  only  proscribe  and  protect  against  that  which  we  can  describe  and  demonstrate 
for  it."    Chappell  &  Walsh,  "No  Questions  Asked"  168  (emphasis  original). 


8637 


August  1976]        Criminal  Distribution  of  Stolen  Property  1523 

I.    The  Realities  of  Modern  Fencing  Systems 

Although  patterns  of  redistribution  differ  in  sophistication,  all 
fences  are  essentially  businessmen  engaged  in  "[t]he  performance 
of  business  activities  that  direct  the  flow  of  goods  .  .  .  from  producer 
[thief]  to  consumer  or  user."®*  As  middlemen,  fences  must  locate 
supplies  of  stolen  goods,  contact  purchasers,  provide  transportation 
and  storage  facilities,''^  and  finance  the  entire  process.®*  During  re- 
distribution, therefore,  fences  confront  two  major  risks:  the  risk  of 
detection  while  performing  the  middleman  functions  and  the  risk  of 
financial  loss  if  the  particular  stolen  goods  cannot  be  marketed  prof- 
itably. •'^  As  this  section  of  the  article  will  show,  the  extent  of  both 
these  risks  varies  inversely  with  the  sophistication  of  the  fencing  op- 
eration. Risks  are  minimized  for  the  most  successful  fences  who 
have  leadership  ability,  business  acumen,  established  contacts  with 
thieves,  broad  operation  bases,  tight  organizational  control,  and  legit- 
imate facades.*®  It  is,  of  course,  these  sophisticated  receiving  opera- 
tions that  pose  the  greatest  challenge  to  our  society.  A  brief  study 
of  the  most  common  fencing  techniques  is,  therefore,  necessary  to 
understand  the  changes  that  are  desirable  both  in  the  substantive  law 
of  receiving  and  in  its  enforcement. 

A.     Marketing  Theory  and  the  Fence 
Successful  fences  frequently  minimize  their  risks  by  adopting  the 

64.  Committee  on  Deftnitions,  Am.  Marketing  Assn.,  Marketing  Defini- 
tions 15  (1960).     This  is  the  conventional  definition  of  the  term  marketing.     See 
Roselius  &  Benton,  Marketing  Theory  \ll-li.    Some  commentators  argue,  however, 
that 
a  broader  definition  is  often  used  to  give  more  specific  direction  to  the  persons 
charged  with  performing  the  marketing  functions.    Thus,  "[m]arketing  is  a  total 
system  of  interacting  business  activities  designed  to  plan,  price,  promote,  and  dis- 
tribute want-satisfying  products  and  services   to  present   and  potential  users." 
This  definition  assumes  that  much  of  the  behavior  related  to  the  distribution  of 
stolen  goods  consists  of  rational,  economically  guided  decisions.     It  also  indi- 
cates that  such  distribution  requires  conscious  effort  and  decision  making  by  the 
thief  and  fence. 
Id.  at  179  (citations  omitted).    Other  authorities  have  recognized  the  business  nature 
of  a  fencing  operation:    "The  business  of  dealing  in  stolen  goods  requires  a  trained 
personnel.     It  requires  most  of  the  qualifications  necessary  to  carry  on  any  business 
and  a  number  of  additional  ones."    J.  Hall,  supra  note  5,  at  156-57. 

65.  See  Roselius  &  Benton,  Marketing  Theory  187. 

66.  Financing  the  transfer  process  actually  involved  paying  the  producers  for 
their  labor  and  taking  care  of  both  transportation  and  storage  arrangements.  Ro- 
selius and  Benton  maintain  that  of  these  three  functions,  providing  the  thieves  with 
their  payment  is  the  most  important  marketing  service  performed  by  the  fence.  See 
Roselius  &  Benton,  Marketing  Theory  186;  Staff  Report  on  Small  Business  6-7. 

67.  See  Roselius  &  Benton,  Marketing  Theory  187;  Staff  Report  on  Small 
Business  7. 

68.  Arguably,  "image-building"  is  no  longer  an  important  aspect  of  a  fencing  op- 
eration.   But  see  Chappell  &  Walsh,  "No  Questions  Asked"  165. 


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1524  Michigan  Law  Review  [Vol.  74:1511 

same  marketing  techniques  used  by  legitimate  businessmen.®®  For 
example,  fences  frequently  use  elementary  supply  and  demand  prin- 
ciples to  determine  which  goods  can  be  moved  safely  and  quickly 
through  the  redistribution  chain. ^°  This  information  is  then  passed 
to  thieves  who  usually  use  it  in  determining  the  types  of  merchandise 
to  steal. '^^  Although  virtually  any  item  can  be  fenced,"  many  fences 
prefer  high  value,  low  volume  goods  that  produce  handsome  profits 
and  can  easily  be  hidden  and  transported."  Most  fences,  however, 
deal  in  high  volume  goods  of  lower  value  that  are  not  easily  identi- 
fied by  police^*  because  of  the  large  quantitites  of  physically  indistin- 
guishable products  manufactured  today.  Thus,  the  list  of  commonly 
fenced  "safer"  goods  includes  clothing,  stereos,  radios,  home  appli- 
ances, cigarettes,  liquor,  pharmaceutical  drugs,  building  supplies,  office 
equipment,  and  securities."     Shoplifters,^®  employees,"  and  bur- 

69.  See  Roselius  &  Benton,  Marketing  Theory  178,  185-88;  Staff  Report  on 
Small  Business  6;  Hearings  on  Criminal  Laws  309. 

70.  See  Hearings  on  Criminal  Laws  309;  Roselius  &  Benton,  Marketing  Theory 
184.    See  generally  J.  Hall,  supra  note  5,  at  160. 

71.  Hall  has  remarked  that,  "[o]f  all  these  factors  [influencing  fencing  activity], 
fluctuations  in  the  general  market  are  the  most  important  conditioning  forces  upon 
the  receiver's  purchases  and  consequently  upon  professional  theft."  J.  Hall,  supra 
note  5,  at  160.  See  generally  Truck  Hijacking:  Fastest  Growing  Racket,  U.S.  News 
and  World  Report,  Sept.  14,  1970,  at  27;  Hearings  on  fencing  150-51;  note  74  infra 
and  accompanying  text. 

72.  "Almost  anything  seems  to  lure  today's  thieves:  Hotpants  are  a  hot  item  for 
today's  department  store  shoplifters.  Typewriters,  adding  machines,  electric  clocks, 
and  xerox  copiers — anything  that  isn't  securely  nailed  down — are  disappearing  from 
offices  and  warehouses."  Dietsch,  Theft:  The  Hidden  Tax,  Washington  Star,  July 
12.  1971,  pt.  1. 

73.  Antique  pieces,  expensive  paintings,  jewelry,  and  even  certain  kinds  of  con- 
struction equipment  (e.g.,  giant  heavy  equipment  tires)  are  good  examples  of  high 
value,  low  volume  goods.  "Consumer  goods  such  as  guns,  gems,  autos,  television  sets, 
and  liquor  .  .  ."  also  fit  into  this  category.  Roselius  &  Benton,  Marketing  Theory 
196-97. 

74.  One  of  the  prosecutor's  chief  obstacles  in  gaining  convictions  is  the  identifica- 
tion of  the  goods  as  stolen.  See  notes  223-32  infra  and  accompanying  text.  Accord- 
ingly, "identification  of  goods  is  the  chief  risk  to  be  avoided"  by  any  fence.  J.  Hall, 
supra  note  5,  at  160. 

75.  See  Staff  Report  on  Small  Business  6;  Hearings  on  Fencing  3-4,  22-23, 
43,  149-53;  Hearings  on  Stolen  Securities  38,  547;  Chasan,  supra  note  1. 

76.  "Total  inventory  losses  which  result  almost  entirely  from  shoplifting  and  em- 
ployee theft  are  estimated  as  high  as  four  to  five  per  cent  of  sales  at  some  stores. 
This  is  virtually  equal  to  the  normal  profit  margins  in  retailing."  Commerce  Dept. 
Report  11.  Over-all,  shoplifting  accounts  for  28  per  cent  of  retail  loss  due  to  prop- 
erty crimes.  Id.  at  9.  "Shoplifting  in  some  metropolitan  areas  is  highly  organized, 
with  the  stolen  goods  handled  only  by  certain  fences."  Furstenberg,  Violence  and 
Organized  Crime,  13  Crimes  of  Violence:  A  Staff  Report  to  the  National 
CoMMN.  ON  the  Causes  of  Violence  911,  922  (1969).  See  generally  Shoplift- 
ing: The  Finch  That  Hurts,  Business  Week,  June  27,  1970,  at  72;  Shoplifting,  Long 
a  Plague  of  Urban  Stores,  Is  Now  an  Increasing  Menace  in  the  Suburbs,  Wall  Street 
J.,  Dec.  23,  1971,  at  22,  col.  1. 

77.  In  the  cargo  industry,  employees  are  participants  in  80  per  cent  of  theft  ac- 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1525 

glarsj*  who  together  account  for  most  commercial  theft  J®  often  steal 
these  high-demand  products  and  sell  them  to  fences  for  redistribu- 
tion.*°  Even  though  fences  usually  deal  in  high-demand  products,  the 
use  of  standard  marketing  principles  is,  nevertheless,  often  imperfect 
because  the  demand  for  and  supply  of  stolen  property  are  extremely 
heterogeneous;^^  the  only  fences  consistently  successful  in  matching 
supply  and  demand  are  those  with  reliable  and  well-connected  inform- 
ants^^ who  can  direct  the  fences  to  thieves  able  to  supply  particular 
goods  and  customers  willing  to  purchase  them. 

Once  supply  and  demand  have  been  estimated,  a  fence  must 
price  his  stolen  merchandise.  As  in  legitimate  marketing  operations, 
pricing  involves  a  consideration  of  current  market  prices,  available 

tivity.  "Cartons  [are]  stolen  by  those  who  have  easy  access  to  shipments."  Cargo 
Theft  and  Organized  Crime  19.  It  is  estimated  that  "70  to  80  per  cent  of  the 
cargo  stolen  as  the  result  of  employee  theft  ...  is  converted  into  cash  through  the 
use  of  fences."  Id.  See  Hearings  on  Fencing  39,  144-46.  For  excellent  examples 
of  such  theft  activity,  see  C.  Kuxkars,  supra  note  12,  at  61-62,  75,  85-88,  107-08, 
143-44.  A  detailed  summary  of  employee  theft  techniques  is  provided  in  Cargo 
Theft  and  Organized  Crime  37-38. 

A  similar  situation  prevails  in  the  retail  industry.  Employee  theft  is  estimated 
to  account  for  13  per  cent  of  the  losses  resulting  from  property  crimes,  but  the  Com- 
merce Department  and  other  sources  feel  that  this  percentage  is  greatly  understated 
because  businesses  are  reluctant  "to  admit  the  magnitude  of  their  employee  theft 
problem  .  .  .  ."  Commerce  Dept.  Report  9-11.  There  is  little  reason  to  believe 
that  these  employees  retain  their  stolen  goods  for  personal  consumption.  See  gener- 
ally Hearings  on  Fencing  4;  Gregory,  Why  Workers  Steal,  Saturday  Evening  Post, 
Nov.  10,  1962,  at  68. 

78.  Burglaries  account  for  23  per  cent  of  property  crime  losses  incurred  by  retail 
businesses.  The  over-all  national  burglary  rate  increased  256.6  per  cent  between  1960 
and  1975.  See  U.C.R.  1975,  at  49.  This  activity  cost  business  and  noncommercial 
victims  a  loss  of  $1.4  billion  in  1975.  Id.  at  28.  The  goods  obtained  by  burglarizing 
both  residential  and  commercial  establishments  are  commonly  passed  on  to  fences. 
See  Hearings  on  Fencing  161. 

79.  See  generally  U.C.R.  1975,  at  25-31. 

80.  See  notes  75-77,  supra.  "To  make  the  original  theft  profitable,  it  seems  evi- 
dent that  the  huge  amounts  of  goods  stolen  from  carrier  vehicles,  stores,  docks,  termi- 
nals, and  warehouses  must  be  passed  along  to  unscrupulous  buyers  for  eventual  re- 
sale."   Hearings  on  Fencing  1. 

81.  Roselius  &  Benton,  Marketing  Theory  184. 

82.  Roselius  &  Benton  state: 

The  dominant  form  of  market  information  about  stolen  goods  is  word-of-mouth 
communications  between  consumers,  fences,  information  brokers  such  as  bar- 
tenders, and  thieves.     [Our]  study  [in  Colorado]  found  no  evidence  of  sophisti- 
cated data  gathering  and  analysis  similar  to  the  very  effective  techniques  used  by 
legitimate  businessmen.     However,  it  is  likely  that  syndicated  crime   [in  other 
areas]  does  use  such  techniques  on  large  volume  transactions. 
Id.  at  188.    In  addition,  tips  supplied  by  company  employees  are  an  important  source 
of  marketing  research  information.    See  notes  140,  i44-45  infra  and  accompanying 
text.    To  the  extent  that  a  fence  is  able  to  buy  goods  on  order  for  customers  who 
have  already  indicated  a  wilHngness  to  purchase  designated  stolen  merchandise,  his 
marketing  research  difficulties  with  respect  to  the  demand  function  are  eliminated. 
Buying  on  order  is  a  frequent  occurrence.    See  notes  111,  121  infra  and  accompany- 
ing text. 


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1526  Michigan  Law  Review  [Vol.  74:1511 

capital  resources,  promotional  costs,  personnel  disbursements,  and 
storage  and  transportation  expenses.*^  The  price  of  stolen  property, 
however,  also  includes  the  costs  of  precautionary  measures  taken  to 
avoid  detection,  such  as  removing  identifying  labels  from  the  goods, 
surreptitiously  handling  the  merchandise  and,  frequently,  paying 
bribes.®*  Ultimately,  the  price  of  stolen  merchandise  reflects  both 
the  length  of  the  redistribution  chain  and  the  costs  of  legitimizing 
the  product.®"^  If  fences  must  charge  prices  approximating  legit- 
imate wholesale  or  retail  prices,  stolen  goods  will  lose  their  competi- 
tive appeal  and  demand  will  diminish. 

One  approach  taken  by  certain  cost-conscious  fences  is  to  trade 
only  in  particular  goods.  By  specializing  in  art,  jewelry,  or  automo- 
biles, for  example,  a  fence  can  eliminate  many  costly  and  risky  trans- 
actions.   Specialization,  however,  does  not  guarantee  success,®*  and 

83.  See  Roselius  &  Benton,  Marketing  Theory  192. 

84.  See  J.  Hall,  supra  note  5,  at  159-60;  F.  Ianni,  Black  Mafia  131-32  (1974). 

85.  Roselius  &  Benton,  Marketing  Theory  191.  When  the  purchaser  is  aware  that 
the  goods  have  been  stolen,  the  goods  may  be  sold  at  a  lower  price.  Id.  Indeed, 
the  aware  consumer  actually  expects  to  purchase  stolen  goods  at  bargain  rates.  In 
contrast,  when  the  consumer  is  unaware  that 

the  goods  are  stolen,  an  effort  must  be  made  within  the  channel  of  distribu- 
tion to  legitimize  the  transaction  by  disguising  the  fact  that  the  property  is 
stolen.  Differences  in  channels  will  entail  differences  in  the  number  and  type 
of  middlemen  involved. 

The  thief  may  sell  directly  to  the  consumer  but  must  take  steps  to  give  the 
transaction  an  aura  of  legality.  If  he  cannot  legitimize  the  transaction  or  per- 
form some  middleman  marketing  function,  he  must  utilize  one  or  more  inter- 
mediaries in  the  channel  of  distribution,  generally  a  fence.  Legitimation  is  best 
accomplished  if  the  fence  operates  a  cover  or  front  institution  of  some  kind. 
Id. 

86.  C.  Klockars,  supra  note  12  at  188: 

mhe  would-be  successful  dealer  in  stolen  property  may  find  that  forces  be- 
yond his  control  prohibit  him  from  buying  both  profitably  and  regularly.  This 
is  particularly  true  if  he  has  decided  to  become  a  specialist  dealer.  The  would- 
be  successful  dealer  in  fine  art  for  example,  may  buy  and  sell  profitably,  but  may 
find  that  not  enough  fine  art  is  stolen  to  permit  him  to  deal  regularly.  Similarly, 
the  would-be  jewelry  specialist  may  find  that  generalist  fences  .  .  .  and  "occa- 
sional receiver"  legitimate  jewelers  take  up  the  small  regular  trade,  leaving  him 
only  with  opportunities  to  buy  large  quantities  of  very  expensive  jewelry  which 
nonspecialists  are  not  prepared  to  handle.  The  would-be  specialist  in  men's 
suits,  on  the  other  hand,  may  find  that  he  can  buy  small  quantities  of  suits  regu- 
larly but  not  profitably,  because  thieves  manage  to  sell  them  to  "lay  receivers" 
at  prices  which  are  close  to  or  equal  to  what  he  would  pay  for  them  legitimately. 
Specialist  dealers  are  generally  under  economic  pressure  to  deal  in  large  quanti- 
ties of  their  particular  item.  They  are  also  likely  to  plan  each  highly  profitable 
individual  transaction  days,  weeks,  or  even  months  in  advance. 
In  contrast, 

[t]he  generalist  dealer  may  find  himself  subject  to  quite  different  pressures  from 
the  economics  of  theft.  These  pressures  may  permit  him  to  deal  regularly  but 
may  tax  his  ability  to  do  so  profitably.  The  advantage  which  the  generalist 
dealer  offers  to  generalist  thieves  is  a  ready  market  for  those  things  which  are 
commonly  stolen.  Like  the  department  store  or  shopping  center,  his  attraction 
is  convenience.  He  is  willing  and  able  to  buy  most  things  that  are  stolen,  often 
without  special  preparations.  Two  forces  arc  likely  to  play  upon  him  economic- 
ally.   On  the  one  hand,  there  is  a  tendency  for  him  to  become  more  "conveni- 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1527 

the  extent  to  which  a  fence  can  successfully  specialize  and  reduce 
his  risks  depends  on  the  sophistication  of  his  operation. 

Thus,  the  use  of  established  marketing  principles  to  analyze  fenc- 
ing behavior,  although  somewhat  imperfect,  permits  two  rather  intui- 
tive observations.  First,  measures  that  increase  a  fence's  difficulty 
in  matching  supply  and  demand  prolong  redistribution  and  increase 
his  risks  of  detection.  Second,  as  these  risks  increase  so  too  do  the 
costs  of  minimizing  them,  and  thus  stolen  goods  begin  to  lose  their 
competitive  advantage  as  their  prices  rise.  Once  the  risks  of  finan- 
cial loss  and  detection  become  sufficiently  great,  fencing  activity  may 
be  curtailed.  Suppose,  for  example,  that  most  manufacturers  of 
high-demand  goods  were  to  label  their  products  with  conspicuous  se- 
rial numbers  and  were  accurately  to  record  those  numbers.®^  Such 
measures  might  prolong  redistribution  and  increase  a  receiver's  risks 
of  detection  and  financial  loss.  They  would  have  these  effects  by 
deterring,  to  some  extent,  purchasers  who  knowingly  buy  stolen 
property,  since  the  goods  of  these  manufacturers  would  be  readily 
identifiable;  facilitating  detection  of  fencing  activity  unless  added 
precautionary  measures  were  taken;  and  increasing  the  cost  of  legit- 
imizing stolen  merchandise.  Additionally,  such  measures  might 
prolong  redistribution  for  similar  goods  not  so  labelled  by  preventing 
fences  from  arranging  their  resale  far  in  advance  because  they  were 
uncertain  as  to  whether  they  could  obtain  unlabelled  goods,  and,  sim- 
ilarly, by  making  fences  reluctant  to  refuse  to  purchase  such  scarce 
goods  even  though  they  did  not  yet  have  buyers. 

It  is  important  always  to  keep  in  mind,  however,  that  the  extent 
to  which  such  measures  would  increase  fencing  risks  would  also  de- 
pend on  other  factors,  such  as  the  sophistication  of  the  fence's  opera- 
tion. Although  simple  serial  numbering  of  products  may  help  in  the 
detection  and  conviction  of  relatively  unsophisticated  "neighbor- 
hood" and  "outlet"  fences,  more  comprehensive  measures  may  be 
needed  to  help  detect  large,  well-financed  fences  who  can  easily 
shoulder  the  costs  of  legitimizing  stolen  goods  and  the  added  risk 

ent,"  that  is,  to  handle  a  wider  and  wider  variety  of  items.  Because  specialist 
items  arc  likely  to  be  '-vorking  with  specialist  dealers,  the  unusual  items  that  the 
generalist  dealer  is  pressed  to  handle  may  be  small  amounts  of  items  taken  by 
chance  by  generalist  thieves  Unless  the  generalist  dealer  has  an  unlimited  num- 
ber of  buyers  or  develops  other  means  of  disposing  of  exotic  merchandise,  he 
must  find  ways  of  limiting  what  he  buys  so  as  to  match  his  capacities  to  sell. 
The  specialist  dealer  must  also  limit  what  he  buys  to  what  he  is  prepared  to  han- 
dle readily,  but  the  intermittent  character  of  his  trade  may  make  it  possible  for 
him  to  prepaie  to  sell  what  he  knows  he  is  going  to  buy. 
Id.  at  188-89. 

87.  See  text  at  notes  227-31  infra. 


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1528  Michigan  Law  Review  [Vol.  74:1511 

of  deteciion.''*    Attention,  therefore,  must  focus  briefly  on  the  major 
types  oi  fencing  systems. 

B.     Patterns  of  Redistribution 

The  extremely  successful  eighteenth  century  fencing  operations 
of  Jonathan  Wild^^  provide  a  preliminary  framework  for  the  analysis 
of  modem  criminal  redistribution  systems.  Sometimes  called  the 
"Father  of  Professional  Fencing,"^*'  Wild's  "astonishing  organiza- 
tional sophistication"®^  enabled  him  to  develop  a  large-scale  system 
of  redistribution  that  "[controlled]  the  London  underworld  for  more 
than  a  decade  .  .  .  ."^^ 

Although  his  redistribution  system  was  constrained  by  economic 
and  demographic  factors  that  made  the  resale  of  most  stolen  property 
impractical,®^  Wild  still  managed  to  make  a  fortune  by  opening  an 
office  for  the  "recovery  of  lost  property,"®*  a  subterfuge  through 
which  he  established  contacts  with  thieves  and,  in  effect,  fenced 
stolen  goods  by  selling  them  back  to  their  original  owners  and  col- 
lecting rewards.  The  success  of  this  system  depended  upon  Wild's 
ability  simultaneously  to  gain  the  confidence  of  thieves  with  whom 
he  dealt  and  yet  to  maintain  a  clean  public  image,®®  an  understand- 
ably delicate  balancing  process  that  he  accomplished  by  applying  ele- 
mentary marketing  principles  and  by  taking  advantage  of  the  then 
current  English  law.  Wild  built  good  relations  with  thieves  by  pay- 
ing the  best  prices  in  London  for  stolen  goods,®®  and  he  created  and 

88.  See  note  229  infra. 

89.  A  vast  literature  is  available  which  examines  the  life  of  Jonathan  Wild  in 
great  detail.  See,  e.g.,  D.  Defoe,  The  King  of  Pirates  (1901);  H.  Fielding,  The 
Life  of  Mr.  Jonathan  Wild  The  Great  (1926);  G.  Howson,  The  Thief-Taker 
General:  The  Rise  and  Fall  of  Jon.vthan  Wild  (1970);  P.  Pringle,  The  Thief- 
Takers  (1958). 

■    90.  C.  Klockars,  supra  note  12,  at  3. 

91.  Chappell  &  Walsh,  "No  Questions  Asked"  165. 

92.  C.  Klockars,  supra  note  12,  at  3.  At  his  peak  Jonathan  Wild  directed  the 
activities  of  approximately  7000  thieves.  Id.  at  13.  He  divided  London  into  dis- 
tricts, each  administered  by  carefully  selected  assistants  whom  Wild  controlled  by  the 
threat  of  legal  prosecution  under  the  Transportation  Act.  Id.  at  17.  Wild  ran  his 
operation  in  a  business-like  manner.  Indeed,  he  referred  to  it  as  a  "corporation." 
Chappell  &  Walsh,  'Wo  Questions  Asked"  565.  Thieves  were  often  skillfully  trained, 
responsibilities  were  delegated,  and  even  advertising  was  employed.  See  id.  at  157, 
159,  165-67;  C.  Klockars,  supra  note  12,  at  13-19. 

93.  See  Chappell  &  Walsh,  'Wo  Questions  A.'skeJ"  167;  notes  1-',  sup<-a  and  ac- 
companying text.  Items  that  could  not  be  resold  in  England  were  frequently  smug- 
gled out  of  the  country.  See  C.  Klockars,  supra  note  12,  at  13;  Chappell  &.  Walsh, 
"No  Questions  Asked"  167-68. 

94.  See  C.  Klockars,  supra  note  12,  at  14-15. 

95.  rd.  at   16-17. 

96.  Id.  at  11-12. 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1529 

maintained  his  untarnished  pubHc  reputation  by  "thief-taking" — that 
is,  aiding  in  the  capture  of  thieves  or  providing  evidence  to  convict 
them.*^'  Incidentally,  the  self-proclaimed  "Thief-Taker  General  of 
Great  Britain  and  Ireland"®*  also  accomplished  a  more  subtle  goal 
by  helping  to  convict  thieves:  Through  such  activity,  he  actually 
tightened  his  control  over  the  approximately  7,000  thieves  in  London 
by  giving  him  means  to  punish  those  thieves  who  would  not  deal 
with  him.®* 

This  brief  description  of  Wild's  operation  is  instructive  for  at  least 
two  reasons.  First,  it  demonstrates  that  Wild's  success  depended 
upon  his  tight  organizational  control  and,  perhaps  more  importantly, 
upon  his  ability  to  project  two  apparently  contrasting  images — an 
ability  that  minimized  his  risks  of  detection.  Thus,  "  '[b]efore  a 
thief,  he  was  a  fellow  thief;  before  a  gentleman,  a  gentleman.'  "^^'^ 
Second,  it  demonstrates  in  a  rather  simple  fashion  the  extent  to 
which  inadequacies  in  the  law  may  promote  fencing.  In  fact.  Wild's 
operation  continued  to  expand  until  he  succumbed  to  a  law  (the  so- 
called  "Jonathan  Wild's  Act")  specifically  designed  to  defeat  him.^*^* 
As  will  be  evident  in  the  following  discussion,  the  most  sophisticated 
and  the  most  dangerous  modern  fences  also  successfully  project  con- 
trasting images  and  exploit  inadequacies  in  the  substantive  law.^''^ 

1 .     The  "Neighborhood  Connection" 

[S]ome  fences  may  deal  directly  with  a  thief  and  openly  sell  to  a 
buyer.  This  type  of  fence  is  usually  found  in  every  neighborhood, 
and  he  deals  primarily  with  small  amounts  of  property.  He  is  the 
"neighborhood  connection."^^^ 

97.  Id.  at  9-10.  See  J.  Hall,  supra  note  5,  at  73;  Chappell  &  Walsh,  'Wo  Ques- 
tions Asked"  159. 

98.  C.  Klockars,  supra  note  12,  at  16-17. 

99.  Id.  at  17.  It  was  alleged  that  "notwithstanding  his  [Wild's]  pretended  serv- 
ices in  detecting  and  prosecuting  offenders,  he  procured  such  only  to  be  hanged  as 
concealed  their  booty,  or  refused  to  share  it  with  him."  J.  Hall,  supra  note  5,  at 
71-72.  See  Chappell  &  Walsh,  "No  Questions  Asked"  159.  Although  Wild  generally 
limited  his  thief-taking  activities  to  those  who  did  not  recognize  his  authority,  his 
public  reputation  grew  because  the  assistance  he  offered  did,  in  fact,  lead  to  the  cap- 
ture and  destruction  of  many  of  London's  most  powerful  criminal  gangs.  See  C. 
Klockars,  supra  note  12,  at  17-19. 

100.  C.  Klockars,  supra  note  12,  at  12. 

101.  Id.  at  25-26.    See  J.  Hall,  supra  note  5,  at  73-76. 

102.  The  typology  of  fences  found  in  the  text  is  only  one  of  many  possible.  For 
a  typology  based  on  sources  of  property  dealt  with,  see  Strategies  14-23.  It  is  im- 
portant to  emphasize,  loo,  that  one  individual  may  play  many  different  roles  in  many 
different  transactions;  the  types  in  the  text,  therefore,  should  not  be  viewed  as  mu- 
tually exclusive. 

103.  Hearings  on  Fencing  44.  Perhaps  saying  that  the  "neighborhood  connec- 
tion" exists  in  "every  neighborhood"  goes  too  far.     But  if  the  fence  himself  is  not 


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1530  Michigan  Law  Review  [Vol.  74:1511 

By  definition,  the  neighborhood  fence  is  a  small-time  operator. 
He  may,  on  occasion,  actually  steal  merchandise  for  resale,  but  more 
often  he  is  supplied  by  local  thieves,  such  as  small-time  shoplifters 
or  dishonest  cargo  company  employees. ^°^  Although  neighborhood 
fences  tend  to  specialize,  they  often  buy  whatever  stolen  property 
is  available  if  the  price  is  reasonable  and  the  item  is  in  demand. '°'' 
Once  the  thief  is  paid,  the  goods  are  frequently  stored  in  unimagina- 
tive and  insecure  hiding  places,  for  instance,  in  the  trunk  of  a  car 
or  the  receiver's  basement.  ^°^ 

Although  the  neighborhood  fence  has  no  permanent  place  of 
business,  stolen  goods  are  almost  never  hustled  on  the  streets  be- 
cause of  the  risks  involved.  ^"^  Instead,  the  goods  are  sold  in  living 
rooms,  local  bars,  or  garages,  or  to  local  retail  stores  and  pawnshops."* 
The  neighborhood  fence  rapidly  acquires  a  reputation  as  a  dealer 
in  stolen  property  because  little  effort  is  made  to  legitimize  the  goods 
and  because  his  operation  is  essentially  local.  As  he  develops  a  reg- 
ular clientele  of  thieves, ^"^  a  neighborhood  fence  may  occasionally 
expand  his  operation  by  organizing  thefts  for  customers,^"  by  work- 
ing closely  with  other  fences,^ ^^  and  by  serving  as  one  of  many  dis- 
tributors for  property  stolen  by  organized  crime  syndicates. ^^^ 

There  are  several  reasons  why  neighboihood  fences  represent 
considerably  less  of  a  threat  to  our  society  than  do  large-scale  fences. 

in  the  neighborhood,  there  is  usually  someone  in  every  neighborhood  who  knows 
where  such  a  fence  can  be  found.  For  a  good  account  of  a  neighborhood  fencing 
operation,  see  Emerson,  supra  note  48,  at  311-17. 

104.  See  Emerson,  supra  note  48,  at  34-38.  See  generally  Hearings  on  Fencing 
44.  For  a  good  example  of  the  working  relationship  between  a  neighborhood  fence 
and  his  boosters,  see  Emerson,  supra  note  48,  at  313. 

105.  See  Emerson,  supra  note  48,  at  35-36.    See  generally  Hearings  on  Fencing  6. 

106.  Hiding  places  for  the  temporary  storage  of  stolen  goods  are  known  in  the 
street  language  of  the  "trade"  as  "drops."  See  note  146  infra  and  accompanying 
text. 

107.  In  reality,  street  hustlers  often  peddle  legitimate  merchandise  which  has 
been  characterized  as  "  'store-bought'  swag."    Emerson,  supra  note  48,  at  37. 

108.  See  id.  at  35-38. 

109.  See  id.  at  35-38.  For  a  neighborhood  fence,  the  development  of  a  local  rep- 
utation may  be  equated  with  Jonathan  Wild's  concern  with  "image-building."  See 
notes  95-100  supra  and  accompanying  text.  See  also  note  129  infra  and  accompany- 
ing text. 

110.  See  Emerson,  supra  note  48,  at  36-37. 

HI.  The  neighborhood  fence  may  work  with  a  professional  fence  who  specializes 
in  wholesaling.  "[A]  wholesale  .  .  .  dealer  .  .  .  sells  only  in  large  quantities  to 
other  hustlers  but  does  no  hustling  himself."  Id.  at  38.  A  wholesaler  may  be  a  mid- 
dleman "in  the  chain  of  distribution  for  mob-controlled  thefts  .  .  .  ."  Id.  For  an 
analysis  of  the  professional  fence,  see  notes  126-28  infra  and  accompanying  text. 

112.  See  Emerson,  supra  note  48,  at  34.  On  the  concept  of  "organized  crime," 
see  note  154  infra. 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1531 

First,  they  are  more  easily  detected  by  conventional  police  investiga- 
tive techniques  because  they  often  retain  actual  possession  of  the 
goods  until  redistribution  is  complete,"^  make  little  effort  to  disguise 
the  illegal  nature  of  their  goods,  and  are  frequently  well-known  to 
both  thieves  and  police.  Second,  neighborhood  fences  rarely  ex- 
pand because  they  usually  have  limited  financial  resources  and  mar- 
keting opportunities  that  prevent  their  establishing  a  broad  operational 
base  or  developing  long-term  relationships  with  a  significant  number 
of  thieves.  Finally,  although  a  small-scale  fencing  operation  may 
generate  substantial  personal  income,  neighborhood  fences  probably 
only  distribute  a  small  percentage  of  the  stolen  property  redistributed 
annually."'* 

2.     The  Outlet  Fence 

Many  businesses  that  primarily  market  legitimate  merchandise 
also  serve,  knowingly  or  unknowingly,  as  convenient  outlets  for  large 
quantities  of  low-cost  stolen  goods, "^  and  gain  obvious  competitive 
advantages  from  such  marketing."^  These  so-called  outlet  fences, 
especially  the  large,  prestigious  establishments,  usually  do  not  deal 
directly  with  thieves."^  Instead,  transfers  of  illicit  merchandise  to 
these  merchants  are  engineered  by  so-called  professional  or  master 
fences  whose  functions  are  similar  to  those  of  legitimate  wholesalers. 
Before  delivery  to  outlet  fences,  these  wholesalers  of  stolen  goods 
repackage  the  merchandise  and  remove  all  identifying  features."® 

113.  Possession  is  strong  circumstantial  evidence  of  guilt  in  a  prosecution  for  the 
crime  of  receiving  stolen  property.  Further,  in  most  states,  possession  raises  a  pre- 
sumption that  the  fence  had  knowledge  that  the  goods  were  stolen.  See  notes  335- 
42  injra  and  accompanying  text.  For  this  reason,  other  more  sophisticated  fences 
generally  attempt  to  avoid  actual  possession.  See  notes  143-47  infra  and  accompany- 
ing text. 

114.  On  the  other  hand,  an  anti-fencing  strategy  that  was  concerned  with  local 
burglaries  or  thefts  committed  primarily  by  addicts  and  juveniles  might  well  decide 
to  focus  on  the  "neighbor  fence."    See  Strategies  14-16. 

115.  See  Cargo  Theft  and  Organized  Crime  22;  notes  45-48  supra  and  accom- 
panying text.  "It  seems  paramount  that  these  businesses  must  be  named  for  what 
they  really  are,  a  part  of  this  country's  criminal  system  and  not  what  they  think  they 
are,  'good'  businessmen  interested  in  making  a  'good'  profit."  Hearings  on  Fencing 
37. 

116.  For  example,  a  retailer  may  purchase  goods  at  relatively  low  prices  and  then 
sell  them  at  the  standard  retail  level  (or  just  a  bit  below).  The  result  is  a  higher 
mark-up  and  obviously  a  greater  profit  margin.  See,  e.g.,  V.  Teresa,  supra  note  29, 
at  141.  In  some  cases,  a  retail  outlet  may  be  unaware  that  it  is  buying  stolen  goods, 
and  in  those  circumstances  the  bulk  of  the  excess  profit  is  reaped  by  third  parties, 
often  the  fence  and  a  store's  buyer. 

117.  See  Roselius  &  Benton,  Stolen  Goods  183. 

118.  Note  that  this  is  in  sharp  contrast  with  the  procedures  utilized  by  a  neigh- 
borhood fence  who  generally  makes  no  effort  to  disguise  the  swag  identity  of  his 
goods.    See  text  at  note  109  supra. 


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1532  Michigan  Law  Review  [Vol.  74:1511 

The  stolen  merchandise  then  not  only  is  ready  for  its  reentry  into 
traditional  streams  of  commerce,  but  also  is  difficult  for  police  and 
honest  businessmen  to  identify. 

In  contrast  to  neighborhood  fences,  therefore,  sophisticated  out- 
let fences  pose  more  serious  challenges  to  law  enforcement  efforts. 
First,  the  merchandise  these  apparently  legitimate  businesses  receive 
is  usually  the  product  of  sophisticated  theft  and  redistribution  oper- 
ations,"^ and  the  prospect  of  high  retail  profits  often  provides  suffi- 
cient incentive  for  retailers  to  develop  a  long-term  relationship  with 
supplying  fences.  ^-°  Thus,  outlet  fences  have  a  greater  adverse  im- 
pact on  society  than  do  neighborhood  fences  simply  because  they 
market  large  quantities  of  stolen  merchandise  that  otherwise  could 
not  be  readily  redistributed.  Indeed,  once  such  retailers  begin  to 
expand  their  dealings  in  stolen  property  they  may  become  profes- 
sional fences.  ^^^ 

Second,  although  any  establishment  handling  stolen  property  is 
technically  a  fence,  criminal  liability  in  most  jurisdictions  attaches  only 
if  authorities  can  prove  the  establishment  knowingly  dealt  in  stolen 
property,  a  mens  rea  difficult  to  prove  if,  as  is  often  the  case,  either 
the  business  had  no  direct  contact  with  thieves  or  the  merchandise 
when  delivered  already  had  been  legitimized.^-^  One  way  to  prove 
an  outlet  fence  actually  had  the  requisite  mens  rea  is  to  examine 
the  circumstances  surrounding  its  transaction  with  the  wholesaling 
fence.  For  example,  as  discussed  in  section  II,  there  is  strong  evi- 
dence of  the  requisite  knowledge  if  authorities  can  prove  that  the 
wholesaling  fence  offered  the  goods  at  a  price  substantially  lower 
than  the  legitimate  wholesale  market  price,  had  no  evidence  of  own- 
ership beyond  mere  possession,  or  demanded  cash  when  the  usual 
practice  is  to  accept  a  check  and  issue  a  receipt.  ^'^ 

Finally,  even  if  a  knowledge  standard  is  not  unduly  burdensome 
for  the  prosecution  in  cases  involving  small  retailers  whose  propri- 

1 19.  See  notes  159-60  infra  and  accompanying  text. 

120.  For  this  reason,  and  because  of  the  sophisticated  thefts  involved,  fencing  op- 
erations involving  legitimate  businesses  probably  stimulate  considerable  "buy-on- 
order"  theft  activity.  See  Hearings  on  Fencing  42;  Report,  The  Impact  of  Crime 
3. 

121.  "Most  professional  receivers  seem,  indeed,  to  be  offshoots  from  legitimate 
businesses."  J.  Hall,  supra  note  5,  at  156.  See  Hearings  on  Fencing  161.  The 
characteristics  of  a  professional  fence  are  discussed  in  greater  detail  in  notes  141- 
54  infra  and  accompanying  text. 

122.  See  notes  274-409  infra  and  accompanying  text. 

123.  See  J.  Hall,  supra  note  5,  at  224-25  n.72.  Many  sophisticated  purchasers 
of  stolen  goods,  however,  take  precautionary  measures  to  disguise  the  illegality  of 
their  transactions.  For  example,  phoney  checks  or  fake  receipts  may  be  used  for 
these  puri>oses.    See  notes  132-38  infra  and  accompanying  text. 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1533 

etors  control  all  aspects  of  the  purchase  and  resale,  it  has  serious 
deficiencies  when  applied  to  large-scale  retailers.  For  example, 
upper-level  management  of  a  department  store  chain  often  has  no 
actual  knowledge  of  illegal  transactions  because  most  purchasing  de- 
cisions are  made  at  lower  levels.  By  not  participating  in  purchasing 
decisions,  upper-level  management  may  knowingly  promote  the  pur- 
chase of  stolen  goods  by  the  chain's  buyers  seeking  a  cost  advantage 
over  their  competitors  and  yet  avoid  criminal  hability  by  intention- 
ally remaining  ignorant  of  relevant  transactions. ^^^  As  in  the  case 
of  smaller  retailers,  proof  of  purchases  at  unusually  low  prices  is 
strong  evidence  that  store  buyers  knowingly  acted  illegally,  although 
frequently  the  illegal  offer  itself  is  even  more  overt. ^^^ 

3.     The  Professional  Fence 

So-called  professional  fences  frequently  front  as  legitimate  retail 
businesses^ ^**  and  may  be  either  specialist  or  generalist  fences,  de- 
pending, in  large  part,  on  the  nature  of  then*  retail  establishments.^^'' 
Although  professional  fences  thus  appear  to  be  similar  to  outlet 
fences,  they  are  different  in  two  important  respects. 

First,  unlike  outlet  fences  who  may  only  occasionally  handle 
stolen  property,  ^^®  professional  fences  are  primarily  criminal  distrib- 
utors specializing  in  stolen  merchandise,  though  they  may  also  do 
a  substantial  amount  of  legitimate  business.  Interestingly,  since  pro- 
fessional fences  require  a  steady  flow  of  substantial  amounts  of  stolen 

124.  See  C.  Klockars,  supra  note  12,  at  111-12;  Hearings  on  Criminal  Laws  310; 
Chasan,  supra  note  1,  at  15. 

125.  For  example,  direct  bribes  may  serve  as  monetary  incentives  inducing  a 
buyer  to  purchase  stolen  goods.  In  addition,  the  buyer  may  also  be  rewarded  by 
management  for  purchasing  his  merchandise  at  a  good  price.  See  Hearings  on  Crimi- 
nal Laws  310. 

This  discussion  of  the  mens  rea  problem,  more  fully  pursued  in  the  text  at  notes 
259-73  infra,  should  note  that  since  a  significant  number  of  businesses  dealing  in 
stolen  property  are  pressured  by  organized  crime  to  participate  in  redistribution 
schemes,  their  participation  is  considerably  less  culpable  than  that  of  willing  partici- 
pants. See  Staff  Report  on  Small  Business  8.-  For  a  good  example  of  organized 
crime  exerting  pressure  on  legitimate  businesses  through  the  use  of  gambling  and 
loansharking  techniques,  see  Hearings  on  Fencing  148-49.  See  generally  Cargo 
Theft  and  Organized  Crime  28,  39;  Task  Force  Report,  Organized  Crime  4-5. 

126.  The  seemingly  legitimate  business  may  be  a  retail  discount  center,  bargain- 
basement  shop,  pawnshop,  junk  dealership,  or  even  a  wholesaling  enterprise.  See 
Emerson,  supra  note  48,  at  37.  Naturally,  the  more  respectable  the  front,  the  more 
security  it  affords. 

127.  See  J.  Hall,  supra  note  5,  at  156-57;  notes  86-89  supra  and  accompanying 
text.  The  relationship  between  the  professional  thief,  the  professional  fence,  and  or- 
ganized crime  is  carefully  documented  in  Penn.  Crime  Commn.  1971-72  Report 
107-37. 

128.  See  notes  115-21  supra  and  accompanying  text. 

92-465  O  -  77  -  6 


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1534  Michigan  Law  Review  [Vol.  74:1511 

merchandise  and  thus  often  need  to  deal  directly  with  thieves,  they 
must  simultaneously  develop  two  contrasting  images  to  a  greater  ex- 
tent than  outlet  fences:  they  must  appear  sufficiently  legitimate  to 
satisfy  law  enforcement  agencies,  or  at  least  to  frustrate  investi- 
gations, yet  must  actively  promote  their  illegitimate  operations  to  at- 
tract both  thieves  wishing  to  sell  and  consumers  wishing  to  purchase 
stolen  merchandise.  ^^^  Thieves  are  naturally  inclined  to  deal  with 
professional  fences  because  they  do  not  have  ready  access  to  outlet 
fences,  who  are  supplied  by  master  fences,  and  because  the  ex- 
tensive capital  resources  of  professional  fences  make  them  more  at- 
tractive purchasers  than  neighborhood  fences.  A  professional  fence, 
moreover,  can  frustrate  police  surveillance  techniques  and  conviction 
even  though  he  retains  actual  physical  possession  or  control  over  the 
stolen  merchandise.^^"  In  many  cases,  for  example,  the  merchan- 
dise can  be  resold  within  hours  of  its  delivery.^^^  Otherwise,  a  pro- 
fessional fence  often  can  easily  make  his  illegitimate  conduct  indis- 
tinguishable from  his  legitimate  activities. ^^^  Thus,  identifying  char- 
acteristics may  be  removed  to  the  fullest  extent  possible^^^  by  dispos- 
ing of  incriminating  cartons,^^*  removing  labels,"^  and  altering  or 
destroying  serial  numbers. ^^^  Further,  many  brand  name  products 
frequently  can  be  successfully  commingled  with  the  fence's  legit- 
imate stock  without  any  alteration. ^^^  In  any  case,  false  sales  re- 
ceipts are  drafted  and  the  fence's  personal  check  for  the  purchase 
price  is  cashed  so  that  he  has  a  receipt  and  a  cancelled  check, 

129.  See  C.  Klockars,  supra  note  12,  at  172,  190-91.  Obviously,  the  modern 
professional  has  many  of  the  problems  that  faced  Wild.  See  notes  95-101  supra  and 
accompanying  text. 

130.  For  an  analysis  of  the  legal  problems  posed  by  possession  of  stolen  property, 
see  note  113  supra.  These  legal  risks  may  be  reduced  liy  storing  the  goods  in  a  ware- 
house, but  this  is  often  not  practical  and  this  precaution  does  not  necessarily  elimi- 
nate the  possibility  of  a  tracing  process.  "Secret  locations  under  fictitious  names  are 
simply  not  normal  business  procedures;  if  trouble  developed,  explaining  a  hidden  stor- 
age area  might  prove  to  pose  more  problems  than  the  advantages  such  an  area  of- 
fered." C.  Klockars,  supra  note  12,  at  93.  Tracing  can  be  avoided  only  if  the  fence 
takes  measures  to  ensure  that  the  warehouse  itself  cannot  be  directly  linked  to  him. 
Even  where  a  warehouse  is  available,  the  stolen  goods  must  ultimately  be  transferred 
to  the  retail  establishment;  consequently,  actual  possession  cannot  be  avoided  in- 
terminably. 

131.  See  C.  Klockars,  supra  note  12,  at  85-86;  Hearings  on  Fencing  26-27.  See 
generally  V.  Teresa,  supra  note  29,  at  143. 

132.  C.  Klockars,  supra  note  12,  at  89;  J.  Hall,  supra  note  5,  at  195. 

133.  See,  e.g.,  C.  Klockars,  supra  note  12,  at  81,  87. 

134.  Id.  Sometimes,  instead  of  disposing  of  the  carton,  the  fence  simply  removes 
its  original  label  and  replaces  it  with  his  own.    Id.  at  88. 

135.  See  id.  at  81.    See  note  H^  infra. 

136.  See  id.  at  83  n.6. 

137.  See  id.  at  81;  J.  Hall,  supra  note  5,  at  192-93. 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1535 

thereby  making  his  conviction  extremely  difficult  even  if  the  goods 
are  identified. ^^"^ 

A  second  distinction  is  that  as  the  operation  of  the  professional 
fence  grows  in  sophistication,  he  may  supply  vital  information  to 
thieves  planning  a  theft^^®  or  may  himself  organize  thefts  for  cus- 
tomers.^^" Arranging  successful  thefts  requires  both  an  extensive 
system  of  informants  who  provide  inside  information  detailing  the 
location  of  particular  property  and  security  measures  taken  to  protect 
it,  and  a  pool  of  potential  thieves.  A  professional  fence  frequently 
may  satisfy  both  needs  by  using  the  shoplifters,  dishonest  employees, 
and  burglars  with  whom  he  regularly  deals.  Alternatively,  the  pro- 
fessional fence  may  satisfy  his  customers'  needs  by  contacting  a  so- 
called  master  fence  who  wholesales  stolen  goods. 

4.     The  Master  Fence 

The  master  fence  directs  a  big-time  operation  and  either  organ- 
izes large-scale  thefts  or  serves  as  a  middleman  for  other  organ- 
izers.^" While  other  fences  may  perform  similar  services,  the  mas- 
ter fence  is  distinguished  by  his  ability  to  insulate  himself  from  the 
actual  theft  and  subsequent  redistribution  process."^  The  master 
fence  operates  as  a  broker,  buying  and  selling  stolen  goods  valued 

138.  See  id.  at  82,  90-91;  J.  Hall,  supra  note  5,  at  189-91;  Hearings  on  Fencing 
4.  All  of  this  must,  of  course,  be  evaluated  in  the  context  of  the  "beyond  a  reason- 
able doubt"  rule  in  a  criminal  case.  See,  e.g..  In  re  Winship,  397  U.S.  358  (1970). 
If  the  prosecution  fails  to  convince  any  member  of  the  jury  beyond  a  reasonable 
doubt  a  conviction  is  not  possible.  There  is  some  evidence  that  as  a  result  of  recent 
reform  legislation  the  quality  of  juries,  at  least  in  federal  cases,  is  not  as  high  as  it 
might  be.  C/.  28  U.S.C.  §  1861  (1970)  (uniform  jury  selection).  In  addition 
the  expertise  of  the  government  in  prosecuting  complicated  cases  has  diminished. 
See  Hearings  on  Reform  of  the  Federal  Criminal  Laws  Before  the  Subcomm.  on 
Criminal  Laws  and  Procedures  of  the  Senate  Comm.  on  the  Judiciary,  92d  Cong.,  2d 
Sess.,  pt.  4,  at  3709-11  (1972).  These  two  factors  may  combine  to  make  convictions 
even  less  likely. 

139.  Professional  fences  frequently  provide  thieves  with  detailed  information  con- 
cerning the  location  of  items  for  theft.  See,  e.g.,  Hearings  on  Fencing  162.  Even 
so,  although  many  professional  fences  undoubtedly  have  teams  of  thieves,  most  do 
not  personally  arrange  large-scale  heists.    Id.  at  135-37. 

140.  See  J.  Hall,  .^upra  note  5,  at  162. 

141.  See  Hearings  on  Fencing  135-38;  note  153  infra. 

142.  Hence,  "fences  may  .  .  .  purchase  the  property  from  another  fence,  sight  un- 
seen, and  never  go  near  the  'drop'  where  the  merchandise  is  kept.  Their  transactions 
are  all  consummated  over  the  telephone.  This  type  of  fence  is  known  as  the  'master 
fence.'"  Hearings  on  Fencing  44.  Cj.  Chasan,  supra  note  1,  at  15.  For  a  good  de- 
scription of  a  master  fencing  operation,  see  Cargo  Theft  and  Organized  Crime 
40-42.  Most  professional  fences  do  not  qualify  as  master  fences  since  they  inevitably 
come  into  contact  with  the  stolen  goods.  See  note  131  supra  and  accompanying  text. 
Even  so,  a  professional  fence  may,  on  occasion,  do  some  master  fencing  by  arranging 
a  transaction  in  which  he  is  completely  insulated. 


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1536  Michigan  Law  Review  [Vol.  74:1511 

in  the  hundreds  of  thousands  of  dollars  that  are  always  the  product 
of  large-scale  theft,  yet  rarely,  if  ever,  seeing  or  touching  any  of  it.^^' 

To  be  successful,  therefore,  a  master  fence  must  have  an  exten- 
sive system  of  contacts  including  both  informants  and  potential  large- 
scale  purchasers.  For  example,  as  an  organizer  of  thefts,  a  master 
fence  relies  upon  his  paid  connections,  such  as  a  dock  employee  of 
a  manufacturing  company  or  a  dispatcher  of  a  trucking  outfit,  to  pro- 
vide detailed  information  on  shipments  of  valuable  merchandise."* 
The  master  fence  then  contacts  potential  buyers,"^  but  does  not  ac- 
tually arrange  the  theft  until  he  has  a  firm  agreement  for  resale. 
Once  such  an  agreement  is  concluded,  he  plans  in  great  detail  the 
theft  itself  and  arrangements  for  storing,  legitimizing,  and  delivering 
the  stolen  goods. "^ 

Although  these  activities  are  more  daring  than  those  of  most  out- 
let and  professional  fences,  who  do  not  regularly  arrange  thefts  and 
often  receive  stolen  property  already  legitimized,  master  fences 
avoid  detection  and  conviction  in  two  ways.  First,  they  move  stolen 
merchandise  rapidly  through  their  redistribution  chains  because  they 
never  steal  unless  a  resale  has  been  arranged.  Second,  and  perhaps 
more  significantly,  master  fences  rarely  have  actual  physical  contact 
with  either  the  stolen  goods  or  their  purchasers.  They  deal  with 
thieves  and  purchasers  indirectly,  usually  through  agents  or  by  tele- 
phone. These  practices  present  obvious  problems  for  law  enforce- 
ment authorities  who  must  gather  evidence.  As  a  result,  to  convict 
master  fences,  authorities  must  use  sophisticated  surveillance  tech- 
niques and  must  offer  immunity  from  prosecution  to  other  members 
of  the  redistribution  chain."''  Intensive  surveillance,  however,  is 
costly  and  subject  to  significant  legal  restraints;  further,  even  immu- 
nity grants  may  not  be  sufficient  to  pierce  the  master  fence's  legal 

143.  See  Cargo  Theft  and  Organized  Crime  21;  note  145  infra  and  accompanying 
text. 

144.  Law  enforcement  officials  believe  that  the  truck  hijackers  all  too  often 
"know  exactly  what  type  of  property  is  to  be  in  that  truck."  Hearings  on  Fencing 
136-37.    See  J.  Hall,  supra  note  5,  at  158. 

145.  Hearings  on  Criminal  Laws  310. 

146.  A  good  description  of  the  detail  in  modem  hijacking  operations  may  bo 
found  in  Hearings  on  Fencing  136-38,  146-54  and  Cargo  Theft  and  Organized 
Crime  38-39. 

147.  See  notes  277-94,  310-25  infra  and  accompanying  text.  "Most  offenses 
come  to  the  attention  of  the  police  by  reports  from  citizens."  Law  Enforcement 
IN  the  Metropolis  3  (D.  Mclntyre  ed.  1967).  Since  citizens  will  not  usually  come 
into  contact  with  a  fence's  activities  except  as  purchasers,  there  are  no  complaining 
witnesses.  A  "complaint  only"  policy  in  fencing  will  result  in  few  fencing  prosecu- 
tions. Consequently,  there  is  a  need  to  institute  carefully  thought  out  police  pro- 
grams. Alternative  police  strategies,  primarily  from  the  perspective  of  a  local  police 
agency,  are  discussed  in  Strategies  74-112. 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1537 

shield  since  thieves  are  reluctant  to  testify  against  their  fences/^^ 
and,  in  any  event,  their  testimony  alone  may  be  insufficient  for  con- 
viction in  those  jurisdictions  that  have  adopted  the  "accomplice  rule," 
which  requires  independent  corroboration  of  such  testimony.^^^ 

Successful  master  fences  usually  require  access  to  the  extensive 
capital  resources,  personnel  and  connections  of  organized  crime 
syndicates. ^^^  The  degree  of  assistance  a  master  fence  receives,  of 
course,  depends  on  the  nature  of  his  relationship  with  the  syndicate. 
While  some  master  fences  may  actually  be  syndicate  members, ^^^ 
and  consequently  may  receive  considerable  additional  assistance  in  the 
form  of  information,  personnel,  equipment,  and  storage  space,  most 
are  content  to  function  outside  the  syndicate  and  simply  to  participate 
in  the  redistribution  process,  reaping  a  share  of  the  profits, ^^^ 

Because  they  deal  in  large  quantities  of  stolen  goods,  the  activi- 
ties of  master  fences  have  a  sharp  impact  on  the  national  economy.  ^^^ 

148.  Successful  fences  often  enjoy  very  good  relationships  with  their  thieves.  See 
C.  Klockars,  supra  note  12,  at  152-55;  J.  Hall,  supra  note  5,  at  157,  196.  Fences 
have  been  known  to  provide  thieves  with  bail  money  and  legal  assistance.  See  C. 
Klockars,  supra  note  12,  at  153;  Staff  Report  on  Small  Business  4.  These  fac- 
tors combine  with  the  thief's  natural  economic  dependence  upon  his  fence  to  produce 
a  general  reluctance  to  testify  against  fences.  Cf.  Hearings  on  Fencing  34.  This 
disinclination  is  reinforced  when  the  fence  is  a  member  of  an  organized  crime  syndi- 
cate or  in  some  way  associated  with  one.  In  such  cases,  potential  witnesses  may  be 
intimidated  by  the  threat  of  physical  harm.  See  Task  Force  Report,  Organized 
Crime  14;  V.  Teresa,  supra  note  23,  at  326-42;  Blakey,  Aspects  of  the  Evidence 
Gathering  Process  in  Organized  Crime  Cases:  A  Preliminary  Analysis,  in  Task 
Force  Report,  Organized  Crime  80,  83;  Furstenberg,  Violence  and  Organized 
Crime,  Crimes  of  Violence:  A  Staff  Report  to  the  National  Commn.  on 
THE  Causes  of  Violence  918-19.  Finally,  in  many  cases  the  thief  may  not  know 
the  actual  identity  of  his  master  fence. 

149.  See  notes  216-308  infra  and  accompanying  text. 

150.  Even  where  he  has  not  organized  the  theft,  the  master  fence  must  have 
enough  cash  to  meet  his  personnel,  storage,  and  transportation  costs.  Naturally, 
where  the  fence  has  actually  organized  the  theft,  his  initial  cash  outlay  is  even 
higher.  The  costs  of  large-scale  theft  run  high;  for  hijacking  a  shipment  worth 
$100,000,  $20,000  or  more  may  be  needed  for  payoffs  to  informants,  drivers,  thieves 
and  other  participants.  See  Hearings  on  Fencing  152-53;  Cargo  Theft  and  Or- 
ganized Crime  26-27.  See  generally  Staff  Report  on  Small  Business  5;  Emerson, 
supra  note  48,  at  37-39.  Significantly,  testimony  has  recently  been  given  that  in 
New  York  City  alone  "[f]our  big  fences  .  .  .  can  come  up  with  $100,000  in  cash, 
no  sweat."    Hearings  on  Fencing  153. 

151.  See  Cargo  Theft  and  Organized  Crime  28;  Hearings  on  Fencing  135. 
These  fences  receive  the  benefit  of  access  to  capital  and  manpower  resources.  See 
Cargo  Theft  and  Organized  Crime  27;  Hearings  on  Fencing  134-35. 

152.  "Fences,  especially  'master'  fences,  are  usually  not  members  of  'organized 
crime'  per  se.  Hov/ever,  organized  crime  figures  will  often  'stake'  a  fence  with  a 
large  amount  of  money  if  he  will  use  his  connections  to  move  stolen  property  for 
them.  This  is  usually  the  relationship  that  exists,  since  a  fence  especially  a  'master* 
fence,  of  necessity  has  the  required  legitimate  contacts  and  travels  in  the  highest  busi- 
ness circles."    Report,  The  Impact  of  Crime  27.    See  J.  Hall,  supra  note  5,  at  164. 

153.  See  Cargo  Theft  and  Organized  Crime  25-28,  38-42;  Hearings  on  Fencing 
43-45,  151-54. 


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1538  Michigan  Law  Review  tVol.  74:1511 

More  significantly,  however,  since  master  fences  must  rely  upon  out- 
side sources  for  support  because  of  their  high  overhead  costs,  their 
growth  and  success  is  a  good  indicator  of  the  extent  to  which  organ- 
ized crime  syndicates  control  theft  and  fencing  activity. 

5.     The  Role  of  Organized  Crime 

Organized  crime  is  a  society  that  seeks  to  operate  outside  the  control 
of  the  American  people  and  their  governments.  It  involves  thou- 
sands of  criminals,  working  within  structures  as  complex  as  those  of 
any  large  corporation,  subject  to  laws  more  rigidly  enforced  than 
those  of  legitimate  governments.  Its  actions  are  not  impulsive  but 
rather  the  result  of  intricate  conspiracies,  carried  on  over  many  years 
and  aimed  at  gathering  control  over  whole  fields  of  activity  in  order 
to  amass  huge  profits.^'^^ 

154.  Task  Force  Report,  Organized  Crime  1. 

The  concept  of  "organized  crime"  is  much  like  the  fictional  crime  portrayed  in 
Akira  Kurasawa's  1951  film,  Rashomon,  in  which  a  ninth  century  nobleman's  bride 
is  raped  by  a  bandit  and  the  nobleman  is  killed.  This  double  crime  is  then  acted 
out  in  the  film  in  four  versions,  as  seen  by  the  three  participants  and  a  witness.  Each 
version  is  not  quite  like  the  others. 

The  vision  of  those  who  have  looked  at  "organized  crime"  has  been  much  like  that 
of  the  witnesses  whose  stories  were  told  in  Rashomon.  Some  have  seen  nothing  and 
hence  have  decided  that  nothing  is  there.  See,  e.g.,  Hawkins,  God  and  the  Mafia, 
14  The  Pub.  Interest  24-51  (Winter  1969).  Compare  the  summaries  of  wiretaps 
reprinted  in  H.  Zeiger,  The  Jersey  Mob  (1975).  Others  have  looked  only  at  press 
accounts  and  have  seen  little  more  than  a  public  relations  gimmick.  See  D.  Smith, 
The  Mafia  Mystique  (1975).  Others  have  looked  at  it  through  the  eyes  of  an  or- 
ganizational theorist,  and  have  seen  the  special  character  of  organized  crime  to  be 
its  functional  division  of  labor.  See  D.  Cressey,  Theft  of  a  Nation  (1969).  Some 
have  examined  the  phenomenon  from  the  perspective  of  an  anthropologist  and  have 
seen  not  a  "conspiracy"  but  a  "social  system."  See,  e.g.,  F.  Ianni,  A  Family  Busi- 
ness (1972).  Others  have  examined  it  as  a  lawyer  would,  and  have  seen  it  as  "con- 
spiracy." See,  e.g.,  Blakey,  supra  note  148  at  80,  81-83.  The  President's  Crime 
Commission,  too,  adopted  this  view  (La  Cosa  Nostra  was  recognized  only  as  the 
"core"  of  organized  crime.  Id.  at  6);  the  Crime  Commission  termed  conspiratorial 
crime  "organized  crime"  when  its  sophistication  reached  the  point  where  its  division 
of  labor  included  positions  for  an  "enforcer"  of  violence  and  a  "corrupter"  of  the  le- 
gitimate processes  of  our  society.    Id.  at  8. 

A  good  summary  of  this  view  of  "organized  crime"  was  composed  by  the  Depart- 
ments of  Justice  and  Transportation  in  a  study  of  cargo  theft: 

[T]he  predominant  group  and  inner  core  of  organized  crime  is  ...  a  Na- 
tionwide group  divided  into  24  to  26  operating  units  or  "families"  whose  mem- 
bership is  exclusively  men  of  one  ethnic  group  and  who  number  5,000  or  more. 
The  Task  Force  [on  Organized  Crime  of  the  President's  Crime  Commission] 
quoted  the  FBI's  director,  who  evaluated  this  core  group  as  "the  largest  organiza- 
tion of  the  criminal  underworld  in  this  country,  very  closely  organized  and  disci- 
plined ...  it  has  been  found  to  control  major  racket  activities  in  many  of  our 
larger  metropolitan  areas,  often  working  in  concert  with  criminals  representing 
other  ethnic  backgrounds." 

Heading  each  operating  unit,  or  family,  is  the  boss,  whose  authority  is  subject 
only  to  the  rulings  of  a  national  advisory  commission,  which  has  the  final  word 
on  organizational  and  jurisdictional  disputes  and  is  comprised  of  the  more  pow- 
erful bosses.  Beneath  each  boss,  in  chain-of-command  fashion,  is  an  underboss, 
several  captains  (caporegime),  who  supervise  lower-echelon  soldiers,  who  in  turn 
oversee  large  numbers  of  nonmember  street  personnel.  One  such  family  is  said 
to  number  1,000 — half  members,  half  nonmember  street-level  workers — with  27 


8653 


August  1976]        Criminal  Distribution  of  Stolen  Property  1539 

In  recent  years,  organized  crime  syndicates  have  expanded  their 
fencing  operations  to  exploit  the  growing  demand  of  consumers  and 
businesses  for  stolen  goods. ^^^  This  expansion  has  been  made  pos- 
sible by  the  ability  of  organized  crime  to  marshall  its  tremendous 
resources  to  solve  the  complex  financial  and  logistical  problems  that 


captains  and  stretches  from  Connecticut  to  Philadelphia.  Bosses  have  access  to 
a  variety  of  "staff  men,"  including  attorneys,  accountants,  business  experts,  en- 
forcers, and  corrupters.  Many  individuals,  while  not  family  members  in  a  for- 
mal sense,  work  closely  with  these  inner-core  groups  and  may  be  called  associ- 
ates (to  distinguish  them  from  mere  street  v/orkers)  and,  as  is  the  case  with 
street  personnel,  should  be  considered  an  integral  part  of  organized  crime.  Some 
associates  are  highly  respected  by  family  members  and  are  very  powerful  in  their 
own  right. 

Through  interceptions  of  phone  conversations  and  other  oral  communications 
at  different  times  and  places  between  members  and  associates  of  this  large  crimi- 
nal nucleus  of  the  organized  underworld,  its  existence,  structure,  activities,  per- 
sonnel, and  such  terminology  as  "boss,"  "captain,"  "family,"  "soldier,"  "commis- 
sion" have  been  confirmed  and  reconfirmed  beyond  rational  dispute. 

Loosely  allied  with  this  large  criminal  nucleus  are  several  other  organized 
crime  syndicates  or  groups,  those  members  can  also  be  distinguished  among  eth- 
nic lines — just  as  most  neighborhoods  can,  and  probably  for  much  the  same  so- 
ciological reasons.  The  various  organized  crime  groups  call  upon  the  services 
and  special  skills  of  one  another  frequently  enough  for  them  to  be  characterized 
as  a  loose  confederation,  a  designation  reflecting  the  absence  of  a  boss  of  bosses 
at  the  top.  Sometimes  these  groups  are  referred  to  individually  or  collectively 
as  the  "outfit,"  "mob,"  or  "syndicate." 

Taking  into  account  the  political  organizations,  unions,  businesses,  and  other 
groups  directly  or  indirectly  under  the  thumb  of  organized  crime,  the  manpower 
available  to  the  confederation  could  conceivably  run  into  the  hundreds  of  thou- 
sands. Because  they  are  relatively  well  organized  and  disciplined  and  because 
they  possess  the  demonstrated  superior  ability  to  protect  themselves  from  prose- 
cution through  corruption  and  other  means,  organized  crime  groups  have  a 
strength  and  permanency  beyond  the  reach  of  conventional  partners  in  crime. 

The  difference  to  management  between  cargo  theft  committed  under  the  di- 
rection of  organized  crime  and  cargo  theft  executed  under  the  direction  of  non- 
member  employees  is  analogous  to  the  difference  between  a  company's  market 
share  being  challenged  by  a  multibillion  conglomerate  and  being  challenged  by 
a  three-  or  four-man  partnership.     Both  the  conglomerate  and  partnership  are 
engaged  in  business,  just  as  organized  crime  groups  and  other  nonmember  crimi- 
nal elements  are  both  engaged  in  organized  criminal  activity.     But  there  is  a 
world  of  difference  between  a  conglomerate  and  a  partnership,  just  as  there  is 
between  organized  crime  and  less  organized  and  disciplined  individuals  who  may 
cooperate  in  crime. 
Cargo  Theft  and  Organized  Crime  23-24.    The  phrase  "organized  crime"  is  used 
throughout  this  article  to  refer  to  this  type  of  conspiratorial  criminal  behavior.    For 
an  analysis  of  the  concept  of  "organized  crime"  that  further  breaks  it  into  "enter- 
prises," "syndicates,"  and  "ventures,"  see  Electronic  Surveillance:    Report  of 
the  National  Commn.  for  the  Review  of  Federal  and  St.ate  Laws  Relating 
TO  Wiretapping  and  Electronic  Surveillance  189-92  (1976)  [hereinafter  Wire- 
tap Report]   (concurrence  of  Commissioner  Blakey).     See  generally  D.   Cressey, 
Theft  of  the  Nation  (1969);  R.  Salerno  &  J.  Tompkins,  The  Crime  Confedera- 
tion (1969);  G.  Tyler,  Organized  Crime  in  America  (1962);  M.  Maltz,  Defining 
"Organized  Crime,"  22  Crime  &  Delinquency  338  (1976). 

155.  See  V.  Teresa,  supra  note  29,  at  143-45;  notes  150-52  supra  and  accom- 
panying text.  Organized  crime  offers  "goods  and  services  that  millions  of  Americans 
desire  even  though  declared  illegal  by  their  legislatures."  Task  Force  Report,  Or- 
ganized Crime  2.  In  addition  to  theft  and  fencing,  those  illegal  goods  and  services 
include  gambling,  loansharking,  narcotics,  labor  peace,  and  illegal  alcohol.  Id.  at  2- 
4.  See  Pileggi,  The  Mafia  Is  Good  for  You,  Saturday  Evening  Post,  Nov.  30,  1968, 
at  18. 


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1540  Michigan  Law  Review  [Vol.  74:1511 

are  inherent  in  large-scale  theft  and  fencing  activity."' 

The  participation  of  organized  crime  in  many  truck  hijackings 
and  the  evolution  of  sophisticated  hijacking  techniques  are  evidence 
of  its  increasing  role  in  large-scale  fencing/'*^  Illustratively,  syndi- 
cate members  engineer  as  many  as  seventy-five  per  cent  of  all  truck 
hijackings  in  some  areas  of  heavy  organized  crime  activity. ^'^^  In 
fact,  the  prototype  "stick-up"  hijacking  is  essentially  a  relic  of  the 
past,"^  for  most  hijackings  today  are  more  appropriately  character- 
ized as  "give-ups"  in  which  drivers,  in  accordance  with  prior  ar- 
rangements, deliver  the  merchandise  to  thieves  and  then  claim  they 
were  hijacked.^''*'  Sometimes  the  drivers  and  other  insiders  are  re- 
warded for  their  duplicity, ^^^  but  in  most  cases  syndicate  members 
coerce  their  participation  by  threatening  to  foreclose  their  gambling 
and  loan  sharking  debts.^^-     Members  of  the  syndicate  usually  re- 

156.  See  notes  150-52  supra  and  accompanying  text. 

157.  Most  (top  ten)  truck  hijackings  occur  in  the  following  areas:  New  Jersey, 
New  York  City,  Massachusetts,  New  York  State,  Indiana,  Pennsylvania,  Ohio,  Rhode 
Island,  Tennessee  and  California.  Source  Book  of  Criminal  Statistics  320 
(L.E.A.A.  1974).  TTiese  are  areas  of  high  organized  crime  activity.  Task  Force 
Report,  Organized  Crime,  7.  For  a  detailed  analysis  of  cargo  theft  in  the  motor 
and  air  industry,  see  A  Report  to  the  President  on  the  National  Cargo  Secu- 
rity Program  36-43  (1976). 

158.  A  prime  example  is  New  York  City.  See  Cargo  Theft  and  Organized 
Crime  26;  Hearings  on  Fencing  191.  The  syndicate's  role,  however,  is  not  obvious 
to  everyone: 

Whether  because  of  such  indirect  involvement  by  organized  crime  in  cargo  theft 
or  because  of  public-image  reasons — or  both — there  is  the  temptation  to  down- 
grade or  deny  the  presence  of  organized  crime  at  facilities  where  cargo  is  trans- 
ported or  otherwise  handled.  For  example,  at  a  southern  location,  a  shipping 
executive  did  not  believe  organized  crime  was  connected  to  pier  thefts.  How- 
ever, other  sources  in  the  area  revealed  the  following  information:  (1)  the  local 
crime  family  boss  has  held  meetings  with  warehousemen,  grocers,  truckers,  etc.; 
(2)  this  boss  offered  his  assistance  in  establishing  another  local  of  a  waterfront 
union;  (3)  a  shylock  has  solicited  loans,  at  5  for  4  (25  percent  weekly  interest), 
from  longshoremen  and  has  been  in  collusion  with  a  local  waterfront  union, 
which  permitted  the  presence  of  the  loan  shark  on  payday  and  held  back  the 
wages  of  those  indebted  to  him;  (4)  a  syndicate-connected  gambler  is  quoted  as 
saying  he  expects  to  get  "a  lot  of  action  off  longshoremen";  (5)  the  president 
of  a  local  dock  workers  union  wrote  a  Federal  judge  about  the  fine  character 
of  the  area's  mob  boss,  who  was  about  to  receive  a  sentence  from  the  jurist; 
(6)  the  same  union  president  at  one  time  utilized  the  services  of  a  syndicate- 
connected  bodyguard. 
Cargo  Theft  and  Organizfd  Crime  27.  Americans,  in  general,  have  not  been 
aware  of  the  nature  and  extent  of  organized  crime  activity.  See  Task  Force 
Report,  Organized  Crime  1-2. 

159.  See  Hearings  on  Fencing  136,  145,  151;  V.  Teresa,  supra  note  29,  at  144. 

160.  See  Hearings  on  Fencing  136-37,  151-54;  V.  Teresa,  supra  note  29,  at  144. 

161.  See  Hearings  on  Fencing  151-53. 

162.  See  id.  at  42;  Cargo  Theft  and  Organized  Crime  27;  Hearings  on  Stolen 
Securities  64,  73. 

Organized  crime  members  have  been  able  to  obtain  inside  information  and  place 
selected  employees  in  sensitive  positions  by  successfully  infiltrating  many  iabor 
unions.     Emerson,  supra  note  48,  at  312.     See  generally  Task  Force  Report,  Or- 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1541 

main  completely  insulated  from  the  hijacking^*^  because  nonmem- 
bers/***  often  persons  aspiring  to  join  the  syndicate^^^  or  persons  in- 
debted to  it/*"  carry  out  the  crime. 

Once  the  theft  is  finished,  the  syndicate  efficiently  and  effec- 
tively legitimizes  and  redistributes  the  goods. ^*^  The  syndicate's 
connections  with  master  and  professional  fences, ^"^  and  the  influ- 
ence it  exerts  over  many  legitimate  businesses,^ "^  have  enabled  it  to 
develop  a  redistribution  system  capable  of  funneling  stolen  goods 
through  interstate  commerce  with  great  ease.""  Goods  hijacked  at 
4:30  p.m.  may  be  on  retail  shelves  by  5:15  p.m.  that  same  day."^ 
The  growth  of  such  a  redistribution  network  inevitably  stimulates 
large-scale  theft. 

Although  organized  crime  groups  have  not,  of  course,  monop- 
olized theft  activity,"^  the  considerable  profits  derived  from  redis- 
tributing large  quantities  of  stolen  goods  assures  their  continued  par- 
ticipation in  large-scale  thefts. ^'^^     Moreover,  syndicate  activity  in 


GANizED  Crime  5;  The  Mob:   It  Racks  Up  Overtime  on  Government  Payroll,  Life, 
Feb.  14,  1969,  at  52. 

163.  A  crime  syndicate  leader,  particularly,  tries  never  to  come  in  contact  with 
the  stolen  goods.  See,  e.g.,  V.  Teresa,  supra  note  29,  at  144-45;  Hearings  on  Fenc- 
ing 152.  The  sophisticated  structure  of  an  organized  crime  syndicate,  its  relatively 
tight  internal  controls,  and  its  usually  enforced  code  of  omerta — the  code  of  conduct 
which  mandates  silence  and  loyalty — ^11  serve  to  reinforce  this  insulation.  See,  e.g.. 
Task  Force  Report,  Organized  Crime  7-9;  Cressey,  The  Functions  and  Structure  of 
Criminal  Syndicates  in  Task  Force  Report,  Organized  Crime  41. 

164.  See  Cargo  Theft  and  Organized  Crime  26;  V.  Teresa,  supra  note  29,  at 
144-45;  Report,  The  Impact  of  Crime  4,  26.  Hearings  on  Fencing  42,  364;  Hear- 
ings on  Criminal  Laws  310. 

165.  See  Hearings  on  Fencing  Al;  V.  Teresa,  supra  note  29,  at  144-45. 

166.  See  V.  Teresa,  supra  note  29,  at  144-45. 

167.  This  service  is  essential  because,  in  its  absence,  large-scale  thieves  would  not 
be  able  to  find  a  market  for  their  goods.  With  financing  supplied  by  syndicate 
sources,  a  sophisticated  theft  and  fencing  operation  is  made  possible. 

168.  See  note  152  supra. 

169.  Organized  crime  members  have  utilized  their  loansharking  and  gambling  ac- 
tivities as  a  means  of  compelling  indebted  businessmen  to  handle  stolen  goods.  In 
other  situations,  businesses  directly  controlled  by  organized  crime  handle  the  goods. 
See  Cargo  Theft  and  Organized  Crime  28-29  (25  per  cent  of  stolen  goods  esti- 
mated to  be  handled  in  syndicate  outlets). 

170.  "Organized  Crime  .  .  .  also  controls  the  underworld  disposal  systems  where 
bootlegged  goods  are  rapidly  fenced  and  distributed  in  the  city  and  across  the  coun- 
try." Emerson,  supra  note  48,  at  315-16.  See  Cargo  Theft  and  Organized  Crime 
39-40;  Hearings  on  Fencing  1.  Speed  of  distribution  is  made  possible  by  finding  buy- 
ers before  the  theft  is  carried  out.    See  id.  at  42;  note  140  supra. 

171.  Cargo  Theft  and  Organized  Crime  38-39. 

172.  "Organized  crime  is  both  stealing  and  [controlling]  the  disposition.  But 
they  don't  have  the  sole  market  in  stealing.  The  amateurs  and  organized  crime  are 
stealing.  Everybody  is  stealing.  Organized  crime  is  handling  the  disposition."  Id. 
at  28.    See  Hearings  on  Stolen  Securities  I'i. 

173.  Organized  crime  does  appear  to  have  more  than  its  share  of  the  disposition 


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1542  Michigan  Law  Review  tVol.  74:1511 

narcotics,  gambling  and  loansharking  is  indirectly  responsible  for  a 
large  number  of  smaller  property  crimes  committed  by  burglars, 
shoplifters  and  employees,"^  and  it  gives  syndicate  members  a 
means  to  acquire  information  useful  for  planning  major  thefts.  Thus, 
organized  crime  is  a  pervasive  influence  in  theft  and  fencing  activi- 
ties. 

II.     Social  Control  Through  Law 

A.     Criminal  Sanctions 

Despite  the  growth  of  large-scale  criminal  redistribution  systems 
with  their  widespread  adverse  economic  consequences,  our  society 
has  been  unable  to  develop  correspondingly  sophisticated  legal 
measures  to  control  the  problem.  As  the  following  brief  historical 
account  will  demonstrate,  although  fencing  has  been  illegal  since  the 
era  of  Jonathan  Wild,  conceptualization  of  the  crime  has  failed  to 
keep  pace  with  changes  in  the  nature  of  the  criminal  activity. 

1 .     The  Development  of  the  Law 

Receiving  property  knowing  it  to  be  stolen  is  an  offense  whose 
"origin  can  be  traced  to  medieval  England['s  prohibition]  .  .  . 
against  'harboring  stolen  cattle,'  "^"  but  fencing  activity  at  that  time 
was  seen  merely  as  an  aspect  of  theft  itself,  not  as  a  crime  deserving 
of  any  independent  recognition.  In  fact,  early  English  law  did  not 
even  impose  criminal  sanctions  upon  receivers  as  accessories  after 
the  fact  unless  they  were  guilty  of  sheltering  the  thieves."®  Because 
economic  conditions  effectively  precluded  the  possibility  of  large- 
scale  theft  for  resale,  receiving  was  not  considered  a  major  incentive 
to  theft  requiring  separate  criminal  punishment."^  But  with  ensu- 
ing economic  developments"®  that  spurred  the  growth  of  fencing  ac- 

process: 

The  bulk,  quantity,  specialized  nature,  or  other  characteristics  of  much  stolen 
cargo  presents  incontrovertible  evidence — circumstantial   as  it   is — of  facilities, 
contacts,  and  know-how  of  a  coordinated  underworld.     Referring  to  a  series  of 
sizeable  cargo  thefts,  the   head  of  a  State   investigation  unit  asserts  that  "the 
merchandise  involved  must  be  disposed  of  by  the  thieves  and  it  is  equally  obvious 
that  it  can  only  be  disposed  of  through  organized  crime  channels." 
Cargo  Theft  and  Organized  Crime  27.    See  notes  24,  150,  supra  and  accompany- 
ing text;  Hearings  on  Stolen  Securities  2.     See  generally  V.  Teresa,  supra  note  29, 
at  259-89. 

174.  See  notes  162-63  supra  and  accompanying  text. 

175.  J.  Hall,  supra  note  5,  at  52. 

176.  Id.  at  53.    See  W.  LaFave  &  A.  Scott,  supra  note  14,  at  682. 

177.  See  notes  4,  93  supra  and  accompanying  text. 

178.  See  notes  5-7  supra  and  accompanying  text. 


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August  1976]       Criminal  Distribution  of  Stolen  Property  1543 

tivity,  legislation  was  enacted  in  1692  to  criminalize  the  mere  receipt 
of  stolen  property."*  Even  then,  however,  a  receiver  was  only  sub- 
ject to  prosecution  as  an  accessory  after  the  fact  to  the  larceny.  Con- 
sequently, under  established  English  procedure,  he  could  not  be 
brought  to  trial  before  the  principal  was  convicted  of  theft.  ^®°  This 
measure,  which  ironically  gave  receivers  an  additional  incentive  to 
assist  their  thieves  in  evading  detection,  was  subsequently  amended 
in  part,^®^  but  the  distinctions  drawn  between  theft  and  fencing  had 
been  firmly  ingrained  in  English  law:  "The  tradition  remained 
throughout  the  eighteenth  century  and  early  nineteenth  that  the  re- 
ceiver was  an  accessory  to  the  crime  rather  than  a  principal. "^^^  De- 
spite the  success  of  Jonathan  Wild,  which  clearly  demonstrated  the 
errors  of  this  approach,^*^  receiving  stolen  property  remained  an  "ap- 
pendage of  theft"  until  1827,  when  it  was  finally  treated  as  a  sep- 
arate substantive  offense.  ^^^ 

The  1827  English  receiving  statute  served  as  a  prototype  for  sub- 
sequent American  legislation, ^^'^   and  although  traces  of  the   ap- 

179.  3  &  4  W.  &  M.,  C.13,  §  3  (1692). 

180.  This  reflected  prevailing  English  attitudes  which  viewed  theft  as  a  major 
crime  and  receiving  as  simply  a  secondary  activity.  Since  the  receiver  was  only  con- 
sidered to  be  an  accessory,  English  law  would  not  punish  him  more  severely  than 
his  principal  and  not  at  aJl  if  the  thief  escaped  conviction.  Since  "the  thief  might 
avoid  a  conviction  for  larceny  by  dying,  or  by  not  getting  caught,  or  by  winning  an 
erroneous  acquittal,"  the  statute  was  not  an  effective  enforcement  device.  W.  LaFave 
&  A.  Scott,  supra  note  14,  at  682.    See  J.  Hall,  supra  note  5,  at  54-55. 

181.  2  Anne,  c.9,  §  2  (1701).    See  J.  Hall,  supra  note  5,  at  55. 

182.  Chappell  &  Walsh,  "No  Questions  Asked"  160. 

183.  See  id. 

184.  See  7  &S  Geo.  IV,  c.29,  §  54  (1827);  W.  LaFave  &  A.  Scorr,  supra  note 
14,  at  682;  J.  Hall,  supra  note  5,  at  55-56. 

185.  J.  Hall,  supra  note  5,  at  58.  See  W.  LaFave  &  A.  Scott,  supra  note  14, 
at  682.  Title  18  of  the  United  States  Code  contains  at  least  twelve  provisions  which 
could  be  used  to  prosecute  the  receipt  of  stolen  goods.  18  U.S.C.  §  659  (1970)  (re- 
ceipt of  property  stolen  from  an  interstate  or  foreign  carrier  or  depot);  18  U.S.C. 
§  662  (1970)  (receipt  of  stolen  property  within  the  special  maritime  or  territorial 
jurisdiction  of  the  United  States);  18  U.S.C.  §  842(h)  (1970)  (receipt  of  stolen  ex- 
plosives); 18  U.S.C.  §  1660  (1970)  (receipt  of  property  taken  by  an  act  of  piracy 
or  robbery);  18  U.S.C.  §  1708  (1970)  (receipt  of  property  stolen  from  the  U. 
S.  mails);  18  U.S.C.  §  2113(c)  (1970)  (receipt  of  property  stolen  from  a  bank  that 
is  federally  chartered  or  a  member  of  the  Federal  Reserve  System  or  stolen  from  a 
federally  insured  credit  union  or  savings  and  loan  association);  18  U.S.C.  §  2313 
(1970)  (receipt  of  a  stolen  vehicle  moving  in  interstate  or  foreign  commerce);  18 
U.S.C.  §  2314  (1970)  (transportation  of  stolen  goods,  securities,  moneys  or  fraudu- 
lent state  tax  stamps);  18  U.S.C.  §  2315  (1970)  (receipt  of  stolen  goods,  securities, 
moneys  or  fraudulent  state  tax  stamps);  18  U.S.C.  §  2317  (1970)  (receipt  of  stolen 
cattle  moving  through  interstate  commerce);  18  U.S.C.  §  371  (1970)  (outlaws  any 
conspiracy  to  violate  any  of  these  provisions,  and  accordingly  may  be  classified  as 
an  anti-fencing  statute).  Receiving  stolen  property  is  also  outlawed  in  every  state. 
State  legislation  is  comprehensively  analyzed  in  The  Natl.  Assn.  of  Attorneys 
General,  Commn.  on  the  Office  of  Attorney  General,  Legislative  Responses 
TO  Dealing  in  Stolen  Goods  33-37  (Dec.  1975). 


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1544  Michigan  Law  Review  [Vol.  74:1511 

pendage  theory  still  survive,^*'  most  jurisdictions  today  conceptualize 
receiving  stolen  property  as  an  independent  statutory  crime. '^^^  But 
while  the  conceptual  difficulties  that  plagued  eighteenth-century 
England  have  largely  been  solved,  they  have  been  replaced  by  new 
failures  to  recognize  the  need  to  draw  even  more  sophisticated  dis- 
tinctions. Whereas  eighteenth-century  English  society  had  to  learn 
to  make  legal  distinctions  between  thief  and  receiver,  our  society 
must  be  prepared  to  distinguish  among  different  classes  of  receivers 
and  diverse  patterns  of  fencing  activity.^*^  Law  enforcement  strat- 
egy and  tactics  must  be  designed  to  reflect  modem  differences  in 
modus  operandi  and  to  accord  special  emphasis  to  the  important  role 
of  organized  crime  syndicates. 

Although  there  is  evidence  that  our  legal  system  has  begun  to 
recognize  differences  in  fencing  schemes,"®  recent  proposals  that 
treat  fencing  as  a  subordinate  part  of  the  theft  problem  simply 
continue  outdated  formulations.^®*'    A  more   advanced   intellectual 

186.  For  example,  several  of  the  federal  provisions  deal  with  receiving  activity 
simply  by  listing  the  prohibition  as  part  of  a  larger  section  outlawing  a  particular 
type  of  theft.  See  18  U.S.C.  §§  641,  659,  1708,  2113  (1970).  Several  of  the  states, 
too,  have  recently  consolidated  receipt  of  stolen  property  as  part  of  a  general  anti- 
theft  classification  reform.  See  note  190  infra.  Examples  of  state  statutes  are: 
Conn.  Gen.  Stat.  Ann.  §  53a-119(8)  (Supp.  1975);  III.  Rev.  Stat.  ch.  38,  §  16- 
1(d)  (Supp.  1975);  Kan.  Stat.  Ann.  §  21-3701  (d)  (1972).  Unless  sophisticated 
grading  schemes  are  also  adopted  that  distinguish  different  types  of  receipt,  such  re- 
form is  unwise.    See,  e.g.,  N.H.  Rev.  Stat.  Ann.  637:11  (1971). 

187.  See  The  Natl.  Assn.  of  Attorneys  General,  supra  note  185,  at  33-37; 
Attorney  General,  Legislative  Responses  to  Dealing  in  Stolen  Goods  33-37 
(Dec.  1975). 

188.  See  notes  103-74  supra  and  accompanying  text.  The  need  to  distinguish 
among  different  kinds  of  receivers  was  first  proposed  in  Hall's  classic  work.  See  J. 
Hall,  supra  note  5,  at  155-64;  189-99;  211-25.  Since  Professor  Hall's  initial  study, 
patterns  of  redistribution  have  become  even  more  sophisticated,  and  the  role  of  or- 
ganized crime  has  become  more  pronounced.  Accordingly,  the  need  for  reform  today 
is  more  apparent  than  ever,  especially  in  light  of  the  failure  to  implement  Professor 
Hall's  original  proposals. 

189.  The  judiciary  has  been  primarily  responsible  for  most  of  the  legal  develop- 
ments that  have  facilitated  the  conviction  of  fences.  See  J.  Hall,  supra  note  5,  at 
173-89. 

190.  For  example,  both  the  Model  Penal  Code  and  the  National  Commission  on 
Reform  of  Federal  Criminal  Laws  have  advocated  the  consolidation  of  receiving  into 
a  general  offense  category  which  broadly  outlaws  theft  activity.  By  characterizing 
receiving  as  merely  a  subordinate  part  of  theft,  the  proposed  legislation  inadvertently 
de-emphasizes  the  significance  of  fencing  activity.  See  Model  Penal  Code,  §  223.1 
(1)  (Proposed  Official  Draft  1962);  Senate  Comm.  on  the  Judiciary.  Subcomm. 
ON  Criminal  Laws  and  Procedures,  Report  of  the  National  Comm.  on  Reform 
OF  FpERAL  Criminal  Laws,  92d  Cong.,  1st  Sess.,  pt.  1,  §  1732(c),  at  359  (1971) 
[hereinafter  Reform  Commn.].  Consolidation  may  be  an  appropriate  way  to  deal  with 
the  receiver  who  obtains  stolen  property  merely  for  personal  consumption,  but  it  is 
an  awkward  way  to  attack  the  multifaceted  fencing  activity  that  is  carried  on  through- 
out the  nation  today.  Both  the  Model  Penal  Code  and  the  Reform  Commission  have, 
however,  made  some  attempt  to  distinguish  among  different  types  of  receivers  for  the 


8659 


August  1976]        Criminal  Distribution  of  Stolen  Property  1545 

framework  that  fundamentally  changes  evidentiary  rules,  state  of 
mind  requirements,  and  criminal  sanctions,  is  at  least  one  prerequi- 
site to  a  modernization  of  investigative  techniques.  Until  this  has 
been  accomplished,  our  laws  will  remain  unable  to  help  control  ef- 
fectively criminal  redistribution  systems. 

2.     Receiving  Stolen  Property:  A  Modern  Perspective 

Legislation  criminalizing  fencing  activity  has  traditionally  been 
drafted  to  outlaw  the  knowing  receipt  of  stolen  property }^^  To  con- 
vict a  receiver  under  such  a  statute,  the  prosecution  must  establish: 
(1)  receipt  of  the  goods  by  the  fence;  (2)  the  merchandise  was 
stolen  property  at  the  time  of  the  receipt;  and  (3)  the  fence  knew 
the  property  was  stolen.^®-  When  defined  strictly  in  these  terms, 
each  element  of  the  crime  poses  major  obstacles  to  successful  prose- 
cution. Once  these  elements  are  considered  from  a  twentieth-cen- 
tury perspective  that  recognizes  the  increasing  sophistication  of  re- 
distribution systems,  however,  appropriate  modifications  can  be 
made  to  remove  those  obstacles. 

a.  The  "receipt"  of  property.  As  in  the  first  English  fencing 
statute  passed  in  the  seventeenth  century,  the  actus  reus  prohibited 
by  most  of  the  early  federal  and  state  statutes  drafted  in  this  coun- 
try was  the  buying  or  receiving  of  stolen  property."^  Since  this  de- 
purpose  of  grading.  See  Model  Penal  Code  §§  223.1  (2) (a),  223.6(2)  (Proposed 
Official  Draft  1962);  Reform  Commn.  §  1735(2)(f)  at  362.  Nevertheless,  the  po- 
tential impact  of  §  223.1  (2) (a)  of  the  Model  Penal  Code  and  §  1735(2) (f)  of  the 
Reform  Commission  is  limited,  and  unless  their  significance  is  carefully  noted,  reform 
based  on  these  recommendations  can  err.  See,  e.g.,  N.H.  Rev.  Stat.  Ann.  §  637.11 
(1971)  (grading  distinction  not  adopted). 

191.  The  offense  is  commonly  referred  to  as  "receiving  stolen  property."  See 
note  185  supra. 

192.  W.  LaFave  &  A.  Scott,  supra  note  14,  at  683.  In  addition,  some  statutes 
explicitly  require  the  prosecution  to  establish  that  the  defendant  intended  to  deprive 
the  owner  of  his  interest  in  his  property.  See,  e.g.,  Colo.  Rev.  Stat.  §  18-4-401 
(Supp.  1975);  III.  Rev.  Stat.  ch.  38,  §  16-l(d)  (Supp.  1975);  N.Y.  Penal  Law  §§ 
165.45,  165.60  (McKinney  1975).  This  requirement  is  designed  to  eliminate  the  po- 
tential liability  of  one,  such  as  a  policeman  or  innocent  finder,  who  knowingly  pos- 
sesses the  stolen  property,  but  intends  to  return  it  immediately.  See  Model  Penal 
Code  §  223.6  (Proposed  Official  Draft  1962).  In  any  event,  this  element  is  not  con- 
sidered a  major  impediment,  since  it  is  readily  established  by  direct  or  circumstantial 
evidence.  Generally,  in  the  absence  of  specific  language  setting  forth  this  require- 
ment, its  establishment  is  not  a  prerequisite  to  conviction.  See  Staff  Report  on 
Small  Business  17. 

193.  S'ee  3  &  4  W.  &  M.,  c.9,  §  4  (1692).  Approximately  20  jurisdictions  still 
retain  this  emphasis  on  the  buying  or  receiving  of  stolen  goods.  Hearings  on  Fencing 
164-71.  See,  e.g.,  Md.  Ann.  Code  art.  27  §  466  (1957);  N.J.  Stat.  Ann.  §  2A:139- 
1  (Supp.  1974).  See  generally  Model  Penal  Code  §  206.8,  Comment  (Tent.  Draft 
No.  2,  1954). 

194.  See  notes  142-43,  145,  152  supra  and  accompanying  text. 


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1546  Michigan  Law  Review  [Vol.  74:1511 

scription  of  the  proscribed  conduct  proved  ineffective  in  controlling 
fences  who  avoid  physical  contact  with  stolen  goods  and  never  make 
purchases  for  their  own  use,"*  many  states  have  expanded  the  scope 
of  the  prohibited  conduct  to  include  withholding,  concealing  or  aid- 
ing in  the  concealment  of  stolen  property.""  Likewise,  Congress 
has  adopted  measures  to  correct  similar  deficiencies  in  federal  re- 
ceiving statutes,  but  no  uniform  formula  has  yet  been  developed  at 
the  federal  level.  Thus,  current  state  and  federal  legislation,  reflect- 
ing the  inability  of  law  enforcement  authorities  to  formulate  an  effec- 
tive and  consistent  approach  to  fencing,  broadly  proscribe  conduct 
ranging  from  the  traditional  purchase  or  receipt  to  the  sale,  barter, 
concealment,  retention,  transportation,  disposal,  storage,  or  posses- 
sion of  stolen  goods."* 

It  is  doubtful  that  the  inclusion  of  many  of  these  terms  actually 
promotes  more  efficient  law  enforcement.  Language  such  as  "dis- 
posal" or  "sale"  may  help  reach  the  fencing  techniques  of  modem 
receivers,  but,  in  the  absence  of  appropriate  gradation  distinctions, 
the  remaining  language  merely  creates  additional  confusion  in  the 
substantive  law.  In  contrast,  the  clear  description  of  the  proscribed 
conduct  in  the  Criminal  Justice  Reform  Act  of  1975,  S.l,  the  most 
recent  Congressional  proposal  for  reforming  the  federal  criminal 
code,  makes  possible  a  realistic  effort  to  deal  with  modem  fencing 
activity."^  According  to  the  fencing  provisions  of  that  proposed 
Act,  "[a]  person  is  guilty  of  [receiving  stolen  property]  ...  if  he 
buys,  receives,  possesses,  or  obtains  control  of  property  of  another 
that  has  been  stolen.""^    By  focusing  on  the  control  of  stolen  prop- 

195.  Hearings  on  Fencing  164-71.  See,  e.g.,  Cal.  Penal  Code  §  496  (West 
Supp.  1975).  These  additions,  however,  are  only  an  indirect  way  of  dealing  with 
the  problem,  and  considerable  judicial  effort  has  been  required  to  apply  the  modified 
versions  to  fences  who  have  avoided  physical  contact  with  the  goods.  See  note  202 
infra  and  accompanying  text.  Significantly,  the  terms  "conceal"  or  "withhold"  were 
probably  adopted  merely  to  reach  the  situation  where  the  defendant,  upon  initial  re- 
ceipt, had  no  knowledge  of  the  goods'  stolen  character  but  subsequently  acquired  the 
requisite  knowledge  and  decided  to  keep  the  goods.  As  the  statutes  were  initially 
drafted,  such  a  defendant  had  technically  committed  no  crime  since  he  did  not  know- 
ingly receive  the  goods.  See  W.  LaFave  &  A.  Scott,  supra  note  14,  at  688-89.  Sub- 
sequently, however,  the  terms  "withhold"  and  "conceal"  received  appropriately 
broader  application.    Id.  at  684. 

196.  See.  e.g..  18  U.S.C.  §§  641,  662,  659,  842(h),  2113(c),  2313.  2315  (1970). 
These  statutes  are  discussed  briefly  in  note  185  supra.  Specific  state  legislation  deal- 
ing with  specialized  aspects  of  fencing  is  outside  the  scope  of  these  materials.  Exam- 
ples of  provisions  that  are  common  throughout  the  United  States,  but  are  too  par- 
ticularized to  merit  examination  here,  are  Ariz.  Rev.  Stat.  Ann.  s  44-1621  to 
1627  (1967)  (pawn  brokers);  Colo.  Rev.  Stat.  Ann.  §  42-5-102  (1973)  (stolen 
auto  parts). 

197.  The  Criminal  Justice  Reform  Act  of  1975,  S.  1,  94th  Cong.,  1st  Sess. 
(1975)  [hereinafter  S.  1]. 

198.  S.  1,  §  1733a  (emphasis  added). 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1547 

erty,  the  statute  concisely  covers  a  broad  range  of  modem  fencing 
activities  that  do  not  require  physical  possession.^®®  The  proposed 
federal  legislation,  however,  does  not  contain  a  definition  of  con- 
trol.^**" In  any  event,  it  is,  of  course,  not  yet  law,  and  only  a  few 
states  have  adopted  a  simple  control-oriented  definition  of  the  actus 
reus  by  defining  receiving  to  be  the  equivalent  of  acquiring  posses- 
sion or  control  of  stolen  goods. ^"^ 

Despite  failures  at  the  legislative  level,  modernization  of  fenc- 
ing statutes  has  in  effect  been  accomplished  in  many  jurisdictions 
by  judicial  statutory  construction.  By  viewing  the  offense  in  broad 
terms,  a  number  of  courts  have  construed  statutes  to  include  any  con- 
duct that  might  be  considered  to  be  constructive  possession,  effective 
control,  or  an  exercise  of  dominion  over  the  stolen  property.  ^^^  Still, 
many  courts  steadfastly  refuse  to  make  this  broad  inteipretation. 
Moreover,  in  those  jurisdictions  that  are  willing,  case-by-case  deter- 
minations, requiring  close  judicial  scrutiny  of  the  relationship  be- 
tween the  defendant  and  the  stolen  goods,  suffer  from  a  lack  of  pre- 
dictability as  to  whether  proof  of  constructive  possession  or  control 
is  sufficient  to  convict  alleged  fences  and,  if  it  is,  as  to  what  conduct 
amounts  to  sufficient  control. ^^^  This  lack  of  uniformity  and  pre- 
dictability can  only  be  alleviated  by  carefully  tailored  legislative  re- 
form. 

This  article,  therefore,  recommends  that  legislatures  enact  stat- 
utes similar  to  the  Model  Theft  and  Fencing  Act  (Model  Act)  set 

199.  See  generally  notes  142-50  supra  and  accompanying  text.  The  Model  Penal 
Code  also  reflects  the  view  that  control  of  stolen  property  is  the  essence  of  modern 
fencing  activity.  See  Model  Penal  Code  §  206.8,  Comment  (Tent.  Draft  No.  2, 
1954). 

200.  S.l,  §  1733(a)  simply  mentions  the  word  control  without  explicating  the  fac- 
tual basis  that  would  support  such  a  finding.  In  all  likelihood,  the  courts  would  fol- 
low previous  decisions.  For  a  discussion  of  prior  decisions,  see  United  States  v.  Cas- 
alinuovo,  350  F.2d  207,  209-10  (2d  Cir.  1965). 

201.  See  Hearings  on  Fencing  164-71.  An  example  of  such  legislation  is  Colo. 
Rev.  Stat.  §  18-4-401  (1973).  This  approach  has  been  advocated  by  the  Model 
Penal  Code.    Model  Penal  Code  §  223.6  (Proposed  Official  Draft  1962). 

202.  See  W.  LaFave  &  A.  Scorr,  supra  note  14,  at  683.  Both  state  and  federal 
cases  stress  that  control  or  dominion  is  the  essential  element  to  be  established.  See, 
e.g.,  United  States  v.  Casalinuovo,  350  F.2d  207,  209  (2d  Cir.  1965)  ("such  a  nexus 
or  relationship  between  the  defendant  and  the  goods  that  it  is  reasonable  to  treat  the 
extent  of  the  defendant's  dominion  and  control  as  if  it  were  actual  possession"); 
Commonwealth  v,  Davis,  444  Pa.  11,  15,  280  A.2d  119,  121  (1971)  ("in  possession 
of  stolen  goods  only  when  it  is  proved  that  he  exercised  conscious  control  or  domin- 
ion over  those  goods"). 

203.  See  People  v.  Fein,  292  N.Y.  10,  53  N.E.2d  373,  39  N.Y.S.2d  999  (1944); 
People  v.  Colon.  28  N.Y.2d  1,  267  N.E.2d  577,  318  N.Y.S.2d  929,  cert,  denied,  402 
US.  905  (1971).  The  Fein  decision  was  rejected  by  the  legislature  in  1967.  N.Y. 
Penal  Law  §  10.00,  Practice  Commentary  (McKinney  1975). 


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1548  Michigan  Law  Review  [Vol.  74:1511 

forth  in  appendix  B,  which  modifies  the  basic  approach  employed 
by  the  drafters  of  S.l.  According  to  the  Model  Act,  the  defendant 
has  exhibited  the  proscribed  conduct  if  he  "obtains  or  uses"  stolen 
property.^"*  The  proposal  defines  "obtains  or  uses"  as  "any  manner 
of  .  .  .  taking  or  exercising  control  .  .  .  making  an  unauthorized 
use,  disposition,  or  transfer  of  property  ...  or  obtaining  property 
by  fraud.  .  .  ."^o' 

Even  if  suggested  substantive  reforms  are  initiated,  however,  be- 
cause of  critical  inadequacies  in  existing  techniques  for  gathering  ev- 
idence, control  or  constructive  possession  may  be  difficult  to  establish 
if  the  fence  is  not  apprehended  in  physical  possession  of  the  goods. 
Conviction  simply  is  not  possible  unless  the  stolen  merchandise  can 
in  some  way  be  linked  to  the  fence.  An  investigation  may  be  facili- 
tated by  intonnants^"^  or  by  testimony  from  accomplices  who  have 
received  immunity.^"^  To  tap  these  sources  of  information,  the 
Model  Act  provides  that  accomplice  testimony  alone  is  sufficient  to 
establish  receipt  if  it  is  believed  beyond  a  reasonable  doubt.^"^ 

The  rule  in  many  jurisdictions,  however,  is  that,  unless  it  is  inde- 
pendently corroborated,  an  accomplice's  testimony  is  insufficient  for 
conviction.^*^^    As  a  tactical  matter,  then,  the  prosecution's  task  in 

204.  See  Model  Theft  and  Fencing  Act  §  2(a),  Appendix  B. 

205.  See  Model  Theft  and  Fencing  Act  §  7(b)(1),  (2),  (3),  Appendix  B. 

206.  In  1972,  for  example,  FBI  informants  provided  information  which  led  to  the 
recovery  by  the  FBI  of  $35  million  in  stolen  property  and  contraband.  Hearings  on 
the  Depts.  of  State,  Justice,  and  Commerce,  the  Judiciary,  and  Related  Agencies  Ap- 
propriations for  1974  Before  a  Subcomm.  of  the  House  Comm.  on  Appropriations, 
93d  Cong.,  1st  Sess.,  pt.  1,  at  879  (1973).  This  information  was  disseminated  to 
other  federal,  state,  and  local  agencies,  resulting  in  the  recovery  of  an  additional  $95 
million.    Id. 

207.  The  use  of  immunity  grants  is  discussed  in  notes  277-94  infra  and  accom- 
panying text. 

208.  See  Model  Theft  and  Fencing  Act  §  5(b),  Appendix  B. 

209.  See  notes  296-303  infra  and  accompanying  text. 

Different  problems  are  involved  when  the  informant  is  not  a  thief.  First,  the  po- 
lice may  be  reluctant  to  reveal  his  identity,  since  such  a  disclosure  would  destroy  his 
future  effectiveness  and  jeopardize  his  physical  safety.  Second,  an  informant  by 
his  very  narurc  may  not  make  a  credible  witness.  Finally,  in  some  cases,  the  use 
of  an  informant  may  result  in  allegations  of  entrapment.  See,  e.g.,  C.  Klockars, 
supra  note  12,  at  98-100.  On  the  federal  level,  the  traditional  notion  of  entrapment 
focuses  on  the  predisposition  of  the  defendant  to  commit  the  crime.  See  Sorrells  v. 
United  States,  287  U.S.  435  (i932).  In  United  Stales  v.  Russell,  411  U.S.  423 
(1973),  where  the  defendant  was  offered  an  essential  ingredient  for  the  illicit  manu- 
facture of  drugs,  the  Court's  language  in  lormulating  the  defense  suggests  that  a  "sell 
and  bust"  program  in  the  fencing  area  iTiight  not  rt.n  afoul  of  entrapment  if  targets 
were  carefully  selected.  What  might  have  betn  only  inferred  from  Rus.ull  .seems  to 
be  beyond  question  in  Hampton  v.  United  States,  19  Crim.  L.  Rptr.  3039  (4-27-76) 
(sell  to  and  buy  back  heroin  if  predisposed  not  entrapment).  "Attempted  receipt," 
not  "receipt,"  of  course,  would  be  the  charge.  Scr  note  237  infra  Such  a  program 
might,  however,  run  into  judicial  opposition  at  the  state  level.  See  Young  v.  Superior 
Court,  253  Cal.  App.  2d  838,  61  Cal.  Rptr.  355  (1967). 


8663 


August  1976]        Criminal  Distribution  of  Stolen  Property  1549 

those  jurisdictions  is  appreciably  lightened  only  when  it  has  appre- 
hended the  defendant  in  actual  possession  of  the  goods,  which  sel- 
dom occurs  at  the  more  sophisticated  levels  of  fencing  activity,  or 
has  otherwise  obtained  independent  corroboration  of  the  facts  es- 
tablishing control  or  constructive  possession. ^^^ 

The  use  of  a  search  warrant  is  all  too  often  an  inadequate  inves- 
tigative tool  for  fencing  crimes  since  the  warrzuit  may  be  issued  only 
after  probable  cause  has  been  established,  a  process  that  tends  to 
be  both  cumbersome  and  time-consuming.^"  For  example,  al- 
though the  personal  observations  of  a  police  officer  would  establish 
probable  cause,  in  situations  where  an  informant  has  provided  the 
critical  information — the  typical  case  in  fencing  investigations — po- 
lice must  demonstrate  to  a  judge  their  basis  for  considering  the  infor- 
mation reliable  and  reveal  the  informant's  source  of  information.^^ ^ 
There  is  sufficient  corroboration  if  the  informant,  shown  to  be  reli- 
able, states  he  has  personal  knowledge  of  the  information  he  has  pro- 
vided.^^^  If  the  informant  does  not  have  such  personal  knowledge, 
police  must  independently  corroborate  his  testimony.  ^^^  Sophisti- 
cated fences  are  too  often  able  to  dispose  of  their  stolen  goods  be- 
fore police  can  acquire  probable  cause  and  obtain  and  execute  a  war- 

210.  Even  in  those  states  where  there  is  no  rule  requiring  the  corroboration  of 
an  accomplice's  testimony,  an  accomplice's  account  of  the  crime  often  lacks  the  credi- 
bility necessary  to  persuade  a  jury  beyond  a  reasonable  doubt.  This  is  particularly 
so  when  the  defense  effectively  emphasizes  to  the  jury  that  the  witness  is  testifying 
under  a  grant  of  immunity  or  promise  of  leniency.  See  C.  Klockars,  supra  note 
12,  at  99-100. 

211.  The  warrant  must  set  forth  sufficient  detail  of  underlying  circumstances  to 
enable  the  federal  magistrate  or  a  judge  of  the  state  within  which  the  search  is  to 
take  place  to  evaluate  independently  whether  probable  cause  exists.  See  United 
States  V.  Harris,  403  U.S.  573,  578-83  (1971);  Spinelli  v.  United  States,  393  U.S. 
410,415-16  (1969). 

212.  See  Spinelli  v.  United  States,  393  U.S.  at  416-17;  Aguilar  v.  Texas,  378  U.S. 
108,  110-15  (1964). 

213.  Spinelli  v.  United  States,  393  U.S.  at  416. 

214.  Spinelli  v.  United  States,  393  U.S.  at  416-18.  Spinelli's  demand  for  cor- 
roboration has  been  weakened  by  the  holding  of  United  States  v.  Harris,  403  U.S. 
573  (1971).  Two  concurring  justices  went  as  far  as  to  call  for  the  overruling  of 
Spinelli.  403  U.S.  at  585-86  (Black  &  Blackmun,  JJ.,  concurring).  It  may  be  only 
a  short  time  before  it  is  overruled.  As  it  stands,  it  is  a  significant  road  block  in 
fencing  investigations. 

Note  that  prior  to  Spinelli,  Draper  v.  United  States,  358  U.S.  307  (1959),  upheld 
the  validity  of  a  warrantless  arrest  under  circumstances  where  the  corroboration  con- 
sisted simply  of  police  observations  of  activity  which,  while  not  itself  illegal,  served 
to  confirm  so  many  of  the  details  supplied  by  the  informant  that  it  would  have  been 
reasonable  for  a  magistrate  to  conclude  that  the  information  supplied  was  accurate. 
The  validity  of  this  approach  to  probable  cause,  however,  underwent  a  significant  de- 
velopment in  Spinelli,  which  found  that  the  Draper  information  was  based  on  per- 
sonal knowledge,  so  that  corroboration  of  the  criminality  was  not  required. 


92-465  O  -  77  -  7 


8664 


1550  Michigan  Law  Review  [Vol.  74:1511 

rant.^"  Alternatively,  the  use  of  the  "buy-bust"  technique,*^*  which 
deploys  undercover  agents  who  pose  as  dealers  of  illegal  goods, 
may  offer  a  more  viable  solution,  at  least  in  gathering  evidence 
against  neighborhood,  outlet,  or  professional  fences.  It  obviously 
offers  little  hope  of  success  against  well-insulated  master  fences. 

In  any  case,  investigations  are  often  also  complicated  by  the  gen- 
eral absence  of  conduct  that  clearly  bespeaks  its  own  illegality:  A 
sophisticated  fence  utilizes  the  legitimate  aspects  of  his  business  to 
disguise  any  underlying  criminal  conduct.^"  Even  so,  this  veil  of 
legitimacy  may  in  some  cases  be  pierced  by  intensive  physical  and 
electronic  surveillance,  which  allows  police  to  show  the  probable 
cause  they  are  not  otherwise  able  to  establish  by  conventional  meth- 
ods of  enforcement.  Police  might  not  then  be  required  to  obtain 
a  warrant  for  an  immediate  arrest^^®  and  search^^^  where  the  fence 
is  known  to  be  in  criminal  possession,  thus  greatly  reducing  the  risk 
the  fence  will  transfer  the  stolen  merchandise,  thereby  disposing  of 
the  evidence  of  his  crime.  Although  admittedly  time-consuming, 
expensive,  and  an  obvious  drain  on  manpower,^^"  once  the  authori- 
ties have  learned  (from  an  informant,  captured  thief,  or  electronic 
surveillance)  of  the  operations  of  a  particular  fence,  intensive  sur- 

215.  See,  e.g.,  Hearings  on  Fencing  27;  note  131  supra. 

216.  The  "buy-bust"  or  "sell-bust"  technique  may  be  utilized  against  both  thieves 
and  fences.  When  thieves  are  the  target  of  the  technique,  the  undercover  officer  as- 
sumes the  identity  of  a  fence  who  is  willing  to  buy  stolen  goods.  At  an  appropriate 
time,  arrests  can  then  be  made.  See  generally,  122  Cong.  Rec.  S12222-25  (daily  ed. 
July  22,  1976)  (LEAA  support  for  anti-theft  programs).  For  a  fence,  the  process 
would  involve  an  attempt  by  an  undercover  officer  to  sell  goods  to,  or  purchase  them 
from,  a  suspected  fence.  If  the  fence  is  responsive,  an  arrest  would  be  made.  See 
Strategies  74-113. 

217.  See  notes  132-38  supra  and  accompanying  text. 

218.  The  right  to  arrest  without  a  warrant  was  recognized  prior  to  the  develop- 
ment of  the  warrant  procedures  and  was  never  supplanted  by  them.  See  Wiigus,  Ar- 
rest Without  a  Warrant  (pts.  1-2),  22  Mich.  L.  Rev.  54L  548-50,  673,  685-89 
(1924).  Historically,  arrest  warrant  procedures  arose  solely  out  of  a  desire  to  protect 
the  arresting  officer  from  tort  liability.  1  Stephen,  A  History  of  the  Criminal 
Law  of  England  190-93  (1883).  The  right  to  search  without  a  warrant,  however, 
received  no  such  independent  favorable  development.  See  generally  Lasson,  The 
History  and  Development  of  the  Fourth  Amendment  23-50  (1937).  The  cur- 
rent teaching  of  the  Suoreme  Court  on  arrests  without  warrants  is  contained  in 
United  States  v.  Watson,  423  U.S.  411  (1976)  (not  necessary  in  public  area). 

219.  Once  an  arrest  has  been  made,  the  police  can  conduct  a  limited  search  of 
the  area  to  ensure  that  the  goods  are  not  subsequently  moved.  The  Supreme  Court 
has  limited  the  scope  of  this  potential  search,  however,  to  the  suspect's  body  and 
areas  within  his  immediate  reach.  Chimel  v.  California,  395  U.S.  752  (1969).  Even 
so,  if  the  goods  are  not  initially  obtained  in  that  way,  the  police  could  protect  against 
the  loss  of  evidence  by  posting  a  guard  and  returning  later  with  a  search  warrant. 
See  Vale  v.  Louisiana,  399  U.S.  30  (1970);  Shipley  v.  California,  395  U.S.  818 
(1969). 

220.  See  Hearings  on  Fencing  4. 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1551 

veillance  as  part  of  an  aggressive  enforcement  program  offers  the 
only  realistic  hope  of  acquiring  sufficient  evidence  of  the  proscribed 
conduct  to  justify  an  arrest.  Whether  a  conviction  is  subsequently 
obtained  depends  upon  the  prosecution's  ability  to  establish  the  re- 
maining elements  of  the  offense. 

b.  The  goods  must  be  stolen.  Since  receiving  statutes  are  de- 
signed to  criminalize  only  conduct  that  is  socially  unacceptable,  a 
basic  element  of  the  offense  is  the  requirement  that  the  goods  have 
been  stolen  and  have  retained  their  stolen  character  throughout  the 
redistribution  process. ^^^  This  element  initially  posed  definitional 
problems  for  prosecutors  since  courts  were  inchned,  at  least  at  one 
time,  to  describe  as  "stolen"  property  only  those  items  that  were  ob- 
tained by  common  law  larceny,^^^  They  thus  excluded  the  receipt 
of  property  obtained  by  embezzlement  or  false  pretenses  from  the 
scope  of  fencing  statutes.  In  recent  years,  however,  the  potential 
for  a  technical  defense  based  on  the  narrow  common  law  definition 
of  the  term  "stolen"  has  been  eliminated  by  judicial^^®  and  legisla- 
tive^^* action  that  has  expanded  the  scope  of  the  prohibition  to  in- 
clude property  obtained  by  any  type  of  felonious  taking.'^^* 

Although  this  development  has  successfully  eliminated  a  trouble- 
some technical  defense  to  fencing  crimes,  conviction  is  often  impos- 
sible anyway  either  because  prosecutors  are  unable  to  prove  that  the 
goods  are  stolen^^®  or  because  the  goods  are  no  longer  technically 
"stolen  property"  when  obtained  by  the  fence.  Typically,  stolen 
merchandise  lacks  any  distinctive  identifying  indicia,  and  whatever 
identifying  marks  are  provided  can  easily  be  removed  by  fences.^^^ 

221.  W.  LaFave  &  A.  Scott,  supra  note  14,  at  684-85. 

222.  Id.  at  684  &  nn.  23  &  24. 

223.  See,  e.g.,  United  States  v.  Turley,  352  U.S.  407  (1957). 

224.  See,  e.g.,  18  U.S.C.  §§  641,  659  (1970);  Cal.  Penal  Code  §  496  (West 
Supp.  1975). 

225.  The  Model  Act  eliminates  any  similar  confusion  by  specifically  providing 
that  goods  obtained  by  a  variety  of  means  are  considered  "stolen  property."  See 
Model  Theft  and  Fencing  Act  §  7(b),  Appendix  B.  S.  1,  §  111  proposes  a  very 
broad  definition  of  "stolen":  "[s]tolen  property  means  property  that  has  been  the 
subject  of  any  criminal  taking,  including  theft,  executing  a  fraudulent  scheme,  rob- 
bery, extortion,  blackmail,  and  burglary  .  .  .  ." 

226.  This  is  due  in  large  part  to  the  prosecution's  need  to  identify  stolen  property 
with  "some  precision."  Staff  Report  on  Small  Business  15.  The  true  owner  is 
generally  required  to  identify  his  goods.  An  analysis  of  the  cases  holding  that  iden- 
tification is  not  necessary  suggests  only  that  the  owner's  identification  is  not  always 
necessary  for  indictment  purposes.  See  Annot.,  99  A.L.R.2d  382  (1965).  Because 
the  owner's  identification  is  required  for  trial,  however,  most  prosecutors  are  reluctant 
to  initiate  indictment  proceedings  if  a  precise  identification  cannot  be  made.  See 
notes  228,  231,  259  infra. 

227.  Members  of  the  New  York  City  Police  Department  have  regularly  con- 
ferred with  various  manufacturers  of  clothing  and  small  appliances  in  an  attempt 


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1552  Michigan  Law  Review  [Vol.  74:1511 

Manufacturers  could  deter  theft  and  fencing  somewhat  by  serially 
numbering  their  products  and  recording  those  numbers. ^^®  Such  a 
procedure  would  presumably  impede  illicit  resale  efforts  by  facilitat- 
ing both  the  recovery  of  stolen  property  and  the  prosecution  of  guilty 
parties.-^"  Unfortunately,  few  manufacturers  are  wiUing  to  incur  the 
production  and  record-keeping  expenses  that  this  process  unavoid- 
ably entails. ^^"  In  the  absence  of  a  reliable  identification  system, 
therefore,  fungible  stolen  goods  can  be  easily  commingled  with  legit- 
imate merchandise^^ ^  to  preclude  precise  identification  by  police. ^^^ 
Conviction  of  fences  is  further  hampered  in  many  jurisdictions 
by  the  requirement  that  the  goods  retain  their  stolen  character 
throughout  the  redistribution  process.  Quite  often,  police  catch  the 
thieves  with  the  stolen  property  or  otherwise  recover  the  merchan- 
dise before  it  comes  into  the  possession  of  a  fence,  and,  frequently 
with  the  cooperation  of  the  apprehended  criminals,  they  then  pro- 
ceed to  complete  delivery  to  the  property's  purchasers.  By  utilizing 
this  approach,  police  can  minimize  identification  problems  and  di- 
rectly trace  the  goods  to  a  professional  fence  or  other  seemingly  le- 
gitimate business. ^^^  In  contrast  to  analogous  investigatory  "set- 
ups" used  to  break  up  distribution  networks  for  narcotics,  however, 
once  authorities  recover  stolen  property,  the  goods  immediately  lose 
their  stolen  character,  and  subsequent  receivers  cannot  be  prose- 
cuted for  receiving  stolen  property.^^^    Although  this  result  may  be 

to  have  all  products  serialized  for  identification  purposes.  However,  the  position 
of  many  manufacturers  is  that  identification  would  be  extremely  costly  in  terms 
of  labor  and  record  keeping  and  might  conceivably  price  their  products  out  of 
the  market.  In  most  cases,  identification  can  be  made  by  markings  on  outer  car- 
tons where  consignee  names  and  order  numbers  are  stenciled.  Unfortunately, 
the  thieves  also  have  this  knowledge  and  their  first  act  after  coming  into  posses- 
sion of  "swag"  is  to  "strip  the  cartons"  or  remove  the  information  from  the  car- 
tons. 

Report,  The  Impact  of  Crime  18.    See  notes  133-35,  146  supra  and  accompanying 

text. 

228.  Without  a  reliable  recording  system,  serialization  would  be  a  wasted  effort. 
Many  large  corporations  do  not  maintain  reliable  recording  systems  for  their  inven- 
tories.   See  Report,  The  Impact  of  Crime  18. 

229.  See  Rosclius  &  Benton,  Marketing  Theory  203. 

230.  This  is  a  purely  economic  decision  based  on  a  simple  cost-benefit  analysis. 
See  note  227  supra. 

231.  See  RePORT,  The  Impact  of  Crime  17-18;  Hearmt-s  c-n  Fencing  49-50,  54; 
note  137  supra  and  accompanying  text  and  note  228  supra. 

232.  See  notes  228,  231  supra  and  accompanying  text. 

233.  After  the  goods  a.e  traced  to  a  warehouse,  a  professional  fence,  or  a  "legiti- 
mate" business  outlet,  investigation  could  work  upstream  in  an  effort  to  apprehend 
(or  at  least  identify)  the  organizer  or  master  fence.  This  process  could  be  achieved, 
inter  alia,  through  the  careful  use  of  immunity  grants.  See  note  277-94  infra  and 
accompanying  text. 

234.  The  authorities  uriformly  agree  on  this  point.    See,  e.g.,  W.  LaFave  &  A. 


8667 


August  1976]        Criminal  Distribution  of  Stolen  Property  1553 

legally  sound,  a  valuable  investigative  technique  is  largely  emascu- 
lated if  authorities  are  also  unable  to  prosecute  receivers  for  at- 
tempted receipt  of  stolen  property. 

In  the  federal  system,  the  question  of  whether  fences  may  be 
prosecuted  for  attempted  receipt  of  stolen  property  in  these  situa- 
tions is  not  reached  because  there  is  no  attempt  provision  of  general 
application  in  the  federal  criminal  code.^^^  At  the  state  level,  a 
number  of  jurisdictions  with  criminal  attempt  provisions  have  not  yet 
decided  whether  an  attempt  conviction  is  appropriate  in  this  instance. 
When  the  issue  was  squarely  presented  in  the  leading  case  of  People 
V.  Jaffe,-^^  however,  the  New  York  Court  of  Appeals  held  that  an 
attempt  conviction  in  the  fencing  context  presented  a  question  of 
legal  impossibility,  and  accordingly  reversed  a  conviction  for  at- 
tempted receipt  of  stolen  property.  ^^'^    New  York  followed  this  ap- 

ScoTT,  supra  note  14,  at  685;  United  States  v.  Cawley,  255  F.2d  338,  340  (3d  Cir. 
1958);  People  v.  Rojas,  55  Cal.  2d  252,  358  P.2d  921,  10  Cal.  Rptr.  465  (1961). 

235.  See  Reform  Commn.  220-21;  Keck  v.  United  States.  172  U.S.  434  (1899) 
(no  atempt  to  smuggle);  18  U.S.C.  §§  641  (1970)  (embezzlement  and  receipt  of 
public  money,  property  or  records,  but  no  attempt);  18  U.S.C.  §  659  (1970)  (theft 
and  receipt  of  interstate  shipment,  but  no  attempt). 

236.  185  N.Y.  497,  78  N.E.  169  (1906). 

237.  The  Court  of  Appeals  reasoned  that  "if  the  accused  had  completed  the  act 
which  he  attempted  to  do,  he  would  not  be  guilty  of  a  criminal  offense,"  and  on  this 
basis  concluded  that  he  could  not  be  gUilty  of  attempt.  185  N.Y.  at  502,  78  N.E. 
at  170.  In  reality,  however,  Jaffe's  conviction  should  have  been  upheld  since  the  case 
actually  involved  a  question  of  factual,  not  legal,  impossibility.  Jaffe  had  made  a 
mistake  with  respect  to  a  factual  attendant  circumstance;  he  had  thought  that  prop- 
erty that  was  not  stolen  was,  in  fact,  stolen.  Although  under  the  circumstances  of 
the  case,  the  property  had  legally  lost  its  stolen  character,  this  transition  should  only 
have  served  to  preclude  a  conviction  for  the  substantive  offense  but  not  for  a  convic- 
tion for  attempt.  The  authorities  are  in  general  agreement  that  factual  impossibility 
is  not  a  defense  to  attempt.  W.  LaFave  &  A.  Scott,  supra  note  14,  at  438-42.  As 
evidenced  by  Jaffe,  the  distinction  between  legal  and  factual  impossibility  is  unclear. 
The  appropriate  distinction  is  outlined  by  LaFave  and  Scott:  "'If  the  case  is  one  of 
legal  impossibility,  in  the  sense  that  what  the  defendant  set  out  to  do  is  not  criminal, 
then  the  defendant  is  not  guilty  of  attempt.  On  the  other  hand,  factual  impossibility, 
where  the  intended  crime  is  impossible  of  accomplishment  merely  because  of  some 
physical  impossibility  unknown  to  the  defendant,  is  not  a  defense."  Id.  at  439  (em- 
phasis added).  When  analyzed  in  this  context  the  distinction  is  apparent,  but  confu- 
sion has  developed  because  of  a  tendency  by  some  courts  to  classify  certain  cases  as 
legal  impossibility  simply  because  an  attendant  circumstance  simultaneously  involved 
what  appears  to  be  a  question  of  law.  For  example,  in  Jaffe  there  had  been  a  prior 
interception,  which  made  the  question  whether  the  property  was  stolen  one  of  law. 
But  as  to  the  defendant,  the  question  was  really  one  of  fact,  and  the  mistaken  belief 
did  not  make  his  conduct  any  less  blameworthy.  Analyzing  the  issue  in  precisely 
this  manner,  the  Supreme  Court  of  California  rightly  rejected  the  Jaffe  decision: 
"Even  though  we  say  that,  technically,  the  [goods]  .  .  .  were  not  'stolen'  nevertheless 
the  defendant  did  attempt  to  receive  stolen  property."  People  v.  Rojas,  55  Cal.  2d 
252,  258,  358  P.2d  921,  924,  10  Cal.  Rptr.  465,  468  (1961).  Accordingly,  mistake 
as  to  attendant  circumstances  should  never  be  a  defense  to  attempt.  This  is  the  view 
taken  by  the  Model  Penal  Code  and  sophisticated  legislatures  and  jurists.  See  notes 
239-41  infra.    Other  decisions  that  have  incorrectly  applied  the  impossibility  theory 


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1554  Michigan  Law  Review  [Vol.  74:1511 

proach  for  many  years,^^®  but  other  states  adopted  a  more  pragmatic 
approach  in  similar  situations  and,  either  by  judicial  interpretation^^* 
or  statutory  enactment,^*"  authorized  convictions  for  attempting  to 
receive  stolen  property.  Although  the  primary  rationale  for  the 
more  pragmatic  approach  is  the  blameworthy  character  of  the  fence's 
conduct  and  his  state  of  mind,^*^  such  an  approach  also  facilitates 
law  enforcement  efforts.  Rather  than  requiring  police  to  resort  to 
impracticable  techniques  that  would  necessitate  their  tracking  stolen 
goods  from  a  distance  as  they  pass  through  a  complex  redistribution 
chain,^*^  recognition  of  the  propriety  of  attempt  convictions  in  these 
circumstances  allows  authorities  to  intervene  immediately  and  to 
maintain  direct  control  as  the  property  passes  through  the  chain. 

By  legislation,  New  York  has  abandoned  the  impossibility  de- 


include  State  V.  Guffey,  262  S.W.2d  152  (Mo.  App.  1953)  (shooting  a  stuffed  deer 
believing  it  to  be  alive);  State  v.  Porter,  125  Mont.  503,  242  P.2d  984  (1952)  (at- 
tempting to  bribe  a  person  mistakenly  believed  to  be  a  juror). 

The  apparent  confusion  surrounding  the  impossibility  defense  and  the  crime  of 
attempt  has  attracted  the  attention  of  numerous  scholars.  See,  e.g.,  J.  Hall,  Gen- 
eral Principles  of  Criminal  Law  586-99  (2d  ed.  1960);  Elkind,  Impossibility  in 
Criminal  Attempts:  A  Theorist's  Headache,  54  Va.  L.  Rev.  20  (1968);  Enker, 
Impossibility  in  Criminal  Attempts — Legality  and  the  Legal  Process,  53  Minn.  L. 
Rev.  665  (1969);  Hughes,  One  Further  Footnote  on  Attempting  the  Impossible,  42 
N.Y.U.  L.  Rev.  1005  (1967);  Sayre,  Criminal  Attempts,  41  Harv.  L.  Rev.  821,  848- 
55  (1928). 

The  impossibility  doctrine  still  continues  to  trouble  the  courts.  For  two  recent 
cases  decided  on  questionable  grounds  see  United  States  v.  Hair,  356  F.  Supp.  339 
(D.D.C.  1973)  (defendant  told  that  television  set  was  stolen  property)  and  United 
States  V.  Berrigan,  482  F.2d  171  (3d  Cir.  1973)  (refusal  to  allow  conviction  of  "at- 
tempt to  smuggle  mail  in  or  out  of  prison  without  warden's  knowledge  or  consent" 
when  warden  knew  of  smuggling).  See  also  United  States  v.  Oviedo,  525  F.2d  881 
(5th  Cir.  1976)  (sale  of  substance  not  heroin  not  attempt). 

238.  See  People  v.  Jelke,  1  N.Y.2d  321,  329,  135  N.E.2d  213,  218,  152  N.Y.S.2d 
479,  484-86  (1956);  People  v.  Rollino,  37  Misc.  2d  14,  21-22,  233  N.Y.S.2d  580,  587- 
88  (Sup.  Ct.  1962). 

239.  People  v.  Rojas,  55  Cal.  2d  252,  257-58,  358  P.2d  921,  923-24,  10  Cal.  Rptr. 
465,  468-69  (1961);  Faustina  v.  Superior  Court,  174  Cal.  App.  2d  830,  833-34,  345 
P.2d  543,  545-46  (1959).  But  see  Booth  v.  State,  398  P.2d  863,  868-72  (Okla.  Crim. 
App.  1965);  Young  v.  Superior  Ct.,  253  Cal.  App.  2d  848,  853-54,  61  Cal.  Rptr.  355, 
359-60  (1967). 

240.  TTiese  statutes  have  not  focused  specifically  on  the  crime  of  receiving  stolen 
property  but  instead  have  paralleled  the  approach  of  the  Model  Penal  Code  by  au- 
thorizing attempt  convictions  whenever  an  actor  "purposely  engages  in  conduct  which 
would  constitute  the  crime  if  the  attendant  circumstances  were  as  he  believes  them 
to  be."  Model  Penal  Code  §  5.01  (l)(a)  (Proposed  Official  Draft  1962).  See. 
e.g.,  Conn.  Gen.  Stat.  Ann.  §  53a-49  (1971). 

241.  "In  all  of  these  cases  (1)  criminal  purpose  has  been  clearly  demonstrated, 
(2)  the  actor  has  gone  as  far  as  he  could  in  implementing  that  purpose,  and  (3)  as 
a  result,  the  actor's  'dangerousness'  is  plainly  manifested."  Model  Penal  Code  § 
5.01(a),  Comment,  at  31  (Tent.  Draft  No.  10,  1960). 

242.  See,  e.g.,  Copertino  v.  United  States,  256  F.  519  (3d  Cir.  1919)  (property 
merely  watched  by  police  retains  stolen  character). 


8669 


August  1976]        Criminal  Distribution  of  Stolen  Property  1555 

fense,^*^  but  the  law  of  other  states  in  this  area  generally  remains 
unsettled.^^^  Since  an  approach  authorizing  attempt  convictions  in 
receiving  cases  reflects  an  appropriate  standard  of  blameworthiness 
and  supports  a  necessary  investigative  technique,  it  is  to  be  hoped 
that  legislation  eliminating  the  impossibility  defense  in  fencing  situa- 
tions will  be  quickly  enacted  without  the  delay  associated  with  gen- 
eral penal  reform.  The  Model  Act,  illustratively,  expressly  author- 
izes attempt  convictions  in  the  receiving  context.^^^  Further,  since 
similar  investigative  techniques  would  facilitate  control  by  federal 
authorities  of  large-scale,  interstate  fencing  activity,^**  there  is  a 
need  for  congressional  enactment  of  an  appropriate  special  attempt 
provision  that  would  obviate  the  possibility  of  a  technical  defense 
based  on  legal  impossibility.-*^ 

Additional  legislation  could  also  be  drafted  to  facilitate  investiga- 
tions and  help  reduce  the  difficulties  prosecutors  confront  in  proving 
the  goods  are  "stolen."^*^     Since  legitimate  wholesale  and  retail 

243.  N.Y.  Penal  Law  §  110.10  (McKinney  Supp.  1975). 

244.  Because  very  few  jurisdictions  have  specifically  dealt  with  the  question  of 
legal  impossibility  in  the  receipt  of  stolen  property  context,  the  issue  has  not  been 
satisfactorily  resolved.  Accordingly,  there  is  the  danger  that  other  jurisdictions  will 
consider  Jaffe  well  reasoned.    See  Annot.,  37  A.L.R.3d  375  (1971);  note  237  supra. 

245.  See  Model  Theft  and  Fencing  Act  §§  2,  4(a)(1),  4(a)(2),  Appendix  B. 

246.  See  note  170  supra. 

lAl.  S.  1,  §  1001  proposes  the  creation  of  a  general  attempt  offense  and  the  elimi- 
nation of  the  defense  of  legal  or  factual  impossibility  whenever  the  crime  would 
"have  been  committed  had  the  circumstances  been  as  the  actor  believed  them  to  be." 

248.  The  need  for  federal  legislation  goes  beyond  reform  in  the  area  of  attempt. 
Presently,  federal  theft  legislation  is  usually  tied  to  some  aspect  of  interstate  com- 
merce; the  defendant  must  be  shown  to  have  so  transported,  or  at  least  so  caused 
the  transportation  of,  the  stolen  goods.  See,  e.g.,  18  U.S.C.  §  2314  (1970);  United 
States  V.  Scandifia,  390  F.2d  244  (2d  Cir.  1968),  vacated  on  other  grounds,  394  U.S. 
310  (1969).  This  causes  additional  proof  problems  at  trial.  It  also  causes  virtually 
insurmountable  probable  cause  problems  during  the  process  of  investigation,  particu- 
larly investigation  of  fences.  Informants  will  supply  intelligence  of  fencing  activity, 
but  they  are  not  often  attuned  to  the  proof  requirements  of  federal  law.  Under  pres- 
ent practices  and  legal  limitations,  it  is  difficult  to  convict  a  fence  on  federal  grounds, 
even  with  the  aid  of  such  extraordinary  tools  as  electronic  surveillance.  See  gener- 
ally Testimony  of  Special  Agent  Robert  G.  Sweeney,  Hearings  of  the  National 
Comm.  for  the  Review  of  Federal  and  State  Laws  Relating  to  Wiretapping  and  Elec- 
tronic Surveillance,  Vol.  2,  at  860-61  (May  20,  1975).  The  need  here  is  for  compre- 
hensive federal  fencing  legislation  patterned  after  either  18  U.S.C.  §  892  (1970) 
(loansharking)  or  18  U.S.C.  §  1955  (1970)  (syndicated  gambling),  neither  of  which 
makes  commerce  an  integral  part  of  the  offense.  See  Perez  v.  United  States,  402 
U.S.  146  (1971)  (holding  that  §  892  is  constitutional);  United  States  v.  Sacco,  491 
F.2d  995  (9th  Cir.  1974)  (§  1955  held  constitutional).  The  need  for  independent 
federal  legislation  is  underscored  by  the  interplay  of  other  aspects  of  the  problem. 
Often  the  states  that  have  comprehensive  theft  and  fencing  legislation  do  not  have 
the  necessary  investigative  tools  {e.g.,  wiretapping);  in  addition,  because  of  restrictive 
court  decisions,  federal-state  cooperation  is  seriously  inhibited.  See,  e.g..  People  v. 
Jones,  30  Cal.  App.  3d  852,  106  Cal.  Rptr.  749,  cert,  denied,  414  U.S.  804  (1973) 
(lawful  federal  wiretap  inadmissible  in  state  proceedings). 


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1556  Michigan  Law  Review  TVol.  74:1511 

dealers  apparently  play  an  important  role  in  theft  and  fencing,^'*®  it 
would  be  helpful  to  impose  on  them  a  duty  of  inquiry  as  to  the  source 
of  the  goods  they  purchase  and  to  criminalize,  under  appropriate 
standards,  the  possession  of  merchandise  with  altered  identification 
marks.  An  appropiate  duty  of  inquiry  would  permit  undercover 
police  to  offer  for  sale  allegedly  stolen  goods'^**  and  at  least  to  arrest 
dealers  who  purchased  without  making  a  proper  inquiry.  Assuming 
sufficient  corroborative  evidence  is  available,  noncomplying  mer- 
chants might  be  convicted  of  both  an  attempt  to  purchase  stolen 
property  and  a  failure  to  inquire,  regardless  of  the  innocent  character 
of  the  property  in  question. -^^  Of  course,  the  failure  to  inquire 
might  be  appropriately  graded  as  a  lesser  offense  than  attempted  re- 
ceipt of  stolen  property.^^^ 

249.  See  notes  45-49,  115-39,  145,  169-71  supra  and  accompanying  text. 

250.  The  investigation  would  have  to  be  carried  out  with  great  care,  since  entrap- 
ment is  an  obvious  potential  difficulty.  See  note  209  supra.  A  suggested  method 
would  include  the  use  of  agents  or  cooperative  informants  who  would  be  wired  with 
appropriate  electronic  surveillance  devices.  Since  the  "wired"  individual  consents  to 
the  use  of  such  a  device,  no  fourth  amendment  problem  is  posed.  See  Lopez  v. 
United  States,  373  U.S.  427,  437-40  (1963)  (wire  recorder);  On  Lee  v.  United  States, 
343  U.S.  747,  753-54  (1952)  (transmitter);  United  States  v.  White,  401  U.S.  745 
(1971).  Cf.  Rathbun  v.  United  States,  355  U.S.  107  (1957)  (telephone).  For  an 
illustration  of  the  creative  use  of  a  wired  informant  in  a  fencing  investigation  where 
the  informant  died  before  trial,  but  the  tapes  were  still  used,  see  United  States  v. 
Lemonakis,  485  F.2d  941,  948-49  (D.C.  Cir.  1973),  cert,  denied,  415  U.S.  989 
(1974).  A  merchant  who  fails  to  adhere  to  the  duty  could  also  be  caught  through 
the  use  of  legislatively  authorized  electronic  surveillance  measures  issued  pursuant  to 
a  court  order.  18  U.S.C.  §§  2516-2519  (1970).  See  notes  310-28  infra  and  accom- 
panying text.  Under  such  circumstances  a  "wired"  agent  could  establish  the  initial 
probable  cause  for  the  court  order. 

251.  Since  the  purpose  of  such  an  enactment  would  be  to  facilitate  investigative 
efforts,  the  mere  failure  to  make  inquiry  would  constitute  a  separate  offense,  and  the 
character  of  the  goods  would  be  immaterial.  Consequently,  a  merchant  who  fails  to 
make  appropriate  inquiry  with  respect  to  the  source  of  goods  would  act  at  his  peril. 

Hall  points  out  that  New  York  initially  utilized  a  similar  approach  by  enacting 
legislation  that  required  diligent  inquiry  into  the  character  of  the  goods  and  later  cre- 
ated a  rebuttable  presumption  of  knowledge  of  the  goods'  stolen  character  whenever 
there  had  been  failure  to  make  diligent  inquiry.  J.  Hall,  supra  note  5,  at  211-12. 
New  York's  statute  did  not,  however,  make  the  mere  failure  to  inquire  a  separate  sub- 
stantive offense.  Id.  at  212-13.  See  People  v.  Rosenthal,  197  NY.  394  (1910). 
affd.,  226  U.S.  260  (1912)  (failure  to  inquire  in  receipt  of  stolen  property  by  junk 
dealer  not  violation  of  liberty  of  contract  or  equal  protection).  .Apparently,  Hall  did 
not  recognize  the  investigative  significance  that  such  a  statute  might  have,  for  al- 
though he  proposed  to  make  the  failure  to  inquire  a  separate  offense  applicable  to 
designated  retail  and  wholesale  dealers,  he  apparently  would  not  have  allowed  a  con- 
viction if  the  items  were  not,  in  fact,  stolen.    J.  Hai,l,  supra  note  5,  at  224. 

252.  As  an  alternative  to  making  failure  to  inquire  an  offense,  a  statutory  pre- 
sumption could  be  enacted  which  would  give  rise  to  a  presumption  of  knowledge  of 
the  goods'  stolen  character  upon  proof  of  a  dealer's  failure  to  make  inquiry  with  re- 
spect to  source.  See  notes  344  infra  and  accompanying  text.  There  are,  however, 
constitutional  limitations  surrounding  presumptions  of  this  type.  See  notes  351-54, 
360-88  infra  and  accompanying  text. 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1557 

A  law  proscribing  the  possession  of  altered  merchandise  would 
function  in  a  somewhat  different  manner.  As  provided  by  section 
3  of  the  Model  Act,-°^  possession  of  altered  property  itself  would 
be  considered  a  separate  crime;  in  addition,  it  could  be  treated  as 
a  strict  liability  offense. ^^^  The  Model  Act  also  provides  appropriate 
gradation  distinctions  since  possession  of  altered  goods  may  be  less 
blameworthy  than  possession  of  stolen  property.^'^ 

Obviously,  such  a  proposal  is  useful  only  if  sufficient  numbers 
of  products  are  manufactured  with  distinctive  identification  marks. 
For  this  reason,  legislatures  should  seriously  consider  requiring  se- 
rialization of  products  where  technologically  feasible.-^®  In  the  past, 
state  legislatures  have  not  refrained  from  imposing  similar  require- 
ments upon  businessmen  to  protect  state  revenues.  For  example, 
the  stamping  of  cigarette  packages  is  routinely  required  in  most 
states. -^^  State  revenues  are  similarly  threatened  by  theft  and  fenc- 
ing, since  fences  frequently  sell  stolen  goods  without  collecting  or 
reporting  a  sales  tax  and  victimized  merchants  inevitably  report 
lower  profits  for  income  tax  purposes. "^^®  If  mandatory  serialization 
is  too  far-reaching,  legislatures  might  consider  offering  businesses 
tax  credits  in  return  for  voluntary  serialization. 

In  any  case,  both  prosecutors  and  police  are  in  desperate  need 
of  a  modernized  approach  to  help  them  prove  receipt  of  "stolen" 
property.  Serialization  accompanied  by  accurate  recording  proce- 
dures would  help  in  the  identification  of  stolen  property,  and  espe- 
cially in  jurisdictions  that  do  not  recognize  a  crime  of  attempted  re- 
ceipt of  stolen  property,   would  also  help  police  trace  property 

253.  See  Model  Theft  and  Fencing  Act  §  3,  Appendix  B.  Note  that  the 
Model  Act  would  not  make  possession  of  altered  property  a  strict  liability  offense. 
See  note  2,  Appendix  B. 

254.  Strict  liability  has  traditionally  received  constitutional  approval  in  the  regu- 
latory offense  area.  For  a  detailed  discussion  of  the  constitutional  limitations  on 
strict  liability  offenses  in  general,  see  notes  412-25  infra  and  accompanying  text. 
Note  that  the  proposed  legislation  should  provide  an  exemption  for  cases  when  the 
dealer  has  received  the  manufacturer's  express  permission  to  make  alterations  or 
when  such  activity  is  considered  impliedly  approved  by  prevailing  commercial  stand- 
ards. 

Similar  legislation,  but  of  a  more  limited  character,  has  been  enacted  in  California 
and  Illinois.  California's  statute  does  not  provide  for  strict  liability,  and  Illinois'  is 
directed  at  a  very  limited  range  of  activity.  See  Cal.  Penal  Law  §  53 7e  (West  Supp. 
1975);  III.  Ann.  Stat.  ch.  38,  §  50-31  (Smith-Hurd  1970). 

255.  Compare  Model  Theft  and  Fencing  Act  §  3(b),  with  §§  2(b),  4(b),  Ap- 
pendix B. 

256.  Legislation  could  be  designed  that  would  create  a  hearing  board  structure  to 
review  questions  of  technological  and  economic  feasibility. 

257.  See,  e.g.,  Cal.  Rev.  &  Tax  Code  §§  30161,  30162  (West  1970). 

258.  See  Cargo  Theft  and  Organized  Crime  8. 


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1558  Michigan  Law  Review  [Vol.  74:1511 

through  complex  redistribution  systems  without  actually  intervening, 
and  thus  without  depriving  the  goods  of  their  "stolen  merchandise" 
status.  In  addition,  since  sophisticated  receivers  can  remove  serial 
numbers,  the  passage  of  statutes  criminalizing  either  the  possession 
of  altered  merchandise  or  the  failure  to  inquire  is  necessary. 

c.  The  state  of  mind  requirement.  In  addition  to  establishing 
that  the  property  was  received  and  stolen,  the  prosecution  must  also 
establish  that  the  fence  knew  the  goods  were  stolen.^'*®  In  the  fed- 
eral courts  the  prosecution  need  not  prove  that  the  defendant  knew 
the  stolen  goods  were  part  of  interstate  commerce,^®"  since  this  ele- 
ment has  uniformly  been  regarded  as  a  purely  jurisdictional  require- 
ment.^®^ Although  for  many  years  the  circuits  were  split  over 
whether  knowledge  of  the  jurisdictional  element  must  be  established 
in  conspiracy  cases,^®^  the  Supreme  Court  recently  facilitated  con- 

259.  W.  LaFave  &  A.  Scott,  supra  note  14,  at  685-88. 

260.  The  interstate  character  of  the  transaction  must  be  established  under  several 
of  the  federal  theft  statutes.  There  is,  however,  a  difference  between  the  character 
of  the  interstate  element  in  several  of  the  stiitutes.  In  18  U.S.C.  §  659  (1970),  for 
example,  the  goods  must  be  taken  from  interstate  commerce,  while  in  18  U.S.C.  § 
2313  and  §  2315  (1970)  the  goods  must  have  moved  in  interstate  commerce  after 
having  been  stolen. 

261.  See.  e.g..  United  States  v.  Jennings,  471  F.2d  1310,  1312  (2d  Cir.),  cert,  de- 
nied, 411  U.S.  935  (1973);  United  States  v.  Tannuzzo,  174  F.2d  177,  180  (2d  Cir.), 
cert,  denied,  338  U.S.  815  (1949). 

262.  TTie  underlying  argument  of  those  decisions  that  have  required  proof  of  the 
defendant's  knowledge  of  the  jurisdictional  elements  in  conspiracy  cases  was  originally 
stated  by  .Tudge  Learned  Hand:  "While  one  may,  for  instance,  be  guilty  of  running 
past  a  traffic  light  of  whose  existence  one  is  ignorant,  one  cannot  be  guilty  of  con- 
spiring to  iTJn  past  such  a  light,  for  one  cannot  agree  to  run  past  a  light  unless  one 
supposes  that  there  is  a  light  to  run  past."  United  States  v.  Crimmins,  123  F.2d  271, 
273  (2d  Cir.  1941).  Accordingly,  "[t]he  distinction  between  the  scienter  component 
of  the  conspiracy  and  substantive  charges  arises  from  the  notion  that  although  an 
individual  may  commit  some  crimes  unwittingly  he  cannot  conspire  to  commit  a  spe- 
cific crime  unless  he  is  aware  of  all  the  elements  of  the  crime."  United  States  v. 
DeMarco,  488  F.2d  828,  832  (2d  Cir.  1973). 

The  Hand  approach,  however,  was  widely  criticized  by  both  the  courts  and  the 
commentators.  See  Model  Penal  Code  §  5.03,  Comment  at  110-13  (Tent.  Draft 
No.  10,  1960);  Developments  in  the  Law — Criminal  Conspiracy,  72  H.^v.  L.  Rev. 
920,  937-39  (1959);  1  Working  Papers  of  the  National  Commn.  on  Reform  of 
THE  Federal  Criminal  Laws  388-89  (1970)  [hereinafter  Working  Papers];  Re- 
form CoMMN.,  §§  203,  204,  1004;  United  States  v.  Polesti,  489  F.2d  822,  824  (7th 
Cir.  1973). 

The  Model  Penal  Code,  while  recognizing  the  conceptual  basis  underlying  the 
Hand  formulation,  proposed  an  easy  legislative  solution  to  the  problem.  TTie  drafts- 
men suggested  that  the  interstate  requirement  be  viewed  "not  as  an  element  of  the 
respective  crimes  but  frankly  as  a  basis  for  establishing  federal  jurisdiction."  Model 
Penal  Code  §  5.03,  Comment  at  116  (Tent.  Draft  No.  10,  1960).  In  this  manner, 
the  problem  is  overcome  by  simply  omitting  the  jurisdictional  requirement  from  the 
definition  of  the  basic  crime.  TTie  jurisdictional  elements  are  listed  in  separate  sec- 
tions. The  Reform  Commission  accepted  this  proposal,  and  accordingly  proceeded 
to  segregate  the  interstate  commerce  requirement  from  the  remaining  elements  of  the 
federal  statutory  offenses.  See,  e.g.,  Reform  Commn.,  §§  201,  203,  204,  1732,  1740. 
This  principle  has  been  followed  in  S.l.    See.  e.g.,  §§  201(c),  1731(c),  1733. 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1559 

spiracy  prosecutions  by  rejecting  the  older  analysis  that  required  such 
proof. ^^"^  Despite  this  reform  in  the  federal  courts,  federal  and  state 
prosecutors  still  face  the  difficult  task  of  proving  the  remaining  state 
of  mind  requirements. 

(i).  The  appropriate  mens  rea.  Although  the  term  "knowl- 
edge" suggests  an  actual  awareness  of  attendant  circumstances,^^^  if 
"receiving  statutes  required  absolute  certainty,  there  would  be  few 
convictions,  for  one  seldom  knows  anything  to  a  certainty,  and  the 
receiver  in  particular  is  careful  not  to  learn  the  truth. "^"^  Accord- 
ingly, most  jurisdictions  require  the  prosecution  to  show  only  that 
the  defendant  believed  the  goods  were  stolen,  not  that  he  knew  this 
fact  with  certainty. ^^®  Even  when  framed  in  these  terms,  however, 
jurisdictions  have  been  unable  to  agree  whether  an  objective  test^^'^ 

263.  United  States  v.  Feola,  420  U.S.  671  (1975).  The  Supreme  Court  held 
"that  where  knowledge  of  the  facts  giving  rise  to  federal  jurisdiction  is  not  necessary 
for  conviction  of  a  substantive  offense  embodying  a  mens  rea  requirement,  such 
knowledge  is  equally  irrelevant  to  questions  of  responsibility  for  conspiracy  to  com- 
mit the  offense."  420  U.S.  at  696.  Justice  Blackmun  quoted  the  Government's  re- 
sponse to  the  traffic  light  analogy:  "The  Government  rather  effectively  exposes  the 
fallacy  of  the  Crimmins  traffic  light  analogy  by  recasting  it  in  terms  of  a  jurisdic- 
tional element.  The  suggested  example  is  a  traffic  light  on  an  Indian  reservation. 
Surely,  one  may  conspire  with  others  to  disobey  the  light  but  be  ignorant  of  the  fact 
that  it  is  on  the  reservation."    420  U.S.  at  690  n.24. 

In  his  opinion  for  the  majority.  Justice  Blackmun  emphasized  that  the  first  issue 
is  the  proper  characterization  of  the  element,  but  that  once  it  is  characterized  as  juris- 
dictional, then  the  requirement  is  irrelevant  to  the  dual  purposes  of  conspiracy  the- 
ory: (1)  the  "protection  of  society  from  the  dangers  of  concerted  criminal  activity," 
and  (2)  the  initiation  of  "preventive  action"  against  the  commission  of  crimes  that 
are  still  in  a  relatively  inchoate  stage.  420  U.S.  at  693-94.  Accordingly,  Justice 
Blackmun  concluded  that,  "[gjiven  the  level  of  criminal  intent  necessary  to  sustain 
conviction  for  the  substantive  offense,  the  act  of  agreement  to  commit  the  crime  is 
no  less  opprobrius  and  no  less  dangerous  because  of  the  absence  of  knowledge  of  a 
fact  unnecessary  to  the  formation  of  criminal  intent."    420  U.S.  at  693. 

264.  "A  person  acts  knowingly  with  respect  to  a  material  element  of  an  offense 
when: 

(1)  if  the  element  involves  the  nature  of  his  conduct  or  the  attendant  circum- 
stances, he  is  aware  that  his  conduct  is  of  that  nature  or  that  such  circumstances  ex- 
ist ..  .  ."  Model  Penal  Code  §  2.02(b)  (Proposed  Official  Draft,  1962)  (empha- 
sis added).  Note  that  the  Model  Penal  Code  modifies  its  scienter  requirement  in 
receipt  of  stolen  property  cases.  See  Model  Penal  Code  §  223.6(1)  (Proposed  Offi- 
cial Draft,  1962)  ("or  believing  that  [the  property]  has  probably  been  stolen"). 
Courts  are  split  as  to  whether  suspicion  is  sufficient.  Compare  Commission  of  Pub. 
Safety  v.  Treadway,  —  Mass.  — ,  330  N.E.  468,  472  (1975)  (suspicion  enough), 
with  State  v.  Goldman,  65  N.J.L.  394,  398,  47  A.  641,  643  (1900)  (suspicion  not 
enough). 

265.  W.  LaFave  &  A.  Scott,  supra  note  14,  at  685. 

The  receivers  of  stolen  goods  almost  never  "know"  that  they  have  been 
stolen,  in  the  sense  that  they  could  testify  to  it  in  a  court  room.  The  business 
could  not  be  so  conducted,  for  those  who  sell  the  goods — the  "fences" — must 
keep  up  a  more  respectable  front  than  is  generally  possible  for  the  thieves.  Nor 
are  we  to  suppose  that  the  thieves  will  ordinarily  admit  their  theft  to  the  receiv- 
ers: that  would  much  impair  their  bargaining  power. 
United  States  v.  Werner,  160  F.2d  438,  441  (2nd  Cir.  1947). 

266.  W.  LaFave  &  A.  Scott,  supra  note  14,  at  685. 

267.  A  number  of  states  have  adopted  legislation  which  expressly  sets  out  an  "ob- 


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1560  Michigan  Law  Review  [Vol.  74:1511 

or  subjective  test^^*  of  knowledge  or  belief  is  appropriate. 

Since  prosecutors  face  difficult  evidentiary  burdens,  some  miti- 
gation of  the  stringent  subjective  test  is  warranted.  Indeed,  the  so- 
phistication of  modem  fencing  operations  compounds  the  difficulties 
already  inherent  in  proving  even  a  defendant's  belief  as  to  whether 
his  goods  are  stolen.-^^  A  possible  response  to  these  difficulties 
would  be  the  adoption  of  the  less  confining  objective  test.  Such  a 
standard  for  criminal  liability  might  be  appropriate  if  it  were  limited 
to  retail  and  wholesale  dealers. 

A  better  reform,  however,  would  be  the  adoption  of  a  reckless- 
ness standard,^''"  under  which  a  defendant  would  have  a  culpable 
state  of  mind  if  it  were  established  that  he  purchased  goods  despite 
being  aware  of  a  substantial  risk  that  the  property  had  been  stolen. ^^^ 

jective"  standard  of  state  of  mind.  Under  this  approach,  the  defendant  is  said  to 
have  knowledge  if  he  knew  or  should  have  known  of  the  goods'  stolen  character. 
See,  e.g.,  Ariz.  Rev.  Stat.  Ann.  §  13-621  (Supp.  1975).  A  few  courts  have  acknowl- 
edged that  an  objective  test  is  appropriate.  See,  e.g.,  Seymour  v.  State,  246  S.2d  155 
(Fla.  App.  1971).  This  standard  involves  the  imposition  of  a  strict  form  of  liability 
based  on  what  a  reasonable  person  would  have  known.  That  a  reasonable  person 
would  have  known  is  evidence  that  a  particular  person  did  know.  But  there  is  a 
world  of  legal  difference  between  circumstantial  evidence  of  a  fact  and  actual  knowl- 
edge of  the  fact  itself.  See  United  States  v.  Werner,  160  F.2d  438,  441-42  (2d  Cir. 
1947).  Of  course,  in  trial,  this  difference  would  tend  to  blur  during  the  process  of 
proof  and  the  jury  deliberations.  The  distinction,  however,  would  have  to  be  stated 
in  the  judge's  instruction. 

268.  The  majority  of  jurisdictions  have  adopted  the  subjective  approach  articu- 
lated by  Judge  Hand: 

[S]ome  decisions  even  go  so  far  as  to  hold  that  it  is  enough,  if  a  responsible 
man  in  the  receiver's  position  would  have  supposed  that  the  goods  were  stolen. 
That  we  think  is  wrong;  and  the  better  law  is  otherwise,  although  of  course  the 
fact  that  a  reasonable  man  would  have  thought  that  they  have  been  stolen,  is 
some  basis  for  finding  that  the  accused  actually  did  think  so.     But  that  the  jury 
must  find  that  the  receiver  did  more  than  infer  the  theft  from  the  circumstance 
has  never  been  demanded,  so   far  as  we  know;  and  to  demand  more  would 
emasculate  the  statute,  for  the  evil  against  which  it  is  directed  is  exactly  that: 
i.e.,  making  a  market  for  stolen  goods  which  the  purchaser  believes  to  have  prob- 
ably been  stolen. 
United  States  v.  Werner,  160  F.2d  438,  441-42  (2d  Cir.  1947)   (footnotes  omitted). 
While  recognizing  that  knowledge  may  be  inferred  from  circumstances  that  would 
give  a  hypothetical  reasonable  man  knowledge  of  the  goods'  stolen  character,  these 
jurisdictions  nevertheless  require  a  finding  of  actual  knowledge  on  the  part  of  the  par- 
ticular defendant  involved.     Any  instruction  suggesting  the  contrary  is  considered  to 
be  reversible  error.     See,  e.g.,  Schaffer  v.  United  States,  221  F.2d  17,  23  (5th  Cir. 
1955). 

269.  The  difficulties  involved  in  proving  knowledge  are  discussed  in  notes  274- 
328,  389-97  infra  and  accompanying  text. 

270.  See  Model  Theft  and  Fencing  Act  §  2  n.2.  Appendix  B. 

271.  The  Model  Penal  Code  defines  recklessness  as  follows: 

A  person  acts  recklessly  with  respect  to  a  material  element  of  an  offense 
when  he  consciously  disregards  a  substantial  and  unjustifiable  risk  that  the  mate- 
rial element  exists  or  will  result  from  his  conduct.  The  risk  must  be  of  such 
a  nature  and  degree  that,  considering  the  nature  and  purpose  of  the  actor's  con- 
duct and  the  circumstances  known  to  him,  its  disregard  involves  a  gross  devia- 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1561 

Use  of  a  recklessness  test  would  permit  partial  reconciliation  of  two 
somewhat  conflicting  aims  of  the  criminal  law.  First,  by  applying 
a  subjective  test,  a  recklessness  standard  would  hold  the  prosecu- 
tion to  a  higher  burden  of  proof  than  would  an  objective  test,  thus 
limiting  criminal  punishment  to  only  particularly  blameworthy  con- 
duct. Second,  such  a  standard,  although  not  as  favorable  to  the  prose- 
cution as  an  objective  test,  would  facilitate  the  prosecution  and  con- 
viction of  fences  since  authorities  would  not  be  required  to  prove 
actual  knowledge. 

An  even  more  sophisticated  refinement  would  be  to  incorporate 
the  recklessness  standard  into  a  continuum  that  would  vary  the  pre- 
scribed punishment  with  the  state  of  mind  proved  by  the  prosecution. 
Since  a  defendant  who  knowingly  purchased  stolen  property  is  more 
blameworthy  than  a  defendant  who  made  a  reckless  purchase,  dis- 
tinctions in  the  penalties  imposed  might  be  appropriate. ^^^  More 
importantly,  such  a  gradation  of  punishment  would  facilitate  both 
plea  bargaining  and  the  successful  prosecution  of  fences  whose  cases 
are  taken  to  trial.  For  example,  in  exchange  for  lighter  punishment, 
a  defendant  could  plead  guilty  to  a  lesser  fencing  offense  than  that 
for  which  he  might  have  been  convicted  had  the  case  gone  to  trial. 
Further,  in  cases  actually  tried,  jurors  would  no  longer  have  to  elect 
between  convicting  a  fence  of  one  offense  or  not  convicting  him  at 
all.  By  permitting  prosecutors  to  bring  separate  charges  alleging 
actual  knowledge  and  recklessness,  similar  to  the  procedure  in  many 
jurisdictions  where  prosecutors  charge  a  defendant  with  both  first- 
degree  and  second-degree  murder,  verdicts  could  more  closely  re- 
flect the  facts;  jurors  presumably  would  be  less  likely  to  acquit  a  de- 
fendant who  made  a  reckless  purchase  because  they  would  no  longer 
have  to  mete  out  the  same  punishment  as  they  would  to  a  person 
who  knowingly  purchased  stolen  goods. 

Thus  far,  however,  although  a  few  courts  have  used  the  language 
of  a  recklessness  standard,-'^*  no  jurisdiction  has  expressly  modified 
its  state  of  mind  requirement  to  include  a  recklessness  standard  or 

tion  from  the  standard  of  conduct  that  a  law-abiding  person  would  observe  in 

the  actor's  situation. 
Model  Penal  Code  §  2.20(c)   (Proposed  Official  Draft,  1962).     Under  S.   1,  "[a] 
person's  state  of  mind  is  reckless  with  respect  to:    (1)  an  existing  circumstance  if 
he  is  aware  of  a  risk  that  the  circumstance  exists  but  disregards  the  risk  .  .  .  ." 
§  303(c). 

272.  For  a  more  detailed  discussion  of  gradation  principles,  see  notes  450-67  infra 
and  accompanying  text. 

273.  See  United  States  v.  Brawer,  482  F.2d  117,  126-27  (2d  Cir.  1973),  affd., 
496  F.2d  703  (2d  Cir.  1974)  (defendant  acted  with  reckless  disregard  by  consciously 
avoiding  learning  the  truth). 


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1562  Michigan  Law  Review  [Vol.  74:1511 

legislated  a  comprehensive  state  of  mind  continuum  correlating  pun- 
ishment and  blameworthiness.  Consequently,  prosecutors  are  usu- 
ally left  with  the  unenviable  task  of  proving  defendants  had  an  actual 
belief  the  goods  purchased  were  stolen. 

(ii).  The  availability  of  direct  evidence  establishing  mens 
rea.  Proof  of  guilty  knowledge  under  existing  statutes  is  an  inher- 
ently difficult  task  because  a  sophisticated  fence  is  able  to  "erect  the 
most  elaborate  defenses. "^^*  A  professional  fence,  for  example, 
"legitimizes"  stolen  property  in  his  possession  to  make  its  positive 
identification  more  difficult  and  falsifies  sales  receipts  for  use  in  re- 
butting prosecutorial  attempts  to  establish  his  knowledge  that  the 
goods  were  stolen. ^'''^  Similarly,  a  master  fence  is  well-insulated 
from  the  complex  redistribution  process  he  operates,  and  thus  rarely 
leaves  readily  detectable  direct  evidence  that  can  be  used  to  establish 
the  requisite  state  of  mind.^^* 

Although  this  situation  is  dismaying,  legislative  action  can,  and 
sometimes  has,  provided  law  enforcement  officials  with  potentially 
powerful  evidence-gathering  techniques.  Most  important  are  vari- 
ous devices  to  encourage  informants  to  come  forward  and  the  ex- 
panded use  of  electronic  surveillance.  For  example,  the  use  of  im- 
munity grants  may  provide  a  viable  means  of  compelling  testimony 
from  informants,  despite  the  widespread  reluctance  of  thieves  to  tes- 
tify against  their  fences.^"  At  the  federal  level,  title  II  of  the  Or- 
ganized Crime  Control  Act  of  1970,  permits  judicial,  administrative, 
and  congressional  bodies  to  issue  orders  granting  immunity  in  ex- 
change for  testimony  with  appropriate  safeguards  for  individual  lib- 
erties.^^* A  grant  of  immunity  is  authorized  whenever  a  recalcitrant 
witness  refuses  to  divulge  information  important  to  the  public  inter- 

274.  Hearings  on  Fencing  4. 

275.  See  notes  132-38  supra  and  accompanying  text.  False  receipts,  in  particular, 
afford  the  offender  the  opportunity  to  create  his  own  evidence  by  establishing  that 
he  paid  the  market  value  price  for  the  merchandise.  See  generally  C.  Klockars,  su- 
pra note  12,  at  82  n.6. 

276.  See  notes  142-49  supra  and  accompanying  text. 

277.  "TTie  commentators,  and  this  Court  on  several  occasions,  have  characterized 
immunity  statutes  as  essential  to  the  effective  enforcement  of  various  criminal  stat- 
utes. As  Mr.  Justice  Frankfurter  observed,  .  .  .  such  statutes  have  'become  part  of 
our  constitutional  fabric.'"  Kastigar  v.  United  States,  406  U.S.  441,  447  (1972)  (ci- 
tations and  footnotes  omitted).    See  8  J.  Wigmore,  Evidence  §  2281  (3d  ed.  1940). 

For  a  good  summary  of  the  development  and  potential  effectiveness  of  immunity 
grants,  see  Blakey,  supra  note  148,  in  Task  Force  Report,  Organized  Crime  85-88. 

278.  18  U.S.C.A.  §§  6001-6005  (Supp.  1975).  See  Kastigar  v.  United  States,  406 
U.S.  441  (1972).  For  an  analysis  of  the  use  of  §  6002,  see  Testimony  of  H.  Peter- 
sen, Hearings  Before  a  Subcomm.  of  the  House  Comm.  on  Appropriations,  92d 
Cong.,  2nd  Sess.  544  (1972). 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1563 

est  and  claims  his  privilege  against  self-incrimination. ^^^  Once  im- 
munity has  been  granted,  the  witness  is  required  by  law  to  disclose 
whatever  information  is  requested,  but  none  of  his  testimony  may 
be  used  directly  or  indirectly  against  him  in  a  subsequent  criminal 
prosecution.^^"  This  so-called  use  inmiunity  of  the  federal  statute 
is  an  effective  investigative  technique,  for  a  witness  testifying  under 
it  has  a  strong  incentive  to  provide  the  prosecution  with  as  much  in- 
formation as  possible.  In  effect,  the  more  information  a  witness  pro- 
vides under  the  compulsion  of  an  order  to  testify,  the  more  difficult 
it  is  for  the  prosecution  to  gather  independently,  and  to  show  it  gath- 
ered independently,  evidence  to  convict  the  witness  of  the  underly- 
ing crime. ^®^  Failure  to  comply  with  the  order  to  testify  is  punish- 
able as  contempt,  subjecting  the  witness  to  a  potentially  prolonged 
period  of  imprisonment,^^^  and  a  grant  of  immunity  does  not  protect 

279.  18  U.S.CA.  §§  6002,  6003,  6004,  6005  (Supp.  1975). 

280.  18  U.S.CA.  §  6002  (Supp.  1975).  The  negative  implication  of  section 
6002  is  that  the  witness's  testimony  can  be  used  against  him  in  a  civil  suit.  See 
United  States  v.  Cappetto,  502  F.2d  1351,  1359  (7th  Cir.  1974).  For  a  detailed  dis- 
cussion of  civil  remedies  in  the  fencing  context,  see  notes  499-544  infra  and  accom- 
panying text.  Civil  consequences  were  encompassed  under  the  former  standard  trans- 
action immunity  language  ("penalty  or  forfeiture").  See,  e.g.,  Lee  v.  Civil  Aeronau- 
tics Bd.,  225  F.2d  950  (D.C.  Cir.  1955). 

281.  In  a  criminal  proceeding  brought  against  such  a  witness,  the  prosecution  may 
only  utilize  evidence  that  has  been  obtained  independently  of  the  subject's  testimony. 
See  note  280  supra  and  accompanying  text.  Generally,  a  use-immunized  witness  is 
entitled  to  a  copy  of  the  immunized  testimony.  In  re  Minkoff,  349  F.  Supp.  154 
(D.R.I.  1972).  Access  may  also  be  had  to  the  minutes  of  an  indicting  grand  jury. 
United  States  v.  Domau,  356  F.  Supp.  1091  (S.D.N.Y.  1973).  The  prosecution's  bur- 
den to  show  no  subsequent  use  may  not  be  met  with  conclusionary  assertions.  United 
States  V.  Seiffert,  463  F.2d  1089  (5th  Cir.  1972).  Proof  must  be  offered.  United 
States  V.  Seiffert,  357  F.  Supp.  801  (S.D.  Tex.  1973).  Mere  exposure  to  a  prosecutor 
has  been  held  to  warrant  dismissal  of  an  indictment.  See  United  States  v.  McDaniel, 
482  F.2d  305  (8th  Cir.  1973);  United  States  v.  Dornau,  359  F.  Supp.  684  (S.D.N.Y. 
1973).  This  seems  to  go  too  far  since  other  prosecutors  who  had  not  been  exposed 
to  the  testimony  could  handle  untainted  evidence.  Obviously,  the  government's  bur- 
den is  heavy,  but  it  is  not  insuperable.  See  Watergate:  Special  Prosecution 
Force  Report  208  (1975)  (filing  of  "taint"  papers  in  reference  to  John  Dean). 

282.  Federal  legislation  provides  that  a  noncomplying  witness  may  be  confined 
for  a  period  not  to  exceed  18  months.  28  U.S.C.  §  1826.  The  witness  may  obtain 
his  release  at  any  time  by  purging  himself  of  his  contempt.  His  confinement  may 
be  renewed  if  he  is  subsequently  called  upon  to  testify,  for  example,  before  a  new 
grand  jury,  and  he  again  refuses  to  comply.  See  Shillitani  v.  United  States,  384  U.S. 
364  (1966)  (dicta);  In  re  Grand  Jury  Subpoena  of  Alphonse  Persico,  522  F.2d  41 
(2d  Cir.  1975).  At  least  one  federal  court,  however,  has  expressed  dicta  to  the  effect 
that,  at  some  point,  prolonged  confinement  may  violate  a  person's  due  process  rights. 
See  United  States  v.  Doe,  405  F.2d  436  (2d  Cir.  1968).  New  Jersey,  too,  has  upheld 
prolonged  confinement  (four  years),  but  has  recognized  that  the  facts  of  each  case 
must  determine  its  resolution.  Catena  v.  Seidl,  65  N.J.  257,  262,  321  A.2d  225,  228 
(1974)  stated:  "The  legal  justification  for  commitment  for  civil  contempt  is  to  secure 
compliance.  Once  it  appears  that  the  commitment  has  lost  its  coercive  power,  the 
legal  justification  for  it  ends  and  further  confinement  cannot  be  tolerated."  The  test 
used  by  the  court  to  determine  whether  confinement  should  end  was  whether  there 


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1564  Michigan  Law  Review  [Vol.  74:1511 

a  witness  from  prosecution  for  perjury.^*^ 

Immunity  grants  are  also  routinely  authorized  by  state  legisla- 
tion.^®^ Nevertheless,  despite  the  Supreme  Court's  decision  in  Kas- 
tigar  V,  United  States,^^^  which  held  that  the  federal  "use  immunity" 
statute  is  coextensive  with  the  scope  of  the  fifth  amendment's  priv- 
ilege against  self-incrimination,^^®  most  state  legislation  only  author- 
izes prosecutors  to  grant  witnesses  "transaction  immunity,"  or  protec- 
tion from  prosecution  for  any  crime  to  which  the  compelled  testimony 
relates.-'"  Transaction  immunty  offers  considerably  broader  protec- 
tion than  that  required  by  the  fifth  amendment  privilege  and  is  less 
effective  than  use  immunity  as  an  investigative  tool.  Transaction  im- 
munity provides  no  inducement  to  the  witness  to  provide  maximum 
information  since  it  acts  as  an  "immunity  bath":  A  witness  is  always 
immune  from  prosecution  for  the  underlying  offense  once  he  testi- 
fies, regardless  of  how  much  useful  evidence  he  provides.^**  Fur- 
ther, a  grant  of  transaction  immunity  in  a  fencing  investigation  may 

was  "no  substantial  likelihood"  that  the  witness  would  testify.  65  N.J.  at  262,  321 
A.2d  at  228.  For  subsequent  developments  in  Catena  see  N.Y.  Times,  Aug.  20.  1975. 
at  1,  col.  5  (late  city  ed.)  (Gerardo  Catena  ordered  released  from  confinement  for 
civil  contempt)  and  17  Crim.  L.  Rptr.  2497  (1975). 

283.  See  18  U.S.C.A.  §  6002  (Supp.  1975).  Until  recently,  the  perjury  sanction 
has  been  of  limited  effectiveness  because  of  the  traditional  difficulties  involved  in 
proving  a  violation.  See  Blakey,  supra  note  148,  in  Task  Force  Report,  Or- 
ganized Crime  88-91.  This  problem  has  been  ameliorated  by  the  passage  of  legisla- 
tion that  requires  only  "proof  that  the  defendant  while  under  oath  made  irreconcil- 
ably contradictory  declarations  material  to  the  point  in  question  .  .  .  ."  18  U.S.C.A. 
§  1623  (Supp.  1975).  The  cases  also  make  it  clear  that  the  immunity  attaches  only 
to  truthful  testimony;  untruthful  responses  may  be  used  against  the  witness,  for  ex- 
ample, to  cross-examine  and  incriminate  him  under  another  charge.  See,  e.g..  United 
States  v.  Tramunti,  500  F.2d  1334  (2d  Cir.  1974). 

284.  A  comprehensive  list  of  state  immunity  legislation  is  provided  in  8  J.  Wig- 
more,  supra  note  277,  §  2281,  at  495  n.ll.  Thirty  three  states  now  provide  for  im- 
munity in  the  fencing  area.  The  National  Assn.  of  Attorneys  General,  Or- 
ganized Crime  Control  Legislation  133-41  (1974). 

285.  406  U.S.  441  (1972). 

286.  406  U.S.  at  453. 

287.  See,  e.g.,  Cal.  Penal  Code  §  1324  (West  1972).  Only  three  states  cur- 
rently provide  for  the  granting  of  "use  immunity."  La.  Rev.  Stat.  Ann.  §  15.468 
(1973);  N.J.  Stat.  Ann.  §  2  A.  81-17.3  (1968);  Ohio  Rev.  Code  Ann.  §  2945.44 
(Page  1975).  The  New  Jersey  approach  has  been  sustained  as  constitutional.  See 
Zicarelli  v.  New  Jersey  State  Commn.  of  Investigation,  406  U.S.  472  (1972). 

288.  Once  a  witness  has  been  granted  transactional  immunity,  his  cooperation  is 
by  no  means  assured.  See,  e.g.,  Giancana  v.  United  States,  352  F.2d  921  (7th  Cir.), 
cert,  denied,  382  U.S.  959  (1965).  The  reluctant  witness  may  provide  the  govern- 
ment with  some  evidence,  but  not  enough  to  sustain  a  conviction.  He  is,  of  course, 
subject  to  the  contempt  sanction,  but  it  is  effective  only  if  the  government  can  estab- 
lish that  he  is  still  withholding  information.  For  a  discussion  of  how  some  of  those 
who  attended  the  infamous  Appalachian  gathering  handled  subsequent  immunity 
grants  through  evasive  answers,  see  United  States  v.  Bufalino,  285  F.2d  408,  418  n.27 
(2d  Cir.  1960). 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1565 

require  a  decision  to  forego  prosecuting  a  thief  and  instead  to  convict 
a  fence,  a  decision  many  law  enforcement  agencies  appear  reluctant 
to  make.^*'*  No  doubt  this  aversion  reflects  outmoded  priorities  that 
should  be  changed, ^^"  but  since  police  often  can  independently 
gather  sufficient  evidence  to  prosecute  thieves  successfully,  the  di- 
lemma could  be  eliminated  altogether  by  enacting  legislation  author- 
izing the  granting  of  "use  immunity,"^®  ^  as  is  provided  by  Section 
12(b)  of  the  Model  Act.2«2 

Whether  testimony  elicited  through  the  use  of  an  immunity  grant 
can  provide  direct  evidence  establishing  a  fence's  culpable  state  of 
mind  depends  upon  the  thief's  ability  to  give  a  detailed  account  of 
his  transactions  with  the  fence.  Sometimes  thieves  do  not  know  the 
identity  of  their  fences,^®^  but  this  obstacle  can  be  overcome  by  a 
series  of  immunity  grants  used  to  climb  the  chain  of  command  of 
sophisticated  fencing  operations.  Inevitably,  even  a  well-insulated 
master  fence  can  be  convicted.^®* 

Regardless  of  their  potential  as  investigative  tools,  the  effective- 
ness of  immunity  grants  is  considerably  hampered  in  many  jurisdic- 
tions by  courts  suspicious  of  the  credibility  of  testimony  favorable 
to  the  prosecution  given  by  a  witness  with  an  obvious  interest  in  es- 
caping punishment. ^^^    These  courts  have  created  the  so-called  cor- 

289.  The  reluctance  of  law  enforcement  authorities  to  make  this  policy  decision 
is  suggested  by  the  widespread  practice  of  tolerating  fencing  operations  in  exchange 
for  information  concerning  theft  activity.  See  note  61  supra  and  accompanying  text. 
This  may  be  because  "the  most  commonly  used  measure  of  police  performance  is  the 
rate  at  which  crimes  are  'cleared'  by  arrest."  C.  Klockars,  supra  note  12,  at  28. 
Given  the  importance  of  clearance  by  arrest  statistics,  the  police  may  not  be  inclined 
to  grant  a  thief  immunity,  since  the  fence  who  might  be  convicted  is  usually  capable 
of  producing  a  greater  number  of  theft  arrests. 

290.  See  notes  15-49  supra  and  accompanying  text. 

291.  See  note  280  supra  and  accompanying  text. 

292.  See  Model  Theft  and  Fencing  Act  §  12(b),  Appendix  B. 

293.  See  notes  142-43,  163-66  supra  and  accompanying  text. 

294.  In  organized  crime  cases,  however,  witnesses  may  be  completely  intimidated 
by  the  threat  of  physical  injury.  See  note  148  supra.  Fear  of  "underworld  reprisals," 
however,  will  not  warrant  refusal  to  testify  before  a  grand  jury.  See  Latona  v. 
United  States,  449  F.2d  121  (8th  Cir.  1971).  On  the  federal  level  this  situation  has 
been  somewhat  ameliorated  by  provisions  of  the  Organized  Crime  Control  Act  of 
1970  that  were  designed  to  afford  maximum  protective  cover  to  potential  witnesses. 
18  U.S.C.  §§  6001-005  (1970)  and  28  U.S.C.  §  1826  (1970).  The  program  is  ad- 
ministered by  the  United  States  Marshall  Service.  The  number  of  witnesses  under 
protection  runs  to  approximately  100  per  day.  The  "increasing  number  of  major 
crime  figures  who  are  volunteering  to  serve  as  witnesses  is  an  indication  of  the  suc- 
cess of  this  program."  Hearings  Before  a  Subcomm.  of  the  House  Comm.  on  Ap- 
propriations, 93  Cong.,  1st  Sess.  1072  (1973).  See  How  Business  Shelters  Witnesses 
from  the  Mob,  Nation's  Business,  August,  1973,  at  20. 

295.  The  Supreme  Court  has  characterized  accomplice  testimony  as  "inevitably 
suspect"  and  unreliable.    Bruton  v.  United  States,  391  U.S.  123,  136  (1968). 


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1566  Michigan  Law  Review  [Vol.  74:1311 

roboration  rule  that  requires  either  a  cautionary  jury  instruction  call- 
ing for  care  in  evaluating  such  testimony  or  a  directed  verdict  of  ac- 
quittal whenever  the  testimony  of  an  accomplice  has  not  been  cor- 
roborated.^^" Although  initially  conceived  as  "merely  ...  a  [dis- 
cretionary] counsel  of  caution  given  by  the  judge  to  the  jury,"^®^  the 
practice  has  evolved  into  a  strict  rule  of  law  in  some  jurisdictions.^®^ 
Fortunately  for  prosecutors,  however,  a  number  of  jurisdictions  have 
narrowly  circumscribed  application  of  the  corroboration  rule  by 
technically  limiting  the  term  "accomplice"  to  those  criminals  subject  to 
indictment  for  the  same  crime  with  which  the  defendant  is  charged. 
In  some  receiving  cases,  this  reasoning  continues,  the  corroboration 
rule  is  not  apphcable  since  a  thief  is  not  a  receiver's  accomplice;  he 
has  instead  technically  committed  a  separate  offense  of  theft  and 
therefore  is  not  subject  to  indictment  for  the  crime  of  receiving. 
According  to  other  courts,  however,  this  view  is  patently  superficial 
since  the  conduct  of  both  criminals  is  necessary  for  successful  com- 
mission of  the  theft  and  the  receiving,  and  the  testifying  witness  still 
has  an  interest  in  escaping  punishment  by  providing  testimony  favor- 
able to  the  prosecution.-®^  Regardless  of  which  approach  is  taken,  the 
ultimate  result  on  the  evidentiary  issue  is  frequently  the  same,  however, 
because  even  those  jurisdictions  that  narrowly  define  "accomplice" 
recognize  an  exception  and  apply  the  corroboration  rule  whenever 
there  has  been  a  prior  relationship  between  the  fence  and  the  thief.^®" 
Given  the  number  of  fences  who  have  regular  contacts  with  thieves 
and  the  high  volume  of  the  "steal-to-order"  business,^"^  the  corrobo- 
ration doctrine  is  obviously  a  potential  problem  in  the  prosecution 
of  all  large-scale  fencing  activity.'"^ 

296.  W.  LaFave  &  A.  Scott,  supra  note  14,  at  691;  7  J.  Wigmore,  supra  note 
277,  §  2056.  An  early  discussion  of  this  problem  in  the  fencing  context  is  provided 
in  J.  Hall,  supra  note  5,  at  176-85.  Massachusetts  has  gone  one  step  further.  Ac- 
complice testimony  need  not  be  corroborated.  Commonwealth  v.  French,  357  Mass. 
356,  395  (1970).  But  by  statute,  Mass.  Ann.  Laws  ch.  233,  §  201  (1970),  immu- 
nized testimony  must  be.  See  Commonwealth  v.  DeBrosky.  —  Mass.  — ,  297  N.E 
2d  496  (1973). 

297.  7  J.  Wigmore,  supra  note  277,  §  2056,  at  315  (emphasis  original). 

298.  W.  at  319-21. 

299.  See  Annot.,  53  A.L.R.2d  817,  832-38  (1957). 

300.  See  id.  at  838-46.  Federal  law  is  reviewed  in  Stephenson  v.  United  States, 
211  F.2d  702,  704-05  (9th  Cir.  1954)  (plain  error  to  fail  to  give  instruction). 

301.  See  notes  110,  139,  140,  145-46  supra  and  accompanying  text. 

302.  More  than  theft  or  receiving  is  involved.  If  there  is  a  prior  relationship, 
it  is  possible  that  the  receiver  is  guilty  of  conspiracy  to  steal  and  receiving  rather 
than  theft  or  receiving.  See  State  v.  VanderLave,  47  N.J.  Super.  483,  487,  136  A.2d 
296,  298  (1957),  affd.,  27  N.J.  313,  142  A. 2d  609  (1958),  where  the  court  said: 

The  conspiratorial  role  of  appellant,  alleged  and  proven  by  the  State,  tran- 
scended the  function  of  a  receiver  of  stolen  goods,  even  one  with  foreknowledge 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1567 

These  difficulties  could  be  avoided  if  courts  and  legislatures 
would  recognize  that,  although  an  accomplice's  testimony  is  often  de- 
serving of  skeptical  treatment,  the  considerations  that  gave  rise  to 
the  corroboration  rule  no  longer  carry  much  force,^**^  and  that  cred- 
ibility should  be  an  issue  ultimately  left  to  the  jury.^*'*  The  federal 
courts,  for  example,  have  correctly  decided  that  an  absolute  bar 
against  convictions  based  upon  an  accomplice's  uncorroborated  testi- 
mony is  inappropriate  since  the  defendant's  rights  are  adequately 
protected  by  the  required  cautionary  instruction.^''^  Similar  action  by 
state  legislatures  would  facilitate  the  conviction  of  fences  by  removing 
a  major  obstacle  to  the  prosecution's  use  of  insiders  to  establish  the 
requisite  state  of  mind.^""  Fencing  reform  legislation  that  abolishes 
the  corroboration  rule  to  the  extent  that  it  requires  a  directed  verdict 
of  acquittal  would  obviate  the  need  for  the  judiciary  to  draw  what 
are  solely  formal  distinctions.  But  if  such  reform  legislation  is  to 
be  effective,  it  must  not  preserve  the  directed  verdict  where  there  has 
been  a  prior  conspiracy  or  some  participation  by  the  receiver  in  the 
larceny.^"^   Such  an  exception  is  a  potentially  embarrassing  loophole 

of  the  intended  theft.  The  conspiracy  plan  here  was  one  of  continuity;  the  pri- 
mary thief  and  the  appellant  agreed  upon  details  of  the  unlawful  design  and  its 
modus  operandi;  it  is  not  an  exaggeration  to  say  that  the  proof  was  susceptible 
of  a  finding  that  appellant  had  participated  in  supervising  the  detail,  particularly 
the  timing,  of  certain  larcenies,  and  showed  a  selectivity  in  pointing  out  the  type 
and  quantity  of  material  which  should  be  stolen  for  his  use,  complaining  at  one 
time  that  drums  of  stolen  material  were  not  filled  to  his  liking  .  .  .  and  in  other 
respects  the  conspirators  were  shown  to  have  been  en  rapport,  not  in  the  naked 
buy  and  sell  relationship  of  a  thief  and  his  receiver,  but  in  the  clandestine  and 
consultative  concert  of  planned  action  which  is  the  hallmark  of  the  criminal  con- 
spiracy. 

303.  The  doctrine  originated  at  a  time  when  defendants  were  not  permitted  to 
take  the  stand  and  the  accomplice's  testimony  was  admitted  as  an  exception  to  the 
rule  of  incompetence.    See  1  J.  Wigmore,  supra  note  277,  §  2057. 

304.  See  id.  §  2056.  The  Supreme  Court  has  suggested  that  it  is  in  basic  agree- 
ment with  this  position.  See  Hoffa  v.  United  States,  385  U.S.  293,  303-04  (1966); 
On  Lee  v.  United  States,  343  U.S.  747,  757-58  (1952). 

305.  In  the  federal  courts,  a  typical  jury  instruction  simply  warns  the  jury  that 
"such  testimony  is  always  to  be  received  with  caution  and  weighed  with  great  care." 
E.  Devitt  &  C.  Blackmar,  Federal  Jltry  Practice  Instructions  §  12.04,  at  256 
(2d  ed.  1970).  The  government  may  also  obtain,  however,  an  instruction  that  the 
jury  is  not  to  evaluate  informant  testimony  in  terms  of  their  approval  of  this  use  and 
that  the  government  "must  take  the  witnesses  to  the  transactions  as  they  are,"  particu- 
larly in  conspiracy  cases.  United  States  v.  Corallo,  413  F.2d  1306,  1322  (2d  Cir.), 
cert,  denied,  396  U.S.  958  (1969). 

306.  See  Model  Theft  and  Fencing  Act  §  5b,  Appendix  B. 

307.  New  York,  for  example,  has  purportedly  eliminated  the  corroboration  rule, 
but  the  legislation  has  had  a  limited  impact  in  enhancing  the  government's  ability 
to  deal  with  major  fences  because  of  the  exception  applicable  where  the  receiver  has 
"participated  in  the  larceny."  N.Y.  Penal  Law  §  165.65  (McKinney  Supp.  1974). 
C/.  People  V.  Valinoti,  26  N.Y.2d  553,  260  N.E.2d  541,  311  N.Y.S.2d  910  (1970). 
The  New  York  corroboration  rule  had  been  established  in  People  v.  Kupperschmidt, 
237  N.Y.  463,  143  N.9.2d  256  (1924)  (thief  held  accomplice  of  receiver  for  corrobo- 
ration purposes).    See  J.  Hall,  supra  note  5,  at  181-85.    As  a  result  of  business  pres- 


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1568  Michigan  Law  Review  [Vol.  74:1511 

since  it  ironically  protects  sophisticated  receivers  who  organize  thefts 
or  who  are  otherwise  involved  in  the  larceny.^"® 

Nonetheless,  it  is  another  investigative  device,  electronic  surveil- 
lance, that  clearly  affords  law  enforcement  authorities  the  most  direct 
access  to  reliable  evidence  establishing  culpable  mens  rea,^^^  al- 
though it  has  raised  constitutional  objections. ^^°  In  1967,  the  Su- 
preme Court  found  no  per  se  constitutional  objection  to  the  use  of 
electronic  surveillance,^"  and  Congress  responded  by  enacting  legis- 

sure,  the  Kupperschmidt  decision  was  legislatively  set  aside.  Id.  at  184-85.  Ironic- 
ally, however,  the  corroboration  rule  still  applies  in  theft  prosecutions,  so  that  the 
reversal  has  had  impact  on  a  limited  class  of  receivers;  those  who  may  be  accomplices 
of  the  thieves  are  still  protected  by  the  corroboration  rule.  The  N.Y.  Commn.  on 
THE  Administration  of  Justice,  Third  Supplemental  Report  16  (1937)  aptly 
characterized  the  general  rule  as  "a  refuge  of  organized  crime  [that]  protects  the 
principles  [sic]  in  racketeering  cases."  Their  recommendation  that  the  general  rule 
be  abolished,  however,  was  not  adopted,  and  it  remains  today  an  unwarranted  obstacle 
in  the  fencing  area  whenever  prearranged  theft  or  a  continuous  relationship  is  present. 

308.  "[T]he  moment  that  the  fence  enters  into  the  actual  conspiracy  to  steal  the 
property,  thereby  becoming  legally  culpable  for  the  larceny  itself  ...  the  People  can 
only  obtain  a  conviction  against  the  fence  for  the  larceny  or  possession  of  the  stolen 
property  if  there  is  corroborative  evidence."  Hearings  on  Fencing  6.  When  char- 
acterized in  these  terms,  it  is  apparent  that  many  fences  do  participate  in  the  larceny 
process.  See  notes  139-140,  143-46  supra  and  accompanying  text.  In  the  case  of 
a  master  fence  who  arranges  the  actual  theft,  the  corroboration  rule — or  the  excep- 
tion in  conspiracy  cases — adds  another  layer  of  insulation  to  his  protective  network. 
See  notes  143,  146-49  supra  and  accompanying  text. 

It  must  be  stressed,  however,  that  legislative  reform  should  not  shelter  from  credi- 
bility attack  the  testimony  of  either  accomplices  or  informants.  Such  an  attack  is 
properly  part  of  the  adversary  process. 

Finally,  it  should  be  emphasized  that  a  thief  generally  cannot  be  convicted  for 
receiving  the  fruits  of  his  own  theft.  Consequently,  where  a  relationship  exists  be- 
tween the  "thief"  and  the  "receiver,"  it  is  sometimes  necessary  to  indict  in  the  alter- 
native, permitting  the  jury  to  convict  for  theft  or  receipt,  but  not  both.  See  United 
States  V.  Gaddis,  18  Crim.  L.  Rptr.  3079,  3081  (Sup.  Ct.  3-3-76). 

309.  See  Model  Theft  and  Fencing  Act  §  12(b)(2),  Appendix  B. 

310.  Electronic  surveillance  has  raised  first,  fourth,  fifth,  and  sixth  amendment 
constitutional  questions.  See  Spritzer,  Electronic  Surveillance  by  Leave  of  the 
Magistrate:  The  Case  in  Opposition,  118  U.  Pa.  L.  Rev.  169  (1969);  Schwartz,  The 
Legitimation  of  Electronic  Eavesdropping:  The  Politics  of  "Law  and  Order."  67 
Mich.  L.  Rev.  455  (1969).  Prior  to  the  enactment  of  Title  III  (see  notes  311-23 
infra  and  accompanying  text),  it  was  felt  by  some  that  these  constitutional  problems 
could  be  largely  overcome.  See  Blakey,  supra  note  148,  in  Task  Force  Report, 
Organized  Crime  95-104.  See  also  A.B.A.  Project  on  Standards  Relating  to 
Electronic  Surveillance  (1974). 

311.  Katz  V.  United  States,  389  U.S.  347  (1967);  Berger  v.  New  York,  388  U.S. 
41  (1967). 

A  per  se  fifth  amendment  argument  based  on  the  privilege  against  self-incrimina- 
tion had  been  rejected  in  1928  in  Olmstead  v.  United  States,  277  U.S.  438  (1928), 
and  this  aspect  of  Olmstead  has  not  been  overruled.  In  addition,  an  analogous  argu- 
ment, based  on  using  an  informant  rather  than  a  wiretap,  was  held  to  be  without 
merit  in  Hoffa  v.  United  Slates.  385  U.S.  293  (1966).  A  sixth  amendment  violation 
could  occur  only  if  electronic  surveillance  were  used  during  a  post-indictment  period, 
Massiah  v.  United  States,  377  U.S.  201  (1954),  or  in  such  a  fashion  so  as  to  intrude 
on   the  attorney-client  relationship  itself,   Roberts  v.   United  States,   389   U.S.    18 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1569 

lation,  modeled  after  the  Court's  own  guidelines,  specifically  de- 
signed to  meet  the  constitutional  problems  that  had  been  raised  in 
earlier  decisions.^^-  The  enacted  legislation,  title  III  of  the  Omni- 
bus Crime  Control  and  Safe  Streets  Act  of  1968,^^^  authorizes  fed- 
eral and  state  electronic  surveillance  upon  a  court's  finding  of  prob- 
able cause  and  "sets  up  a  system  of  strict  judicial  supervision  that 
imposes  tight  limitations  on  the  scope  of  the  investigation."^"  Title 
III  has  received  widespread  judicial  approval  in  various  federal  cir- 
cuit courts^ ^-"^  and  state  courts;''^*'  there  seems  to  be  Uttle  question 
that  it  authorizes  an  investigative  technique  well-designed  to  attack 
both  organized  crime''^'  and  sophisticated  hijacking  and  fencing  sys- 
tems.^^*  By  directing  electronic  surveillance  at  a  professional 
fence's  place  of  business,  investigators  can  overhear  and  record  in- 
criminating remarks.  Such  evidence  is  completely  reliable  so  there 
is  little  danger  of  a  credibility  attack  at  trial. ^^®  Numerous  prosecu- 
tions have  been  facilitated  in  this  manner,^'"  and  it  is  apparent  that 

(1967).  See  Note,  Government  Interceptions  of  Attorney-Client  Communications, 
49N.Y.U.  L.  Rev.  87  (1974). 

312.  See  S.  Rep.  No.  1097,  90th  Cong..  2d  Sess.  66  (1968). 

313.  18  U.S.C.  §§  2510-13,  2515-20  (1970). 

314.  United  States  v.  Cox,  449  F.2d  679,  684  (10th  Cir.  1971),  cert,  denied,  406 
U.S.  934  (1972). 

315.  See,  e.g.,  United  States  v.  Doolittle,  507  F.2d  1368  (5th  Cir.  1975). 

316.  See,  e.g..  Commonwealth  v.  Vitello,  —  Mass.  — ,  327  N.E.2d  819  (1975). 
Much  of  the  litigation  is  reviewed  in  Cranwell,  Judicial  Fine-Tuning  of  Electronic 
Surveillance,  6  Seton  Hall  L.  Rev.  225  (1975). 

317.  See  S.  Rep.  No.  1097,  90th  Cong.,  2d  Sess.  72  (1968);  Blakey,  supra  note 
148,  in  Task  Force  Report,  Organized  Crime  92-95. 

318.  The  federal  legislation,  however,  authorizes  an  interception  order  in  fencing 
investigations  only  when  violations  of  18  U.S.C. A.  §§  659,  2314,  and  2315  are  in- 
volved. See  18  U.S.C.A.  §  2516  (Supp.  1975).  Authorization  should  be  extended 
to  cover  other  federal  fencing  violations.  See  note  185  supra.  There  is  also  a  cer- 
tain unfortunate  lack  of  clarity  in  the  current  draft  of  S.l.  Section  3101(b)  does 
not  explicitly  authorize  state  surveillance  in  the  theft  and  fencing  area,  and  its  gen- 
eral language  reads  "crime  of  violence."  See  S.l,  §  111.  The  legislative  history  indi- 
cates that  this  phrase  is  used  "in  the  broad  sense  as  comprehending  the  present  lan- 
guage" of  18  U.S.C.  §  2516  ("dangerous  .  .  .  to  .  .  .  property").  Senate  Comm. 
ON  THE  Judiciary,  93d  Cong.,  2d  Sess.,  3  Report  on  Criminal  Justice  Codifica- 
CATioN,  Revision  and  Reform  Act  of  1974,  at  942  (Comm.  Print  1974)  [hereinaf- 
ter S.l  Report]  Obviously,  there  is  no  intent  to  eliminate  this  area  of  investigation 
from  the  use  of  state  surveillance,  but  it  might  have  been  hoped  that  this  intent  could 
have  been  more  clearly  expressed. 

319.  The  only  possible  credibility  argument  would  concern  whether  the  recording 
has  been  tampered  with  in  any  way.  Careful  police  enforcement  procedures  and  the 
use  of  a  seal  would  completely  obviate  this  defense.  See  18  U.S.C.  §  2518(8) (a) 
(1970);  S.  Rep.  No.  1097,  90th  Cong.,  2d  Sess.  104-05  (1968);  United  States  v.  Fal- 
cone, 505  F.2d  478,  483  (3d  Cir.  1974)  (seal  to  "insure  integrity"). 

320.  The  following  case  study  demonstrates  the  effectiveness  of  such  techniques 
in  the  fencing  context: 


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1570  Michigan  Law  Review  [Vol.  74:1511 

if  this  method  were  widely  implemented  professional  fences  would 
run  a  substantially  higher  risk  of  conviction. 

In  addition  to  establishing  the  requisite  state  of  mind,  successful 
electronic  surveillance  can  also  help  establish  "receipt,"  can  locate 
and  identify  other  stolen  property,^"  and  can  provide  authorities 

Case  Study 

Kings  County,  New  York — Forgery,  Criminal 

Possession  of  Forged  Documents,  Grand  Larceny, 

Criminal  Possession  of  Stolen  Property, 

Criminal  Usury 

Background 

This  was  a  "target  investigation,"  begun  in  1971,  directed  against  a  high  level 
member  of  an  organized  crime  "family"  operating  in  Brooklyn.  Physical  surveil- 
lance and  two  gambling  wiretaps  on  public  telephones  in  a  local  bar  which  the 
target's  associates  frequented  had  pinpointed  the  target's  headquarters  as  the 
trailer  office  of  a  nearby  busines. 

Physical  surveillance  of  the  trailer  was  conducted  for  several  months.  During 
this  time,  a  pattern  was  established  for  meetings  in  the  trailer  between  the  target 
and  other  persons  with  criminal  histories.  During  this  period  of  observation,  it 
was  also  learned  that  the  FBI  was  engaged  in  an  independent  investigation  of 
the  gambling  activities  of  several  of  the  target's  associates.  Following  a  meeting 
between  the  District  Attorney  and  FBI  agents,  it  was  decided  to  proceed  with 
a  joint  investigation. 

At  this  time,  the  FBI  produced  an  informant  who  had  personally  overheard 
criminal  conversations  in  the  trailer  and  who  described  a  stolen  car  racket,  using 
forged  documents,  which  was  being  conducted  there.  Orders  were  then  sought 
to  place  wiretaps  on  the  three  telephones  in  the  trailer  and  to  place  a  "bug"  with- 
in the  trailer  itself. 
Operation  of  the  surveillance  devices 

The  three  wiretaps  were  installed  on  the  day  that  the  orders  were  signed.  It 
took  a  week,  however,  to  install  the  bug,  as  the  trailer  was  inside  the  lot,  sur- 
rounded by  an  eight  foot  high  cyclone  fence  and  guarded  by  a  watch  dog. 

The  wiretaps  were  initially  approved  for  thirty  days,  but  one  extension  on 
each  was  granted,  allowing  each  to  run  for  sixty  days.  The  order  on  the  bug 
was  extended  three  times,  giving  it  an  authorized  operational  period  of  120  days. 
During  this  period,  conversations  apparently  relating  to  a  variety  of  criminal  ac- 
tivity, including  bribery,  were  overheard. 
Results 

The  investigation  ultimately  resulted  in  the  arrest  of  seventy-one  individuals, 
including  the  target  of  the  original  investigation  and  several  other  alleged  mem- 
bers of  the  same  organized  crime  family.  Of  this  number,  thirty-seven  pleaded 
guilty  to  minor  charges  and  were  given  $100  fines.  Of  the  thirty-four  persons 
indicted,  three  have  been  convicted  of  perjury  or  criminal  contempt  and  thirty- 
one  cases  are  pending. 
Evaluation 

This  is  an  excellent  example  of  the  sophisticated  use  of  electronic  surveil- 
lance by  law  enforcement  agencies  to  combat  organized  crime.    It  points  out  the 
value  of  federal-state  agency  cooperation,  the  interplay  between  electronic  and 
non-electronic  surveillance  techniques,  and  the  usefulness  of  an  investigation  tar- 
geted against  a  specific  organized  crime  figure,  with  the  availability  of  reliable 
informants  close  to  the  target. 
Natl.  Commn.  for  the  Review  of  Fed.  and  State  Laws  Relating  to  Wiretap- 
ping AND  Electronic  Surveillance,  Staff  Studies  and  Survey  277-78  (1976).  Fi- 
nally, the  use  of  electronic  surveillance  recently  led  to  the  successful  prosecution  of 
.Tack  Mace,  one  of  New  York's  most  sophisticated  fencing  operators.     See  United 
States  V.  Tortorello,  480  F.2d  764,  770-71,  773-76  (2nd  Cir.  1973);  V.  Teresa,  supra 
note  29,  at  258-89.     By  intercepting  conversations  and  tapping  telephones  at  Mace's 
place  of  business,  the  "Rio  Coin  Shop,"  investigators  were  able  to  secure  his  convic- 
tion, as  well  as  the  convictions  of  several  major  organized  crime  figures. 

321.  Deft,  of  Justice  Releases  13,  17  (May  2,  1974)  (statement  of  Kevin  T. 
Maroney,  Deputy  Assistant  Attorney  General,  Criminal  Division,  Before  the  Select 


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August  1976]        Criminal  Distribution  of  Stolen  Properiy  1571 

with  evidence  and  leverage  to  induce  the  testimony  of  potential  wit- 
nesses. For  example,  the  apparently  legitimate  businessman  who 
initially  denies  his  association  with  a  major  fence  may  be  more  will- 
ing to  cooperate  once  he  has  been  confronted  with  a  tape  recording 
of  his  self-incriminating  remarks.^^^  At  this  point,  the  stage  is  set 
for  granting  the  businessman  immunity  in  exchange  for  testimony 
that  may  help  trace  the  complex  redistribution  system  of  a  master 
fence. 

Yet  despite  its  demonstrated  success,  electronic  surveillance  has 
rarely  been  used  in  the  investigation  of  fencing  cases.  Only  twenty- 
three  jurisdictions  have  enacted  electronic  surveillance  statutes  pur- 
suant to  title  III  authorization,^^^  and  of  the  701  orders  authorizing 
wiretapping  issued  in  1975,  only  thirteen  were  issued  to  detect  sus- 
pected possession  of  stolen  property.^^*  Instead,  most  so-called  inter- 
cept orders  concern  probable  gambling  and  narcotics  violations.^^' 
Thus,  because  of  both  legislative  omission  or  investigative  oversight, 
law  enforcement  authorities  generally  have  failed  to  take  advantage  of 
the  most  effective  evidence-gathering  device  available  to  combat 
large-scale  fencing  activity.^^* 

Nevertheless,  even  if  this  were  not  the  case,  it  must  be  acknowl- 
edged that  electronic  surveillance  is  no  panacea  for  existing  deficien- 
cies in  evidence-gathering  techniques.  Electronic  devices  are  partic- 
ularly difficult  to  use  where,  for  instance,  a  master  fence  does  not 

Committee  on  Small  Business,  United  States  Senate,  Concerning  the  Criminal  Redis- 
tribution System). 

322.  The  then  Chief  Counsel  of  the  McClellan  Committee,  Robert  F.  Kennedy, 
makes  the  point:  "The  kind  of  proof  makes  a  difference.  He  can  say  very  forcefully 
someone's  a  liar — that's  easy,  but  here  we  had  his  own  voice  on  the  tapes.  He 
couldn't  deny  it."    Quoted  in  J.  Maguire,  Evidence  of  Guilt  247  n.l6  (1959). 

323.  U.S.  Administrative  Office  of  the  U.S.  Courts,  Report  on  Applica- 
tions FOR  Orders  Authorizing  or  Approving  the  Interception  of  Wire  or  Oral 
Communications  II  (1975)  [hereinafter  Annual  Report  1975].  Among  those 
populous  states  identified  by  the  Organized  Crime  Task  Force:  President's 
CoMMN.  on  Law  and  Enforcement  and  Administration  of  Justice  7  (1967)  as 
having  organized  crime  problems,  but  that  do  not  authorize  surveillance,  are  the 
following:  California,  Texas,  Illinois,  Michigan,  Pennsylvania,  and  Ohio.  Even 
among  those  states  with  surveillance  legislation,  the  statutes  leave  something  to  be 
desired  in  the  fencing  area.  See  Wiretap  Report  200-01  (concurrence  of  Commis- 
sioner Blakey). 

324.  Annual  Report  1975  VIII.  Out  of  the  13  intercept  orders  issued  for  the 
investigation  of  possession  of  stolen  property,  nine  were  federal,  two  were  granted 
in  New  York,  one  was  granted  in  New  Jersey,  and  one  was  granted  in  Kansas.  Id. 
at  VIII-IX.  In  addition,  3  orders  were  issued  for  burglary,  5  for  larceny  and  theft, 
and  6  for  robbery.  Id.  Some  of  these  may,  in  fact,  have  been  issued  in  fencing  in- 
vestigations. 

325.  Id.  at  VIII. 

326.  The  National  Wiretap  Commission  has  called  for  "more  extensive"  use  of 
surveillance  in  theft  and  fencing  investigations.    Wiretap  Report  5. 


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1572  Michigan  Law  Review  [Vol.  74:1511 

operate  from  a  fixed  place  of  business  but  instead  conducts  his  trans- 
actions from  randomly  selected  telephone  booths. ^^^  Such  a  re- 
ceiver is  vulnerable  only  if  his  purchaser's  telephone  has  been 
tapped  or  if  for  some  reason  his  buyer  decides  to  cooperate  with 
police.  In  addition,  as  with  search  warrants,  logistical  considerations 
may  delay  or  completely  preclude  a  successful  wire,''^*  and  once  in- 
stalled, reception  is  often  marred  by  mechanical  difficulties  or  back- 
ground noises.  These  problems,  combined  with  the  demonstrated 
reluctance  of  legislators  and  law  enforcement  authorities  to  use  elec- 
tronic surveillance,  have  caused  investigators  and  prosecutors  to  at- 
tempt the  more  difficult  task  of  proving  the  requisite  state  of  mind 
by  circumstantial,  rather  than  by  direct,  evidence. 

(iii).  The  use  of  circumstantial  evidence  to  establish  mens 
rea.  A  prosecutor  who  cannot  present  direct  testimony  establish- 
ing guilty  knowledge  must  instead  recreate  circumstances  surround- 
ing the  fence's  receipt  of  stolen  property  from  which  a  jury  might 
infer  the  requisite  mens  rea.^^^  Some  courts  have  held  that  evidence 
establishing  that  the  defendant  purchased  goods  at  extremely  low 
prices,  removed  identification  marks,  or  attempted  to  conceal  the  mer- 
chandise upon  receipt,  is  sufficient  to  support  a  finding  that  the  defend- 
ant knew  the  goods  were  stolen. ^^'^  In  order  to  show  that  the  defend- 
ant's conduct  was  not  the  product  of  innocent  mistake,  successful 
prosecutors  often  supplement  this  circumstantial  evidence  with  proof 
that  the  defendant  has  acted  similarly  in  other  transactions  or  has 
previously  been  convicted  of  receiving.^^^ 

327.  It  is  questionable  that  many  master  fences  take  such  extraordinary  precau- 
tions. See  generally  Dkpt.  of  Justice  Releases,  supra  note  321,  at  13.  Certainly, 
the  professional  fence  who  is  also  involved  in  master  fencing  may  tend  to  use  the 
phone  at  his  place  of  business.  This  practice  led  to  the  downfall  of  one  of  New  York 
City's  most  sophisticated  fences.  See  note  320  supra.  On  the  other  hand,  the  master 
fence's  work  tends  to  be  episodic  rather  than  regular,  in  contrast  to  the  activities  of 
those  engaged  in  gambling  and  narcotics  transactions.  TTiis  sharply  curtails  the  op- 
portunities to  establish  the  probable  cause  necessary  to  obtain  a  court  order.  Indeed, 
the  best  hope  of  getting  at  the  master  fence  through  wire  surveillance  lies  in  over- 
hearing his  calls  to  a  professional  fence,  when  the  professional  needs  the  superior 
resources  and  contacts  of  the  master. 

328.  See  note  320  supra;  Wiretap  Report  at  7-8,  55-62. 

329.  See  W.  LaFave  &  A.  Scott,  supra  note  14,  at  686. 

330.  See,  e.g.,  Torres  v.  United  States,  270  F.2d  252,  259  (9th  Cir.  1959).  For 
discussion  of  this  issue,  see  W.  LaFave  &  A.  Scott,  supra  note  14,  at  686-87;  2  J. 
WiGMORE,  supra  note  277,  §  327. 

331.  See  J.  Hall,  supra  note  5,  at  186-89;  W.  LaFave  &  A.  Scott,  supra  note 
14,  at  687;  2  J.  Wigmore,  supra  note  277,  §§  324-26.  Evidence  of  this  nature  is 
admissible  because  it  tends  to  establish  intent  by  negating  the  possibility  of  an  inno- 
cent mistake  or  by  demonstrating  the  existence  of  an  on-going  plan.  Jurisdictional 
rules  vary  concerning  whether  the  same  type  of  property  must  have  been  involved, 
whether  the  goods  must  have  been  received  from  the  same  thief,  and  the  requisite 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1573 

Persuasive  circumstantial  evidence  establishing  the  guilty  knowl- 
edge of  the  most  sophisticated  fences,  however,  is  usually  not  avail- 
able. Instead,  prosecutors  must  attempt  to  convict  professional  re- 
ceivers masquerading  as  legitimate  businessmen  by  introducing 
somewhat  less  powerful  evidence  of  conduct  by  the  defendant  that 
deviates  from  normal  business  practices.  By  skillfully  comparing  a 
fence's  conduct  with  normal  business  practices,  prosecutors  may  be 
able  to  establish  the  requisite  mens  rea  on  the  basis  of  such  circum- 
stantial evidence  as  proof  of  poor  bookkeeping  procedures,  unre- 
corded secret  transactions,  the  failure  to  retain  itemized  receipts,  un- 
usual methods  of  payment,  or  the  failure  of  the  accused  receiver  to 
make  proper  inquiry  concerning  the  source  of  his  seller's  goods.^^* 

sufficiency  of  the  link  between  the  present  offense  and  the  prior  illegal  transactions 
sought  to  be  offered  into  evidence.  See  Hearings  on  Criminal  Laws  550.  Hall  ar- 
gues that  rules  requiring  delivery  by  the  same  thief  are  inappropriate,  since  "the 
larger  the  business  done,  the  greater  are  the  probabilities  that  different  thieves  have 
been  dealt  with,  that  the  property  was  stolen  from  different  places  and  persons,  and 
hence,  that  the  receiving  in  question  was  with  criminal  knowledge."  J.  Hall,  supra 
note  5,  at  187.  Wigmore  states  that  it  is  usually  "necessary  and  sufficient  to  show 
(a)  former  receipt  and  possession  (and,  perhaps,  under  suspicious  circumstances)  (b) 
of  goods  similar  as  to  the  person  bringing  them  or  as  to  their  kind  or  otherwise." 
2  J.  Wigmore,  supra  note  277,  §  324,  at  228. 

Evidence  of  prior  criminal  transactions,  because  of  its  highly  prejudicial  nature, 
may  only  be  introduced  if  "the  evidence  is  substantially  relevant  for  some  other  pur- 
pose than  to  show  a  probability  that  [the  accused]  committed  the  crime  on  trial  be- 
cause he  is  a  man  of  criminal  character."  McCormick's  Handbook  of  the  Law 
OF  Evidence  §  190,  at  447  (E.  Cleary  ed.  1972)  (footnote  omitted)  [hereinafter 
McCormick].  Accordingly,  such  evidence  may  be  admitted  for  purposes  of  demon- 
strating the  existence  of  a  plan  or  for  establishing  that  receipt  was  not  without  guilty 
knowledge.  Id.  at  448-50.  For  a  detailed  listing  of  authorities  which  have  analyzed 
the  prior  similar  act  doctrine,  see  id.  at  447  n.32. 

332.  See,  e.g.,  United  States  v.  Lambert,  463  F.2d  552,  555  (7th  Cir.  1972) 
(manner,  timing  and  price  of  sale  justified  inference  of  knowledge);  Henry  v.  United 
States,  361  F.2d  352  (9th  Cir.  1966),  cert,  denied,  386  U.S.  957  (1967)  (failure  to 
give  or  request  customary  bill  of  sale  justified  jury  inference). 

The  Association  of  Grand  Jurors  of  New  York  County  has  summarized  these 
characteristics  as  follows: 

When  a  commodity  is  offered  for  sale  to  a  business-wise  merchant,  firm  or 
corporation  it  is  reasonable  to  presume  that  he  or  it  knows  or  will  ascertain,  be- 
fore buying,  certain  things.    These  are: 

1.  The  market  value  of  the  commodity. 

2.  The  cause  for  its  price  being  disproportionately  low. 

3.  That  certain  identification  marks  usually  appearing  on  the  article  or  its 
container  have  not  been  removed  or  altered. 

4.  That  the  seller  has  the  legal  right  to  sell  and  conforms  to  the  customs  of 
the  trade  in  so  doing. 

5.  That  the  seller  represents  a  firm  known  to  the  trade  or  is  personally 
known  to  the  buyer. 

6.  That  the  seller  has  a  permanent  address. 

7.  If  the  seller  is  a  stranger  to  the  buyer  that  he  can  furnish  trade  and  other 
reliable  references  as  to  his  good  standing. 

8.  That  nothing  connected  with  the  seller  or  his  goods  indicates  fraud. 

Prison  Comm.  of  the  Assn.  of  Grand  Jurors  of  New  York  County,  Criminal 
Receivers  in  the  United  States  69-70  (1928). 


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1574  Michigan  Law  Review  [Vol.  74:1511 

In  this  way,  prosecutors  can  turn  a  fence's  legitimate  facade  into  a 
weapon  against  him. 

Yet  the  availability  of  such  circumstantial  evidence  does  not 
guarantee  conviction,  for  two  accepted  judicial  doctrines  restrict  its 
use  and  thus  diminish  its  potency.  First,  most  states  restrict  a  trial 
judge's  right  to  comment  on  the  evidence;  consequently,  jurors  are 
often  unable  to  draw  inferences  of  guilty  knowledge  they  would  oth- 
erwise consider  if  the  judge  could  share  his  expertise  with  them.*^^ 
Second,  the  quantum  of  incriminating  circumstantial  evidence 
deemed  necessary  to  establish  an  element  of  a  crime  beyond  a  rea- 
sonable doubt  is  often  high:  In  "the  absence  of  direct  evidence  on 
a  controverted  issue,  almost  all  jurisdictions  require  the  prosecution 
to  prove  that  all  the  circumstances  are  consistent  with  guilt  and  in- 
consistent with  any  reasonble  hypothesis  of  innocence. "^^*  Although 
this  rule  is  not  applied  in  the  federal  courts,^^'  it  has  had  a  profound 
impact  at  the  state  level  because  it  "imposes  an  unjustifiably  heavier 
burden  on  the  state  than  does  the  reasonable  doubt  standard."^®' 

The  Association  of  Grand  Jurors  also  took  notice  of  the  additional  recommenda- 
tions of  experts  in  the  fencing  area: 

"Mr  Leon  Hoage  of  the  New  York  office  of  the  Holmes  Electric  Protection 
Company  .  .  .  holds  that  an  alleged  Fence  should  be  required  to  explain  to  the 
jury  acts  or  omissions,  such  as  the  following: 

1.  Failure  to  keep  bona  fide  books  of  account  in  connection  with  a  business 
enterprise. 

2.  Neglect  of  dealer  to  keep  bills  received  with  goods  delivered  to  him,  for 
a  reasonaole  period,  such  as  two  years. 

3.  Omission  of  the  dealer  to  demand  and  keep  as  bills  the  receipts  given  in 
his  commercial  transactions. 

4.  Lack  of  itemized  bills  of  job  lots  of  standard  goods  purchased,  apart  from 
the  balance  of  the  items. 

5.  Inability  or  unwillingness  of  the  possessor  of  goods  ostensibly  covered  by 
a  bill  of  sale  from  a  reputable  firm,  to  communicate  with  the  firm,  at  the  time 
the  purchase  is  made,  to  corroborate  the  sale. 

6.  Presentation  of  a  bill  of  sale,  the  billhead  of  which  gives  the  name  and 
address  of  a  non-existent  firm. 

7.  Purchase  of  valuable  merchandise  from  a  push  cart,  or  similarly  unreli- 
able vendor." 

J.  Hall,  supra  note  5,  at  224-25  n.  72. 

333.  See  A.B.A.  Project  on  Minimum  Standards  for  Criminal  Justice, 
Standards  Relating  to  Trial  by  Jury  121-22  (1968)  [hereinafter  Trial  by  Jury]. 
Although  the  rule  against  commentary  grew  out  of  an  early  American  distrust  of  ju- 
dicial power,  Wigmore  has  maintained  "[t]hat  the  preservation  of  the  pristine  power 
of  the  Court  to  comment  and  advise  the  jury  is  essential  to  the  efficient  working  of 
the  jury  system,  and  that  the  deprivation  of  that  power  is  highly  injurious."  9  J. 
Wigmore,  supra  note  277,  §  2551a,  at  509.  For  a  detailed  list  of  authorities  who 
have  advocated  such  restoration,  see  id.  at  512  and  Trial  by  Jury  122-24.  The 
power  to  comment  must  be  seen  in  light  of  the  possible  decline  in  the  ability  of 
average  jurors  to  understand  complex  fact  situations. 

334.  Note,  Sufficiencv  of  Circumstantial  Evidence  in  a  Criminal  Case,  55 
CoLUM.  L.  Rev.  549.  549-50  (1955). 

335.  Holland  v.  United  States,  348  U.S.  121,  139-40  (1954). 

336.  Note,  supra  note  334,  at  551. 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1575 

Courts  and  legislatures  recognizing  the  difficulties  inherent  in 
using  primarily  circumstantial  evidence  to  establish  knowledge  have 
attempted  to  facilitate  convictions  by  developing  several  common- 
law  and  statutory  presumptions  favorable  to  the  prosecution.^"  A 
presumption  (permissible  inference)  in  the  criminal  law  reflects  a 
determination  that  a  certain  set  of  circumstances  should  be  given 
special  treatment  because  it  tends  to  establish  a  particular  element 
of  the  crime,  although  such  an  inference  might  not  otherwise  have 
been  drawn  by  the  trier  of  fact.^'^  In  receiving  cases,  the  most  im- 
portant presumption  is  that  of  guilty  knowledge,  which  is  triggered 
by  proof  of  the  defendant's  unexplained  recent  possession  of  stolen 
property:  "Possession  of  the  fruits  of  crime,  recently  after  its  com- 
mission, justifies  the  inference  that  the  possession  is  guilty  posses- 
sion, and  though  only  prima  facie  evidence  of  guilt,  may  be  of  con- 
trolling weight  unless  explained  by  the  circumstances  or  accounted 
for  in  some  way  consistent  with  innocence."^^®  Originally  a  com- 
mon-law rule  designed  to  aid  the  prosecution  in  larceny  cases,^***  the 
so-called  recent  possession  doctrine  has  been  codified  in  several 

337.  See  J.  Weinstein  &  M.  Berger,  Weinstein's  Evidence:  Commentary  on 
Rules  of  Evidence  for  the  United  States  Courts  and  Magistrates,  §  303[01],  at 
303-08  (1975)  [hereinafter  J.  Weinstein].  For  an  excellent  discussion  of  the  pre- 
sumptions contained  in  recent  federal  legislative  proposals  directed  toward  organized 
crime,  see  Note,  Presumptions  and  Due  Process:  Congress  Attacks  Organized  Crime, 
68  Nw.  L.  Rev.  961  (1974). 

Traditionally,  these  rules  have  been  called  presumptions,  and  that  term  will  be 
used  here.  Nevertheless,  it  might  be  more  accurate  and  less  confusing  in  criminal 
cases  to  call  them  permissible  inferences,  and  to  distinguish  them  sharply  from  what 
is  best  described  as  a  mandatory  or  irrebutable  presumption.  A  permissible  inference 
arises  when  A  is  thought  normally  to  infer  B.  Prove  A,  and  absent  other  proof,  B 
may  be  inferred  and  is  thus  proven.  A  mandatory  presumption  arises  when  A  is 
treated  as  proof  of  B,  and,  when  A  is  proven,  B  must  be  found  absent  other  proof. 
An  irrebuttable  presumption  arises  when  A  is  treated  as  the  equivalent  of  B,  and  the 
contrary  may  not  be  shown. 

338.  C.  Torcu,  Wharton's  Criminal  Evidence,  §§  90-91  (13th  ed.  1972);  9 
J.  Wigmore,  supra  note  277,  §  2491,  at  288;  J.  Weinstein  §  300[02],  at  300-07. 
Working  Papers  936,  observes:  "Use  of  the  procedural  device  is  appropriate  when 
Congress  [or  the  state  legislature]  on  the  basis  of  special  expertise  and  amassed  em- 
pirical evidence  decides  that  certain  facts  are  strong  evidence  of  a  crime  and  that 
these  facts  should  be  given  proof  significance  to  assist  the  government  in  prosecuting 
the  crime."  The  best  way  to  conceptualize  a  presumption  is  to  see  that  by  creating 
a  presumption  the  law  is  acting  as  an  expert  witness,  because  it  is  providing  the  jurors 
with  the  basis  for  drawing  an  inference  that  is  not  necessarily  compelled  from  the 
ordinary  experiences  of  their  everyday  lives.  See  notes  366-68  infra  and  accompany- 
ing text.  Since  the  law  is  injecting  its  own  expertise  into  the  fact-finding  determina- 
tion, any  judicial  or  legislative  presumption  must  comport  with  due  process  standards. 
See  notes  360-88  infra  and  accompanying  text. 

339.  Wilson  v.  United  States,  162  U.S.  613,  619  (1896)  (murder  case  where 
property  of  victim  found  on  defendant  used  to  prove  guilt  of  murder). 

340.  2  M.  Hale,  History  of  the  Pleas  of  the  Crown  289  (1778  ed.);  J.  Hall, 
supra  note  5,  at  175;  9  J.  Wigmore,  supra  note  277,  §  2513,  at  417. 


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1576  Michigan  Law  Review  [Vol.  74:1511 

jurisdictions,^*^  and  extended  to  receiving  cases  in  most  jurisdic- 
tions.^*^ The  Model  Act  contains  a  presumption  of  recklessness,  the 
mens  rea  required  by  that  proposal,  on  proof  the  defendant  pos- 
sessed recently  stolen  property.^*^  Other  presumptions  that  have 
been  developed  to  facilitate  proof  of  guilty  knowledge  are  raised  on 
evidence  that  the  defendant  purchased  the  stolen  goods  from  a 
minor,  failed  to  make  a  reasonable  inquiry  of  proof  of  ownership, 
purchased  at  a  price  substantially  below  reasonable  market  value,  or 
has  purchased  stolen  property  before,^**    Unlike  the  recent  posses- 

341.  See,  e.g.,  Ky.  Rev.  Stat.  Ann.  §  433.290  (1972);  Okla.  Stat.  Ann.  tit.  21, 
§  1713  (Supp.  1975).  The  Oklahoma  provision,  however,  has  been  declared  uncon- 
stitutional in  a  decision  that  incorrectly  applied  guidelines  set  down  by  the  United 
States  Supreme  Court.    See  note  380  infra  and  accompanying  text. 

342.  See  9  J.  WiGMORE,  supra  note  277,  §  2513,  at  422.  Only  Georgia  and  North 
Carolina  have  specifically  refused  to  make  this  extension.  See  Gaskin  v.  State.  119 
Ga.  App.  593,  168  S.E.2d  183  (1969);  State  v.  Hoskins,  236  N.C.  412,  72  S.E.2d 
876  (1952).  Nevertheless,  despite  seemingly  clear  language  in  the  Georgia  opinion 
that  suggests  that  the  recent  possession  rule  does  not  apply  to  receiving  cases,  the 
law  in  Georgia  still  seems  confused.  See  Comment,  Criminal  Law — Receiving  Stolen 
Goods — No  Presumption  in  Recent  Possession,  22  Mercer  L.  Rev.  481  (1971). 

"Without  the  inference  it  would  be  difficult,  if  not  impossible,  to  convict  knowing 
possessors  or  fences  of  stolen  goods  .  .  .  ."  New  Jersey  v.  DiRienzo,  53  N.J.  360. 
374,  251  A.2d  99,  106  (1969).  A  comprehensive  list  of  decisions  that  have  applied 
the  rule  to  fencing  cases  may  be  found  in  76  C.J.S.  Receiving  Stolen  Property  §  17, 
at  34  n.67  (1952),  and  9  J.  V^igmore,  supra  note  277,  §  2513,  at  422  n.6  (C.J.S. 
Receiving  Stolen  Property  §  17,  note  65  (Supp.  1976),  lists  a  Colorado  and  a  Mon- 
tana decision  that  rejected  the  presumption  in  receiving  cases.  The  Colorado  deci- 
sion, however,  is  incorrectly  cited,  and  the  Montana  case  seemed  to  turn  on  a  matter 
of  statutory  interpretation. 

The  Pennsylvania  Supreme  Court  has  rejected  the  presumption's  applicability  in 
receiving  cases  because  of  its  purported  irrationality.  See  Commonwealth  v.  Owens, 
441  Pa.  318,  271  A. 2d  230  (1970).  The  Pennsylvania  decision,  however,  may  be 
limited  to  its  facts.  See  Note,  Criminal  Law — Presumption  That  Unexplained  Posses- 
sion of  Recently  Stolen  Goods  Is  Sufficient  Evidence  of  Guilt  of  Receiving  Stolen 
Goods  Held  Unconstitutional,  75  Dickinson  L.  Rev.  544  (1971).  In  any  event,  the 
Supreme  Court  has  recently  given  the  doctrine  constitutional  approval  in  a  case  in- 
volving the  receipt  of  stolen  property.  See  Barnes  v.  United  States,  412  U.S.  837 
(1973).  The  question  of  rationality  and  the  appropriate  constitutional  tests  to  be 
applied  in  this  context  is  analyzed  in  notes  360-84  infra  and  accompanying  text. 

343.  See  Model  Theft  and  Fencing  Act  §  5(a) ( 1 ),  Appendix  B. 

344.  Cal.  Penal  Code  §  496(2)  (West  Supp.  1975)  (presumption  upon  second- 
hand dealer's  failure  to  make  inquiry);  Mich.  Comp.  Laws  Ann.  §  750.535  (Supp. 
1976)  (presumption  upon  personal  property  dealer's  failure  to  make  inquiry);  Mont. 
Rev.  Codes  Ann.  §  94.2721  (1969)  (presumption  upon  purchase  from  a  minor,  un- 
less sold  at  fixed  place  of  business);  N.M.  Stat.  Ann.  §  40A. 16.11  (1972)  (posses- 
sion of  other  stolen  property;  purchase  at  price  far  below  reasonable  value;  dealers 
presumed  to  know  reasonable  market  value);  N.Y.  Penal  Law  §  165.55  (1975)  (pre- 
sumption upon  pawnbroker's  or  dealer's  failure  to  make  reasonable  inquiry);  Okla. 
Stat.  Ann.  tit.  21,  §  1713  (Supp.  1975)  (presumption  from  failure  to  make  reason- 
able inquiry). 

California's  statute  creating  a  presumption  upon  the  purchase  of  property  from 
a  minor  not  operating  at  a  fixed  place  of  business  was  declared  unconstitutional  in 
People  v.  Stevenson,  58  Cal.  2d  794,  376  P.2d  297,  26  Cal.  Fptr  297  (1962).  A 
similar,  but  more  narrow,  statutory  presumption  has  recently  been  repealed  by  the 
Arizona  legislature.    See  Ariz.  Laws  of  1974,  ch.  144,  §  2. 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1577 

sion  doctrine,  however,  these  criminal-law  presumptions  are  strictly 
statutory  creations  that,  despite  their  potential  utility,  have  not  been 
enacted  in  most  jurisdictions.^*" 

Considerable  confusion  has  long  surrounded  the  role  of  the  re- 
cent possession  rule  and  other  evidentiary  presumptions  in  a  criminal 
case.^***'  McCormick  characterized  the  term  "presumption"  as  one  of 
"the  slipperiest  member[s]  of  the  family  of  legal  terms,"^*^  and  con- 
cluded only  that  "a  presumption  is  a  standardized  practice,  under 
which  certain  facts  are  held  to  call  for  uniform  treatment  with  respect 
to  their  effect  as  proof  of  other  facts."^**  Unfortunately,  both  courts 
and  legislatures  initially  experienced  difficulty  determining  what  this 
"uniform  treatment"  should  be.^*^  As  a  result,  criminal  presump- 
tions at  one  time  had  a  range  of  legal  effects:  some  enabled  the 
prosecution  to  escape  a  directed  verdict  of  acquittal;  others  allowed 
a  judge  to  give  jury  instructions  as  to  what  might  permissibly  be  in- 
ferred from  the  evidence;  and  a  few  effectuated  a  complete  shift  in 
either  the  burden  of  producing  evidence  or  the  risk  of  nonpersua- 
sion  as  to  the  presumed  element.^ °" 

This  wide  range  of  potential  legal  effects  was,  however,  eventu- 
ally narrowed  as  constitutional  constraints  were  recognized  to  pre- 
clude the  operation  of  a  so-called  "true  presumption"  in  criminal 
cases.^^^    In  civil  cases,  a  true  presumption  shifts  the  burden  of  pro- 

345.  See  Hearings  on  Fencing  164-71. 

346.  See  McCormick  §  346.  For  example,  one  fencing  case  involving  the  recent 
possession  rule  was  erroneously  decided  partially  because  the  court  mistakenly  as- 
sumed that  the  presumption  was  effecting  a  shift  in  the  burden  of  proof.  See  Carter 
V.  State,  82  Neb.  246,  249-50,  415  P.2d  325,  327  (1966).  Carter  was  criticized  in 
State  V.  DiRienzo,  53  N.J.  360,  375-77,  251  A.2d  99,  107-08  (1969).  In  another 
case,  the  recent  possession  rule  was  struck  down,  partially  because  of  legislative  lan- 
guage that  clearly  suggested  that  the  burden  of  going  forward  with  the  evidence  was 
being  shifted  upon  the  defendant's  shoulders.  See  Payne  v.  State,  435  P.2d  424,  428 
(Okla.  Crim.  App.  1967);  note  380  infra.  For  a  discussion  outlining  the  extent  to 
which  a  criminal  presumption  may  shift  the  various  burdens,  see  notes  350-54  infra 
and  accompanying  text. 

347.  McCormick  §  342,  at  802-03. 

348.  Id.  at  803.  See  Laughlin,  In  Support  of  the  Thayer  Theory  of  Presump- 
tions, 52  Mich.  L.  Rev.  195,  196-207  (1953). 

349.  See  Note,  Constitutionality  of  Rebuttable  Statutory  Presumptions,  55 
CoLUM.  L.  Rev.  527,  528  (1955);  Comment,  Tennessee  Criminal  Law — Larceny — 
Effect  of  Possession  of  Recently  Stolen  Property,  3  Memphis  State  L.  Rev.  294,  297- 
99  (1973);  Comment,  The  Constitutionality  of  Statutory  Criminal  Presumptions,  34 
U.  Chi.  L.  Rev.  141  (1966). 

350.  See  W.  LaFave  &  A.  Scott,  supra  note  14,  at  147-48;  Comment,  34  U.  Chi 
L.  Rev.  141,  supra  note  349,  at  141-42. 

351.  A  "true  presumption,"  otherwise  known  as  a  mandatory  presumption  or  a 
presumption  of  law,  "has  the  effect  of  forcing  the  jury  to  find  the  presumed  fact  if 
the  proved  fact  is  believed  and  no  evidence  rebutting  the  presumed  fact  is  produced 
by  the  opposing  party.    However,  the  presumed  fact  may  be  disputed  and  need  not 


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1578  Michigan  Law  Review  [Vol.  74:1511 

ducing  evidence  by  requiring  the  jury  to  find  the  presumed  fact  in 
the  absence  of  rebutting  evidence  if  the  proved  fact  is  believed.^" 
In  such  a  situation,  the  effect  of  a  true  presumption  is  mandatory 
and  requires  a  directed  verdict  for  the  proponent  as  to  the  presumed 
fact.  In  a  criminal  case,  however,  a  verdict  cannot  be  directed 
against  the  accused^"  because  such  a  procedure  would  violate  a  de- 
fendant's constitutionally-protected  rights  to  a  jury  trial  and  to  have 
the  prosecution  burdened  with  establishing  each  element  of  the 
crime  beyond  a  reasonable  doubt.  Accordingly,  although  the  lan- 
guage of  presumption  is  still  frequently  used  in  criminal  cases,  its 
actual  effect  has  been  reduced  to  that  of  what  may  be  called  a  "per- 
missible inference":  The  jury  is  instructed  that  it  may  infer  the  pre- 
sumed fact  from  the  fact  proved,  but  that  it  is  not  required  to  do 
so.«" 

Even  though  the  burden  of  proof  constitutionally  must  remain 
on  the  prosecution,^'^'*  "[t]he  practical  effect  of  the  inference  is  to 
pressure  the  defendant  into  going  forward  with  [exculpatory]  evi- 
dence," since  once  an  instruction  has  been  given  "[a]  silent  defend- 
ant assumes  the  risk  that  the  jury  will  follow  the  natural  probative 
force  of  the  proven  facts."^**^     The  source  of  this  pressure  is  the 

be  found  by  the  jury  if  evidence  is  introduced  to  rebut  it."  Note,  The  Unconstitu- 
tionality of  Statutory  Criminal  Presumptions,  22  Stan.  L.  Rev.  341,  342-43  (1970). 
See  McCoRMiCK  §  342,  at  803;  C.  Torcia,  supra  note  33^,  §§  90-91;  9  J.  Wigmore, 
supra  note  277,  §  2491,  at  289. 

352.  See  authorities  cited  note  351  supra.  In  addition,  McCormick  points  out 
that  "many  authorities  state  that  a  true  presumption  should  not  only  shift  the  burden 
of  producing  evidence,  but  also  require  that  the  party  denying  the  existence  of  the 
presumed  fact  assume  the  burden  of  persuasion  on  the  issue  as  well."  McCcRMiCK 
§  342,  at  803.    See  generally  id.  at  824-26. 

353.  J.  Weinstein,  supra  note  337,  §  303[04],  at  303-22.  See  Mullaney  v. 
Wilbur,  421  U.S.  684  (1975);  McCormick  §  346,  at  831. 

354.  See  McCormick  §  342,  at  804;  Model  Penal  Code  §  1.12(5)  (Proposed 
Official  Draft  1962)  (presumption  defined  in  terms  of  inference).  For  an  excellent 
example  of  a  decision  that  applied  this  analysis  in  the  context  of  a  fencing  prosecu- 
tion, see  State  v.  DiRienzo,  53  N.J.  360,  375-77,  251  A.2d  99,  107-08  (1969). 

355.  McCormick  §  346,  at  831;  1  H.  Underhill,  Criminal  Evidence  §  50  (5th 
ed.  1956);  J.  Weinstein  §  303[04],  at  303-24  to  303-25. 

356.  Note,  Due  Process  Requirements  for  Use  of  Non-Statutory  Inferences  in 
Criminal  Cases,  1973  Wash.  U.  L.  Q.  897,  900  (1973).  See  J.  Weinstein  §  303[04], 
at  303-26.  The  Supreme  Court  has  acknowledged  the  "practical  effect"  of  a  criminal 
law  presumption  in  the  recent  possession  context: 

It  is  true  that  the  practical  effect  of  instructing  the  jury  on  the  inference  arising 
from  unexplained  possession  of  recently  stolen  property  is  to  shift  the  burden 
of  going  forward  with  evidence  to  the  defendant.    If  the  Government  proves  pos- 
session and  nothing  more,  this  evidence  remains  unexplained  unless  the  defend- 
ant introduces  evidence,  since  ordinarily  the  Government's  evidence  will  not  pro- 
vide an  explanation  of  his  possession  consistent  with  innocence. 
Barnes  v.  United  States,  412  U.S.  837,  846  n.ll  (1973).     Note  that  the  Court's  dis- 
cussion subsequently  mentions  that  the  burden  of  going  forward  may  be  shifted  upon 
the  defendant.    Once  again,  this  statement  must  be  analyzed  in  context.    The  Court 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1579 

judge's  instructions  to  the  jury  concerning  the  effect  of  a  judicial  or 
statutory  inference,  which  permit,  but  do  not  compel,  finding  the 
presumed  fact  beyond  a  reasonable  doubt  even  though  jurors  may 
not  have  otherwise  made  such  a  finding.^"  This  effect  is  especially 
pronounced  where  a  statute  authorizes  a  jury  instruction  to  the  ef- 
fect that  the  law  regards  the  proved  fact  as  "strong  evidence"  of  the 
presumed  fact."^®  At  least  on  the  state  level,  then,  presumptions 
can  mitigate  the  adverse  impact  on  a  criminal  prosecutor's  case  that 
flows  from  the  rule  prohibiting  judges  from  commenting  on  the  evi- 
denced^* 

To  safeguard  the  rights  of  defendants,  the  Supreme  Court  has, 
over  time,  formulated  due  process  guidelines  for  criminal  law  pre- 
sumptions. In  Tot  V.  United  States,^^^  the  Court  held  a  statutory 
presumption  constitutional  only  if  there  is  a  reasonable  connection 
in  common  experience  between  the  basic  fact  and  the  presumed 
fact: 

[A]  statutory  presumption  cannot  be  sustained  if  there  be  no  rational 
connection  between  the  fact  proved  and  the  ultimate  fact  presumed, 
if  the  inference  of  the  one  from  proof  of  the  other  is  arbitrary  because 
of  lack  of  connection  between  the  two  in  common  experience.  This 
is  not  to  say  that  a  valid  presumption  may  not  be  created  upon  a 
view  of  relation  broader  than  that  a  jury  might  take  in  a  specific  case. 
But  where  the  inference  is  so  strained  as  not  to  have  a  reasonable 
relation  to  the  circumstances  of  life  as  we  know  them,  it  is  not  compe- 
tent for  the  legislature  to  create  it  as  a  rule  governing  the  procedure 
of  courts.^^^ 

is  speaking  in  terms  of  "practical  effect,"  and  not  in  terms  of  a  formal  shift  that 
would  require  a  directed  verdict  in  the  absence  of  rebutting  evidence.  See  note  346 
supra.  Justice  Black,  however,  has  argued  that  even  a  shift  in  terms  of  practical  ef- 
fect is  unconstitutional.  See  Turner  v.  United  States,  396  U.S.  398,  429-34  (1970) 
(Black,  J.,  dissenting);  United  States  v.  Gainey,  380  U.S.  63,  74-88  (1965)  (Black, 
J.,  dissenting).    See  generally  J.  Weinstein  §  303[01],  at  303-08. 

357.  For  a  discussion  of  the  relationship  between  presumptions  and  jury  instruc- 
tions in  the  criminal  law,  see  notes  346-54,  369-75,  405-12  infra  and  accompanying 
text. 

358.  For  example,  S.l  provides  that  "although  the  evidence  as  a  whole  must  es- 
tablish the  presumed  fact  beyond  a  reasonable  doubt,  the  jury  may  arrive  at  that  judg- 
ment on  the  basis  of  the  presumption  alone,  since  the  law  regards  the  fact  giving  rise 
to  the  presumption  as  strong  evidence  of  the  fact  presumed."  Rule  25.1  (4) (ii). 
When  phrased  in  such  terms,  "the  existence  of  a  statutory  presumption  will  probably 
enhance  the  value  of  a  baric  fact  for  the  prosecution  beyond  its  purely  inferential 
significance."  J.  Weinstein  §  303[02],  at  303-18.  For  a  more  detailed  discussion 
of  the  potential  impact  of  different  jury  instructions,  see  text  at  notes  406-12  infra. 

359.  In  the  absence  of  a  presumption,  most  states  do  not  permit  the  judge  to  com- 
ment on  the  evidence.  See  note  333  supra  and  accompanying  text.  While  the  pre- 
sumption does  not  give  him  a  right  of  comment,  he  is  at  least  permitted  to  inform 
the  jury  of  the  inferential  weight  which  may  be  attributed  to  certain  fact  patterns. 

360.  319  U.S.  463  (1943)  (footnotes  omitted). 

361.  319  U.S.  at  467-68.    In  United  States  v.  Gainey,  380  U.S.  63  (1965),  the 


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1580  Michigan  Law  Review  [Vol.  74:1511 

The  Court  further  developed  the  "rational  connection"  test  in  Leary 
V.  United  States,^^'  which  held  that  "a  criminal  statutory  presump- 
tion must  be  regarded  as  'irrational'  or  'arbitrary,'  and  hence  uncon- 
stitutional, unless  it  can  at  least  be  said  with  substantial  assurance 
that  the  presumed  fact  is  more  likely  than  not  to  flow  from  the 
proved  fact  on  which  it  is  made  to  depend."^*^*  In  Leary,  the  Court 
overturned  a  statute  that  authorized  conviction  of  a  person  for  pos- 
session of  marijuana  with  knowledge  it  was  illegally  imported  and 
that  presumed  such  knowledge  solely  on  proof  of  unexplained  pos- 
session. 

When  a  presumption  is  not  involved,  due  process,  of  course,  re- 
quires that  the  prosecution  establish  each  element  of  a  criminal  of- 
fense beyond  a  reasonable  doubt. '®^  One  plausible  reading  of  the 
Leary  Court's  rational-connection  analysis,  however,  would  find  it 
constitutionally  proper  to  submit  a  case  to  the  jury  when  the  evidence 
supporting  the  presumed  fact  satisfied  the  "more  likely  than  not"  test 
but  was  insufficient  to  permit  a  finding  that  the  element  existed  be- 
yond a  reasonable  doubt.  At  least  one  commentator  has  suggested 
that  a  less  restrictive  evidentiary  standard  for  presumptions  is  defen- 
sible since  "[tjhere  is  ordinarily  no  need  for  a  presumption  where 
the  basic  fact  would,  under  ordinary  methods  of  utilizing  circumstan- 

Court  applied  the  Tot  test  in  upholding  a  statute  that  provided  that  a  defendant's  un- 
explained presence  at  an  illegal  still  was  sufficient  evidence  to  authorize  a  conviction 
for  carrying  on  "the  business  of  a  distiller."  380  U.S.  at  64.  The  Court  reasoned 
that  the  rationality  test  had  been  met,  since  "Congress  was  undoubtedly  aware  that 
manufacturers  of  illegal  liquor  are  notorious  for  the  deftness  with  which  they  locate 
arcane  spots  for  plying  their  trade  .  .  .  [and]  that  strangers  to  the  illegal  business 
rarely  penetrate  the  curtain  of  secrecy."  380  U.S.  at  67-68.  An  identical  presump- 
tion, but  one  that  attempted  to  authorize  a  conviction  for  possession  of  an  illegal  still, 
was  subsequently  struck  down  under  the  Tot  analysis.  See  United  States  v.  Romano, 
382  U.S.  136  (1965). 

Significantly,  although  Gainey,  Romano,  and  other  Supreme  Court  decisions  ap- 
plied the  rational  connection  test  to  statutory  presumptions,  the  Court's  recent  deci- 
sion in  Barnes  v.  United  States,  412  U.S.  837  (1973),  suggests  that  an  identical  analy- 
sis is  appropriate  for  judicial  presumptions.  412  U.S.  at  845  n.8.  See  notes  378-84 
infra  and  accompanying  text. 

362.  395  U.S.  6  (1969). 

363.  395  U.S.  at  36  (emphasis  added).  On  this  basis,  the  Court  held  constitu- 
tional a  statutory  presumption  providing  that  unexplained  possession  of  marihuana 
"shall  be  deemed  sufficient  evidence  to  authorize  conviction"  for  receiving,  conceal- 
ing, buying,  selling,  or  transporting  the  substance  with  knowledge  of  its  illegal 
importation.  395  U.S.  at  30  (quoting  from  21  U.S.C.  §  176a).  "The  Court  con- 
cluded that  in  view  of  the  significant  possibility  that  any  given  marihuana  was  do- 
mestically grown  and  the  improbability  that  a  marihuana  user  would  know  whether 
his  marihuana  was  of  domestic  or  imported  origin,  the  inference  did  not  meet  the 
standards  set  by  Tot,  Gainey,  and  Romano."  Barnes  v.  United  States,  412  U.S.  837, 
842(1973).    5fe  395  U.S.  at  52-53. 

364.  In  re  Winship,  397  U.S.  358,  364  (1970). 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1581 

tial  evidence,  result  in  a  jury  finding  the  presumed  fact."^^^  This 
argument  appears  to  be  misconceived,  however,  because  the  primary 
purpose  of  modem  presumptions  is  not  to  lower  the  standard  of 
proof  but  only  to  facilitate  the  fact-finding  process  by  providing 
jurors  with  information  concerning  a  possible  relationship  between 
the  fact  proved  and  the  presumed  fact  that  may  be  beyond  their  com- 
mon experience.^*'®  By  creating  a  presumption,  the  legislature,  in 
effect,  serves  as  an  expert  witness  offering  testimony  through  the 
judge's  instructions  regarding  the  evidentiary  significance  of  a  par- 
ticular fact  pattern.^"  There  is  no  reason  for  affording  this  particu- 
lar type  of  "expert  testimony"  special  treatment  by  subjecting  it  to 
a  different  standard  simply  because  it  is  a  legislative  or  judicial  pre- 
sumption. Indeed,  although  Leary  and  subsequent  cases  have  not 
directly  decided  whether  a  presumption  must  satisfy  the  reasonable 
doubt  standard,  one  commentator  has  argued  that  the  Court  has  in 
fact  adopted  that  evidentiary  standard.^®® 

365.  J.  Weinstein  §  303[02],  at  303-12.  "Requiring  a  lesser  quantum  of  evi- 
dence is,  of  course,  the  prime  reason  for  resorting  to  presumptions."    Id. 

366.  Legislatures  are  "permitted  to  create  presumptions  based,  not  only  upon  in- 
ferences that  might  naturally  be  derived  from  the  facts,  but  also  upon  information 
that  will  never  be  given  to  the  jury."  McCormick  816.  "[Criminal]  presumptions 
are  based  on  empirical  evidence  that  may  be  outside  the  expected  knowledge  of  the 
average  juror  .  .  .  ."  S.  1  Report  1094.  See  note  338  supra  and  accompanying  text. 
"Unless  the  jurors  are  told  of  the  value  of  the  basic  facts,  which  by  hypothesis  is 
not  readily  available  to  them,  they  may  acquit  when  conviction  is  justified."  Work- 
ing Papers  21.  Nevertheless,  since  a  presumption  in  the  criminal  law  context  oper- 
ates only  as  a  permissive  inference,  notes  351-54  supra  and  accompanying  text,  it  of- 
ten serves  as  an  evidentiary  device  that  "merely  formalizes  a  natural  inference  which 
one  might  expect  reasonable  jurors  to  draw  on  their  own."  S.  1  Report  1904.  See 
C.  ToRCiA,  supra  note  338,  §  90;  9  J.  Wigmore,  supra  note  277,  §  2491,  at  288.  For 
this  reason,  S.l  proposes  the  use  of  stronger  jury  instructions  for  statutory  presump- 
tions that  embody  the  special  expertise  of  the  law.  Working  Papers  20-21,  24-25. 
See  notes  406-12  infra  and  accompanying  text. 

367.  Thus  "[i]n  United  States  v.  Gainey,  380  U.S.  63  (1965),  the  Court  sug- 
gested that  in  empirical  matters  'not  within  specialized  judicial  competence  or  com- 
pletely commonplace,  significant  weight  should  be  accorded  the  capacity  of  Congress 
to  amass  the  stuff  of  actual  experience  and  cull  conclusions  from  it.'  380  U.S.  at 
67."    Working  Papers  20  n.52.    See  notes  338,  366  supra. 

368.  W.  LaFave  &  A.  Scorr,  supra  note  14,  at  149.  See  J.  Weinstein  §  303[02], 
at  303-12  to  303-13.  Although  the  Supreme  Court,  in  Turner  v.  United  States,  396 
U.S.  398  (1970),  did  not  expressly  adopt  the  beyond  a  reasonable  doubt  standard, 
commentators  have  suggested  that  "the  Court's  frequent  reference  to  that  standard 
in  Turner,  coupled  with  its  decision  in  In  re  Winship  [397  U.S.  358,  364  (1970] 
recognizing  that  such  a  measure  of  proof  is  constitutionally  required  in  criminal 
cases,  makes  it  likely  that  the  reasonable  doubt  standard  will  be  applied  to  test  the 
validity  of  presumptions  in  the  future."  McCormick  816.  See  Christie  &  Pye,  Pre- 
sumptions and  Assumptions  in  the  Criminal  Law:  Another  View,  1970  Duke  L.J. 
919,  923.  Since  the  Supreme  Court's  initial  draft  of  the  Proposed  Federal  Rules  of 
Evidence  contained  a  section  that  seemed  to  incorporate  the  reasonable  doubt  stand- 
ard, the  commentators'  forecasts  did  not  seem  unreasonable.  Proposed  Federal 
Rules  of  Evidence,  56  F.R.D.  183,  §  303(b)  (1973).    See  J.  Weinstein  §  303[02], 


92-465  O  -  77  -  9 


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A  more  fundamental  and  potentially  more  important  question, 
however,  is  whether  the  federal  courts  have  indeed  been  correct  in 
analyzing  presumptions  in  terms  of  the  due  process  requirements. 
A  presumption  in  the  criminal  law  is  not  mandatory;  it  only  triggers 
a  jury  instruction  concerning  inferences  that  may  be  made  if  particu- 
lar evidence  is  believed.^""  Accordingly,  in  the  federal  courts,  where 
the  trial  judge  still  retains  his  common-law  privilege  to  comment  on 
the  evidence,^^''  a  presumption,  in  fact,  adds  nothing  to  the  substance 
and  impact  of  a  jury  instruction.  The  discretionary  right  to  comment 
on  the  evidence  permits  the  judge  to  "  'analyze  and  dissect  the  evi- 
dence ...  in  order  to  give  appropriate  assistance  to  the  jury,'  "''^^ 
and  it  is  well  within  the  traditional  scope  of  this  privilege  to  comment 
on  the  significance  of  certain  fact  patterns. ^^^  The  judge's  discretion 
is,  of  course,  not  arbitrary  and  uncontrolled,*"  but  once  a  statutory 
presumption  in  the  criminal  context  is  viewed  as  an  exercise  of  dis- 
cretion, the  appropriate  question  concerns  the  propriety  of  the  com- 
mentary or,  more  specifically,  whether  it  infringes  upon  the  jury's 
role  as  factfinder,  and  not  whether  a  particular  criminal  presumption, 
however  tested,  comports  with  due  process.  The  results  often  will 
be  the  same  regardless  of  which  analysis  is  applied,  but  this  will  not 
always  be  so  since  the  standard  of  review  is  more  flexible  when  the 
question  is  one  of  judicial  discretion  rather  than  one  of  due  proc- 
ess.^^* 

Currently,  however,  state  restrictions  on  the  trial  judge's  right  to 

at  303-16  to  303-18.  Nevertheless,  when  the  Court  was  subsequently  given  the 
chance  to  adopt  this  standard,  it  declined  to  exercise  this  option.  See  Barnes  v. 
United  States,  421  U.S.  837,  843  (1973). 

TTius  far,  the  reasonable  doubt  standard  has  not  been  adopted  by  Congress.  Sec- 
tion 303  of  the  Proposed  Federal  Rules  of  Evidence  was  excised  from  the  draft  which 
was  ultimately  enacted  into  law.  See  J.  Weinstein  303-1  to  303-6.  S.l,  however, 
has  pioposed  the  enactment  of  this  evidentiary  standard.  Rule  25.1(a)(4).  S.l  Re- 
port 1093-94. 

369.  See  notes  346-54  supra  and  accompanying  text. 

370.  See  note  333  supra 

371.  Trial  by  Jury  125  (quoting  Quercia  v.  United  States,  289  U.S.  466,  470 
(1933)).  Since  jurors  naturally  tend  to  equate  the  judge  with  their  concept  of  "the 
law,"  there  is  little  practical  difference  between  the  effect  achieved  by  a  jury  instruc- 
tion concerning  what  "the  law"  regards  as  a  permissible  inference  and  the  trial  judge's 
commentary  regarding  the  significance  of  certain  fact  patterns. 

372.  In  "exceptional  cases,"  current  federal  law  even  permits  "an  expression  of 
belief  in  the  defendant's  guilt."    Id.  at  127. 

373.  /</.  at  125. 

374.  "It  would  appear  that  the  comment  privilege  of  federal  judges  is  not  abused. 
One  study  covering  12  years  noted  that  of  5,781  federal  criminal  cases  tried  to  juries 
and  appealed,  in  only  85  cases  was  any  complaint  made  about  the  judge's  comments. 
The  comments  were  held  to  be  reversible  error  in  but  30  of  these  cases,  and  were 
criticized  in  but  two  others."    Id. 


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August  1976]       Criminal  Distribution  of  Stolen  Property  1583 

comment  on  the  evidence  inhibit  the  adoption  of  this  approach  at 
the  state  level ;^"  at  the  federal  level,  unfortunately,  the  Supreme 
Court  has  shown  no  tendency  to  depart  from  the  well-established  ra- 
tional-connection line  of  analysis.  Thus,  legislative  bodies  must 
enact  statutory  presumptions  that  are  consistent  with  a  due  process 
line  of  analysis,  with  the  probable  result  that  only  those  inferences 
that  enable  a  jury  to  find  the  presumed  fact  beyond  a  reasonable 
doubt  will  ultimately  be  held  constitutional. 

Yet,  even  though  the  trend  is  to  a  more  rigorous  constitutional 
standard,  the  Supreme  Court  has  indicated  courts  may  defer  in  some 
instances  to  the  expertise  or  judgment  of  legislatures  in  enacting  pre- 
sumptions. In  United  States  v.  Gainey,^""^  the  Court  stated  that  in 
empirical  matters  "not  within  specialized  judicial  competence  or 
completely  commonplace,  significant  weight  should  be  accorded  the 
capacity  of  Congress  to  amass  the  stuff  of  actual  experience  and  cull 
conclusions  from  it."^"  This  approach  was  reiterated  in  Leary  and, 
more  recently,  appears  to  have  been  adopted  in  Barnes  v.  United 
States,^''^  where  the  Court  considered  the  constitutionality  of  the  re- 
cent possession  doctrine.^^®  Before  Barnes,  several  state  courts  had 
held  the  doctrine  constitutionally  deficient  under  the  Leary  stand- 
ard,'®*' even  though  it  had  been  considered  virtually  a  universally  rec- 

375.  Since  most  states  prohibit  or  restrict  any  judicial  commentary,  note  333  su- 
pra, any  guidance  to  the  jury  concerning  the  significance  of  a  particular  fact  pattern 
must  be  accomplished  through  the  use  of  criminal  presumptions.  Even  this  goes  too 
far  in  some  jurisdictions.  For  example,  Arkansas  has  traditionally  equated  comment 
and  presumptions  and  condemned  both  as  an  invasion  of  the  province  of  the  jury. 
See  Lott  v.  State,  223  Ark.  841,  268  S.W.2d  891  (1954);  Blankenship  v.  State,  55 
Ark.  244,  247-48,  18  S.W.  54,  55  (1891). 

376.  380  U.S.  63  (1965). 

377.  380  U.S.  at  67. 

378.  412  U.S.  837  (1973). 

379.  Many  decisions  involving  criminal  presumptions  related  to  fencing  activity 
have  been  concerned  with  the  sale  of  property  by  minors.  Compare  People  v.  Steven- 
son, 58  Cal.  2d  794,  376  P.2d  297,  26  Cal.  Rptr.  297  (1962)  (en  banc),  with  State 
V.  Bundy,  91  Ariz.  325,  372  P.2d  329  (1962)  (en  banc).  See  generally  Note,  Statu- 
tory Criminal  Presumptions:  Judicial  Slight  of  Hand,  53  Va.  L.  Rev.  702,  723-29 
(1967). 

380.  See  Carter  v.  State,  82  Nev.  246,  248-50,  415  P.2d  325,  326-27  (1966); 
Payne  v.  State,  435  P.2d  424,  427-28  (Okla.  Crim.  App.  1968);  Commonwealth  v, 
Owens,  441  Pa.  318,  323-26,  271  A.2d  230,  233  (1970).  Contra,  Steve  v.  DiRienzo, 
53  N.J.  360,  251  A.2d  99  (1969).  The  Carter  and  >a>'/ie  decisions  may  have  been 
made  in  part  on  the  basis  of  a  judicial  concern  with  what  was  perceived  to  be  an 
unconstitutional  shifting  of  the  burden  of  persuasion.  See  note  346  supra.  Neverthe- 
less, a  similar  concrrn  did  not  furnish  the  basis  for  the  Owens  decision.  There,  the 
Pennsylvania  supreme  court  seemingly  focused  on  the  general  insufficiency  of  the 
prosecution's  evidence  and  on  statistics  suggesting  that  the  presumption  was  arbitrary 
in  the  particular  context  applied  (a  stolen  handgun).  441  Pa.  at  324-25,  271  A.2d 
at  233-34.  The  court  erroneously  cited  autho.'-ity  purportedly  demonstrating  that  a 
majority  of  jurisdictions  have  rejected  the  recent  possession  doctrine.    441  Pa.  at  326 


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1584  Michigan  Law  Review  [Vol.  74:1511 

ognized  presumption.'®^  The  Barnes  Court,  however,  recognized 
the  "impressive  historical  basis"  underlying  the  recent  possession 
rule  and  considered  "[tjhis  longstanding  and  constant  judicial  approval 
of  the  instruction,  reflecting  accumulated  common  experience,  [as 
providing]  .  .  .  strong  indication  that  the  instruction  comports  with 
due  process."'*^  Nevertheless,  the  Court  considered  historical  con- 
siderations alone  insufficient  to  warrant  automatic  constitutional  ap- 
proval, and  thus  proceeded  independently  to  examine  the  presump- 
tion "m  light  of  present-day  experience,"'*'  holding  the  presump- 
tion comports  with  due  process  regardless  of  the  evidentiary  standard 
applied.'** 

The  analysis  offered  in  Barnes  has  at  least  three  important  com- 
ponents. First,  it  suggests  that  legislatures  enacting  criminal  pre- 
sumptions should  gather  extensive  empirical  data  and  hold  hearings 
examining  all  issues  involved.  Legislatures  can  make  such  studies 
more  efficiently  than  can  courts,  and  if  an  adequate  record  is  devel- 
oped, courts  should  be  willing  to  defer  to  legislative  determinations. 
Second,  by  testing  the  constitutionality  of  criminal  presumptions  with 
reference  to  the  modem  context,  the  Court  has  seemingly  introduced 
the  potential  for  much  needed  flexibility  in  law  enforcement  efforts. 
It  is  constitutionally  permissible  for  legislatures  to  draft  new  pre- 
sumptions to  handle  ever  changing,  increasingly  sophisticated  fenc- 
ing techniques"'^  provided  the  appropriate  evidentiary  standard  is 
satisfied.  Third,  the  Court  has  reaffirmed  the  principle  that  a  pre- 
sumption in  a  criminal  case  does  not  violate  a  defendant's  fifth 
amendment  privilege  against  self-incrimination  provided  the  jury  is 
instructed  that  the  accused  has  a  constitutional  right  not  to  take  the 
stand  and  that  the  basic  incriminating  fact  "could  be  satisfactorily  ex- 
plained by  evidence  independent  of  petitioner's  testimony.'"**  The 
tendency  of  a  presumption  to  implicate  the  defendant  and  increase 
the  pressure  on  him  to  testify  was  considered  a  consequence  of  the 

n.5,  271  A. 2d  at  234  n.5.  The  cited  authority,  however,  merely  states  the  well  ac- 
cepted principle  that  the  recent  possession  rule  is  inapplicable  in  the  absence  of  addi- 
tional incriminating  circumstantial  evidence.  See  note  391  infra  and  accompanying 
text. 

381.  Christie  &  Pye,  supra  note  347,  at  925.     See,  e.g..  United  States  v.  Jones, 
418  F.2d  818,  821  (8th  Cir.  1969). 

382.  412  U.S.  at  844. 

383.  412  U.S.  at  844. 

384.  412  U.S.  at  844-45. 

385.  Note,  supra  note  379,  at  702.     The  sophisticated  techniques  employed  by 
modern  fences  are  discussed  in  notes  137-52  supra  and  accompanying  text. 

386.  412  U.S.  at  846-47. 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1585 

adversary  process  not  in  violation  of  fifth  amendment  privilege.^^' 
If  the  defendant  is  the  only  party  with  access  to  facts  capable  of  re- 
butting the  inference,  his  misfortune  is  "inherent  in  the  case"  and 
not  necessarily  created  by  the  evidentiary  presumption.^** 

The  Barnes  approach  to  criminal  presumptions  is  especially  wel- 
comed, for  it  has  become  increasingly  apparent  that  the  long-used 
recent  possession  doctrine  alone  is  unable  to  cope  with  sophisticated 
receivers. ^^'^  Prosecutors  have  the  task  of  establishing  that  the  de- 
fendant had  unexplained,  exclusive  possession  of  stolen  property.^^" 
The  difficulties  they  encounter  in  doing  this  are  inherent  in  the  very 
formulation  of  the  rule.  First,  proof  of  recent  possession,  in  the  ab- 
sence of  other  affirmative  evidence  tending  to  establish  guilt,  is  not 
sufficient  in  many  jurisdictions  to  sustain  a  conviction.^®^  Second, 
although  not  every  explanation  a  defendant  offers  precludes  a  jury 
instruction,^®^  the  more  sophisticated  fences  can  take  precautionary 
measures  that  enable  them  to  give  reasonable  explanations  consistent 
with  innocence. ^^^  Third,  even  when  no  such  explanation  is  forth- 
coming, some  jurisdictions  hold  that  the  rule  does  not  apply  where 
the  prosecution  is  able  to  establish  only  constructive  possession.*** 
This  approach  directly  impedes,  for  example,  the  successful  prosecu- 

387.  412  U.S.  at  847.  Nor  would  the  Court  consider  the  trial  judge's  instruction 
concerning  the  effect  of  the  recent  possession  rule  to  constitute  an  impermissible 
"comment  on  the  defendant's  failure  to  testify."  412  U.S.  at  846  n.l2,  quoting 
United  States  v.  Gainey,  380  U.S.  63,  70-71  (1965). 

388.  The  Court  here  cited  with  approval  Yee  Hem  v.  United  States,  268  U.S.  178, 
185  (1925),  which  said  that  a  statutory  presumption  does  not  compel  a  defendant 
to  be  a  witness  against  himself. 

389.  See  J.  Hall,  supra  note  5,  at  189-93. 

390.  9  J.  WiGMORE,  supra  note  277,  §  2513,  at  422. 

391.  See,  e.g..  State  v.  Long,  243  Ore.  561,  565,  415  P.2d  171,  173  (1966). 
"Whether  possession  plus  additional  circumstances  is  sufficient  to  show  knowledge  is 
a  matter  which  must  be  considered  on  a  case  to  case  basis."  Torres  v.  United  States, 
270  F.2d  252,  258  (9th  Cir.  1959).    See  also  Annot.,  68  A.L.R.  187,  187-88  (1930). 

392.  "[T]he  mere  fact  that  there  is  some  evidence  tending  to  explain  a  defend- 
ant's possession  consistent  with  innocence  does  not  bar  instructing  the  jury  on  the 
inference.  The  jury  must  weigh  the  explanation  to  determine  whether  it  is  'satisfac- 
tory.' "    Barnes  v.  United  States,  412  U.S.  837,  845  n.9  (1973). 

393.  See  note  138  supra  and  accompanying  text. 

394.  See,  e.g..  United  States  v.  Russo,  123  F.2d  420,  422  (3rd  Cir.  1941).  Some 
courts  have  held  that  constructive  possession  merely  serves  to  weaken  the  presump- 
tion's inferential  strength,  while  others  have  seemingly  ignored  this  question  com- 
pletely. Compare  United  States  v.  Casalinuovo,  350  F.2d  207,  211  (2d  Cir.  1965), 
and  United  States  v.  DeSisto,  329  F.2d  929,  935  (2d  Cir.  1964),  cert,  denied,  377 
U.S.  979  (1966),  with  Boehm  v.  United  States,  271  F.  454,  457  (1921).  It  is  easy 
to  see  how  a  reconsideration  of  the  presumption  field  in  light  of  the  power  of  judges 
to  comment  on  the  evidence  would  facilitate  the  proper  resolution  of  this  split.  So- 
phisticated analysis  of  "inference  on  an  inference"  would  be  inappropriate;  the  issue 
would  be  abuse  of  discretion.  See  Trial  by  Jury  125.  See  generally  C,  Torcia,  su- 
pra note  338,  §  91,  at  148-51. 


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1586  Michigan  Law  Review  [Vol.  74:1511 

tion  of  master  fences  who  avoid  physical  contact  with  stolen  goods.^®' 
Fourth,  the  recent  possession  doctrine  is  not  applicable  where  the 
defendant  establishes  that  the  possession  was  nonexclusive  because 
other  persons,  not  involved  in  the  theft  or  fencing,  also  had  access 
to  the  goods.^^*  Finally,  since  courts  recognize  the  inferential  value 
of  proof  of  possession  of  stolen  property  weakens  as  the  time  of  the 
theft  becomes  more  remote,  the  doctrine's  effectiveness  as  a  prose- 
cutorial tool  is  always  limited  by  the  fence's  potential  ability  to  con- 
ceal the  goods  until  the  court  "must  hold  that  as  a  matter  of  law 
possession  is  no  longer  'recent.'  "^®' 

These  deficiencies  in  the  recent  possession  rule,  combined  with 
the  increasing  sophistication  of  the  modem  fencing  process  and  the 
declining  ability  of  present-day  jury  panels  to  deal  with  complex  is- 
sues,'®^ necessitate  the  enactment  of  more  effective  criminal  presump- 
tions to  help  establish  the  mens  rea.  The  Model  Penal  Code,  for 
example,  includes  a  presumption  that  would  apply  to  any  retailer  or 
wholesaler  v/ho  acquires  property  "for  a  consideration  which  he 
knows  is  far  below  its  reasonable  market  value. "^®®  Such  a  pre- 
sumption, which  appropriately  focuses  upon  a  designated  class  of  in- 
dividuals whose  fencing  activities  have  had  a  profound  impact  on  the 
national  economy,*"''  is  included  in  section  5  of  the  Model  Act."^ 

395.  See  notes  142-47  supra  and  accompanying  text. 

396.  See  C.  ToRCiA,  supra  note  338,  §  139,  at  237  n.40.  Some  courts  have  re- 
fused to  recognize  the  inference  where  the  stolen  goods  were  found  "in  a  place  where 
persons  other  than  the  defendant  had  an  equal  right  and  facility  of  access  thereto." 
Annot.,  51  A.L.R.3d  727,  §  48(b),  at  811  (1973).  In  general,  however,  "the  requi- 
site of  'exclusive  possession'  is  anything  but  strictly  applied  in  the  defendant's  favor. 
In  case  after  case,  the  courts  have  considered  all  the  circumstances  in  determining 
whether  a  jury  might  raise  an  inference  of  guilt  from  whatever  degree  of  possession 
might  be  attributed  to  the  defendant."  Id.  §  2,  at  732.  Thus,  the  "jointness"  ap- 
proach is  widely  applied,  id.  §  48(a),  at  810  and  possession  is  often  considered  ex- 
clusive where  other  persons  have  equal  access  under  circumstances  that  suggest  that 
the  defendant  knew  that  their  right  to  access  would  probably  not  be  exercised.  See 
United  States  v.  Casalinuovo,  350  F.2d  207,  210-11  (2d  Cir.  1965). 

397.  Staff  Report  on  Small  Business  9-10  (footnote  omitted).  Cf.  C.  Torcia, 
supra  note  338,  §  139,  at  239.  Most  fences  naturally  prefer  to  dispose  of  their  goods 
quite  quickly,  which  they  are  generally  able  to  do.  See  notes  131,  171  supra  and 
accompanying  text.  Nevertheless,  when  necessary,  "[c]ertain  types  of  property  like 
jewelry  and  securities  can  be  easily  concealed  for  an  indefinite  period  of  time."  J. 
Hall,  supra  note  5,  at  191.  Even  when  long-term  concealment  is  not  contemplated, 
modem  tracing  techniques  are  so  rudimentary  that  the  interval  between  theft  and  re- 
covery is  frequently  quite  long.    Id. 

398.  See  authorities  cited  note  138  supra. 

399.  Model  Penal  Code  §  223.6(2 )(c)  (Proposed  Official  Draft  1962).  The 
Code  defines  "dealer"  as  "a  person  in  the  business  of  buying  or  selling  goods."    Id. 

400.  See  generally  notes  31-60,  48-49,  115-16,  118-20,  188  supra  and  accompany- 
ing text.     The  Code's  proposal  would  apply  to  professional  fences  and  to  all  so- 


8701 


August  1976]        Criminal  Distribution  of  Stolen  Property  1587 

Nevertheless,  since  this  provision  would  require  the  prosecution  to 
establish  a  purchase  price  far  below  market  value,  a  more  sophisti- 
cated criminal  presumption  might  be  necessary  to  handle,  for  exam- 
ple, those  situations  where  adequate  business  records  are  not  avail- 
able to  help  establish  the  purchase  price.  Accordingly,  the  Model 
Act  contains  a  companion  presumption  that  would  give  rise  to  an 
inference  of  recklessness  whenever  a  dealer  has  made  an  unex- 
plained purchase  out  of  the  ordinary  course  of  business,*"^  This  pre- 
sumption would  apply  on  proof  of  unrecorded  transactions,  the  re- 
tention of  nonitemized  or  bogus  receipts,  the  possession  of  altered 
merchandise,  unusual  methods  of  payment,  purchases  from  noninsti- 
tutional  sources,  or  similar  conduct,  that  is  viewed  as  purchasing  be- 
havior not  in  the  "usual  course  of  trade."*"^  Since  normal  trade  prac- 
tices tend  to  vary  by  business,  the  presumption  is  cast  in  generalized 
terms  to  include  the  five  preceding  examples,  yet  also  to  retain  suf- 
ficient flexibility  to  cover  other  unusual  practices.*"*  Similar  pre- 
sumptions should  be  enacted  to  help  prosecutors  establish  the  guilty 
state  of  mind  in  those  jurisdictions  that  retain  the  stricter  standard  of 
criminal  liabiHty. 

These  statutory  presumptions  would,  it  is  hoped,  encounter  little 
or  no  difficulty  receiving  judicial  approval  regardless  of  which  evi- 
dentiary standard  is  applied.*"'  In  drafting  such  presumptions,  it 
must  be  recognized  that  the  constitutional  constraints  that  preclude 
the  operation  of  sc-called  true  presumptions  in  criminal  cases*"*  do 
not  prohibit  legislatures  from  authorizing  jury  instructions  that  give 
additional  strength  to  any  particular  statutory  presumption.*"'  Thus, 
although  Congress*"^  and  state  legislatures  have  been  reluctant  to 

called  "legitimate"  businesses.  Master  fences  would  be  indirectly  affected,  since  they 
frequently  funnel  stolen  goods  to  these  establishments. 

401.  Model  Theft  antd  Fencing  Act  §  5(a)  (2),  Appendix  B. 

402.  See  Model  Theft  and  Fencing  Act  §  5(a)(3),  Appendix  B.  A  similar 
proposal  was  initially  suggested  over  twenty  years  ago  in  Hall's  classic  study.  See 
J.  Hall,  supra  note  5,  at  224. 

403.  Id.  See  notes  331-33  supra  and  accompanying  text.  In  particular,  note  332 
supra  contains  Hall's  detailed  list  of  circumstances  that  are  often  out  of  the  ordinary 
course  of  business.  On  occasion,  with  respect  to  certain  types  of  dealers  (i.e.,  junk 
merchants  or  pawnbrokers),  the  law  may  require  that  certain  procedures,  such  as  rec- 
ord-keeping, be  made  part  of  the  ordinary  course  of  business,  and  attach  specific  con- 
sequences for  failure  to  comply.    See.  e.g.,  Fla.  Stat.  Ann.  §  812.051  (Supp.  1975). 

404.  By  analogy,  note  that  the  drafters  of  the  Uniform  Commercial  Code  did  not 
consider  it  necessary  to  provide  a  detailed  definition  of  the  term  "buyer  in  the  ordi- 
nary course  of  business."    See  Uniform  Commercial  Code  §  1-201(9). 

405.  See  note  330  supra  and  accompanying  text. 

406.  See  notes  350-54  supra  and  accompanying  text. 

407.  See  Working  Papers  23. 

408.  Currently,  none  of  the  federal  statutes  concerned  with  fencing  provide  any 


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1588  Michigan  Law  Review  [Vol.  74:1511 

exercise  this  power,  it  ought  to  be  held  constitutionally  proper  to 
provide  that  a  jury  be  instructed,  for  example,  that  "although  the 
evidence  as  a  whole  must  establish  the  presumed  fact  beyond  a  rea- 
sonable doubt,  the  jury  may  arrive  at  that  judgment  on  the  basis  of 
the  presumption  alone,  since  the  law  regards  the  fact  giving  rise  to 
the  presumption  as  strong  evidence  of  the  fact  presumed. "^°^ 

This  carefully-worded  charge  to  the  jury  ought  to  be  held  satis- 
factory under  the  relevant  constitutional  limitations.  First,  an  instruc- 
tion that  "the  evidence  as  a  whole  must  establish  the  presumed  fact  be- 
yond a  reasonable  doubt"  assures  that  the  presumption  is  not  given 
undue  significance  and  protects  a  defendant's  right  to  have  the  pros- 
ecution establish  all  elements  of  the  alleged  crime  beyond  a  reason- 
able doubt.  Second,  a  defendant's  constitutional  right  to  jury  trial 
of  all  elements  of  the  crime  is  guaranteed  since  the  jury  is  not  re- 
quired to  find  the  presumed  fact  on  proof  of  the  proved  fact.  Third, 
even  though  the  "strong  evidence"  portion  of  the  jury  instruction  cer- 
tainly creates  more  pressure  on  the  defendant  to  come  forward  and 
testify,  his  fifth  amendment  privilege  against  self-incrimination  still 

criminal  presumptions  to  assist  in  proof  of  substantive  elements  of  the  offense.  The 
only  statutory  presumption  included  in  any  of  these  statutes  is  concerned  exclusively 
with  interstate  commerce,  a  jurisdictional  element.  18  U.S.C.A.  §  659  (Supp.  1976). 
See  Working  Papers  26-31.  S.l  has  finally  proposed  that,  in  the  absence  of  a  rea- 
sonable explanation,  both  "possession  of  property  recently  stolen"  and  the  "purchase 
...  of  stolen  property  at  a  price  substantially  below  its  market  value,"  constitute 
prima  facie  evidence  of  the  knowledge  element.  S.l,  §  101,  at  148  (proposed  §  1738 
(b)).  Nevertheless,  since  S.l  distinguishes  between  prima  facie  evidence  and  statutory 
presumptions  by  attributing  strong  inferential  weight  and  authorizing  a  strong  jury  in- 
struction only  for  presumptions,  characterizing  these  fact  patterns  merely  as  prima 
facie  evidence  subordinates  their  evidentiary  significance  and  eliminates  a  real  oppor- 
tunity for  facilitating  the  prosecutorial  effort.  See  S.l,  §  102,  at  345  (proposed  Rule 
25.1(a)).  The  present  congressional  proposal  represents  a  reversal  from  the  position 
initially  advocated  by  the  original  drafters.  See  Working  Papers,  supra  note  262, 
at  22,  935-37. 

409.  S.l,  §  102,  at  12  (proposed  Rule  25.1(a)(4)  (A)(ii))  (emphasis  added). 
Although  the  Supreme  Court  in  United  States  v.  Gainey,  380  U.S.  63,  71  n.7  (1965), 
has  suggested  that  "the  better  practice  would  be  to  instruct  the  jurors  that  they  may 
draw  the  inference  unless  the  evidence  in  the  case  provides  a  satisfactory  explanation 
.  .  .  omitting  any  explicit  reference  to  the  statute  itself  in  the  charge"  this  has  not 
been  viewed  as  a  constitutional  requirement.  See  J.  Weinstein  §  303[07],  at  303- 
36.  The  drafters  of  S.l  viewed  rule  25.1  and  its  required  jury  instruction  as  "a  care- 
ful reconciliation  of  the  prosecution's  and  the  defendant's  interests."  See  Working 
Papers  24.  Since  the  "strong  evidence"  language  used  by  the  section  does  not 
achieve  a  significantly  greater  inferential  effect  than  the  statute  approved  by  the 
Court  in  Gainey  (providing  that  certain  evidence  "shall  be  deemed  sufficient  ...  to 
authorize  conviction"),  the  proposed  instructions  probably  do  not  go  beyond  the 
scope  of  current  fifth  amendment  limitations.  But  see  McCormick  832.  Signifi- 
cantly, Justice  Black,  dissenting  in  Gainey,  maintained  that  "[f]ew  jurors  could  have 
failed  to  believe  that  it  was  their  duty  to  convict  under"  a  jury  instruction  to  the  ef- 
fect that  proof  of  the  basic  fact  shall  be  deemed  sufficient  to  authorize  conviction. 
United  States  v.  Gainey,  380  U.S.  63,  77  (1965)  (Black,  J.,  dissenting). 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1589 

has  not  been  violated.^^"  If  a  trial  judge  commenting  on  the  evi- 
dence could,  in  the  exercise  of  discretion,  opine  that  a  particular  fact 
pattern  is  strong  evidence  of  incriminating  conduct,  the  legislature 
should  have  the  right  to  make  a  similar  observation  through  a  statu- 
tory presumption  read  to  the  jury."*^^  The  pressure  that  would  be 
exerted  upon  the  defendant  is  essentially  the  same  as  that  which 
would  be  applied  if  the  inferential  significance  of  the  proved  facts 
had  been  explained  by  an  independent  expert  witness  during  the 
course  of  the  trial,  although  where  a  witness  testified  it  is  true  that 
the  defendant  would  have  an  opportunity  for  cross-examination.  In 
effect,  once  a  statutory  presumption  has  satisfied  the  relevant  due 
process  test,  the  fifth  amendment  challenge  necessarily  dissolves. 

(iv).  Strict  liability.  Although  the  enactment  of  more  mod- 
em criminal  presumptions  should  facilitate  proof  of  guilty  knowl- 
edge, legislatures  might  alternatively  abandon  the  state  of  mind  ele- 
ment and  treat  possession  of  stolen  property  as  a  strict  liability  of- 
fense.^ ^^  Imposition  of  strict  liability  for  the  receipt  of  stolen  prop- 
erty on  all  classes  of  potential  violators  might  encounter  serious  pol- 
icy and  due  process  objections,  but  it  does  not  necessarily  follow  that 
similar  objections  would  preclude  a  strict  liability  statute  from  being 
applicable  only  to  retail  and  wholesale  dealers.'*"    While  the  Supreme 

410.  See  United  States  v.  Gainey,  380  U.S.  at  70-71;  J.  Weinstein  §  303[07], 
at  303-36. 

411.  While  it  is  still  generally  thought  that  the  older  common  law-position  sup- 
porting comment  obtains  in  the  federal  courts,  note  333  supra,  the  issue  was  clouded 
by  the  Supreme  Court's  opinion  in  Quercia  v.  United  States,  289  U.S.  466  (1933), 
a  decision  soundly  criticized  by  Wigmore.  9  J.  Wigmore,  supra  note  277,  §  2551, 
at  508  n.7.  The  traditional  rule  of  the  Supreme  Court  was  correctly  stated  in  Vicks- 
burg  &  Meridian  R.R.  v.  Putnam,  118  U.S.  545,  553  (1886)  (discretion  to  comment 
on  evidence  that  is  ultimately  submitted  to  jury). 

412.  Strict  liability  for  fencing  offenses  was  considered  and  rejected  by  the  federal 
government  in  1930.  See  J.  Hall,  supra  note  5,  at  228-29.  Currently,  S.l,  "recog- 
niz[ing]  the  force  of  arguments  against  the  imposition  of  criminal  liability  where  a 
person  engages  in  conduct  without  culpability,"  has  required  that  any  legislation  cre- 
ating a  title  18  strict  liability  offense  "be  manifest."  S.l  Report  54.  A  provision 
that  simply  omits  any  reference  to  state  of  mind  will  not  be  considered  a  strict  lia- 
bility offense.  See  S.l,  §  303,  at  15.  This  formulation  is  probably  consistent  with 
the  policy  behind  the  Supreme  Court's  statutory  construction  decision  in  Morissette  v. 
United  States,  342  U.S.  246  (1952),  where  the  Court  essentially  said  "that  mens  rea 
was  presumptively  to  be  implied  in  the  statutory  redefinition  of  offenses  taken  over 
from  the  common  law."  Packer,  Mens  Rea  and  the  Supreme  Court,  1962  Sup.  Ct. 
Rev.  107,  120.  It  is  probably  fair  to  say  that  receipt  is  a  "common  law"  offense,  even 
though  it  developed  late  and  only  through  statutory  enactment. 

413.  One  New  York  decision  struck  down  on  due  process  grounds  a  statute  that 
imposed  strict  liability  upon  junk  dealers.  People  v.  fistreich,  272  App.  Div.  698, 
75  N.Y.S.2d  267  (1947),  affd.  mem.,  297  N.Y.  910,  79  N.E.2d  742  (1948).  This 
position,  however,  seems  to  be  inconsistent  with  the  Supreme  Court's  modern  ap- 
proach to  the  question  of  strict  liability.  See  notes  415-i7  infra  and  accompanying 
text.  But  see  State  v.  DiRienzo,  53  N.J.  360,  376,  251  A.2d  99,  107  (1969)  ("vul- 
nerable to  constitutional  attack"). 


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1590  Michigan  Law  Review  [Vol.  74:1311 

Court  has  acknowledged  that  the  concept  of  mens  rea  is  a  well-estab- 
lished ingredient  of  the  common  law,^^^  the  principle  does  not  yet  have 
independent  constitutional  significance.  Instead,  the  Court  has  char- 
acterized the  strict  liability  issue  as  a  question  of  legislative  policy*  ^^ 
and,  in  the  absence  of  constitutional  infringements,*^^  has  stated  that 
'"[t]here  is  wide  latitude  in  the  lawmakers  to  declare  an  offense  and 
to  exclude  elements  of  knowledge  and  diligence  from  its  defini- 
tion."*" 

The  power  to  legislate  strict  liability  crimes  has  been  repeatedly 
upheld  in  a  series  of  so-called  public  welfare  cases.*^^    Emphasizing 

414.  See  Morissette  v.  United  States,  342  U.S.  246,  250  (1952):  "The  contention 
that  an  injury  can  amount  to  a  crime  only  when  inflicted  by  intention  is  no  provincial 
or  transient  notion.  It  is  as  universal  and  persistent  in  mature  systems  of  law  as 
belief  in  freedom  of  the  human  will  and  a  consequent  ability  and  duty  of  the  normal 
individual  to  choose  between  good  and  evil."  Similarly,  it  has  been^aid  that  "[t]he 
existence  of  a  mens  rea  is  the  rule  of,  rather  than  the  exception  to,  the  principles 
of  Anglo-American  criminal  jurisprudence."  Dennis  v.  United  States,  341  U.S.  494, 
500  (1951).  But  see  Packer,  supra  note  412,  at  145-46  (deeply  imbedded  "principle 
that  ignorance  of  the  law  is  no  excuse"  is  fundamentally  "inconsistent  with  the  as- 
serted universality  of  mens  rea"). 

415.  Supreme  Court  decisions  involving  questions  of  strict  liability  have  con- 
sistently focused  on  questions  of  legislative  intent.  See  United  States  v.  Park,  421 
U.S.  658,  666-73  (1975);  Morissette  v.  United  States,  342  U.S.  246,  263  (1951); 
United  States  v.  Dotterweich,  320  U.S.  277,  279-85  (1943);  United  States  v.  Balint, 
258  U.S.  250,  252-54  (1922);  W.  LaFave  &  A.  Sccrr,  supra  note  14,  at  218-19.  Leg- 
islative intent  has  generally  been  subordinated  only  when  strict  liability  has  threat- 
ened the  exercise  of  first  amendment  freedoms.  See  note  416  infra  and  accompany- 
ing text. 

416.  The  Court  has  stated  that,  on  occasion,  "doctrines,  in  most  applications  con- 
sistent with  the  Constitution  .  .  .  cannot  be  applied  in  settings  where  they  have  the 
collateral  effect  of  inhibiting  the  freedom  of  expression,  by  making  the  individual  the 
more  reluctant  to  exercise  it."    Smith  v.  California,  361  U.S.  147,  150-51  (1959). 

Thus,  in  Smith,  a  strict  liability  obscenity  statute  was  struck  down  because  it  in- 
fringed upon  the  first  amendment  rights  of  booksellers  and  the  public  by  inducing 
sellers  to  be  extremely  cautious  with  regard  to  the  books  they  make  available  for  pub- 
lic consumption.    361  U.S.  at  152-55. 

417.  Lambert  v.  California,  355  U.S.  225,  228  (1957).  See  United  States  v.  In- 
ternational Minerals  &  Chem.  Corp.,  402  U.S.  558,  564  (1970). 

418.  Sayre,  Public  Welfare  Offenses,  33  Colum.  L.  Rev.  55  (1933),  observes: 
"[W]e  are  witnessing  today  a  steadily  growing  stream  of  offenses  punishable  without 
any  criminal  intent  whatsoever.  Convictions  may  be  had  for  the  sales  of  adulterated 
or  impure  food,  violations  of  the  liquor  laws,  infractions  of  anti-narcotic  acts,  ana 
many  other  offenses  based  upon  conduct  alone  without  regard  to  the  mind  or  intent 
of  the  actor."  See  United  States  v.  Dotterweich,  320  U.S.  277  (1943)  (shipment  of 
adulterated  drugs);  United  States  v.  Balint,  258  U.S.  250  (1922)  (improper  sale  of 
narcotics);  Shevlin-Carpenter  Co.  v.  Minnesota,  218  U.S.  57  (1910)  (cutting  of  tim- 
ber on  state  lands).  See  also  United  States  v.  International  Minerals  &  Chem.  Corp., 
402  U.S.  558  (1971)  (application  of  ignorantia  legis  to  transportation  of  dangerous 
acids);  United  States  v.  Freed,  401  U.S.  601,  rehearing  denied,  403  U.S.  912  (1971) 
(application  of  ignorantia  legis  to  registration  of  dangerous  firearms);  United  States 
V.  Park,  421  U.S.  658  (1975)  (strict  and  vicarious  liability  of  president  of  food  chain 
for  rodent  contamination).  Strict  liability  statutes  have  generally  received  constitu- 
tional approval.  See  W.  LaFave  &  A.  Scott,  supra  note  14,  at  221-22.  Even  so, 
the  constitutionality  of  such  legislation  has  been  a  favorite  subject  of  debate  among 


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the  need  to  protect  important  public  interests,  these  decisions  have 
considered  it  appropriate  for  legislatures  to  require  selected  individ- 
uals to  take  extreme  precautions  against  illegal  acts  and  to  assume 
the  risk  of  a  strict  liability  conviction  for  "innocent"  wrongdoing.^^® 
Conviction  under  these  statutes  usually  carries  relatively  light  punish- 
ment,*^°  although  this  is  not  always  the  case.*^^ 

leading  scholars.  See,  e.g.,  Hart,  The  Aims  of  the  Criminal  Law,  23  Law  &  Con- 
temp.  Prob.  401,  422-25  (1958);  Packer,  supra  note  412,  at  147-52, 

Thus  far,  however,  the  only  Supreme  Court  decision  that  has  raised  serious  con- 
stitutional questions  concerning  the  validity  of  strict  liability  legislation  is  Lambert 
V.  California,  355  U.S.  225  (1957).  In  declaring  unconstitutional  a  city  ordinance 
that  penalized  the  failure  of  ex-felons  to  register  with  police  authorities,  the  Court 
distinguished  the  Dotterweich,  Balint,  and  Shevlin-Carpenter  Co.  line  of  authority: 
"But  we  deal  here  with  conduct  that  is  wholly  passive — mere  failure  to  register.  It 
is  unlike  the  commission  of  acts,  or  the  failure  to  act  under  circumstances  that  should 
alert  the  doer  to  the  consequences  of  his  deed."  355  U.S.  at  228.  This  rationale, 
however,  is  inapplicable  to  fencing  cases  involving  dealers,  because  such  situations 
generally  involve  both  affirmative  conduct  and  circumstances  that  would  alert  the 
purchaser  that  he  was  buying  stolen  goods.  See  notes  123-25,  329-33  supra  and  ac- 
companying text.  Moreover,  in  applying  the  principles  articulated  in  Dotterweich, 
even  in  the  absence  of  such  circumstances,  a  corporate  officer  could  be  held  vicari- 
ously liable  for  the  illegal  conduct  of  one  of  his  department  store's  buyers,  where  that 
buyer  himself  was  being  held  strictly  liable.  Finally,  the  Lambert  decision  may  be 
completely  inapplicable  to  the  question  of  strict  liability  with  respect  to  attendant  cir- 
cumstances, since  the  case  arguably  involved  an  exception  to  the  principle  of  ignoran- 
tia  legis;  the  defendant  had  no  knowledge  of  the  law  in  question  and  could  not,  the 
court  thought,  be  reasonably  expected  to  inform  himself.    355  U.S.  at  229. 

419.  TTie  Supreme  Court's  language  in  United  States  v.  Dotterweich,  320  U.S. 
277,  280-81  (1943),  is  precisely  on  point: 

The  prosecution  to  which  Dotterweich  was  subjected  is  based  on  a  now  familiar 
type  of  legislation  whereby  penalties  serve  as  effective  means  of  regulation.   Such 
legislation  dispenses  with  the  conventional  requirement  for  criminal  conduct — 
awareness  of  some  wrongdoing.     In  the  interest  of  the  larger  good  it  puts  the 
burden  of  acting  at  hazard  upon  a  person  otherwise  innocent  but  standing  in  re- 
sponsible relation  to  a  public  danger.    United  States  v.  Balint.    And  so  it  is  clear 
tliat  shipments  like  those  now  in  issue  are  "punished  by  the  statute  if  the  article 
is  misbranded  [or  adulterated],  and  that  the  article  may  be  misbranded   [or 
adulterated]  without  any  conscious  fraud  at  all.    It  was  natural  enough  to  throw 
this  risk  on  shippers  with  regard  to  the  identity  of  their  wares  .  .  .  ."  (citation 
omitted)  (emphasis  added). 
See  United  States  v.  Balint,  258  U.S.  250,  253-54  (1922).    The  court's  explanation 
of  Dotterweich  in  United  States  v.  Park,  421  U.S.  658,  672-73  (1975),  merits  atten- 
tion: 

The  [Food  and  Drug]  Act  does  not,  as  we  observed  in  Dotterweich,  make  crimi- 
nal liability  turn  on  "awareness  of  some  wrongdoing."  .  .  .  The  duty  imposed 
by  Congres?  on  responsible  corporate  agents  is,  we  emphasize,  one  that  requires 
the  highest  standard  of  foresight  and  vigilance,  but  the  Act,  in  its  criminal  as- 
pect, does  not  require  that  which  is  objectively  impossible.  ...  If  such  a  claim 
[of  objective  impossibility]  is  made,  the  defendant  has  the  burden  of  coming  for- 
ward with  evidence,  but  this  does  not  alter  the  Government's  ultimate  burden 
of  proving  beyond  a  reasonable  doubt  the  defendant's  guilt,  including  his  power 
...  to  prevent  or  correct  the  prohibited  condition. 

420.  See  S.l  Report  54-55. 

421.  In  United  States  v.  Balint,  258  U.S.  250  (1922),  "the  Court  showed  no  con- 
cern about  the  imposition  of  severe  criminal  sanctions  without  proof  of  blameworthi- 
ness. There  was  not  a  whisper  in  the  opinion  about  the  maximum  penalty  under 
the  Act:  five  years'  imprisonment  .  .  .  ."  Packer,  supra  note  412,  at  114  (emphasis 
added). 


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1592  Michigan  Law  Review  [Vol.  74:1511 

The  felony-muder  doctrine  and  statutory-rape  provisions  are  ex- 
amples of  instances  where  strict  Hability  principles  are  extended  to 
more  traditional  crimes  and  where  severe  penal  sanctions  are  pro- 
vided/^'^  Thus,  there  is  precedent  for  developing  a. strict  liability 
approach  to  a  nonregulatory  offense  such  as  fencing.  The  imposi- 
tion of  strict  liability,  however,  even  upon  a  limited  category  of  indi- 
viduals, is  somewhat  of  an  anomaly  in  a  criminal  justice  system  that 
generally  punishes  only  blameworthy  individuals. ^^^  Since  the  con- 
stitutionality of  such  an  approach  does  not  necessarily  mean  that  the 
approach  is  wise,*^*  legislators  must  carefully  evaluate  whether  the 
supposed  increase  in  effective  law  enforcement,  if  any,  will  be  won 
at  the  expense  of  society's  normative  standards.  The  Model  Act 
does  not  adopt  a  strict  liability  approach,  for  the  Act's  provisions  al- 
ready greatly  facilitate  control  of  fencing  schemes  without  abridging 
basic  principles  of  criminal  punishment."*^^ 

422.  Misdemeanor-manslaughter  and  bigamy  are  also  traditionally  strict  liability 
crimes  that  carry  heavy  penalties.  Parker,  supra  note  412,  at  140-42.  See  W.  La- 
Fave  &  A.  Scott,  supra  note  14,  at  220. 

423.  The  role  of  mens  rea  in  the  criminal  law  has  been  the  subject  of  much 
discussion.  The  consensus  can  be  summarily  stated:  to  punish  conduct  without 
reference  to  the  actor's  state  of  mind  is  both  inefficacious  and  unjust.  It  is  in- 
efficacious because  conduct  unaccompanied  by  an  awareness  of  the  factors  mak- 
ing it  criminal  does  not  mark  the  actor  as  one  who  needs  to  be  subjected  to  pun- 
ishment in  order  to  deter  him  or  others  from  behaving  similarly  in  the  future, 
nor  does  it  single  him  out  as  a  socially  dangerous  individual  who  needs  to  be 
incapacitated  or  reformed.  It  is  unjust  because  the  actor  is  subjected  to  the 
stigma  of  a  criminal  conviction  without  being  morally  blameworthy.  Conse- 
quently, on  either  a  preventive  or  a  retributive  theory  of  criminal  punishment, 
the  criminal  sanction  is  inappropriate  in  the  absence  of  mens  rea. 

Packer,  supra  note  412,  at  109.  See  Model  Penal  Code  §  2.05,  Comment,  at  140 
(Tent.  Draft  No.  4,  1955).  For  an  interesting  discussion  that  attempts  to  reconcile 
these  difficulties  by  limiting  the  applicability  and  impact  of  strict  liability  offenses, 
see  Brady,  Strict  Liability  Offenses:  A  Justification,  8  Crim.  L.  Bull.  217  (1972). 
Significantly,  since  strict  liability  may  not  achieve  any  deterrent  effect  if  the  penalty 
imposed  is  too  slight,  Bradey  proposes  the  adoption  of  a  gradation  continuum  that 
would  impose  sanctions  according  to  the  degree  of  culpability  proved.  Id.  at  222- 
24.  For  a  more  detailed  discussion  of  gradation  principles,  see  notes  450-67  infra 
and  accompanying  text.  While  general  Supreme  Court  jurisprudence  would  seem  to 
argue  that  a  strict  liability  offense  here  would  be  constitutional,  there  is  authority 
pointing  the  other  way.  Compare  People  v.  Estreich,  272  App.  Div.  698,  701,  75 
N.Y.S.2d  267,  270  (1947)  ("illegal  and  arbitrary  interference  with  a  lawful  busi- 
ness"), affd.  mem.,  297  N.Y.  910.  79  N.E.2d  742  (1948),  with  Kilbourne  v.  State, 
84  Ohio  St.  247,  95  N.E.  824  (1911).  Estreich,  however,  is  of  questionable  modern 
authority,  since  it  is  a  "liberty  of  contract"  due-process  decision. 

424.  See  Dennis  v.  United  States,  341  U.S.  494,  555-56  (1951)  (Frankfurter,  J., 
concurring). 

425.  A  gradation  scheme  that  imposes  minimal  penalties  upon  strict  liability  of- 
fenders could  potentially  be  more  effective  if  special  sanctions  were  provided  for  re- 
cidivists. Thus,  the  recidivist  could  be  subjected  to  increased  penal  sanctions  and  to 
revocation  of  his  operating  license.  Moreover,  even  under  a  modified  gradation  sys- 
tem, strict  liability  might  serve  as  a  powerful  incentive  to  take  preventative  steps, 
since  a  criminal  prosecution  would  have  an  important  collateral  estoppel  effect  in  the 
event  of  a  subsequent  civil  suit  for  treble  damages.  See  note  481  infra  and  accom- 
panying text. 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1593 

(v).  Affirmative  defense.  A  final  possible  approach  to  the 
mens  rea  problem  would  adopt  the  strict  liability  definition  of  receiv- 
ing for  retailers  and  wholesalers,  but  would  provide  an  affirmative 
defense  of  due  diligence/^*'  Under  such  a  statute,  the  prosecution 
would  have  a  sufficient  case  for  conviction  on  proof  of  the  receipt 
of  stolen  property,  but  the  defendant  could  still  be  acquitted  by  dem- 
onstrating his  compliance  with  a  legislatively-defined  standard  of 
care  when  purchasing  the  goods.  Legislatures  have  traditionally 
been  accorded  considerable  latitude  in  defining  the  elements  of 
criminal  conduct,^-^  and  since  strict  liability  criminal  statutes  have 
received  judicial  approval,"*^®  a  strict  liability  statute  that  provides  an 
affirmative  defense  arguably  should  receive  similar  treatment. 

Nevertheless,  the  affirmative  defense  technique  in  the  past  has 
been  attacked  as  an  unconstitutional  shift  of  both  the  burden  of  pro- 
ducing evidence  and  the  risk  of  nonpersuasion  to  the  defendant^ ^^ 
in  violation  of  due  process.^'"  While  it  has  now  been  clearly  decided 
that  states  may  constitutionally  place  the  burden  of  producing  evi- 
dence on  the  defendant,  since  it  would  be  unreasonable  to  require 
the  prosecution  to  introduce  evidence  negating  every  possible  affirm- 
ative defense,^^^  considerable  controversy  still  surrounds  allocation 
of  the  risk  of  nonpersuasion.*^^  The  Supreme  Court's  traditional 
position  on  whether  the  burden  of  persuasion  may  be  shifted  has 
been  quite  flexible: 

The  decisions  are  manifold  that  within  limits  of  reason  and  fair- 
ness the  burden  of  proof  may  be  lifted  from  the  state  in  criminal  pros- 
ecutions and  cast  on  a  defendant.  The  limits  are  in  substance  these, 
that  the  state  shall  have  proved  enough  to  make  it  just  for  the  defend- 

426.  Due  diligence  could  be  defined  as  adherence  to  reasonable  commercial 
standards,  or,  if  this  is  still  too  demanding,  as  the  absence  of  recklessness  (defined 
in  note  271  supra).  Note,  however,  that  even  the  reasonable  commercial  standards 
formulation  may  be  too  relaxed  an  approach,  since  prevailing  commercial  standards 
may  be  quite  low.  Accordingly,  consideration  should  be  given  to  imposing  an  even 
higher  standard  of  care.    See  generally  Bradly,  supra  note  423,  at  224-26. 

427.  "[T]he  courts  have  long  been  loath  to  interfere  with  the  power  of  legisla- 
tures to  define  criminal  conduct."  S.l  Report  1092  (footnote  omitted).  See  note 
412  supra  and  accompanying  text.  But  see  Mullaney  v.  Wilber,  421  U.S.  684  (1975) 
(impermissible  to  shift  burden  of  persuasion  on  issue  of  passion  in  homicide  case); 
Robinson  v.  California,  370  U.S.  660  (1962)  (impermissible  to  punish  status  of  drug 
addiction). 

428.  See  notes  415-22  supra  and  accompanying  text. 

429.  McCoRMicK,  supra  note  331,  at  800-02,  830;  Model  Penal  Code  §  1.13, 
Comment,  at  110-12  (Tent.  Draft  No.  4,  1955). 

430.  See  McCormick  801;  Christie  &  Pye,  supra  note  368,  at  933-38. 

431.  See  W.  LaFave  &  A.  Scott,  supra  note  14,  at  47;  C.  Torcia,  supra  note 
338,  §  19. 

432.  W.  LaFave  &.  A.  Scott,  supra  note  14,  at  47-48.  For  an  extensive  listing 
of  cases  pro  and  con,  see  id.  at  47  nn.  24  &  25. 


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1594  Michigan  Law  Review  [Vol.  74:1511 

ant  to  be  required  to  repel  what  has  been  proved  with  excuse  or  ex- 
planation, or  at  least  that  upon  a  balancing  of  convenience  or  of  the 
opportunities  for  knowledge  the  shifting  of  the  burden  will  be  found 
to  be  an  aid  to  the  accuser  without  subjecting  the  accused  to  hardship 
or  oppression.*^^ 

Until  recently,  the  leading  decision  on  the  constitutionality  of 
shifting  the  burden  of  proof  was  Leland  v.  Oregon**^  which  mani- 
fested this  flexibility.  In  Leland,  the  Court  approved  a  state  statute 
that  required  the  defendant  to  prove  beyond  a  reasonable  doubt  his 
affirmative  defense  of  insanity  to  a  first-degree  murder  charge.  Le- 
land's  precedential  value  is  less  certain,  however,  after  In  re  Win- 
ship, ^^'^  which  held  that  the  prosecution  must  establish  each  element 
of  the  crime  beyond  a  reasonable  doubt,  and  Mullaney  v.  Wilbur,*^^ 
which  held  that  the  state  caimot  shift  to  the  defendant  the  burden 
of  persuasion  on  the  issue  of  "heat  of  passion"  as  a  mitigating  factor 
in  a  homicide  prosecution.  An  affirmative  defense  that  denies  the 
existence  of  an  essential  element  of  the  prosecution's  case  would  ap- 
pear to  be  governed  by  Winship:*^''   "For  example,  it  is  clearly  a 

433.  See  Morrison  v.  California,  291  U.S.  82,  88-89  (1934).  See  Model  Penal 
Code  §  1.13,  Comment,  at  110-11  (Tent.  Draft  No.  4,  1955).  It  is  unclear  whether 
Morrison's  approach  is  still  good  law.    See  note  435  infra. 

434.  343  U.S.  790  (1952). 

435.  397  U.S.  358,  364  (1970).  See  W.  LaFave  &  A.  ScoiT,  supra  note  14,  at 
48.    It  has  been  observed: 

However,  Leland  does  suggest  that  the  constitutionality  of  a  defense  on  which 
the  defendant  has  the  burden  of  persuasion  is  measured  under  a  broad,  due  proc- 
ess standard.    Thus,  the  ultimate  question  is  whether  the  allocation  of  proof  is 
reasonable.    In  an  appropriate  case  it  should  be  possible  to  make  a  strong  show- 
ing of  legality.    If  such  an  affirmative  defense  is  an  integral  part  of  a  reasonable 
legislative  solution  to  a  difficult  problem,  and  the  evidence  on  the  matter  is  par- 
ticularly within  the  control  of  the  defendant,  it  is  submitted  that  due  process 
standards  are  met. 
Working  Papers  18-19  (footnote  omitted).     On  the  continuing  validity  of  Leland, 
see  People  ex  rel.  Juhan  v.  District  Ct.,  165  Colo.  253,  260-61,  439  P.2d  741,  745 
(1968)  (insanity  preponderance  rule  violated  state  constitution's  due  process  clause); 
Commonwealth  v.  Vogel,  440  Pa.  1,  9,  268  A.2d  89,  93-94  (1970)  (Jones,  J.,  concur- 
ring); 440  Pa.  at  14-15,  268  A.2d  at  90  (Roberts,  J.,  concurring). 

436.  421  U.S.  684  (1975).  Mr.  Justice  Rehnquist,  with  whom  the  Chief  Justice 
concurred,  joined  in  the  Mullaney  majority  opinion  and  observed:  "I  see  no  incon- 
sistency between  .  .  .  [Winship]  and  the  holding  of  Leland  v.  Oregon."  421  U.S. 
at  705  (citations  omitted).  Presumably,  they  would  see  no  inconsistency  between 
Mullaney  and  Leland.  On  Mullaney  and  affirmative  defenses,  compare  People  v.  Ba- 
logun,  17  Crim.  L.  Rptr.  2486  (N.Y.  Sup.  Ct.  Aug.  19,  1975),  with  People  v.  Long, 
18  Crim.  L.  Rptr.  2031  (N.Y.  Sup.  Q.  Aug.  25,  1975). 

437.  W.  LaFave  &  A.  Scofn,  supra  note  14,  at  48.  The  most  recent  attempt  of 
the  Supreme  Court  to  essay  the  scope  of  Winship  is  Mullaney.  The  State  argued 
that  Winship  should  be  limited  to  elements  that  bear  on  guilt,  but  not  degree  of  guilt. 
The  court  rejected  this  distinction,  observing  that  Winship  was  concerned  with  sub- 
stance and  not  form,  and  illustrated  its  point  by  noting  that  otherwise  the  state  would 
be  wholly  free  "to  redefine  the  elements  that  constitute  different  crimes,  characteriz- 
ing them  as  factors  that  bear  solely  on  the  extent  of  punishment."  421  U.S.  at  698. 
The  Court  then  held  that  the  defendant's  stake  in  liberty  outweighed  the  state's  inter- 


8709 


August  1976]        Criminal  Distribution  of  Stolen  Property  1595 

denial  of  due  process  to  characterize  alibi  as  a  defense  and  then 
place  the  burden  of  persuasion  on  the  defendant,  for  an  alibi  defense 
is  nothing  more  than  a  denial  that  the  defendant  committed  the 
crime."*^®  It  would  be  consistent,  under  this  reasoning,  to  argue 
that  the  risk  of  nonpersuasion  on  the  issue  of  insanity  ought  to  re- 
main on  the  prosecution  since  the  defendant  is  in  fact  denying  the 
requisite  mens  rea  exists.*^^  Yet  the  Winship  rational  need  not  nec- 
essarily be  applicable  where  the  affirmative  defense  does  not  deny 
the  existence  of  an  essential  element  of  the  crime  but  rather  is  more 
appropriately  characterized  as  an  excuse  or  justification  for  it — ^that 
is,  as  a  form  of  confession  and  an  avoidance.  In  this  case,  it  may 
be  constitutional  to  shift  the  burden  of  persuasion  to  the  defendant 
since  all  elements  of  the  crime  have  been  established  beyond  a  rea- 
sonable doubt.**** 

Although  the  distinction  between  affirmative  defenses  denying 
an  element  of  the  crime  and  those  purporting  to  justify  it  is  not  al- 
ways clear,"^  this  approach  has  been  adopted  by  several  proposals 
to  reform  the  criminal  code  and  approved  by  some  commentators. 
The  Model  Penal  Code,  for  example,  requires  "the  defendant  to 
prove  by  a  preponderance  of  the  evidence"**^  any  affirmative  de- 

est  in  facilitating  its  prosecutive  burden.^  421  U.S.  at  701-02. 

It  is  not  clear  how  Mullaney  would  affect  an  affirmative  defense  of  lack  of  knowl- 
edge of  the  stolen  character  of  the  property  in  a  fencing  prosecution.  Clearly,  the 
history  of  the  due  process  clause  would  argue  that  knowledge  is  the  essence  of  the 
"crime"  of  receiving.  See  421  U.S.  at  696.  Shifting  the  burden  of  persuasion  on 
that  issue  to  the  defendant  would  be  hard  to  distinguish  from  Mullaney.  Ironically, 
it  may  well  be,  therefore,  that  the  Constitution  here  seen  in  an  historical  perspective 
is  consistent,  as  presently  interpreted,  with  strict  liability  on  the  issue  of  knowledge, 
but  is  not  consistent  with  an  affirmative  defense  on  that  issue.  See  State  v.  Gior- 
dano, 121  N.J.L.  469,  3  A.2d  290  (1939),  where  affirmative  defense  language  of  a 
New  Jersey  statute  was  construed  to  be  a  clarification  of  a  common-law  presumption 
in  order  to  avoid  declaring  the  statute  an  unconstitutional  shift  of  the  burden  of  per- 
suasion. This  demonstrates  the  general  difficulty  that  is  experienced  when  an  effort 
is  made  to  integrate  the  Supreme  Court's  strict  liability  cases  with  traditional  notions 
of  due  process.  It  is  ironic,  too,  that  Mullaney  and  United  States  v.  Park,  421  U.S. 
658  (1975),  the  Supreme  Court's  most  recent  reaffirmations  of  the  concept  of  strict 
liability,  were  handed  down  on  the  same  day.  This,  in  turn,  argues  for  a  different 
reading  of  Mullaney  keyed  to  the  distinction  between  a  defense  seen  as  a  negation 
of  an  element  of  the  offense  and  an  affirmative  defense  seen  as  a  form  of  confession 
and  avoidance.    See  text  at  note  440  infra. 

438.  W.  LaFave  &  A.  Scott,  supra  note  14,  at  48.  See  McCormick,  supra  note 
331,  at  801;  9  J.  Wigmore,  supra  note  277,  §  2512,  at  415;  S.l  Report  1091. 

439.  See  W.  LaFave  &  A.  Scott,  supra  note  14,  at  48. 

440.  See  Model  Penal  Code  §  1.13,  Comment,  at  110-11  (Tent.  Draft  No.  4, 
1955).  This  argument,  however,  has  not  gone  uncriticized,  and  may  represent  a  mi- 
nority view.    See  McCormick  801-02. 

441.  Model  Penal  Code  §  1.13  Comment,  at  111  (Tent.  Draft  No.  4,  1955). 

442.  Model  Penal  Code  §  1.12(2) (b)   (Proposed  Official  Draft,  1962). 


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1596  Michigan  Law  Review  [Vol.  74:1511 

fense  which  "involves  a  matter  of  excuse  or  justification  pecuHarly 
within  .  .  .  [his]  knowledge  ...  on  which  he  can  fairly  be  required 
to  adduce  supporting  evidence. "*^^  A  similar  affirmative  defense 
provision  is  contained  in  S.  1 ,  the  proposal  to  reform  the  federal  crim- 
inal code.^*^  Although  the  S.l  proposal  is  not  expressly  limited  to 
cases  of  excuse  or  justification,  the  bill's  legislative  history  clearly 
indicates  the  burden  of  persuasion  is  to  be  shifted  only  when  these 
defenses  are  involved.**^  Interestingly,  both  the  Model  Penal  Code 
and  S.l  require  that  a  defendant  prove  his  affirmative  defense  by 
only  a  preponderance  of  the  evidence.  This  formulation  apparently 
is  partly  the  product  of  tension  between  proponents  of  shifting  the 
burden  of  persuasion  beyond  a  reasonable  doubt  and  those  who 
would  require  that  the  prosecution  establish  beyond  a  reasonable 
doubt  every  element  of  the  defendant's  guilt,  which  includes  proving 
all  elements  of  its  case  as  well  as  the  lack  of  any  affirmative  defense 
once  the  defendant's  production  burden  has  been  satisfied. 

As  an  alternative  to  the  negation-excuse  or  justification  distinc- 
tion, at  least  one  commentator  suggests  it  is  constitutionally  permis- 
sible to  shift  the  risk  of  nonpersuasion  where  it  is  a  "sensible  middle 
position  between  a  m.uch  broader  statute  or  strict-liability-type  of 
statute,  on  the  one  hand,  and,  on  the  other,  a  statute  recognizing 
the  defense  and  placing  an  impossible  burden  on  the  prosecution  to 
establish  the  existence  of  facts  within  the  special  knowledge  of  the 
defendant. "^^®  Such  an  approach  merits  consideration  because  it 
properly  recognizes  the  underlying  substantive  issues — the  due  proc- 
ess rights  of  the  defendant  and  the  need  to  facilitate  effective  law 
enforcement — often  masked  by  the  somewhat  artificial  negation-ex- 
cuse or  justification  distinction.  Under  this  approach,  a  strict  liability 
statute  for  dealers  coupled  with  an  affirmative  defense  should  re- 
ceive constitutional  acceptance  because  of  the  difficulties  in  proving 
guilty  knowledge,  the  defendant's  ready  access  to  any  exculpatory 
evidence,  and  the  likelihood  that  statutory  penalties  will  be  light. 

443.  Model  Penal  Code  §  1.12(3)(c)  (Proposed  Official  Draft.  1962).  The 
Code's  Commentary,  however,  indicates  that  its  drafters  did  "not  favor  such  a  shift- 
ing of  the  burden  in  the  absence  of  the  most  exceptional  considerations."  Model 
Penal  Code  §  1.13  Comment,  at  112  (Tent.  Draft  No.  4,  1955). 

444.  S.l,  Proposed  Rule  25.1.  Under  S.l,  any  defense  designated  as  an  affirma- 
tive defense  involves  a  shifting  of  the  burden  of  persuasion.  Ail  other  defenses 
merely  require  the  defendant  to  go  forward  with  evidence  "to  support  a  reasonable 
belief  as  to  its  existence."  Id.  In  this  case,  once  the  defendant  has  successfully 
raised  a  reasonable  belief,  "the  government  has  the  burden  of  proving  the  nonex- 
istence of  the  defense  beyond  a  reasonable  doubt."    Id. 

445.  See  S.l  Report  1091. 

446.  W.  LaFave  &  A.  Scott,  supra  note  14,  at  49.  See  Working  Papers  17- 
19. 


8711 


August  1976]        Criminal  Distribution  of  Stolen  Property  1597 

One  argument  against  the  use  of  an  affirmative  defense  ap- 
proach is  that  it  may  be  a  legislative  subterfuge  functionally  equiv- 
alent to  an  impermissible  statutory  presumption  that  effects  an  un- 
constitutional shifting  of  the  burden  of  persuasion.*^^  A  response 
to  this  criticism  can  be  made  on  both  analytical  and  policy  grounds. 
While  the  courts  surely  will  not  hesitate  to  expose  a  subterfuge  for 
what  it  is,  there  should  be  different  due  process  tests  for  a  substan- 
tive approach  that  involves  redefining  the  elements  of  the  crime  on 
the  one  hand  and  for  a  merely  procedural  approach  on  the  other. 
Accordingly,  in  the  case  of  affirmative  defenses,  the  appropriate  ju- 
dicial focus  for  due  process  should  concern  whether  the  relevant  pro- 
vision is  impermissibly  designed  to  negate  an  element  of  the  offense, 
and  not  whether  it  achieves  the  same  procedural  consequences  as 
a  statutory  presumption.***  More  fundamentally,  since  legislatures 
have  a  large  measure  of  freedom  to  abandon  the  mens  rea  ele- 
ment,**^ an  analysis  that  applies  the  procedural  due  process  test  may 
leave  defendants  "materially  worse  off  by  forcing  the  enactment  of 
strict  liability  statutes  with  no  provision  for  affirmative  defenses.*'** 
Although  the  affirmative  defense  approach  ought  to  satisfy  due  proc- 
ess, no  such  approach  is  taken  in  the  Model  Act  because  of  serious 
doubts  as  to  its  constitutionality  under  prevailing  analysis. 

3.     Sentencing  Convicted  Receivers 
Redefining  the  substantive  and  procedural  criminal  law  of  fenc- 
ing is  a  necessary  first  step  but  it  will  not  bring  about  improved  law 

447.  See  J.  Weinstein  §  303 [04],  at  303-23-24.  Indeed,  courts  have  construed 
apparent  "affirmative  defenses"  as  "permissible  inferences"  to  avoid  constitutional 
difficulties.  See  State  v.  Giordano,  121  N.J.L.  469,  3  A.2d  290  (1939);  Mantell  v. 
Jones,  150  Neb.  785,  36  N.W.2d  115  (1949).  In  addition  to  effecting  a  shift  in 
the  burden  of  persuasion,  an  affirmative  defense  provision  may  not  have  to  comply 
with  the  rational  connection  test.  See  note  430  supra.  But  see  Mullaney  v.  Wilbur,' 
421  U.S.  684  (1975). 

448.  In  other  words,  a  different  due  process  test  ought  to  be  applicable,  depending 
upon  whether  a  procedural  or  substantive  enactment  is  involved.  Nevertheless,  while 
it  is  clear  that  statutory  presumptions  are  procedural  devices,  affirmative  defenses 
may  be  in  somewhat  of  an  intermediary  position,  particularly  in  light  of  their  pro- 
cedural consequences.  It  is  not  without  significance,  therefore,  that  the  Supreme 
Court  in  Mullaney,  421  U.S.  at  702  n.31  saw  fit  to  rely  on  the  presumption  cases 
in  striking  down  an  affirmative  defense.  The  Court  seemed  to  feel  that  a  "more  ex- 
acting standard"  was  required  in  the  affirmative  defense  area  than  in  the  presumption 
area. 

449.  See  notes  259-63  supra  and  accompanying  text. 

450.  Although  this  argument  is  sound  on  policy  grounds,  the  Supreme  Court  has 
twice  indicated  that  the  mere  fact  that  Congress  has  the  "greater"  power  to  define 
criminal  conduct  in  a  certain  way  is  not  determinative.  The  Court's  constitutional 
analysis  has  traditionally  focused  on  what  Congress  has  done  rather  than  on  what 
that  body  could  have  done.  See  United  States  v.  Romano,  382  U.S.  136,  144  (1965); 
Tot  V.  United  States,  319  U.S.  463,  472  (1943). 


o9_iific:    r\  -  nn 


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1598  Michigan  Law  Review  [Vol.  74:1511 

enforcement  unless  accompanied  by  revision  in  sentencing  procedures. 
Legislative  and  judicial  attitudes  to  the  punishment  of  convicted  re- 
ceivers exhibit  the  same  fundamental  misunderstanding  of  the  sig- 
nificance of  fencing  that  characterizes  society's  definition  of  the  sub- 
stantive crime.*'' ^  In  almost  every  state,  criminal  receivers  and  thieves 
are  subject  to  the  same  penalties,*''^  an  approach  that  continues  "to 
denigrate  the  role  of  the  fence  in  the  theft  microcosm."*"  Further, 
there  is  evidence  that  in  exercising  their  discretion  under  sentencing 
statutes,  most  judges  frequently  treat  receivers  leniently."*  Funda- 
mental to  an  effective  criminal  law  of  receiving,  however,  is  a  realiza- 
tion that  fence  J  are  a  major  cause  of  theft,*"  that  fencing  is  a  more 
serious  criroo  than  theft,  and  that,  accordingly,  the  law  ought  to  im- 
pose more  severe  penal  sanctions  upon  criminal  receivers,**^  at  least 
where  the  goods  are  not  received  for  personal  consumption. 

New  legislation  providing  stiffer  penalties  for  receivers  would 
convey  to  judges  the  legislature's  determination  that  fencing  crimes 
are,  indeed,  serious  and  that  lighter  sentences  for  receivers  are  no 
longer  appropriate.*'^  Although  modernization  of  sentencing  provi- 
sions along  these  lines  is  a  necessary  reform,  it  alone  is  not  sufficient. 
The  criminal  law  of  receiving  must  also  make  sophisticated  distinc- 

451.  See  notes  174-90  supra  and  accompanying  text.  For  example,  in  eighteenth 
century  England,  thieves  were  punished  more  severely  than  fences.  See  Chappell  & 
Walsh,  'Wo  Questions  Asked"  162-63. 

452.  See  Report,  The  Impact  of  Crime  21;  Hearings  on  Fencing  163-71.  S.l 
would  continue  this  practice  for  those  who  traffic  in  stolen  property  (§  1732)  and 
lessen  the  penalties  for  those  who  merely  possess  it  (§  1733),  presumably  for  per- 
sonal consumption.  Only  the  special  sentencing  provisions  of  §  2302(b)  would  work 
to  impose  higher  penalties  on  certain  offenders.    See  note  465  infra. 

453.  Report,  The  Impact  OF  Crime  2 1 . 

454.  Id.  Convicted  fences  are  too  often  given  suspended  sentences,  put  on  proba- 
tion, or  merely  fined.  "[I]ronically,  'burglars  like  to  plead  guilty  to  being  receivers. 
Apparently,  they  are  not  as  stigmatized  by  being  receivers.' "  Id.  at  22  (quoting  Los 
Angeles  District  Attorney). 

455.  Id.    See  notes  16-21  supra  and  accompanying  text. 

456.  See  Report,  The  Impact  of  Crime  21. 

457.  One  possibility  is  the  use  of  mandatory  sentences.  Mandatory  sentences, 
though  often  believed  to  be  unwise,  are  generally  thought  to  be  a  matter  of  legislative 
judgment.  See,  e.g.,  People  v.  Broadie,  37  N.Y'.2d  100,  332  N.E.2d  338,  371  N.Y.S. 
2d  471  (1975)  (mandatory  life  for  drug  offender  upheld).  Appellate  review  by  the 
prosecution  would  probably  not  be  unconstitutional  under  the  double  jeopardy  clause 
in  light  of  the  Supreme  Court's  recent  decision  in  United  States  v.  Wilson,  420  U.S. 
332  (1975)  (appeal  possible  except  where  retrial  of  facts  required).  Nor  would  gen- 
eral due  process  considerations  seem  to  militate  against  it.  See  generally  Blackledge 
V.  Perry,  417  U.S.  21,  27  (1974);  Colten  v.  Kentucky,  407  U.S.  104  (1972).  The 
policy  considerations  supporting  a  "mutual  review"  concept  are  ably  set  out  in  Testi- 
mony of  Professor  Livingston  Hall  on  behalf  of  the  A.B.A.,  Hearings  on  Reform  of 
the  Federal  Criminal  Laws  Before  the  Subcomm.  on  Criminal  Laws  and  Procedures 
of  the  Senate  Comm.  on  the  Judiciary,  93d  Cong.,  1st  Sess.  5364-69  (1973).  On 
balance,  appellate  review  seems  preferable  to  mandatory  sentencing. 


8713 


August  1976]        Criminal  Distribution  of  Stolen  Property  1599 

tions  among  fences  according  to  the  degree  of  their  culpability,^**® 
Illustrative  of  such  a  scheme  is  the  Model  Act,  which  sanctions  dif- 
ferently receivers  who  purchase  for  consumption  only,^'^  those  who 
purchase  for  resale,^ *^  and  fences  who  both  initiate  thefts  and  ar- 
range the  redistribution  of  stolen  merchandise.'*^^ 

These  suggested  penal  provisions  have  at  least  two  somewhat  in- 
terrelated advantages.  First,  by  drafting  three  sets  of  penalty  provi- 
sions instead  of  one,  legislatures  can  better  communicate  to  judges 
their  determination  of  the  relative  seriousness  of  various  fencing 
crimes.  Second,  multiple  penal  provisions  would  give  jud^'^es  more 
flexibility  to  tailor  punishment  to  the  crime,  thereby  presumably 
maximizing  incapacitation,  increasing  deterrence,  and  reducing  the 
risk  of  nullification  by  a  jury  not  wishing,  for  example,  to  subject 
a  consumer  of  stolen  goods  to  the  harsh  sanction  more  properly  re- 
served for  a  master  fence. 

Attempts  to  distinguish  among  receivers  solely  on  the  value  of 
the  stolen  property  received,  the  traditional  approach  to  grading  pun- 
ishment in  theft  crimes,  is  inadequate  for  several  reasons.  First,  es- 
tablishing precisely  how  much  stolen  property  a  particular  receiver 
has  handled  is  often  difficult,  thus  undermining  the  very  basis  of  this 
approach  to  sentencing.  Second,  a  scheme  that  emphasizes  the  par- 
ticular economic  function  of  the  fence  is  a  more  accurate  method 
of  allocating  punishment  since,  on  the  whole,  it  is  highly  probable 
that  the  value  and  volume  of  stolen  property  handled  by  a  master 
fence  is  greater  than  that  redistributed  by  a  professional  fence  even 
though  this  may  be  difficult  to  prove.  Third,  a  scheme  that  allocates 
punishment  according  to  the  value  of  the  property  stolen  obscures 
distinctions  based  on  personal  blameworthiness.  The  occasional 
consumer  of  stolen  goods  is  not  generally  an  organizer  of  theft  activ- 
ity, and,  by  definition,  his  purchase  is  not  for  resale  purposes.  Con- 
sequently, his  overall  conduct  is  less  blameworthy  than  that  of  an 
outlet  fence  or  master  fence  because  his  adverse  impact  on  society 
is  considerably  smaller.  This  difference  in  culpability,  however,  may 
not  as  a  practical  matter  result  in  different  penal  treatment  in  a  crim- 
inal code  that  looks  only  at  value  of  the  property  handled.  Thus, 
while  it  may  often  be  true  that  distinctions  based  on  value  furnish 

458.  This  proposal  was  initially  made  by  Hall,  but  there  has  been  little  action 
on  either  the  state  or  federal  level.  See  J.  Hall,  supra  note  5,  at  155-57,  217-19. 
Hall,  however,  never  went  further  to  distinguish  between  a  fence  who  was  a  mere 
dealer  and  one  who  was  engaged  in  the  trafficking  of  stolen  goods. 

459.  See  Model  Theft  and  Fencing  Act  §  2,  Appendix  B. 

460.  See  Model  Theft  and  Fencing  Act  §  4(b)(1),  Appendix  B. 

461.  See  Model  Theft  and  Fencing  Act  §  4(b)(2),  Appendix  B. 


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1600  Michigan  Law  Review  tVol.  74:1511 

a  preliminary  means  for  evaluating  the  gravity  of  criminal  conduct, 
value  alone  should  not  be  determinative.  Instead,  the  law  ought  to 
use  distinctions  based  on  value  as  a  basis  for  differentiating  sanctions 
within  each  category  of  receiver.*®^ 

Despite  the  obvious  benefits  of  a  scheme  that  grades  criminal 
offenses  more  discriminatingly,  most  recent  proposals  for  reforming 
the  criminal  laws  have  eschewed  such  an  approach.  Ironically,  the 
Model  Penal  Code  may  have  contributed  to  this  failure.  That  pro- 
posal consolidates  theft  and  receiving  and  then  distinguishes  various 
classes  of  thieves  and  receivers,*®*  but  treats  identically  thieves  and 
receivers  who  are  consumers,  dealers,  or  brokers  of  stolen  goods 
once  a  minimum  level  of  value  ($500)  is  involved.*®*  Similar  de- 
ficiencies are  present  in  S.l,  which  generally  provides  equal  penal 
treatment  for  thieves  and  fences  and  makes  no  enhancing  distinction 
for  penal  purposes  between  categories  of  receivers  for  resale.*®^ 
Ironically,  S.l  does  recognize  a  functional  distinction  between  re- 
ceiving and  trafficking  in  stolen  property,*®"  but  little  effort  is  made 
to  reflect  the  distinction  in  penal  sanctions. 

At  the  federal  level,  under  current  law  such  deficiencies  are  not 
as  serious  as  they  otherwise  would  be  because  title  X  of  the  Organ- 
ized Crime  Control  Act  of  1970  provides  for  sentences  of  up  to 

462.  See  Model  Theft  and  Fencing  Act  §  2(b)(2),  Appendix  B. 

463.  Model  Penal  Code  §  223.1(2)  (Proposed  Official  Draft,  1962)  provides 
as  follows: 

Gradinf;  of  Theft  Offenses. 

(a)  Theft  constitutes  a  felony  of  the  third  degree  if  the  amount  involved  ex- 
ceeds $500,  or  if  the  property  stolen  is  a  firearm,  automobile,  or  other  motor- 
propelled  vehicle,  or  in  the  case  of  theft  by  receiving  stolen  property,  if  the  re- 
ceiver is  in  the  business  of  buying  or  selling  stolen  property. 

(b)  Theft  not  within  the  preceding  paragraph  constitutes  a  misdemeanor  . 

This  provision  singles  out  dealers  for  particular  treatment  only  when  less  than  $500 
is  involved;  the  proposed  statute  also  makes  no  attempt  to  impose  heavier  penalties 
on  big-time  fences  when  larger  amounts  are  involved.  Unfortunately,  a  similar,  al- 
though more  complicated,  proposal  was  made  by  the  National  Commission  on  Re- 
form of  Federal  Criminal  Laws.  See  Reform  Commn.,  supra  note  190,  §  1735(2) 
(f).  The  Model  Penal  Code,  at  least,  has  already  lead,  albeit  unintentionally,  to  un- 
wise reform  at  the  state  level.  See  note  190  supra.  It  remains  to  be  seen  whether 
the  recommendations  of  the  reform  commission  will  be  carried  into  law  in  a  simi- 
larly unsophisticated  fashion.    See  note  465  infra. 

464.  See  Model  Penal  Code  §  223.1(2)  (Proposed  Official  Draft,  1962);  notes 
190,  452  supra  and  accompanying  text.  Provision  is  made,  however,  for  an  extended 
term.  See  Model  Penal  Code  §  6.07  (Proposed  Official  Draft,  1962)  (authorizing 
extended  terms),  §  7.03  (Proposed  Official  Draft,  1962)  (criteria  for  extended 
terms). 

465.  See  S.l,  §§  1731-1733.  Provision  is  made,  however,  for  an  extended  term. 
S.l,  §  2301(c)  (authorizing  extended  terms);  S.l,  §  2302(b)  (criteria  for  extended 
terms).  See  also  S.l,  §  1801  (operating  a  racketeering  syndicate);  S.l,  §  1802 
(racketeering). 

466.  CompareS.l,  §§  111  &  1732,  with  §  1733. 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1601 

twenty-five  years  for  certain  "special  offenders,"  a  category  that 
would  include  professional  fences  and  large-scale  organizers. '"'^  Not 
all  criminal  dealers  are  covered,  however,  and  title  X  is,  of  course, 
not  applicable  to  those  convicted  in  state  courts  on  state  charges. 
Until  reformers  of  the  criminal  law  of  receiving  recognize  and  correct 
the  existing  inadequacies  of  our  penal  codes,  therefore,  the  full  ben- 
efits of  any  substantive  and  procedural  reforms  will  not  be  realized. 

B.     Civil  Remedies  for  Fencing  Crimes 

The  only  adequate  approach  to  the  criminal  receiver  is  that  which 
deals  with  him  as  an  established  participant  in  the  economic  life  of 
society,  whose  behavior  has  been  institutionalized  over  a  span  of  more 
than  two  centuries  in  Anglo-American  experience. ^'^^ 
Although  modernization  of  the  criminal  law  of  fencing  should 
facilitate  enforcement,  an  exclusively  criminal  law  approach  to  the 
problem  is  insufficient  because  it  ignores  the  opportunities  for  im- 
proved social  control  offered  by  civil  sanctions.    Appropriate  provi- 
sions for  civil  liability  can  both  directly  reinforce  the  effects  of  newly- 
enacted  criminal  statutes  and  add  new  dimensions  to  law  enforce- 
ment efforts.     As  discussed  in  earlier  sections,  a  comprehensive  re- 
definition of  the  substantive  criminal  law  of  theft  and  fencing  is  nec- 
essary to  make  redistribution  financially  less  profitable. *®®    Civil  stat- 
utes can  play  an  important  supplementary  role  in  this  process  in  at 
least  two  ways.    First,  by  permitting  and  encouraging  victims  of  theft 
to  initiate   civil   suits   under  fencing  statutes  to   recover  damages 
against  purchasers  of  their  stolen  goods,  appropriately  drafted  civil 
provisions  will  increase  the  likelihood  a  violator  will  be  discovered 
and  will  thus  greatly  enlarge  his  penalties.     Second,  at  least  to  the 
extent  that  punitive  damages  are  awarded,  civil  suits  provide  a  means 
for  sanctioning  those  receivers  who  cannot  be  convicted  under  crimi- 
nal statutes.    Private  plaintiffs  seeking  damages  from  receivers  enjoy 
important  substantive  and  procedural  advantages  not  available  to  the 
prosecution  in  criminal  actions  since  most  of  the  constitutional  pro- 
tections accorded  a  criminal  defendant  are  not  applicable  in  civil 
litigation.''^" 


467.  18  U.S.C.  §  3575-3578  (1970)  provides  procedures  by  which  designated  spe- 
cial offenders  may  be  sentenced  to  a  maximum  of  25  years'  imprisonment.  See  J. 
McClellan,  The  Organized  Crime  Control  Act  (S.30)  or  Its  Critics:  Which 
Threatens  Civil  Liberties?,  46  Notre  Dame  Law.  55,  146-88  (1970). 

468.  J.  Hall,  supra  note  5,  at  155  (emphasis  added). 

469.  See  text  at  notes  191-273  supra. 

470.  Staff  Report  on  Small  Business  13.  See  generally  Comment,  Organized 
Crime  and  the  Infiltration  of  Legitimate  Business:  Civil  Remedies  for  "Criminal 
Activity,"  124  U.  Pa.  L.  Rev.  124  (1975). 


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1602  Michigan  Law  Review  tVol.  74:1511 

In  most  jurisdictions,  only  the  common-law  action  for  conversion 
is  available  to  theft  victims  seeking  recovery.  A  successful  suit  for 
conversion  permits  recovery  of  the  market  value  of  the  goods  at  the 
time  and  place  of  their  conversion  on  proof  the  defendant  interfered 
with  the  plaintiff's  control  of  the  property.*"  Actions  in  conversion, 
however,  have  significant  deficiencies  in  receiving  cases  that  seri- 
ously impair  the  role  of  private  enforcement  as  a  method  of  control. 
The  most  significant  obstacle  to  civil  actions  in  conversion  is  the 
problem  of  proof  that  permeates  many  criminal  fencing  cases:  A 
civil  plaintiff  generally  finds  it  difficult  to  establish  that  his  property 
has  been  converted  since  receivers  legitimize  and  dispose  of  the 
goods  rapidly.  As  a  practical  matter,  therefore,  if  a  civil  suit  is  at 
all  possible,  a  plaintiff's  recovery  is  limited  to  the  market  value  of 
those  goods  actually  found  in  the  defendant's  possession. ^^^  Fur- 
ther, since  plaintiffs  in  conversion  cannot  recover  expenses  of  the 
suit,  such  as  the  costs  of  investigation  and  attorney's  fees,  victimized 
plaintiffs  are  never  fully  compensated.  Punitive  damages,  although 
theoretically  recoverable,  are  rarely  awarded  because  of  the  diffi- 
culties in  establishing  the  requisite  aggravated  state  of  mind.*'''  The 
unfortunate  result  is  that  theft  victims  increasingly  recover  on  insur- 

471.  D.  DoBBS,  Handbook  on  the  Law  of  Remedies  §  3.9,  at  403  (1973);  C. 
McCoRMiCK,  Handbook  on  the  Law  of  Damages  §  123,  at  463  (1935)  [hereinafter 
McCoRMiCK  ON  Damages].  Under  the  market  value  formula,  the  defendant  would 
most  often  be  liable  for  the  wholesale  value  of  the  goods.  Retail  value  would  only 
apply  when  the  goods  were  stolen  from  a  noncommercial  victim.  To  do  otherwise 
would  automatically  give  the  commercial  victim  a  guaranteed  profit  on  every  item 
converted.  This  would  not  be  appropriate,  since  every  merchant  purchasing  goods 
at  wholesale  prices  incurs  a  risk  that  he  will  not  be  able  to  sell  the  items  for  a  profit. 
Assuming  that  problems  of  proof  could  be  overcome,  see  note  472  infra,  the  victim 
would,  however,  be  able  to  recover  the  selling  price  of  those  goods  that  a  commercial 
defendant  had  sold  for  profit.  Although  sometimes  limited  to  the  bad  faith  con- 
verter, this  rule  is  an  application  of  the  common  law  doctrine  of  "waiver  of  the  tort 
and  suit  in  assumpsit,"  that  is  designed  to  prevent  unjust  enrichment.  D.  Dobbs,  su- 
pra, §  5.15,  at  414.    See  Restatement  of  Restitution  §  154  (1937). 

Finally,  since  the  typical  commercial  defendant  is  normally  not  able  to  recover 
money  from  the  thief  or  fence  who  made  the  initial  sale,  some  deterrent  effect  is 
achieved  because  the  receiver  is  effectively  forced  to  pay  twice  for  the  same  goods. 

472.  Immediate  resale  is  an  important  attribute  of  any  successful  fencing  op- 
eration. See  note  131  supra  and  accompanying  text.  If  the  business  purposefully 
avoids  maintaining  detailed  records  of  its  transactions,  tracing  the  stolen  goods  that 
have  already  been  resold  may  be  impossible.  Even  when  records  have  been  main- 
tained, if  the  stolen  goods  have  been  mixed  with  legitimate  merchandise,  tracing  the 
goods  so  that  the  plaintiff  can  recover  the  defendant's  sale  price  (waiving  the  tort 
and  suing  in  assumpsit,  see  D.  Dobbs,  supra  note  471,  §  5.15,  at  414)  may  be  an 
equally  difficult  task.    See  notes  137,  226-32  supra  and  accompanying  text. 

473.  See  D.  Dobbs,  supra  note  471,  §  3.9,  at  205;  W.  Prosser,  Handbook  of 
the  Law  of  Torts  9-10  (4th  ed.  1971).  In  at  least  one  case,  however,  purchase 
at  a  price  substantially  below  market  value  and  at  an  unusual  hour  of  the  night  was 
considered  sufficient  to  result  in  a  jury  award  of  punitive  damages.  See  Hearings  on 
Criminal  Laws  310. 


8717 


August  1976]        Criminal  Distribution  of  Stolen  Property  1603 

ance  contracts,  a  convenient,  less  expensive  alternative  to  civil  litiga- 
tion, and  pass  along  increased  insurance  costs  to  consumers.^^* 
Thus,  the  increase  in  deterrence  expected  from  private  law  enforce- 
ment is  not  realized. 

Clearly,  then,  a  new  cause  of  action  more  favorable  to  plaintiffs 
needs  to  be  created  if  private  civil  litigation  is  to  play  a  substantial 
role  in  curbing  fencing  operations.  The  Model  Act  provides  such 
a  civil  action  by  adopting  an  approach  used  by  the  federal  antitrust 
statutes^"  and  imposing  civil  liability  on  proof  of  the  elements  of 
a  criminal  violation. ^^^  Under  the  proposed  statute,  a  receiver  is 
liable  for  damages  if  the  plaintiff  establishes  the  receipt,  requisite 
mens  rea,  and  ownership  of  the  property  by  a  preponderance  of  the 
evidence.  This  lower  evidentiary  standard  is  especially  important 
in  cases  where  the  prosecution  decides  not  to  file  criminal  charges 
against  a  purchaser  of  stolen  goods  because  of  the  difficulties  in  es- 
tablishing guilty  state  of  mind  beyond  a  reasonable  doubt.  The  pro- 
visions for  civil  liability  make  it  less  likely  that  receivers  will  escape 
sanction  since  it  is  usually  considerably  easier  for  plaintiffs  to  estab- 
lish the  mens  rea  by  a  preponderance  of  the  evidence.*'^  To  ease 
the  burden  of  proof  in  civil  cases,  the  statute  extends  to  the  civil 
context  the  presumption  of  recklessness^^^  on  proof  of  the  possession 
of  recently  stolen  property,  of  the  purchase  or  sale  of  stolen  property 
at  a  price  substantially  below  fair  market  value,  or  of  the  purchase 
or  sale  of  stolen  property  out  of  the  regular  course  of  business.*'* 
Finally,  the  proposed  statute  tolls  the  civil  statute  of  limitations  dur- 

474.  The  Department  of  Commerce  has  recognized  that  "small  firms  are  less  able 
to  afford  the  overhead  required  for  extensive  protective  measures  to  absorb  .  .  . 
losses  [attributed  to  theft  and  fencing]."  Hearings  on  Criminal  Laws  374.  Eventu- 
ally, the  pressure  of  increased  insurance  rates,  which  these  competitive  smaller  firms 
cannot  pass  along  to  the  public,  may  force  many  businesses  to  close.  See  note  51 
supra  and  accompanying  text.  Unfortunately,  insurance  policies  themselves  do  not 
achieve  any  deterrent  effect.  See  Cargo  Theft  and  Organized  Crime  12  (money 
paid  by  insurers  enriches  criminal  element  of  society). 

475.  Clayton  Act  §  4,  15  U.S.C.  §  15  (1970). 

476.  See  Model  Theft  and  Fencing  Act  §  10(a),  Appendix  B. 

477.  See  McCoRMiCK  793;  Hearings  on  Criminal  Laws  310. 

478.  Although  the  civil  remedy  provision  may  incorporate  the  same  state  of  mind 
requirement  contained  in  the  criminal  statute,  this  is  not  an  absolute  prerequisite. 
Liability  could  be  imposed  on  the  basis  of  a  civil  negligence  standard,  that  is,  a  fail- 
ure to  exercise  due  care.  See  Staff  Report  on  Small  Business  13.  Indeed,  strict 
liability  in  a  civil  context  should  be  given  serious  consideration.  See  generally  W. 
Prosser,  supra  note  473,  at  493-95.  In  reality,  the  law  already  imposes  strict  liabil- 
ity with  respect  to  attendant  circumstances  in  conversion  actions.  Id.  at  83.  Signifi- 
cantly, a  series  of  recent  statutes  authorizes  the  recovery  of  treble  damages  against 
any  receiver  of  stolen  property.  For  the  source  of  this  legislation  see  33  Suggested 
State  Legislation  111  (Council  of  State  Governments  1974). 

479.  Set  Model  Theft  and  Fencing  Act  §  10  (incorporating  §  5)  Appendix  B. 


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1604  Michigan  Law  Review  [Vol.  74:1511 

ing  criminal  prosecutions*®"  and  gives  collateral  estoppel  effect  to  is- 
sues resolved  against  the  defendant  in  a  prior  criminal  trial  on  the 
same  facts. **^  The  effect  of  these  last  two  provisions  is  to  ensure 
that  civil  damage  suits  follow  successful  criminal  prosecutions. 

This  statutory  cause  of  action  is  not  designed  to  replace  the  com- 
mon law  action  in  conversion,  which  would  still  be  available  to  plain- 
tiffs who  could  not  prove  the  requisite  state  of  mind  by  a  preponder- 
ance of  the  evidence  but  could  show  a  substantial  interference  with 
control  of  their  property.  Nevertheless,  a  most  significant  difference 
between  the  two  causes  of  action  that  makes  the  statutory  one  more 
desirable  is  the  measure  of  damages.  As  a  financial  incentive  to 
sue,  section  10  of  the  Model  Act  authorizes  recovery  of  treble  dam- 
ages, reasonable  attorney's  fees,  and  costs  of  investigation  and  litiga- 
tion.*®^    The  treble  damages  provision,  a  concept  borrowed  from 

480.  See  Model  Theft  and  Fencing  Act  §  11(c),  Appendix  B. 

481.  Although  most  courts  rejected  extension  of  a  collateral  estoppel  effect  to  a 
subsequent  civil  case  because  of  the  absence  of  mutuality,  a  few  jurisdictions  have 
refused  to  follov/  this  reasoning.  See  F.  James,  CrviL  Procedure  §  11.35,  at  607 
(1965).  In  any  event,  mutuality  should  no  longer  be  a  bar  to  the  application  of  col- 
lateral estoppel  because  the  doctrine  of  mutuality  itself  has  declined  considerably. 
See  R.  Field  &  B.  Kaplan,  Materials  for  a  Basic  Course  in  Civil  Procedure  859 
(1973).  Even  so,  many  jurisdictions  have  been  reluctant. to  apply  collateral  estoppel 
in  this  context.  Consequently,  a  prior  criminal  conviction  will  often  have  no  effect. 
Nevertheless,  although  not  yet  the  majority  rule,  the  trend  of  decisions  "manifest[s] 
an  increasing  reluctance  to  reject  in  toto  the  validity  of  the  law's  factfinding  processes 
outside  the  confines  of  res  judicata  and  collateral  estoppel."  Federal  Rules  of  Evi- 
dence FOR  United  States  Courts  and  Magistrates  rule  803(22),  Advisory  Com- 
mittee Notes,  at  132  (West  1975).  Accordingly,  these  case-s  have  permitted  prior 
criminal  judgments  (or  particular  issues  decided  therein)  to  be  admitted  in  evidence 
for  consideration  by  the  fact-finder.  Id.  See  F.  James,  supra,  §  11.35,  at  607;  Mc- 
Cormick,  supra  note  331,  at  740;  Annot.,  18  A.L.R.2d  1287,  1299-1307  (1951). 

482.  The  concept  of  treble  damages  for  theft  is  not  new.  Its  origins  lie  in  Ro- 
man criminal  law.  See  1  J.  Stephens,  A  History  of  the  Criminal  Law  10  (1888). 
It  can  also  be  found  in  early  American  law.  See,  e.g.,  Commonwealth  v.  Andrews, 
2  Mass.  13  (1806).  More  is  required,  however,  than  the  mere  authorization 
of  recovery.  Although  the  spur  provided  by  the  possibility  of  treble  damage  suits 
would  motivate  many  individual  victims  to  institute  civil  proceedings,  their  ability  to 
do  so  would  be  constrained  by  resource  limitations.  The  investigation  of  theft  and 
fencing  activity  and  any  subsequent  litigation  efforts  would  inevitably  entail  expend- 
ing considerable  time  and  resources.  Since  not  every  investigation  or  litigation  effort 
will  successfully  result  in  a  judgment  awarding  treble  damages,  costs,  and  fees,  the 
individual  victim  may  not  be  willing  to  risk  his  limited  financial  resources.  Conse- 
quently, an  industry-wide  approach  would  seem  to  provide  a  more  realistic  way  of 
coping  with  the  inevitable  investigatory  and  legal  expenses  inherent  in  any  litigation 
effort.  For  example,  an  association  of  common  carriers  or  shippers  could  maintain 
a  separate  fund  to  finance  this  type  of  litigation.  Wherever  successful,  most  of  the 
resulting  proceeds  would  be  paid  to  the  individual  victim,  while  the  remainder,  a  pre- 
determined percentage,  could  be  returned  to  the  fund  to  finance  future  investigation 
and  civil  proceedings.  Insurance  companies  would  also  have  the  resources  necessary 
to  investigate  illicit  activity  and  to  bring  suit  against  retail  or  wholesale  receivers. 
An  important  question  is  whether  an  insurer,  suing  under  subrogation  principles, 
would  be  entitled  to  those  damages  that  go  beyond  the  amount  paid  in  compensation 
to  the  insured — that  is,  whether  an  insurance  company  is  entitled  to  the  additional 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1605 

federal  antitrust  statutes,^^^  provides  for  triple  recovery  of  actual 
damages,  including  consequential  and  incidental  losses,*®"*  instead  of 
the  mere  market  value  of  the  converted  goods. 

Yet  as  a  practical  matter,  this  financial  incentive  to  sue  would 
not  be  adequately  realized  in  many  cases  if  a  defendant's  potential 
liability  were  limited  to  three  times  the  value  of  stolen  goods  actually 
received/®^     Such  an  approach  would  permit  networks  of  thieves 

gains  of  a  treble  damages  action.  Five  different  rules,  ranging  from  one  that  gives 
the  insurer  the  complete  addition  to  one  that  grants  the  insured  the  complete  addition, 
have  been  discussed  by  the  courts.  See  R.  Keeton,  Basic  Text  on  Insurance  Law, 
§  3.10(c),  at  160-62.  For  obvious  policy  reasons,  however,  in  the  context  of  theft  and 
fencing,  the  insurance  company  should  be  allowed  to  retain  the  additional  gain.  To 
do  otherwise  would  remove  the  insurer's  incentive  to  sue,  an  undesirable  result  since 
private  parties  may  lack  the  resources  necessary  for  this  type  of  litigation.  Moreover, 
if  insurance  companies  were  granted  the  profits  of  a  treble  damages  action,  they 
would  be  given  the  motivation  to  initiate  prosecutions  against  fences  instead  of,  as 
is  the  prevailing  practice  today,  attempting  to  buy  the  goods  back  from  them  at  a 
good  price. 

483.  Clayton  Act  §  4,  15  U.S.C.  §  15  (1970). 

484.  Of  course,  special  damages  must  be  proven,  but  in  view  of  the  extensive  indi- 
rect costs  that  theft  and  fencing  activity  generate,  the  potential  recovery  will  always 
be  quite  large.  See  notes  50-56  supra  and  accompanying  text.  Under  the  language 
of  some  legislation,  business  competitors  who  have  suffered  no  theft  loss  could  con- 
ceivably bring  suit  on  unfair  competition  grounds  against  an  establishment  dealing 
in  stolen  goods.  See  S.13.  93d  Cong.,  1st  Sess.  §  (2)(i)  (1973);  Cal.  Penal  Code 
§  496  (West  Supp.  1975).  In  such  a  case,  the  plaintiff  would  be  entitled  to  three 
times  his  lost  profits.  Most  often,  however,  problems  of  proof  would  preclude  re- 
covery, since  the  plaintiff  must  be  able  to  establish  both  his  relative  share  of  the  mar- 
ket in  comparison  to  the  defendant's  and  the  extent  to  which  the  defendant's  sales 
at  lower  prices  resulted  in  decreased  profits.  Such  an  effort  would  only  be  worth- 
while when  the  amount  of  lost  profits  was  high.  The  plaintiff  committed  to  this 
mode  of  action  would  attempt  to  apply  an  antitrust-type  measure  of  damages.  See 
Hearings  on  Criminal  Laws  328-31. 

In  many  cases,  the  size  of  the  recovery  will  simply  reflect  a  measure  of  threefold 
the  wholesale  value  of  the  stolen  goods,  a  direct  application  of  the  conversion  market 
value  formula.  See  authorities  cited  note  471  supra.  Currently,  once  a  loss  has  oc- 
curred, the  prevailing  practice  is  for  the  shipper  to  file  a  claim  with  his  insurer.  The 
insurer  pays  the  claim  and  then  proceeds  against  the  carrier  or  the  carrier's  insurance 
company.  The  matter  is  then  settled  by  these  parties,  by  court  action  or  otherwise. 
Under  the  treble  damages  approach,  any  of  these  parties — the  shipper,  his  insurer, 
the  carrier,  or  its  insurance  company — depending  on  which  one  incurs  the  ultimate 
loss,  could  sue  the  receiver  on  a  conversion  theory.  The  shipper's  right  to  sue  would 
be  based  simply  on  its  status  as  the  owner  of  converted  property.  The  right  of  the 
shipper's  insurance  company  to  sue  would  be  based  on  traditional  subrogation  princi- 
ples. See  generally  R.  Keeton,  supra  note  482,  §  3.10  (1971).  If  necessary,  the 
carrier's  right  to  sue  could  be  based  on  his  status  as  a  bailor.  See  McCormick  on 
Damages,  §  123,  at  463-65;  The  Winkfield,  Court  of  Appeal,  1901  [1902],  at  42. 
Finally,  his  insurance  company's  right  to  sue  could  also  be  based  on  subrogation  prin- 
ciples. In  the  event  that  the  carrier's  liability  to  the  shipper  is  limited  to  a  designated 
amount  by  law  or  by  contract,  the  thief  or  criminal  receiver  would  not  be  able  to 
limit  his  liability  to  this  amount,  since  well-established  bailment  principles  hold  that 
this  is  a  matter  strictly  between  the  bailor  and  bailee.  The  Winkfield,  Court  of  Ap- 
peal, 1901  [1902],  at  42. 

485.  At  least  two  potential  measures  of  damages  could  be  applied,  depending  on 
the  statutory  language.  If  the  statute  authorizes  a  recovery  based  on  the  value  of 
the  goods,  and  the  law  limita  the  defendant's  liability  merely  to  goods  received  rather 


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1606  Michigan  Law  Review  [Vol.  74:1511 

and  fences  to  avoid  the  impact  of  the  treble-damages  provision  by 
channeHng  the  stolen  merchandise  through  a  large  number  of  receiv- 
ers. Thus,  there  would  be  little  incentive  to  sue  unless  a  substantial 
number  of  these  receivers  were  located.  One  possible  solution  to 
this  problem  is  to  hold  each  receiver  jointly  and  severally  liable  for 
the  value  of  the  entire  shipment  on  proof  it  redistributed  some  of 
the  stolen  goods.  Under  this  approach,  a  producer  need  only  locate 
one  large  receiver  with  sufficient  assets  to  satisfy  a  judgment.  A 
drawback  to  such  an  approach,  however,  might  be  the  apparent  un- 
fairness of  imposing  treble-damages  liability  on  a  receiver  of  only 
a  small  part  of  the  total  shipment. 

The  proposed  statute  attempts  to  provide  the  financial  incentives 
needed  to  realize  the  deterrence  value  of  private  enforcement  and 
yet  minimize  the  inequities  of  excessive  liability.  For  purposes  of 
analysis,  it  is  necessary  to  consider,  on  the  one  hand,  receivers  who 
purchase  stolen  property  for  personal  consumption,  and  those  who 
purchase  for  redistribution,  and,  on  the  other,  receivers  who  both 
participate  in  the  theft  and  redistribute  the  property.  According  to 
section  10  of  the  Model  Act,  receivers  who  purchase  for  personal 
consumption  or  redistribution,  and  who  did  not  participate  in  the 
theft,  are  treated  similarly:  they  are  liable  in  treble  damages  for  the 
value  of  the  property  actually  received  or  redistributed.  On  the 
other  hand,  receivers  who  both  participate  in  the  theft  and  purchase 
for  redistribution  are  liable  for  three  times  the  value  of  the  total 
amount  stolen.  These  receivers  are  treated  as  joint  tortfeasors  with 
their  thieves  and  are  therefore  jointly  and  severally  liable  for  the 
entire  theft. *^^    One  crucial  determination  for  purposes  of  liability, 

than  all  of  the  goods  stolen,  the  measure  of  damages  would  be  three  times  the  value 
of  the  goods  received.  If  the  statute  authorizes  a  recovery  based  on  actual  damages, 
but  imposes  liability  only  to  the  extent  of  goods  received,  the  measure  of  damages 
would  be  based  on  the  plaintiff's  actual  losses  on  a  prorated  basis  reflecting  the  de- 
fendant's proportionate  share  of  responsibility  for  the  victim's  damages.  Either 
formulation  based  on  limited  liability  is  so  impractical,  from  a  societal  viewpoint,  that 
no  serious  legislative  consideration  should  be  given  to  it.  In  the  absence  of  a  specific 
legislative  directive  authorizing  such  limited  liability,  the  contrary  legislative  intent 
should  be  presumed.  Anti-trust  damages  are  joint.  See,  e.g.,  Noerr  Motor  Freight, 
Inc.  V.  Eastern  Railroad  Presidents  Conference,  166  F.  Supp.  163  (E.D.  Pa.  1958), 
revd.  on  other  grounds,  365  U.S.  127  (1961).  A  similar  rule  should  be  followed 
here.  In  addition,  given  the  role  played  by  receipt,  particularly  receipt  for  resale, 
it  does  not  seem  unreasonable  to  hold  him  who  receives  as  a  joint  tortfeasor,  for 
the  full  value  of  what  was  stolen,  rather  than  merely  for  the  part  that  was  received. 
It  would  not  be  necessary  to  apportion  damages  among  joint  tortfeasors.  W.  Pros- 
SER,  supra  note  473,  §  52,  at  314.  Here,  it  is  only  necessary  to  conceptualize  the 
tort  as  "theft-receipt"  rather  than  "receipt"  to  achieve  this  result.  Clearly,  this  is  the 
better  view  both  economically  and  legally. 

486.  See  W.  Prosser,  supra  note  473,  §  46,  at  291-92.    The  traditional  rule  was 
that  there  could  not  be  contribution  between  joint  tortfeasors.     Id.  §  50,  at  306. 


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August  1976]        Criminal  Distribution  of  Stolen  Property  1607 

therefore,  is  whether  the  receiver  "initiates,  organizes,  plans,  fi- 
nances, directs,  manages,  or  supervises  the  theft."*^^  A  professional 
fence,  however,  may  also  be  liable  for  the  entire  theft  if  he  has  estab- 
lished a  working  relationship  with  the  thieves,  even  though  he  was 
unaware  of  the  particular  theft  beforehand.  This  aspect  of  civil  lia- 
bility under  the  Model  Act  recognizes  that  as  a  practical  matter 
an  established  fencing  relationship  is  an  incentive  for  theft.  Hence, 
it  follows  that  if  the  thief  and  receiver  deal  at  "arm's  length,"  the 
fence  will  not  be  liable  for  the  entire  theft.  This  would  be  the  case 
for  a  legitimate  businessman  who  only  infrequently  trades  in  stolen 
goods  and  never  has  an  interest  in  a  particular  theft. 

If  the  model  statute  is  enacted,  the  prospect  of  treble-damages 
recovery  and  corresponding  large  legal  fees  will  probably  spur  the 
growth  of  a  substantial  body  of  private  attorneys  specializing  in  plain- 
tiffs' fencing  claims,  similar  to  the  growth  of  plaintiffs'  antitrust  attor- 
neys. A  private  fencing  bar  may  develop  improved  litigation  and 
investigation  techniques  and  thereby  help  facilitate  enforcement  of 
the  fencing  laws.  By  the  same  token,  plaintiffs'  attorneys  may  sup- 
ply law  enforcement  officials  with  information  to  help  convict  receiv- 
ers in  the  hope  of  benefiting  by  collateral  estoppel  from  a  criminal 
prosecution.  While  law  enforcement  officials  might  not  be  as  able 
or  as  willing  to  reciprocate  with  valuable  information  until  they  have 
successfully  prosecuted  the  defendants,  the  evidence  should  eventu- 
ally be  turned  over  in  the  interest  of  achieving  maximum  deter- 
rence,*®® as  is  frequently  done  by  the  Justice  Department  after  an 
investigation  into  criminal  antitrust  violations.  Ultimately,  once  the 
full  deterrent  effect  of  this  dual  approach  to  the  problem  of  theft 
and  fencing  is  recognized,  prosecutors  will  probably  routinely  name 
retail  and  wholesale  businesses  in  prosecutions  for  receiving,  even 
if  their  successful  prosecution  may  not  be  possible,  since  merely  list- 

Among  conscious  wrongdoers,  the  law  would  not  help  the  parties  share  the  damages. 
Id.  §  46,  at  291-92.  A  full  recovery,  for  example,  for  treble  damages  against  one 
department  store  for  the  entire  value  of  a  theft  would  obviously  end  the  matter.  Yet 
it  seems  clear  that  the  others  who  received  part  of  the  goods  stolen  should  be  given 
an  incentive  not  to  participate  in  the  trade  in  stolen  property.  Suit  by  the  first  store 
against  the  others  would  provide  the  extra  push  that  is  needed.  Consequently,  here, 
if  not  elsewhere,  the  "no  contribution"  rule  should  be  relaxed. 

487.  See  Model  Theft  and  Fencing  Act  §  4(a)(2),  Appendix  B. 

488.  Since  a  lower  burden  of  proof  governs  civil  cases,  note  477  supra,  prose- 
cutors may  turn  materials  over  to  private  parties  at  an  early  stage,  because  a  criminal 
conviction  may  be  too  difficult  to  attain  under  the  beyond-a-reasonable-doubt  stand- 
ard. Such  material  is  not  always  easy  to  uncover,  even  by  public  bodies.  See  Appli; 
cation  of  State  of  California  to  Inspect  Grand  Jury  Subpoenas,  195  F.  Supp.  37  (E.D. 
Pa.  1961). 


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1608  Michigan  Law  Review  [Vol.  74:1511 

ing  them  will  give  private  attorneys  notice  of  their  potential  vulner- 
ability to  a  civil  suit.*®® 

Realizing ,  the  potential  benefits  from  private  law  enforcement, 
a  few  states  have,  in  fact,  recently  enacted  legislation  that  subjects 
criminal  receivers  to  a  civil  liability  for  treble  damages,  court  costs, 
and  reasonable  attorney's  fees.*®"  At  the  federal  level,  congres- 
sional enactment  of  title  IX  of  the  Organized  Crime  Control  Act, 
which  provides  that  any  person  or  entity  whose  business  is  injured 
by  so-called  racketeer-inflenced  organizations  may  recover  treble 
damages,  costs  and  fees,*®^  indicates  at  least  a  preliminary  acknowl- 
edgement of  the  role  of  civil  suits  in  controlling  serious  crime  prob- 
lems. In  addition  to  allowing  treble  damages,  title  IX  authorizes 
the  attorney  general  to  institute  civil  proceedings  for  the  purpose  of 
obtaining  injunctive  relief  against  any  act  that  violates  the  statute.*®^ 
If  necessary  to  restrain  violations  of  this  act,  the  court  may  order  any 
person  (or  entity)  "to  divest  himself  of  any  interest  ...  in  any  en- 
terprise" and  may  prohibit  any  individual  from  engaging  in  any  busi- 
ness activity  that  comes  within  the  scope  of  the  legislative  prohibi- 
tion.*®^ The  statute  further  provides  that  prior  criminal  convictions 
are  to  be  given  a  collateral  estoppel  effect  "in  any  subsequent  civil 
proceedings  brought  by  the  United  States."*®*  Finally,  to  remove 
unduly  burdensome  jurisdictional  and  procedural  constraints  to  civil 
actions  by  the  attorney  general,  the  statute  contains  liberal  venue  and 
subpoena-power  provisions  and  permits  nationwide  service  of  proc- 
ess."'' 

489.  See  note  488  supra.  The  traditional  practice  of  some  prosecutors  of  securing 
the  names  of  unindicted  co-conspirators  may  present  legal  problems.  See  United 
States  V.  Briggs,  514  F.2d  794  (5th  Cir.  1975)  (beyond  the  power  of  the  grand  jury). 
It  may  be  necessary  in  light  of  Briggs  to  name  the  unindicted  person  as  "John  Doe" 
and  to  reveal  his  name,  if  at  all,  only  through  the  bill  of  particulars. 

490.  See,  e.g.,  Cal.  Penal  Code  §  496  (West  Supp.  1976).  Arizona  passed  simi- 
lar legislation  providing  for  costs  and  fees,  but  only  for  a  sum  twofold  the  market 
value  of  the  property.  It  is  also  not  apparent  whether  the  measure  of  loss  in  Arizona 
is  limited  to  those  stolen  goods  actually  received  by  the  defendant,  or  whether  liabil- 
ity extends  to  the  entire  stolen  shipment.  Ariz.  Rev.  Stat.  Ann.  §  13-62 IB  (Supp. 
1975). 

Some  states  have  authorized  the  recovery  of  damages  without  providing  any  treble 
damage  incentive  to  sue.  See,  e.g.,  N.C.  Gen.  Stat.  §  99A-1  (Supp.  1975);  Note, 
Torts — Recovery  of  Damages  for  Interference  with  Property  Rights  Under  GS. 
99A-1,  10  Wake  Forest  L.  Rev.  340  (1974). 

491.  18  U.S.C.  §§  1961-68  (1970).  See  King  v.  Veseo.  342  F.  Supp.  120  (N  D. 
Cal.  1972). 

492.  18  U.S.C.  §  1964(a)(b)  (1970).  See  United  States  v.  Cappetto.  5C2  F.2d 
1351  (7th  Cir.  1974)  (constitutionality  upheld). 

493.  18  U.S.C.  §   1964(a)   (1970). 

494.  18  U.S.C.  §   1964(d)   (1970). 

495.  18  U.S.C  9  1965  (1970). 


8723 


August  1976]        Criminal  Distribution  of  Stolen  Property  1609 

Title  IX,  however,  is  primarily  concerned  with  curbing  the  infil- 
tration of  legitimate  businesses  by  organized  crime. *^®  Conse- 
quently, any  derivative  civil  attack  on  fencing  activity  under  this  stat- 
ute can  be  accomplished  only  in  an  oblique  manner.^®'  Neverthe- 
less, the  statute's  extensive  substantive  and  procedural  provisions  for 
civil  relief  have  provided  a  basic  model  for  recent  congressional  pro- 
posals designed  to  deal  more  directly  with  the  problem  of  theft  and 
fencing/®* 

Prior  to  the  drafting  of  S.  1 ,  a  bill  called  S.  1 3  was  introduced  in  an 
attempt  to  amend  both  18  U.S.C.  §  1964,  the  civil  remedies  section 
of  title  IX,  and  18  U.S.C.  §  659,  the  most  commonly  used  federal 
anti-fencing  provision.^®®  The  bill  proposed  that  section  1964  retain 
its  basic  provisions  authorizing  treble  damages  and  appropriate  judi- 
cial relief  to  prevent  violations  of  title  IX,  and  that  section  659  be 
amended  to  provide  treble  damages  recovery  and  injunctive  relief 
and  include  liberal  venue  and  process  procedures. ^"^  Other  pro- 
posed amendments  to  both  sections  would  have  allowed  the  federal 
government  to  sue  for  actual  damages  whenever  it  has  been  "injured 
in  its  business  or  property  by  reason  of  any  [statutory]  violation;"'"^ 
permitted  the  attorney  general  to  "intervene  in  any  [privately  initi- 
ated] civil  action  or  proceeding"  that  he  considers  to  be  of  "gen- 
eral public  importance ;"'^"^  authorized  private  injunctive  relief,  in- 
cluding divestiture,  "to  prevent  and  restrain  violations"  of  either  sec- 

496.  Despite  this  principal  orientation,  neither  the  civil  nor  the  criminal  provi- 
sions of  this  legislation  are  limited  to  the  infiltration  of  legitimate  business  by  or- 
ganized crime.  Notwithstanding  a  recent  federal  decision  to  the  contrary,  Barr  v. 
WUI/TAS,  Inc.,  66  F.R.D.  109  (S.D.N.Y.  1975)  (hmited  to  organized  crime), 
these  provisions  encompass  "any  person"  who  comes  within  their  prohibition.  See 
United  States  v.  Campanole,  518  F.2d  352,  363  (9th  Cir.  1975)  (not  limited  to  or- 
ganized crime).  This  is  why  the  term  "person"  was  so  broadly  defined.  See  18 
U.S.C.  §  1961(3)  (1970).  See  United  States  v.  Altese,  19  Crim.  L.  Rptr.  2319  (2d 
Cir.  July  21,  1976)  (not  limited  to  legitimate  business). 

497.  18  U.S.C.  §  1962  (1970)  (emphasis  added)  makes  it  unlawful  for  any  per- 
son, through  a  pattern  of  racketeering  activity  or  any  income  derived  therefrom,  to 
acquire  any  interest  or  control  of  any  enterprise  engaged  in,  interstate  commerce. 
Racketeering  activity  is  defined  to  include  any  conduct  that  is  indictable  under  three 
federal  statutes  dealing  with  theft  and  fencing.  See  18  U.S.C.  §  1961(1)  (1970). 
See  generally  note  185  supra.  " '[P]attem  of  racketeering  activity'  requires  at  least 
two  acts  of  racketeering  activity  .  .  ."  within  a  ten-year  period.  18  U.S.C.A.  §  1961 
(5)  (1970). 

498.  For  example,  the  treble  damage  concept  is  embodied  in  S.2221,  94th  Cong., 
1st  Sess.  (1975).    See  121  Cong.  Rec.  S14383  (daily  ed.  July  30,  1975). 

499.  S.13,  93d  Cong.,  1st  Sess.  (1973).  See  Hearings  on  Criminal  Laws  323-36 
(comparing  S.13  and  antitrust  laws). 

500.  S.13,  93d  Cong.,  1st  Sess.  §§  1,  2(e),  (f),  (i),  (j),  (k),  (1)  (1973), 

501.  S.13,  93d  Cong.,  Ist  Sess.  §§  1(d),  2(h)  (1973). 

502.  S.13,  93d  Cong.,  1st  Sess.  §§  1(f),  2(n)  (1973). 


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1610  Michigan  Law  Review  [Vol.  74:1511 

tion;°°^  and  given  collateral  estoppel  effect  to  previous  criminal  con- 
victions of  defendant  in  civil  actions  instituted  by  private  parties. °°* 
Nevertheless,  because  of  inaction  by  the  House  Committee  on  the 
Judiciary,  S.  1 3  never  became  law  despite  unanimous  approval  by  the 
Senate.  «<>* 

The  proposals  contained  in  S.  13  are  potentially  important  means 
for  controlling  criminal  activity  through  civil  litigation,  and  they  have 
been  adopted  in  modified  form  by  the  Model  Act."^***  The  availabil- 
ity of  injunctive  relief  to  "any  person"'"^  threatened  by  theft  activity, 
for  example,  would  allow  businesses  to  take  steps  to  avoid  theft. 
Thus,  under  the  broad  language  of  these  amendments,  shippers  could 
conceivably  obtain  injunctions  requiring  carriers  to  take  appropriate 
security  measures  against  theft,  and  carriers  could  seek  injunctive  re- 
lief directing  shippers  to  identify  their  goods  with  appropriate  mark- 
ings."*"^ Although  S.l  would  authorize  injunctive  relief  upon  peti- 
tion by  the  attorney  general,  as  well  as  the  recovery  of  treble  dam- 
ages, costs,  and  fees  by  victims  of  crime,  neither  the  four  amend- 
ments contained  in  S.l 3,  nor  the  proposed  extension  of  procedural 
benefits  to  private  parties  suing  under  section  659,  are  contained  in 
the  new  proposal."*"^  The  failure  to  give  collateral  estoppel  effect 
to  criminal  convictions  in  private  litigation  and  to  provide  for  private 
injunctive  relief  may  not  be  of  major  significance  since  they  are  argu- 
ably available  under  the  present  common  law.""     But  the  failure 

503.  S.13,  93d  Cong.,  1st  Sess.  §  2(e)  (1973). 

504.  S.13,  93d  Cong.,  1st  Sess.  §§  1(g),  2(o)  (1973). 

505.  S.13,  93d  Cong.,  1st  Sess.  (1973)  (119  Cong.  Rec.  10319  (1973)). 

506.  See  Model  Theft  and  Fencing  Act  §§  9,  11(a),  11(b),  Appendix  B. 

507.  See  Model  Theft  and  Fencing  Act  §  9(c),  Appendix  B. 

508.  In  seeking  injunctive  relief,  both  the  carrier  and  the  shipper  would  base  their 
arguments  on  parallel  grounds.  The  shipper  would  argue  that  his  business  could  not 
survive  if  his  goods  could  not  be  shipped.  Since  there  are  only  a  limited  number 
of  carriers,  all  of  whom  have  demonstrated  their  failure  to  take  adequate  security  pre- 
cautions, the  court  should  require  that  appropriate  precautionary  measures  be  taken 
as  a  condition  of  doing  business.  Similarly,  the  carrier  seeking  injunctive  relief 
would  argue  that  since  he  is  required  to  accept  all  goods  delivered  to  him  for  ship- 
ment, the  court  should  require  proper  packaging  and  identification  as  a  condition  for 
any  shipper  doing  business  with  the  carrier. 

509.  S.13,  93d  Cong.,  1st  Sess.  §  4101  (1973). 

510.  For  a  discussion  of  the  current  common  law  with  respect  to  the  collateral 
estoppel  effect  of  issues  decided  in  a  prior  criminal  case,  see  note  481  supra. 
Whether  there  is  a  right  to  private  injunctive  relief  in  this  context  is  not  clear.  A 
well-established  rule  is  that  equity  will  not  enjoin  criminal  conduct.  D.  Dobbs,  supra 
note  471,  at  115-16.  TTiis  reluctance  was  based  on  the  theory  that  an  adequate  rem- 
edy was  available  at  law  in  the  form  of  a  criminal  prosecution,  and  that  an  injunc- 
tion, enforceable  by  contempt,  will  usually  be  granted  only  after  a  nonjury  trial.  Id. 
at  117-18.  An  early  exception  developed  in  both  public  and  private  nuisance  cases 
"where  a  plaintiff  sought  to  enjoin  a  crime  that  invaded  his  property  interest."  Id. 
at  116  (emphasis  added).    When  a  public  nuisance  was  involved,  plaintiff  had  stand- 


8725 


August  1976]        Criminal  Distribution  of  Stolen  Property  1611 

to  extend  liberal  venue  and  process  rules  to  private  parties  will  in- 
evitably hamper  their  litigation  efforts. 

III.     Conclusion:    Basic  Tactics  and  Strategy 
FOR  Law  Enforcement 

Successful  control  of  crimes  against  property  ultimately  requires 
a  realization  that  the  redistribution  of  stolen  property  is  not  a  victim- 
less white-coilar  crime."^  Current  misunderstandings  concerning 
the  impact  of  theft  and  fencing  understandably  reflect  the  same 
shortsighted  economic  view  of  receiving  long  conspicuous  in  our  sub- 
stantive laws.  The  private  business  sector  must  voluntarily  under- 
take reforms  on  an  industry-wide  basis  to  supplement  public  enforce- 
ment efforts,^^^  and  consumers  must  not  remain  indifferent  to  the 


ing  to  sue  only  if  he  could  demonstrate  "special  damage,  in  addition  to  that  suffered 
by  the  public  at  large."  Note,  Equitable  Devices  for  Controlling  Organized  Vice,  48 
J.  Grim.  L.C.  &  P.S.  623,  627  (1958).  Today,  injunctions  against  crime  seem  to  be 
granted  whenever  the  court  is  willing  to  characterize  the  conduct  as  a  nuisance.  D. 
DoBBS,  supra  note  471,  at  116.  Since  there  has  been  no  hesitancy  in  allowing  the 
state  to  enjoin  the  operation  of  houses  of  gambling  and  prostitution,  it  would  seem 
that  a  private  citizen  asserting  special  damages  to  a  property  interest  could  similarly 
obtain  injunctive  relief  against  such  a  public  nuisance.  See  Note,  supra,  at  624-27. 
By  characterizing  fencing  activity  as  a  public  nuisance,  it  would  not  be  inappropriate 
for  a  court,  drawing  an  analogy  between  fencing  and  a  continuous  trespass,  to  enjoin 
this  type  of  conduct.    See  generally  D.  DoBBS,  supra  note  471,  at  59-60,  348-49. 

In  the  case  of  a  shipper  seeking  an  injunction  against  a  carrier,  or  vice  versa,  the 
case  for  private  injunctive  relief  is  even  stronger,  since  the  court  would  not  be  enjoin- 
ing the  commission  of  a  criminal  act,  but,  rather,  would  be  prohibiting  conduct  that 
facilitates  the  commission  of  theft  and  fencing  activity.  The  party  subject  to  the  in- 
junction obviously  would  not  be  a  criminal  defendant;  he  would  be  a  shipper,  or  a 
carrier  who  is  responsible  for  transporting  the  goods.  Note  that  in  either  case,  ade- 
quate relief  might  not  be  available  at  law,  since  stolen  goods  are  often  impossible 
to  locate  or  identify.  In  the  absence  of  proper  identification,  criminal  prosecutions 
are  doomed  to  failure  and  civil  relief  will  not  be  available.  See  notes  226-34  supra 
and  accompanying  text. 

511.  See  Report,  The  Impact  of  Crime  28.  The  public  may  tend  to  view  the 
fence  as  "providing  a  much-needed  social  service  for  the  hard-pressed  consumer." 
Chappell  &  Walsh,  Receiving  Stolen  Property  492.  See  notes  45-47,  49  supra  and 
accompanying  text.  Expressions  of  public  approval,  demonstrated  by  the  consumer's 
continued  willingness  to  buy  stolen  goods,  have  caused  at  least  some  fences  to  view 
their  activity  as  a  victimless  crime.    See  C.  Klockars,  supra  note  12,  at  147-50. 

512.  For  example,  recent  Senate  committee  hearings,  investigating  criminal  fenc- 
ing systems,  elicited  the  following  observation: 

No  greater  truism  has  been  highlighted  in  this  committee's  extensive  hearings 
on  cargo  theft  and  fencing  than  the  fact  that  law  enforcement  working  alone 
cannot  get  the  job  done  in  this  area  of  crime.  The  transportation  industry  must 
assume  the  responsibility  for  preventing  thefts  and  accounting  for  the  goods  left 
in  its  care  for  transfer.  Without  industry's  help,  law  enforcement's  job  of  appre- 
hending and  successfully  prosecuting  thieves — not  to  mention  the  fences  who  in- 
duce and  encourage  thievery — is  a  most  difficult  task  at  best. 
Report,  The  Impact  of  Crime  12. 

Appropriate  industry  reforms  should  be  initiated  in  at  least  the  following  areas: 
hiring  practices,  personnel  policies,  packaging  techniques,  cargo  verification  proce- 
dures,  inventory  control,  accounting   and  bookkeeping,  employee  supervision,   and 


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1612  Michigan  Law  Review  [Vol.  74:1511 

economic  consequences  of  their  illegal  purchases.^^' 

Legislatures  should  assume  responsibility  for  encouraging  new 
attitudes'^*  and  give  private  citizens  a  significant  financial  stake  in 
detecting  and  reporting  fencing  activity.  Thus,  a  modernization  of 
our  fencing  laws  to  recognize  that  redistribution  systems  operate  on 
traditional  economic  principles  and  vary  considerably  in  sophistica- 
tion and  impact  is  a  prerequisite  to  more  effective  control  of  modem 
theft  and  fencing  operations. 

Nevertheless,  legislative  reform  alone  will  not  guarantee  success 
because  these  reforms,  however  well-designed,  will  have  to  be  prop- 
erly implemented.  For  instance,  since  fencing  is  now  to  a  significant 
extent  an  interstate  crime,  effective  investigations  require  increased 
cooperation  between  federal  and  state  enforcement  agencies. ^'^ 
More  fundamentally,  however,  law  enforcement  agencies  must  re- 
structure their  priorities  so  that  emphasis  is  placed  on  convicting  the 
fence  rather  than  the  thief.  This  will  frequently  mean  granting  so- 
called  use  immunity  to  thieves  in  order  to  gather  incriminating  evi- 
dence against  major  fences.  Additionally,  law  enforcement  agencies 
must  assign  different  priorities  to  the  different  types  of  receivers. 
No  special  effort  should  be  made  against  neighborhood  fences,  since 
their  economic  impact  is  relatively  slight  and  they  are  often  detected 
in  the  course  of  other  investigations  anyway.  Master  fences  have 
the  gravest  consequences  for  our  society,  but  they  are  by  far  the  most 

physical  plant  security.  A  detailed  discussion  of  security-oriented  proposals  for  in- 
dustry-wide adoption  is  beyond  the  scope  of  this  study.  Nevertheless,  extensive  rec- 
ommendations have  been  made  for  the  transportation  and  securities  industries.  See 
Cargo  Thept  and  Organized  Crime  43-61;  C)ept.  of  Justice  Release,  Suggestions  by 
the  Dept.  of  Justice  for  Safe  Handling  of  Marketable  Securities  by  Financial  Institu- 
tions, Including  Hints  for  Detecting  Counterfeit,  Forged,  Worthless,  and  Spurious  Se- 
curities (Dec.  23,  1974);  A  Report  to  the  Presidej^t  on  the  National  Cargo 
Security  Program  4-6  (1976). 

To  the  extent  that  industry  is  unwilling  to  implement  the  necessary  reforms,  legis- 
lative consideration  should  be  given  to  establishing  administrative  controls.  Compli- 
ance with  administrative  regulations  could  be  made  a  condition  of  doing  business.  On 
the  federal  level,  agencies  currently  regulating  the  transportation  industry  and  the  se- 
curity field  provide  an  existing  structure  from  which  controls  could  be  imposed. 

513.  But  see  C.  Klockars,  supra  note  12,  at  150. 

514.  Gallup  Polls  have  repeatedly  indicated  that  Americans  consider  crime  one 
of  the  most  important  national  problems,  even  more  important  than  economic  issues. 
See,  e.g.,  Richmond  Times  Dispatch,  July  27,  1975,  at  A-20,  col.  1  (number  one). 
Political  leadership  seems  unable  to  translate  that  concern  into  more  effective  crime 
control  programs.  For  a  number  of  concrete  proposals,  see  J.  Wilson,  Thinking 
About  Crime  (1975). 

515.  "[F]ences  .  .  .  are  no  respectors  of  boundaries  established  by  local  and 
State  criminal  justice  agencies.  Vast  amounts  of  stolen  property  are  regularly  trans- 
ported across  State  and  even  National  borders  ...  as  part  of  a  redistribution  system 
developed  by  fences."  Report,  The  Impact  of  Crime  11.  See  Chappell  &  Walsh, 
"No  Questions  Asked"  167.  The  National  Wiretap  Commission  called  for  such  coop- 
eration.   Wiretap  Report  6. 


8727 


August  1976]        Criminal  Distribution  of  Stolen  Property  1613 

difficult  to  convict.  To  gather  the  evidence  necessary  to  convict 
these  receivers,  police  must  frequently  employ  extensive  undercover 
and  electronic  surveillance  operations.  As  a  practical  matter,  there- 
fore, enforcement  efforts  are  best  directed  at  professional  fences 
since  their  apparently  legitimate  operations  can  be  pierced  relatively 
easily  with  the  help  of  informants  and  with  electronic  surveillance.'^^ 
Preliminary  investigation  is  obviously  needed  to  obtain  the  probable 
cause  required  for  a  court  order  authorizing  electronic  surveillance, 
but  this  should  not  be  a  major  baiTier  because  professional  receivers 
lack  the  protective  insulation  of  master  fences.  Concentrating  on 
professional  fences  also  should  result  in  the  apprehension  of  their 
suppliers,  who  are  themselves  a  potentially  valuable  source  of  infor- 
mation about  other  fences.  Consequently,  by  establishing  priorities 
along  these  Unes,  authorities  can  employ  their  limited  resources  in 
the  most  efficient  manner. 

This  review  of  the  history  and  development  of  theft  and  fencing 
has  documented  the  need  for  reform  in  the  substantive  law  and  in 
law  enforcement  practices.  The  current  state  of  the  law  is  simply 
not  equipped  to  cope  with  a  problem  that  is  already  extremely  se- 
rious, and  that  can  only  get  worse.  America  has  too  much  crime 
of  all  kinds.  It  is  time  that  action  be  taken  to  control  it.  What  needs 
to  be  done  is  relatively  clear.  All  that  stands  in  the  way  of  reform 
is  political  will. 

516.  A  "bug,"  rather  than  a  wiretap,  should  be  used  because  the  professional 
fence  usually  conducts  his  illegal  transactions  on  a  person-to-person  basis  in  his  store, 
the  telephone  is  not  as  frequently  used  for  fencing  matters. 


92-465  O  -  77  -  11 


8728 


1614  Michigan  Law  Review  tVol.  74:1511 

Appendix  A 

Analysis  of  Uniform  Crime  Reports  Statistics: 

Stolen  and  Recovered  Property  1960-75 

For  a  number  of  years,  the  Federal  Bureau  of  Investigation  (F.B.I.) 
has  collected,  on  a  limited  basis,  statistics  on  the  amount  of  property  stolen 
and  recovered  annually.  This  information,  however,  has  apparently 
never  been  comprehensively  analyzed.  This  appendix,  based  on  F.B.I, 
statistics  for  the  years  1960  through  1975,^  attempts  to  identify  the  major 
trends  in  the  incidence  of  crimes  against  property  and  to  evaluate  the  ef- 
fectiveness of  existing  law  enforcement  efforts  to  recover  stolen  property. 

The  F.B.I,  statistics  analyzed  in  this  appendix  were  collected  each  year 
from  various  local  and  state  law  enforcement  agencies.^  Six  categories  of 
statistics  are  reported:  clothing,  currency,  fur,  jewelry  and  precious 
metals,  locally  stolen  automobiles,  and  "miscellaneous."  The  "miscellane- 
ous" category  includes  all  property  not  included  in  the  other  categories, 
such  as  office  equipment,  televisions,  radios,  stereophonic  equipment,  fire- 
arms, household  goods,  consumable  goods,  and  livestock. 

For  purposes  of  this  appendix,  the  statistics  have  been  grouped  into 
three  broad  categories:  (1)  automobiles;  (2)  miscellaneous;  and  (3)  "all 
other,"  which  includes  clothing,  furs,  currency,  and  jewelry.  To  facilitate 
comparison  of  yearly  figures,  the  absolute  dollar  amounts  first  have  been 
adjusted  to  report  the  dollar  value  per  100  persons,  in  order  to  account 
for  increases  in  population,  and  then  converted  into  "constant  1960  dol- 
lars" to  account  for  inflation.*    Where  appropriate,  however,  values  are 

•  The  assistance  of  Mr.  Gregory  Baldwin  (J.D.  1975,  Cornell  Law  School),  Mr. 
Robert  Elmore  (J.D.  1975,  Cornell  Law  School),  Mr.  William  Waller  (J.D.  1976, 
Cornell  Law  School)  and  Mr.  Mark  Sargent  (Cornell  Law  School)  in  the  preparation 
of  this  appendix  is  hereby  acknowledged. 

1.  These  statistics  are  reported  annually  by  the  F.B.I,  in  its  series  of  Uniform 
Crime  Reports  under  the  title  Crime  in  the  United  States  (as  part  of  the  Uniform 
Crime  Reporting  Program  which  was  initiated  in  1930).  All  figures  are  taken  from 
the  table,  entitled  "Type  and  Value  of  Property  Stolen  and  Recovered." 

2.  During  the  fifteen  year  period  under  study,  the  number  of  local  enforcement 
agencies  reporting  to  the  F.B.I,  increased  significantly.  In  1960,  reporting  agencies 
represented  a  population  base  of  only  120.8  million  people;  by  1975,  this  population 
base  had  increased  to  162.4  million.  Before  1969,  only  statistics  from  cities  with  a 
population  of  at  least  25,000  were  reported,  but  the  F.B.I.'s  yearly  statistical  reports 
since  then  have  included  data  from  cities  of  at  least  2,500  persons.  It  is  also  possible 
to  use  these  F.B.I,  data  to  estimate  a  total  crime  against  property  figures.  The  popu- 
lation for  the  United  States  in  1974  was,  for  example,  211.9  million  people.  U.S. 
Dept.  of  Commerce,  Bureau  of  the  Census,  Statistical  Abstract  of  the 
United  States:  1975  Table  No.  2,  at  5  (U.S.  Bureau  of  the  Census,  95th  ed.  1974). 
This  projects  to  a  total  figure  of  $336,285,300.  It  is  less  than  the  estimate  employed 
by  the  Department  of  Commerce.  See  note  32  supra.  Its  estimate  included  more 
factors.  F.B.I,  figures  are  limited  to  index  offenses  (burglary,  robbery,  larceny  over 
$50,  and  auto  theft);  the  Commerce  Department  made  an  effort  to  be  comprehensive. 
Finally,  it  is  recognized  that  the  F.B.I,  figures  are  subject  to  substantial  understate- 
ment.   See  Appendix  A,  note  4  infra. 

3.  These  factors  were  derived  from  the  information  pertaining  to  consumer  prices 
reflected  in  U.S.  Dept.  of  Commerce,  Bureau  of  the  Census,  Statistical  Ab- 
stract OF  the  United  States,  1975,  at  414  (96th  ed.  1975)  (Purchasing  Power  of 
the  Dollar:    1940  to  1975,  Table  No.  678). 


8729 


August  1976]       Criminal  Distribution  of  Stolen  Property  1615 

quoted  in  both  "current  1975  dollars,"  that  is,  dollar  amounts  not  adjusted 
to  reflect  inflation,  and  "constant  1960  dollars." 

A.     The  Statistics  Presented 

Graph  1  and  tables  1  and  2  report  that  the  current  1975  dollar  value 
of  property  stolen  per  100  persons  rose  from  502  dollars  in  1960  to  1979 
dollars  in  1975,  an  increase  of  approximately  294  per  cent.  Measured 
in  terms  of  constant  1960  dollars,  the  value  of  property  stolen  per  100 
persons  increased  from  502  dollars  to  1061  dollars,  or  approximately  111 
per  cent.    Table  3  gives  percentage  composition  of  total  goods  stolen. 

The  increase  in  the  value  of  stolen  property  reflects  an  across-the- 
board  increase  in  all  three  categories  reported  in  tables  1  and  2.  Very 
significantly,  however,  the  data  in  table  2  show  the  increase  in  the  value 
of  miscellaneous  items  stolen  was  by  far  the  most  pronounced.  The  value 
of  miscellaneous  property  stolen  in  constant  dollars  per  100  people  in- 
creased from  112  dollars  to  435  dollars,  or  288  per  cent,  during  the  fifteen 
year  period.  In  sharp  contrast,  the  increases  in  the  value  of  stolen  auto- 
mobiles and  "all  other"  items  were,  respectively,  60  per  cent  and  59  per 
cent. 

Table  4  represents  the  percentage  of  stolen  property  recovered  during 
the  fifteen-year  period.  It  shows  a  decline  from  52.4  per  cent  to  29.9 
per  cent.  Between  1960  and  1966,  however,  the  recovery  rate  actually 
increased  to  a  high  of  55  per  cent;  but  since  then  the  rate  has  dropped  by 
an  average  of  more  than  2.5  per  cent  per  year. 

Table  5  illustrates  that  the  relative  composition  of  stolen  property  re- 
covered has  remained  remarkably  similar.  In  1960,  automobiles  ac- 
counted for  87  per  cent  of  stolen  property  recovered,  miscellaneous  items 
accounted  for  8.3  per  cent,  and  "all  other"  property  accounted  for  4.7  per 
cent.  In  1975,  these  percentages  were  77.3  per  cent  for  autos,  16.6  per 
cent  for  miscellaneous,  and  6.1  per  cent  for  "all  other"  property  stolen. 

B.     Observations* 

(1)  There  is  a  high  correlation  between  increases  and  decreases  in 
the  value  of  miscellaneous  property  stolen  and  increases  and  decreases  in 

4.  When  analyzing  this  material,  several  factors  necessarily  qualify  any  conclu- 
sions. First,  it  can  safely  be  assumed  that  since  1960  improvements  in  crime  detec- 
tion techniques  and  in  the  collection  of  statistics  are  responsible  for  some  part  of  the 
apparent  increase  in  crime,  although  the  F.B.I,  has  tried  to  minimize  this  factor. 
Second,  since  F.B.I,  figures  necessarily  reflect  only  those  crimes  that  are  actually  re- 
ported to  law  enforcement  agencies,  the  data  used  are  not  completely  accurate  indi- 
cators of  the  incidence  of  particular  crimes.  Recently,  the  Law  Enforcement  As- 
sistance Administration  and  the  Bureau  of  the  Census  have  endeavored  to  calculate 
the  extent  of  unreported  crime,  but  until  their  work  is  completed  and  carefully 
analyzed  it  must  be  assumed  that  the  theft  of  personal  property  is  one  area  where 
this  phenomenon  is  most  apparent.  See  Criminal  Victimization:  Surveys  in  13 
American  Cities  (U.S.  Dept.  of  Justice:  LEAA  1975).  The  rate  of  reported  crime 
in  Boston  was,  for  example,  robbery,  33  per  cent;  theft,  28  per  cent,  burglary,  56 
per  cent;  and  auto  theft,  68  per  cent.  Id.  at  22.  Finally,  statistics  are  gathered  from 
only  the  most  heavily  populated  and  highest  crime  areas.  This  means  the  results  may 
overstate  theft  rates  and  understate  recovery  rates. 


8730 


1616  Michigan  Law  Review  [Vol.  74:1511 

the  total  value  of  property  stolen.  This  correlation  is  most  dramatically 
revealed  by  the  data  since  1966,  which  shows  that  a  sharp  rise  in  the  theft 
rate  for  miscellaneous  property  accounts  for  a  substantial,  simultaneous  in- 
crease in  the  overall  property  theft  rate. 

(2)  By  1973,  the  value  of  miscellaneous  property  stolen  was  almost 
as  large  as  the  value  of  automobiles  stolen.  This  is  a  significant  reversal 
of  a  trend  observable  in  the  first  half  of  the  period  studied,  when  the  value 
of  automobiles  stolen  was  approximately  twice  as  large  as  the  value  of  mis- 
cellaneous items  stolen.  Significantly,  this  reversal  may  be  largely  ex- 
plained by  the  very  rapid  increase  in  the  theft  of  miscellaneous  items. 

(3)  The  recovery  rate  was  constant  until  1966,  when  it  began  to 
drop  significantly.  This  continuous  decline  in  the  recovery  rate  during 
1967-1975  coincides  with  the  sharply  increasing  theft  of  miscellaneous 
property  stolen. 

(4)  Despite  the  changes  in  the  composition  of  stolen  property  be- 
tween 1960  and  1975,  the  composition  of  property  recovered  has  remained 
relatively  similar.  The  primary  explanation  for  this  difference  is  the  in- 
ability of  law  enforcement  agencies  to  recover  a  substantially  greater 
amount  of  stolen  miscellaneous  and  other  property  even  though  thefts  of 
this  type  of  property  have  increased  significantly. 

(5)  The  recovery  of  automobiles  consistently  accounts  for  the  great- 
est percentage  of  recovered  property.  The  relative  success  of  police  in 
recovering  stolen  automobiles,  however,  is  a  misleading  indicator  of  the 
ability  of  authorities  to  deal  with  theft  for  resale  purposes.  Very  few  auto- 
mobiles are  in  fact  taken  with  an  intent  permanently  to  deprive  their  own- 
ers of  possession,  and  F.B.I,  statistics  include  automobiles  taken  by  joy- 
riders or  other  persons  needing  quick,  temporary  transportation.  After  a 
brief  time,  these  vehicles  are  abandoned  and  recovered.  Further,  stolen 
automobiles  cannot  be  easily  concealed  because  of  their  size;  cannot  be 
easily  legitimized  because  they  are  required  by  statute  to  be  marked  with 
several  permanent  serial  numbers;  and  can  be  relatively  easily  identified 
because  they  must  be  registered  with  state  agencies  and  because  there  ex- 
ists a  national  system  to  identify  and  recover  stolen  vehicles. -"^ 

(6)  The  theft  of  miscellaneous  and  other  property  is  a  better  indi- 
cator of  the  incidence  of  theft  for  resale.  The  sudden  upsurge  in  the  theft 
of  these  items  is  undoubtedly  the  result  of  many  factors.^  Unlike  auto- 
mobiles, most  miscellaneous  and  other  items  are  small  and  therefore  easy 
to  conceal  and  to  transport;  most  are  not  marked  with  serial  numbers 
and  therefore  can  be  easily  legitimized  and  resold  without  detection.  Fur- 
ther, most  of  these  kinds  of  thefts  are  not  reported  to  the  National  Crime 
Information  Center. 


5.  These  observations  are  not  meant  to  underrate  the  increasing  problem  of  auto 
theft  for  profit.  Statistics  indicate  that  only  62  per  cent  of  the  cars  stolen  in  1975 
were  recovered,  whereas  more  than  90  per  cent  were  recovered  in  1960.  The  sharp 
decrease  in  percentage  of  recovered  stolen  autos  would  seem  to  be  related  largely  to 
two  factors:  the  smaller  percentage  of  joy  ride  thefts  that  has  accompanied  the  in- 
stallation of  wheel  locks  and  the  growing  practice  of  theft  by  professionals  of  autos 
for  stripping  that  has  accompanied  the  use  of  computer  assisted  auto  part  sales. 

6.  Of  course,  different  factors  will  not  affect  all  items  {e.g.,  firearms,  stereo 
equipment,  etc.)  in  the  same  way. 


8731 


August  1976]        Criminal  Distribution  of  Stolen  Property 


1617 


Table  1 

Stolen  Property  in  Dollars  per  100  People 
in  Current  Dollars 


Year 

Total 

Auto 

Misc. 

All  Other 

1960 

502 

246 

112 

144 

1961 

508 

249 

112 

147 

1962 

535 

267 

124 

144 

1963 

679 

346 

159 

174 

1964 

824 

445 

190 

189 

1965 

840 

445 

190 

205 

1966 

831 

457 

190 

184 

1967 

991 

535 

276 

180 

1968 

1152 

588 

305 

259 

1969 

1287 

656 

375 

256 

1970 

1356 

637 

445 

275 

1971 

1483 

653 

525 

305 

1972 

1349 

588 

490 

271 

1973 

1375 

558 

549 

268 

1974 

1587 

579 

664 

344 

1975 

1979 

737 

812 

428 

Table  2 

Stolen  Property  in  Dollars  per  100  People 
in  Constant  "  1 960"  Dollars 


Year 

Total 

Auto 

Misc. 

AU  Other 

1960 

502 

246 

112 

144 

1961 

503 

247 

111 

146 

1962 

524 

262 

121 

141 

1963 

657 

335 

154 

168 

1964 

787 

425 

181 

180 

1965 

789 

418 

178 

192 

1966 

759 

417 

173 

168 

1967 

879 

475 

245 

160 

1968 

981 

501 

260 

221 

1969 

1040 

530 

303 

207 

1970 

1035 

486 

340 

209 

1971 

1084 

477 

384 

223 

1972 

956 

417 

344 

192 

1973 

917 

372 

366 

179 

1974 

952 

347 

398 

206 

1975 

1061 

395 

435 

229 

8732 


1618  Michigan  Law  Review  [Vol.  74:1511 

Table  3 
Percentage  Composition  of  Total  Goods  Stolen 
Year  Auto  Misc.  All  Other 


1960 

49.0 

22.4 

28.6 

1961 

49.0 

22.4 

28.6 

1962 

50.0 

27.0 

28.0 

1963 

51.0 

23.5 

25.5 

1964 

54.0 

23.5 

22.5 

1965 

52.0 

23.1 

24.0 

1966 

55.3 

23.7 

21.0 

1967 

53.5 

25.1 

21.4 

1968 

51.2 

27.3 

21.5 

1969 

51.0 

28.9 

20.1 

1970 

47.4 

32.6 

20.0 

1971 

44.3 

35.6 

20.1 

1972 

43.1 

36.4 

20.5 

1973 

40.6 

39.9 

19.5 

1974 

36.5 

41.8 

21.7 

1975 

37.3 

41.1 

21.6 

Table  4 

Yearly  Percentages  of  the  Total  Recovery 
of  Stolen  Property 

Year  %  Year  %  Year  % 


1960 

52.4 

1965 

52.0 

1970 

42.0 

1961 

52.0 

1966 

55.0 

1971 

39.0 

1962 

51.0 

1967 

51.0 

1972 

38.0 

1963 

54.0 

1968 

50.0 

1973 

37.0 

1964 

52.0 

1969 

47.0 

1974 
1975 

31.0 
29.9 

Table  5 

Percentage  Composition  of  Total  Goods  Recovered 
Year  %  Auto  %  Misc.  %  All  Other 


1960 

87.0 

8.3 

4.7 

1961 

87.0 

8.6 

4.4 

1962 

88.0 

7.6 

4.4 

1963 

86.0 

9.7 

4.3 

1964 

89.0 

7.3 

3.7 

1965 

89.0 

6.8 

4.2 

1966 

89.0 

6.9 

4.1 

1967 

90.0 

6.4 

3.6 

1968 

89.0 

6.6 

4.4 

1969 

88.0 

8.0 

4.0 

1970 

87.0 

8.8 

4.2 

1971 

84.0 

11.2 

4.8 

1972 

84.0 

10.7 

5.3 

1973 

79.6 

14.6 

5.8 

1974 

76.5 

17.2 

6.2 

1975 

77.3 

16.6 

6.1 

8733 


August  1976]       Criminal  Distribution  of  Stolen  Property 


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8734 


1620  Michigan  Law  Review  [Vol.  74:1511 

Appendix  B 

MODEL  THEFT  AND  FENCING  ACT^ 

[Insert  appropriate  enacting  clause]. 
[Statement  of  Purpose  and  Intent] 

[It  is  the  purpose  of  this  Act  to  curtail  theft  and  dealing  in  stolen 
property  through  the  imposition  of  appropriate  criminal  sanctions  and  the 
provision  of  suitable  civil  remedies.] 

[It  is  intended  that  this  Act  be  construed  neither  strictly  nor  liberally, 
but  in  light  of  its  purpose,  and  that  its  moderate  sanctions  be  fully  utilized.] 
Sec.  1  [Short  Title]  This  Act  shall  be  known  and  may  be  cited  as  the 
"Theft  and  Fencing  Control  Act  of  [insert  date]." 

Part  A 

Sec.  2  [Theft] 

(a)  [Offense]  A  person  is  guilty  of  theft  if  he  obtains  or  uses  [,  or 
endeavors^  to  obtain  or  use,]  the  property  of  another,  with  intent:^ 

(1)  to  deprive  the  other  person  of  a  right  to  the  property  or  a  ben- 
efit of  the  property;  or 

(2)  to  appropriate  the  property  to  his  own  use  or  to  the  use  of 
another  person. 

(b)  [Grading]    A  person  who  commits  theft: 

(1)  shall  be  fined  not  more  than  $10,000  or  imprisoned  not  more 
than  10  years,  or  both,  if  the  property  stolen  has  a  value  in  excess  of 
$100,000; 

(2)  shall  be  fined  not  more  than  $5,000,  or  imprisoned  not  more 
than  5  years,  or  both,  if  the  property  stolen  has  a  value  in  excess  of  $500 
but  not  more  than  $100,000  or,  regardless  of  its  value,  the  property  con- 
sists of: 

(i)    a  firearm,  ammunition,  or  a  deadly  weapon; 

(ii)  a  vehicle,  except  as  provided  in  subsection  (b)(4); 

(3)  shall  be  fined  not  more  than  $1,000,  or  imprisoned  not  more 
than  one  year,  or  both,  if  the  property  stolen  has  a  value  in  excess  of  $100 
but  not  more  than  $500;  or 

(4)  shall  be  fined  not  more  than  $500  or  imprisoned  not  more 
than  6  months,  or  both,  if: 

(i)    the  property  has  a  value  of  $100  or  less;  or 

(ii)  the  property  is  an  airplane,  a  motor  vehicle  or  a  vessel, 

the  defendant  is  less  than  eighteen-years-old,  and  the  defend- 

1.  The  legislation  proposed  here  in  a  slightly  different  form  has  been  endorsed 
by  the  National  Association  of  Attorneys  General  for  inclusion  in  its  program  of  rec- 
ommended legislation. 

2.  The  optional  use  of  the  word  "endeavor"  here  and  elsewhere  in  the  Act  avoids 
the  incorporation  of  the  common-law  learning  on  impossibility.  See  United  States 
V.  Osbom,  385  U.S.  323  (1966). 

3.  Unless  otherwise  stated,  the  statute  is  drafted  on  the  assumption  that  the  state 
of  mind  requirement  to  be  implied  for  conduct  is  "knowing"  and  for  attendant  cir- 
cumstances is  "recklessness."  Compare  Model  Penal  Code  art.  2  (Proposed  Offi- 
cial Draft  1962);S.l,ch.  3. 


8735 


August  1976]        Criminal  Distribution  of  Stolen  Property  1621 

ant  intended  to  deprive  or  appropriate  the  property  only  tem- 
porarily rather  than  permanently.* 

Sec.  3  [Possession  of  Altered  Property] 

(a)  [Offense]  A  person  is  guilty  of  possession  of  altered  property 
if  he  is  a  dealer  in  property  and  he  possesses  property  the  identifying  fea- 
tures of  which,  including  serial  numbers  or  labels,  have  been  removed  or 
in  any  fashion  altered,  without  the  consent  of  the  manufacturer  of  the 

property. 

(b)  [Grading]  A  person  who  commits  possession  of  altered  property 
shall  be  fined  not  more  than  $1,000,  or  imprisoned  not  more  than  one 
year,  or  both. 

Sec.  4  [Dealing  in  Stolen  Property] 

(a)  [Offense]  A  person  is  guilty  of  deahng  in  stolen  property  if  he: 

( 1 )  traffics  in  [,or  endeavors  to  traffic  in,];  or 

(2)  initiates,  organizes,  plans,  finances,  directs,  manages,  or  super- 
vises the  theft,  and  traffics  in  [,  or  endeavors  to  traffic  in,]  the  property 
of  another  that  has  been  stolen. 

(b)  [Grading]  A  person  who  deals  in  stolen  property  in  violation  of: 

(1)  subsection  (a)(1)  shall  be  fined  not  more  than  $10,000  or 
imprisoned  not  more  than  10  years,  or  both;  or 

(2)  subsection  (a)(2)  shall  be  fined  not  more  than  $15,000  or 
imprisoned  not  more  than  15  years,  or  both. 

Sec.  5  [Evidence] 

(a)  [Permissible  inferences]  In  an  action  for  theft  or  dealing  in  stolen 
property: 

(1)  Proof  of  possession  of  property  recently  stolen,  unless  satisfac- 
torily explained,  gives  rise  to  an  inference  that  the  person  in  possession 
of  the  property  was  aware  of  the  risk^  that  it  had  been  stolen  or  that  the 
person  in  some  way  participated  in  its  theft; 

(2)  Proof  of  the  purchase  or  sale  of  stolen  property  at  a  price  sub- 
stantially below  its  fair  market  value,  unless  satisfactorily  explained,  gives 
rise  to  an  inference  that  the  person  buying  or  selling  the  property  was 
aware  of  the  risk  that  it  had  been  stolen; 

(3)  Proof  of  the  purchase  or  sale  of  stolen  property  by  a  dealer 
in  property,  out  of  the  regular  course  of  business,  or  without  the  usual  in- 
dicia of  ownership  other  than  mere  possession,  unless  satisfactorily  ex- 
plained, gives  rise  to  an  inference  that  the  person  buying  or  selling  the 
property  was  aware  of  the  risk  that  it  had  been  stolen. 

(b)  [Accomplice   Testimony]  The   testimony   of    an    accomplice,   if 

4.  Not  all  states  key  the  grading  of  their  conspiracy  statutes  to  the  substantive 
offense.  Where  conspiracy  is  a  misdemeanor,  it  is  recommended  that  a  special  felony 
level  conspiracy  provision  be  drafted.  In  addition,  consideration  should  be  given,  if 
necessary,  to  abolishing  any  common-law  rule  that  would  make  the  receiver's  convic- 
tion dependent  upon  the  conviction  of  the  thief. 

5.  On  the  constitutionality  of  this  and  other  similar  statutory  presumptions,  see 
Barnes  v.  United  States,  412  U.S.  837  (1973),  holding  that  a  recent  possession  infer- 
ence is  constitutional. 


8736 


1622  Michigan  Law  Review  [Vol.  74:1511 

believed  beyond  a  reasonable  doubt,  is  sufficient  for  a  conviction  for  con- 
duct constituting  an  offense  in  violation  of  this  Act.^ 

Sec.  6  [Entrapment] 

It  does  not  constitute  a  defense  to  a  prosecution  for  conduct  constitut- 
ing an  offense  in  violation  of  this  Act  that: 

(1)  strategem  or  deception,  including  the  use  of  an  undercover  op- 
erative or  law  enforcement  officer,  was  employed; 

(2)  a  facility  or  an  opportunity  to  engage  in  such  conduct,  includ- 
ing offering  for  sale  of  property  not  stolen  as  if  it  were  stolen,  was  pro- 
vided; or 

(3)  mere  solicitation  that  would  not  induce  an  ordinary  law-abid- 
ing person  to  engage  in  such  conduct  was  made  by  a  law  enforcement  offi- 
cer to  gain  evidence  against  a  person  predisposed  to  engage  in  such  con- 
duct.'' 

Sec.  7  [Definitions] 
As  used  in  this  part: 

(a)  "dealer  in  property"  means  a  person  who  buys  and  sells  property 
as  a  business. 

(b)  "obtains  or  uses"^  means  any  manner  of: 

(1)  taking  or  exercising  control  over  property; 

(2)  making  an  unauthorized  use,  disposition,  or  transfer  of  prop- 
erty; or 

(3)  obtaining  property  by  fraud,  and  includes  conduct  previously 
known  as  theft,  stealing,  larceny,  purloining,  abstracting,  embezzlement, 
misapplication,  misappropriation,  conversion,  obtaining  money  or  property 
by  false  pretenses,  fraud,  deception,  and  all  other  conduct  similar  in  na- 
ture. 

(c)  "property"  means  anything  of  value,  and  includes: 

(1)  real  property,  including  things  growing  on,  affixed  to,  and 
found  in  land; 

(2)  tangible  or  intangible  personal  property,  including  rights,  priv- 
ileges, interests,  and  claims;  or 

(3)  services. 

(d)  "property  of  another"  means  property  in  which  a  person  has  an 
interest  upon  which  another  person  is  not  privileged  to  infringe  without 
consent,  whether  or  not  the  other  person  also  has  an  interest  in  the  prop- 
erty, 

(e)  "services"  means  anything  of  value  resulting  from  a  person's 
physical  or  mental  labor  or  skill,  or  from  the  use,  possession,  or  presence 
of  property,  and  includes: 

6.  Some  jurisdictions  follow  the  rule  that  an  accomplice's  testimony  in  a  theft  or 
fencing  prosecution  must  be  corroborated  to  be  sufficient  for  conviction.  This  provi- 
sion should,  if  necessary,  be  included  in  the  Act  to  preclude  the  application  of  this 
rule  to  prosecutions  under  this  Act. 

7.  This  provision  guarantees  that  mistaken  interpretations  of  the  law  will  not 
frustrate  legitimate  law  enforcement  efforts  to  investigate  the  operations  of  profes- 
sional fences. 

8.  The  phrase  is  broad  enough  to  cover  the  situation  where  property  stolen  in  an- 
other jurisdiction  is  brought  into  a  state.    It  would  also  include  possession. 


8737 


August  1976]        Criminal  Distribution  of  Stolen  Property  1623 

(1)  repairs  or  improvements  to  property; 

(2)  professional  services; 

(3)  private  or  public  or  government  communication,  transporta- 
tion, power,  water,  or  sanitation  services; 

(4)  lodging  accommodations;  or 

(5)  admissions  to  places  of  exhibition  or  entertainment. 

(f)  "stolen  property"  means  properly  that  has  been  the  subject  of 
any  criminally  wrongful  taking. 

(g)  "traffic"  means: 

(1)  to  sell,  transfer,  distribute,  dispense  or  otherwise  dispose  of  to 
another  person; 

(2)  to  buy,  receive,  possess,  or  obtain  control  of  or  use  with  in- 
tent to  sell,  transfer,  distribute,  dispense  or  otherwise  dispose  of  to  another 
person. 

(h)     "value"  means  value  determined  according  to  the  following: 

(1)  Except  as  otherwise  provided,  value  means  the  market  value 
of  the  property  at  the  time  and  place  of  the  offense,  or  if  such  cannot 
be  satisfactorily  ascertained,  the  cost  of  replacement  of  the  property  within 
a  reasonable  time  after  the  offense. 

(2)  The  value  of  a  written  instrument  which  does  not  have  a  read- 
ily ascertainable  market  value  shall,  in  the  case  of  an  instrument  such  as 
a  check,  draft  or  promissory  note,  be  deemed  the  amount  due  or  collectible 
on  it,  and  shall,  in  the  case  of  any  other  instrument  which  creates,  re- 
leases, discharges,  or  otherwise  affects  any  valuable  legal  right,  privilege 
or  obligation,  be  deemed  the  greatest  amount  of  economic  loss  which  the 
owner  of  the  instrument  might  reasonably  suffer  by  virtue  of  the  loss  of 
the  instrument. 

(3)  The  value  of  a  trade  secret  that  does  not  have  a  readily  as- 
certainable market  value  shall  be  deemed  any  reasonable  value  represent- 
ing the  damage  to  the  owner  suffered  by  reason  of  losing  an  advantage 
over  those  who  do  not  know  of  or  use  the  trade  secret. 

(4)  If  the  value  of  property  cannot  be  ascertained  beyond  a  rea- 
sonable doubt  pursuant  to  the  standards  set  forth  above,  the  trier  of  fact 
may  find  the  value  to  be  not  less  than  a  certain  amount,  and  if  no  such 
minimum  value  can  be  thus  ascertained,  the  value  shall  be  deemed  to  be 
an  amount  less  than  $500. 

(5)  Amounts  of  value  involved  in  thefts  committed  pursuant  to 
one  scheme  or  course  of  conduct,  whether  from  the  same  person  or  several 
persons,  may  be  aggregated  in  determining  the  grade  of  the  offense. 

Part  B 

Sec.  8  [Alternative  Fine] 

(a)  [Twice  Gain  or  Loss]  In  lieu  of  a  fine  otherwise  authorized 
by  law,  a  defendant  who  has  been  found  guilty  of  conduct  constituting  an 
offense  in  violation  of  this  Act  through  which  he  derived  pecuniary  value 
or  by  which  he  caused  personal  injury  or  property  damage  or  other  loss, 
may,  upon  motion  of  the  [insert  appropriate  phrase]  be  sentenced  to  pay  a 
fine  that  does  not  exceed  twice  the  gross  value  gained  or  twice  the  gross 


8738 


1624  Michigan  Law  Review  LVol.  74:1511 

loss  caused,  whichever  is  the  greater,  plus  the  costs  of  investigation  and 
prosecution. 

(b)  [Hearing]  The  court^  shall  hold  a  hearing  to  determine  the 
amount  of  the  fine  to  be  imposed  under  subsection  (a). 

(c)  [Pecuniary  Value]  As  used  in  this  section,  "pecuniary  value" 
means  : 

(1)  anything  of  value  in  the  form  of  money,  a  negotiable  instru- 
ment, a  commercial  interest,  or  anything  else  the  primary  significance  of 
which  is  economic  advantage;  or 

(2)  any  other  property  or  service  that  has  a  value  in  excess  of 
$100. 

Part  C:  Injunctions  and  Damages 

Sec.  9  [Injunctions] 

(a)  [General]  In  addition  to  what  is  otherwise  authorized  by  law, 
the  [insert  appropriate  phrase]  shall  have  jurisdiction  to  prevent  and  re- 
strain conduct  constituting  an  offense  in  violation  of  this  Act.  The  [insert 
appropriate  phrase]  may  issue  appropriate  orders,  including: 

(1)  ordering  any  person  to  divest  himself  of  any  interest  in  any 
organization; 

(2)  imposing  reasonable  restraints  on  the  future  conduct  of  any 
person,  including  making  investments  or  prohibiting  any  person  from  en- 
gaging in  the  same  type  of  organization  involved  in  the  offense;  or 

(3)  ordering  the  dissolution  or  reorganization  of  any  organization, 
making  due  provision  for  the  rights  of  innocent  persons. 

(b)  [Application  by  [insert  appropriate  phrase]]  The  [insert  appro- 
priate phrase]  may  institute  proceedings  under  subsection  (a).  In  any 
such  proceeding,  the  [insert  appropriate  phrase]  shall  move  as  soon  as 
practicable  to  a  hearing  and  determination.  Pending  final  determination, 
the  [insert  appropriate  phrase]  may  at  any  time  enter  such  restraining 
orders  or  prohibitions  or  take  such  other  actions  as  are  in  the  interest  of 
justice. 

(c)  [Application  by  Private  Party]  Any  person  may  institute  a  pro- 
ceeding under  subsection  (a).  In  such  proceeding,  relief  shall  be  granted 
in  conformity  with  the  principles  that  govern  the  granting  of  injunctive  re- 
lief from  threatened  loss  or  damage  in  other  civil  cases,  except  that  no 
showing  of  special  or  irreparable  damage  to  the  person  shall  have  to  be 
made.  Upon  the  execution  of  proper  bond  against  damages  for  an  injunc- 
tion improvidently  granted  and  a  showing  of  immediate  danger  of  signif- 
icant loss  or  damage,  a  temporary  restraining  order  and  a  preliminary  in- 
junction may  be  issued  in  any  such  action  before  a  final  determination 
on  the  merits. 

Sec.   10  [Damages] 

(a)  [Suit  by  the  [insert  appropriate  phrase]]  If  the  [insert  appropriate 
phrase]  is  injured  by  reason  of  any  conduct  constituting  an  offense  in 
violation  of  this  Act,  the  [insert  appropriate  phrase]  may  bring  a  civil 

9.  Where  jury  sentencing  is  in  effect,  this  clause  would  have  to  be  altered. 


8739 


August  1976]        Criminal  Distribution  of  Stolen  Property  1625 

action  and  recover  damages  as  specified  in  subsection  (c)  and  the  cost 
of  the  action. 

(b)  [Suit  by  a  Private  Person]  If  a  private  person  is  injured  by 
reason  of  any  conduct  constituting  an  offense  in  violation  of  this  Act,  the 
private  person  may  bring  a  civil  action  and  recover  damages  as  specified 
in  subsection  (c),  attorney's  fees  and  costs  of  investigation  and  litigation, 
reasonably  incurred. 

(c)  [Treble  Damages]  Damages  recoverable  in  action  brought 
under  subsection  (a)  and  (b)  shall  be  threefold  the  actual  damages  sus- 
tained, and,  where  appropriate,  punitive  damages. 

Sec.   11    [Procedure]^" 

(a)  [Intervention]  The  [insert  appropriate  phrase]  may,  upon  timely 
application,  intervene  in  any  civil  action  or  proceeding  brought  under  this 
part  if  [insert  appropriate  phrase]  certifies  that  in  his  opinion  the  action 
or  proceeding  is  of  general  public  importance.  In  such  action  or  proceed- 
ing, the  [insert  appropriate  phrase]  shall  be  entitled  to  the  same  relief  as 
if  the  [insert  appropriate  phrase]  had  instituted  the  action  or  proceeding. 

(b)  [Estoppel]  A  final  judgment  or  decree  rendered  in  favor  of  the 
[insert  appropriate  phrase]  in  any  criminal  action  or  proceeding  under  this 
Act  shall  estop  the  defendant  in  such  action  or  proceeding  in  any  subse- 
quent civil  action  or  proceeding  under  this  Act  as  to  all  matters  as  to  which 
such  judgment  or  decree  in  such  action  or  proceeding  would  be  an  estoppel 
as  between  the  parties  to  it. 

(c)  [Limitations]  No  civil  cause  of  action  shall  be  brought  under  this 
Act  more  than  five  years  after  such  action  accrues.  If  a  criminal  prosecu- 
tion, civil  action  or  other  proceeding  is  brought  or  intervened  in  by  the 
[insert  appropriate  phrase]  to  punish,  prevent  or  restrain  any  conduct 
constituting  an  offense  in  violation  of  this  Act,  tlie  running  of  the  period 
of  limitations  provided  by  this  subsection  with  respect  to  any  civil  cause 
of  action  arising  under  this  Act,  which  is  based  in  whole  or  in  part  on 
any  matter  complained  of  in  any  such  prosecution,  action,  or  proceeding 
brought  by  the  [insert  appropriate  phrase],  shall  be  suspended  during  the 
pendency  of  such  prosecution,  action  or  proceeding  and  for  two  years  fol- 
lowing its  termination. 

Part  D 

Sec.   12  [General  Provisions] 

(a)  [Severability  Clause]   [Insert  appropriate  severability  clause.] 

(b)  [Amendments  to  Other  Acts] 

( 1 )  [Immunity]  [Whenever,  in  the  judgment  of  [insert  appropriate 
phrase],  testimony  or  production  of  other  evidence  by  any  person  in  any 
criminal  prosecution,  civil  action  or  other  proceeding  under  this  Act  is 
necessary,  such  [insert  appropriate  phrase]  may  make  application  to  [in- 
sert appropriate  phrase]  that  the  person  be  instructed  to  testify  or  produce 
evidence,  and  upon  order  of  the  [insert  appropriate  phrase],  such  person 
shall  not  be  excused  from  testifying  or  otherv/ise  producing  evidence  on 

10.  Consideration  should  be  given  to  the  breadth  of  the  jurisdiction's  long-arm 
statute  to  insure  that  out-of-state  tortfeasors  can  be  reached  easily. 


8740 


1626  Michigan  Law  Review  [Vol.  74:1511 

the  ground  that  the  testimony  or  evidence  may  tend  to  incriminate  him, 

provided  that  no  testimony  or  other  evidence  compelled  under  such  order 

or  any  evidence  directly  or  indirectly  derived  from  such  testimony  or 

other  evidence  may  be  used  against  such  person  in  any  criminal  case, 

except  a  prosecution  for  perjury,  giving  a  false  statement,  or  otherwise 

failing  to  comply  with  the  order.] ^^ 

(2)   [Electronic  Surveillance]   [Insert,  if  necessary,  an  appropriate 

amendment  to  existing  legislation  authorizing  electronic  surveillance  to 

provide  for  such  surveillance  in  investigations  and  prosecutions  under  this 
Act.]i2 

(c)  [Repealers]  [Insert  appropriate  repealers.] 

(d)  [Effective  Date]  [Insert  effective  date.] 

11.  Authorization  to  grant  immunity  is  essential  in  complex  fencing  investiga- 
tions. Existing  legislation  does  not  always  make  it  available.  If  necessary,  this  pro- 
vision should  be  included  in  the  Act  to  remedy  this  defect.  For  a  collection  of  the 
laws  of  the  various  states,  see  The  National  Association  of  Attorneys  General, 

COMM.   ON  THE  OFFICE  OF  ATTORNEY   GENERAL,   ORGANIZED  CRIME   CONTROL   LEGIS- 
LATION 140-48  (Jan.  1975). 

12.  Authorization  to  employ  electronic  surveillance  is  essential  in  complex  fenc- 
ing investigations.  Existing  legislation  does  not  always  make  it  clearly  available.  See 
The  National  Association  of  Attorneys  General,  supra  Appendix  B,  note  11,  at 
34-36.  While  twenty-three  states  authorize  electronic  surveillance  in  specific  instances, 
surveillance  in  fencing  investigations  may  not  be  permitted  in  all  situations.  See,  e.g., 
Fla.  Stat.  Ann.  §  934.07  (1974);  Ore.  Rev.  Stat.  §  133.725(l)(a)  (1975).  Clari- 
fying and  authorizing  legislation  is  needed. 


8741 

REPORT  TO  THE  CONGRESS 


^^         BY  THE  COMPTROLLER  GENERAL 
,i;f  )         OF  THE  UNITED  STATES 


War  On  Organized  Crime 
Faltering-Federal  Strike  Forces 
Not  Getting  The  Job  Done 

Department  of  Justice 


Organized  crime  still  flourishes,  despite  10 
years  of  work  by  Federal  strike  forces  to 
combat  it.  Why? 

■-Consumer  demand  for  organized  crime's 
goods  and  services  provide  it  with  bil- 
lions of  dollars  of  income  each  year. 

■Federal  work  against  organized  crime 
is  not  planned,  organized,  or  directed 
efficiently. 

--Most  convictions  obtained  by  strike 
forces  have  resulted  in  no  prison  sen- 
tences or  sentences  of  less  than  2 
years. 

The  Department  of  Justice  agrees  that  the 
Federal  effort  against  organized  crime  can  be 
better  managed. 


GGD-77^17 


8742 


COMPTROLLER  GENERAL  OF  THE  UNITED  STATES 
WASHINGTON.  DC.     20548 


B-178618 


To  the  President  of  tne  Senate  and 

the  Speaker  of  the  House  of  Representatives 

This  report  addresses  the  Federal  effort  to  coordinate 
the  fight  against  organized  crime  through  the  Justice  Depart- 
ment's strike  forces  and  makes  recommendations  for  improve- 
ment.  Strike  forces  are  located  in  areas  of  major  organized 
crime  activity  and  are  composed  primarily  of  representatives 
from  Federal  investigative  agencies  and  attorneys  of  the 
Justice  Department.   Our  report  covers  the  operations  of  six 
strike  forces  located  in  Cleveland,  Detroit,  Los  Angeles,  New 
Orleans,  Brooklyn,  and  Manhattan. 

We  made  this  review  to  determine  the  efficiency  of  the 
strike  force  program.   Our  review  was  made  pursuant  to  the 
Budget  and  Accounting  Act,  1921  (31  U.S.C.  53),  and  the  Ac- 
counting and  Auditing  Act  of  1950  (31  U.S.C.  67). 

Copies  of  this  report  are  being  sent  to  the  Director, 
Office  of  Management  and  Budget,  and  to  the  heads  of  the  de- 
partments and  agencies  directly  involved  in  the  strike  force 
program. 


ACTING  comptrolllr  General 
of  the  United  States 


8743 


COMPTROLLER  GENERAL'S 
REPORT  TO  THE  CONGRESS 


WAR  ON  ORGANIZED  CRIME 
F'^LTERING  —  FEDERAL 
STRIKE  FORCES  NOT 
GETTING  THE  JOB  DONE 
Department  of  Justice 


DIGEST 

Organized  crime  is  a  serious  national  problem. 
The  Federal  Government  is  making  a  special 
effort  to  comoat  it  witti  13  joint-agency  strike 
forces  around  the  country,  whose  goal  is  to 
launch  a  coordinated  attack  against  this  prob- 
lem.  This  goal  has  not  been  accomplished. 
About  $80  million  is  spent  each  year  to  inves- 
tigate and  prosecute  organized  crime  figures. 
Although  the  Federal  Government  has  made  some 
progress  in  the  organized  crime  fight,  organ- 
ized crime  is  still  flourishing. 

Elimination  of  organized  crime  will  be  diffi- 
cult, if  not  impossiole.   But  more  could  be 
done  if  Federal  efforts  were  better  planned, 
organized,  directed,  and  executed. 

The  escalated  war  on  organized  crime  began  in 
1966  when  the  President  directed  the  Attorney 
General  to  develop  a  unified  program  against 
racketeering.   The  idea  was  to  coordinate  the 
resources  of  all  Federal  law  enforcement  agen- 
cies.  In  1970  the  National  Council  on  Organ- 
ized Crime  was  established  to  formulate  a 
strategy  for  eliminating  organized  crime.   The 
Council  met  for  only  1  year  and  failed  to 
formulate  a  strategy. 

Work  at  strike  forces  in  Cleveland,  Detroit, 

Los  Angeles,  New  Orleans,  and  New  York  (Brooklyn 

and  Manhattan)  showed  that: 


-The  Government  still  has  not  developed  a 
strategy  to  fight  organized  crime.   (See  p. 


9.) 


-There  is  no  agreement  on  what  organized  crime 
is  and,  consequently,  on  precisely  whom  or  what 
the  Government  is  fighting.   (See  p.  8.) 

-The  strike  forces  have  no  statements  of 
objectives  or  plans  for  achieving  those 
objectives.   (See  p.  10.) 


Tear  Sheet.    Upon  removal,  the  report 
cover  date  should  be  noted  hereon. 


GGD-77-17 


8744 


— Individual  strike  forces  are  hampered  oe- 
cause  the  Justice  attorneys-in-charge  have 
no  authority  over  participants  from  other 
agencies.   (See  p.  11.) 

--No  system  exists  for  evaluating  the  effec- 
tiveness of  the  national  effort  or  of 
individual  strike  forces.   (See  ch.  3.) 

--A  costly  computerized  organized  crime  intel- 
ligence system  is,  as  the  Department  of 
Justice  agrees,  of  dubious  value. 
( See  ch.  5  .  ) 

Strike  forces  have  obtained  numerous  convic- 
tions; however,  sentences  generally  have  oeen 
light.   At  the  strike  forces  reviewed,  52 
percent  of  the  sentences  during  a  4-year 
period  did  not  call  for  confinement,  and  only 
20  percent  of  the  sentences  were  for  2  years 
or  more.   ( See  ch.  4.  ) 

GAO  presents  detailed  recommendations  that 
point  out  the  need  to: 

— Identify  what  and  whom  the  strike  forces  are 
combating. 

--Develop  a  national  strategy  for  fighting 
organized  crime. 

— Centralize  Federal  ef f or ts--give  someone  the 
responsioility  and  authority  for  develooing 
plans  and  overseeing  their  implementation. 

— Establish  a  system  for  evaluating  the  effec- 
tiveness of  the  national  and  individual 
strike  force  efforts. 

The  Department  knows  the  program  is  in  trouble. 
In  a  recent  study  it  concluded  that  although 
the  program  had  been  in  operation  for  nearly  a 
decade,  no  one  could  seriously  suggest  that 
organized  crime  had  been  eliminated  or  even 
controlled.   The  Department  of  Justice  there- 
fore agrees  that  the  Federal  effort  against 
organized  crime  can  be  better  managed. 
(See  app.  VII. ) 

The  Department  stated  that  formulating  a  uni- 
versally applicable  and  acceptable  definition 

ii 


8745 


of  organized  crime  will  be  difficult,  although 
necessary,  because  of  the  special  purpose  for 
which  the  strike  forces  were  created.   In  prac- 
tice, the  work  done  by  strike  forces  has  been 
hampered  by  this  problem  of  definition.   Since 
strike  forces  were  established  for  a  special 
purpose,  there  is  little  reason  why  an  accept- 
able definition  cannot  be  agreed  uoon.   (See 
p.  14.) 

The  Department  also  stated  that  it  is  making 
management  changes  to  improve  its  program  and 
that  the  National  Council  on  Organized  Crime, 
if  convened  as  recommended  by  GAO,  need  not 
therefore  undertake  a  management  function. 
According  to  the  Department,  the  Council  should 
serve  rather  as  a  forum  where  general  matters 
are  discussed  and  where  an  overview  of  organized 
crime  strategy  is  developed.   {See  p.  14.) 

Because  the  Attorney  General  has  the  role  of 
coordinating  the  fight  against  organized  crime, 
the  Department  of  Justice  should  continue  to 
manage  the  strike  force  program.   However, 
because  the  Council  includes  officials  from 
all  participating  agencies,  it  could  be  the 
vehicle  to  bring  about  a  more  coordinated 
Federal  effort.   The  Council  could  produce  a 
clear  statement  on  what  is  expected  of  the 
strike  force  program,  set  specific  ways  to  most 
effectively  meet  program  objectives,  and  estab- 
lish the  commitment  of  resources  necessary  from 
the  agencies  to  carry  out  the  program's  objec- 
tives.  (See  pp.  14  ■and  15.) 

The  Department  of  Justice  has  been  conducting 
its  own  review  of  the  program  since  January 
1976  and  said  that  changes  in  managers  of  the 
Organized  Crime  and  Racketeering  Section  and 
in  the  strike  forces'  operations  respond  to 
many  of  GAO's  concerns. 


Tear  Sheet  i  i  i 


8746 


Contents 

Page 

DIGEST  i 

CHAPTER 

1  INTRODUCTION  1 

Organized  crime  in  the  United  States  1 

Federal  efforts  against  organized  crime  2 

2  STRIKE  FORCE  PROGRAM  NEEDS  A  NATIONAL  STRAT- 

EGY AND  CENTRALIZED  DIRECTION  7 
No  agreement  on  definition  of  "organized 

crime"  8 
National  Council  on  Organized  Crime 

failed  to  establish  a  national  strategy  9 
OCRS  is  not  deeply  involved  in  planning 

and  directing  the  strike  force  program  10 
Strike  force  attorneys-in-charge  cannot 

direct  investigative  priorities  11 

Conclusion  12 

Recommendations  13 

Agency  comments  and  our  evaluation  13 

Department  of  Justice  13 

Internal  Revenue  Service  15 

Department  of  the  Treasury  16 

3  THE  EFFECTIVENESS  OF  STRIKE  FORCES  HAS  NOT 

BEEN  EVALUATED  17 
OCRS  has  not  established  an  evaluation 

system  17 
How  strike  forces  evaluate  or  plan  to 

evaluate  their  activities  18 
Prior  reviews  of  strike  force  opera- 
tions 19 
Conclusion  21 
Recommendation  21 
Agency  comments  and  our  evaluation  21 
Department  of  Justice  21 
Department  of  the  Treasury  21 
Internal  Revenue  Service  22 

4  STRIKE  FORCE  PROSECUTIONS  OF  ORGANIZED  CRIME 

FIGURES  OFTEN  RESULT  IN  LIGHT  SENTENCES  24 
Analysis  of  indictments,  convictions, 

and  sentences  at  six  strike  forces  24 
Analysis  of  sentences  imposed  on  "high- 
echelon"  organized  crime  figures  26 
Comments  on  sentences  imposed  in  strike 

force  cases  27 


8747 


CHAPTER  Page 

Limited  use  of  provisions  of  the 

Organized  Crime  Control  Act  of  1970       28 

Special  grand  juries  2S 

Special  offender  provision  29 

Conclusion  29 

5  THE  ORGANIZED  CRIME  INTELLIGENCE  SYSTEM  IS 

NOT  ADEQUATE  30 
What  is  the  system  and  what  was  it  de- 
signed to  do?  30 
Questionable  need  for  the  system  and 

usefulness  of  its  data  31 

Conclusion  32 

Recommendation  32 

Agency  comments  and  our  evaluation  32 

Department  of  Justice  32 

Internal  Revenue  Service  32 

6  SCOPE  OF  REVIEW  34 

APPENDIX  • 

I      Selected  information  on  the  six  strike 

forces  reviewed  oy  GAO  35 

II      How  a  strike  force  operates  36 

III     Working  committees  of  the  National  Council 

on  Organized  Crime  38 

IV     Summary  of  U.S.  Code  violations  for  six  se- 
lected strike  forces--indictments  obtained 
during  fiscal  years  1972-75  39 

V     Summary  of  indictments  for  six  selected 

strike  forces  for  fiscal  years  1972-75--dis- 
position  or  status  as  of  September  1,  1975     41 

VI      Sentences  received  by  defendants  indicted  by 
six  selected  strike  forces--f iscal  years 
1972-75  43 

VII      Letter  dated  January  14,  1977,  from  the  De- 
partment of  Justice  45 

VIII      Letter  dated  October  5,  1976,  with  attach- 
ment, from  the  Internal  Revenue  Service       52 

IX     Letter  dated  October  20,  1976,  from  the  De- 
partment of  the  Treasury  65 


8748 


APPENDIX  Page 

X      Principal  officials  responsible  for  adminis- 
tering activities  discussed  in  this  report     67 

ABBREVIATIONS 

GAG      General  Accounting  Office 

OCRS     Organized  Crime  and  Racketeering  Section 

IRS      Internal  Revenue  Service 


8749 

CHAPTERJL 
INTRODUCTION 

The  President's  Commission  on  Law  Enforcement  and 
Administration  of  Justice  characterized  organized  crime  as 
follows : 

"Organized  crime  is  a  society  that  seeks  to  oper- 
ate outside  the  control  of  the  American  people  and 
their  governments.   It  involves  thousands  of  crimi- 
nals, working  within  structures  as  complex  as  those 
of  any  large  corporation,  subject  to  laws  more 
rigidly  enforced  than  those  of  legitimate  govern- 
ments.  Its  actions  are  not  impulsive  but  rather 
the  result  of  intricate  conspiracies,  carried  on 
over  many  years  and  aimed  at  gaining  control  over 
whole  fields  of  activity  in  order  to  amass  huge 
profits .  " 

Organized  crime  affects  the  lives  of  millions  of  citizens 
and  derives  billions  of  dollars  in  illegal  income  annually 
from  its  activities.   The  Federal  Government  is  currently 
spending  about  $80  million  each  year  to  investigate  and 
prosecute  organized  crim.e  figures  and  their  associates. 

To  combat  organized  crime  nationwide,  the  Attorney 
General  created  18  Federal  strike  forces.   In  tnis  report, 
our  first  on  strike  force  activities,  we  reviewed  six  strike 
forces  in  Cleveland;  Detroit;  Los  Angeles;  New  Orleans;  and 
Brooklyn  and  Manhattan,  New  York.   (See  app.  I.)   Specif- 
ically, we  discuss: 

--How  strike  forces  are  organized  and  operated. 

— The  planning  and  direction  of  strike  force  efforts. 

— The  need  to  evaluate  the  program's  success  in  reduc- 
ing organized  crime. 

— The  Department  of  Justice's  organized  crime  intelli- 
gence system. 

ORGANIZED  CRIME  IN  THE 
UNITED  STATES 

The  Organized  Crime  Control  Act  of  1970  (Public  Law 
91-452)  states  that  organized  crime  threatens  the  domestic 
security  and  undermines  the  general  welfare  of  the  Nation. 
Although  exact  figures  are  not  available,  the  Department  of 
Justice  estimated  that  organized  crime  derives  as  much  as 
$50  billion  a  year  from  gambling  in  addition  to  income  from 
narcotics  and  loan  sharking  operations. 


8750 


into  1 

Commis 

metnod 

evas  io 

exact 

activi 

The  La 

Daymen 

expens 

cr  ime 


ncome  fro 

egitimate 
sion  repo 
s--nionopo 
n--to  dri 
illegal  p 
ties,  org 
w  Enforce 
ts  for  CO 
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could  not 


m  organized  c 
business  and 
rted  tnat  org 
lization,  ter 
ve  out  lawful 
rofits  from  t 
anized  crime 
ment  Assistan 
rruption  prob 
nized  crime, 
exist. 


rime  is 

labor 
anized 
ror ism, 
owners 
he  publ 
often  c 
ce  Admi 
ably  re 
and  wit 


used  to  make  inroads 
unions.   The  President's 
crime  uses  illegitimate 

extortion,  and  tax 
hip  and  leadership  and  to 
ic.   To  carry  out  its 
orrupts  public  officials, 
nistration  reported  that 
present  the  largest  single 
hout  corruption  organized 


As  reported  by  the  President's  Commission  in  February 
1967,  the  core  of  organized  crime,  frequently  referred  to  as 
La  Cosa  Nostra,  consists  of  24  "families"  located  in  major 
cities  throughout  the  country.   Each  family  works  with,  and 
often  controls,  other  organized  crime  groups  operating  within 
its  area.   Membership  in  the  families  varies  from  about  20 
to  700. 


The  following  charts  were  extracted  from  the  President's 
Commission  study  and  show  where  organized  crime  is  concen- 
trated, how  the  families  are  organized,  and  the  types  of 
activities  in  which  they  engage. 


8751 


8752 


AN  ORGANIZED  CRIME  FAMILY 


BOSS 


COUNSELOR 


UNDERBOSS 


LIEUTENANT 


LIEUTENANT 


LIEUTENANT 


SOLDIERS 


CORRU^TIONiPOLICE   _ 
AND  PUBLIC  OFFICIALS 


(MEMBERS  GROUPED  UNDER  LIEUTENANTS) 
THROUGH  THREATS.  ASSAULT,  AND  MURDER,  ENFORCE 
DISCIPLINE    OVER  MEMBERS,  NONMEMBERS  AND      — 
FRONTS  ON  ORDERS  FROM  LEADER. 

WITH  AND  THROUGH  NONMEMBER  ASSOCIATES  AND 
FRONTS-PARTICIPATE  IN,  CONTROL  OR  INFLUENCE 


EXERCISING  CONTROL 
IN  MULTI-  STATE  AREA 


LEGITIMATE  INDUSTRY 
FOOD  PRODUCTS 
REALTY 
RESTAURANTS 
GARBAGE  DISPOSAL 
PRODUCE 

GARMENT  MANUFACTURING 
BARS  AND  TAVERNS 
WATERFRONT 
SECURITIES 
LABOR  UNIONS 
VENDING  MACHINES 
OTHERS 


ILLEGAL  ACTIVITIES 
GAMBLING  (NUMBERS,  POLICY, 
DICE,  BOOKMAKING) 
NARCOTICS 
LOANSHARKING 
LABOR  RACKETEERING 
EXTORTION 
ALCOHOL 
OTHERS 


8753 


FEDERAL  EFFORTS  AGAINST  ORGANIZED  CRIME 

Federal  efforts  against  organized  crime  began  in  the 
office  of  the  Attorney  General.   In  July  1954  the  Attorney 
General  established  within  the  Criminal  Division  an  Organ- 
ized Crime  and  Racketeering  Section  (OCRS)  to 

— coordinate  enforcement  activities  against  organized 
cr  ime , 

--initiate  and  supervise  investigations, 

— accumulate  and  correlate  intelligence  data, 

— formulate  general  prosecutive  policies,  and 

— assist  Federal  prosecuting  attorneys  throughout 
the  country. 

In  1966  the  President,  directing  Federal  law  enforcement 
officials  to  review  the  national  program  against  organized 
crime,  designated  tne  Attorney  General  to  be  the  focal  ooint 
for  developing  a  unified  program  against  racketeering. 

Because  conventional  methods  of  law  enforcement  had 
proven  ineffective  against  organized  crime,  between  January 
1967  and  April  1971  OCRS  established  18  Federal  strike 
forces,  staffed  with  Justice  Attorneys  and  representatives 
from  other  Federal  investigative  and  law  enforcement  agencies 
As  of  December  1976,  strike  forces  were  operating  in  Boston, 
Brooklyn,  Buffalo,  Chicago,  Cleveland,  Detroit,  Kansas  City, 
Los  Angeles,  Miami,  Newark,  Philadelphia,  San  Francisco,  and 
Washington,  D.C.   Strike  forces  were  terminated  in  Baltimore 
(1974)  and,  after  our  review,-  in  Manhattan,  New  Orleans, 
Pittsburgh,  and  St.  Louis  (1976). 

In  addition  to  OCRS,  the  following  Federal  organizations 
participate  in  the  strike  force  program: 

— Bureau  of  Alcohol,  Tobacco,  and  Firearms 

--U.S.  Customs  Service 

— Department  of  Labor 

--Drug  Enforcement  Administration 

— Federal  Bureau  of  Investigation 

--Immigration  and  Naturalization  Service 

— Internal  Revenue  Service 


8754 


— Securities  and  Exchange  Commission 
--U.S.  Postal  Service 
— U.S.  Marshals  Service 


--U.S.  Secret  Service 

The  Organized  Crime  Control  ^ct  of  1970  provided  Federal 
law  enforcement  officials  and  the  courts  with  additional 
legal  weapons  to  use  against  organized  crime,  including  the 
authority  to 

— establish  special  grand  juries  to  investigate 

organized  criminal  activities  within  their  districts 
and  to  issue  reports  on  these  investigations  at  their 
discretion  and 

--im.pose  extended  prison  sentences  of  up  to  25  years 
for  "dangerous  special  offenders." 

In  addition,  in  1970  the  National  Council  on  Organized 
Crime  was  established  to  formulate  a  national  strategy  to 
eliminate  organized  crime.   The  Council,  chaired  by  the 
Attorney  General,  is  composed  of  high-level  representatives 
of  Federal  departments  and  agencies  having  major  responsibil- 
ities affecting  or  affected  by  the  activities  of  organized 
cr  ime. 


8755 

CHAPTER  2 

STRIKE  FORCE  PROGRAM  NEEDS  A 

NATIONAL  STRATEGY  AND  CENTRALIZED 

DIRECTION 

Organized  crime  strike  forces  were  created  to  launch  a 
coordinated  attack  against  a  serious  national  problem.   They 
were  unsuccessful,  however,  for  a  number  of  reasons. 

The  Department  of  Justice  established  the  strike  force 
program  because  it  knew  that  a  national  approach  to  combat- 
ing organized  crime  was  needed.   In  1970  the  Attorney  General 
stated  that  he  intended  to  deal  with  and  eventually  eliminate 
organized  crime  and  that  this  goal  could  best  be  achieved 
through  a  national  strategy  implemented  by  the  strike  forces. 

A  national  effort,  however,  has  been  unsuccessful 
because 

— the  National  Council  on  Organized  Crime  has  not 
develoned  a  national  strategy  to  fight  organized 
crime  and  has  not  met  since  June  1971, 

--Justice's  Organized  Crime  and  Racketeering  Section 
has  not  adequately  planned  and  directed  the  efforts 
against  organized  crime  and  thus  has  limited  any 
national  coordinated  effort  to  fight  this  problem, 
and 

— limited  authority  over  participating  agencies  pre- 
cludes attorneys-in-charge  of  strike  forces  from 
assuming  a  more  active  role. 

These  factors  and  the  lack  of  agreement  as  to  what  "organized 
crime"  is  suggest  that  Federal  efforts  against  organized 
crime  are  more  the  result  of  individual  decisions  made  at  the 
local  level  than  the  result  of  a  national  strategy,  as  orig- 
inally envisioned.   In  essence,  there  is  no  coordinated 
Federal  effort  to  fight  organized  crime.   In  practice,  each 
participating  agency  fights  organized  crime  as  it  sees  fit 
and  uses  strike  force  attorneys  for  advice  and  prosecution. 
(App.  II  describes  how  a  strike  force  operates.) 

A  1976  Justice  study  of  the  OCRS  intelligence  system 
stated  that,  although  the  strike  force  program  had  been  in 
operation  "or  nearly  a  decade,  no  one  could  seriously 
suggest  that  the  problem  of  organized  crime  had  been  elimi- 
nated or  even  brought  under  control. 


8756 


NO  AGREEMENT  OH  DEFINITION 
OF  "ORGANIZED  CRIME " 

Before  a  problem  can  be  dealt  with,  it  must  be  adequately 
defined.   Participating  Federal  agencies  cannot  completely 
agree  on  what  the  term  "organized  crime"  encompasses. 

In  1970,  to  define  the  relationship  between  U.S.  attor- 
neys and  strike  forces,  the  Attorney  General  defined  organized 
crime  as 


"*  *  *  all  illegal  activities  engaged  in  by  members  of 
criminal  syndicates  operative  throughout  the  United 
States,  and  all  illegal  activities  engaged  in  by  known 
associates  and  confederates  of  such  members." 

Despite  this  definition,  a  study  issued  by  the  U.S.  Attorneys' 
Advisory  Committee  in  1974  noted  that  47  of  88  U.S.  attorneys 
said  that  organized  crime  was  not  sufficiently  defined  to 
delineate  prosecutive  responsibility.   Some  felt  that  a  defi- 
nition should  be  based  on 

--the  type  of  crime  involved, 

--a  list  of  known  organized  crime  figures,  or 

— particular  statutes. 

At  the  operational  level,  problems  of  definition  also 
exist.   An  internal  Justice  reoort  issued  in  1974  stated 
that  confusion  existed  over  the  scooe  of  the  strike  force's 
jurisdiction;  i.e.,  the  definition  of  organized  crime. 

Definitions  of  organized  crime  provided  by  Federal 
agency  personnel  participating  in  the  program  varied  widely. 
At  one  extreme  the  term  was  defined  to  include  only  members 
of  La  Cosa  Nostra,  while  at  the  other  extreme  organized  crime 
included  any  group  of  two  or  more  persons  formed  to  commit  a 
criminal  act. 

Following  are  some  of  the  definitions  agency  officials 
provided : 

— Any  organized  group  involved  in  the  commission  of  a 
cr  ime . 

--Activities  normally  associated  with  La  Cosa  Nostra 
figures  or  with  corrupt  public  officials. 

— Any  criminal  activity  performed  on  a  large  and 
sophisticated  scale,  sucn  as  gambling. 


8757 


— A  continuous  pattern  of  criminal  activity  by  the 
same  group  or  individual  which  has  a  monopolistic 
impact  on  an  industry  or  area. 

The  lack  of  a  uniform  definition  has  resulted  in  prob- 
lems with  prosecutorial  jurisdiction  and,  more  importantly, 
in  not  applying  consistent  criteria  nationwide  for  selecting 
the  targets  of  the  strike  forces. 

NATIONAL  COUNCIL  ON  ORGANIZED  CRIME 
FAILED  TO  ESTABLISH  A  NATIONAL  STRATEGY 

On  June  4,  1970,  Executive  Order  11534  established  the 
National  Council  on  Organized  Crime  and  made  it  responsible 
for  formulating  an  effective,  coordinated,  national  strategy 
to  eliminate  organized  crime. 

Although  relationships  among  agencies  participating  in 
the  strike  force  program  had  developed  at  the  operational 
level,  the  fight  against  organized  crime  under  the  new  Coun- 
cil would  now  have  the  necessary  strategic  as  well  as  tacti- 
cal planning.   The  Council,  providing  impetus  to  the  fight 
and  uniting  all  agencies  in  a  cooperative  venture,  estab- 
lished as  its  goal  tne  elimination  of  organized  crime  by  1976. 

Chaired  by  the  Attorney  General,  the  Council  was  com- 
posed of  high-level  representatives  of  Federal  departments 
and  agencies  having  major  responsibilities  affecting  or 
affected  by  the  activities  of  organized  crime.   The  Council 
established  an  executive  committee  and  seven  working  commit- 
tees.  (See  app.  III.)   The  executive  committee  was  to  direct 
the  Council's  work  while  the  working  committees  were  to 

— analyze  needs, 

— identify  fruitful  areas  of  endeavor, 

— support  the  various  departments  on  budget  and 
manpower  requests,  and 

— coordinate  all  departments  while  attempting  to 
eliminate  rackets. 

The  Council  met  five  times  but  failed  to  formulate  a 
national  strategy  to  fight  organized  crime.   It  has  not  met 
since  June  1971.   A  Justice  official  said  that  the  Depart- 
ment does  not  know  why  the  Council  failed  to  develop  a 
national  strategy  and  that  there  are  no  plans  to  reconvene 
the  Council. 

The  Council  has  made,  thus  far,  only  two  achievements. 
First,  proposals  were  made  and  accepted  to  establish  strike 


8758 


forces  in  PittsDurgh,  Baltimore,  San  Francisco,  and  Kansas 
City.   Second,  one  working  committee,  the  Gamoling  Rackets 
Committee,  initiated  an  investigation  into  nationwide  sports 
gamoling,  which  resulted  in  the  arrest  of  27  persons  and  the 
seizure  of  over  $2.3  million  in  currency,  securities,  checks, 
ana  notes. 

OCRS  IS  NOT  DEEPLY  INVOLVED  IN 


PLA.^]iMING  AND  DIRECTING  THE  STRIKE 


In  July  1974  a  committee  appointed  by  the  Attorney 
General  reported  tnat  organized  crime  activities  by  their 
very  nature  were  nationwide  and,  consequently,  that  central- 
ized Federal  direction  and  planning  were  essential. 

In  1976  the  Office  of  Management  and  Finance  reported, 
however,  that  OCRS  and  strike  force  officials  generally 
Delieved  there  was  no  national  strategy  against  organized 
crime.   Strike  force  agents  said  they  knew  of  no  national 
strategy  promulgated  by  OCRS  or  their  own  agencies.   The 
report  noted  that  field  agents  seemed  to  use  the  traditional 
reactive  approach  of  investigating  individual  suspects  and 
specific  offenses  and  that  the  apparent  effort  against  organ- 
ized crime  was  one  of  attrition. 

The  Office  of  Management  and  Finance  further  reported 
that  OCRS  did  not  have  a  unit  to  conduct,  analyze,  or  produce 
the  information  necessary  to  support  the  planning  or  opera- 
tions of  a  nationwide  program  to  fight  organized  crime. 

The  Office  of  Management  and  Finance  report  pointed  out 
tnat,  to  develop  a  meaningful  national  strategy,  there  has 
to  be  a  reliable  information  base  on  organized  crime.   Accord- 
ing to  the  report,  every  agency  involved  in  the  Federal 
effort  against  organized  crime  admits  that  such  information 
is  not  available.   If  it  were,  the  following  unresolved  pol- 
icy issues  could  be  addressed: 

--What  is  society's  ultimate  objective  concerning 

organized  crime?   Do  we  intend  to  eliminate  organized 
crime,  to  control  it  by  containing  it  at  some  current 
level  or  by  rolling  it  back  to  some  lower  level,  or 
to  accept  a  tolerable  level  of  organized  crime? 


10 


8759 


— How  will  the  strategy  chosen  be  executed  and  how  will 
execution  oe  monitored? 

OCRS  has  furnished  little  formal  written  direction  to 
its  strike  forces.   An  exception  to  this  occurred  in  August 
1974,  when  OCRS  advised  the  strike  forces  of  the  importance 
of  prosecuting  gambling  violations,  because  gambling  is  organ- 
ized crime's  main  source  of  income.   OCRS  outlined  guidelines 
for  reworking  all  gambling  cases  for  the  previous  5  years. 

OCRS  officials  said  that  planning  and  establishing  objec- 
tives were  best  accomplished  by  the  individual  strike  forces, 
although  OCRS  does  not  require  them  to  do  so.   Six  strike 
forces  reviewed  nad  not  established  definitive  objectives 
covering  their  operations.   Further,  although  we  agree  that 
goals  for  individual  strike  forces  are  necessary,  we  believe 
that  they  should  be  developed  within  an  overall  framework 
encompassing  the  national  problem. 

STRIKE  FORCE  ATTORNEYS-IN-CKARGE  CANNOT 
DIRECT  INVESTIGATIVE  PRIORITIES 

In  the  absence  of  a  national  strategy  or  overall  policy 
direction  from  Washington,  the  responsibility  for  planning 
rests  with  the  strike  forces.   However,  strike  force 
attorneys-in-charge  do  not  have  authority  to  direct  investi- 
gative priorities  within  their  jurisdictions  and,  as  pointed 
out  on  page  8,  they  are  faced  with  various  interpretations 
of  the  term  "organized  crime." 

In  January  1967  Justice  established  a  pilot  project  in 
Buffalo,  New  York — the  forerunner  to  the  existing  strike 
force  program.   The  project  brought  together  a  team  of  super- 
visory attorneys  and  investigators  from  Federal  law  enforce- 
ment agencies  to  mount  an  attack  against  local  organized 
cr  ime. 

This  team  jointly 

— identified  the  power  structure  of  the  local  organized 
crime  "family," 

— targeted  individuals  whose  removal  would  most  severely 
damage  criminal  operations,  and 

— initiated  prosecutions  in  areas  in  which  prosecution 
would  be  successful  and  would  seriously  curtail  the 
activities  of  the  criminal  organization. 

The  pilot  project  operated  until  1968,  and  the  assistant 
attorney  general  in  charge  of  the  Criminal  Division  at  that 


11 


92-465  O  -  77  -  13 


8760 


time  described  it  as  "the  most  fruitful  technique  available 
for  major  impact  on  organized  crime."   On  the  basis  of  the 
success  of  the  Buffalo  project,  the  Attorney  General  decided 
to  locate  strike  forces  throughout  the  country. 

In  establishing  the  strike  force  program,  however,  the 
Attorney  General  did  not  promulgate  formal  operational  guide- 
lines for  the  participating  Federal  agencies  or  define  au- 
thority and  responsibilities  of  the  attorneys-in-charge. 
The  strike  force  attorney-in-charge  has  little  discretionary 
power  over  what  is  investigated  in  his  jurisdiction  and  on 
v/hat  activities  investigative  priorities  are  established. 
These  decisions  are  made  by  the  participating  agencies,  not 
by  the  strike  force,  and  the  agencies  decide  at  what  stage 
in  an  investigation  strike  force  attorneys  will  become 
involved . 

A  House  Government  Operations  Committee  study  (K.  Rept. 
1574,  June  30,  1968)  recognized  that  Justice  generally  does 
not  have  line  authority  over  the  investigative  and  law 
enforcement  operations  of  other  Federal  agencies. 

The  strike  force  attorney-in-charge  cannot  require  par- 
ticipating Federal  agencies  to  conduct  specific  investiga- 
tions or  assign  additional  manpower  and  other  resources  to 
the  strike  force  program.   With  the  exception  of  the  Immigra- 
tion and  Naturalization  Service,  strike  force  personnel  are 
not  under  the  control  of  the  attorney-in-charge.   Some 
representatives  do  not  work  full  time  on  strike  force  matters 
and  do  not  work  out  of  the  strike  force  office. 

The  program  appears  dependent  to  a  great  extent  on  the 
cooperation  of  participating  agencies  and  development  of 
personal  relationships.   The  degree  of  cooperation,  however, 
is  not  mandated.   An  internal  Justice  evaluation  in  1974 
identified  as  one  of  the  program's  weaknesses  many  instances 
of  uneven  participation  by  the  agencies  represented  on  the 
strike  forces.   We  believe  that  until  participating  agencies' 
roles  are  delineated — sucn  as  objectives  defined,  cooperation 
circumscribed,  investigative  criteria  develooed,  and  resources 
committed — the  Federal  effort  will  remain  uncoordinated. 

CONCLUSION 

Because  agencies  participating  on  the  strike  forces 
cannot  uniformly  agree  on  the  definitive  scope  of  the  term 
"organized  crime,"  the  crime  problem  cannot  be  adequately 
defined  nor  can  progress  toward  its  solution  be  measured. 
The  National  Council  did  not  establish  a  national  strategy 
for  fighting  organized  crime,  nor  has  Justice  filled  the  void. 


12 


8761 


There  is  furthermore  no  central  direction  of  the  strike 

force  program,  including  established  goals  and  priorities. 

Limited  authority  over  participating  agencies  precludes  the 

strike  force  attorney-in-charge  from  assuming  a  more  active 
role  in  planning  strike  force  efforts.   Federal  efforts  will 

remain  uncoordinated  until  agencies'  roles  are  delineated 
and  resources  committed. 

RECOMMENDATIONS 

We  recommend  that  the  Attorney  General: 

— Define  organized  crime  so  that  consistent  criteria 
may  be  applied  nationwide  for  selecting  the  targets 
of  the  strike  forces. 

— Reconvene  the  National  Council  to  develop  specific 
goals  as  well  as  a  unified  approach  to  fighting  organ- 
ized crime  and  set  specific  priorities  in  a  clear 
mission  statement  to  be  used  by  all  strike  forces. 

— Develop,  in  conjunction  with  the  other  participating 
agencies,  agreements  delineating  each  agency's  (1) 
role  in  the  strike  forces,  including  the  role  of  the 
attorney-in-charge,  and  (2)  commitment  of  resources. 

— Seek  a  Presidential  order  requiring  the  other  agen- 
cies' cooperation  and  commitment,  should  he  not  re- 
ceive satisfaction  from  these  agencies. 

AGENCY  CQf4MENTS  AND  OUR  EVALUATIOiS! 

Department  of  Justice 

The  Department  of  Justice,  in  commenting  on  our  reoort 
(see  app.  VII),  stated  it  shares  our  concern  that  organized 
crime  still  flourishes.   The  Department  agrees  that  the 
Federal  effort  against  organized  crime  can  be  better  planned, 
organized,  directed,  and  executed  and  said  that  it  is  working 
toward  these  objectives.   The  Department,  hov/ever,  stated 
that  law  enforcement  can  deal  with  only  one  side  of  the 
organized  crime  equation.   Organized  crime  is  a  business  which 
depends,  as  do  all  businesses,  on  customer  acceptance  and 
patronage.   The  Department  said  it  must  be  understood  and  em- 
phasized that  whatever  program  is  designed  by  law  enforcement, 
that  program  can  only  deal  with  the  "supply"  side  of  the 
equation;  the  "demand"  side  is,  in  the  final  analysis,  depen- 
dent on  the  actions  and  reactions  of  the  American  public. 
The  Department  added  that  even  if  it  perfected  an  optimum 
method  of  "planning,  organizing,  executing,  and  directing"  an 
organized  crime  program,  organized  crime  may  well  continue  to 
"flourish"  in  the  above  sense. 

13 


8762 


Addressing  our  recommendation  for  a  workable  strike 
force  definition  of  organized  crime,  the  Department  said  that 
to  formulate  such  a  universally  applicable  and  acceptaole 
definition  of  organized  crim.e  is  difficult.   But  it  recognizes 
that  the  special  purpose  for  whicn  the  strike  forces  were 
created  requires  a  clear  and  uniform  articulation  of  investi- 
gative objectives.   Although  the  strike  forces  were  created 
for  the  special  ourpose  of  providing  a  coordinated  national 
effort  to  fight  organized  crime,  in  practice  this  effort  has 
been  hampered  because  of  definitional  confusion  as  noted  on 
pages  8  and  9.   And  since  strike  forces  were  estaolished  for 
a  special  purpose,  there  is  little  reason  why  an  acceptable 
definition  of  the  strike  forces'  targets  cannot  be  agreed 
upon. 

The  Department  initiated  a  requirement  in  early  1976 
that  it  review  prospective  strike  force  investigations  before 
they  are  begun  rather  than  after  they  are  completed.   We 
agree  with  the  Department  that  reviewing  case  initiation 
reports  will  be  helpful  in  determining  the  legitimacy  of 
cases  for  strike  force  efforts. 

However,  since  participating  agencies  determine  at  what 
investigative  stage  strike  force  attorneys  become  involved, 
an  investigation  could  be  nearly  completed  before  the  case 
is  presented  to  the  strike  force  as  an  organized  crime  case. 
Therefore,  we  believe  that  for  strike  force  efforts  to  be 
more  effective,  agency  investigations  should  be  brought  to 
the  strike  forces'  attention  early  so  that  decisions  can  be 
made  concerning  (1)  their  merit,  (2)  the  need  for  other 
agency  involvement  and  coordination,  and  (3)  additional 
prosecutive  requirements. 

As  a  result  of  management  changes  in  efforts  to  improve 
program  effectiveness,  the  Department  of  Justice  believes 
that  if  the  National  Council  on  Organized  Crime  is  convened, 
the  Council  need  not  undertake  a  management  function.   The 
Department  said  the  Council  should  serve  as  a  forum  where 
general  matters  are  discussed  and  where  an  overview  of  organ- 
ized crime  strategy  is  developed. 

We  believe  that,  because  the  Attorney  General  has  the 
role  of  coordinating  the  fight  against  organized  crime, 
overall  management  of  the  strike  force  program  should  remain 
in  the  Department  of  Justice.   We  believe,  however,  that 
because  the  Council  includes  officials  from  all  participating 
agencies,  it  could  be  the  vehicle  to  bring  about  a  more 
coordinated  Federal  effort.   The  Council  could  produce  a 
clear  mission  statement  on  what  is  expected  of  the  strike 
force  program;  set  specific  priorities  on  how  to  arrive  most 
effectively  at  meeting  program  objectives;  and  establish  the 

14 


8763 


needed  agency  commitment  of  resources  necessary  to  carry  out 

the  program's  oojectives.   Specifying  v;here  the  program  is 

going  and  how  it  intends  to  get  there  is  prerequisite  to 
evaluating  its  progress. 

The  Department  said  that  the  concept  of  interagency 
cooperation  as  originally  conceived  for  strike  forces  is  a 
good  one.   However,  in  practice,  the  effectiveness  of  strike 
forces  has  been  limited  somewhat  by  the  inability  of  the 
attorney-in-charge  to  tasK  each  agency  investigatively. 
This  proDlem  will  continue  to  some  extent,  since  an  organi- 
zational entity  cannot  be  given  responsibility  without 
authority.   The  Department  said,  however,  that  interagency 
cooperation  is  increasing.   The  Department  added  that  if 
satisfaction  is  not  received,  it  will  seek  assistance  from 
progressively  higher  levels  of  authority  in  its  efforts  to 
acquire  tne  cooperation  and  commitment  of  agencies. 

We  believe  that,  to  achieve  a  Federally  coordinated 
effort,  the  participating  agencies  need  agreements  setting 
forth  goals,  oojectives,  and  a  system  for  allocating  resources 
to  meet  program  expectations.   Such  agreements  could  also 
promote  continuity  even  when  changes  in  management  occur. 
Although  agreements  have  been  reached  when  disputes  have 
arisen,  agreements  delineating  agency  participation  will  aid 
in  minimizing  future  disputes  and  program  disruptions.   As 
the  coordinator  and  focal  point  for  the  Federal  organized 
crime  effort,  the  Attorney  General  should  know,  as  a  minimum, 
how  each  participating  agency  plans  to  fight  organized  crime 
and  the  resources  it  plans  to  commit. 

Internal  Revenue  Service 

In  commenting  on  our  report,  the  Internal  Revenue  Serv- 
ice (IRS)  was  concerned  that  our  observations  and  recommenda- 
tions could  seriously  affect  IRS'  participation  in  the  strike 
force  program.   (See  app.  VIII.)   Its  concern  was  that  IRS 
resources  assigned  to  the  strike  force  program  would  now  be 
controlled  by  the  strike  force's  attorney-in-charge  and  the 
Justice  Department. 

'»Me  believe  that  control  of  any  agency's  resources  by 
another  agency  is  limited  by  the  laws  governing  that  agency's 
mandate.   we  therefore  are  not  suggesting  that  Justice  have 
the  authority  to  control  IRS'  resources.   VVe  believe,  however, 
that  since  the  Attorney  General  is  the  coordinator  and  focal 
point  for  the  Federal  organized  crime  effort,  he  should  be 
knowledgeable  of  each  participating  law  enforcement  agency's 
plans  to  fight  organized  crime  and  the  resources  it  plans  to 
commit  to  tnis  fight. 


15 


8764 


Although  the  IRS-Department  of  Justice  coooeration 
agreement  of  January  8,  1976,  is  important  for  providing  the 
Attorney  General  with  the  information  needed  to  perform 
coordination  functions,  several  additional  factors  should  be 
formalized  into  the  agreement  to  make  it  more  useful  and 
comprehensive.   For  example,  IRS  commented  tnat  it  is  pre- 
paring an  internal  manual  supplement  setting  forth  its  strike 
force  program's  objectives  and  specifying  the  criteria  to  be 
used  in  determining  individuals  to  be  investigated.   These 
objectives  and  criteria  should  be  formalized  into  the  agree- 
ment.  Moreover,  the  present  agreement  needs  a  system  for 
allocating  resources  to  help  carry  out  the  program.   This 
system  could  help  in  program  planning  by  creating  a  resource 
base  available  to  execute  the  program.   On  page  12  of  this 
report,  we  have  clarified  the  essential  elements  we  believe 
necessary  for  such  an  agreement. 

Department  of  the  Treasury 

The  Department  of  the  Treasury,  in  commenting  on  this 
report  (See  app.  IX),  stated  that  Justice  attorneys  do 
exercise  authority  in  determining  which  investigation  will 
be  conducted  under  the  authority  of  the  strike  force.   While 
the  strike  force  attorney  can  influence  an  investigation  by 
suggesting  the  type  of  evidence  needed  for  conviction  or  by 
advising  the  investigator  of  the  difficulty  in  getting  con- 
victions, he  has  little  discretionary  power  over  what  is  to 
be  initially  investigated  or  what  activities  merit  investi- 
gative priority.  Currently,  the  agency  decides  at  what  in- 
vestigative stage  the  strike  force  attorney  will  become 
involved. 


16 


8765 


CHAPTER  3 

THE  EFFECTIVENESS  OF  STRIKE  FORCES 

HAS  NOT  BEEN  EVALU^TED 

The  Attorney  G'eneral  is  the  focal  point  for  Federal 
efforts  against  organized  crime  but,  to  date,  no  system  has 
been  established  to  evaluate  the  strike  force  program. 
There  are  no  criteria  against  which  to  measure  effectiveness 
nor  sufficient  data  to  quantify  the  results  of  strike  force 
efforts.   As  a  result.  Justice  does  not  know  the  extent  to 
which  the  strike  force  program  has  reduced  organized  crime 
in  the  United  States  and  what  changes  are  needed  to  improve 
the  program. 

In  1968  the  Bouse  Committee  on  Government  Operations 
recognized  the  need  to  measure  the  effectiveness  of  OCRS' 
activities.   The  Committee  pointed  out  that  the  President's 
Crime  Commission  believed  it  was  essential  to  be  able  to 
measure  law  enforcement's  effects  on  crime  so  that  officials 
could  plan  and  establish  prevention  and  control  programs. 

In  the  absence  of  a  formal  evaluation  system,  the  strike 
forces  we  reviewed  had  adopted  a  number  of  informal  measures, 
some  of  which  appeared  to  be  relatively  superficial  for  as- 
sessing their  operations. 

OCRS  HAS  NOT  ESTABLISHED 
AN  EVALUATION  SYSTEM 


assess  strike  force  results.   Thus,  OCRS  cannot  determine  how 
effective  the  program  has  been  in  reducing  organized  crime 

3      ^ J.   ..t,;~U   ~  I.  ^  i    \,  ^        C^.,^,-,^   1^„,,„   l-,„^. 


criminal  activity.   Tnis  lacK  or  cata  precxuaes  raa^ing   pas 
and  present  comparisons"  and  establishing  a  baseline  from 
which  trends  may  be  spotted  and  evaluations  performed.    The 
lack  of  a  more  specific  definition  of  organized  crime,  as 
noted  in  chapter  2,  also  makes  it  difficult  to  define  the 
problem  the  strike  forces  were  created  to  reduce. 


17 


8766 


OCRS  has  not  established  qualitative  or  quantitative 
goals  for  its  strike  forces,  nor  has  it  identified  the  in- 
formation needed  to  assess  strike  force  results.   The 
attorney-in-charge  of  planning  and  evaluation  said  it  was 
mandatory  that  strike  forces  send  data  to  OCRS  on  every 
person  indicted  and  on  every  person  convicted  as  a  result 
of  strike  force  activities.   However,  this  information  was 
incomplete  and,  in  some  cases,  inaccurate.   An  informal  OCRS 
study  showed  that  in  fiscal  year  1974  strike  forces  re- 
ported to  OCRS  only  64  percent  of  their  indictments. 

Until  1976  OCRS  did  not  receive  data  on  active  strike 
force  investigations  until  the  decision  was  made  to  seek  an 
indictment.   On  March  12,  1976,  however,  the  Assistant  At- 
torney General  of  the  Criminal  Division  and  OCRS  instructed 
all  strike  forces  to  submit  a  case  initiation  report  when 
an  investigation  was  opened.   This  report  is  designed  to 
describe  an  investigative  or  prosecutive  matter  which  the 
attorney-in-charge  of  the  strike  force  believes  merits  the 
assignment  of  an  attorney. 

OCRS  reports  annually  on  the  indictments  and  convic- 
tions obtained  by  its  strike  forces  but  conceded  that  such 
statistics  do  not  give  a  complete  oicture  of  overall  accom- 
plishments.  For  one  thing,  these  statistics  do  not  reflect 
the  quality  of  the  convictions.   For  example,  OCRS  desig- 
nates convictions  as  "high  echelon"  if  they  involve  a  member 
of  a  Cosa  Nostra  family.   We  believe  this  designation  is 
misleading,  however,  because  it  includes  "family"  members 
at  any  level  of  authority  but  fails  to  include  other,  per- 
haps more  powerful,  organized  crime  figures  who  are  not 
members  of  a  family. 

The  Chief,  OCRS,  does  not  believe  it  is  possible  to 
establish  overall  program  goals  and  then  measure  progress 
toward  attaining  those  goals.   He  stated  that  goals  should 
be  set  by  individual  strike  forces.   However,  this  is  not 
being  done. 

HOW  STRIKE  FORCES  EVALUATE  OR  PLAN 
TO  EVALUATE  THEIR  ACTIVITIES 

In  the  aosence  of  a  formal  evaluation  system,  strike 
force  attorneys-in-charge  were  employing  various  informal 
procedures  to  assess  their  operations.   These  procedures 
appeared  to  be  of  limited  use  in  determining  whether  orga- 
nized criminal  activity  was  declining  or  in  comparing  one 
strike  force's  accomplishments  with  another.   Generally, 
the  attorneys-in-charge  favored  a  qualitative,  rather  than 
quantitative,  approach  to  evaluating  effectiveness,  although 
they  could  not  translate  this  type  of  evaluation  into  spe- 
cific procedures. 

18 


8767 


None  of  the  strike  forces  reviewed  had  established 
definitive  goals  which  would  enaDle  them  to  determine  their 
impact  on  organized  crime.   The  evaluations  performed  were 
relatively  limited,  generally  subjective,  and  undocumented. 
For  example,  strike  force  personnel  made  the  following  eval- 
uative comments: 

— The  existence  or  lack  of  "good  press"  can  provide  a 
strike  force  with  an  indication  of  wnether  it  is 
reducing  organized  crime. 

— A  strike  force  is  operating  effectively  if  its 

personnel  are  adequately  discharging  their  responsi- 
oilities,  in  terms  of  attitude,  enthusiasm,  and  pro- 
pensity to  work. 

— A  review  of  conviction,  dismissal,  and  reversal  rates 
will  tell  an  attorney-in-charge  if  a  strike  force  is 
successful . 

— A  strike  force  is  effective  if  it  convicts  key  orga- 
nized crime  figures  identified  by  the  Federal  Bureau 
of  Investigation. 

Two  attorneys-in-charge  proposed  qualitative  approaches 
based  on  the  use  of  intelligence  data;  however,  neither  ap- 
proach has  been  implemented,  although  they  both  appear  promis- 
ing.  One  approach  involves  identifying  a  particular  organized 
criminal  activity  in  the  strike  force  jurisdiction  and  then, 
a  year  or  so  later,  determining  what  was  done  in  terms  of  in- 
dicting and  convicting  participants  in  that  activity. 

The  other  approach  involves  followup  based  on  intellig- 
ence data.   If  a  strike  force,  indicts  and  convicts  a  key  fig- 
ure or  figures  in  a  criminal  operation,  intelligence  sources 
would  find  out  if  the  operation  was  continuing  or  had  ceased 
to  exist.   This  information  could  be  useful  to  indicate 
whether  the  strike  force  was  disrupting  organized  crime  and 
indicting  and  convicting  the  right  people. 

Prior  reviews  of  strike  force  operations 

We  reviewed  three  reports  discussing  the  strike  force 
program  prepared  by  the  following  groups: 

--U.S.  Attorneys'  Advisory  Committee  to  the  Attorney 
General . 

--Committee  to  Evaluate  Department  of  Justice  Policy 
with  Respect  to  Organized  Crime  Strike  Forces. 


19 


8768 


—  Internal  Revenue  Service  Internal  Audit  Division. 

The  U.S.  Attorneys'  Advisory  Committee  examined  the 
concept  and  structure  of  the  strike  forces  with  respect  to 
the  problems  inherent  in  having  these  forces  functioning 
relatively  independent  of  the  U.S.  attorneys'  offices  in 
those  districts.  The  1974  report  stated  that  the  concept 
was  sound  and  that  strike  forces  had  been  successful  but 
recommended  that: 

--No  additional  strike  forces  be  established. 

— Existing  strike  forces  in  the  larger  districts 

be  phased  out  and  consolidated  into  units  within  the 
U.S.  attorney's  office. 

--The  need  for  strike  forces  in  other  districts  be  re- 
viewed on  an  individual  oasis  with  cognizant  U.S. 
attorneys. 

The  report  further  stated  that  the  entire  criminal 
justice  system  was  well  served  oy  competent,  energetic,  and 
largely  independent  U.S.  attorneys  and  any  impetus  toward 
eroding  their  historical  prerogatives  would  only  harm  the 
effectiveness  of  the  Federal  law  enforcement  effort. 

The  committee  to  evaluate  Justice's  policy  regarding 
strike  force  operations  was  established  at  the  Attorney  Gen- 
eral's request  to  address  the  recom.mendations  set  forth  in 
the  U.S.  Attorneys'  Advisory  Committee  report.   The  committee 
concluded  in  1974  that  the  strike  force  concept  was  sound  in 
both  theory  and  practice  and,  accordingly,  the  strike  forces 
should  be  continued  at  their  present  numbers  and  present 
form..   Nevertheless,  the  committee  recommended  that  the  Crim- 
minal  Division: 

— Review  the  need  for  perpetuating,  as  presently  con- 
stituted, the  strike  forces  in  each  of  the  cities 
and  geographical  regions  served. 

— Encourage  greater  participation  by  agencies  rep- 
resented on  the  strike  forces. 

--Review  the  definition  of  the  term  "organized  crime." 

In  addition  to  the  above  reports,  the  Internal  Revenue 
Service  reviewed  its  participation  in  the  strike  force  pro- 
gram and  issued  a  report  in  January  1975.   Its  review  dis- 
closed a  need  to 

— clearly  define  specific  goals  of  IRS  strike  force  ef- 
forts , 

20 


8769 


— estaDlish  specific  striKe  force  target  criteria,  and 

— review  reports  of  IRS  strike  force  accomplishments  to 
provide  more  detailed  information  to  management  in  its 
evaluation  of  the  program's  effectiveness. 

CONCLUSION 

The  failure  of  Justice  to  (1)  define  criteria  to  meas- 
ure strike  force  effectiveness  and  (2)  obtain  adequate  data 
on  program  results  makes  it  difficult  to  determine  what 
field  level  changes  should  be  made  to  make  the  program  more 
effective.   With  specific  criteria  and  an  evaluation  system, 
program  operations  could  be  more  easily  directed  so  that  in- 
creased effectiveness  could  be  achieved  with  the  resources 
availaole.   In  addition,  a  systematic  evaluation  would  en- 
able Justice  to  (1)  assess  participating  agencies'  contri- 
bution toward  accomplishing  the  overall  goals  set  for  the 
strike  force  program,  (2)  monitor  strike  force  efforts,  and 
(3)  identify  alternatives  which  would  contribute  to  pro- 
gram effectiveness. 

RECOMMENDATION 

We  recommend  that  the  Attorney  General  develop  spe- 
cific criteria  and  establish  the  required  information  sys- 
tem to  evaluate  the  effectiveness  of  the  national  and  indi- 
vidual strike  force  efforts. 

AGENCY  COMMENTS  AND  OUR  EVALUATION 

Department  of  Justice 

The  Department  of  Justice  said  (see  app.  VII)  that  it 
recognizes  the  importance  of  an  information  system  that  ef- 
fectively measures  performance  but  also  recognizes  the 
extreme  difficulty  of  measuring  quantitatively  the  success 
of  an  organized  crime  program  in  purely  statistical  terms. 
It  does  not  want  to  fall  prey  to  demands  to  measure  strike 
force  performance  simply  by  a  blizzard  of  statistics  which 
may,  read  one  way  or  another,  indicate  more  or  less  progress 
is  being  made.   The  Department  said  that  some  proposed  ap- 
proaches discussed  in  this  report,  while  not  fully  providing 
a  qualitative  measure  of  effectiveness,  are  steps  in  that 
direction,  and  that  it  is  continuing  to  look  for  criteria 
which  will  aid  in  measuring  the  qualitative  effectiveness 
of  organized  crime  programs. 

Department  of  the  Treasury 

The  Department  of  tne  Treasury  stated  (see  app.  IX) 
that  indictment  and  conviction  numbers  could  provide  a  good 

21 


8770 


basis  for  evaluating  the  program  and  that  statistics  could 
be  developed  to  show  trends  and  provide  a  measure  of  quality. 

Although  statistics  are  useful,  we  do  not  believe  that 
quantitative  measures  alone  are  a  sufficient  basis  to  meas- 
ure strike  force  effectiveness.  Other  factors,  such  as  the 
importance  of  the  person  convicted  and  the  degree  of  dis- 
ruption to  a  criminal  activity,  are  more  important  in  eval- 
uating the  program. 

As  stated  on  page  17,  the  Department  of  Justice  has 
not  established,  however,  qualitative  and  quantitative  goals 
for  its  strike  forces,  nor  has  it  identified  the  informa- 
tion needed  to  assess  strike  force  results.   Consequently, 
program  effectiveness  cannot  be  measured. 

Internal  Revenue  Service 

IRS  commented  (see  app.  VIII)  that  it  is  completing  a 
manual  supplement  that: 

a.  Sets  forth  the  objective  for  IRS'  participation 
in  the  Joint  Agency  Strike  Force  Program. 

b.  Delineates  the  responsibilities  of  tne  national 
office,  regional  offices,  district  offices,  and 
individual  strike  force  representatives. 

c.  Provides  for  the  coordination  and  states  the 
general  procedures  which  are  to  be  followed  in 
investigations  and  examinations  conducted  jointly 
by  the  Department  of  Justice  and  the  Internal 
Revenue  Service  in  accordance  with  the  guidelines 
established  in  the  January  8,  1976,  agreement  be- 
tween IRS  and  the  Department  of  Justice  on  the 
conduct  of  joint  investigations. 

d.  Specifies  the  criteria  for  IRS'  selection  of  strike 
force  cases  for  Audit  Division  examination  and  In- 
telligence Division  investigation. 

IRS  recently  completed  a  cost-benefit  analysis  of  the 
impact  of  the  strike  force  program  on  IRS  resources. 
However,  this  analysis  was  limited  since  IRS  did  not  have 
a  comprehensive  system  that  would  track  the  results  of  Audit 
Division  examinations  made  on  strike  force  cases. 

IRS  is  currently  developing  a  comprehensive  reporting 
system  that  will  track  the  results  of  its  Intelligence 
Division  and  Audit  Division  investigations  and  examinations 


22 


8771 


made  on  strike  force  cases.   In  addition,  IRS  is  now 
conducting  a  study  that  will  track  the  results  of  Audit  Di- 
examinations  and  Intelligence  Division  investigations 
force  cases  during  fiscal  year  1972.   This 


vision 

made  on  strike 


study  will  compare  dollars  assessed  with  dollars  collected 
from  Audit  Division  examinations.   A  similar  study  on  the  re- 


suits  of  Intelligence  Division 
these  cases. 


investigations  will  be  made  on 


23 


8772 


CHAPTER  4 

STRIKE  FORCE  PROSECUTIONS 

OF  ORGANIZED  CRIME  FIGURES  OFTEN  RESULT 

IN  LIGHT  SENTENCES 

Although  Justice  considers  tne  indictment,  conviction, 
and  imprisonment  of  organized  crime  figures  as  one  means  of 
disrupting  organized  crime  operations,  the  sentences  imposed 
in  52  percent  of  the  strike  force  convictions  we  reviewed 
called  for  no  time  in  jail.   A  sentence  requiring  confinement 
of  2  years  or  less  occurred  in  58  percent  of  the  cases. 
Strike  forces  do  not  control  sentencing,  but  light  sentences 
could  hinder  their  attempts  to  disrupt  organized  crime. 

ANALYSIS  OF  INDICTMENTS,  CONVICTIONS , 
AND  SENTENCES  AT  SIX  STRIKE  FORCES 

During  fiscal  years  1972-75,  the  6  organized  crime  strike 
forces  reviewed  obtained  indictments  against  2,967  of  the 
6,727  persons  indicted  by  all  strike  forces.   While  these  in- 
dictments covered  a  variety  of  offenses,  about  37  percent  were 
for  illegal  gambling.   (Detailed  information  on  the  offenses 
which  resulted  in  indictments  appears  in  app.  IV. )   The  dis- 
position or  status  indictments  as  of  September  1,  1975,  were 
as  follows: 


Disposition  or  status 

Pled  guilty  or  no  contest  (note  a) 

Convicted  after  trial 

Acquitted 

Dismissed  or  prosecution  decision 

not  to  proceed  with  case  (note  b; 
Convicted-appeal  pending 
Awaiting  trail 
Other 


Number 

of 

defendants 

953 

330 

250 

736 

136 

436 

126 

Total 
a/Nolo  contendere, 


2,967 


b/Nolle  prosequi. 

Based  on  cases  which  had  been  closed  as  of  September  1, 
1975,  which  includes  dismissals  but  not  cases  in  which  an 
appeal  is  pending,  the  six  strike  forces  achieved  "convic- 
tion" rates  of  from  38  percent  to  71  percent.   (See  app.  V. ) 


24 


8773 


Tne  number  of  dismissals  was  significant  but  dismissals 
did  not  always  involve  a  "lost"  case.   Sometimes  the  dismis- 
sal was  beyond  the  control  of  the  strike  force.   For  example, 
some  dismissals  and  nolle  prosequis  involved  cases  in  which 
the  original  indictment  was  not  pursued  but  the  strike  force 
obtained  a  superseding  indictment. 

The  following  factors  were  also  cited  by  strike  force 
attorneys  as  having  resulted  in  the  dismissal  of  indictments: 

--Improperly  obtained  wire  tap  evidence. 

— Death  of  defendant. 

-^-Defendant  pled  guilty  to  non-strike  force  charges. 

--Defendant  granted  immunity  to  return  for  testimony 
against  other  defendants. 

— Charges  under  one  indictment  dismissed  if  defendant 
was  convicted  under  another  indictment. 

Including  all  dismissals  may  not  be  realistic  when  calcu- 
lating the  conviction  rate.   However,  considering  the  large 
number  of  superseded  indictments  and  other  dismissal  factors, 
the  reported  number  of  indictments  ootained  by  the  strike 
forces  may  oe  misleading. 

Of  1,283  defendants  who  pled  guilty  or  no  contest  or  were 
convicted  after  September  1,  1975,  1,226  had  been  sentenced. 
Of  these,  48  percent  (586)  received  prison  sentences,  whereas 
52  percent  (640)  received  sentences  calling  for  no  confine- 
ment. 

Of  those  who  received  jail  terms,  58  percent  (338)  re- 
ceived 2  years  or  less.   The  following  is  a  summary  of  the 
sentences  imposed. 


Sentence  Defendants 

Less  than  6  months  207 

6  months  to  1  year  63 

More  than  1  year  to  2  years  68 

More  than  2  years  to  5  years  178 

More  than  5  years  70 

Total  586 

Tne  length  of  the  prison  sentences  imposed  overstate  the 

periods  of  incarceration  since  individuals  are  eligible  for 

parole  after  serving  one-third  of  their  sentence. 

25 


Percent 

of 

defendants 

35 

11 

12 

30 

12 

100 

8774 


Of  the  640  defendants  whose  sentences  called  for  no  jail 
time,  about  79  percent  (507)  received  probation  alone  or  pro- 
bation with  a  fine.   The  remaining  21  percent  (133  defend- 
ants) received  only  a  fine.   About  64  percent  of  these  de- 
fendants were  fined  $1,000  or  less.   In  one  case,  the  fine 
was  $25.   (Detailed  information  on  the  sentences  obtained,  by 
individual  strike  force,  appears  in  app.  VI.) 

ANALYSIS  OF  SENTENCES  IMPOSED  ON 
"HIGH-ECHELON"  ORGANIZED  CRIME  FIGURES 

The  Attorney  General  reports  annually  on  the  number  of 
convicted  persons  he  designates  as  "high-echelon"  organized 
crime  figures  to  add  a  quality  indicator  to  overall  convic- 
tions statistics.   Generally,  persons  designated  as  high- 
echelon  are  believed  to  be  members  of  La  Cosa  Nostra.   These 
are  individuals  whose  incarceration  would  in  most  instances 
seriously  disrupt  organized  criminal  activities.   We  could 
obtain  sentencing  data  on  only  128  of  the  241  high-echelon 
strike  force  convictions  during  fiscal  years  1969-75.   Of 
these,  51  percent  received  no  jail  time  or  sentences  of  less 
than  2  years  in  jail. 

We  examined  56  high-echelon  convictions  during  fiscal 
years  1974  and  1975  involving  the  6  strike  forces  in  terms  of 
the 

— maximum  jail  sentence  possible  and 

— actual  sentence  imposed. 

The  sentences  imposed  represented  only  a  small  fraction  of 
the  maximum  sentence  possible.   The  following  table  presents 
this  comparison  in  more  detail. 


26 


(months ) 

12 

2 

24 

2 

36 

2 

60 

22 

84 

6 

96 

18 

120 

42 

132 

12 

156 

12 

180 

29 

192 

7 

240 

32 

480 

36 

8775 


strike  Force  "High-Echelon"  Convictions 

Maximum  jail 
sentence  possiole      Average  jail 
Number  sentenced     for  each  defendant    sentence  received 


9 

4 

1 
20 

1 

2 

4 

1 

1 

4 

1 

7 
JL 

Total   56 

COMMENTS  ON  SENTENCES  IMPOSED 
IN  STRIKE  FORCE  CASES 

Sentencing  is  an  important  yet  controversial  part  of  the 
criminal  justice  process  and,  as  a  result,  we  obtained  wide- 
ranging  views  on  the  reasonableness  of  sentences  imposed  in 
strike  force  cases. 

According  to  many  attorneys-in-charge  of  strike  forces 
and  their  special  attorneys,  the  sentences  imposed  were  too 
light  because: 

— The  judiciary  is  extremely  liberal. 

— Organized  crime  is  often  considered  to  be  nonviolent. 
Many  defendants  were  convicted  of  what  are  considered 
"victimless  crimes,"  e.g.,  gambling. 

— There  are  no  mandatory  minimum  sentences  in  Federal 
courts,  and  prosecutors  are  rarely  asked  to  recommend 
sentences. 

— Severe  sentences  are  frequently  appealed,  and  the  ju- 
diciary does  not  want  to  clog  its  court  calendars  with 
appeal  proceedings. 

27 


ao-Adt^    r\ 


8776 


MemDers  of  the  Federal  judiciary  contacted  did  not 
believe  that  sentences  in  organized  crime  cases  were  inaporo- 
priate  but  that  the  judiciary  attempts  to  allow  a  person  con- 
victed of  a  crime  to  straighten  himself  out.   Thus,  judges 
impose  a  period  of  probation  rather  than  confinement.   This 
is  especially  true  for  first-time  offenders,  who  are  often 
the  defendants  in  many  cases  prosecuted  by  the  strike  forces. 
One  judge,  on  the  other  hand,  stated  that  judiciary  members 
are  generally  too  lioeral  and  resist  sending  individuals  to 
jail.   For  this  judge,  mandatory  minimum  sentences  appeared 
to  be  3  possible  solution. 

Prior  studies  have  discussed  various  aspects  of  the  sen- 
tencing process.   The  President's  Commission  on  Law  Enforce- 
ment and  Administration  of  Justice  reported  that  gambling  is 
tne  largest  source  of  revenue  for  the  criminal  cartels  and 
that  members  of  organized  crime  know  tney  can  operate  free  of 
significant  punishment.   Judges  are  reluctant  to  jail  book- 
maKers  and  lottery  operators.   Even  when  offenders  are  con- 
victed, the  sentences  are  often  very  light.   Fines,  paid  by 
the  organization,  are  considered  a  business  expense. 

LIMITED  USE  OF  PROVISIONS  OF  THF 
ORGANIZED  CRIME  CONTROL  ACT  OF  1970 

Under  two  major  provisions  of  the  Organized  Crime  Con- 
trol Act  of  1970,  Federal  officials  are: 

--Required  to  impanel  special  grand  juries  to  investi- 
gate organized  crime  in  specific  areas  and  to  issue 
reports  on  these  investigations  at  their  discretion. 

--Authorized  to  prosecute  individuals  as  special  felony 
offenders  so  that  they  can  be  given  extended  sentences 
of  up  to  25  years. 

Special  grand  juries 

Although  the  act  requires  that  a  special  grand  jury  be 
summoned  at  least  once  every  18  months  in  each  district  court 
located  in  a  judicial  district  containing  more  than  4  million 
inhabitants,  none  had  been  impaneled  in  one  district.   How- 
ever, wnen  it  was  brought  to  the  chief  judge's  attention,  he 
said  he  would  convene  a  special  grand  jury  in  the  near  future 
to  investigate  organized  crime. 

The  other  strike  forces  reviewed  had  employed  special 
grand  juries  to  investigate  organized  crime,  but  none  of 
these  grand  juries  had  issued  reports  on  its  investigations. 


28 


8777 


Special  offender  provision 

Five  of  the  six  strike  forces  reviewed  had  obtained  no 
indictments  under  the  special  offend;r  provision  and  in  the 
few  cases  that  had  been  prosecuted,  only  two  resulted  in  con- 
victions.  One  of  these  was  being  appealed  at  the  conclusion 
of  our  review. 

Attorneys-in-charge  of  the  strike  forces  offered  various 
reasons  for  not  using  this  provision  more  frequently,  includ- 
ing : 

--Appropriate  cases  have  not  occurred. 

— The  provision  has  been  attacked  as  unconstitutional. 

--Many  organized  crime  figures  have  previously  been  in- 
dicted but  not  convicted  and,  therefore,  cannot  be 
prosecuted  under  the  special  offender  provision. 

CONCLUSION 

Strike  forces  have  indicted  and  convicted  numerous  or- 
ganized crime  figures  and  their  associates;  however,  the 
final  sentence  generally  involved  no  incarceration.   Sentenc- 
ing is  not  under  the  control  of  the  strike  forces,  but  if 
incarceration  is  intended  to  disrupt  organized  crime,  light 
sentences  could  preclude  their  efforts  to  disrupt  organized 
crime  to  any  great  extent. 


29 


8778 


CHAPTER  5 

THE  ORGANIZED  CRIME  INTELLIGENCE 

SYS'.'EM  IS  NOT  ADEQUATE 

Tne  Organized  Crime  and  Racketeering  Section  established 
a  computerized  intelligence  system  to  collect  and  store  in- 
formation on  organized  crime  gathered  by  all  Federal  agen- 
cies.  The  system,  howes/er,  has  not  met  initial  objectives 
and  its  use  is  limited  because  of  an  incomplete  data  base. 
A  Justice  study,  issued  in  March  1976,  stated  that  the  system 
must  be  improved  if  it  is  to  fulfill  its  objectives.   The 
need  for  the  system  has  also  been  questioned,  since  it  dup- 
licates data  in  the  intelligence  files  of  other  agencies. 

WHAT  IS  THE  SYSTEM  AND  WHAT 
WAS  IT  DESIGNED  TO  DO ? 

To  assist  Federal,  State,  and  local  law  enforcement 
agencies,  the  Intelligence  and  Special  Services  Unit  was  cre- 
ated in  1961  to  establish  within  OCRS  a  centralized  source  of 
data  on  organized  crime.   The  system  was  computerized  in  1969, 
and  in  1972  a  racketeer  profile  sheet  was  devised  to  facili- 
tate entering  data  into  the  system.   The  racketeer  profile 
sheet  is  supposed  to  be  prepared  for  everyone  under  investiga- 
tion by  agencies  participating  in  the  strike  force  program. 

The  system  was  designed  to  provide  tactical  and  stra- 
tegic intelligence.   Tactical  intelligence  contributes  di- 
rectly to  the  success  of  an  immediate  law  enforcement  objec- 
tive and  affects  ongoing  cases  and  investigations.   Strategic 
intelligence,  on  the  other  hand,  is  concerned  with  broader 
policy  matters  ana  provides  an  overview  of  a  situation  and  a 
definition  of  the  problem's  magnitude. 

As  of  November  1976,  the  system  had  data  on  some  24,000 
individuals  who  were  or  had  been  under  investigation.   This 
information  included 

— name  and  address; 

— aliases  and  nicknames; 

— vehicles  and  firearms  owned; 

— education,  military,  and  employment  records; 

— hobbies; 

--illegal  activities; 

30 


8779 

— known  bank  accounts;  and 

--names  of  associates. 

QUESTIONABLE  NEED  FOR  THE  SYSTEM 
AND  USEFULNESS  OF  ITS  DATA 

The  system  has  not  met  its  initial  objectives,  and  the 
adequacy  of  the  system  has  been  questioned.  The  OCRS  intel- 
ligence unit  receives  an  average  of  about  2,000  information 
requests  each  month,  of  which  about  50  percent  originate  at 
the  strike  forces.  Of  the  total  requests,  about  95  percent 
request  all  information  in  the  system  on  a  particular  indi- 
vidual or  business.  The  system  could  provide  data  on  only 
25  percent  of  the  2,000  requests. 

An  OCRS  official  said  that  some  Federal  agency  repre- 
sentatives on  the  strike  forces  are  not  completing  the  rack- 
eteer profile  sheet  for  all  persons  under  investigation  be- 
cause tne  process  is  too  time  consuming.   In  1974  OCRS  began 
assigning  intelligence  analysts  to  the  strike  forces  to  speed 
up  the  input  of  intelligence  data  and,  as  of  February  1976, 
11  strike  forces  had  full-time  analysts.   Despite  this  as- 
sistance, the  Chief  of  the  Intelligence  and  Special  Services 
Unit  said  that  less  than  half  of  the  needed  data  had  been 
computerized. 

In  March  1976  Justice's  Office  of  Management  and  Finance 
completed  a  study  of  the  intelligence  system.   It  reported 
that,  except  for  the  Federal  Bureau  of  Investigation,  infor- 
mation exchange  was  haphazard,  rarely  written  or  preserved, 
and  heavily  dependent  upon  the  rapport  established  among  par- 
ticipating agency  representatives.   This  informal  system,  the 
report  concluded,  resulted  in-  an  untimely  and  incomplete  ex- 
change of  intelligence  information. 

Strike  force  representatives  questioned  the  data's  use- 
fulness in  the  fight  against  organized  crime.   Most  attorneys 
and  other  participants  in  the  strike  force  program  we  con- 
tacted said  that  the  intelligence  system  provided  little  as- 
sistance in  their  day-to-day  operations.   One  attorney-in- 
charge  stated  that,  during  his  several  years  with  three 
strike  forces,  he  seldom  had  found  any  data  in  the  intelli- 
gence system  which  could  assist  him  in  the  investigative 
process.   Personnel  at  each  strike  force  complained  that  the 
information  received  from  the  system  is  often  already  known 
and  provides  only  background  data  on  an  individual  as  opposed 
to  "hard"  intelligence. 

According  to  the  Office  of  Management  and  Finance  study, 
strike  force  personnel  generally  believed  that  racketeer 


31 


8780 


profile  data  was  not  necessary  for  the  current  program  of 
investigation  and  prosecution  of  organized  crime  figures.   In 
addition,  some  agencies  have  their  own  ingelligence  systems 
and  do  not  need  the  OCRS  system.   The  OCRS  system  duplicates 
much  of  the  information  already  available  in  these  other  data 
banks,  particularly  the  files  of  the  Federal  Bureau  of  Inves- 
tigation, which  account  for  about  90  percent  of  the  intelli- 
gence data  in  the  OCRS  system. 

Tne  Office  of  Management  and  Finance  report  also  stated 
that  the  existing  data  collection  was  directed  more  toward 
evidence  gathering  than  toward  intelligence  information  which, 
if  properly  processed  and  analyzed,  could  lead  to  selecting 
investigative  approaches  which  would  have  a  greater  impact  on 
the  organized  crime  problem.   The  report  said  that  OCRS  data 
analysis  is  extremely  limited  and  that  analysts  assigned  to 
the  strike  forces  are  not  intelligence  analysts  but  are  merely 
"computer  input  specialists." 

CONCLUSION 

OCRS'  intelligence  system  is  not  adequate  because  it  has 
not  met  initial  objectives  and  is  of  limited  use.   Addi- 
tionally, the  system  duplicates  information  contained  in 
other  agencies'  intelligence  systems. 

RECOMMENDATION 

We  recommend  that  the  Attorney  General  reevaluate  the 
need  for  an  intelligence  system  devoted  solely  to  organized 
crime  figures.   If  needed,  the  system's  quality  and  useful- 
ness of  data  should  oe  improved. 

AGENCY  COMMENTS  AND  OUR  EVALUATION 

Department  of  Justice 

The  Department  of  Justice  said  (see  app.  VII)  that  it 
agrees  with  our  recommendation.   The  Criminal  Division  feels 
that  the  intelligence  apparatus  devised  for  use  in  the  Orga- 
nized Crime  and  Racketeering  Section  is  being  maintained  at 
a  cost  and  commitment  of  resources  far  in  excess  of  any  fore- 
seeable return  on  its  operation.   Consequently  it  is  giving 
serious  consideration  to  altering  the  scope  of  the  computer- 
ized operation  consistent  with  bona  fide  intelligence  needs. 

Internal  Revenue  Service 

The  Internal  Revenue  Service  told  us  (see  app.  VIII) 
that  it  is  also  concerned  with  the  need  and  utilization  of 
the  computerized  intelligence  system.   In  June  1976  IRS 

32 


8781 


requested  and  received  detailed  information  from  Justice 
concerning  the  creation,  purpose,  and  utilization  of  the 
racketeer  profiles  maintained  in  this  computerized  system. 
It  is  currently  studying  the  extent  of  its  role,  if  any,  in 
participating  in  this  system.   One  of  IRS'  considerations  re- 
lates to  the  disclosure  of  confidential  inforrriation.   Of  par- 
ticular concern  is  the  possible  unauthorized  disclosure  of 
tax-related  information.   Upon  completion  of  its  study,  IRS 
will  decide  the  extent  to  which  it  will  participate  in  this 
computerized  intelligence  system. 


33 


8782 


CHAPTER  6 

SCOPE  OF  REVIEW 

We  performed  our  review  at  the  Criminal  Division's 
Organized  Crime  and  Racketeering  Section,  Department  of 
Justice,  in  Washington,  D.C.,  and  at  strike  forces  in 
Cleveland,  Detroit,  Los  Angeles,  New  Orleans,  and  New  York 
City  (Brooklyn  and  Manhattan).   We  examined  agency  records 
and  held  discussions  with  agency  officials. 

We  also  talked  with  headquarters  and  regional  offi- 
cials of  Federal  agencies  participating  in  organized  crime 
strike  force  activities  and  with  U.S.  Attorneys  and  members 
of  the  Federal  judiciary.   In  addition,  we  performed  limited 
work  at  strike  forces  in  Boston,  Chicago,  and  Washington, 
D.C. 

Most  of  our  field  work  was  performed  between  December 
1975  and  May  1976. 


34 


8783 


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35 


8784 


APPENDIX  II  APPENDIX  II 

HOW  A  STRIKE  FORCE  OPERATES 

Strike  forces  generally  operate  in  the  same  manner. 
Their  operations  usually  involve:   (1)  initial  agency  inves- 
tigation, (2)  investigation  after  strike  force  involvement, 
and  (3)  indictment  and  prosecution. 

INITIAL  AGENCY  INVESTIGATION 

Participating  agencies  generally  initiate  investiga- 
tions, althougn  the  strike  force  attorney-in-charge  occasion- 
ally suggests  investigations.   Agency  investigations  origi- 
nate after  criminal  activity  has  been  identified.   The  in- 
vestigating agency  determines  the  stage  an  investigation  is 
brought  to  the  strike  force's  attention.   Sometimes  investi- 
gations are  made  known  to  the  strike  force  shortly  after  ini- 
tiation; in  other  instances,  the  investigation  may  already  be 
completed.   At  times,  strike  force  attorneys  may  meet  with 
participating  agencies  to  review  their  ongoing  efforts  and 
suggest  that  promising  matters  be  developed  further. 

The  process  of  bringing  an  agency  investigation  to  the 
strike  force  is  usually  very  simple.  An  agency  representa- 
tive discusses  the  investigation  with  a  strike  force  attor- 
ney, who  decides  whether  or  not  it  is  a  strike  force  matter. 

INVESTIGATION  AFTER  STRIKE  FORCE 
INVOLVEMENT 

Once  an  investigation  is  accepted  by  the  strike  force, 
it  is  assigned  to  an  attorney(s).   The  attorney  reviews  the 
investigation  and  identifies  whether  additional  evidence  is 
required  to  obtain  an  indictment.   He  may  recommend  such 
things  as  electronic  surveillance,  i.e.,  wiretaps,  to  obtain 
needed  evidence;  or  he  may  request  the  assistance  of  other 
agency  representatives  if  there  are  indications  that  viola- 
tions in  their  statutory  areas  have  occurred. 

After  the  investigation  is  completed,  the  strike  force 
attorneys  evaluate  whether  the  offen3e(s)  warrants  prosecu- 
tion.  If  the  attorney  believes  it  does,  he  prepares  a  pros- 
ecutive memorandum  setting  forth  the  particulars  in  the  case, 
laws  involved,  statements  of  facts  and  evidence,  problems  of 
evidence,  and  conclusions  and  recommendations. 

After  review  by  the  attorney-in-charge,  orosecutive 
memorandums  are  sent  to  the  respective  U.S.  attorney  and  to 
OCRS  for  review  and  approval.   The  assistant  attorney  general 
of  Justice's  Criminal  Division  makes  the  prosecutive  decision 
should  any  conflicts  arise  on  the  case's  prosecutive  merit. 


'-  3  6 


8785 


APPENDIX  II  APPENDIX  II 

INDICTMENT  __AND_PROSECUTIOi^ 

After  prosecutive  approval  is  obtained,  the  strike  force 
attorney(s)  presents  the  case  before  a  grand  jury,  which  de- 
termines whether  to  issue  indictments,  how  many,  and  to  whom. 
This  determination  is  generally  made  by  subpoenaing  witnesses, 
records,  and  compelling  testimony. 

If  the  grand  jury  issues  indictments,  the  case  is  prose- 
cuted generally  oy  strike  force  attorneys  who  may  be  assisted 
oy  U.S.  attorneys  or  Justice  attorneys  with  special  expertise 
in  certain  types  of  cases. 


37 


8786 


APPENDIX  III  APPENDIX  III 

VvORjaNG_COMMITTEES  OF  THE  NATIONAL 

92M£ii_2^_ORGANIZ^D  CRIME 
Narcotics  Committee 
Gambling  Rackets  Committee 
Infiltration  of  Business  Committee 
Labor  Committee 

Counterfeit,  Stolen  Funds,  Securities,  and  Credit  cards 
Committee 

State  and  Local  Effort  Involving  Organized  Crime  Committee 
Trial  Committee 


38 


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APPENDIX    V 


APPENDIX    V 


SUMMARY  OF  INDICTMENTS  FOR  SIX  SELECTED 
STRIKE  FORCES  FOR  FISCAL  YEARS  1972-75 


DISPOSITION  OR  STATUS  AS  OF  SEPTEMBER  1,  1975 


Disposition 

or 

status 

Pled  guilty  or  no 
contest  (note  a) 


Brooklyn   Cleveland   De t r o i t   Los  Angeles   Manhattan   New  Orleans   Total 


243 


173 


165 


129 


160 


83 


953 


Convicted  after 

tr  ial 

39 

18 

104 

22 

103 

44 

330 

Acquitted 

73 

38 

44 

34 

32 

29 

250 

Dismissed  or 

prosecution  deci- 

sion not  to  pro- 

ceed with  case 

(note  b) 

380 

58 

100 

81 

95 

22 

736 

Convicted  -  appeal 

pending 

26 

16 

11 

66 

10 

7 

136 

Awaiting  trial 

127 

28 

111 

63 

88 

19 

436 

Other 

_1_8 

3 

_50 

_11 

43 

1 

126 

Total 

906 

334 

585 

406 

531 

205 

2,967 

Conviction  rate 

(note  c) 

38% 

67% 

65% 

57% 

67% 

71% 

57 

a/Nolo  contendere 

b/Nolle  prosequi 

c/"Convict ion  rate"  computed  as  follows: 

Pled  guilty  or  no  contest  ■*■  convicted  after  trial _ 

Pled  guilty  or  no  contest  +  convicted  after  "trial  +  acquitte3~+~3'rsmisse3  category 


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APPEi^DIX    VII  APPENDIX    VII 


; /W.  I  MTKI>  SIM  K>  MKPXKIMKM    <>K  Jl  slICK 

">.         '  »  V-III\<.UI\.  !).(         2u.'.:ill 

*''"'"-"''■'<'■"■"  J^.\l    14     1977 

Itiviuon  lndu-«ird 
■  nd   Htttw   I..  Inilialt  and   Numbo 


ilr.  Victor  L.  Lowe 

Director 

General  Government  Division 

United  States  General  Accounting  Office 

Washington,  D.  C.   205-48 

Dear  Mr.  Lo've : 

This  letter  is  in  response  to  your  request  for  comments 
on  the  draft  report  titled  "The  War  on  Organized  Crime  is 
Faltering--Federal  Strike  Forces  Are  Not  Getting  the  Job 
Done. " 

Vith  minor  exceptions,  we  are  in  general  agreement 
with  the  findings  and  recommendations  of  the  report  and 
share  GAO's  concern  that  organized  crime  still  flourishes. 
While  our  comments  express  some  disagreement  with  portions 
of  the  draft  report,  it  is  important  to  point  out  that  we 
have  gained  considerable  insights  ourselves  from  the  report 
and,  more  importantly,  from  the  discussions  held  with  the 
GAO  staff  responsible  for  its  preparation. 

We  find  GAO's  findings  and  recommendations  to  be 
generally  consistent  with  the  findings  and  recommendations 
contained  in  previous  internal  studies  undertaken  within 
the  Department  of  Justice.   The  GAO  draft  report  refers 
to  these  studies  in  a  number  of  the  areas  covered  by  the 
report.   The  studies  conducted  by  the  Department  of  Justice 
include: 

-  United  States  Attorneys'  Advisory 
Committee  to  the  Attorney  General 
"Report  of  the  Subcommittee  on  Depart- 
ment of  Justice  Field  Operations: 
Organizational  Concepts  and  Relation- 
ships with  United  States  Attorneys," 
1974 

-  Report  of  the  Attorney  General's  Committee 
on  the  Evaluation  of  the  Organized  Crime 
Strike  Forces  ("Holies  Committee"), 

July  1974 


45 


8791 

APPENDIX  VII  APPENDIX  VII 


-  Management  Programs  and  Budget  Staff 
Report,  "Organized  Crime  Intelligence: 
An  Analysis  and  Management  Review  of 
the  Organized  Crime  Intelligence 
Program,."  March  1976 

We  have  been  aware  of  management  deficiencies  in  the 
organized  crime  area  and  have  been  constantly  evaluating 
and  implementing  organizational  improvements  within  the 
Organized  Crime  and  Racketeering  Section  to  ensure  that 
our  limited  resources  are  being  directed  against  targets 
of  major  interest.   Since  January  1976,  we  have  been 
conducting  our  own  intensive  internal  review  of  the 
organized  crime  program  and  we  welcomed  the  views  of  the 
GAO  staff  in  connection  with  this  effort.   Changes  in 
management  personnel  have  been  made  in  the  Organized 
Crime  and  Racketeering  Section  within  the  past  3  months. 
We  believe  recent  changes  in  Strike  Force  operations,  as 
well  as  the  management  of  the  Section,  are  responsive  not 
only  to  our  own  concerns  about  the  program  but  to  many 
of  the  concerns  articulated  in  the  GAO  draft  report. 

As  an  initial  comment,  we  agree  that  the  Federal 
effort  against  organized  crime  can  be  better  planned, 
organized,  executed  and  directed  and  we  are  working  toward 
these  objectives.   However,  law  enforcement  can  only  deal 
with  one  side  of  the  organized  crime  equation.   Unlike 
street  crime  and  other  more  conventional  offenses, 
organized  crime  is  a  business  which  depends,  as  do  all 
businesses,  on  customer  acceptance  and  patronage. 
Activities  such  as  illegal  gambling,  narcotics  trafficking, 
loan  sharking  and  fencing  transactions,  prostitution, 
pornography,  etc.,  all  depend  upon  willing  purchasers 
or  customers  for  the  goods  and  services  which  organized 
crime  sells.   Organized  crime  will  thus  continue  to 
"flourish"  until  the  American  citizenry  chooses  to  with- 
draw its  patronage  from  these  multi-million  dollar  sources 
of  income,  and  from  the  influence  and  power  of  those  who 
control  organized  crime  in  this  nation.   It  must  be 
understood  and  emphasized  that  whatever  program  is 
designed  by  law  enforcement,  it  can  deal  only  with  the 
"supply"  side  of  the  equation;  the  "demand"  side  is, 
in  the  final  analysis,  dependent  on  the  actions  and 
reactions  of  the  American  public. 

Thus,  even  if  an  optimum  method  of  "planning, 
organizing,  executing,  and  directing"  an  organized 
crime  program  is  perfected  by  the  Department  of  Justice, 
organized  crime  may  well  continue  to  "flourish"  in  the 
above  sense.   Nonetheless,  we  must  never  be  deflected 
from  the  goal  of  seeking  to  improve  the  method  of  deal- 
ing with  the  spectre  of  organized  crime  by  this  realization. 


46 


92-465  O  -  77  -  15 


8792 


APPENDIX  VII  APPENDIX  VII 


GAO  recommends  that  the  Attorney  General  develop  a 
definition  of  organized  crime  so  that  consistent  criteria 
may  be  applied  nationwide  on  who  the  targets  of  the  Strike 
Force  should  be.   The  draft  report  notes  that  in  1970 
the  Attorney  General  defined  organized  crime  as  ".  .  .  all 
illegal  activities  engaged  in  by  members  of  criminal  syndi- 
cates operative  throughout  the  United  States,  and  all 
illegal  activities  engaged  in  by  known  associates  and  con- 
federates of  such  members."   However,  GAO  did  not  believe 
that  this  definition  was  specific  enough  to  allow  consistent 
criteria  to  be  applied  nationwide  on  who  the  "targets"  of 
the  Strike  Force  should  be. 

We  recognize  the  difficulty  of  formulating  a  universally 
applicable  and  acceptable  definition  of  organized  crime  and 
further  recognize  that  the  special  purpose  for  which  the 
Strike  Forces  were  created  requires  a  clear  and  uniform 
articulation  of  investigative  objectives.   However,  because 
of  the  subjective  nature  of  perceptions  about  organized 
crime,  we  believe  that  problems  would  exist  with  any  defini- 
tion of  organized  crime.   Like  pornography,  organized  crime 
is  difficult  to  define,  but  "you  know  it  when  you  see  it" 
if  each  determination  is  subjected  to  an  appropriate  review. 
The  use  of  a  working  definition  in  conjunction  with  a  viable 
means  of  applying  it  appears  to  offer  a  reasonable  solution. 

Prior  to  1976,  prosecutive  and  investigative  priorities 
were  left  to  meander  and  be  determined  ad  hoc  on  a  basis 
that  reflected,  more  often  than  not,  the  relationship 
between  a  given  Strike  Force  and  the  investigative  agency 
with  which  it  was  dealing  or  with  the  United  States  Attorney. 
In  early  1976,  a  requirement  was  adopted  that  investigations 
undertaken  by  Strike  Forces  would  be  reviewed  before  they 
were  commenced  rather  than  after  they  were  completed.   The 
initiation  of  the  required  reports  at  the  outset  of  investi- 
gations provides  Strike  Force  Chiefs  and  the  management  of 
the  Organized  Crime  and  Racketeering  Section,  as  well  as 
United  States  Attorneys,  with  a  viable  means  by  which  to 
actually  apply  the  definition  promulgated  by  the  Attorney 
General . 

The  GAO  report  further  recommends  that  the  National 
Council  be  reconvened  to  develop  a  unified  approach  to 
fighting  organized  crime.   Organized  crime  is  not  a 
monolithic  structure,  cast  in  hierarchial  form,  and 
directed  by  a  single  "godfather"  or  Chairman  of  the 
Board.   In  business  terms,  the  more  apt  analogy  would 
be  a  conglomerate — a  criminal  conglomerate--which 
relies  on  loose  lines  of  authority  between  various 
"business  enterprises"  in  different  geographic  areas  of 
the  country.   Moreover,  the  "line  of  business"  which 
may  be  pre-eminent  will  vary  from  one  section  to  another. 
In  addition,  the  participants  in  the  largesse  of  these 
enterprises  may  vary  with  the  area  under  scrutiny, 
admitting  some  ethnic  strains  in  some  parts  of  the 
country  and  other  ethnic  strains  elsewhere. 


47 


8793 


APPENDIX  VII  APPENDIX  VII 


What  the  above  obviously  suggests  is  that  the  mode 
of  dealing  with  organized  crime  must  vary  from  region  to 
region  and  must  take  into  account  the  particular  activities 
upon  which  racketeering  figures  are  concentrating  within 
that  area.   Thus,  programs  designed  to  combat  one  kind  of 
organized  crime  in  a  particular  locale  are  not  necessarily 
desirable  or  effective  to  combat  different  kinds  of 
activity  in  other  locales  throughout  the  nation. 

It  is  these  perceptions  which  guide  the  present 
efforts  being  undertaken  within  the  Criminal  Division 
to  make  sure  that  the  Strike  Forces  program  is  flexible 
enough  to  meet  these  differentiations.   Rather  than 
attempting  to  develop  a  nationwide,  unified  approach  for 
all  strike  forces,  the  Criminal  Division  is  constantly 
evaluating  the  program,  in  the  qualitative  sense,  to 
ensure  that  limited  resources  are  being  directed  against 
targets  of  major  interest  and  concern. 

To  achieve  our  goals,  we  have  spent  considerable  time 
discussing  our  deficiencies  and  methods  of  overcoming  them 
with  the  chiefs  of  the  Section,  their  deputies,  and  selected 
Strike  Force  attorneys-in-charge.   While  new  management  has 
been  installed  within  the  past  3  months,  we  recognize  that  not 
all  these  deficiencies  have  yet  been  satisfactorily  resolved. 
Admonitions  have  been  and  will  continue  to  be  constantly 
forthcoming  to  the  management  of  the  Section  and  Strike 
Force  Chiefs  that  they  must  insure  that  every  opportunity 
is  taken  to  see  that  their  resources  are  focused  only  on 
major  organized  crime  investigations.   It  has  been  suggested, 
for  example,  that  Strike  Force  Chiefs  review  the  cases  in 
their  inventories,  referring  to  the  United  States  Attorneys' 
offices  for  prosecution  those  matters  which  appear  to  be 
routine  in  nature  and/or  do  not  involve  major  organized 
crime  figures.   New  guidelines  have  been  established  by  the 
Attorney  General  and  will  appear  in  the  new  United  States 
Attorneys'  Manual,  which  will  clarify  this  requirement. 
The  end  result  desired  is  to  see  that  Strike  Force  offices 
do  not  become  "bogged  down"  in  the  trial  of  a  great  number 
of  mundane,  routine  cases,  no  matter  who  the  defendant  may 
be,  but  will  be  able  to  focus  their  resources  on  extensive 
and  sophisticated  grand  jury  investigations  of  major  organized 
crime  enterprises  within  their  districts. 

The  role  of  coordinating  the  battle  against  organized 
crime  is  centralized  in  the  Attorney  General's  Office  and 
the  Department  of  Justice.   Our  prime  goal  is  to  maximize 
the  use  of  the  resources  available  to  us  and  to  make  as 
flexible  as  possible  the  response  of  those  engaged  in  the 
organized  crime  program  to  the  changing  face  of  organized 
crime  and  to  its  differing  manifestations  from  region  to 
region  throughout  the  country.   In  view  of  the  new  measures 
"6  are  taking,  we  believe  that  if  the  Council  on  Organized 
Irime  is  convened,  it  should  not  undertake  to  perform  any 
~.i.zi.se~.eaz    function.   Instead,  it  should  serve  as  a  forum 
-Here  general  matters  may  be  raised  and  where  an  overall 
vie-...  of  organized  crime  strategy  may  be  developed. 

48 


8794 


APPENDIX  VII  APPENDIX  VII 


The  report  also  recommends  that  the  Attorney  General 
11  conjunction  with  the  other  participating  agencies 
i^velop  agreements  delineating  each  agency's  (1)  role  in 
"i'i  strike  forces  including  the  role  of  the  attorney-in- 
'-harge  and  (2)  commitment  of  resource..."   The  report  further 
reco.Ti-.ends  that  the  Attorney  General  "seek  an  order  from 
the  President  requiring  the  other  agencies  cooperation 
and  commitment,  should  he  not  receive  satisfaction  from 
the  ether  agencies." 

The  concept  of  interagency  cooperation  as  originally 
conceived  for  strike  forces  is  a  good  one.   However,  as 
noted  by  GAO,  in  practice  the  effectiveness  of  strike 
forces  has  been  limited  somewhat  by  the  inability  of 
the  attorney-in-charge  to  task  each  agency  investigatively. 
This  problem  will  continue  to  exist  to  some  extent  since 
an  organizational  entity  cannot  be  given  responsibility 
without  authority.   However,  we  believe  that  this  situation 
is  improving  and  interagency  cooperation  is  increasing. 
Agreements  have,  for  example,  been  reached  when  disputes  arose 
with  the  Internal  Revenue  Service  over  their  participation 
in  the  Strike  Force  program.   The  Criminal  Division  is 
called  upon  everyday  to  interact  with  the  investigative 
agencies  over  their  use  of  resources  and  allocation  of 
priorities.   If,  however,  satisfaction  is  not  received 
from  the  other  agencies,  we  will  seek  assistance  from 
progressively  higher  levels  of  authority  in  our  efforts 
to  acquire  the  cooperation  and  commitment  of  the  other 
agencies. 

The  report  also  recommends  that  the  Attorney  General 
develop  specific  criteria  and  establish  the  required 
information  system  to  evaluate  the  effectiveness  of  the 
national  and  individual  Strike  Force  efforts.   We  recognize 
the  importance  of  an  information  system  that  effectively 
measures  performance,  but  we  also  recognize  the  extreme 
difficulty  of  measuring  quantitatively  the  success  of 
an  organized  crime  program  in  purely  statistical  terms. 
We  do  not  want  to  fall  prey  to  demands  to  measure  strike 
force  performance  simply  by  a  blizzard  of  statistics  which 
may,  read  one  way  or  another,  indicate  more  or  less  "progress" 
is  being  made.   To  date,  we  have  not  found  a  workable  way 
to  measure  our  accomplishments  qualitatively.   This  is 
particularly  difficult  in  an  area  such  as  organized  crime 
where  the  conviction  of  a  "quality"  defendant  can  outweigh 
the  effect  of  a  whole  mass  of  minor  offenders  being  brought 
to  the  bar  of  justice.   As  the  GAO  report  indicates,  there 
are  some  proposed  approaches,  qualitative  in  nature,  based 
on  the  use  of  intelligence  data.   While  not  fully  pro- 
viding a  qualitative  measure  of  effectiveness,  they  are 
steps  in  that  direction.   We  are  continuing  to  look  for 
criteria  which  will  aid  us  in  measuring  the  qualitative 
effectiveness  of  organized  crime. 


49 


8795 


APPENDIX  VII  APPENDIX  VII 


Although  the  title  of  the  draft  report  infers  that  the 
war  on  organized  crime  is  faltering,  we  believe  our  quantita- 
tive statistics  indicate  that  extensive  accomplishments  have 
been  made  in  the  Govenment's  continuing  campaign  against  the 
hoodlum  element.   Amoni  these  statistics  are  the  FBI's 
accomplishments  of  (1)  over  6,000  organized  crime  convictions 
during  the  past  5  years,  including  top  La  Cosa  Nostra  func- 
tionaries in  New  York  City,  New  England,  New  Jersey, 
Philadelphia,  Buffalo,  Cleveland,  Detroit,  Chicago,  St.  Louis, 
Kansas  City,  Denver,  and  Los  Angeles;  (2)  confiscation  of 
more  than  $20,000,000  worth  of  cash,  property,  weapons,  and 
wagering  paraphernalia  in  organized  crime  cases  since  1971; 
and  (3)  dissemination  of  criminal  intelligence  information 

to  other  Federal,  state,  and  local  law  enforcement  agencies 
over  the  same  5-year  span,  leading  to  some  15,000  arrests 
by  the  recipient  agencies  and  the  recovery  or  destruction 
of  more  than  $187,000,000  worth  of  illicit  drugs  and 
narcotics,  the  seizure  of  approximately  $8,000,000  worth 
of  cash  and  gambling  paraphernalia,  and  the  assessment  of 
tax  liens  against  $19,000,000  worth  of  property  arising 
out  of  Federal  gambling  cases  investigated  by  the  FBI. 

The  report  also  states  that  the  costly  computerized 
organized  crime  intelligence  system  appears  to  be  of 
dubious  value.   The  recommendation  is  made  that  the  Attorney 
General  reevaluate  whether  an  intelligence  system  devoted 
solely  to  organized  crime  figures  is  needed,  and  that  if 
it  is,  steps  be  taken  to  improve  the  quality  and  usefulness 
of  data  in  the  system. 

We  are  in  complete  agreement  with  GAO  on  this  recommen- 
dation.  It  is  the  present  feeling  of  the  management  of  the 
Criminal  Division  that  the  intelligence  apparatus  devised 
for  use  in  the  Organized  Crime  and  Racketeering  Section  is 
being  maintained  at  a  cost  and  commitment  of  resources 
far  in  excess  of  any  foreseeable  return  on  its  operations. 
As  a  consequence,  we  are  giving  serious  consideration 
to  altering  the  scope  of  the  computerized  operation  consis- 
tent with  bona  fide  intelligence  needs. 

We  appreciate  the  opportunity  to  comment  on  the  draft 
report.   We  are  aware  that  there  are  deficiencies  in  the 
organized  crime  program.   We  are  equally  aware  of  the  con- 
tinued threat  which  organized  crime  and  racketeering  poses 
to  the  stability  of  our  society  and  its  institutions. 
Changes  which  have  been  effected,  those  which  are  on  the 
drawing  board,  and  those  which  have  not  yet  been  accomplished, 
are  all  designed  to  upgrade  the  quality  of  the  organized 
crime  program — both  through  the  use  of  Strike  Forces,  where 
appropriate,  and  through  service  to  the  investigative  agencies 
and  the  United  States  Attorneys'  offices.   It  is  our  primary 
endeavor  to  ensure  that  a  comprehensive  effort  is  being 
pursued  consistently  to  deal  with  every  aspect  of  organized 
crime  which  comes  to  our  attention. 


50 


8796 


APPEtSiDIX    VII 


APPENDIX  VII 


Should  you  have  any  further  questions,  please  feel 
free  to  contact  us. 

Sincerely , 


Ass 


Glen  E,  Pnmmeren  inpj^.  / 
istant  Attorney  General 
for  Administration 


51 


8797 

APPENDIX    VIII  APPENDIX    VIII 

Department  of  the  Treasury    /   Internal  Revenue  Service    /   Washington,  DC.  20224 

Commissioner 

OCT    5    1976 


Mr.  Victor  L.   Lowe 

Director,  General  Government  Division 

U.  S.  General  Accounting  Office 

414  G  Stre»t,  N.  W. 

Washington,  D.  C.   20548 

Dear  Mr.  Lowe: 

Mr.  Wilbur  DeZerne,  Director,  Office  of  Audit,  Office  of  the  Secretary, 

Department  of  the  Treasury  has  forwarded  to  me  a  copy  of  your  transmittal 

letter  to  the  Secretary  of  the  Treasury  and  the  related  draft  report  for  such 
action  as  deemed  appropriate. 

We  have  reviewed  the  draft  of  the  GAO  report  to  Congress  on  the  Depart- 
ment of  Justice's  (DOJ)  Organized  Crime  Strike  Forces  and  are  forwarding  to 
you  our  detailed  comments.   These  are  included  in  the  attachment  to  this  letter. 

Ihe  Internal  Revenue  Service  is  particularly  concerned  that  this  report 
presents  observations  and  recommendations  which  could  potentially  result  in 
serious  impact  on  the  IRS  participation  in  the  Joint  Agency  Strike  Force 
Program  (Chapter  2) .   These  concerns  pertain  to  the  control  of  IRS  resources 
assigned  to  the  Joint  Agency  Strike  Force  Program  and  the  control  of  IRS  over 
its  own  operations  as  part  of  this  coordinated  joint  investigation  effort. 

On  January  8,  1976,  the  Internal  Revenue  Service  and  the  Department  of 
Justice  signed  an  agreement  titled  "Department  of  Justice-Internal  Revenue 
Service  Guidelines  Regarding  Cooperation  in  Joint  Investigations."   These 
guidelines,  among  other  things,  delineate  the  roles  of  IRS  and  DOJ  and  cover 
the  ccinmitment  of  resources  in  joint  investigations.   Since  these  guidelines 
are  an  accomplished  fact,  a  Presidential  order  -  a  GAO  report  reconmendation 
contingent  on  the  development  of  the  type  of  agreement  consummated  between 
DOJ  and  IRS  -  is  unnecessary  and  could  produce  undesirable  results. 

We  want  to  emphasize  that  these  guidelines  provide  (1)  that  the  Internal 
Revenue  Service  will  retain  control  over  its  own  operations  and  its  own 
resources  assigned  in  joint  investigations  with  DOJ  and  other  participating 
agencies  and,  (2)  that  the  participation  of  IRS  personnel  in  Strike  Force 


52 


8798 


APPENDIX  VIII  APPENDIX  VIII 


investigations  will  be  coordinated  by  the  Strike  Force  attorney  who  will 
also  assist  in  the  formulation  of  enforcement  policies  and  the  selection  of 
cases  for  potential  investigation.  However,  final  authority  concerning 
taxpayers  to  be  investigated  by  IRS  will  be  vested  in  IRS. 

We  believe  that  the  provisions  contained  In  this  agreement  accomplish 
the  following  objectives: 

a.  ensure  efficient  use  of  IRS  resources  employed  in  the  Strike 
Forces; 

b.  ensure  that  IRS  resources  will  be  employed  in  cases  concerning 
tax  violations  which  are  within  the  enforcement  jurisdiction 
of  the  Service;  and 

c .  maintain  proper  control  in  the  IRS  over  the  use  of  its  resources 
in  the  Strike  Forces. 

We  strongly  believe  that  the  use  of  IRS  resources  as  delineated  in  the 
DOJ-IRS  agreement  will  not  only  lead  to  better  coordination  of  Strike  Force 
efforts  in  the  Joint  Agency  Strike  Force  Program  but  will  also  tend  to  ensure 
that  the  Service  will  have  control  over  its  workload. 

Ihls  agrwwnnt  thus  contains  necessary  safeguards  against  possible  mis- 
uses of  IRS  resources  in  joint  investigations  Involving  other  than  criminal 
violations,  which  are  clearly  outside  the  enforcement  jurisdiction  of  the 
Service. 

We  believe  that  the  FBI  should  play  the  primary  role  in  the  organized 
crime  strike  forces.  Under  18  U.S.C.  533  and  534,  the  FBI  has  the  responsi- 
bility to  Investigate  those  Federal  offenses  which  are  not  specifically 
assigned  by  law  to  another  agency.   Although  certain  other  agencies  have 
investigative  authority  over  specific  offenses  (e.g.,  IRS  -  tax  offenses; 
Inmigratlon  and  Naturalization  Service  -  Immigration  offenses;  Secret  Ser- 
vice -  counterfeiting  offenses;  Drug  Enforcement  Administration  -  drug 
offenses),  the  FBI  has  investigative  authority  and  responsibility  over  most 
other  Federal  offenses  Involved  in  racketeering,  such  as  those  contained  In 
Titles  VIII  and  IX  of  the  Organized  Crime  Act  of  1970,  P.L.  91-452,  as  well 
as  such  organized  crime  activity  as  bribery,  hijacking.  Interstate  transpor- 
tation of  stolen  property,  bankruptcy,  fraud,  unlawful  activities  with  respect 
to  labor  unions  and  pension  and  welfare  funds,  and  obstruction  of  Federal  lav 
enforcement  (see  18  U.S.C.  152,  201,  204,  659,  664,  1461-1465,  1501-1510, 
2314,  2315). 

The   Joint  Agency  Strike  Force  Program  is  designed,  through  the  concerted 
efforts  of  participating  agencies,  to  investigate  and  prosecute  persons 
engaged  In  organized  crime  activities  who  coomit  criminal  offenses  (Title  18 
and  26  violations) .   On  account  of  this  broad  objective,  we  believe  that  the 


53 


8799 


APPENDIX  VIII  APPENDIX  VIII 


FBI  should  be  the  primary  agency  for  the  investigation  of  organized  crime 
strike  forces.  At  the  same  time,  IRS,  because  of  its  special  expertise,  will 
furnish  all  available  assistance  in  the  aspect  of  criminal  violations  of  the 
tax  laws. 

Although  we  do  not  have  complete  data  on  the  resources  assigned  by 
participating  agencies  to  the  orgsinized  crime  strike  forces,  we  believe  that 
the  IRS  contribution  of  resources  is  as  great  or  greater  than  any  other 
participating  agency's  contribution.   Table  1  attached  to  the  detailed  com- 
ments shows  the  annual  IRS  contribution  of  resources,  from  FY  1971  through 
FY  1974,  to  the  organized  crime  effort  including  the  Joint  Agency  Strike 
Force  Program  and  Other  Racketeer  Cases  (FY  1974  is  the  most  recent  year  for 
which  complete  statistics  are  available).   By  fiscal  years,  1,552,  1,783, 
2,152,  and  2,071  staff  years  were  assigned  by  IRS  to  the  overall  organized 
crime  effort.   In  FY  1974,  for  example,  approximately  1,800  staff  years  were 
devoted  to  the  Joint  Agency  Strike  Force  Program. 

Thank  you  for  affording  us  an  opportunity  to  comment  on  this  draft  of 
the  GAO  report  to  Congress  on  the  Department  of  Justice's  Organized  Crime 
Strike  Forces.  We  hope  that  you  will  give  us  an  additional  opportunity  to 
review  the  final  version  of  this  report  in  advance  of  its  publication. 

With  kind  regards. 

Sincerely, 


JpLu^  c  Al^^ 


Commissioner 
Enclosure 


54 


8800 


APPENDIX    VIII  APPENDIX    VIII 


Internal  Revenue  Service  Comments  on 

GAO  Draft  of  Report  to  the  Congress   of  the  United  States 

On  the  Department  of  Justice's  Organized 

Crime  Strike  Force 


The  follovrins  portions   of  the  GAO  report  pertain  to  observations 
and  recommendations  about  the  authority  of  the  Department  of 
Justice's   attorneys-in-charge  over  the  personnel  assigned  by 
other  participating  agencies   in  the  Joint  Agency  Strike  Force 
I'rogram  and  over  the  cases   selected  for   investigation  in  their 
jurisdictions: 

a.  Page  ii  of  the  Digest: 

"The  operations  of  individual  strike  forces  are 
haiupered  because  the  Justice  attorneys-in-charge  have 
no  authority  over  the  participants  from  other  agencies. 
(See  ch.  2)." 

b.  Page  13,   Chapter  2: 

"In  the  absence  of  a  national  strategy  cr  overall 
policy  direction  from  V/ashington,  the  responsibility 
for  planning  rests  vn.th  the  strike  forces.  However, 
strike  force  attorneys-in-charge  do  not  have  authority 
to  direct  investigative  priorities  v;ithin  tiieir  juris- 
dictions." 

c.  Page  l6.  Chapter  2: 

"In  establishing  the  strike  force  program,  however,  the 
Attorney  General  did  not  promrulgate  forma.l  operational 
guidelines  for  the  participating  Federal  agencies  and 
did  not  define  authority  and  responsibilities  of  the 
attorneys-in-charge.  The  strike  force  attorney-in-charge 
has  little  discretion  over  what  is  investigated  in  liis 
jurisdiction  and  on  what  activities  investigative 
priorities  arc  established.  These  decisions  are  made 
by  the  >articipatin.j  agencies,  not  the  strik.e  force,  and 
these  agencies  decide  at  what  stage  in  an  investigation 
strike  force  attorneys  wil]  bccom'2  involved. 

A  House  Government  Operations  Comnittee  study  (House 
Report  No.  157^}  dated  June  30,  I968)  recognized  that 
Justice  generally  does  not  have  line  authority  over  the 
investigative  and  law  enforcement  operations  of  other 
Federal  agencies. 

The  strike  force  attorney-in-c;iarge  has  no  authority 
to  require  participating  Federal  agencies  to  conduct 
specific  investigations  or  to  assign  additional  manpower 


55 


8801 


APPENDIX    VIII  J^PPENDIX    VIII 


and  oCher  resources  to  the  strike  force  program. 
With  the  exception  of  the  Iiisnigration  and 
Naturalization  Service,  perscnnel  assigned  to 
strike  forces  from  participating  agencies  are 
not  under  the  control  of  the  attorney-in-charge." 

d.   Pages  17  and  l8,  Chapter  2: 

"We  recommend  that  the  Attorney  General 

...in  conjunction  with  other  participating 
agencies  develop  agreements  delineating  each 
agency's  (l)  role  in  the  strike  forces  including 
the  role  of  the  attorney-in-charge  and  (2)  com- 
mitment of  resources ;  and 

...seek  an  order  from  the  President  requir- 
ing the  other  agencies'  cooperation  and  commitment, 
should  we  not  receive  satisfaction  from  other 
agencies ." 

IRS  Comments: 

On  January  8,  1976,  the  Deputy  Attorney  General  and  the  Comirdssioner 
of  the  Internal  Revenue  Service  signed  an  agreement  entitled:   Department 
of  Justice-Internal  Revenue  Service  Guidelines  Regarding  Cooperation  in 
Joint  Investigations.  This  agreement,  among  other  things,  delineates 
the  roles  of  IRS  and  DOJ,  including  the  role  of  the  attorney-in-charge, 
in  joint  investigations  -undertaken  in  the  Joint  Agency  Strike  Force 
Program.  Tils  agreement  also  covers  the  commitment  of  resources  of 
IRS  and  DOJ  to  this  program.  Since  this  agreement  is  an  accomplished 
fact,  a  Presidential  order  is  unnecessary  and  could  produce  undesirable 
results. 

This  ag-eer.ient  establishes  the  general  procedures  which  are  to  be 
followed  in  investigations  and  examinations  conducted  jointly  by  the 
Department  of  Justice,  including  the  Office  of  United  States  Attorneys, 
and  the  Internal  Revenue  Service.  Within  this  framework  of  cooperation, 
this  agreement  recognizes  that  the  mission  of  the  Internal  Revenue 
Service  is  the  fair  and  effective  administration  and  enforcement  of  the 
tax  laws  of  the  United  States. 

We  emphasize  that  these  guidelines  provide  (l)  that  the  Internal 
Revenue  Service  wll]  retain  complete  control  over  its  o\m  operations 
and  resources  in  its  participation  in  joint  investigations  with  DOJ 
and  other  participating  agencies,  including  those  in  the  Joint  Agency 
Strike  Fores  Program;  (2)  that  IRS  agents  will  be  assigned  by  IRS 
managers;  (3)  that  the  participation  of  IRS  personnel  in  Strike  Force 
investigations  will  be  coordinated  by  the  Strike  Force  attorney  who 
vri.ll  also  assist  in  the  formulation  of  enforcement  policies  and  the 
selection  of  cases  for  potential  investigation.  However,  final 

authority  concerning  taxpayers  to  be  investigated  vri.ll  be  vested  in 
IRS. 


56 


8802 


APPENDIX  VIII  APPENDIX  VIII 


We  believe  that  the  FBI  should  play  the  primary  role  in  the  organized 
crime  strike  forces.  Under  l8  U.S.C.  533  and  53^,  the  FBI  has  the 
responsibility  to  investigate  those  Federal  offenses  which  are  not 
specifically  assigned  by  law  to  another  agency.  Although  certain  other 
agencies  have  investigative  authority  over  specific  offenses  (e.g.,  IRS  - 
tax  offenses:  Immigration  and  Naturalization  Service  -  immigration 
offenses;  Secret  Service  -  counterfeiting  offenses;  Drug  Enforcement 
Administration  -  drug  offenses),  the  FBI  has  investigative  authority 
and  responsibility  over  most  other  Federal  offenses  involved  in  racketeer- 
ing, such  as  those  contained  in  Titles  VIII  and  IX  of  the  Organized  Crime 
Act  of  1970,  P.L.  91-^52,  as  well  as  such  organized  crime  activity  as 
bribery,  hijacking,  interstate  transportation  of  stolen  property,  bank- 
ruptcy, fraud,  unlawful  activities  with  respect  to  labor  unions  and 
pension  and  welfare  funds,  and  obstruction  of  Federal  law  enforcement 
(see  18  U.S.C.  152,  201,  20it,  659,  S6k,   lU6l-l465,  I5OI-I5IO,  231^+,  2315). 

The  Joint  Agency  Strike  Force  Program  is  designed,  through  the  con- 
certed efforts  of  participating  agencies,  to  investigate  and  prosecute 
persons  engaged  in  organized  crime  activities  who  commit  criminal 
offenses  (Title  I8  and  26  violations).  On  account  of  this  broad  objec- 
tive, we  believe  that  the  FBI  shovild  be  the  primary  agency  concerned 
v;  i  t  h  organized  crime  strike  forces.  At  the  same  time,  IRS,  because 
of  its  special  expertise,  will  furnish  all  available  assistance  in  the 
aspect  of  criminal  violations  of  the  tax  laws. 

Although  we  do  not  have  complete  data  on  the  resoxirces  assigned  by 
participating  agencies  to  the  organized  crime  strike  forces,  we  believe 
that  the  IRS  contribution  of  resovirces  is  as  great  or  greater  than  any 
other  participating  agency's  contribution.  Table  1  attached  shows  the 
annual  IRS  contribution  of  resources,  from  FY  1971  through  FY  197^+,  to 
the  organized  crime  effort  including  the  Joint  Agency  Strike  Force 
Program  and  Other  Racketeer  Cases  (FY  197^  is  the  most  recent  year  for 
which  complete  statistics  are  available).  By  fiscal  year,   1,552, 
1,783,  2,152,  and  2,071  staff  years  were  assigned  by  IRS  to  the  overall 
organized  crime  effort.  In  FY  197^+,  for  example,  approximately  1,800 
staff  years  were  devoted  to  the  Joint  Agency  Strike  Force  Program. 

Finally,  in  connection  with  the  IRS  cooperation  with  United  States 
attorneys  and  Department  of  Justice  attorneys  in  developing  cases 
concerning  tax  violations  which  are  within  the  enforcement  Jurisdiction 
of  the  Sevrice,   the  aervice  will  provide  these  attorneys  with  any 
information  obtained, during  a  tajc  investigation,  relating  to  the  possible 
commission  of  nontax  crimes  to  the  extent  that  this  information  is 
in  accordance  with  the  provisions  on  disclosure  of  confidential  infor- 
mation contained  in  Section  6IO3  of  the  Internal  Revenue  Service  Code 
and  the  regulations  thereunder,  as  recently  amended  by  the  Tax  Reform 
Act  of  1976.  Under  this  amendment,  for  example,  the  Service  will 
continue  to  furnish  the  Justice  Department  upon   request  tax  returns 
and  other  tajc  retxirn  information  with  respect  to  the  taxpayer  whose 
civil  or  criminal  tax  liability  is  at  issue.  Written  request  is 
required  in  cri.xinal  or  civil  tax  cases  other  than  refund  cases  and  in 
criminal  or  civil  tax  cases  other  than  those  referred  by  the  IRS. 


57 


8803 


APPENDIX  VIII  APPENDIX  VIII 

2.  Page  2^,  Chapter  3:  The  QAO  report  states  the  follovring: 

"In  addition  to  the  above  reports,  the  IRS  reviewed 
its  participation  in  the  strike  force  program  and  issued 
a  report  in  January  1975.  The  review  disclosed  a  need  to: 

— clearly  define  specific  goals  and 
objectives  of  the  IRS'  strike  force 
efforts ; 

— establish  specific  strike  force 
target  criteria;  and 

--review  reports  of  IRS  strike  force 
accompliGhments  to  provide  more 
detailed  information  to  assist  manage- 
ment in  t)ie  evaluation  of  the  effec- 
tiveness of  the  program. 

CONCLUSION 

The  failure  of  Justice  to  define  criteria  to  measiire  strike  force 
effectiveness  and  obtain  adequate  data  on  program  resiilts  inhibits 
obtaining  kr.^-.-Jcdc'  pt  the  field  level  o-f  those  aspects  of  progi-am 
operations  vrblca  could  be  changed  to  be  more  effective  against  organized 
crime. " 

IRS  Comments: 

The  Internal  Revenue  Service  is  finalizing  a  manual  supplement  that: 

a.  Sets  forth  the  objectives  for  the  Service's  participation 
in  the  Joint  Agency  Strike  Force  Program. 

b.  Delineates  the  responsibilities  of  the  National  Office, 
regional  offices,  district  offices  and  the  individuaJ. 
Strike  Force  representatives. 

c.  Provides  for  the  coordination  and  states  the  general 
procedures  which  are  to  be  followed  in  investigations 
and  examinations  conducted  jointly  by  the  Department 
of  Justice  and  the  Internal  Revenue  Service  in 
accordance  with  the  guidelines  established  in  the 
January  8,  1976  agreement  between  IPS  and  DOJ  on 

the  Conduct  of  Joint  Investigations. 

d.  Specifies  the  criteria  for  the  Service's  selection 
of  Strike  Force  cases  for  Audit  examination  and 
Intelligence  investigation. 

With  respect  to  the  evaluation  of  the  effectiveness  of  the  Service's 

participation  in  the  Joint  Agency  Strike  Force  Program,  the  Service  has 
recently  made  a  cost/benefit  analysis  of  the  impact  of  this  program  on 


58 


8804 


APPENDIX  VIII  APPENDIX  VIII 


IRS  resources.  However,  this  analysis  was  limited  since  IRS  did  not 
have  a  comprehensive  system  that  would  track  the  results  of  audit 
examinations  made  on  Strike  Force  cases  from  the  dollars  recommended 
by  its  Audit  Division,  through  the  assessment  stage,  and,  finally,  to 
collection. 

The  Service  is  currently  developing  a  comprehensive  reporting 
system  that  will  allow  it  to  track  the  results  of  its  Intelligence 
and  Audit  investigations  and  examinations  made  on  Strike  Force  cases. 
In  addition,  the  Service  is  now  conducting  a  study  thab  tracks  the 
results  of  Audit  examinations  and  Intelligence  investigations  made  on 
Strike  Force  cases  examined  by  Audit  in  FY  1972.  This  study  will  track 
these  cases  from  the  audit  examination  results  in  terms  of  dollars 
recommended,  to  the  assessment  results  in  terms  of  dollars  assessed,  and, 
finally,  to  the  collection  results  in  terms  of  dollai's  collected.  A  sinalar 
foil 0.7- through  on  the  results  of  Intelligence  investigations  will  te  made 
on  these  cases. 


:See  GAO  note  1,  p.  61. ] 


k.     Page  26,  Chapter  3:  The  GAO  report  makes  the  following  reccramendation: 

"RECOMMENDATION 

We  recommend  that  the  Attorney  General  develop  specific 
criteria  and  establish  the  required  information  system  to 
evaluate  the  effectiveness  of  the  national  and  individual 
strike  force  efforts." 

IRS  Comments : 

We  suggest  that  this  information  system  consider,  among  other  things, 
the  statutory  restrictions  on  the  IRS  disclosure  of  confidential  infor- 
mation as  contained  in  Section  6IO3  of  the  Internal  Revenue  Code  and 
the  regulations  thereiinder,  as  amended  by  the  Tax  Reform  Act  of  1976. 


59 


8805 


APPENDIX  VIII  APPENDIX  VIII 


For  example,  this  amendment  provides  that  tax  information  can  be 
disclosed  to  the  Justice  Department  and  other  FederaJ.  agencies  for 
nontax  criminal  p'orposos  only  by  order  of  a  U.S.  District  Court. 

5.  The  follo\,ring  portions  of  the  GAO  report  pertain  to  a  discussion 
of  the  usefulness  of  a  computerized  intelligence  system  developed, 
maintained,  and  operated  by  the  Intelligence  and  Special  Services 
Unit  within  OCRS,  to  collect  and  store  information  on  organized 
crime  gathered  by  all  Federal  agencies. 

a.  Page  ii.  Digest 

"--A  costly  computerized  organized  crime  intelligence 
system  appeared  to  be  of  dubious  value.   (See  ch.  5)." 

b.  Page  39,  Chapter  5:      The  GAO  report  states  that: 

"In  a  study  of  the  intelligence  system  issued  in 
March  1976,  Justice's  Office  of  Management  and  Finance 
reported  that,  v/ith  the  exception  of  the  Federal  Bureau 
of  Investigation,  information  exchange  is  haphazard, 
rarely  written  or  preserved  and  heavily  dependent  upon 
the  rapport  established  between  participating  agency 
representatives.   This  informal  system,  the  study 
concluded,  results  in  an  untimely  and  incomplete 
exchange  of  useful  intelligence." 

c.  Page  UO,  Chapter  ^:  The  GAO  report  states  that: 

"The  Office  of  Management  and  Finance  Study  report 
stated  that  the  overall  assessment  of  strike  force 
personnel  was  that  racketeer  profile  data  v;as  not 
necessary  for  the  cvrrrent  program  of  investigation 
and  prosecution  of  organized  crime  figures." 

d.  Pago  hi.   Chapter  5:   The  GAO  report  makes  the  following 
recommendation: 

"RECOWIFNDATIOri 

We  recommend  that  the  Attorney  General  reevaluate 
whether  an  intelligence  system  devoted  solely  to 
organized  crime  figures  is  needed.   If  it  is,  steps 
should  be  taken  to  improve  the  quality  and  usefulness 
of  data  in  the  system." 

IRS  Comments: 

The  Internal  Revenue  Service  is  also  concerned  with  the  need  and 
utilization  of  this  coiirputerized  intelligence  sysrom.  In  June  1976, 
the  Service  requested  and  received  detailed  information  from  DOJ 


60 


8806 


APPENDIX  VIII  APPENDIX  VIII 


concerning  the  creation,  purpose  and  utilization  of  the  Racketeer  jrro- 
files  maintained  in  this  coniputerized  system.  The  Service  is  currently 
studying  the  extent  of  its  role,  if  any,  in  participating  in  this 
system.  One  of  the  Service's  considerations  relates  to  the  disclosure 
of  confidential  information  which  must  be  in  accordance  with  the 
statutory  provisions  under  Section  6l03  of  the  Code  and  the  regulations 
thereunder,  as  amended  by  the  Tax  Reform  Act  of  1976.  Of  particular 
concern  is  the  possible  unauthorized  disclosure  of  tax-related  infonna- 
tion. 

Upon  completion  of  the  IRS  study,  a  determination  will  be  made  as 
to  the  extent,  if  any,  that  IRS  will  participate  in  this  computerized 
system. 


Note  1:  Deleted  comments  refer  to  material  contained  in  the  draft 

report  which  has  been  revised  or  which  has  not  been  included 
in  the  final  report. 


61 


8807 


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8808 

APPENDIX    IK  APPENDIX    IX 


THE  UNDER  SECRETARY  OF  THE  TREASURY 

WASHINGTON     DC       20220 


OCT  20  1976 


Dear  Mr.  Lowe: 

As  suggested  by  your  letter  of  August  12,  19  76, 
to  Secretary  Simon,  we  have  prepared  the  following 
comments  on  your  draft  report  on  the  Organized  Crime 
Strike  Forces. 

Although  it  is  my  understanding  that  the  report 
is  an  assessment  of  the  activities  of  the  Federal  Strike 
Forces,  a  large  part  of  the  draft  is  devoted  to  the 
activities  of  the  National  Council  on  Organized  Crime 
and  the  sentencing  practices  of  the  Federal  courts. 
While  these  topics  are  germaine  to  a  broad  analysis  of 
the  problem  of  organized  crime  in  the  United  States, 
they  are  beyond  the  control  of  the  Strike  Forces  or 
the  Organized  Crime  and  Racketeering  Section  of  the 
Department  of  Justice.   Perhaps  the  discussion  of  those 
topics  could  be  included  more  appropriately  in  an  appendix 
where  it  would  be  ancillary  to  the  report  on  the  Strike 
Forces.   In  that  way,  it  would  be  less  likely  that  what 
may  be  perceived  as  the  failings  of  the  Council  and  the 
courts  would  be  attributed  to  the  Strike  Forces. 

The  discussion  pertaining  to  the  Strike  Forces  seems 
to  imply  that,  since  they  have  not  eliminated  organized 
crime  in  the  United  States,  the  Strike  Forces  have  been 
unsuccessful.   I  do  not  agree.   The  mission  of  the  Strike 
Force  program  has  been  to  combat  organized  crime  by 
prosecuting  those  who  violate  Federal  criminal  statutes; 
an  expectation  that  prosecutions  and  convictions  alone 
can  effect  total  elimination  of  organized  crime  in  a  large 
and  diverse  population,  such  as  we  have,  is  unrealistic. 

In  my  opinion,  the  number  of  indictments  and 
convictions  secured  by  the  Strike  Forces  could  be  used 
to  provide  a  good  basis  for  evaluating  the  program. 
Statistics  could  be  developed  to  show  trends  and  provide 
a  measure  of  quality.   I  am  sure  that  these  figures  will 
show  that  the  Strike  Forces  have  constituted  the  most 
successful  vehicle  thus  far  developed  by  the  Federal 
Government  for  combatting  organized  crime. 


65 


8809 

APPENDIX  IX  APPENDIX  IX 


The  report  states  that  the  operations  of  the  Strike 
Forces  are  hampered  because  the  Justice  Attorneys-in-Cheirge 
have  no  authoricy  over  the  participants  from  other  agencies. 
We  disagree  with  that  statement.   The  Justice  attorneys  do 
exercise  authority  in  determining  which  investigations 
will  be  conducted  under  the  authority  of  the  Strike  Force. 
Usually  the  investigative  agencies  will  propose  an  investi- 
gation that  meets  with  the  approval  of  the  Justice  attorney. 
But,  the  Attorney-in-Charge  can  decline  any  investigation 
that  he  believes  to  be  inappropriate.   Of  course,  in  many 
instances,  the  agency  still  has  the  option  of  undertaking 
such  an  investigation  on  its  own  authority  but  that 
investigation  would  not  be  a  Strike  Force  case. 

We  feel  that  a  Strike  Force  should  be  a  cooperative 
venture  by  the  agencies  involved  and  should  be  closely 
coordinated  by  the  Department  of  Justice.   This,  however, 
does  not  mean  that  the  Justice  Department  should  exercise 
administrative  supervision  of  the  investigators  working 
with  the  Strike  Forces.   Each  agency  has  expertise  in  its 
particular  field  of  investigation.   It  is  not  reasoneOsle 
to  expect  that  a  small  group  of  Justice  attorneys  will  be 
more  knowledgeable  about  investigative  matters  than  all 
of  the  agency  experts  who  participate  in  a  Strike  Force. 
The  Strike  Force  attorneys  supply  the  prosecutive  skills. 
The  division  of  responsibilities  is  effective  and  precludes 
an  unwarranted  concentration  of  authority  in  euiy  one  indi- 
vidual, including  the  chief  Strike  Force  attorney. 

While  we  believe  that  the  discussion  of  sentencing 
would  be  more  appropriately  included  in  an  appendix,  we 
would  also  like  to  point  out  that  the  statistics  cited 
would  be  more  useful  if  the  percentage  of  convictions 
that  did  not  result  in  imprisonment  was  shown  separately 
rather  than  having  those  cases  grouped  with  others  that 
resulted  in  light  sentences  as  they  are  on  page  31  of  the 
draft  report. 

Thank  you  for  the  opportunity  to  comment  on  your 
draft. 


»rry  Thomas 


Mr.  Victor  L.  Lowe 
Director,  General  Government 

Division 
U.S.  General  Accounting  Office 
Washington,  D.C.    20548 


56 


8810 


APPENDIX  X  APPENDIX  X 

£Bi^£J P-'^L  OFFICIALS  RESPONSIBLE  FOR 

IN  THIS  REPORT 


Tenure  of  office 
'From  To" 


DEPART'MENT  OF  JUSTICE 

ATTORNEY  GENERAL  OF  THE  UNITED 
STATES: 

Griffin  Bell  Jan,  1977  Present 

Edward  H.  Levi  Feb.  1975  Jan.  1977 

William  B.  Saxbe  Jan.  1974  FeD.  1975 

Robert  H.  Bork,  Jr.  (acting)  Oct.  1973  Jan.  1974 

Elliot  L.  Richardson  May  1973  Oct.  1973 

Richard  G.  Kleindienst  June  1972  May  1973 
Richard  G.  Kleindienst 

(acting)  Mac.  1972  June  1972 

John  N.  Mitchell  Jan.  1969  Mar.  1972 

Ramsey  Clark  Mar.  1967  Jan.  1969 

ASSISTANT  ATTORNEY  GENERAL, 
CRIMINAL  DIVISION: 

Richard  L.  Thornburgh  July  1975  Present 

John  C.  Keeney  (acting)  Jan.  1975  July  1975 

Henry  E.  Petersen  Jan.  1972  Dec.  1974 

Henry  E.  Petersen  (acting  Oct.  1971  Jan.  1972 

Will  R.  Wilson  Jan.  1969  Oct.  1971 

Fred  M.  Vinson  Apr.  1965  Jan.  1969 

CHIEF,  ORGANIZED  CRIME  AND 
RACKETEERING  SECTION: 

Kurt  W.  Muellenberg  (acting) 
William  S.  Lynch 
Henry  E.  Petersen 


Oct. 

1976 

Present 

Aug. 

1969 

Oct.   1976 

Nov. 

1966 

Aug.   1969 

67 


8811 

Disqualification  of  Attorneys  :  Multiple  Representation 

(By  Institute  on  Organized  Crime,  Cornell  University  School  of  Law) 

outline 
Siininiary. 
Introduction. 
Right  to  Counsel. 

Freedom  to  Associate  to  Retain  Counsel.' 
Right  to  Practice  Law. 
Riglit  to  Investigate  and  PiMsecute. 
The  Integrity  of  the  Legal  System. 
State's  Obligation  to  Protect  Individual's  Rights. 
Concluding  Statement. 

SUMMARY 

1.  The  basic  remedy  for  a  prosecutor  faced  with  a  multiple  representation 
situation  is  a  motion  to  disqualify. 

2.  The  trial  court  has  authority  to  disqualify  an  attorney  ba.sed  on  the  court's 
inherent  power  to  supervise  the  attorneys  practicing  before  it. 

3.  The  standard  by  which  the  motion  is  judged  is  a  balancing  test  weighing 
the  interests  of  the  state  against  those  of  the  attorney  and  client. 

4.  A  number  of  interests  have  been  considered,  but  of  primary  importance 
are  the  individual's  right  to  counsel  and  the  state's  interest  in  an  effective 
criminal  justice  system. 

5.  A  decision  on  these  important  rights  cannot  be  made  without  procedural 
safeguards  which  generally  include  a  full  hearing  on  the  motion  accompanied 
by  affidavits  as  a  minimum. 

G.  The  basic  problem  of  prosecutors  in  the  multiple  representation  situation 
has  been  succinctly  stated  by  Earl  .J.  Silbert,  U.S.  attorney  for  the  District  of 
Columbia  : 

"Too  often,  we  have  seen  a  lawyer  known  to  represent  Mr.  Big  in  narcotics 
come  down  to  represent  one  of  his  lieutenants  who  has  been  arrested.  The 
result :  the  chances  of  the  lieutenant  deciding  in  his  interest  to  cooperate  and 
turn  state's  evidence  against  Mr.  Big  are  eliminated.  Too  often,  in  cases 
involving  business  corporations  or  labor  unions,  one  lawyer  represents  targets 
of  the  investigation  and  witnesses,  multiple  representation,  which  in  our  view- 
fosters  obstruction  of  ju.stice,  criminally  preventing  prosecutors  from  pene- 
trating to  the  top  of  organized  criminal  conspiracies. 

"Some  lawyers  are  simply  oblivious  to  the  legal  and  ethical  problems  of 
multiple  representation.  A  few.  aware  of  the  problems,  deliberately  ignore  them 
for  monetary  reasons.  Othei's.  also  aware  of  the  problems,  reject  wliat  appears 
to  them  to  be  the  efforts  of  jn-osecutors  to  dictate  whom  they  can  represent."  ^ 

It  is  conceivable  that  a  renainder  to  the  offending  attorney  of  the  conflicts  of 
interest  created  by  his  multiple  representation,  or  an  opinion  from  the  A.B.A. 
may  produce  desired  changes  in  some  situations.^  Nevertheless,  the  basic  tactic 
for  a  prosecutor  faced  with  the  multiple  representation  situation  is  a  motion  to 
disqualify  the  offending  attorney." 

7.  The  authority  to  disqualify  an  attorney  comes  from  the  inherent  power 
of  the  trial  judge  to  supervise  the  attorneys  practicing  befoi-e  him.'*  The  order 
of  the  trial  judge  is  a  matter  of  discretion  based  on  all  the  facts  and  circum- 
stances, and  is  reversible  only  as  an  abuse  of  discretion.'^  There  are  relevant 
.statutes  in  some  jurisdictions  (e.g.  Virginia),  and  the  Code  of  Professional 
Responsibility  is  a  standard  everywhere  (incorporated  either  by  reference  or 
through  the  court  rules).  In  practice  the  actual  standards  for  disqualification 
vary  considerably  among  jurisdictions,  but  basically  vc^t  on  a  ii.ilandng  test 
weighing — 

(1)   the  right  of  individuals  to  counsel  of  their  choice  : 


'  Fodt^rnl  Bar  Association  Lunchpon,  Sojtt.  1.>.  1976.  PP-  9-lf>. 

~H.  Drinker,  Lpffnl  Ethics.  100  dn.oS).  Ationie.\s  f^cimnld  not  voluntarily  rnit  themselvei= 
in  positions  wlifre  the  conditions  of  their  compensation  iuhv  interfere  with  the  full  dis- 
char^re  of  their  dntv  to  their  clients. 

^  In  /»  Re  .V/'Ccr/?  Fphrutuu  J97.'.  Oravd  Jiirii.  40fi  F..^npr..  104  (N.D.  111.,  197.5).  the 
disqualification  atteinrit  cook  the  fociu  of  opposition  to  the  admission  of  an  attorney  to 
V)ractic»'  before  the  District  Tonrt. 

^  Pirillo  r.  Tn!<ij)\  .^41    A. 2d  S96   (Vn.  197.5).  rrrt.  ilenierl.  42?,  U.S.  108.^.. 

■Tn  Re  Crnpnifm,  r)?,\  ¥.2(1  262   (r.Mi  Cir..  1076). 


8812 

(2)  the  right  of  individuals  to  freely  associate  in  order  to  obtain  coun- 
sel ;  and 

(3)  the  right  of  attorney  to  practice  his  profession ; 
as  compared  to : 

(1)  tlie  right  of  the  state  to  eflfecti\ely  investigate  and  prosecute  crimi- 
nal activity : 

(2)  the  interest  of  the  state  in  maintaining  the  integrity  of  its  courts  and 
the  legal  profession  ;  and 

(3)  the  obligations  of  the  state  to  protect  the  constitutional  rights  of 
individuals. 

Courts  have  tended  not  to  define  explicitly  the  weight  given  to  each  factor,' 
but  rather  have  either  lumped  all  the  considerations  together,  or  focused  almost 
exclusively  on  one  factor.  The  issues  dealt  with  most  frequently  are  discussed 
below. 

RIGHT  TO  COUNSEL 

8.  The  right  to  counsel  is  guaranteed  by  the  Sixth  Amendment,  but 
"Although  the  right  to  counsel  is  absolute,  tliere  is  uo  absolute  right  to  par- 
ticular counsel.'  Desirable  as  it  is  that  a  defendant  obtain  private  counsel  of 
his  own  choice,  that  goal  must  be  weighed  and  balanced  against  an  equally 
desirable  public  need  for  the  eflScient  and  effective  administration  of  justice."'  * 

In  PirUIo  v.  Takijf,  341  A.2d  896  (PA.,  1075),  twelve  policemen  under  grand 
jury  investigation  for  bribery  were  represented  by  one  lawyer  who  was  paid  by 
the  Fraternal  Order  of  Policemen  (F.O.P.)  thereby  creating  potential  conflicts 
of  interests  among  the  witnesses,  and  between  the  witnesses  and  the  F.O.P." 
The  court  required  each  witness  to  obtain  separate  counsel  not  related  to  the 
F.O.P."  As  explained  by  a  lower  appellate  court  following  the  Piriilo  decisi(Ui. 

"The  Court  concluded  that  the  value  of  a  witness'  right  to  counsel  of  his 
choice  was  minimal  when  chosen  counsel  was  inherently  unable  to  commit 
himself  to  act  in  the  best  interests  of  his  client."  " 

The  court  also  emphasized  that  the  infringement  of  the  right  to  counsel  was 
the  minimum  necessary  to  protect  important  state  interests  in  these  circum- 
stances.^^ 

9.  Those  courts  which  have  denied  a  motion  for  disqualification  because  of 
violation  of  the  right  to  counsel  have  most  frequently  ba.sed  their  decision  on 
finding  of  lack  of  evidence  sufficient  to  warrant  denial  of  such  important 
rights."  These  cases  raise  questions  of  procedural  requirements  discussed 
below,^*  and  also  frequently  deal  with  the  issue  of  the  individual's  right  to 
waive  conflict-free  counsel." 

10.  In  Glasser  v.  U.S..  3ir.  U.S.  70  a9G2).  the  Supreme  Court  enunciated  the 
right  to  assistance  of  counsel  free  from  conflicfs  of  interest.   Various   lower 


•^  Piriilo  V.  Takiff,  .'541  A. 2(1  SOO  (Pa.  lOT.o).  OPvt.  fli-niort.  42.T  U.S.  10S:5.  irives  the  most 
complete  analysis  of  the  problem.  See  aNn,  Reinsltiirg,  "Kthics.  .Tudieial  Power,  and  the 
Sixtli  Amendment:   PiriUo   v.   TaViff."  37  T'.P.T.T.   Law  Rev.   r)77    (l!>7fi). 

-  Vnited  fitntes  ex  rel.  Carey  v.  Rtimlle,  409  F.2d  1210,  1215  (M  Cir.  lJ)fi9). 

"Id.  at  1214. 

"The  conflict  from  representinc  mtiltipl<>  witnesses  is  basically  that  it  may  be  in  one 
witness'  interest  to  turn  State's  eyidence.  but  the  attorney  wonid  he  nnai)le  to  adyise  him 
or  barpain  for  him  witlioiit  prejudicinir  his  other  client(s).  The  conflict  vr\th  resiiect  to 
paynipnt  l)y  the  F.O.P.  while  repvesentinjr  witnesses  is  that  it  divides  tlie  jittorney's 
loyalties  (or  at  least  piyes  the  ajipearance  of  such  impropriety)  insofar  as  the  interests 
of  the  witness (es)  and  the  F.O.P.  diverire.  Ilei-o  this  second  conflict  was  particularly 
appirent  because  the  F.O.T".  had  actiyely  oijposed  the  inyestijration.  coojieration  with 
which  mlcht  well  have  been  in  a  witness'  best  interest. 

'"'  Piriilo  V.  TaViff.  xupra  nt  OOn   OOfi. 

11  A»f  Re  .Tanuarji  197.',  .Special  investioatinn  flmvd  .rnni.  .Sfil  A. 2d  :;2.'>.  .'?2S  (Pa. 
Super,   1970). 

^^  Pirilln  y.  Takiff,  xupra  nt  90.~i-90C. 

'"Ah  Pr  Ttjrrxfifjntioii  Rrfnrr  the  .ipril  7.Q7.1  Orniid  .Juni.  'S?.\  F.2d  fiOO  (DC.  Cir.. 
1i)7r,>  :  In  Kc  (Jrand  ,ltini  F.mpnncU,!  .Tnniinru  21.  ?.</7.i.  ."(."^r.  F.2d  1')09  (Srd  Cir..  197r,>  : 
VnHed  ^faicx  v.  darrin.  .')t7  F.2d  272  (5th  Cir..  197.">)  ;  In  Re  S'prcial  Fehruuru  I97n 
Grand  .lun/.  40(!  F.Supp.  194    (N.D.  111.,  1975). 

"  Varaeraphs  lS-21. 

1' S"-f.  for  examnle.  In  Re  Inrekiiaation  Hi  fore  tlie  Anril  Una  Grand  Jiirii.  5.S1  F.2d 
r.OO  (D.V.  Ctr..  197fi)  ;  and  Vnited  fttaten  v.  Gareia.  517  F.2d  272  (5th  Cir.,  1975).  Both 
discussed  belov.. 

Th(    Code  ot  Professional   Uesnonsib'lity  DK  5-105i'c)   says: 

"A  lawyer  may  represent  multiple  clients  if  it  is  obvious  that  he  can  adeouatelv  repre- 
sent the  interests  of  each,  and  If  each  consents  to  the  representation  after  full  dis- 
closure •  ♦  *." 

This  provision  is  much  cited  and  little  diseussed  in  cises  apparently  reflecting  an  attitude 
in  courts  that  the  rule  Is  onl.v  of  ^ener.il  advisory   value. 


8813 

courts  have  found  that  right  to  be  waivable"  (relying  primarily  on  Farclta  v. 
Califorvia,  422  U.S.  SOU  (1975))."  In  Garcia  v.  I'.IS.,  517  F.2a  272  (5th  Cir., 
1975).  the  question  of  waiver  was  given  thorough  consideration.  The  court  held 
that  the  district  court's  decision  to  disqualify  because  of  the  need  to  protect 
defendants  from  conflicts  of  interest  was  premature  in  that  evidence  had  not 
been  taken  as  to  whether  or  not  ihey  would  choose  to  waive  the  right  to  counsel 
without  conflicts.  The  court  (relying  on  Johnson  v.  Zerhst,  304  U.S.  458  (1938), 
and  Brady  v.  U.S.,  397  U.S.  742  (1970) ),  then  stated: 

"Individuals  are  free  to  waive  the  constitutional  protections  otherwise 
afforded  them,  regardless  of  their  motivation  as  long  as  the  waiver  is  voluntary, 
knowing,  and  intelligent."  " 

The  court  then  elaborated  on  the  required  procedure. 

"The  trial  court  shovdd  actively  participate  in  the  waiver  decision.  The 
Supreme  Court  recognized  the  need  for  atfirmative  judicial  involvement  in  the 
waiver  process  in  Von  Moltkc  v.  GiUics.  332  U.S.  708.  723-24.  168  S.Ct.  316.  92 
L.Ed.  309,  320-21  (1948).  .  .  .  [A]  judge  must  investigate  as  long  and  as 
thoroughly  as  the  circumstances  of  the  case  before  him  demand.  The  fact  that 
an  accused  may  tell  him  that  he  is  informed  of  his  right  to  coiuisel  and  desires 
to  waive  this  right  does  not  automatically  end  the  judge's  responsibility.  To  be 
valid  such  waiver  must  be  made  with  an  apprehension  of  the  nature  of  the 
charges,  the  statutory  offenses  included  within  them,  the  range  of  allowable 
punishments  thereunder,  possible  defen.ses  to  the  charges  and  circumstances  in 
mitigation  thereof,  and  all  other  facts  es.«eutial  to  a  matter.  A  judge  can  make 
certain  counsel  is  imderstandingly  and  wisely  made  only  from  a  penetrating 
and  comprehensive  examination  of  all  the  circumstances  under  which  such  a 
plea  is  tendered. 

"In  accordance  with  the  foregoing  principles,  we  instruct  the  district  court 
to  follow  a  procedure  akin  to  th:it  promulgated  in  F.R.  Crim.  P.  11  whereby  the 
defendant's  voluntariness  and  knowledge  will  be  manifest  on  the  face  of  the 
record.  Most  significantly,  the  court  should  seek  to  elicit  a  narrative  response 
from  such  defendant  that  he  has  been  advised  of  his  right  to  effective  repre- 
sentation, that  he  understands  the  details  of  his  attorney's  possible  conflict  of 
interest  and  the  potential  perils  of  such  a  conflict,  that  he  has  discussed  the 
matter  with  his  attorney  or,  if  he  wishes,  with  outside  counsel,  and  that  he 
voluntarily  waives  his  Sixth  Amendment  protections."  ^^ 

11.  Although  waiver  completely  negates  the  state  interest  in  pi'otecting  an 
individual's  right  to  conflicts-free  counsel,  the  other  state  interests  can  still 
outvvei.eh   the   competing   rights    so   that    disqualification    can    be   graiited."" 

FREKDOir  TO  ASSOCIATE  TO  RETAIN  COT'NSEL 

12.  This  right,  derived  from  the  First  Amendment,  is  cited  primarily  with 
reference  to  United  Mine  Workers  v.  Illinois  State  Bar  Association,  389  U.S. 
217  (191)7)-''  and  N.A.A.C.P.  v.  Button,  371  U.S.  415  (1963)."  As  summarized 
by  the  Pirillo  court, 

"Both  Button  and  United  ]\fine  Workers  specifically  addressed  the  issue  of 
potential  conflicts  inherent  in  the  selection  of  lawyers  bv  an  org:inization  to 


1"  In  Jfe  Inresfinafinii  lirfore  Ihc  Av>il  7.''75  Grnvrl  .Turn.  ."5.^  F.2d  fiOO  (D.C.  Cir.,  1976>  ; 
s\m\  In  Tie  arcnuJ  .lurii  Empaneled  .Januarii  21,  1975,  5.36  F.2a  1000  (Hrd  Cir.,  1976), 
auionc:  nthers. 

I'FarPttn.  which  rprosrnizpri  fhp  iiKlividiinl's  risrht  to  dirpot  his  own  defensp.  quotps 
A(l(tm.<<  V.  T-nited  State-t  er  rrl.  MrCnnn.  ?,17  U.S.  269.  2S0   (1942)   at  ."22: 

"WhPii  tlip  administr.Ttiou  of  thp  criminal  law  •  *  *  is  as  hedirpd  about  as  It  is  by 
Ponstitntional  safpcrnards  for  thp  accnspd.  to  dpny  liim  in  thp  pxprcisp  of  his  frpp  choicp 
thp  ritriit  to  disppnsp  witli  sonip  of  tlipsp  safpRuards  *  *  *  is  to  imprison  a  man  in  his 
safpctiard  and  call  it  thp  ConsVitution." 

IS  Gnreia.  fiupra  at  276-77. 

>"  T(l..  siinra  nt  277-7S. 

^  In  Pirillo  the  Court  found  it  nniiPCPS'-'irv  to  dpcidp  whpthpr  thcrp  had  bepn  effective 
waiver.  In  his  fnndanipntnl  work.  LPEral  Kth'cs  (19r>3'».  n'-inl<pr.  then  Chairman  of  the 
A.B  A.  Eth'cs  Committpp,  citpd  numpron'J  AT?. A.  opinions  for  the  proposition  that,  in  a 
conflicts  situation.  "Conspnt  fisl  unavailable  where  the  public  interest  is  Involved."  At 
120.  Spp  also.  Tn  Re  Ah'nmn.  56  N..T.  271,  266  A. 2d  275  (1970)  :  and  Ah::o  v.  Weaver,  39 
N..T.  412,  1S9  A. 2d  27   (196.3). 

^  Thp  Bar  Association's  attpmnt  to  bnvp  prohibitpd  as  un.nuthorizpd  practice  of  law 
thp  union  practice  of  hirinar  an  attorne.v  to  represent  any  member  who  had  a  Workman's 
Compensation  claim  was  denied. 

23  A  Vircinia  law  which  would  have  prohibited  the  N.A.A.C.P.  from  referrinc  individuals 
to  particular  attorneys  and  sometimes  paylnj:  their  legal  fees  was  held  unconstitutional  as 
applied. 


8814 

represent  individual  defendants.  Tlie  selection  procedures  discussed  there  were 
similar  to  the  method  by  wliicli  the  F.O.P.  recommends  and  pays  qualified 
attorneys  to  represent  individual  members  of  the  Order.  The  United  States 
Supreme  Court  recognized  that  a  state  may  act  pursuant  to  its  broad  power  to 
regulate  the  practice  ■':'f  law  to  prevent  a  serious  conflict  of  interest  from 
arising  in  the  legal  representation  of  its  citizens,  hue  held  that  the  recctrd  below, 
in  each  instance,  failed  to  demonstrate  that  any  actual  danger  existed  or  that 
the  state  regulation  was  su/Iiciently  narrow  to  meet  only  the  i)articular  form 
of  danger  present.  The  primary  objectionable  feature  of  state  regulation  in  the 
First  Amendment  area  is  vagueness  and  overbreadth  which  result  in  regulation. 
Common ircfilfh  v.  DelJ  PuMirations.  Inc.,  427  Pa.  189,  233  A.2d  840  (1907)  : 
Smith  V.  Cnnnlish,  207  Pa.  Super.  Ct.  516.  218  A.2d  TiOG  (19G6).  Thus,  if  regula- 
tions affectii'g  First  Amendment  riarhts  are  no  greater  than  necessary  to  elimi- 
nate the  substantive  evil  and  protect  the  substantial  governmental  interests  and 
individual  I'igiits,  then  the  regulation  can  l)e  constitutionally  tolerated.  McMid- 
len  V.  Wohhjctiiuth,  453  Pa.  147,  308  A.2d  888  (1973)."=''' 

13.  In  practice  these  cases  have  been  cited  for  the  two  general  propositions 

(1)  that  the  individual's  right  to  as.sociate  for  the  purpose  of  obtaining  counsel 
is  protected  by  the  First  Amendment  and  is  not  to  be  lightly  diregarded.  and 

(2)  that  organizations  are  not  prohibited  from  providing  legal  services  for 
their  members,  but  that  a  balancing  test  is  employed  to  weigh  whether  the 
harm  likely  to  result  in  particular  cases  outweighs  the  value  of  the  right.  The 
conclusion  of  the  Pirillo  court  (quoted  above)  that  I'ropor  tailoring  of  the 
court's  order  could  avoid  most  problem.s  is  probably  a  narrower  construction 
of  First  Amendment  requiremeiits  than  other  courts  would  hold.  The  court  in 
In  Re  Invcfttigation  Before  the  April  1075  Grmul  .Tur\i.  531  T\2d  600  (D.C.  Cir., 
1976).  on  evidence  similar  to  that  available  in  Pirillo  dismissed  a  motion  to 
disqualify  as  premature  bec^cse  import.int  rights  of  the  defondnnts  could  not 
be  infringed  upon  without  a  full  record  **  and  until  other  alternatives  hnd  been 
exhausted.'"' 

RIGHT  TO  PRAC:TICE  LAW 

14.  Like  the  freedom  of  association  issue,  tiiis  right  has  received  substfintial 
reference  and  minimal  discussion  in  court  opinions.  The  Pirillo  court  observed : 

■'Unquestionably  the  right  to  pursue  the  occupati(m  of  ones  choosing  may  not 
be  curtailed  without  due  process  of  law.  The  interest  in  a  profession,  being 
akin  to  a  property  right,  may  not  be  removed  arbitrarily.  Dent  v.  West  Virniniu. 
129  V.S,.  114  (1880)  ;  ?.roorc  v.  Jameson,  -151  P.A.  A.T.  .'ms.  306  A.2d  A.T.  288."=' 

The  pirillo  court  applied  a  balancing  test,  and  ns  t-xnlaincd  l)y  the  court  in 
In  Re  Janitnrp  197Jf  Special  Inresiif/atittg  Grand  .hini.  361  A  2d  325,  328  (Pa. 
Super.,  1976).  found  that 

"an  attorney's  right  to  practice  his  profession  was  minimal  when  such  practice 
at  best  operated  on  the  margin  nf  ethics." 

KIGHT  TO  INVESTIGATE  AND  PROSECUTK 

15.  There  is  no  (piestion  as  to  the  state's  right  to  efficiently  and  effectively 
operate  its  criminal  justice  .system,  and  to  move  to  discpuilify  an  attorney  who.se 
multiple  representation  is  impeding  that  functiim.  Since  this  right  is  evaluated 
by  a  balancing  test,  questions  do  arise  as  to  the  degree  of  likelihood  of  harm, 
and  the  degree  of  harm  likely  to  result.  It  is  dilficult  to  generalize  about  court's 
evaluations  of  thesp  (pieslions  because  they  are  so  tied  to  the  circumstances  of 
individual  cases  which  are  often  subtle  and  intricate.  As  extremes  (m  the 
matter  of  likelihood  of  harm  fn  Re  Special  Fehruanj  197.;  Grand  Jiiri/.  406 
F.Supp.  194  (N.D.  111.,  1975)  :  "I  am  of  the  opinion  that  for  the  purjioses  of 
depriving  a  person  of  his  choice  of  counsel,  there  must  be  actual  conflict,  not 
just  the  appearance  of  it,"  contrasts  with  Slate  r.  GaUiti.  64  .\..l.  572,  319  A. 2d 
220  (1974),  "the  cause  and  effect  impact  upon  the  public  con.sciousness  is 
nlmost,  perhaps  quite,  as  important  as  the  actual  fact." 

Most  ca.ses  take  a  middle  cour.se  allowing  the  court  "to  nip  any  i)otential 
conflict  of  interest  in  the  bud,"^  but  requiring  more  than  mere  hypotheticals 


="  Pirillo.  snpr.-t  at  !>0.S. 
'»  April  7.07.1  firniul  .Turii,  .siiiira  nt  ii()7. 

-^li\.  at  GOtt.  Spo  also.  (I rand  Jiirif  of  jai\iinr\i  21,  1975,  NUt)rn. 
2"   Pirillo.  siip'd  at  !»()(). 

-- Tucker  v.  Shaw,  IMS  F.2d  .".04.  .''.o-   (2(1  fir..   1!)(!7)    cited  in   In   h'r  Clopman.  .^.^l  F.2d 
202  (."ith  dr.,  1970). 


8815 

and   unsubstantiated  allegations."'  The   degree   of  harm  is   of  particular   im- 
portance with  respect  to  tho  procedural  alternatives  discussed  below."" 

THE  INTEGRITY  OF  THE  LEGAL  SYSTEM 

16.  It  is  uncpicstioned  that  the  general  supervisory  power  of  the  court  to 
project  its  integrity  includes  the  power  to  disipialify  an  attorney  with  conflicts 
of  interest.  Representation  in  situations  like  U.S.  Attorney  Gilbert's  example 
li.<is  resulted  in  suspension""  and  disbarment,''^  Imt  the  standards  for  acceptable 
conduct  appear  to  be  different  in  a  disciplinary  proceeding  from  tliose  used 
when  a  client's  right  to  counsel  is  at  stake.  In  In  Re  Abrums,  50  >7..T.  271,  266 
A.2d  275  (1970),  a  disciplinary  proceeding  to  review  an  attorney's  conduct  of 
accepting  payment  from  a  numbers  banlcer  to  represent  those  runners  who  got 
arrested,  it  was  said  that : 

".  .  .  it  is  no  answer  that  Canon  6  of  the  Canons  of  Professional  Ethics 
permits  the  representation  of  conflicting  interests  'by  express  consent  of  all 
concerned  given  after  a  full  disclosure  of  the  facts,'  or  that  Canon  3S,  restated 
in  affirmative  terms,  would  permit  the  acceptance  of  compensation  from  others 
with  'the  knowledge  and  consent  of  his  client  after  full  disclosure.'  Neither 
rule  is  relevant  when  the  subject  mattei  is  crime  and  when  the  public  interest 
in  the  disclosure  of  criminal  activities  might  thereby  be  hindered.  It  is  inher- 
ently wrong  to  represent  both  the  employer  and  the  employee  if  the  employee's 
interest  may.  and  the  public  interest  will,  be  advanced  by  the  employee's  dis- 
closure of  his  employer's  criminal  conduct.  For  the  same  reasons,  it  is  also 
inherently  wrong  for  an  attorney  who  represents  only  the  employee  to  accept 
a  promise  to  pay  from  one  whose  criminal  liability  may  turn  on  the  employee's 
testimony." 

17.  The  statement  from  In  Re  Abrams,  supra,  at  278  that :  "Appearances  too 
are  a  matter  of  ethical  concern,  for  the  public  has  an  interest  in  the  repute  of 
the  legal  profession,'"  ^^  has  been  quoted  with  approval  in  Pirillo  and  explicitly 
rejected  in  February  1975  Grand  Jury,  supra.  Between  these  two  outer  limits 
probably  lies  the  majority  view,  but  judging  from  the  quantity  and  quality  cf 
the  discussion  the  integrity  of  the  legal  system  receives  in  these  opinions  on 
disqualification,  it  would  seem  that  it  is  not  a  matter  of  great  weight. 

state's  obligation  to  protect  individual  sights 

18.  This  matter  has  received  a  considerable  amount  of  attention  in  the 
opinions  in  a  variety  of  forms.  The  basic  application  to  the  multiple  representa- 
tion situation  is  that  if  the  state  recognizes  that  conflicts  of  interest  exist  such 
that  an  individual's  right  to  counsel  is  threatened,  it  is  the  state's  duty  to 
protect  <^he  individual.'"  To  fulfill  this  duty  the  state  can  act  to  disqualify  the 
indiA'iduals  attorney.^  As  discussed  above  with  respect  to  Garcia,  this  obliga- 
tion can  be  satisfied  b.v  the  cotirt's  proper  supervision  of  a  competent  waiver. 
It  has  also  l)een  held  that  a  motion  to  disqualify  <ni  the  .grounds  of  protecting  a 
defendant  from  being  deprived  of  conflict-free  counsel  cannot  be  granted  imless 
the  defendant  has  had  the  opportunitv  to  waive  that  right.  U.S.  y.  Arinedo- 
Sarmiento,  524  F.2d  5f)l  (20  Cir.  1975). 

10.  Coiirts  have  established  various  procedures  to  insure  that  individual's 
rights  will  be  safeguarded.  In  Fchriianj  1915  Grand  Jury,  supra,  the  court 
rejected  a  disqualification  motion  based  oil  allegations  in  the  motion  papers  and 
required  affidavits  as  a  minimum.  In  January  191!f  Grand  Jury,  supra,  after 
reversing  a  disqualification  for  lack  of  evidence  when  based  only  on  an  unre- 
corded in  camera  hearing  and  a  single  letter  from  counsel  indicating  the  intent 
of  his  three  clients  to  resist  any  immunity  offers.  The  court  said,  at  330 : 

"We  do  not  imply  that,  in  support  of  his  petition  to  disqualify  an  attorney,  it 
will  be  necessary  for  the  special  prosecutor  to  prodxice  the  witnesses  whose 


-''  As  stated  in  (irnnrl  Jurii  of  Jannnrif  31,  /P7.J,  .^uprn  -nt  lOl.i  ; 

"Thus  confrontpd  with  hypotheticais  and  lift  evidence,  with  rhetoric  and  not  fact,  the 
District iCourt  erred  in  strippin.fir  appellants  of  the  counsel  of  their  choice." 

="  Parasraphs  18-21. 

■■»>/«  i?e  Ahrnm.".  .56  N..T.  271.  26R  A. 2d  27.5   HftTO). 

M /H  Ke  Mopel.  18  App.  Div.  2d  20.3,  2."?S  N.y.S.2d  OS.*!   (1st  Dept.  1!)6:5). 

"2  This  statement  is  based  on  Code  of  Professional  Responsibility,  Canon  ft:  "A  lawyer 
shall  avoid  even  the  appearance  of  i)rofesslonnl  impropriety." 

•"•s/n  JRr  Oopman,  5.H1  F.2d  262,  205-260  (5th  Cir.,  1976). 

»« Id. 


8816 

testimony  allegedly  supports  an  inference  that  multiple  representation  will  lead 
to  contrived  "stonewallinfj"  of  the  •Avand  jury  and  frustration  of  its  purpose. 
It  would  be  acceptal)le  if.  by  ulfidavit  attaclied  to  his  petition,  the  special 
prosecutor  set  forth  the  substance  of  the  testimony,  the  salient  facts,  .supporting 
his  petiitou  for  disqualification,  without  disclosing  particulars  such  as  the 
names  of  witnesses  who  provided  such  testimony.  The  hearing  on  the  petition 
could  then  be  limited  to  whether  the  allegations  are  sufficient  to  justify  the 
disqualification  of  the  attorney  in  question.  At  least  that  procedure  would 
assure  the  affected  parties  an  opportunity  for  a  meaningful  hearing  and  an 
effective  appeal. " 

20.  Tho  court  in  April  J975  Graiul  Jury,  snpra,  required  far  more  action  on 
the  part  of  the  prosecutor  before  disqualification  could  be  granted.  The  prose- 
cutor was  faced  with  a  situation  where  one  hundr-^d  Avorl^ers  represented  by 
one  attorney  paid  by  the  union  were  making  blanliet  assertions  of  the  right  to 
silence.  The  prosecutor  moved  to  disqualify  and  require  separate  counsel.  He 
argued  that  (1)  the  current  management  was  denying  workers  adequate  repre- 
sentation,'''' and  (2)  was  impeding  investigation  by  producing  unwarranted 
assertions  of  the  Fifth  Amendment  privilege,  and  by  promoting  ■"stonewalling." 
In  reversing  the  district  court's  grant  of  the  motion  the  court  decried  'what  is 
strikingly  absent  from  the  record,"  ™  explaining, 

"*  *  *  there  is  no  testimony  or  other  evidence  in  the  record  indicating  which 
of  the  subpoenaed  witnesses  consider  Mr.  Rosen  to  be  their  personal  legal 
representative ;  how  the  witnesses  would  characterize  the  nature  of  their 
attorney -client  relationship  with  Mr.  Rosen ;  whether  they  are  personally  aware 
of  the  potential  conflicts  of  interest  inherent  in  Mr.  Rosen's  multiple  represen- 
tation ;  whether  given  such  conflicts  of  interest  they  would  still  prefer  to  be 
represented  by  Mr.  Rosen  rather  than  another  attorney;  and,  finally,  whether 
they  would  expect  to  continue  to  assert  the  privilege  against  self-incrimination 
even  if,  denied  Mr.  Rosen's  services,  they  elected  to  dispose  with  counsel 
entirely  or  to  retain  separate  and  exclusive  coxnisel."^ 

The  court  then  proceeded  to  tell  the  prosecutor  hnw  to  go  about  getting  the 
required  information. 

"These  problems  with  the  record  niiglit  liave  l)een  avoided  had  the  Govern- 
ment pursued  the  traditional  method  of  dealing  with  witnesses  who  make 
'blind,  indiscriminate  and  legally  unwarranted  assertions'  of  the  privilege 
against  self-incrimi)iation.  The  Government  could  have  l)rought  each  witness 
before  the  District  Court  for  a  ruling  with  respect  to  whether  the  privilege  was 
proiierly  asserted  *  *  *. 

"At  a  hearing  determining  the  applicability  of  the  privilege  to  particular 
questions  asked  by  the  grand  jury,  the  District  Court  would  f-ertainly  be  free 
to  inform  itself  about  the  Government's  allegations  of  conflicts  of  interest  and 
inadequate  representation  l)y  inquiring  whether  the  witness  was  represented  by 
Mr.  Rosen,  whether  the  witne.ss  was  aware  of  the  limitation  on  ilr.  Ro.sen's 
ability  to  negotiate  immunity  in  exchange  for  testimony,  whether  given  that 
limitation  the  witness  v,-ould  prefer  coun.sel  other  than  Mr.  Rosen,  and  whether 
the  witness  proposed  to  continue  to  as.sert  the  privilege  under  all  circum- 
stances." "* 

21.  The  above  procedure  is  e.ssentially  the  .same  retiuirement  of  a  formal 
hearing  on  a  motion  to  disqualify  foi-  conflicts  of  interest  as  applied  \n  other 
cases.'"  With  respect  to  the  stonewalling  proltlem.  however,  thousrli  the  court 
recognized  tlie  difficulty,  it  left  the  prosecution  with  the  grant  of  immunity  as 
its  almo.st  exclusive  remedy  in  the  situation. 

"It  seems  to  us  that  the  circumstances  of  this  case  present  precisely  the  type 
of  .situation  for  which  Congress  intended  to  provide  the  Government  with  an 
effective  tool  for  discovering  the  truth  without  risking  violations  of  the  Con- 
stitution in  the  delicate  areas  of  freedom  of  association  and  representation  by 
counsel  of  one's  choice.  As  the  Second  Circuit  has  recently  ob.served,  '[t]he 
accommodation  between  the  right  of  the  GovernnuMit  to  compel  testimony,  on 
the  one  hand,  and  the  ccMistitutional  ))rivib-ge  to  remain  silent,  on  the  other,  is 


•■''"  To  avoid  conflicts  •■inioMir  Ihc  workers'  individiuil  iiit'Tcsfs,  the  ;ittorncy  refused  to 
consult  witl)  anvone  individnall.v. 

='".'1 ;)»-;/  /.07.5  (U-niitl  J  urn.  .-ntpni  nt  fiO". 

•■>•  Id. 

■'8  Id.  at  fiOS. 

"» For  e.vaniDle,  drnntl  Jiin/  of  .Jniitioni  21.  tO~l).  .mipra  :  and  Tnitcil  states  v.  Liddil, 
.'!4S  F..Snp5i.  lOS   (D.C..  1072)'. 


8817 

the  immunity  statute.'  United  8tates  v.  Tramuntl  500  F.2d  1334,  1342,  cert, 
denied,  419  U.S.  1079,  9.5  S.Ct.  mi,  42  L.Ed.2d  673  (1974).  Until  accommodation 
in  that  manner  has  been  demonstrated  to  be  not  feasible  or  contrary  to  the 
public  interest,  it  is  surely  premature  to  seek  it  through  disqualiticJttion  of 
counsel."  *" 

22.  The  role  of  the  immunity  statute  in  the  multiple  representation  situation 
is  a  recurring  problem  which  has  not  yet  been  fully  di.scussed  in  thy  opinions. 
The  general  factual  context  is  one  where  lawyer  (L)  represents  A  and  B  and 
the  prosecutor  is  able  to  get  a  grant  of  immimity  for  either  A  or  B  and  thereby 
compel  his  testimony."  Conflicts  arise  at  two  stages.  The  first  stage  is  when 
the  pmsecutor  approaches  L  to  negotiate  immunity.  In  the  normal  situation 
where  A  and  B  have  interests  which  are  at  least  somewhat  in  conflict*^  it 
would  be  impossible  for  L  to  have  served  B's  best  interests  while  securing 
immunity  for  A.""  Secondly,  once  immunity  has  been  granted  to  A  and  the  case 
goes  to  trial,  L  is  limited  in  his  ability  to  cross-examine  A  becau.se  of  A's  right 
to  prohibit  L's  use  of  information  olitained  through  the  attorney-client  rela- 
tionship." Consequently,  there  is  a  virtually  automatic  conflict  of  interest 
inherent  in  every  multiple  representation  situation  where  an  immuni'y  statute 
is  available. 

23.  In  summarizing  the  general  multiple  representation  problem  the  "Water- 
gate Special  Prosecution  Force  said : 

"In  almost  every  investigation  which  centers  on  the  criminal  activity  of  one 
or  more  members  of  a  hierarchical  structure — whether  a  corporation,  labor 
union,  a  Government  agency,  or  a  less  formally  organized  group — the  prosecutor 
is  confronted  with  a  witness  who  has  been  called  to  testify  about  his  employers. 
Many  times,  the  witness  is  represented  by  an  attorney  who  also  represents  the 
employer  and  perhaps  is  compensated  by  him.  Althoiigh  the  legal  profession's 
Code  of  Professional  Responsibility  forbids  a  lawyer  from  representing  conflict- 
ing or  even  potentially  conflicting  interests,  lawyers  and  judges  historically 
have  been  reluctant  to  enforce  the  Code's  mandate  strictly.  They  have  taken 
the  position  that,  so  long  as  the  witness  understands  that  his  attorney  also 
represents  the  person  or  entity  about  which  he  will  be  asked  to  testify  and  that 
he  has  the  right  to  a  lawyer  of  his  own  choosing,  he  cannot  be  forced  to  retain 
new  counsel. 

"No  lay  witness,  however,  can  reali.stically  be  expected  to  apprepriate  all  the 
legal  and  practical  ramifications  of  his  attorney's  dual  loyalties,  and  in  many 
cases  he  will  be  precluded  from  giving  adequate  consideration  to  the  possibility 
of  cooperating  with  the  Government  by  the  fear  that  the  fact  of  his  cooperation 
will  be  revealed  to  his  employer.  A  mere  inquiry  by  the  judge  in  open  court 
concerning  the  witness'  preference  is  not  likely  to  elicit  a  truthful  response. 
It  is  necessary,  therefore,  for  the  court  to  InterAcne  more  directly  by  making  a 
factual  determination  as  to  the  existence  of  the  conflict  of  interest  and  then 
requiring  the  witness  to  retain,  or  appointing  for  him.  counsel  who  has  no  such 
conflict.  Although  there  will  obviously  be  great  reluctance  to  interfere  with  the 
individual's  freedom  to  select  his  own  attorney,  the  suggested  course  is  the  only 
one  that  can  preserve  the  e(iually  valid  right  of  the  Government  to  his  full  and 
truthful  testimony. 


*"  April  197.1  Grand  Jurii,  xtiprn  at  009.  Perhaps  the  problem  for  the  proseoiilor  of  hav- 
ing; to  prrant  immunit.v  blindl.v  did  not  ranch  tronble  tlae  court  because  the  facts  In  this 
case  show  that  the  trovernment  would  risk  little  b.v  doinir  so.  Because  of  the  large  number 
of  witnesses  and  the  unlikelihood  of  choosinsr  to  grant  immunit.v  to  iin  individual  who 
should  have  been  a  target,  tlio  posslbililv  of  frustratin.e:  the  Grand  Tury  investigation  was 
small.  Presumably,  this  i)roblpm  under  different  facts  could  be  used  to  demonstrate  that  a 
grant  of  immunity  was  "not  feasible  or  contrarv  to  the  public  interest." 

"The  federal  statute  IS  U.S.C.  sections  6002,  600.*?  provides  the  prosecutor  with  this 
option.  Although  immunity  grants  have  been  around  for  a  long  time,  this  general 
immunit.v  statute  was  not  enacted  until  1970.  The  newness  of  the  statute  may  explain 
the  lack  of  claritv  of  its  application  in  this  context. 

'2  As  stated  in  lica-er  v.  fiinic.  202  So. 2d  5C..S  (Fla.  19fi7)  at  566:  "Evidence,  strategy, 
and  defenses  which  benefit  one  co-defendant  usually  are  detrimental  to  the  other." 

^3  Even  presuming  that  .\  and  B  have  interests  which  are  practically  Identical,  A  has 
been  served  to  the  exclusion  of  15. 

"This  presumes  what  is  probably  the  normal  situation,  that  A  has  been  granted  im- 
munitv  because  he  has  dnmagintr  information  to  disclose,  and  that  A  is  called  in  B's  trial 
to  revenl  that  information.  See  Vniied  Rfniea  v.  ArmeiTo-f^arm'cnio,  .">24  F.2d  .591  (2d 
Cir.,  197.5)  (disnualification  reversed  because  defendant  must  be  given  the  opportunity  to 
waive  the  right  to  an  attorney  not  limited  in  cross-examination  bv  a  prior  attorney-client 
relationship)  .'md  the  A.Tj.R.  annotation  "Pronrietv  and  Preiudicial  Effect  of  Counsel's 
Representing  Defendant  in  a  Criminal  Cnse  Notwithstandinsr  Counsel's  Representation  or 
Former  Representation  of  Prosecution  Witness,"  27  A.L.R.?!d  14.S1. 


8818 

"Both  the  courts  and  the  various  bar  groups  should  be  alerted  to  the  serious 
issues  of  professional  responsibility  arising  out  of  the  representation  of  multiple 
interests  during  grand  jury  investigations,  and  Government  counsel  should 
press  on  every  justifiable  occasion  for  a  judicial  ruling  on  the  question  of 
conflict  of  interest  and,  where  n  contiict  is  found,  for  the  replacement  of  the 
uttorney  involved."  ** 


Bktef  fok  Americans  for  Eb'fective  Enfokcement  as  Amicxts  Curiae  in  Sup- 
port OF  THE  UNirEi)  States  ij.  I'XiTn:^  States  v.  Duarui.  No.  75-1^^54.  U.S. 
OouHT  OF  Appeals  for  the  Eighth  District 

interest  of  the  amicus 

Americans  for  Effective  Law  Enforcement.  Inc.  (AELE),  is  a  national, 
not-for-profit,  non-parti.san,  non-political  organization  incorporated  imder  the 
laws  of  the  State  of  Illinois.  AELE  has  received  a  tax  exempt  ruling  from  the 
Internal  Revenue  Service  as  an  educational  corporation.  As  stated  in  its  by-laws 
the  purposes  of  AELE  are:  1.  To  explore  and  consider  the  needs  and  require- 
ments for  the  effective  enforcement  of  the  criminal  law.  2.  To  inform  the  public 
of  these  needs  and  requirements,  to  the  end  that  the  courts  will  administer 
justice  based  upon  a  due  concern  for  the  general  welfare  and  security  of  law- 
abiding  citizens.  3.  To  assist  the  police,  the  prosecution,  and  the  court.s  in  pro- 
moting a  more  effective  and  fairer  administration  of  the  criminal  law. 

AELE  has  appeared  as  amicus  curiae  in  support  of  the  average  citizen's 
concern  for  the  effectiveness  of  proper  law  enforcement  on  at  least  fourteen 
occasions  in  the  Supreme  Court  of  the  United  States,  twice  in  the  Fourth, 
Seventh  and  Eighth  Circuits  and  the  Supreme  Court  of  Illinois,  and  once  each 
in  the  United  States  Courts  of  Appeals  for  the  Ninth,  Tenth,  and  District  of 
Columbia  Circuits,  and  once  each  In  the  United  States  District  Courts  for  the 
Eastern  District  of  Virginia  and  the  District  of  Maryland,  and  once  each  in 
the  Missouri  Court  of  Appeals,  the  Kentucky  Court  of  Appeals,  the  Circuit 
Court  of  Cook  County.  Illinois,  and  the  Supreme  Court  of  California. 

The  interest  of  the  amici  in  the  instant  appeal  stems  from  the  importance  of 
the  legal  and  constitutional  issues  liere  presented,  the  resolution  of  which  will 
have  a  direct  and  immediate  impact  upon  the  ability  of  law  enforcement  to 
respond  to  the  imique  challenge  of  the  dangerous  special  offender  through  a 
policy  of  incapacitation.  The  amici  hope  in  this  appeal  to  speak  now  for  those 
who  might  otherwise  be  future  victims  of  crime. 

statement  of  the  facts 

The  defendants  were  convicted  under  IS  U.S.C.  §  371  of  conspiring  to  violate 
18  U.S.C.  §  1952  by  promoting  and  establishing  an  inilawful  business  enterprise 
involving  gambling,  prostitution  and  brit)ery  in  violation  of  the  laws  of  the 
State  of  Oklahoma.  The  facts  established  by  the  Ignited  States  in  the  defend- 
ants' jury  trial  are  summarized  in  an  opinion  of  another  panel  of  this  court 
affirming  the  conviction  in  T'nitcd  States  v.  Bishop.  492  F.Ud  1361,  1362-64  (Sth 
Cir.  1974),  cert,  denied.  417  U.S.  942  (1974).  That  panel  termed  the  evidence  of 
guilt  "overwhelming."  492  F.2d  at  1365. 

Prior  to  the  trial,  the  T'nited  States  filed  with  the  court*  a  pleading  to  notify 
the  defendants  and  the  court  that  the  government  would  seek  to  have  the  court 


''WntorRato  Special  I'rosociitlon  Foroe.  licport  140-41   (107.%). 

A  linal  romlrider  to  prosecutors  Is  wortliy  of  mention  hecnnsp  It  Is  Important  to  note 
that  some  of  the  same  sorts  of  facts  which  artrne  for  distinalificatlon  also  apply  to  an 
Indivlflnal's  motion  for  a  new  trial.  Thus,  a  prosecutor  who  chooses  to  ipnore,  or  fails  to 
notice,  a  defense  attorney's  multiple  representation  and  succeeds  In  his  prosecution  may 
find  that  his  efforts  were  lareely  wasted  when  the  conylctlon  is  reversed  hecause  the 
defendant  was  denied  his  rltrht  to  effective  asslst;ince  of  counsel.  The  standards  for 
decision  In  this  area  are  not  very  dear.  v:tryln>r  from  I'liitcd  Stiiti'.s  c.r  rcl.  Ifnrt  v.  Diiroi- 
port.  47R  F.2d  20.^.  210   (.-^d  C\r'..  197X1.  where: 

"Upon  a  showing  of  possible  conflict  of  Interest  or  prejudice,  however  remote,  ^v^•  will 
repard   ioint  representation  as  Constitutionally  defective." 

To  S!tntp  v.  Monlnomrr]!,  \Vt  Mo.  .\pp.  7,  2."^.'^  .\.2d  (\1'^  M972).  where  a  determined 
.iudce  matiaced  to  explain  nwav  oltvloiis  conflicts.  See  also,  lli'^  .^.L.R.  annotation  "Cir- 
cumstances fJlvinp  Rise  to  Conflicts  of  Interest  Between  or  .Vmonp  Criminal  Co-Defendants 
Preclndliie  Renresentatioii  hv  Same  Counsel."  ?A  .\.T..T?..'?d  -170. 

1  TI»e  iilcailiu^'  was  not  filed  wilii  tlie  presiding  .iud-ie.  Inslead,  it  was  served  on  the 
defendants  and  filed  with  another  iud^e  of  the  court,  who  sealed  U  until  the  return  of 
the  iurv  verdict,  when  It  was  then  made  available  to  th(>  presiding:  .iudjre  for  proper 
disposition.  See,   l.<?  V.it.X\   5.?,')7.')(a  K 


8819 

sentence  the  defendants  as  "dangerous  special  offenders"  under  18  U.S.C.  §3575. 
Following  the  trial,  the  court  entered  a  series  of  orders  in  connection  with  the 
original  pleading  and  the  United  States'  request  for  a  dangerous  special 
offender  hearing.  Initially  the  court  ordered  the  government  to  file  with  the 
court  the  evidence  it  intended  to  rely  upon.  The  court  Ihen  found  the  original 
pleading  inadequate  and  ordered  the  United  States  to  amend  its  pleading.  It 
then  ordered  the  defendants  examined  under  18  U.S.C.  §4208 (b).  Tht-  defend- 
ants appealed  their  conviction  at  this  point,  but  it  was  atfirmed.  See,  United 
States  V.  Bishop,  supra.  Following  this  affirmance,  the  court  again  found  the 
United  States'  pleading  inadequate,  denied  leave  to  amend,  found  that  a  dan- 
gerous special  offender  sentence  could  not  consitutionally  be  imposed  based  on 
the  type  of  information  the  prosecuting  attorney  proposed  to  rely  upon,  and 
held  that  18  U.S.C.  §3575 (f)  was  unconstitutionally  vague.  The  United  States 
then  sought  to  mandamus  or  appeal  this  decision.  Another  panel  of  thi.s  court 
held  that  mandamus  would  not  lie  and  that  the  appeal  had  to  await  the  impo- 
sition of  sentence.  The  court  then  sentenced  each  of  the  dpfendants,  following 
usual  procedures,  for  a  term  of  two  years  oui  of  a  possible  five.  See.  18  U.S.C. 
§1052.  The  United  States  now  appeals  the  failure  of  the  court  to  sentence  the 
defendants  as  dangerous  special  offenders  under  18  U.S.C.  §3575. 

ISSUES  PIIESENTKD 

(1)  Did  the  United  States'  pleading  of  November  28,  1972.  give  the  defend- 
ants and  the  court  adequate  notice  that  the  United  States  would  seek  to  have 
the  court  sentence  the  defendants  as  dangerous  special  offenders  under  38 
U.S.C.  §3575? 

(2)  Consistent  with  due  process,  may  a  dangerous  special  offender  .sentence 
be  predicated  under  18  U.S.C.  §3577  on  (a)  general  information  or  (b)  evidence 
of  other  criminal  conduct  not  shown  by  a  reasonable  doubt  to  a  jury? 

(3)  Consistent  with  due  process,  does  the  standard  of  "dangerous"  inider  18 
U.S.C.  §3575 (f)  give  adequate  guidance  to  a  court  to  impo.se  a  special  offender 
sentence? 

(4)  Consistent  with  due  process  and  douiile  jeopardy,  may  the  United  States 
appeal  the  failure  of  a  court  to  impose  a  dangerous  special  sentence  under  IS 
U.S.C.  §3576? 

SUMMAKY  OF  ARGUMKNT 

Point  I 

Congress  intended  that  dangerous  special  offender  sentencing  hearings  be 
initiated  by  notice,  not  fact,  pleading.  The  United  States'  pleading  of  November 
28,  1972,  gave  to  the  defendants  and  the  court  adequate  notice  that  the  United 
States  woidd  seek  to  have  the  court  sentence  the  defendants  as  dangerous 
special  offenders.  Because  the  lower  court  misread  the  statute  to  require  fact 
pleading,  it  struck  the  United  States'  notice  as  inadequate.  This  ruling  was  in 
error  and  must  now  be  set  aside. 

Point  II 

Due  process  standards  for  sentencing  hearings  do  not  require  trial-type  rules 
and  procedures.  A  dangerous  special  offender  hearing  is  an  inquiry  into  circum- 
stances of  aggravation  in  the  commission  of  the  felony  itself,  and  not  an  inde- 
pendent proceeding,  dealing  with  a  separate  charge.  However  categorized,  the 
statutory  .standards  for  the  hearing  comply  w'th  due  process.  Such  a  hearing 
may  proceed  without  special  rules  of  evidence,  issues  may  V>e  determined  by  the 
court,  and  not  a  jury,  and  the  Ignited  States  need  only  meet  a  burden  of  pre- 
ponderance, not  heyon('  a  yvasonabie  doubt.  The  coi;rt  below  wrongfully  ev- 
cluded  coriain  types  of  information  and  evidei'.ce  per  se,  when  it  should  have 
admitted  and  then  appropriately  evali-.uod  them.  This  ruling  was  in  error  and 
mast  now  be  reversed. 

Point  JII 

A  statute  must  be  read  as  a  whole  in  light  of  its  language  and  legit-latire 
liistory  and  given,  where  possible,  a  constitutional  construction.  Congress  found 
that  special  offenders  nierlred.  as  a  class,  extended  terms.  It  then  provided  a 
safety  valve,  and  authorized  r<.urts  tum  to  impose  such  terms,  where,  on  a  case 
by  case  ba"is,  it  was  evident  that  special  offenders  pn.sed  i-n  danger  of  continued 


8820 

criminal  conduct.  The  court  below  misread  the  statute  and  then  held  its  mis- 
reading unconstitutionally  vague.  This  ruling  was  in  error  and  mu.st  now  be 
reversed. 

Point  IV 

Congress  intended  that  this  court  have  jurisdiction  to  review  failures  to 
impose  dangerous  special  offender  sentences  at  the  instance  of  the  United 
States.  Such  a  review  of  sentence  on  the  appeal  of  the  United  States  does  not 
violate  the  defendant's  due  process  rights,  since  it  cannot  be  exercised  under 
the  statutory  scheme  in  .such  a  fashion  that  it  is  vindictive.  In  addition,  such  a 
review  does  not  violate  the  principle  of  double  jeopardy,  since  it  cannot  result 
in  the  defendant  being  retried  before  the  trier  of  fact  on  a  question  of  guilt  or 
innocence,  rather  than  punishment.  Consequently,  this  appeal  is  authorized,  and 
it  is  constitutional. 

The  sentence  imposed  on  the  defendants  below  must  now  be  reversed  and  the 
lower  court  given  appropriate  guidance  in  the  holding  of  a  dangerous  special 
offender  hearing. 

THE  STATUTORY  SCHEME 

The  appeal  is  one  of  the  first  under  the  dangerous  special  offender  sentencing 
provisions  enacted  by  the  Congress  in  lf)70  as  Title  X  of  the  Organized  Crime 
Control  Act,  84  Stat.  922  et  seq.  (hereinafter  noted  as  Title  X).  Con.sequently, 
this  appeal  affords  this  court  a  unique  opportunity  to  give  an  authoritative 
interpretation  to  Title  X,  to  examine  its  constitutional  ramifications,  and  to 
give  helpful  guidance  to  prosecutors  and  the  lower  courts.  It  is  appropriate, 
therefore,  to  preface  the  argument  in  this  amicus  brief  with  a  short  background 
treatment  of  the  statutory  scheme  itself. 

Shortly  after  Senator  John  L.  McClellan  introduced  S.30,  which  ultimately 
became  the  Organized  Crime  Control  Act  of  1970,  he  discussed  the  problem  of 
organized  crime  in  the  United  States  in  an  extended  address  on  the  Senate 
floor.'  Part  of  the  address  discussed  the  general  problem  of  sentencing.  He 
observed :  "There  is  no  doubt  that  whatever  view  one  holds  about  the  criminal 
law,  its  importance  in  our  society  cannot  be  questioned.  Here  each  places  his 
ultimate  reliance  for  security.  Nevertheless,  we  must  recognize,  too,  that  the 
penal  law  contains  the  strongest  force  known  to  our  society,  a  force  which  in 
the  past  has  too  often  tended  toward  brutality.  Exercised  well,  it  accords  to 
each  security.  Exercised  ill.  it  accords  to  none  security.  How  that  power  should 
be  exercised  is  thus  a  question  of  capital  importance. 

"Traditionally,  two  tendencies  have  manifested  themselves  in  the  penal  law 
in  reaction  from  the  brutality  of  another  day,  perhaps  liest  illustrated  by  the 
philosophy  of  Draco,  who.  it  should  he  recalled,  once  lamented  that  be  knew  of 
no  penalty  harsher  than  death,  for  he  felt  the  smallest  crime  merited  it. 

"The  first  tendency,  going  back  in  modern  times  to  Beccaria's  historic  1764 
essay.  'On  Crime  and  I'unisbments,'  seeks  to  tit  the  punishment  to  the  crime. 
This  tendency  was,  of  cour.se,  rooted  in  a  desire  to  limit  the  fearful  application 
of  the  deatli  penalty,  at  one  time  the  puni.shment  for  numerous,  some  very 
petty,  offenses.  Its  overall  effect  has  been  to  narrow  not  only  the  application  of 
the  death  penalty,  but  also  to  eliminate  long  prison  terras. 

"The  second,  stemming  from  contemporary  theories  of  criminology,  seeks  to 
fit  the  punislunent  to  the  offender.  This  tendency,  of  course,  is  rooted  in  a 
desire  to  rehabilitate.  Those  who  generally  esjiouse  this  view,  however,  have 
tended  to  the  conclusion  that  crime  can  best  be  dealt  with  only  by  broad  changes 
in  our  society  and  through  intensive  work  with  juveniles,  f'nfortunately.  this 
view  has  .shown,  as  an  American  Bar  Association  study  concluded,  'little 
realistic  concern  ai)Out  the  organized  and  well-habitunted  criminals  who  inces- 
.santly  exr-loit  the  community.' 

"The  penal  codes  of  most  jurisdictions,  however,  reflect  little  of  either 
approach.  Indeed,  save  for  attempts  t-  abolish  the  death  penalty,  little  atten- 
tion at  -ill  lias  iicen  given  to  the  penalty  svrivrure  of  most  penal  codes  since 
the  turn  of  the  (century.  Penalties  vary  from  one  offen.se  to  the  next  without 
seeming  rhyme  oi   reason.  Tnconsl.stcncies  almnpd  tbronghont".'" 

There  are,  of  cour.se.  certain  exceptions  to  the  Sf>nator"s  broad  generalizations. 
The  T'ongress.  for  pyampie.  has  moved  to  deal  with  the  rehniiilitation  of  youth- 
ful offf^nder-!.  See,  er,  IS  U  S.C  s^.";nor>- -?n    It  li;is  ol.-.r.  iin>e(1  lo  n.nke  •-nf^cinl 


-'  liri  Conn.  Rpr.  .S  .js/.^  (.Uur'^li  11.  l!Mi'.)i, 


I 


8821 

provision  for  the  rehabilitation  of  narcotics  offenders/  Nevertheless,  it  remains 
largely  true  that  the  fetlercl  system  of  criminal  justice  lacks  an  overall  rational 
sentencing  scheme 

Testifying  before  the  House  Judiciary  Subcommittee  holding  hearings  on  S.30, 
f>enator  McClellan  descrilted  the  present  federal  court  system,  particularly  as  it 
affects  the  racketeer,  in  these  terms : 

"The  basic  defect  in  our  sentencing  law  has  been  that,  for  a  given  crime, 
every  offender  has  been  exrioseci  to  a  single  maximum  authorized  punishment 
set  by  the  Congress,  while  a  sentencing  court's  choice  of  a  particular  sentence 
at  or  under  that  maximum  has  not  been  reviewable  by  the  appellate  courts. 
This  defect  has  led  the  (Congress,  in  setting  maximum  sentences  for  various 
crimes,  to  establish  those  maximums  at  compromise  levels  which  reduce  the  risk 
of  abusively  high   sentences   for   ordinary   criminals,   but   are   too   lenient   to 
protect  society  by  confining  recidivists,  professionals,  and  organized  criminals. 
"Federal  and  state  racket  prosecutors  for  years  have  been   aware  of  the 
insufficiency  of  sentences  imposed  on  organized  crime  leaders.  Their  experience 
was  confirmed  recently  by  the  results  of  a  staff  study  by  the  Senate  Criminal 
Laws  Subcommittee  based  upon  sentencing  data  gathered  by  the  Federal  Bureau 
of  Investigation  .  .  .   [L]et  me  simply  mention  now  that  we  found  that  two 
thirds  of  La  Cosa  Nostra  members  included  in  the  study  and  indicated  by  the 
Federal  government  since  19G0  have  faced  maximum  prison  terms  of  only  5 
years  or  less,  and  that  nevertheless  fewer  than  one-fourth  have  received  the 
maximum  sentences,  12  percent  have  received  no  jail  terms,  and  the  sentences 
of  the  remainder  have  averaged  only  40  to  50  percent  of  the  maximums."  " 

It  was  in  this  broad  context  of  dissatisfaction  with  the  present  penalty 
structure  of  the  federal  penal  code  that  Title  X  was  proposed. 

As  finally  enacted,  Title  X  authorizes  a  federal  prosecuting  attorney  to  notify 
an  adult  felony  defendant  and  the  court  before  trial  that  the  United  States 
will  seek  to  have  the  court  impose  sentence  on  the  defendant  as  a  dangerous 
special  offender."  The  type.s  of  special  offender  are  defined :  recidivist,''  profes- 
sional offender,®  and  organized  crime  offender.*  The  concept  of  "dangerous"  is 


*  Senator  MeClelhm  was  the  jirinciiial  floor  maiiafrer  of  the  Narcotic  Addict  Rehabili- 
tation Act  of  1966,  so  Stat.  1483,  when  it  passed  In  the  Senate.  112  Cong.  Rec.  25414 
(October  6,   1966).   Urjrinfr  passajre  of  the  bill,  he  observed. 

Mr.  President,  this  iefrislalion  is  humane  and  I  believe  it  Avill  prove  effective.  It  can 
reclaim  thousands  of  lives.  It  can  begin  1e  eliminate  the  driving  hunger  for  drugs  that 
leads  so  rnanv  of  our  citizens,  particularlv  youjig  ones,  into  lives  of  crime  and  degra- 
dation. Id.  at  8.  2.5420. 

5  Organized  Crime  Control.  Hearings  before  Subcommittee  No.  5,  Committee  on  the 
Judiciary,  House  of  Representatives.  91st  Cong.,  2nd  Sess.  (1970).  p.  108  (hereinafter 
cited  House  Hearings).  The  staff  studv  referred  to  by  Senator  McClellan  appears  in  full 
at  115  Cong.  Rec.  34."S9-92  (November  17,  1969).  A  study  of  state  sentencing  practices 
in  New  York,  Avhich  shows  a  similar  p.itt<'rn  of  inexplicable  leniency,  is  reprinted  in 
Reform  of  the  Federal  Criminal  I,aw.  Hearings  before  the  Subcommittee  on  Criminal 
Laws  and  Procedures,  Committee  on  the  .Judiciary,  United  States  Senate,  92nd  Con?., 
2nd  Sess.  (1972).  pp.  4188-99.  Senator  McClellan  also  wrote  a  popular  piece  for  the 
Reader's  Digest  reviewintr  the  facts  of  a  number  of  the  sentences  in  the  federal  system 
that  were  inexplicably  lenient.  It  is  reprinted  in  House  Hearings  at  111-15.  Typical  of 
the  cases  discussed  in  the  article  is  the  sentence  of  Louis  Taglianetti.  a  "soldier"  in 
Cosa  Nostra  boss  Havmond  Patriarca's  New  England  crime  family.  Taglianetti  received 
a  seven  month  sentence  for  tax  evasion.  Ironically,  for  the  ordinary  citizens  convicted 
that  same  vear  for  tax  evasion,  the  averaire  sentence  was  ten  months.  Id.  at  U.S. 
«1S  TT.S.C.  5.'i575(a). 
•IS  U.S.C.   5.S575(e)(1). 

sis  U.S. C.   §3575(e)(2).  ,  ^    ,.,       ^^ 

"IS  U.S.C.  §r!57.".(e)  (1).  The  concept  of  "organ-zed  crime  has  been  much  like  the 
elephant  of  f.nlile  to  those  who  conducted  their  examination  of  the  beast  in  a  dark  room. 
Some  saw  nothincr,  and  decided  nothius  was  there.  See.  p.tr..  G.  Hawkins,  "God  and  the 
Mafia."  The  Public  Interest  No.  14.  Winter  1969.  I'P-  24-.51  :  compare  the  summaries  of 
wiretpps  reprinted  in  IT.  Zeiser.  Tb.e  .Tersev  Mob  (Siirnet  ed.  1975).  Others  examined  the 
phenomenon  through  the  senses  of  an  anthropologist,  and  saw  not  a  conspiracy,  but  a 
social  svstem  See.  e  g  ,  F.  lanni,  A  Familv  Business  (Simon  and  Shuster  1972).  Others 
looked  onlv  at  press  accounts,  and  saw  it  in  public  relations  terms.  I).  Smith,  The  Matia 


Mvstique  (Basic  Books  1975).  Others  looked  at  it  as  an  organizational  theorist,  and 
saw  its  special  charnctor  in  its  functional  division  of  labor.  D.  Cressey.  Thett  _ot  a 
Nation    (Harper  and   Row   1969).    Some   examined    it  as   a    law.ver,    nnd  saw   u   as     con- 


Mafia   fLa  Cosa  Nostra  was  termed  onlv  the  "core"  of  organized  crime.  Task  Horce  at  U. 

other  croups  were  reco-nized  to  be  involved),  but  with  conspiratorial  criminal   behavior, 

when 

for 

Ibi 

No    91-617    91st  Cong,   1st  Sess.    (1969),   p.   165    (hereinafter  cited  Senate  Report) 

(Contini?ed) 


8822 

also  clefiiifd.'"  The  court  must  hold  a  full  hearing  on  the  dangerous  special 
ofifender  notice  with  a  substantial  presentence  report,  disclosure,  right  tc  coun- 
sel, compulsorj'  process,  and  cr.-s.-;  examiiifition."^  After  findings  and  a  statem<'ur 
of  reasons,  the  court  may  impose  an  extended  term,  not  disproportionate  to  the 
underlying  offense  and  not  to  exceed  twenty-five  j'ears.'"  Title  X  also  authoi-izes 
appellate  review  of  the  sentence  at  the  instance  of  either  the  defendant  or  the 
United  States/^  and  it  coaifles  the  right  of  a  federal  court  to  consider  the 
fullest     information     possible    in    determining    an    appropriate     sentence.'' 

As  such.  Title  X  implements  in  principle  recommendations  of  the  American 
Bar  Association.'^  the  National  Council  on  Crime  and  Delinquency,'"  the  Ameri- 
can Law  Institute,"  the  President's  Commission  on  Crime  and  the  Administra- 
tion of  Justice,"'*  the  National  Commission  on  Reform  of  Federal  Criminal  Law  ^" 
and  the  United  States  Judicial  Conference""  that  the  Congress  should  authorize 
one  maximum  sentence  for  ordinary  offenders  and  a  greater  maximum  for  the 
more  dangerous  type  of  offender.  Furthermore,  it  continues  in  another  area  the 
work  of  such  pioneer  legislation  as  the  youthful  offender  and  narcotic  addict 
provisions  of  present  law. 

ARGUMENT 

I.  The  United  States  pleading  of  November  28.  1072.  gave  the  defendants  and 
the  court  adequate  notice  that  the  United  States  would  seek  to  have  the  court 
sentence  the  uefendauts  as  dangerous  special  offenders  -under  18  U.S.C.  §3575. 

Title  X  authorizes  the  attorney  for  the  United  States  to  file  with  the  court  a 
"notice,"'  when  ifc  seeks  to  have  a  dangerous  special  offender  sentence  imijosed. 
The  language  of  the  statute  must  be  sharply  contrasted  with  Rule  7  of  the 
Federal  Rules  of  Criminal  Procedure,  which  requires  indictments  to  be  "a  plain, 
concise  and  definite  written  statement  of  the  essential  facts  constituting  the 
offea.se  charged."'  ("Emphasis  added.)  The  contrast  between  the  language  of 
Title  X  and  Rule  7  casts  into  sharp  relief  the  intent  of  Congress  to  utilize  a 
system  of  "notice"  rather  than  '"fact"  pleadings  to  initiate  dangerous  special 
offender  hearings. 

The  pleading  filed  by  the  United  States  on  November  28,  1972,  gave  to  the 
defendants  and  the  court  all  of  the  "notice"  required  by  Title  X.  The  "notice," 
in  relevant  part,  read  as  follows  : 

"Now  comes  the  United  States,  by  and  through  its  attorneys,  Bert  C.  Hum, 
United  States  Attorney  for  the  "Western  District  of  Missouri,  and  Gary  Corn- 
well,  Special  Attorney,  United  States  Department  of  Justice,  who  are  charged 


(Continuod) 

This  provision  is  dosi^nrd  to  doal  primarily  with  the  orjranizerl  crime  offender.  Those 
who  personally  play  or  are  to  play  leadershijt  roles  or  are  the  enforcers  or  executors  of 
violence  are  sinfrled  ont  for  social  senteiicinsr  treatment.  Those  who  irive  and  those  who 
receive  bribes  are  also  covered.  The  word  "hril)e"  is  not  nsed  in  a  narrow  or  technical 
sense,  and  should  be  interpreted  broadly.  The  dfjrree  of  aa-sravation  in  tlie  sentence  in 
each  case  must  he  determined  by  the  court  from  all  the  facts  and  cireumstances  in  the 
context  of  these  statutory  stand.-irds  and  witliin  the  outside  limits  of  the  penalty  range. 
The  sophistication  of  the  orfranization.  its  division  of  labor,  the  complexity  of  its  goals, 
and  its  contemplated  time  si)an  .are  all  factors  to  consider. 

i"l,S  U.S.C.  S.^.'iT.off). 

"18  U.S.C.    8.^575 (b). 

'2  Ibid.  The  concept  of  proportionality  here  is  "iudicially  determined.''  Final  Report 
of  the  Nation;i!  Commission  on  Tteform  of  Federal  Criminal  Law  (IftTlV  p.  44."'.  Hiereln- 
after  cited  Reform  Commission).  In  the  usual  case,  this  would  mean  that  the  extended 
term  could  not  be  more  tlian  regular  term.  i.e..  in  this  case,  where  IS  U.S.C.  §19.52 
.■nithorizes  H  ye.nrs,  the  extended  tei-m  could  not  Vie  more  than  r>  years,  for  a  tot.-il  of  10. 
For  a  eene'-.ol  discussion  of  the  c(uicei)t  of  proportionalit v,  see  the  remarks  of  Congress- 
man Richard  V'.ff  in  110  C.ng  Rec.  :i.5290-ri.<^  fOctoIt.M-  7.  1070).  Congressman  PoflT.  tlie 
second  rankint'  member  of  tli(^  minority  oti  the  House  .Judiciary  Commlltee  in  1070  was 
a  maior  force  in  the  House  he;,rings"  and  his  bil!  H.R.  10215,  01st  Cong..  2nd  Sess. 
CSeiitemher  15.  1070).  served  .as  (lie  model  for  the  iunendments  made  in  the  House 
.Tiidiciary  Committee  to  .S.  HO  as  it  n.nssed  the  Senate.  Consecpiently.  his  statements  on 
the  floor"  of  the  House  take  on  sjiecial  meaning  in  understanding  legislative  intent. 

in  1.'5  U.S.C.   §;{57r.. 

"l.s;   V  f^.C.    5.S.577. 

i"AP.A.  .'Standards  Relating  to  i^'enf.ncing  Alternatives  and  rrocedurcs  §§;M  and  ri.."? 
(Approved   l">raft.   10<;'=:)    Mierein^ifter  cited  A.B.A.   Standards). 

'"Model    Sentencing  Act    S.'    HOr,.-^). 

"Mod.'l    P.-nnl    Code   U.O,^.    (Oilicial    Draft    100.2). 

'"The  Chnllenge  of  Crime  in  ;■.  Free  Societv.  Tlie  Report  of  the  President's  Commission 
on  law  Enforcement  and  Adminisf ration  of  .Tiistice  riOr>7)  PI).  14S.  20.'?  (hereinafter 
cited   President's   Crime   Coniiutssion) . 

'"Reform  Commission  at  44.S. 

="  House  Renori  No.  01-1540.  01st  Cong..  2nd  Sess.  (1070).  ]>.  74  (hereinafter  cited 
House    Report). 


8823 

with  the  prosecution  of  the  above  named  defendants  before  the  United  States 
Edstrict  Court  for  ihe  Western  District  of  Missouri  for  allege(!  violations  of 
18  U.^.C  §§371  and  1952.  which  are  felonies  commitred  when  the  defendnnts 
were  each  over  the  age  of  21  years,  and  hereby  hies  this  notice  with  the  Court, 
in  comTiliuxice  with  ihe  provisions  of  IS  XJ.S.C.  $3575 (a),  stating  that  upon 
conviction  for  said  felo'xies  <^hese  defendants  are  each  subject  to  the  imposition 
of  sentence.'--  under  IS  TJ.S.C.  §3575 (h)  as  dangerous  special  offenders. 

"We  do  believe  that  said  defendants  are  dangerous  special  offenders  for  the 
reason  that  such  felonies  constituted,  and  were  committed  by  defendants  in 
furtlierance  of  v.  conspiracy  with  tbrpe  or  more  jiersons  to  engage  in  a  pattern 
of  conduct  criminal  under  the  lav/s  of  the  United  States,  and  the  State  of 
Oklahoma,  and  the  defendants  agreed  to  and  did  organize,  plan,  finance,  direct, 
manage  and  supervise  all  or  part  of  such  illegal  condu'^t  and  activities,  and 
agreed  to  give  and  receive  a  bribe  and  to  use  force  as  part  of  stich  cortduet,  all 
within  the  nieaning  of  §3575  (e)  (3)  of  Title  IS,  United  Statps  Code" 

As  Title  X  requires,  the  pleading  gave  to  the  defendants  nnd  the  court 
"notice"  of  the  United  States'  intention  to  seek  the  imposition  of  an  extended 
term.  The  pleading  "specified"  that  the  defendants  were  dangerous  special 
offenders.  It  then  "particidarized,"  into  which  of  the  three  caiegtu'ies  of  danger- 
oiir  special  offenders  the  defendants  fell  and  the  reason  why,  absent  mitigaling 
factors,  the  United  Sta^^es  believed  the  defendants  were  dangerous  special 
offenders. 

The  court  below — understan.dably — rais'ead  the  intent  of  Title  X."^  The  pro- 
ceedings envisioned  by  Title  X.  of  course,  were  Jiew.  Following  past  practices 
and  modes  of  thought,  the  court  read  Title  X  as  if  it  authorized  tlie  filing  of  a 
plead'ug  'in  the  nature  of  an  indictment."  Consqeuently,  the  court  failed  to  see 
the  significance  of  the  word  "notice"  and  read  the  phrase  "setting  out  with 
particularity  the  reasons"  ?s  if  it  referred  to  facts?,  rather  than  the  categories 
.if  different  dangerous  special  offeoders  under  subsection  fe).  As  noted  above, 
of  course,  this  was  a  misreading  of  the  stature. 

Having  so  constructed  Title  X  to  require  "fact"  pleading,  the  court  then 
found  the  Xovember  28  pleading  defective,  and  it  ordered  the  United  States  to 
file  an  "amendment."  The  statute,  of  course,  permits  amendments,  i.e..  the 
addition  of  new  specific  categories  of  special  offcndei's,--  to  be  tiled,  "a  reason- 
able time  l)efore  trial  or  acceptance  by  the  court  of  a  plea  .  .  ." ""  Since  that  was 
no  longer  possible,  this  pleading  had-to  be  struck. 

To  say  that  the  court  erred  in  its  reading  of  Title  X  is  not  to  .say  thai  its 
in.stincts  were  unsound.  Obviously,  the  defendants  could  not  be  expected  to 
defend  themselves  in  a  dangerous  special  offender  hearing  based  solely  on  the 
notice  filed  by  the  United  States.  "What  the  defendants  should  have  done,  ho\\- 
ever,  was  to  move  for  the  filing  of  a  "supplementary  pleading  in  the  nature  of 
a  bill  of  particulars."  The  court  was  authorized  to  order  such  a  pleading-'  and 
the  hearing  i^houTd  have  then  proceeded  on  that  basis.  Striking  the  pleading, 
on  the  other  hand,  was  a  reversible  error  which  this  court  mus!  now  correct. 

II.  Consistent  with  due  process,  a  dangerous  special  offender  sentence  may 
be  predicated  under  IS  U.S.C'.  §3577  on  (a  I  general  information  or  (b)  evidence 
of  other  criminal  conduct  not  shown  by  a  reasonable  doubt  to  a  .iury. 

IS  U.S.C.  §3577  provides  that: 

Xo  limitation  shall  be  placed  on  the  information  concerning  the  background 
character  and  conduct  of  a  person  convicted  of  an  offense  which  a  court  of  the 


-'^  The  Conrfs  misreadlnc  of  the  statute  was  occasioned  in  part  by  the  similar  mis- 
reMflinir  of  Judge  Hunter  in  T'liiteifT  i.^tatrif  v.  Kellif.  10  Crini.  Law  Rejitr.  2100  (November 
S,  1974).  an  aiipral  of  which  is  now  ppiidinsr  In  this  court. 

-For  example,  suppose  after  havina:  filed  the  pleadinjr  in  this  case,  hut  prior  to  verdict 
or  plea,  the  United  States  had  learned  that  one  of  the  defendants  also  qualified  as 
dangerous  special  offender  because  he  was  -i  reciilivist.  Tt  would  then  have  been  open  to 
tlie  United  States  to  file  an  amendment  adding  paragraph  (1)  to  the  notice  that  then 
onlv   included   paragraph    (H). 

="  The  lecrislative  historv  of  Title  X  makes  it  clear  that  "the  notice  is  freely  amendable" 
hut  the  riarht  to  amend  must  l)e  made  within  the  framework  of  the  "reasonable  time" 
limitation.   Senate   Report  at    162. 

"«  Rule  ,")7fb)  of  the  Federal  Rale^;  of  Criminal  Procedure  provides  that  if  "no  proce- 
ilure  is  specific.nllA'  preserihed  ....  the  court  may  proceed  in  anv  lawful  manner  not 
inconsistent  with"  tlie  Rules  themselves.  The  Ortranized  Crime  Control  Act  of  1970, 
althoucrh  carefnllv  drafred.  did  not  snecifv  all  of  the  modes  of  procedure  for  its  imple- 
mentation in  the  coiirfs  For  example,  the  Supreme  Court  has  only  recently  amended 
Rule  7(cU2)  andictment  and  Information)  and  Rule  .S2(b)(2)  (.Tudement)  to  accom- 
modate the  new  concent  of  •'ciimin:'!  forfeiture"  introduced  in  the  federal  system  by 
Title  IX  of  the  Act.  As  the  need  r-'-^ses.  the  Court  can  be  expected  to  promulgate  new 
rules  in  this  area.  too.  Until  th.nt  time.  Rule  r>7fh)  can  accommodate  the  necessary 
procedural  innovations  required  by  Title  X. 


8824 

United  States  may  receive  and  consider  for  the  purpose  of  imposing  an  appro- 
priate sentence. 

This  provision,  enacted  as  part  of  Title  X.  is  little  more  than  a  statutory 
codification"^  of  the  due  process  principles  for  sentencing  enunciated  by  the 
Supreme  Court's  landmark  decision  of  Williams  r.  New  York,  337  U.S.  241 
(1940). 

In  WilliamH,  the  Supreme  Court  literally  faced  a  life  or  death  issue.  The 
defendant  was  convicted  of  first  degree  murder  with  a  jury  recommendation  of 
life.  The  trial  judge  n-viewed  a  wide  spectrum  of  informatioii  were  allegations, 
supported  in  part  by  evidence,  but  not  proven  in  the  context  of  a  criminal  trial, 
that  the  defendant  had  committed  thirty  other  burglaries.  In  addition,  the 
probation  report  termed  the  defendant  a  "menace  to  society."  The  judge  did 
not  follow  the  recommendatiori  of  the  jury ;  he  sentenced  the  defendant  to 
deatii.  The  defendanr,  appealed,  challengiug  his  sentence  on  due  process  grounds. 
In  an  opinion  by  Mr.  Justice  Black,  the  Supreme  Court  affirmed  the  sentence. 
Following  are  key  quotes  from  the  Court's  opinion  : 

••Tribunals  passing  on  the  guilt  of  a  defendaut  always  have  been  hedged  in 
by  strict  evidentiary  procedural  limitations.  But  both  before  and  since  the 
American  colonies  became  a  nation,  courts  in  this  country  and  in  England 
practiced  a  policy  under  which  a  sentencing  judge  could  exercise  a  wide  dis- 
cretion in  the  sources  and  types  of  evidence  used  to  assist  him  in  determining 
the  kind  and  extent  of  punishment  lo  be  imposed  within  limits  fixed  by  law. 
Out-of-court  atfidavits  have  been  used  frequently,  and  of  course  in  the  smaller 
communities  sentencing  judges  naturally  have  in  mind  their  knowledge  of  the 
personalities  and  backgrounds  of  convicted  offenders.  A  recent  manifestation 
of  the  historical  latitude  allowed  sentencing  judges  appears  in  Rule  '.s2  of  the 
Federal  Rules  of  Criminal  Procedure.  Thai  rule  provides  for  consideration  by 
federal  judges  of  reports  made  by  probation  officers  containing  information 
about  a  convicted  aefendant.  including  such  information  'as  may  be  helpful 
in  imposing  sentence  or  in  granting  probation  or  in  the  correctional  treatment 
of  the  defendant  *  *  *.  337  U.S.  at  246. 

******* 

"In  a  trial  l)efore  verdict  the  issue  is  whether  a  defendant  is  guilty  of  having 
engaged  in  certain  criminal  conduct  of  which  he  has  been  specifically  accused. 
Rules  of  evidence  have  been  fashioned  for  criminal  trials  which  narrowly  con- 
fine the  trial  contest  to  evidence  that  is  .strictly  revelanr  to  the  particular 
offense  charged.  These  rules  rest  in  pnrt  on  a  necessity  to  prevonr  a  time- 
consuming  and  confusing  triiil  of  collateral  issues.  They  were  also  designed  to 
prevent  tribunals  concerned  solely  with  the  issue  of  guilt  of  a  particular  offense 
from  being  influenced  to  convict  for  that  offen.se  by  evidence  that  the  defendant 
had  habitually  engaged  in  other  misconduct.  A  sentencing  judge,  however,  is 
not  confined  to  the  narrow  issue  of  guilt.  His  task  within  fixed  statutory  or  con- 
stitutional limits  is  to  determine  the  type  and  extent  of  punishment  after  the 
i.ssue  of  guilt  has  been  determined.  Highly  relevant — if  not  es.sential — to  his 
selection  of  an  appropriate  sentence  i.s  the  possession  of  the  fullest  information 
possible  concerning  te  defendant's  life  aiid  characteristics.  And  modei'n  concepts 
individualizing  puni.shment  have  made  it  all  the  more  necessary  that  a  sentenc- 
ing judge  not  be  denied  an  opportunity  to  obtain  pertinent  information  by  a 
requirement  of  rigid  adherence  to  restrictive  rules  of  evidence  properly  appli- 
cable to  the  trial.  .  .  .  The  belief  no  longer  prevails  that  every  offense  in  a  like 
legal  catesory  calls  for  an  IdenMcal  punishment  without  regard  to  the  past 
life  and  habits  of  a  particular  offender.  Id.  at  247. 

******* 

"Under  the  practice  of  individualizing  punishments,  investigational  tech- 
niques have  been  an  important  role.  I'robation  workers  making  reports  of  their 
investigations  have  not  iieen  trained  to  prosecute  but  to  aid  offenders.  Their 
reports  have  been  given  a  higli  vahie  by  conscientious  judges  who  want  to 
sentence  persons  on  Ihe  best  available  infonnation  rather  than  on  guesswork 
and  inadequate  information.  To  deprive  sentencing  judges  of  this  kind  of 
information  would  undermine  modern  penological  procedural  policies  that 
have  been  cautiou.sly  adopted  throughout  the  nation  after  careful  considera- 
tion and  experimentation.  We  must  recognize  that  most  of  the  information  now 
relied  upon  by  judges  to  guide  them  in  the  intelligent  imposition  of  sentences 


^^Spnate  Report  at  lfi7  :  House   Kepoit  at  (>?.. 


8825 

would  be   unavailable   if  information  were  restricted   to   that   given  in   open 
court  by  withesses  subject  to  cross-examination.  Id.  at  249-50. 

"The  due  process  clause  should  not  be  treated  as  a  device  for  freezing  the 
evidential  procedure  of  sentencing  in  the  mold  of  trial  procedure."  Id.  at  251. 

Williams  v.  New  York  was  followed  in  the  Supreme  Court  ten  years  later 
by  Williams  v.  Oklahoma;  the  Supreme  Court  once  again  had  a  death  case, 
Williams  was  convicted  of  murder,  35S  U.S.  576  (1959).  and  sentenced  to  life. 
He  then  pled  guilty  to  kidnapping  growing  out  of  the  same  transaction.  At 
the  time  of  sentencing,  the  State's  Attorney  outlined  Williams'  background 
in  an  unsworn  statement.  It  included  an  extensive  criminal  record.  The  court 
sentenced  Williams  to  death.  He  appealed,  cliallenging  his  sentence  on  due 
process  grounds.  The  Supreme  Court  affirmed  the  sentence.  Included  among 
the  alternative  grounds  on  which  the  Court  relied  w^as  Williams  v.  New  York. 
358  U.S.  at  584. 

More  recently,  Williuins  v.  New  York,  .>38  U.S.  at  584  in  Spccht  v.  Patter- 
son, 386  U.S.  (505,  60S  (1967) . 

The  principle  of  Williams — that  a  sentencing  judge  is  not  limited  by  trial- 
type  due  process  standards — is,  of  course,  not  without  limitations.  Informal 
procedures  may  be  consistent  with  due  process,  but  they  must  not  be  infected 
with  'materially  untrue  assumptions,'  Townsend  v.  Burke,  334  U.S.  736  (1948) 
(reliance  on  materially  false  prior  record  challenged  by  defendant)  ;  and  no 
reliance  may  be  placed  or  a  fact  established  by  informal  procedures  based  on 
another  proceeding  that  was  fundamentally  defective  on  constitutional  grounds, 
United  States  v.  Tucker,  404  U.S.  443  (1972)  (reliance  on  previous  convictions 
to  establish  prior  robberies  where  defendant  was  uncounseled).  The  Williams 
principle,  therefore,  goes  to  the  type  of  evidence  on  which  a  court  may  permis- 
sibly rely  under  the  due  process  clause,  where  no  challenge  is  made  to  the 
accuracy  of  the  information.  Significantly,  such  a  challenge  was  not  made  in 
Williams  p.  Neiv  York,  358  U.S.  at  244,  or  in  Williams  v.  Oklahoma,  358  U.S.  at 
580.  Where  such  a  challenge  is  made,  presumably  the  duty  of  the  court  is  to 
hold  a  hearing  to  resolve  it,  but  not  to  exclude  the  evidence  altogether  on  the 
grounds  that  it  mif/ht  be  "inaccurate." 

While  not  challenging  the  continuing  validity  of  Williams  v.  New  York  as 
indeed  it  could  not — the  court  below  sought  to  classify  the  dangerous  special 
offender  sentencing  hearing  with  the  sort  of  proceeding  condemned  by  the 
Supreme  Court  in  Specht  v.  Patterson,  386  U.S.  605  (1967).  In  Spechi,  the  Court 
had  before  it  the  Colorado  Sex  Offenders  Act,  Colo.  Rev.  Stat.  Ann.  §§39-19-1 
to  10  (1963).  It  provided  that  where  one  was  convicted  of  a  .sex  offense,  he 
could  be  held  for  an  indeterminate  term  from  one  day  to  life  "without  notice 
and  full  hearing."  386  U.S.  at  607.  The  post-conviction  allegations  in  Specht 
were  held  to  constirute  a  new  criminal  charge,  separate  and  distinct  from  the 
criminal  conviction,  which  only  triggered  the  new  sex  offender  proceedings. 
The  Court  observed :  'The  Sex  Offenders  Act  does  not  make  the  commission  of 
a  specified  crime  the  basis  for  sentencing."  386  U.S.  at  608.  In  Title  X,  in  con- 
trast, the  dangerous  special  offender  criteria  measure  facts,  which  aggravate 
the  penalty  for  the  offense  itself.""  Under  Title  X,  the  conduct  embraced  within 
the  criteria  must  be  factually  related  to  the  felony  for  which  sentence  is  im- 
posed, and  the  Supreme  Court  has  indicated  in  numerous  cases  that  such  facts 
do  not  relate  to  a  separate  criminal  charge.  Grijger  v.  Burke,  334  U.S.  728,  732 
(IMS)  ;  Graham  v.  West  Virqinia.  '224  U.S.  620.  625  (1912)  :  Moore  v.  Missouri. 
159  U.S.  673,  677  (1895).  Title  X  poses,  in  Specht's  language,  "a  distinct  issue," 
386  U.S.  at  610,  quoting  Graham,  224  U.S.  at  625,  but  it  does  not  constitute  a 
separate  charge.  Consequently.  Title  X  falls  within  the  sentencing  rationale  of 
Williams  and  not  the  independent  proceeding  rationale  of  Specht. 

Even  assuming  Speehr  applies  to  Title  X.  it  does  not  follow  that  Title  X 
would  be  much  the  worse  for  the  encounter.  Strictly  speaking,  ail  Spechi.  held 
was  that  the  absence  of  any  provision  for  notice  and  hearing  made  the  Colorado 
statute  unconstitutional.  Its  dicta,  moreover,  are  not  as  expansive  as  the  lower 


^  The  JeKislativp  bistorv  on  this  point  is  overwhelmiiifi:.  See  Senat/  Rcoort  at  16;> : 
'•The  reoulronip'irs  ot  fipecht  v.  Potfcrson  ...  are  innpplientbl'^.  since  no  separate  charge 
tri<'Kered  bv  an  indrnerident  offense  is  at  issue.  Only  circiimstu ncer.  of  aesrs'vation  of  the 


8826 

court  assumed.  Spechi  says  nothing  about  a  jurj'  trial  or  the  reasonable  doubt 
standard,  and  it  is  not  clear  that  its  reference  to  confrontation  need  be  read  to 
mean  trial-type  tonfrontation."'  The  crucial  dicta  of  the  Court  were : 

"Due  process  .  .  .  reciuires  that  .  .  .  [the  defendant]  be  present  with  counsel, 
have  an  opportunity  to  be  heard,  be  confronted  with  witnesses  against  him, 
have  the  right  to  cross  examine  and  to  offer  evidence  of  his  own.  And  there 
must  be  findings  adequate  to  make  meaningful  any  appeal  that  is  allowed."  386 
U.S.  at  010. 

Tested  by  this  language,  Title  X  passes  constitutional  muster.  Even  though 
Specht — type  due  process  standards  were  not  constitutionally  compelled,  they 
were  statntorially  adopted.  Title  X  provides  for  notice,  hearing,  counsel,  com- 
pulsory process,  cross  examination,  findings  of  fact,  statement  of  reasons  and 
appeal. 

The  judgement  reflected  in  Title  X,  that  the  Court  and  not  the  jury  should 
sentence  on  the  basis  of  all  available  information,  evaluated  against  a  pre- 
ponderance of  the  information  test,  moreover,  reflects  the  best  judgment  of 
those  who  have  spent  the  better  part  of  their  professional  lives  studying  how 
to  make  our  nation's  .system  of  sentencing  more  rational. 

In  1967,  the  I'resident's  Crime  Commission  called  for  'extended  prison  terms" 
for  convicted  "supervisory  or  other  management"  personnel  in  an  "illegal  busi- 
ness" based  on  "the  evidence,  presentence  report  or  sentence  hearing."  "*  Its 
Task  Force  on  the  Courts  recognized  the  need  for  "fuller  participation"  l)y 
counsel  on  the  "question  of  sentence."  but  explicitly  rejected  the  notion  of  a 
"full  trial"  and  sought  to  achieve  the  goal  "without  encumbering  the  sentencing 
proceedings  with  rigid  evidenciary  rules  and  formal  procedures."  ^ 

The  American  Law  Institute's  ]Model  Penal  ('ode  i)i  Sectiori  7.03  would 
authorize  extended  terms  for  certain  typos  of  offenders.  The  extended  term 
issue  would  be  tried  to  the  court  rather  than  a  jury.^"  The  standard  for  proof 
would  be  to  the  satisfaction  of  the  court,  and  not  beyond  a  reasonable  doubt.''^ 

The  A.B.A.  Standards  on  Sentencing  follows  a  similar  approach.  When  it 
adopted  the  informal  sentencing  model  and  rejected  the  trial-type  analogy,  it 
observed : 

"[T]he  Advi.sory  Committee  fails  to  see  why  the  method  of  the  criminal  law 
as  employed  at  trial  must  be  carried  over  into  the  sentencing  phase,  or  if  it 
must,  why  the  procedure  for  sentencing  repeat  or  dangerous  offenders  is  the 
only  case  where  this  must  be  so.  No  constitutional  questions  are  raised  in  the 
normal  sentencing  case  wliere  the  trial  judge  considers  the  contents  of  a  pre- 
sentence report  without  providing  the  defendant  \\ith  direct  confrontation  of 
all  who  contributed  background  informati(m.  See  WiUiams  v.  Xew  York,  337 
U.S.  241  (1049).  And  factual  disputes  which  arise  in  the  imposition  of  a 
normal  term  are  resfilved  daily  by  the  judge  without  the  creation  of  any  such 
difficulty. 


27  Spp  the  testimony  ^)f  then  Professor  Henry  Ruth  of  the  University  of  Pennsylvania 
Law  School,  now  Special  Prosocnfor,  when  he  testified  before  the  Subcommittee  on 
rrimiiKtl  I/nvs  and  I'locedures  :  .li:sti<(»  Doui:las'  ojtiiiion  for  tlif  Court  in  i^in'<lit  "si'd 
tlie  word  "confrontation"  bnt  it  "did  not  equate  "confrontation'  tl'e  same  in  the  sentence 
heariiijr  with  confrontation  at  a  trial."  Organized  Crime  Control.  Hearinjrs  before  the 
Subcommittee  on  Criminal  Laws  and  Procedures,  Committee  on  the  .Judiciary,  U.S.  Senate, 
01st  Cone..  1st  Sess.    (lOCO)    at   ;U.")    (hereinafter  cited  Senate  Hearings'). 

-« President's   Crime   Commission   at   20r!. 

-"'Task  Force:  Couris.  Task  Force  on  Administration  of  .Justice.  The  President's  Com- 
mission  on   Law  ICnforcement  and  Administration   of  .Justice.   i>.   20    (1967'i. 

■•"'The  Commentary  to  Tentative  Draft  No.  2,  p.  42   (A.L.I.   10.'")4)    observes: 

In  so  far  as  fthe  Cod4'l  calls  for  a  court  determination  rather  than  a  iury  verdict  on 
the  question  of  .  .  fthe  grounds  for  the  ext<'uded  lerm].  the  draft  departs  from  the 
most  usual  procedure  under  the  present  habitual  offender  laws.  Soni.-  states  now  provide, 
however,  for  determin.'itlon  of  the  issue  by  the  court.  .Vud  since  the  issue  bears  entirely 
on  the  nature  of  the  sent'-nce,  rather  than  on  iriiilt  or  innocoucp.  we  s'o  no  reason  why 
a  .iurv  trin!  should  be  accorded  in  a  system  when  questions  of  sentence  otherwise  nro 
for  determinatios!  by  loo  court. 

At  least  elirht  .<t;ies.  moronver,  now  follow  the  practice  of  having  the  conn  rather 
than  the  iurv  di  terrni/ir  tlie  facts  on  whlcli  nn  extended  term  is  predlcat,id.  S.^e  Yafes  v. 
S'tnir.  24.")  Aia.  4ft<i.  17  So/Jd  777  (  i!i44  i  :  T\ai>.  Srat.  Ann.  S  21- 4.">04  '107."^):  La.  llev. 
Srnt  Ann.  s  5  •">  :i2i).1  f  H)  Mi).',!})  :  Alinn.  Stat.  Ann.  SfiOHlO  (inr,4):  Mo.  Kev.  Stat 
S.^.'".r..2R0(21(ji'.)."'.!))  :  Neb  Pev.  Stat  529-222 1  f2W1072)  ;  Nev.  K  "  .  Stnt.  §207.nir(41 
(lf)71):   Oro,   Rev.    Stat.    ;-5l01.72r),    ]'^1.7.''.:T    MfiTri^.  ^     ^   ^. 

31  Model  lennl  Code  S1.12f4Wb.  {("XKcial  Draft  10fi2).  See  Comieontnrv  to  Tentative 
Draft  No.  4,  p.  114  (lf«r;;.\  ("T..  vlie  extent  that  It  permit^  a  imiiing  that  will  result  ir. 
increase  of  s-iiiciice  upon  !^ss  ihan  pr-.i."  beyond  a  reasonable  doiii>r  *  *  *  fit  nev(>rtneless  | 
nfTords  an  adequate  prot(cHon   *   •    *"i. 


8827 

"If  it  can  be  assumed  that  there  is  no  constitutional  diflBculty  with  the  basic 
structure  of  a  sentencing  pri.cednre  wiiich  uses  the  presentence  report  and 
which  proceeds  less  formally  than  does  the  hearing  on  the  question  of  guilt, 
the  issue  can  be  considerably  Jiarrow.  Presently  the  judcre  is  left  completely  at 
large  in  making  the  sentencing  decision,  although  he  is  expected  to  act  in  a 
manner  that  is  responsive  to  a  factual  picture  of  the  defendant  which  is  con- 
veyed to  him  by  this  less  formal  procedure.  The  issue  thus  comes  down  to 
whether  providing  standards  liy  way  of  findings  to  precede  the  imposition  of  a 
particularly  serious  sentence  necessarily  invokes  a  change  in  the  required 
procedure.  The  Advisory  Committee  would  agree  with  the  conclusion  of  the 
revisers  of  the  Minnesota  laws  that  the  method  of  the  criminal  trial  need  not 
be  invoked  for  that  reason.  See  Mit^n.  Stat.  Ann.  §609.155  (1964)  (Comments, 
at  148-49).  It  would  indeed  be  ironic  if  procedural  due  process  required  the 
absence  of  legislative  guidance  in  order  for  the  sentencing  proceeding  to  be 
informal.  The  Advisory  Committee  is  confident  that  such  a  result  need  not 
follow."   (Emphasis  in  original).^" 

Presently,  state  courts  set  extended  sentences  without  apparent  difficulty 
under  statutes  similar  to  Title  X.  See.  e.g.,  State  v.  Losieau.  184  Neb.  178, 
166  N.W.2d  ^^06  (1969)  ;  State  v.  Piri,  295  Minn.  247,  204  N.W.2nd  120  (1973). 
There  seems  to  be  no  apparent  reason  why  the  federal  system  could  not  profit 
by  their  example. 

The  tnited  States  below  offered  two  types  of  information  to  justify  its  belief 
that  the  defendants  were  dangerous  special  offenders:  (a)  general  information 
linking  the  defendants  to  organized  crime,'"'  and  (b)  evidence  of  other  criminal 
conduct.  The  court  below  excluded  both  as  a  matter  of  law  as  impermissible 
types  of  evidence.  This  judgment  was  erroneous  and  ought  now  be  reversed  by 
this  court.  Questions  of  accuracy  should,  of  course,  l)e  left  for  the  resolution 
of  the  court.  The  information  may  be  disbelieved  l>y  the  court,  but  it  is  not 
per  sc  inadmissible. 

III.  Consistent  with  due  process,  the  standard  of  "dangerous"  under  18 
U.S.C.  §  3575(f)  gives  adequate  guidance  to  a  court  to  impose  a  special  offender 
sentence. 

18  U.S.C.  §3575 (f)  provides:  A  defendant  is  dangerous  for  the  purposes  of 
this  section  if  a  period  of  confinement  longer  than  that  provided  for  such  felony 
is  required  for  the  protection  of  the  public  from  further  criminal  conduct. 

The  approach  that  must  be  taken  in  construing  a  statute  charged  with 
vagueness  was  .set  forth  bv  Chief  Justice  Karl  Warren  for  the  Court  in  United 
States  V.  Harriss.  347  U.S.  612.  618  (1954)  :  '"[Ilf  the  general  class  ...  to 
which  the  statute  is  directed  is  plainly  within  its  terms,  the  statute  will  not  be 
struck  down  as  vague,  even  though  marginal  cases  could  be  put  where  doubts 
might  arise  .  .  .  And  if  this  general  class  .  .  .  can  be  made  constitutionally 
definite  by  a  reasonable  construction  of  the  statute,  this  Court  is  under  a  duty 
to  give  the  statute  that  construction." 

Obviously,  too,  as  Chief  Justice  John  Mar.shall  observed  in  United  States  v. 
Fisher,  6  U.S.  (2  Cranch)  358.  386  (1804)  :  "It  is  undoubtedly  a  well  established 
principle  in  the  exposition  of  statutes,  that  every  part  is  to  be  considered  and 
the  intention  of  the  legislature  [Is]  to  be  extracted  from  the  whole." 

How  Congress  intended  subsection  (f)  to  be  read  becomes  clear  from  an 
examination  of  the  provision's  legislative  history  in  the  context  of  the  statute 
as  a  whole.  Congress  had  before  it  the  record  of  experience  in  the  states  with 
enhanced  terms  for  habitual  offenders.  Two  defects  stood  out  in  an  analysis  of 


^^A.B.A.  Standards  at  26:^-64 


•"3  On  this  aspect  of  the  issue,  the  court's  decision  squarely  conflicts  with  the  mature 
...dirnipnt  of  the  2nd  Circuit.  In  Fvifed  f^tatea  v.  Sehipani.  4.S5  F.2nd  26.2r  (2nd  Cir. 
1970).  cert,  denied.  401  U.S.  ftS:-!  (1J)71).  tlie  Court  of  Appeals  sustained  a  sentence  far 
longer  than  would  be  expected  in  a  routine  tax  case"  on  the  trial  judRe  s  conclusion 
that  the  defendant  was  -'a  professional  criminal."  a  conclusion  reached  on  hearsay  infor- 
mation obtained  in  the  course  of  illegal  wiretaps.  The  defendant  M-as  a  caporeRime  in 
the  then  Maplicocco  family  of  the  La  Cosa  Nostra.  Organized  Crime  and  Illicit  1  rathe 
in  Narcotics,  Hearings  before  the  Permanent  Subcommittee  on  Investigations,  Committee 
on  Government  Operations.  United  States  Senate,  SSth  Con-..  1st  Sess..  p  308  (19b.S). 
Conipire  an  e-irlier  District  Court  opinion  from  the  2nd  Circuit.  United  states  v.  Mao, 
29R  F.   Supp.  114,'5    (S.D.  N.Y.   1969).  „  ,n.       4.,  „„„* 

Nothinc  in  this  analvsis.  moreover,  is  undermined  by  the  Supreme  Court  s  recent 
decisicHi  in  Miilhnieu  v.  Wilhur.  No.  74-1.'!.  decided  June  9.  197.-).  There  the  court  found 
inconsistent  with  due  process  Maine's  placins  on  a  defendant  the  burden  of  persuasion 
to  a  preponderance  of  showing  hent  of  passion  to  reduce  the  crime  of  murder  to  man- 
slaughter. The  Court  observed:  "There  is  no  incompatibility  between  our  decision  toaay 
and  the  tradition  discretion   afforded   sentencing  bodies."   Slip  Opinion,   p.   l.H,   n.   Ji^. 


8828 

that  experience:  (1)  the  statutes  carried  mandatory  sentences,  and  (2)  no 
reqniremeut  of  "dangerous"'  was  set  forth.^'  Congress,  of  course,  made  Title  X 
discretionary,'*^  and  it  provided  that  special  offenders  had  to  be  "dangerous" 
before  an  extended  term  could  be  imposed.^' 

Ordinarily,  however,  Congress  recognized  that  the  same  facts  which  estab- 
lished that  a  person  was  a  "special  offender"  would  also  establish  that  he  was 
"dangerous."  *"  As  Senator  McClellan  observed  in  his  Xotre  Dame  Lawyer 
article  at  158,  "[This]  is  simply  a  recognition  of  the  possibility  that  the  same 
facts  the  establishment  of  which  shows  the  defendant  to  fall  within  one  or 
more  of  the  definitions  of  'special  offender'  may  in  a  given  case,  also  demon- 
strate that  the  defendant  is  "dangerous.' '" 

As  it  deals  with  each  type  of  special  offender,  moreover,  the  legislative  history 
repeatedly  elicits  this  conclusion.  Habitual  offenders  were  thought  to  be  future 
threats,  absent  extenuating  circumstances,  because  they  had  committed  multiple 
crimes  in  the  past.^  Professional  offenders  were  thought  to  J)e  future  threats, 
absent  extenuating  circumstances,  since  skill  once  acquired  makes  the  possibility 
of  "subsequent  us  .  .  .  likely."  ^^  Finally,  the  organized  crime  offender  was 
identified  to  have  a  life  criminal  career  roughly  twice  that  of  the  ordinary 
offender.'"  Like  the  habitual  offender,  his  past  was  read  to  judge  his  future." 

It  seems  evident  then  that  the  concept  "dangerous"  in  Title  X  had  primarily 
a  negative  meaning.  Congress  has  determined  that  special  offenders,  as  a  cla.ss, 
merit  extended  terms,  but  it  has  allowed  courts  on  a  case  by  ca.se  basis  not  to 
impose  them,  where  there  is  in  the  individual  case  of  danger  of  future  criminal 
conduct.  In  the  ordinary  situation,  therefore,  establishing  that  a  defendant  is  a 
"special  offender"  will  also  establish  that  he  is  "dangerous."  But  this  conclusion 
does  not  automatically  follow  and  invoke  a  mandatory  penalty,  as  under  some 
state  recidivist  statutes.  As  Senator  McClellan  noted :  "A  defendant's  most 
recent  felony,  for  example,  may  not  have  been  discovered  or  prosecuted  until 
several  years  after  its  commission,  and  he  may  have  completely  reformed  in 
the  meantime,  or  there  may  be  other  extenuating  circumstances."  "  "Danger- 
ous," then,  must  be  viewed  as  a  safety  valve,  protecting  certain  defendants 


^  Senate  Report  at  88-S9. 

^  See  House  Report  at  61,  ("not  to  be  con.strued  •  *  *  [to  create]  a  mandatory 
minimum  penalty"). 

^  There  is  no  serious  doubt  tliat  danRorousness  is  an  additional  element  which  must 
be  established.  See,  e.R.,  Senate  Report  at  SS,  McClellan  at  15S-6C. 

^^  Senate  Report  at  166:  "  'Dangerous'  may  be  inferred,  although  not  necessarily  from 
the  requirements  of  subsection   (o)." 

'8  See,  e.g.,  House  Report  at  06,   (discussion   of  the  time  lag  between  repeat  offenses). 

30  See,  e.g..  Senate  Report  at  16.5. 

'•>  Id.  at  4.S,    (9  years  Z  months  against  20  years   7   months). 

"  The  lawfulness  of  this  statutory  conclusion  tinder  general  concepts  of  duf  process 
and  equal  protection  is  fully  supported  by  Minnesota  v.  Probate  Court,  ;i09  U.S.  270, 
274  (1940),  ("past  conduct  pointing  to  itrobnble  consequences")  (Minnesota  Probate  was 
cited  with  approval  in  Specbt,  .SS6  IT.S  at  610)  and  Marshall  v.  United  States.  414  U.S. 
417,   42.'i-.'{0    (1974)    (exclusion    of   recidivist   from    rehabilitation    program    upheld). 

*=  McClellan  at  150.  Other  illustrations  come  easily  to  mind.  .Assume  that  a  "torch,' 
a  professional  arsonist,  is  used  in  a  complicated,  multi-party  banl^ruptcy-insurance  frnud 
scheme  to  incinerate  a  building.  Assume  further  that  the  evidence  shows  that  his  criminal 
record  qualifies  him  as  a  recidivist,  that  the  fire  gave  evidence  of  bis  "special  skill  and 
expertise,"  and  that  the  fire  could  be  fairlv  described  as  the  work  of  an  "executor  of 
violence."  Kach  of  the  special  offender  categories  of  Title  X  would  thus  be  satisfied. 
Under  IS  U.S.C.  51952,  tlie  maximum  penalty  normally  would  be  Ave  years,  b.it  here 
surely  an  extended  term  up  to  ten  years  would  be  .•niproiirinte.  Assume  further,  however, 
that  the  "torch"  accidentally  found  himself  the  victim  of  his  own  handiwork,  nnd  he  Is 
now  permanently  confined  to  a  wheelchair.  Tie  would  be  a  special  offender,  but  is  now 
no  longer  capable  of  plvinsr  bis   trade,   .•lud  thus  would   not  be  dangerous. 

So  viewed,  the  usual  procedure  in  a  Title  X  proceeding  cnn  b(<  quickly  sketched.  \\  here 
the  United  States  believes  a  defend.tnt  to  be  a  dauirerous  special  offender,  an  appropriate 
notice  is  filed.  Supplementarv  plendlncs  nailiuir  down  the  issues  mav  be  necessary:  they 
are  not  renuired.  The  T'nfted  Stntes  introduces  infornuttloii  and  evidence  indicMtinc  the 
defendant  is  a  special  offender,  from  which  it  normallv  follows  that  he  is  dangerous.  It 
must  also  make  availiil)le  under  nmdtt  v.  Vnriflnnd.  ^Mr,  T'.S.  R:i  ( M)M)  any  favorable 
evidence  it  possesses  benrlinr  on  the  sentence.  The  defendant  may  then  dispute  the 
accuracy  of  the  United  States'  position  or  introduce  information  or  evidence  of  his  own  : 
he  clearly  has  the  burden  of  cballenirlntr  the  information  or  evidence  and  of  coming 
forward  with  extenuatine  circumstances,  when  they  exist.  Cf.  Model  Penal  Code  §1.12 
(4)  (a)  (Official  Draft.  1962)  fburdeu  of  provinsr  fact  on  the  party  in  whose  interest  it 
Is  to  show  it).  The  ultimate  burden  of  persuasion,  of  course,  rests  on  the  TTnited  States, 
19.  TT.S.C.  5.?575(b)  to  convince  the  conrl  of  tile  essential  facts  and  tlie  appropriateness 
of  the  imposition  of  the  extended  term.  Apiiellato  review  would  then  follow  at  either 
the  Instance  of  the  United  States  or  of  the  defendant. 


8829 

from  unjust  and  unnecessary  long-term  imprisonment."  As  such,  it  is  definite 
enough  to  give  guidance." 

The  court  below,  however,  misread  Title  X.  and  it  then  held  §3575 (f)  un- 
constitutionally vague.  The  court  seemed  to  feel  that  "dangerousness"  had  to 
be  shown  by  some  sort  of  statistical  evidence  independent  from  the  showing  of 
"special  offender."  As  noted  above,  this  is  a  serious  misreading  of  the  legisla- 
tive history^"  and  language  of  the  statute.  The  court  then  found  the  concept, 
as  so  defined,  vague,  citing  Lanzetta  v.  Neiv  Jersey,  306  U.S.  451   (1939). 

It  is  not  clear  that  Lanzetta  sets  the  benchmark  for  the  definitions  here  in- 
volved. Lanzetta  dealt  with  a  criminal  statute  addressed  to  the  ordinary  citizen. 
Here,  however,  we  deal  with  a  statute  addressed  to  counsel  and  court,  setting 
standards  for  sentencing.  As  Senator  McClellan  o})served :  "The  definitions  used 
in  Title  X  as  a  group  are  unusually  specific  and  clear  for  sentencing  standards. 
It  must  be  recalled  that  the  definitions  in  Title  X  are  not  substantive  criminal 
prohibitions,  defining'  crimes,  niid  do  not  establish  the  question  of  guilt  or 
innocence.  They  are  legislatively  specified  criteria  for  sentencing  only.  They  are 
not  only  a  great  improvemeiic  over  a  situation  where  sentencing  is,  at  the 
present,  guided  by  no  standards  at  all — they  conform  to  similar  standards 
developed  by  professional  bodies  which  have  studied  the  problem  of  special 
sentencing  most  thoroughly,  and  seem  to  provide  excellent  guidance  and  control 
over  the  discretion  of  a  sentencing  court."  ^® 

These  criteria  are  governed  instead  by  Minnesoto  v.  Prol)ate  Court,  309  U.S. 
270  (1940).  There  the  Supreme  Court  faced  not  dissimilar  definitions  as  part  of 
a  "pschopathic  law."  The  statute  focused  on  past  conduct  to  judge  future 
behavior.  The  Court  observed :  "These  underlying  conditions,  calling  for  evi- 
dence of  past  conduct  pointing  to  probable  consequences,  are  as  susceptible  of 
proof  as  many  of  the  criteria  constantly  applied  in  prosecutions  for  crime."" 
Consequently,  the  Court  sustained  the  statute  against  a  vagueness  objection. 
Even  if  Lanzetta  should  be  held  to  control,  it  is  not  clear  that  the  statute 
would  fall.  Lanzetta  dealt  with  the  vagueness  of  the  term  "gang."  The  Court 
found  the  term  vague  because  it  "condemn [ed]  no  act  or  omission."  306  U.S. 
at  458.  Here,  in  contrast,  the  whole  statute  is  aimed  at  conduct,  which  con- 
stitutes circumstances  of  aggrevation  of  felonious  criminal  behavior.  As  the 
Senatr  Report  noted:  "The  conduct  making  the  defendant  a  'professional'  or 
organised  crime'  offender  under  Title  X  is  closely  related  to  the  felony  for  which 
he  is  to  be  sentenced.  Title  X  thus  treats  such  conduct  not  as  separate  offenses 
but  as  a  circumstance  of  aggravation  in  the  commission  of  the  felony  for  which 
the  defendant  is  to  be  sentenced.  Because  of  this  relationship,  the  'special 
offender'  conduct  may  be  necessarily  or  incidentally  proven  in  the  course  of  the 
full  and  formal  trial  on  the  merits  of  the  felony.  Since  rules  of  evidence  permit 
or  require  the  Government,  for  example,  to  prove  the  history  and  circumstances 
of  a  conspiracy  with  which  a  defendant  is  charged,  or  the  existence  of  which 
is  a  predicate  for  admissil)ility  of  evidence,  the  trial  of  a  conspirator  whose 
conduct  makes  him  a  'special  offender'  under  Title  X  often  will  establish  that 


"This  constrnctinii  of  the  concept  is  more  than  a  reflection  of  the  legislative  history 
and  the  manifest  itnrpose  of  the  Congress.  Title  X  was  modeled  after  Minn.  Stat.  Ann. 
^609. 155,  009.10  (1904).  See  Senate  Report  at  SS,  n.  25  (1909).  The  Minnesota  courts 
hnve  jriven  their  statute  the  same  constn;ction.  See  State  ex  rel  Hansen  v.  Rijre:,  25S 
Minn  ."^SS,  104  N.W.2d  55.S  (1960)  (not  separate  crime,  increased  sentence  for  charged 
crime)  :  State  v.  Piri.  29.^  minn.  247.  251.  204  N.W.2d  120,  124  (1973)  (proof  of  recidi- 
vism sustains  proof  of  dangerousness) .  This  constrnction  should  wif^lj!  Jif'<>"l>'  to°  "o 
siistninlns  Title  X's  constitiitionalitv.  Of.  Minnesota  v.  Probate  Court,  .309  U.S.  2iO,  Zl,i 
(1940)     ("This   constrnction    is   bindinir    *    *    *").  „  ^^  .  ^   ,      , 

"  Moreover,  it  is  not  terrihlv  different  from  similar  definitions  of  the  concept  sus^talned 
in  other  contexts.  See.  e.g.,  ICgtrleston  v.  State,  209  Md.  504,  121  A._2d  69S  (19.i6)  (Mary- 
land Defective  Delinquent  Act.  Md.  Ann.  Code.  Art.  31  B  ^Ool)  :  Sas  v  State  of 
Morvlnnd.  295  P.  Snpp  3S9  (D.C.  Md.  1909).  affirmed  snhnomTippettv^Laryla^^^^^ 
430  F2d  11.53  (4th  Cir.  1971).  cert,  dismissed  snh  nom..  407  U.S.  355  (19(21i  (sam.e  .act)  . 
Millard  V.  Harris.  400  F.2d  904  (D.C.  Cir.  190S)  (daneerousness  in  the  context  of 
D.C.  Sexual  Psvchopath  Act,  22  DC,  Code   §3,503(1)    (1907)).  «„„.,+„ 

I'The  conrt  below  apparentlv  believed  that  the  governments  reference  to  the  ^e»-iT« 
Report  at  160  ("dantrerousness"  inferred  from  "special  offender")  was  a  .^''"flf,  s*^"«"^f . 
read  "out  of  context,"  "directly  contrary  to  the  legislative  history"  and     totally   without 

*""«  McClellan  at  15R-59.  There  is  more  than  a  little  irony  in  the  lower  court  citation  of 
Oiar-c]ox.  PennLlvama.  3S2  TT.S.   399    (1900).  in  s'lWOjt  of  its  ho  dings.   (?mrc,o  strv^ 
down  iurv  assessment  of  costs  against  a   "not  guilty"   defendant  ^V*'^^"*  f '^^/J^'^^'fl^"^^ 
it  cast  "no  doubt"   on    the   power  of  juries   to   sentence   without   standards   xMthin   fixed 
limits.  3S2  U.S.  at  405.  n,  S. 
<".309  U.S.  at  274. 


8830 

he  is  such  a  'special  offender.'"  In  otlier  cases,  the  formal  trial  on  the  merit 
may  establish  some  but  not  all  of  the  required  elements,  and  the  less  formal 
sentencing  proceedintr  will  be  necessary  to  embellish  the  circumstances  of  the 
crime  already  established,  adding  information  about  the  defendant,  his  crime, 
and  the  context  in  which  ii  was  committed.  Sentencing  judges  traditionally  have 
relied  both  upon  circumstauecs  proven  in  the  trial  and  upon  information 
acquired  during  the  seutt'ncing  process.  .  .  .  The  starting  point  for  measuring 
the  appropriateness  of  a  particular  sentence  and  the  sentencing  procedure  used 
for  its  imposition,  therefore  is  not  confined  to  the  bare  essential  elements  of  the 
offense,  but  includes  ?ill  facts  established  through  the  full  procedure  of  the  trial 
on  the  merits."  ^^ 
Title  X,  therefore,  meets  even  the  higher  standards  of  Lanzetta.^^ 
IV.  Consistent  with  due  process  and  double  jeopardy,  the  United  States  may 
appeal  the  failure  Oi  a  court  to  impose  a  dangerous  special  offender  sentence 
under  18  U.S.C.  §3576. 

a.  18  U.S.C.  §3576  autliorizes  a  government  appeal  of  a  failure  to  injpose  a 
dangerous  .special  offender  sentence. 

18  U.S.C.  §3576,  in  relevant  part,  reads :  With  respect  to  the  imposition,  cor- 
rection or  reduction  of  a  .sentence  after  proceedings  under  section  3575  of  this 
chapter,  review  of  the  sentence  on  the  record  of  the  sentencing  court  may  be 
taken  by  .  .  .  the  United  States  to  a  Court  of  Appeals. 

The  plain  language  of  the  statute  authorized  this  appeal.  It  says  "after" 
a  proceeding  under  §3575.  It  does  not  say  tJie  sentence  must  ha\'e  been  "im- 
posed" pursuant  to  §3.'375.  If  there  were  any  doul.t  of  the  proper  construction  of 
the  statute,  the  legislative  history  surely  dispels  it.^"  The  defendants  have,  of 
course,  conceded  as  much.  See  United  States  v.  Duardi,  No.  74-1904  (8th  Cir., 
April  1,  1975). 

b.  Such  an  appeal  is  consistent  with  due  process. 

A  due  process  objection  to  the  right  of  the  United  States  to  appeal  a  sentence 
might  be  colorably  grounded  in  Xorth  CuntUna  v.  Pcarce,  395  U.S.  711  (1969). 
There,  the  Supreme  Court  set  down  careful  standards  for  the  imposition  of 
higher  sentences  following  reconviction  after  appellate  reversal.  The  standards 
were  designed  to  protect  a  defendant's  right  to  appeal  his  won  case  from 
"vindictiveness"  by  the  trial  judge.  395  U.S.  at  725-26. 

Here,  however,  we  do  not  deal  with  retrial,  but  appeal,  where  ilicr;-  is  no 
danger  of  such  vindictiveness.  In  addition.  §3575  has  been  carefully  drafted  to 
insure  that  the  United  States  must  exercise  its  electioji  to  appeal  prior  to 
defendant's  election,  and  the  appellate  court  is  given  express  power  to  dismiss 
an  appeal  on  a  showing  of  abuse  of  the  right  to  appeal,  a  routine  policy  of 
appeals  in  all  cases.  If  the  United  States  does  not  first  appeal,  and  the  de- 
fendant subsequently  appeals,  tlie  sentence  cannot  be  made  '"more  severe."  Con- 
gressman Poff  explained  the  operation  of  Title  X  in  these  terms: 

"The  review  provisions  have  been  carefully  framed  to  meet  constitutional 
requirements.  Since  it  seems  clear  from  the  Supreme  Court's  decision  in  North 
Carolina  v.  Pearcc.  395  IT.S.  711  tlt»69).  that  due  process  of  law  re(iuires  that 
a  defendant  must  be  protected  from  the  possibility  that  an  iacrea.sed  .sentence 
will  lie  impo.sed  upon  him  by  a  vindictive  court  as  punishment  for  his  having 
exerci.sed  a  right  of  appeal,  Title  X  has  been  drafted  so  as  to  assure  that  any 
change  in  a  sentence  to  the  detriment  of  the  defendant  Avill  result  solely  from 
the  Government's  action  and  not  from  his  «)wn.  To  this  end.  the  Senate  version 
of  S.30  provided  that  a  .sentence  ma.v.  be  increased  only  upon  review  taken  by 
the  Government:  that  the  Government's  right  to  take  a  .sentence  review  must 


"  Sonate   Report   at   91. 

<"  Tho  Siipronie  Court,  of  cour.so.  has  not  yet  passed  on  tlio  validit.v  of  Title  X.  In 
Ifiinicll!  V.  liiiteil  ^totrs.  4.".  I.nw  Week  442:?  iMareii  2.').  l!17n).  liowevrr.  tlie  roiirt  did 
have  the  Organized  Crime  Control  Act  before  It.  Speelflonllv,  It  considered  the  proper 
construction  of  ]S  TT.S.C.  519'.."  (Title  VIII  of  the  .\et^  In  relation  to  the  so-called 
Wharton  rnle,  and  it  discussed  the  relationship  I)et\veen  IS  t'.S.C  §10.5.'),  the  treneral  law 
of  conspiracy,  and  Title  X.  The  Court  termed  the  .\ct  "a  carefully  crafted  piece  of  legis- 
lation." 4,"?  Law  Week  at  4429.  The  lower  court's  Treatment  of  the  law  is  hardly  consistent 
with  the  observation  al)out  the  .\ct  as  a  whole. 

'^"Senate  Report  at  100  exiilicitlv  states:  "The  Government  may  obtain  review  of  the 
failure  to  impose  any  special  s(>ntence  or  the  >jentence  imposed."  Title  X  was  also  so 
read  in  the  TTouse  l>y  witnesses  who  testified  and  t)y  the  Committee  counsel.  Tloiise  TTear- 
inj;s  at  .'540  (witness),  .TTO  (counsel).  Indeed,  the  ameiKlments  made  to  Title  X  on  this 
[loint  by  the  House  were  designed  to  insure  that  review  would  be  comprehensive  and 
could  not  l)e  circumvented.  .See  Remarks  of  Congressman  Poff,  116  Cong.  Rcc.  .35290-98 
(October  7,  1970). 


8831 

be  exercised  at  least  5  days  before  the  expiration  of  the  defendant's  right  to 
seelv  sentence  review  or  appeal  of  his  conviction  ;  that  an  increased  sentence  will 
be  foreclosed  if  the  Government  withdraws  its  review ;  and  that  any  review 
talieu  by  the  Government  will  be  dismissed  upon  a  showing  of  abuse  of  the 
right  to  tal<e  such  a  review. 

"The  Judiciary  Committee  added  clarifying  language  to  assure  that  the  taking 
of  a  review  of  the  sentence  by  the  Government  will  be  deemed  the  taking  of  a 
review  of  the  sentence  and  an  appeal  of  the  conviction  by  the  defendant.  The 
Senate  version  was  less  than  clear  on  this  point.  Thus,  the  taking  of  a  sentence 
review  by  the  United  States  brings  about  the  same  result  that  would  follow  if 
the  defendant  had  exercised  his  right  to  take  both  a  review  of  the  sentence  and 
an  appeal  of  the  conviction.  The  danger  of  retaliation  which  led  the  Court  to 
the  result  obtained  in  Xortli  Carolina  against  Pcarce,  supra,  is  entirely  absent 
even  from  the  question  in  the  Judiciary  Committee  version  of  Title  X. 

"Subject  only  to  the  foregoing  limitations  upon  increased  sentences,  the  ap- 
pellate review  provisions  permit  the  court  of  appeals  after  considering  the 
record  in  the  court  below,  including  the  entire  presentence  report  on  the  de- 
fendant, information  submitted  during  the  trial  and  at  the  sentencing  hearing, 
and  the  court's  findings  and  reasons  for  the  sentence  imposed — to  affirm  the 
sentence,  impose  or  direct  the  imposition  of  any  sentence  which  the  sentencing 
court  could  originally  have  impo.sed,  or  remand  for  further  sentencing."  (Em- 
phasis added.  )°^ 

Nothing  in  the  Supreme  Court's  subsequent  teaching  on  due  process  and 
sentencing  indicates  that  this  analysis  is  faulty.  Cf  Colten  v.  Kentucky,  407  U.S. 
104  (1972)  (higher  sentence  after  "appeal"  from  lower  trial  court  to  hi,gher 
court  for  de  novo  trial  upheld)  ;  Chaffln  v.  i^tynchcom^e,  412  U.S.  17  (1973) 
(higher  sentence  after  retrial  imposed  by  jury  not  shown  to  be  vindictive).  In 
short,  the  ".  .  .  lesson  that  emerges  from  Pcarce,  Colten  and  Chaffln  is  that  the 
Due  Process  clause  is  not  offended  by  all  possibilities  of  increased  puni.shment 
upon  retrial  after  appeal,  but  only  those  that  pose  a  realistic  likelihood  of 
'vindictiveness.'  "  Blackledfjc  v.  Perry,  417  U.S.  21,  27  (1974).  For  a  due  process 
claim  here  to  take  hold,  it  would  have  to  be  established  that  appellate  courts 
would  be  vindictive  after  the  prosecutor,  not  the  defendant,  appealed.  There 
is  certainly  no  reasonable  claim  to  be  made  that  appellate  courts  have  shown 
themselves  to  be  vindictive.  Moreover,  the  appeal  is  by  the  prosecutor,  not  the 
defendant,  and  when  the  case  is  reversd  and  possil)ly  remanded  for  resentenc- 
ing, it  will  be  to  a  court  that  has  made  an  error  in  favor  of  the  defendant, 
reversed  at  the  behest  of  the  government.  The  Pearee  rationale  of  vindictive- 
ness could  propery  apply  only  when  a  judge  who  resentences,  was  reversed  for 
making  an  error  against  the  defendant  after  an  appeal  brought  by  the 
defendant. 

c.  Such  an  appeal  is  consistent  with  double  jeopardy. 

During  the  processing  of  Title  X,  much  consideration  was  given  to  the  double 
jeopardy  implications  of  the  recommendation  of  the  President's  Crime  Com- 
mission that:  'There  must  be  some  kind  of  supervision  over  those  trial  judges 
who,  because  of  corruption,  political  considerations,  or  lack  of  knowledge,  tend 
to  mete  out  light  sentences  in  cases  involving  organized  crime  management 
personnel.  Consideration  should  therefore  be  given  to  allowing  the  prosecution 
the  right  of  appeal  regarding  sentences  of  persons  in  management  positions  in 
organized  crime  activity  or  groups.  Constitutional  requirements  for  such  an 
appellate  procedure  must  first  be  carefully  explored."  ^^ 

T'ltimately.  the  contours  of  the  existing  precedents  were  seen  not  to  constitute 
a  constitutional  roadblock  to  government  review." 

Whatever  concern  might  have  legitimately  existed  in  1969  and  1970,  however, 
has  now  been  dispelled  by  recent  developments  in  February  and  March  of  this 


•"^1  Remarks  of  Concressiii.-in  Poff,  llti  Coucr.  Reo.  H85296  (October  7,  1970).  S(^e  jiliso. 
Senate  Report  at  16«-67  :  McClellan  at  1S.3-SS. 

''^  President's  Crime  fommission  at  20,H. 

•"■J  Tlie  analysis  that  led  to  that  conclusion  is  set  out  in  Senate  Report  at  9.*^-90.  Argu- 
ments are  also  reviewed  at  lengrth  in  McClellan  at  174-S2.  State  law  on  the  issue  of 
sentence  review  at  the  instance  of  the  jrovernment  is  analyzed  in  the  House  Hearings  at 
l.'^2-.'?.'?  (Additional  Statement  of  Senator  .Tohn  L.  McClellan).  Policy  considerations  sup- 
Dortinj:  a  "mutual  review  concept"  are  ahl.v  set  out  in  the  Testimony  of  Professor 
Livineston  Hall  on  behalf  of  the  American  Bar  Association,  Reform  of  the  Federal 
Criiniiial  Liws  He^n-ings  before  the  Subcommittee  on  'Criminal  Laws  and  Procedures. 
Committee  on  the  .Tudiciary.  U.S.  Senate.  O.-'.rd  Cong.,  1st  Sess.,  ,at  .5.364-09  (1973).  On 
alternatives,  see  Professor  Hall's  letter  in  reply  to  letter  of  G.  Robert  Blakey,  chief 
counsel  of  tlie  subcommittee,   id.  at   ,5377-79. 


8832 

year  in  the  Supreme  Court's  teaching  in  the  double  jeopardy  field.  In  United 
States  V.  Wilson,  43  Law  Week  4301  (1975),  the  Court  undertook  a  major 
effort  at  analyzing  the  right  of  the  government  to  appeal  in  criminal  oases.  It 
began  with  this  observation  :  "The  statutory  restrictions  on  Government  appeals 
long  made  it  unnecessary  for  this  Court  to  consider  the  constitutional  limita- 
tions on  the  appeal  rights  of  the  prosecution  except  in  unusual  circumstances." 
43  Law  Week  at  4303. 

The  Court  then  considered  the  history  and  development  of  the  constitutional 
principle  against  double  jeopardy.  It  conoluded :  ".  .  .  Although  review  of  any 
ruling  of  law  discharging  a  defendant  obviously  enhances  the  likelihood  of 
conviction  and  subjects  him  to  continuing  expense  and  anxiety,  a  defendant 
has  no  legitimate  claim  to  benefit  from  an  error  of  law  when  that  error  could 
be  corrected  without  subjecting  him  to  a  second  trial  before  a  second  trier 
of  fact."  Id.  at  4305. 

It  held :  "*  •  *  We  therefore  conclude  that  when  a  judge  rules  in  favor  of  the 
defendant  after  a  verdict  of  guilty  has  been  entered  by  the  trier  of  fact,  the 
Government  may  appeal  from  that  ruling  without  running  afoul  of  the  Double 
Jeopardy  Clause."  Id.  at  4307. 

Wilson  was  quickly  followed  by  United  States  v.  Jenkins,  43  Law  Week  4309 
(1975),  which  held  that  when  the  judge  was  the  "trier  of  fact"  in  a  bench 
trial,  double  jeopardy  also  attached  to  his  not  guilty  verdict.  Finally,  the  Court 
in  March  decided  Serf  ass  v.  United  States,  43  Law  Week  4315  (1975),  where  It 
held  that  a  pre-trial  ruling  by  a  court  before  the  defendant  had  been  put  to  trial 
before  the  trier  of  fact  did  not  involve  jeopardy  and  could  be  api)ealed. 

The  implications  of  these  cases  for  this  appeal  seem  beyond  question.  The 
defendants  here  have  been  put  on  trial  before  the  trier  of  fact  and  have  been 
found  guilty.  No  judgment  of  this  Court  will  cause  them  to  be  tried  again. 
What  is  at  issue  here  is  not  a  question  of  guilt  or  innocence,  but  of  sentencing. 
A  judgment  favorable  to  the  United  States  here  will  require  that  the  defendants 
be  resentenced,  not  retried.  No  question  of  double  jeopardy,  therefore,  is  at 
is^ue.  ■'*  *  *  The  Double  Jeopardy  Clause  of  the  Fifth  Amendment  is  written  in 
terms  of  potential  or  risk  of  trial  and  conviction,  not  punishment."  Price  v. 
Georgia,  398  U.S.  323  329  (1970).  Consequently,  there  is  no  statutory  or  con- 
stitutional bar  to  this  appeal." 

CONCLUSION 

Traditionally,  four  purposes  have  been  assigned  to  the  criminal  justice  sys- 
tem :  retribution,  deterence,  incapacitation  and  rehabilitation."  Many  today  no 
longer  see  retribution  as  the  objective  of  the  law.  See,  e.g.,  Williatns  v.  New 
York,  337  U.S.  241.  248  (1949).  Some  kinds  of  offenders,  moreover,  seem  to  be 
beyond  deterrence.^  Recent  studies  offer  little  hope  that  we  have  learned  how  to 
rehabilitate ;  rehabilitation  remains,  in  short,  an  unrealized  hope.^'  For  these 
offenders,  incapacitation  seems  the  only  meaningful  alternative  goal. 


"  One  other  Item  should  be  raised  In  this  brief  In  order  that  it  may  be  disposed  of 
here  with  guidance  given  to  prosecutors,  defense  counsel  and  trial  courts  in  future 
dangerous  special  offender  hearings.  The  legislative  history  of  Title  X  suggests  that  a 
trial  court  should  "ordinarily"  obtain  a  study  of  a  defendant  in  these  types  of  hearings 
under  18  U.S.C.  §4208 (b).  The  trial  court  in  this  appeal  followed  that  suggestion. 
Erroneously,  however,  an  appeal  was  taken  on  the  question  of  guilt  or  innocence  at  that 
point.  See  United  Sftaten  v.  Bishop.  402  F.2d  1361  (8th  Cir.  1974).  cert,  denied.  417  T'.S. 
942  (1075).  The  general  legitimacy  of  an  appeal  at  this  point  after  an  examination  under 
IS  U.S.C.  H20S{b)  was  established  in  Corey  v.  United  States,  375  U.S.  169  (1963).  It 
apparently  went  unnoticed  by  counsel  and  the  court  that  such  an  appeal  may  not  be  taken 
under  18  U.S.C.  !i3.')75(g),  when  a  $4208 (h)  order  is  made  in  connection  with  a  dangerous 
special  offender  hearing.  The  legislative  history  is  quite  explicit  on  this  point.  Senate 
Report  at  lefi.  "The  result  reached  under  Corei/  v.  United  Statex  .  .  under  IS  T^S.C. 
14208 (b)  would  not  obtain  here.  The  provision  envisions  that  review  of  both  sentence 
and  conviction  will  be  heard  together."  (Emphasis  added).  It  may  well  be  appropri.ate 
to  draw  to  the  attention  of  the  bar  and  bench  this  mistake,  so  that  in  the  future  multi- 
ple appeals  are  not  taken  at  all  conceivable  points  in  these  kinds  of  proceedings.  Since, 
strictly  speaking,  the  opinion  of  the  prior  panel  upholding  the  conviction  was  made 
without  .iurisdictlon,  it  may  also  be  well  If  this  panel  explicitly  reaffirms  it. 

ss  The   President's   Crime   Commission   at    7. 

■^  The  President's   Crime   Commission   observed  : 

.  .  .  the  most  striking  fact  about  offenders  who  have  been  convicted  of  the  common 
serious  crimes  of  violence  and  theft  Is  how  often  how  many  of  them  continue  committing 
crimes.  Arrest,  court,  and  prison  records  furnish  Insistent  testimony  to  the  fact  that  the.se 
repeated  offenders  constitute  the  hard   core  of  the  crime  problem.   Id.  at  45. 

"The  evidence  Is  reviewed  in  Robinson  and  Smith.  "The  Effectiveness  of  Correctional 
Programs,"  Crime  and  Delinquency  67,  January  1971. 


8833 

This  {appeal  )?«  n\l  about  the  viability  aud  constitutionality  of  the  moet  com- 
prehensive attempt  j-et  made  to  uiovf  in  that  direction.  This  attempt,  more- 
over, has  important  implications  for  scner.il  penal  policy.  Most  oJ>servevs  agree 
that  American  sentences  are  too  long  in  ico  many  case'*."'*  We  nr-tsis  to  have  a 
general  rethinking  of  onr  penal  strncture.  Indeed,  there  are  many  who  ("onple 
their  policy  support  of  Title  X-type  proceedings  only  if  it  can  be  a(.'.'''>mpauiefi 
by  a  general  reduction  of  sentences  for  the  ordinary  offender.'^*  Neverthelfiss, 
that  general  reduction  will  not  come  about  until  the  viability  and  constitu- 
tionality of  the  extended  term  concept  is  assured.""  There  is  a  certain  irony,  too, 
in  the  blunt  fact  that  there  is  a  constitutional  alternative  to  Title  X:  high 
minimum  mandatory  sentences."^  Even  though  they  might  be  unjust  in  individual 
cases,  they  are  generally  thought  to  be  beyond  serious  question  constitu- 
tionally."" This  appeal,  therefore,  is  no  ordinary  review  of  the  erroneous  sen- 
tences imposed  on  a  few  bad  men  by  a  trial  judge  who  merely  misread  a 
statute.  In  a  sense,  it  represents  the  last,  best  hope  in  our  nation's  struggle  to 
establish  a  rational  penal  structure  for  our  system  of  criminal  justice. 

It  is,  therefore,  respectfully  urged  that  the  sentence  of  the  defendants  be 
set  aside  and  that  the  record  in  this  appeal  be  remanded  to  the  trial  court  with 
directions  to  reinstate  the  United  States'  pleading  of  November  28,  1972,  to 
hold  a  dangerous  special  offender  hearing,  admitting  the  information  and 
evidence  excluded  and  following  this  brief's  construction  of  the  concept  of 
dangerousness. 

Respectfully  submitted, 

Amekicans  fob  Effective  Law  Enforcement, 
G.  Robert  Blakey,  Esq., 

Of  Counsel. 


58A.B.A.  Standards   at   13-14. 

68  See,  e.g.,  Letter  of  Professor  Herbert  Wechsler,  the  chief  reporter  for  the  Model  Penal 
Code,  In  House  Hearings  at  522  ;  I-etter  of  the  Judicial  Conference  of  the  United  States 
in  House  Report  at  74. 

*"  See,  Senate  Report  at  S9  :  "When  a  statute  authorizing  extended  terms  for  defined 
classes  of  criminals  has  been  enacted  and  Its  constitutionality  upheld,  it  will  be  time 
enough  then  to  consider  proposals  to  reduce  the  maximum  sentence  now  authorized  for 
ordinary  offenders." 

«i  It  seems  true  also  that  they  have  a  certain  political  popularity.  See  17  Crlm.  L. 
Rept.  215S  (May  21,  1975)  (President  proposes  mandatory  terms  for  those  convicted 
of  violent  crimes). 

«2Cf.   0>/lcr  V.  Boles,  368  U.S.  448,  451   (1962). 


8834 


SSNTENCING  THE  RACKETEER 

(By  Institute  on  0:i|8iiized  Crime,  Cornell  University,  School  of  Law) 

Outline 

Summary 111 

I .  Introduction II 2 

A.  The  Special  Problem 1|2 

B.  The  Traditional  Sentencing  Pattern:  Leniency 115 

C.  The  Prosecutor's  Power:  Beyond  the  Recidivist 
Statutes 117 

II.  Function  of  the  Presentence  Report 1|8 

A.  Individualized  Sentencing  and  the  Presentence 
Report 1(8 

B.  Functions  of  the  Prosecutor  and  the 

Probation  Office 119 

C.  The  Right  of  Allocution 1|11 

III.  Scope  of  the  Presentence  Report 1114 

A.  General  Admissibility  of  Information 1114 

B.  General  Limits 1117 

C.  The  Admissibility  of  Information: 

Speci  fie  Issues 1120 

1.  Hearsay 1120 

2.  Polygraph  Tests 1121 

3.  Prior  Conviction  Record 1122 

4.  Invalid  Prior  Convictions 1123 

5.  Evidence  Derived  from.  Arrests  not  Leading 

to  Conviction 1124 

6.  Evidence  Excluded  from  Trial  because  of 
Fourth  A^nendment  Violations 1|26 

7.  Reputation 1127 

8.  Defendant's  Right  to  View  and  Challenge  the 
Presentence  Report 1129 

IV.  Appellate  Review  of  Stintei.ces —   1:31 

A.  In  General 1131 

B.  Defendant's  Right  to  Appeal  and  the  Danger  of 

an  Increased  Sentence 1132 

C.  Prosecutor's  Appeal  for  Increased  Sentence 1134 

Appendix 
I.  Recidivist  Sentencing 'ii38 


8835 


Summary 

111    The  primary  goals  of  a  sentence  in  an  organized  crime 
prosecution  should  be  deterrence  and  incapacitation,  not 
rehabilitation.   Traditionally,  the  prosecutor's  task  was 
thought  to  stop  at  the  conviction.   This  view  is  misguided; 
the  prosecutor  should  seek,  through  all  lawful  means,  to 
secure  an  appropriate  sentence  in  all  criminal  prosecutions, 
but  particularly  in  organized  crime  cases.   The  presentence 
report  usually  provides  the  sentencing  judge  with  the  infor- 
mation essential  to  his  decision  in  imposing  sentence  within 
the  statutory  range.   Few  statutory  or  constitutional  require- 
ments limit  its  scope.   Individualized  sentencing  requires  that 
the  judge's  scope  of  inquiry  not  be  limited.   The  prosecutor, 
therefore,  ought  to  provide  the  probation  department  with  all 
relevant  information  in  organized  crime  cases.  Further,  he  should 
actively  draw  the  court's  attention  to  the  report's  significance, 
recommending,  in  the  public  interest,  appropriate  sentences 
in  all  organized  crime  prosecutions.   His  goal  should  be  to 
obtain,  in  appropriate  cases,  the  maximum  authorized  jail  time 
and  fine.   Statutory  and  constitutional  limits  remain  on  the 
prosecutor's  right  to  appeal  a  sentence,  but  recent  decisions 
have  begun  to  broaden  this  right;  it  should  be  vigorously 
pursued.   When  possible,  the  prosecutor  should  use  recidivist 
and  special  dangerous  offender  provisions  to  secure  extended 
terms.  ' 


8836 


I .  Introduction 

A.  The  Special  Problem 

1|2    The  sentencing  process  can  be  a  crucial  phase  in  the 
prosecution  of  organized  crime.   It  is  here  that  the  risks  of 
involvement  in  organized  crime  can  be  made  clear  to  present 
and  prospective  members  and  associates.   Similarly,  sentencing 
can  be  a  key  tool  for  imposing  economic  burdens  on  those 
involved  in  organized  crime. 

113    Organized  crime  functions,  on  the  conscious  level,  as  a 
business.   The  motives  of  those  engaged  in  its  activities  are 
"rational."  Thus,  organized  crime  participants  should  be  influ- 
enced by  altering  the  risks  of  punishment  and  the  rewards  of  crim- 
inal endeavor.  At  the  same  time,  a  sentencing  policy  designed  to 
render  a  criminal  useless,  and  possibly  burdensome  to  his  asso- 
ciates for  substantial  periods  of  time,  will  strike  at  the 
special  strength  of  organized  crime.   It  can  force  a  new 
cost-benefit  analysis;  profits  will  be  realized  only  at  a 
higher  price.   Membership  in  an  organization  may 
appear  less  attractive,  and  the  rewards  for  joining  may  have 
to  be  commensurately  greater.   The  long-term  loss  of  a  con- 
victed member's  services  may  not  wholly  cripple  the  activities 
of  the  organization,  but  it  should  render  it  somewhat  less 
profitable . 

The  Director  of  the  National  Council  on  Crime  and  Delinquency, 
Milton  G.  Rector,  aptly  observed: 


8837 


114    The  special  character  of  organized  crime,  in  short,  demands 

a  sentencing  policy  designed  to  render  its  activities  more 

2 
difficult  to  conduct,   and  if  no  other  goal  is  served,  the 

comiTiission  of  additional  crime  may  be  made  more  difficult  through 

long-term  imprisonment. 


B.  The  Traditional  Sentencing  Pattern:  Leniency 

1|5    Ironically,  studies  have  shown  that  stern  sentences  for 

racketeers  are  the  exception,  not  the  rule.   .^^  Department  of 

1  (continued) 

A  presentence  investigation  of  an  " unimportant" 
numbers  runner,  bookie  or  gambling  operator  may 
reveal  him  as  a  stable  individual;  if  it  also  reveals 
him  as  a  salaried  employee  of  a  criminal  organization, 
he  should  be  incarcerated  for  as  long  a  time  as 
possible  under  the  law.   Maximum  imprisonment  inflicts 
heavy  costs  on  the  syndicate  for  his  family's  support 
and  other  "fringe  benefits,"  in  addition  to  legal  fees 
and  bail  which  the  organization  must  provide  to  maintain 
its  operations.   His  ties  to  the  organization  and  his 
financial  needs  make  it  improbable  that  he  will  want  or 
be  allowed  to  seek  other  employment  until  he  himself  is 
too  expensive  a  risk.   Despite  his  otherwise  apparent 
eligibility  for  a  fine,  suspended  sentence,  or  probation, 
he  must  be  regarded  as  a  capillary  feeding  the  heart  of 
organized  crime  and  be  committed  for  the  purpose  of 
increasing  the  operation  costs  of  the  business  of  crime 
and  racketeering.   Rector,  "Sentencing  the  Racketeer," 
8  Crime  and  Delinquency  386,  389  (1962). 

2 

There  is  legal  support  for  this  policy.   In  State  v.  Ivan, 

33  N.J.  197,  202-03,  162  A. 2d  851,  853-54  (1960),  the  New 
Jersey  Supreme  Court  observed: 

.  .  .  [I]f  the  crime  is  a  calculated  one  and  part  of 
a  widespread  criminal  skein,  the  needs  of  society  may 
dictate  that  the  punishment  more  nearly  fit  the  offense 
than  the  offender.   There  the  sentencing  judge  may  con- 
clude he  should  give  priority  to  punishment  as  a  deter- 
rence to  others  and  as  an  aid  to  law  enforcement.  .  . 
fW]hen  the  offense  serves  the  interests  of  a  widespread 
conspiracy,  it  would  be  a  mistake  to  think  of  the 
defendant  as  an  isolated  figure.   He  is  part  and  parcel 
of  an  enterprise.  .  .  .  [I]f  the  crime  is  part  of  a 
larger  operation,  it  merits  stern  treatment. 


8838 


Justice  study  of  the  years  1960-1969  revealed,  for  example, 
that  two-thirds  of  the  Cosa  Nostra  members  indicted  by  the 
Department  faced  maximum  jail  terms  of  only  five  years  or 
less.   Only  23%  of  the  convicted  members  subject  to  indetermin- 
ate sentences  received  the  maximum;  most  of  the  sentences 
ranged  from  40%  to  50%  of  the  maximum. 

1|6    Such  a  pattern  of  leniency  neither  deters  nor  incapaci- 
tates.  The  conclusion  seems  inescapable:  prosecutors  should 
direct  their  efforts  not  only  to  securing  evidence  and  con- 
viction, but  also  to  securing  higher  sentences. 

C.  The  Prosecutor's  Power:  Beyond  the  Recidivist  Statutes 

117    Organized  crime  offenders  may  be  vulnerable  to  an  increased 

sentence  under  an  "habitual  criminal"  or  "persistent  felony 

^See  S.  Rep.  No.  91-617,  91st  Cong.,  1st  Sess.  85  (1969). 

For  a  similar  pattern,  see  Report  for  1971  by  New  York  State 

Joint  Legislative  Committee  on  Crime,  its  Causes,  Control  and 

Effect  on  Society,  reprinted  in  Hearing  before  the  Subcommittee 

on  Criminal  Laws  and  Procedures  of  Committee  on  the  Judiciary 

of  the  United  States  Senate,  92d  Cong.,  2d  Sess.  4188-90  (1972). 

A  study  of  1,762  cases  involving  organized  crim.e  members  in 

New  York  State  courts  showed  that  44.7  per  cent  of  all  indictments 

against  racketeers  ended  in  dismissal;  while  only  11.5  per  cent  of 

indictments  against  all  defendants  resulted  in  dismissal.   Organized 

crime  figures  were  convicted  in  193  cases;  46  per  cent  of  those 

cases  ended  in  suspended  sentences  or  fines.   The  Committee 

computed  the  probabilities  for  an  organized  crime  figure  going 

to  jail;  the  figures  are  sobering. 

Probability  of  going 
Arrested  for:  to  jail  or  prison 

Larceny 1  in  5 

Gambling 1  in  50 

Extortion 1  in  3 

Narcotics 1  in  4 

Assault 1  in  7 

For  a  vivid  journalistic  description  of  the  leniency  problem,  see 
the  New  York  Times,  Sept.  25,  1972,  p.  1,  col.  6,  reprinted,  the 
Senate  Hearing  cited  supra. 


8839 


offender"  statute.   Such  a  statute  will  usually  require  that  the 

4 
maximum  penalty  be  imposed  on  such  an  offender.    These  special 

procedures,  where  appropriate,  should  be  vigorously  pursued.  There 

is  more,  however,  that  the  prosecutor  can  do  in  the  typical 

situation   where  the  task  is  to  secure  higher  maximums  within 

normal  ranges.    Here,  too,  there  is  a  need  for  vigorous 

action. 


II .  Function  of  the  Presentence  Report 


A.  Individualized  Sentencing  and  the  Presentence  Report 
118    The  American  judicial  system  has  long  recognized  the 
importance  of  individualizing  criminal  sentences.    The  task 
of  matching  the  sentence  to  the  individual  requires  the  judge  to 
balance  a  series  of  factors  in  the  context  of  the  facts  of  a 

4 
See,  e.g.,   Mass.  Gen.  Laws  Ann.  ch.  279  §25: 

Whoever  has  been  twice  convicted  of  crime  and  sentenced 
and  committed  to  prison  in  this  or  another  state,  or 
once  in  this  and  once  or  more  in  another  state,  for 
terms  of  not  less  than  three  years  each,  and  does  not 
show  that  he  has  been  pardoned  for  either  crime  on  the 
ground  that  he  was  innocent,  shall,  upon  conviction  of  a 
felony,  be  considered  an  habitual  criminal  and  be  punished 
by  imprisonment  in  the  state  prison  for  the  maximum  term 
provided  by  law  as  a  penalty  for  the  felony  for  which  he 
is  then  to  be  sentenced. 

The  constitutionality  of  this  statute  was  upheld  in  McDonald 

v.  Massachusetts,  180  U.S.  311  (1901). 

See  Appendix  for  bibliography  on  recidivist  and  "dangerous 
special  offender"  sentencing. 

^See  Williams  v.  New  York,  337  U.S.  241,  247  (1949)  : 

The  belief  no  longer  prevails  that  every  offense  in  a 
like  legal  category  calls  for  an  identicial  punishment 
without  regard  to  the  past  life  and  habits  of  a  particu- 
lar offender. 


92-465  O  -  77  -  18 


8840 


particular  case.  The  judge  must  rely  heavily  on  the  presentence 
report  in  making  his  decision.  Influencing  the  contents  of  that 
report  is  the  first  step  towards  influencing  the  judge's  decision. 

B.  Functions  of  the  Prosecutor  and  the  Probation  Office 
119    The  prosecutor  must  make  available  to  the  court  any  information 
he  has  that  is  material  to  the  determination  of  the  punishment. 
Information  both  favorable  and  unfavorable  to  the  defendant 

should  go  to  the  court.    He  must,  of  course,  m.ake  sure  that  the 

g 
sentence  is  not  based  on  a  mistake  of  fact  or  faulty  information. 

As  a  rule,  the  prosecutor  conveys  this  information  to  the  court 

through  the  probation  office.  It  may,  in  fact,  be  a  violation  of 

due  process  for  the  prosecutor  to  convey  information  directly  to 

9 
the  sentencing  judge  in  absence  of  the  defendant's  counsel. 

The  probation  department  is,  therefore,  a  necessary  intermediary. 

The  probation  department  should  seek  to  obtain 

all  the  relevant  information  the  prosecutor  possesses;  the 
prosecutor  has  a  duty  to  respond. 

1110   The  probation  department  summarizes  the  information  it  has 

collected  in  a  presentence  report.   This  report  is  the  sentencing 
—   -   — 
Brady  v.  Maryland,  373  U.S.  83,  92  (1963). 

o 

United  States  v.  Malcolm,  432  F.2d  809,  818  (2d  Cir.  1970). 

9 

Haller  v.  Robbins,  409  F.2d  857,  861  (1st  Cir.  1969). 

See  United  States  v.  Needles,  472  F.2d  652,  654-55  (2d  Cir. 
1973): 

[N]o  defendant  can  reasonably  expect  the  probation 
office  to  refrain  from  seeking  whatever  information 
the  prosecutor  may  have  regarding  the  case  then  before 
the  court  or  any  other  case  involving  that  defendant. 
In  fact,  a  failure  to  so  inquire  or  refusal  to  respond 
accurately  would  be  a  breach  of  duty   (emphasis  added) . 


8841 


judge's  primary  guide. 

C.  The  Right  of  Allocution 

1111  The  presentence  report,  of  course,  is  not  the  judge's 

only  source  of  information.   All  jurisdictions  recognize  the 

defendant's  right  to  make  a  statement  before  sentencing — the 

right  of  allocution.   New  Jersey  Court  Rule  3.21-4  (b),  for 

example,  provides: 

Before  imposing  sentence  the  court  shall  address 
the  defendant  personally  and  ask  him  if  he  wishes  to 
make  a  statement  in  his  own  behalf  and  to  present  any 
information  in  mitigation  of  punishment.  .  .  . 

N.Y.  Crim.  Pro.  Law  §380.50  (1971)  also  permits 

both  the  defendant  and  his  counsel  an  opportunity  to  speak 

before  sentence  is  set.   The  judge  must  ask  the  defendant 

whether  he  wishes  to  make  a  statement. 

1112  The  general  acceptance  of  the  right  of  allocution,  however, 
does  not  qualify  the  central  importance  of  the  presentence 
report.   It  remains  the  sentencing  judge's  primary  guide,  and 
its  scope  should  then  be  a  matter  of  great  concern  to  the 
prosecutor. 

1113  Section  380.50  also  provides  the  prosecutor 
with  a  right  to  speak  before  sentencing. 

The  statute  reads:  "At  the  time  of  pronouncing  sentence,  the 
court  must  accord  the  prosecutor  an  opportunity  to  make  a 
statement  with  respect  to  any  matter  relevant  to  the  question 
of  sentence."   New  Jersey  Court  Rule  3.21-4 (b),  however,  con- 
tains no  such  provision.   In  all  cases  the  prosecutor  ought 
to  seek  to  be  heard  in  the  public  interest. 


8842 


III.  Scope  of  the  Presentence  Report 


A .  General  Admissibility  of  Information 

1114   The  pertinent  statutes  offer  only  general  guidance,  but 

they  do  indicate  the  v.'ide  range  of  information  which  may  be 

included  in  a  presentence  report.   Kule  32(c)(2)  of  the  Federal 

Rules  of  Criminal  Procedure,  for  example,  states: 

The  report  of  the  presentence  investigation  shall 
contain  any  prior  criminal  record  of  the  defendant 
and  such  information  about  his  characteristics,  his 
financial  condition  and  the  circumstances  effecting 
his  behavior  as  may  be  helpful  in  imposing  sentence 
or  in  granting  probation  or  in  the  correctional 
treatment  of  the  defendant,  and  such  other  information 
as  may  be  required  by  the  court. 

The  analogous  New  Yor)<:  statute,  N.Y.  Crim.  Pro.  Law 

§390 . 30  (1)  (1971),  provides  that  the  presentence  investigation 

should  consist  of: 

the  gathering  of  information  with  respect  to  the 
circumstances  attending  the  commission  of  the  offense, 
the  defendant's  history  of  delinquency  or  criminality, 
and  the  defendant's  social  history,  employment  history, 
family  situation,  economic  stature,  education  and  personal 
habits . 

This  section  of  the  statute  also  allows  the  agency  conducting  the 
investigation  to  include  any  other  information  it  considers  rele- 
vant to  the  question  of  the  sentence.   Other  statutes  in  New 
Jersey  and  Massachusetts  are  less  explicit  on  what  information, 
beyond  the  criminal  record  of  the  defendant,  may  be  included 
in  the  presentence  report.      The  general  rule  underlying  these 

■""■""See  N.J.  Court  Rule  3:21-2  and  Mass.  Gen.  Laws  Ann.  ch .  279 
§4A7~ch.  276  §85,  ch.  276  §100.   The  vagueness  of  the  New  Jersey 
requirements,  however,  should  not  lead  the  prosecutor  in  that 
state  to  underestimate  the  importance  of  the  presentence 
report.   In  New  Jersey,  the  sentencing  judge  is  strictly  con- 
fined to  reliance  on  material  contained  in  that  report.   Rule 


8843 


statutes  is  that  there  should  be  no  formal  limitations  on  the 
contents  of  presentence  reports.   This  rule  reflects  the  philo- 
sophy of  the  individualized  sentence;  a  judge  must  have  a  wide 

12 
scope  of  inquiry  in  determining  the  proper  sentence.     The 

rules  of  evidence  and  the  due  process  guarantees  of  the  trial 
therefore,  play  no  role  here. 

1115   Accordingly,  the  sentencing  judge  may  usually  consider 
information  not  ordinarily  admissible  at  trial,  including  hear- 
say evidence  or  evidence  not  related  to  the  crime  for  which  the 

11  (continued) 
3:21-2  requires   that,  "The  report  shall  be  first  examined  by 
the  sentencing  judge  so  that  matters  not  to  be  considered  by 
him  in  sentencing  may  be  excluded.   The  report,  thus  edited, 
shall  contain  all  presentence  material  having  any  bearing  on 
the  sentence.  ..." 

This  principle  was  followed  in  State  v.  Leek  is ,  79  N.J.  479, 
487,  192  A. 2d  161,  165  (1963),  which  held  that  a  judge  should 
limit  himself  in  passing  sentence  to  what  he  learned  in  the  course 
of  the  trial  or  from  the  presentence  report.   A  New  Jersey  court 
has  even  held  that  a  judge's  personal  knowledge  of  the  defendant's 
history  must  be  officially  recorded  in  the  presentence  report 
in  order  for  the  judge  to  use  it  in  sentencing.   State  v.  Gattling, 
95  N.J.  Super.  103,  230  A. 2d  157  (1967). 


^See  Williams  v.  New  York,  337  U.S.  241,  247  (1949): 

.  .  .  modern  concepts   individualizing  punishment  have 
made  it  all  the  mora  necessary  that  a  sentencing  judge 
not  be  denied  an  opportunity  to  obtain  pertinent  infor- 
mation by  a  requirement  of  rigid  adherence  to  restrictive 
rules  of  evidence  properly  applicable  to  the  trial. 

See  also  United  States  v.  Baratta,  360  F.  Supp.  512,  514-15 
(S.D.N.y.  1973)  : 

No  clamp  should  be  placed  upon  the  sentencing  judge  or 
barrier  created  to  prevent  him  from  pursuing.  .  .  a 
reasonable  inquiry  into  a  defendant's  behavioral  pattern 
over  a  substantial  period  of  time  antedating  the  criminal 
act  which  brought  him  before  the  court--for  whatever  good 
or  bad  may  come  from  it. 


8844 


defendant  was  convicted.     18  U.S.C.  §3577,  for  example,  reflects 

this  principle  in  federal  law: 

No  limitation  shall  be  placed  on  the  information 
concerning  the  background,  character  and  conduct  of  a 
person  convicted  of  an  offense  which  a  court  of  the  United 
States  nay  receive  and  consider  for  the  purpose  of  imposing 
an  appropriate  sentence. 

New  York  has  a  similar  statute  applicable  to  persistent  felony 

offenders . 

1116   The  prosecutor  should  use  this  liberal  policy  when  he 

seeks  a  long-term  sentence  for  the  convicted  racketeer.   Upper 

echelon  organized  crime  figures  often  face  prosecution  for 

nonviolent  crimes,  such  as  tax  evasion.   The  prosecutor  may, 

however,  use  a  history  of  violence  associated  with  the  offender 

to  shape  the  presentence  report  to  obtain  a  longer  sentence. 

The  general  character  of  the  sentencing  process,  therefore, 

seems  well  suited  to  the  control  of  organized  crime. 


B.  General  Limits 

1117   There  are,  of  course,  certain  general  due  process  limits 

See  Williams  v.  New  York,  337  U.S.  241,  246  (1949);  Williams 
v. "Oklahoma,  358  U.S.  576,  586  (1959).   There  is  generally  no 
special  burden  of  proof  applicable  in  sentencing.   Nevertheless, 
where  the  sentencing  judge  wishes  to  rely  on  trial  perjury  to 
enhance   the  sentence,  the  trend  is  to  require  that  the  fact  of 
perjury  be  found  beyond  a  reasonable  doubt.   See^  United  States 
V.  Hendrix,  505  F.2d  1233,  1236-37  (2d  Cir.  1974)  and  authorities 
cited  therein. 

14 

N.Y.  Crim.  Pro.  Law  §400.20(5)  (1971).   For  this  separate 

problem  of  the  special  dangerous  offender  see  section  II 
of  the  Appendix  to  these  materials. 


8845 


on  what  information  can  be  used  to  determine  a  sentence. 
The  Supreme  Court  wrote  broad  tests  for  reviewing  the  sentencing 
process  in  Hill  v.  United  States:      Is  sentencing  infected 
with  fundamental  defects  resulting  in  a  miscarriage  of  justice? 
--Is  it  consistent  with  the  rudimentary  demands  of  fair  pro- 
cedure?  The  application  of  this  language  usually  turns  on 
a  determination  of  whether  the  report's  factual  assertions 
have  an  appropriate  degree  of  reliability.   Sentences  founded 
upon  "misinformation  of  a  constitutional  magnitude"  or 
"extensively  and  materially  false"  information  cannot  stand. 
This  qualification  tempers  the  general  rule  that  presentence 
reports  need  not  conform  to  the  rules  of  evidence  or  limit 
themselves  to  established  facts. 

1118   The  sentencing  judge  is  free  to  decide  the  degree  of  required 
factual  support  on  a  case-by-case  basis.   The  enormous 

Note  first  a  special  limitation  defined  in  New  Jersey. 
If  the  defendant  may  have  the  presentence  report  disclosed 
to  him  certain  irrelevancies ,  confidential  statements,  and 
medical/diagnostic  opinions  should  be  excluded  if  they  would 
harm  the  defendant's  rehabilitation.   Such  matters  may  certainly 
be  investigated,  but  may  not  be  included  in  the  report.   See 
State  V.  Green,  62  N.J.  547,  303  A.2d  312  (1973). 

^^^368  U.S.  424,  428  (1962). 

^^See  United  States  v.  Tucker,  404  U.S.  443,  447  (1972) 
(sentence  founded  in  part  upon  misinformation  of  a  constitutional 
magnitude);  Townsend  v.  Burke,  334  U.S.  736,  741  (1948)  (prejud- 
ice created   by  the  prosecution's  submission  of  misinformation 
regarding  defendant's  prior  criminal  record  or  by  the  court's  care- 
less misreading  of  that  record  yielded  a  denial  of  due  process  of 
law;  sentence  invalid) . 

For  a  statement  of  that  general  rule,  see  Farrow  v.  United 
States,  373  F.  Supp.  113  (S.D.Cal.  1974 ) (presentence  reports 
are  not  required  to  conform  to  the  rules  of  evidence,  and 
their  contents  are  not  restricted  to  established  facts). 


8846 


variety  of  information  available  requires  such  an  ajd  hoc 

1  8 
method.*    The  Ninth  Circuit  has  tried,  however,  to  set  cer- 

19 

tain  minimum  standards.   In  United  States  v.  Weston,     the 

defendant  received  an  additional  fifteen  year  sentence  on 

the  basis  of  an  unsworn  statement  of  unverified  reports, 

by  an  anonymous  informer,  alleging  that  the  defendant  engaged 

in  additional  and  far  more  serious  crimes;  the  court  stated: 

.  .  .  In  Townsend  v.  Burke ,   the  Supreme  Court  made 
it  clear  that  a  sentence  cannot   be  predicated  on  false 
information.   We  extend  it  but  little  in  holding  that  a 
sentence  cannot  be  predicated  on  information  of  so  little 
value  as  that  here  involved.   A  rational  penal  system 
must  have  some  concern  for  the  probable  accuracy  of  the 
informational  inputs  in  the  sentencing  process. 

The  Ninth  Circuit,  however,  recently  limited  Weston  in  Santorio 

20 
V.  United  States,    holding  that  the  defendant  must  make  an 

affirmative  showing  of  direct  prejudice  (i.e. ,  led  to  higher 

sentence)  for  the  court  to  disregard  the  hearsay  portion  of 

1 8 

A  court  may  rely  on  "responsible  unsworn  or  'out  of  court' 

information  relative  to  the  circumstances  of  the  crime  and  to 

the  convicted  person's  life  and  characteristics."   Williams 

V.  Oklahoma,  358  U.S.  576,  584  (1959). 

•"■^448  F.2d  626,  634  (9th  Cir.  1971),  cert,  denied,  404  U.S. 
1061  (1972).   The  court  stated: 

Here  the  other  criminal  conduct  charged  was  very  serious, 
and  the  factual  basis  for  believing  the  charge  was  almost 
nil.   It  rested  upon  only  two  things:  the  opinion  of 
unidentified  personnel  in  the  Bureau  of  Narcotics  and 
Dangerous  Drugs,  and  the  unsworn  statement  of  one  agent 
that  an  informer  had  given  him  some  information  lending 
partial  support  to  the  charge.   Id^.  at  633. 

^°462  F.2d  612  (9th  Cir.  1973).   The  District  Court  of  the 
Southern  District  of  California,  part  of  the  Ninth  Circuit,  applied 
this  qualification  in  Farrow  v.  United  States,  373  F.  Supp.  113, 
119  (1974)  (absent  an  affirmative  showing  of  direct  prejudice, 
there  is  no  compulsion  to  disregard  the  hearsay  portion  of  the 
presentence  report) . 


8847 

the  presentence  report.  The  defendant,  therefore,  bears  the 
double  burden  of  showing  both  the  falsity  of  the  information 
and  its  prejudicial  effect.   An  attempt  to  use  the  Weston 

holding  in  the  First  Circuit  failed  in  United  States 

21 

V.  Williams .     There,  the  court  found  that  sworn  testimony 

from  three  individuals  concerning  the  defendant's  role  in 

a  heroin  distribution  racket  was  adequate  to  justify  a  sentence 

in  the  upper  range  of  the  authorized  maximum. 

1|19   What  happens  when  the  defendant  challenges  the  factual 

basis  of  a  presentence  report?   The  Supreme  Court  in  Specht  v. 

Patterson  held: 

The  Due  Process  Clause  of  the  Fourteenth  Amendment 
.  .  .  [does]  not  require  a  judge  to  have  hearings  and 
to  give  a  convicted  person  an  opportunity  to  participate 
in  those  hearings  when  he  comes  to  determine  the 
sentence  to  be  imposed. 22 

Thus,  as  a  general  rule,  the  manner  of  rebutting  hearsay 

assertions  in  a  presentence  report  is  determined  by  the 

23 
informed  discretion  of  the  sentencing  judge.     This  policy 

of  reliance  upon  the  judge's  discretion  keeps  the  defendant 

^■""499  F.2d  52  (1st  Cir.  1974). 

^^386  U.S.  605,  606  (1967) . 

^ ^ Farrow  V.  United  States,  373  F.  Supp.  113,  118  (1974).   See 
also  State  v.  Green,  62  N.J.  547,  303  A. 2d  312,  321  (1973), 
citing  State  v.  Pohlabel,  61  N.J.  Super.  242,  160  A. 2d  647  (I960)' 

Ordinarily,  where  there  is  an  issue  of  prejudice 
claimed  by  a  defendant,  it  is  presumed  that  a  sentencing 
judge  disregarded  incompetent  or  immaterial  evidence  in 
estimating  the  appropriateness  of  a  particular  degree  of 
punishment. 


8848 


from  initiating  an  endless  series  of  collateral  disputes. 


C.  The  Admissibility  of  Information:  Specific  Issues 
1.  Hearsay 

1120   Judges  often  view  hearsay  evidence,  inadmissible  at 

25 
trial,  as  sufficiently  reliable  for  sentencing.     A  court 

may  rely,  for  example,  on  pertinent  evidence  from  another  case 

^^The    Second  Circuit,  in  United  States  v.  Needles,  472  F.2d  652, 
657-58  (2d  Cir.  1973),  remarked  on  this  problem  of  challenges 
by  the  defendant: 

The  real  question  is  whether  the  judge  was  entitled 
to  credit  the  statements  of  unidentified  undercover 
agents  over  defendant's  denials  and  explanations.   It 
is  conceded  that  "material  false  assumptions  as  to 
any  facts  relevant  to  sentencing   render   the  entire 
sentencing  procedure  invalid  as  a  violation  of  due 
process   (citations  omitted).  It  does  not  follow, 
however,  that  an  evidentiary  hearing  must  be  held  whenever 
a  defendant  asserts  the  falsity  of  some  statement  in  his 
presentence  report.  .  .  .  Since  sentences  should  not  be 
based  upon  misinformation,  a  defendant  should  not  be 
denied  an  opportunity  to  state  his  version  of  the 
relevant  facts  (citations  omitted)  and  in  some  circum- 
stances the  probation  office  or  prosecution  should  be 
requested  to  provide  substantiation  of  challenged  infor- 
mation submitted  to  the  judge.  ...  In  appropriate 
instances  the  defendant  ought  to  be  allowed  to  present 
evidence  in  the  form  of  affidavits,  documents,  or  even 
oral  statements  by  knowledgable  persons  on  matters  the 
court  deems  material  to  its  decision  on  the  severity  of 
sentence.   But  this  court  has  generally  left  the  decision 
as  to  the  appropriateness  in  any  particular  case  of  these 
procedures  largely  to  the  discretion  of  the  sentencing 
judge.  .  .  . 

Perhaps  in  a  case  where  the  defendant  denied  every- 
thing and  there  was  a  chance  that  an  entire  incident  had 
been  manufactured  or  that  serious  charges  in  the  presentence 
report  on  which  the  judge  sought  to  rely  were  completely 
false,  we  would  require  further  corroboration  of  the  report 
even  though  the  sentencing  judge  thought  it  unnecessary. 
But  this  is  not  such  a  case.  .  .  . 


25 


See  Williams  v.  New  York,  337  U.S.  241  (1949);  Williams  v. 


Oklahoma,  358  U.S.  576  (1959) 


8849 


in  determining  sentence,  although  such  evidence  is  hearsay  with 

2  6 
respect  to  the  defendant. 


2.  Polygraph  Tests 

1121   A  New  Jersey  court  has  held  that  expert  testimony  inter- 

27 
preting  a  polygraph  test  may  be  used  in  sentencing.     Note 

that  the  taking  of  the  test  was  voluntary,  and  that  the  expert 

testimony  could  only  be  used  to  show  facts  not  decided  by 

the  trial  jury  or  material  to  its  deliberations.   Even  this 

circumscribed  use  of  the  polygraph,  however,  reflects  the 

liberal  standards  for  the  use  of  evidence  in  sentencing. 


3 .  Prior  Conviction  Record 

1122  The  prosecutor  may  also  use  a  prior  conviction  record  to 
argue  for  a  long  sentence  for  the  racketeer.   This  practice 

does  not  create  double  jeopardy  for  the  defendant  since  he  is 

2  8 

not  being  tried  or  punished  again  for  the  earlier  offense. 

Instead,  the  judge  tries  to  determine  if  the  record  indicates 
a  pattern  of  criminal  behavior  aggravating  the  latest  offense. 

4 .  Invalid  Prior  Convictions 

1123  The  judge  may  not  consider   previous  convictions 


^^United  States  v.  Powell,  487  F.2d  325,  328  (4th  Cir.  1973). 

^ ^ State  V.  Watson,  115  N.J.  Super.  213,  218,  278  A. 3d  543,  546 
(1971). 

^^Cf^.  Moore  V.  Missouri,  159  U.S.  673,  677  (1895)  (aggravation 
of  present  offense  by  special  circumstances)  . 


8850 


29 
which  are  constitutionally  invalid.     This  rule  of  Tucker 

may,  however,  be  narrower  than  it  appears.   In  Lipscomb  v. 
Clark,  the  Fifth  Circuit  defined  a  test  for  the  use  of  invalid 
prior  convictions.     If  on  review,  without  consideration  of 
the  invalid  conviction,  the  maximum  sentence  seems  appropriate  then 
it  may  be  affirmed.   If  it  does  not,  then  a  special  evidentiary 
hearing  must  be  held.     Tucker,  in  short,  does  not  require 
automatic  resentencing.       The  Eighth  and  Fourth  Circuits 
have  taken  an  alternate  route.   They  require  the  defendant  to 
invalidate  the  disputed  prior  conviction  in  the  court  from 

which  it  was  originally  obtained  before  using  it  to  seek 

32 
relief  under  Tucker.      Taking  still  another  approach,  the 

^^United  States  v.  Tucker,  404  U.S.  443,  444  (1972).   Note  also 
that  a  conviction  void  under  statutory  or  decisional  law,  or 
because  of  constitutional  infirmity,  cannot  form  the  basis  for 
the  application  of  a  recidivist  statute.   Burgett  v.  Texas ,  389 
U.S.  109,  114  (1967) (".  .  .  to  permit  a  conviction  obtained  in 
violation  of  Gideon  v.  Wainwright,  372  U.S.  335  (1963),  to  be 
used  against  a  person  either  to  support  guilt  or  enhance  punish- 
ment for  another  offense.  .  .  is  to  erode  the  principle  of  that  case.") 

^°468  F.2d  1321  (5th  Cir.  1972). 

The  First  Circuit  followed  Lipscomb  in  United  States  v.  Sawaya, 
486  F.2d  890,  893  (1st  Cir.  1973) (case  remanded  to  district 
court  for  review  of  the  presentence  report  to  determine  whether 
the  sentence  would  be  appropriate  without  consideration  of  prior 
constitutionally  invalid  convictions).   The  Southern  District  of 
California  followed  Lipscomb  in  Farrow  v.  United  States,  373  F. 
Supp.  113,  117  (1974). 

"^ ^ Brown  V.  United  States,  483  F.2d  116,  118  (4th  Cir.  1973) 
(if  prior  state  convictions  have  been  invalidated  for  want  of 
counsel  in  habeas  corpus  proceedings  begun  initially  in  the 
convicting  state  court,  then  Tucker  demands  resentencing.   If 
there  is  no  such  invalidation  in  that  court  the  Tucker  rule  may 
not  be  invoked);  Young  v.  United  States,  485  F.2d  292,  294  (8th 
Cir.  1973)  (Lipscomb  rejected;  petitioner  invoking  the  Tucker 
rule  must  first  invalidate  the  prior  convictions  in  the  juris- 
dictions where  they  were  obtained) . 


8851 


Ninth  Circuit  has  held  that  "the  mere  fact  that  an  invalid 
conviction  has  been  obtained  does  not  immunize  the  facts 

underlying  the  conviction  from  consideration  by  the  sentencing 

•  J    ..33 
judge . 

5 .  Evidence  Derived  from  Arrests  not  Leading  to  Convictions 
1i24   The  law  is  unclear  as  to  the  use  of  evidence  obtained 
from  prior  arrests  not  leading  to  conviction.   The  dispute 
turns  on  whether  the  facts  underlying  the  arrest  may  be  consid- 
ered by  the  sentencing  judge.   The  Second  Circuit,  in  United 
States  V.  Malcolm,  stated  the  general  rule: 

A  sentencing  judge  is  not  so  narrowly  restricted  in 
imposing  sentence  that  he  cannot  predicate  sentence 
on  habitual  misconduct,  whether  or  not  it  resulted 
in  conviction . 34 

Certain  jurisdictions  have  statutes,  however,  which  limit  the 
judge's  pov;er  to  consider  evidence  derived  from  prior  acquittals. 
Examples  of  such  statutes  are  Mass.  Gen.  Laws  Ann.  ch .  276  §85 
and  Mass.  Gen.  Laws  Ann.  ch.  279  §4A,  which  require  that  the  presen- 
tence report  "shall  not  contain  as  part  thereof  any  information 
of  prior  criminal  prosecutions,  if  any,  of  the  defendant 
wherein  the  defendant  was  found  not  guilty  by  the  court  or 
jury  in  said  prior  criminal  prosecution." 

^^United  States  v.  Atkins,  480  F.2d  1223,  1224  {9th  Cir.  1973). 
Not^,  however,  that  in  Farrow,  a  district  court  within  the  Ninth 
Circuit  followed  the  Lipscomb  rule  (see  note  31,  sup£a) . 

■^''432  F.2d  809,  816  (2d  Cir.  1970).   See  also  Jones  v.  United 
States,  307  F.2d  190,  192  (D.C.  Cir.),  cert,  denied,  372  U.S. 
919  (1962) (Fed.  R.  Crim.  P.  32(c)(2)  interpreted  as  permitting 
consideration  of  criminal  charges  not  leading  to  convictions). 


8852 


1[25   The  Supreme  Court  of  New  Jersey  noted  that  a  prior  arrest 
could  be  relevant  in  certain  circumstances.     The  sentencing 
judge  may   not  infer  guilt  from  the  mere  fact  of 

arrest,  but  the  fact  of  arrest  may  lead  the  court  to  other  admiss- 
ible facts.   The  court  may,  for  example,  consider  factual 
material  which  the  defendant  did  not  contest  and  which  bears  on 
the  question  of  sentence.     The  judge  may  also  consider  that 
the  earlier  arrest  failed  to  deter  the  defendant  from  committing 
the  current  offense. 

1126   The  courts  have  also  held  that  evidence  from  pending 
indictments  and  from  charges  dismissed  without  adjudication 
may  be  considered  by  the  sentencing  judge.     A  court  may 

^^State  V.  Green,  62  N.J.  547,  571,  303  A. 2d  312,  325  (1973) 
(i.e.,  the  sentencing  judge  may  find  it  significant  that  a  defen- 
dant who  experienced  an  unwarranted  arrest  was  not  deterred  by  that 
fact  from  committing  a  crime  thereafter) .  Here  the  Supreme  Court 
of  New  Jersey  found  that  the  challenged  items  in  the  arrest  report 
did  not  influence  the  sentencing  court  to  enlarge  the  penalties. 


36 


Id.  at  571. 


The  Second  Circuit  held  in  United  States  v.  Metz,  470  F.2d 
1140,  1142  (3d  Cir.  1972),  cert,  denied,  411  U.S.  919  (1973): 

.  .  .  that  indictments  for  other  criminal  activity 
are  of  sufficient  reliability  to  warrant  their 
consideration  by  a  sentencing  judge. 

Accord ,  United  States  v.  Do)'l£,  348  F.2d  715,  721  (2d  Cir.), 
cert,  denied,  382  U.S.  843  (1965): 

[F]ew  things  could  be  so  relevant  as  other 
criminal  activity  of  the  defendant. 

But  see  State  v.  Barbato,  89  N.J.  Super.  400,  215  A. 2d  75,  80 
(1965)  : 

.  .  .  reliance  upon  other  pending  charges  as  a  basis 
for  increasing  the  penalty  for  the  charge  before  the 
court  is  of  highly  questionable  propriety. 


8853 


even  admit,  for  sentencing  purposes,  evidence  of  crimes  for 

38 
which  the  defendant  has  neither  been  charged  nor  indicted, 

and,  at  least  in  the  Second  Circuit,  evidence  of  crimes  of 

39 
which  the  defendant  has  been  acquitted. 


6.  Evidence  Excluded  from  Trial  because  of  Fourth  Amendment 
Violations 

40 

1I26A  In  United  States  v.  Verdugo,     the  Ninth  Circuit  held 

that  it  is  not  proper  to  use  evidence  obtained  in  violation  of 
the  Fourth  Amendment  to  determine  the  sentence.   The  court 
rested  its  holding  on  the  rationale  that  the  "use  of  illegally 

seized  evidence  at  sentencing  would  provide  a  substantial  incen- 

41 
tive  for  unconstitutional  searches  and  seizures."     Verdugo, 

•^^United  States  v.  Weston,  448  F.2d  626,  633  (1971),  cert. 
denied,  404  U.S.  1061  (1972)  : 

We  do  not  desire  to  transform  the  sentencing 
process  into  a  second  trial,  and  we  believe  that 
other  criminal  conduct  may  properly  be  considered, 
even  though  the  defendant  was  never  charged  with  it  or 
convicted  of  it. 

•^^See  United  States  v.  Sweig,  454  F.2d  181,  184  (2dCir.  1972): 

Acquittal  does  not  have  the  effect  of  conclusively 
establishing  the  untruth  of  all  evidence  introduced 
against  the  defendant.   For  all  that  appears  in  the 
record  of  the  present  case,  the  jury  may  have  believed 
all  such  evidence  to  be  true,  but  have  found  that  some 
essential  element  of  the  charge  was  not  proved.   In  fact 
the  )cind  of  evidence  here  objected  to  may  often  be  more 
reliable  than  the  hearsay  evidence  to  which  the  sentencing 
judge  is  clearly  permitted  to  turn,  since  unli)ce  hearsay, 
the  evidence  involved  here  was  given  under  oath  and  was 
subject  to  cross-examination  and  the  judge  had  the 
opportunity  for  personal  observation  of  the  witnesses. 

''°402  F.2d  599  (9th  Cir.  1968),  cert,  denied,  397  U.S.  925 
(1970),  cert,  denied,  402  U.S.  961  (1971). 

^^Id.  at  613. 


8854 


however,  has  not  resulted  in  the  blanket  exclusion  of  such 

evidence.   In  United  States  v.  Schipani , "the  Second  Circuit 

allowed  the  use  in  sentencing  of  evidence  derived  from  illegal 

wiretaps.     The  court  observed: 

The  information  obtained  by  the  wiretaps  was  highly 
relevant  to  the  character  of  the  sentence  to  be 
imposed.  .  .  . 

\-lci   believe  that  applying  the  exclusionary  rule 
for  a  second  time  at  sentencing  after  having  applied 
it  Oiice  at  the  trial  itself  would  not  add  in  any  signi- 
ficant way  to  the  deterrent  effect  of  the  rule.   It 
is  quite  unlikely  that  law  enforcement  officials  conduct 
illegal  electronic  auditing  to  build  up  an  inventory  for 
sentencing  purposes,  although  the  evidence  would  be 
inadmissible  on  the  issue  of  guilt.  .  .  . 

VJhere  illegally  seized  evidence  is  reliable  and  it 
is  ^lear,  as  here,  that  it  was  not  gathered  for  the 
express  purpose  of  improperly  influencing  the  sentencing 
judge,  there  is  no  error  in  using  it  in  connection  with 
fixing  sentence. 43 


7 .  Reputation 

44 
1127   A  New  York  District  Court,  in  United  States  v.  Rao, 

ruled  that  "the  defendant's  alleged  undeiworld  associates  and 

his  alleged  stati:s  in  the  Mafia  or  Cosa  Nostra  cannot  and  do 

45 
not  constitute  a  predicate  or  criterion  for  punishment." 

This  is  no  longer  good  law.   The  Second  Circuit  decision 

in  Schipani  undermined  this  ruling.    There,  tlie  court  affirmed 

'^435  F.2d  626  (2d  Cir.  1970),  cert,  denied,  401  U.S.  983  (1971>. 


and  distinguished  Verdugo.   United  States  v.  Lee,  19  Crim.  T.. 
Kptr.  2194  (4th  Cir.   June  2,  1976). 

''*296  F.  Supp.  1145  (S.D.N.Y.  1969). 

4  S 

Id.  .it  -149. 


8855 

a  District  Court  judge's  decision  to  consider  in  sentencing 
the  defendant's  reputation  as  a  racketeer.   The  First  Circuit 

46 
followed  a  similar  course  of  action  m  United  States  v.  Strauss . 

In  Strauss ,  the  sentencing  judge  had  before  him  sworn  Senate 

testimony  alleging  that  the  defendants  were  members  of  a 

criminal  syndicate.   Accordingly,-  he  gave  them  seven  years 

instead  of  five,  out  of  a  possible  ten. 

1128   In  addition,  the  New  Jersey  Supreme  Court,  in  State  v. 

47 
Leverette,    affirmed  a  long-term  sentence  for  a  defendant 

whose  presentence  report  showed  nc  prior  criminal  record,  and 

that  he  was  a  responsible  husband  and  father.   In  so  doing, 

the  court  upheld  the  sentencing  judge's  reliance  in  making 

his  decision  on  the  defendant's  identity  as  a  racketeer. 

49 
The  court  amplified  this  holding  in  S  tate  v.  Souss ,    stating 

''^443  F.2d  986  (1st  Cir.  1971).   The  court  stated: 

Although  the  judge  failed  to  articulate  why  he 
thought  this  evidence  warranted  an  additional  two 
years,  we  note  tnat  memibership  in  a  criminal  syndicate 
is  clearly  relevant  to  questions  of  corrigibility  and 
likelihood  of  reformation  in  a  short  period  of  time. 
Id.  at  990. 

The  Seventh  Circuit  recently   refused   to  follow  Rao 
and  approved  the  use  of  "organized  crime  connections  in 
imposing  a  sentence."   United  States  v.  Cordi,  17  Crim. 


64  N.J.  569,  319  A. 2d  219  (1974). 

48 

Id.  at  571,  323  A. 2d  at  220.   The  court  observed: 

The  sentencing  judge,  based  on  the  trial  record,  charac- 
terized the  defendant  as  the  key  figure  i.n  a  substantial 
gambling  operation.   The  sentence  was  bottomed  on  the 
foregoing  evaluation  of  the  defendant's  involvement  and 
warrants  the  sentence  imposed. 

''^65  N.J.  453,  323  A. 2d  484  (1974). 


32-46?  O  -  77  -  I& 


8856 


that: 

(A]  defendant's  connection  with  organized  crime 
is  a  most  important  factor  to  consider,  along  with  all 
the  other  circumstances,  in  determining  the  severity 
of  punishment  to  be  meted  out. 50 

The  prosecutor's  ability  to  use  what  he  knows  about  the  racketeer, 

therefore,  appears  to  be  growing. 


8 .  Defendant's  Right  to  View  and  Challenge  the  Presentence 
Report 

V28A  Hew  Jersey,  Massachusetts,  and  the  federal  system  have  statutes 


^°Id.  at  461,  323  A. 2d  at  488-89. 

The  recent  New  Jersey  cases  echo  an  earlier  decision.  State 
V.   Destasio,  49  N.J.  247,  229  A. 2d  636,  cert,  denied, 
389  U.S.  830  (1967).   There,  the  New  Jersey  Supreme  "Court 
defended  an  administrative  rule  directing  a  single  judge  in 
each  county  to  impose  sentence  in  gambling  cases,  in  the  interest 
of  uniformity. 

By  and  large  the  defendants  who  are  caught  are  not 
vicious  and  do  not  menace  society  in  other  respects, 
but  they  are  the  hired  help  of  the  syndicate  without 
which  it  could  not  operate.   The  difficulty  has  been  that 
some  judges  cannot  see  beyond  the  individual  they  are 
sentencing.   If  such  a  judge  imposes  nothing  more  painful 
than  a  fine,  his  view  is  almost  certain  to  become  the  rule 
of  the  county  in  which  he  sits.   This  is  so  because  de- 
fendants will  wait  for  that  judge,  if  they  can,  and  plead 
guilty  before  him.   Moreover,  a  soft  judge  can  make  a 
sensible  one  seems  harsh  and  severe,  and  hence,  unhappily, 
judges  tend  to  abide  by  the  performance  of  the  most  unreal- 
istic among  them.   49  N.J.  at  254-55,  229  A. 2d  at  640. 

The  court  then  concluded: 

Nor  is  there  substance  to  the  claim  that  the  individual 
is  denied  equality  when  the  court  deals  specially  with 
the  special  evils  of  syndicated  crime.  .  .  .  Id.  at  260, 
229  A. 2d  at  643. 


8857 


52 
requiring  disclosure  of  the  presentence  report.    The  New  York 

statute  leaves  disclosure  to  the  judge's  discretion.  ''   The  New  York 

courts  have  tended,  however,  to  encourage  disclosure  as  the 

54 
rule  of  practice.     The  defendant  also  has  different  kinds 

of  statutory  protection  in  New  York.   He  may  file  a  presentence 

memorandum  covering  his  entire  life  history.     The  court,  in  its 

discretion,  may  hold  a  presentence  conference  to  resolve  any 

discrepancies  between  the  information  submitted  by  the  defendant 

56 
and  that  received  from  other  sources.     The  prosecutor  must 

52 

For  New  Jersey,  see  N.J.  Court  Rule  3:21-2.   See  also  State 

V.  Kunz,  55  N.J.  128,  259  A. 2d  895  (1969).   For  MassacHusetts 
see  Mass.  Gen.  Laws  Ann.  ch .  279  §4A  and  ch .  276  §85.   For 
the  federal  courts,  as  of  Dec.  1,  1975,  see  Fed.  R.  Crim.  P. 
32  (c)  (3)  .   Note  that  the  Federal  Rule  has  changed  from 
leaving  disclosure  to  the  judge's  discretion  to  mandating  it. 
A  total  refusal  to  disclose  remains  a  permissible  option 
in  certain  extraordinary  situations.   The  court  in  (Jnijted 
States  V.  Long,  19  Crim.  L.  Rptr.  2201-02  (E.D.  Mich.,  April 
29,  1976)  found  that  such  an  extraordinary  situation  did 
not  exist  in  that  case  and  that  the  sentencing  magistrate 
erred  in  following  such  a  course.   The  magistrate  should  have 
disclosed  the  contents  of  the  report  to  the  counsel  and  in- 
structed him  not  to  pass  the  information  along  to  his  client. 
The  court  remarked  that  this  alternative  would  be  helpful 
in  cases  involving  potential  harm  to  third  persons  if  the 
defendant  learned  the  contents  cf  the  report.   This  proce- 
dure may  be  of  limited  use  in  the  organized  crime  context, 
in  situations  where  the  defense  attorney  may  ignore  the 
judge's  instructions. 

^■'n.Y.  Crim.  Pro.  Law  §380.50  (McKinney  1971). 

^^See  People  v.  Perry,  36  N.Y.2d  114,  120,  365  N.Y.S.2d  518, 
522,  324  N.E.2d  878,  881  (1975)  (fundamental  fairness  and  the 
appearance  of  fairness  may  be  best  served  by  the  disclosure 
of  presentence  reports,  but  the  refusal  to  disclose  the  report 
does  not  constitute  an  abuse  of  discretion) . 

^^N.Y.  Crim.  Pro.  Law   §390.40  (McKinney  1971). 

^^Id.  §400.10. 


8858 


have  reasonable  notice  of  that  conference,  and  an  opportunity 

.  .      57 
to  participate.     The  court  may  compel  the  prosecutor  to 

reveal  questioned  evidence  to  the  defendant  at  that  conference 

for  the  purpose  of  rebuttal. 

'.',29      A  policy  of  disclosing  presentence  reports  to  defendants 

can  help  the  prosecutor.   If  the  defendant  has  an  opportunity 

to  viev/  and  cliallenqe  the  report,  the  prosecutor's  respons  i'r  i  1  ity 

;;o  verify  the  report's  allegations  may  lessen.   Those  alleg^i- 

tions  may  have  to  meet  a  lower  measure  of  reliability. 

ir.iO   In  sum,  these  flexible  safeguards  provide  the  prosecutor 

with  clear  opportunities  to  introduce  the  defendant's  connection 
with  organized  crime. 

IV.  Appellate  Revicv.-  of  Sentence 


A.  In  General 

1131   The  hornbook  rule  is  that  an  appellate  court  will  not 

disturb  a  criminal  sentence  unless  it  either  exceeds  stat- 

58 
utory  limits  or  represents  a  clear  abuse  of  discretion. 

Most  jurisdictions,  however,  have  statutes  authorizing  the 

appeal  of  illegal  sentences.   Traditionally,  those  statutes 

have  been  construed  as  not  sanctioninc  the  increase  of  a 


57 


58 


Id. 


Gore  V.  United  States,  357  U.S.  386,  393  (1958)  (sentence  imposed 
by  federal  district  judge,  if  within  statutory  limits,  held 
generally  not  subject  to  review) . 


8859 


59 
sentence  on  review.     In  New  York,  for  example,  the  prose:Cutor 

itiay  appeal  only  those  sentences  which  are  invalid  as  a  matter 
of  law.     Nevertheless,  it  might  legitimately  be  argued  that 
a  judge,  as  a  matter  of  law,  abuses  his  discretion  when  he 
sets  too  leniont  a  sentence.      If  so,  thien  a  sentence  sub- 
stantially too  lenient  could  be  characterized  as  illegal,  and 
it  could  be  reviewed  on  appeal  by  the  prosecutor.   The  New 
York  prosecutor  may,  however,  under  the  usual  interpretation, 
challenge  only  those  sentences  which  fail  to  meet  the  minimum 
legal  terms. 


B.  Defendant's  Right  to  Appeal  and  the  Danger  of  an  Increased 
Sentence 

1132   Massachusetts,  Connecticut,  and  Maryland  allow  the  appellate 

ft  y 

court  to  increase  the  sentence  when  certain  defendants  appeal. 

^^See,  e.g.  ,   Fed.  R.  Crim.  P.  35;  N.J.  Court  Rule  3:21- 
10.   For  a  brief  description  of  other  such  state  statutes 
see  McClellan,  "The  Organized  Crime  Act  (S.30)  or  its  Critics: 
VJhich  Threatens  Civil  Liberties?"  46  Notre  Dame  Lawyer  55, 
178-79,  note  567  (1970).  The  leading  case  propound irig~th is 
interpretation  is  Ex  Parte  Lange,  85  U.S.  (18  Wall.)  163  (1874).  See 
also  United  States  v.  Benz,  282  U.S.  304,  307  (1931)  (to  increase 
the  sentence  already  in  service  is  to  subject  the  defendant  to 
double  punishment  in  violation  of  the  Double  Jeopardy  Clause  of 
the  Fifth  Amendment).   In  United  States  v.  Sacco,  367  F.2d  368 
(2d  Cir.  1966),  the  court  considered,  but  finally  rejected,  the 
defendant's  proposed  exception  to  the  rule  of  Lange ,  supra . 

^°N.Y.  Crim.  Pro.  Law   §§440.40,  450.30  (McKinney  1971). 

But  see,  id. ,  §450.30,  Commission  Staff  Comment.   The  comment 
casts  doubt  on  this  argument. 

6  p 

Mass.  Gen.  Laws  Ann.  ch.  278  §§28A  and  28B  (Cum.  Supp.  1975); 

Conn.  Gen.  Stat.  Ann.  §51-196  (Supp.  1976) ;  Md .  Ann.  Code  art. 

27,  §§645JA  to  645JG  (1976).   Mass  Gen.  Laws  Ann.  ch.  278 

§28A  reads  in  part: 

There  shall  be  an  appellate  division  of  the  superior 


8860 

The  constitutional  objection  usually  raised  against  such 
proceedings  is  that  the  possibility  of  an  increase  in  sentence 
violates  the  defendant's  due  process  rights.   The  Supreme 
Court's  decision  in   North  Carolina  v.  Pearce  is  the  usual 
base  upon  which  this  objection  rests.     There,  the  Court  held 
that  a  defendant  who  has  obtained  a  retrial  after  making  an 
appeal  should  be  protected  from  the  imposition  of  an  increased 
sentence  by  a  vindictive  judge.   The  crux  of  the  Pearce  decision 

62  (continued) 

court  for  the  review  of  sentences  to  the  state  prison 
imposed  by  final  judgments  in  criminal  cases,  except 
in  any  case  in  which  a  different  sentence  could  not 
have  been  imposed,  and  for  the  review  of  sentences 
to  the  reformatory  for  women  for  terms  of  more  than  five 
years  imposed  by  final  judgments  in  such  criminal  cases.  .  .  . 
No  justice  shall  sit  or  act  on  an  appeal  from  a  sentence 
imposed  by  him. 

The  relevant  portions  of  Mass.  Gen.  Laws  Ann.  ch .  278  §28B  stipulate: 

A  person  aggrieved  by  a  sentence  which  may  be  reviewed 

may  appeal  to  the  appellate  division  for  a  review  of  such 

sentence.  .  .  The  justice  who  imposed  the  sentence  appealed 

from  may  transmit  to  the  appellate  division  a  statement 

of  his  reasons  for  imposing  the  sentence  and  shall  make  such 

a  statement  within  seven  days  if  requested  to  do  so  by  the 

appellate  division. 

The  appellate   division  shall  have  jurisdiction  to 
consider  an  appeal  with  or  without  a  hearing,  review  the 
judgment  so  far  as  it  relates  to  the  sentence  imposed 
and  also  any  other  sentence  imposed  with  the  sentence 
appealed  from  was  imposed,  notwithstanding  the  partial 
execution  of  any  such  sentence,  and  shall  have  jurisdiction 
to  amend  the  judgment  by  ordering  substituted  therefore 
a  different  appropriate  sentence  or  sentences  or  any 
other  disposition  of  the  case  which  could  have  been  made 
at  the  time  of  the  imposition  of  the  sentence  or  sentences 
under  review,  but  no  sentence  shall  be  increased  without 
giving  the  defendant  an  opportunity  to  be  hoard.   If  the 
appellate  division  decides  that  the  original  sentence  or 
sentences  should  stand,  it  shall  dismiss  the  appeal.   Its 
decision  shall  be  final.  .  .  .  The  appellate  division  may 
require  the  production  of  any  records,  documents,  exhibits 
or  other  things  connected  with  the  proceedings.  .  .  . 


63 


395  U.S.  711  (1969)  . 


8861 


was  the  fear  of  vindictiveness  because  of  a  defendant's  appeal. 

64 
Later  cases,  however,  have  read  Pearce  narrowly.     In  short, 

the  "...  lesson  that  emerges  from  Pearce,  Colten,  and 

Chaf fin  is  that  the  Due  Process  Clause  is  not  offended  by 

all  possibilities  of  increased  punishment  upon  retrial 

after  appeal,  but  only  those  that  pose  a  likely  threat  of 

.  ,.  ,.        „65 
vindictiveness. 

1133   The  Supreme  Judicial  Court  of  Massachusetts  has  held  since 

Pearce  that  its  statutory  procedure  precludes  the  possibility  of 

vindictiveness.     Under  Mass.  Gen.  Laws  Ann.  ch.  278  §2''8A, 

the  sentencing  judge  cannot  sit  as  a  member  of  the  appellate 

division,  the  court  that  sets  the  final  sentence.   The  court 

also  supported  its  decision  by  pointing  to  the  record  of  the 

appellate  division  proceedings  from  July  1,  1955  to  June  30, 

1969;  the  record  showed  a  greater  than  four-to-one  ratio  of 

sentence  reduction  to  sentence  increase.     Finally,  the 

^^See  Colten  v.  Kentucky, 407  U.S.  104  (1972)  (higher  sentence  after 
"appeal"  from  lower  trial  court  to  higher  court  for  de  novo  trial 
upheld);  Chaffin  v.  Stynchcombe,  412  U.S.  17  ( 1973)  (higher  sentence 
after  retrial  imposed  by  jury  not  shown  to  be  vindictive) . 

^^Blackledge  v.  Perry,  417  U.S.  21,  27  (1974). 

^ ^ Walsh  V.  Commonwealth,  358  Mass.  193,  260  N.E.2d  911  (1970). 

^^Id.   at  199,  260  N.E.2d  at  915: 

Disposition 

Appeals  Entered 4,201 

Appeals  Withdrawn 1,644 

Appeals  Dismissed 1,892 

Sentences  Reduced 395  (9.42%) 

Sentences  Increased-    87  (2.07%) 

Appeals  Pending 139 

Appeals  Moot 44 


8862 

same  court  suggested  that  the  Pearce  holding  was  actually 

inapplicable  to  the  Massachusetts  statute: 

We  note  finally  that  the  Pearce  rule  does  not 
seem  suited  to  Appellate  Division  proceedings.   It 
does  not  permit  consideration  of  any  factors  but 
the  defendant's  conduct  subsequent  to  the  first 
trial.   Such  a  rule  would  seriously  hamper  the  work  of 
the  Appellate  Division  because  it  would  limit  it  to  the 
brief  period  that  the  defendant  has  been  serving  the 
sentence  in  the  State  prison  or  a  rof orma tory  awaiting 
hearing  on  the  appeal.   Moreover,  the  rule  would  preclude 
consideration  of  the  very  factor  which  the  Appellate 
Division  was  established  to  consider:  whether  a  particular 
defendant's  sentence  is  excessively  short  or  long  compared 
to  other  defendants'  sentences  for  the  same  or  similar 
offenses.   Since  the  Supreme  Court  was  not  considering 
this  procedure,  we  do  not  believe  that  it  meant  the 
Pearce  rule  to  apply  to  it.  .  .  .68 


C.  Prosecutor's  Appeal  for  Increased  Sentence 

1134  The  Massachusetts  statute  allows  an  increase  in  sentence 
only  vipon  a  defendant's  appeal.   The  need  remains,  however, 
for  a  way  in  which  prosecutors  can  call  for  an  increase  in 
sentence.   There  should  be  some  means  of  supervising  those 

trial  judges  who,  because  of  corruption,  political  considerations, 
or  lack  of  knowledge,  give  light  sentences  to  racketeers. 

1135  The  constitutional  barriers  to  such  a  power  do  not  appear 
insurmountable.   Due  process  objections  present  the  least 
difficulty.   Pearce ,  it  should  be  emphasized,  turns  on  the 
issue  of  vindictiveness  caused  by  a  defendant' s  appeal.   Absent 
this  factor,  the  due  process  rationale  for  denying  an  increased 
sentence  seems  thin,  particularly  when  the  prosecutor,  not  the 

^®Id.  at  201,  260  N.E.2d  at  916. 

S_ee   The  Challenge  of  Crime  in  a  P'roe  Society,  The  Report 
of  the  President's  Commission  on  Law  Enforcement  and  Administra- 
tion of  Justice,  203  (1967). 


8863 

defendant,  appeals  a  sentencing  decision  made  in  favor  of  the 
defendant.   The  Pearce  rationale  of  vindi cti veness  should, 
therefore,  be  limited  to  a  situation  in  which  a  rt^sentencing 
judge  is  reversed  for  making  an  error  against  the  defen- 
dant after  an  appeal  brought  by  the  defendant. 

1136  The  Double  Jeopardy  Clause  of  the  Fifth  Amendment  also 

should  not  pose  an  insuperable  difficulty.   As  the  Supreme  Court 

recently  observed,  "...  [T]he  Double  Jeopardy  Clause  of  the 

Fifth  Amendment  is  written  in  terms  of  potential  or  risk  of 

trial  and  conviction,  not  punishment."     This  distinction 

gains  force  from  other  recent  Supreme  Court  decisions  expanding 

the  government's  right  of  appeal  in  criminal  cases.   In  United 

States  v.  Wilson,    the  Court  held: 

Vie    therefore  conclude  that  when  a  judge  rules 
in  favor  of  the  defendant  [on  a  legal  question]  after 
a  verdict  of  guilty  has  been  entered  by  the  trier  of 
fact,  the  government  may  appeal  from  that  ruling  without 
running  afoul  of  the  Double  Jeopardy  Clause.  ''2 

Under  Wilson,  only  facts  going  to  guilt  or  innocence  resolveu 

by  the  trier  of  fact  are  protected  from  appellate  review. 

1137  The  prosecutor  should,  therefore,  be  aware  of  these  new 
possibilities  for  appealing  a  sentence  thought  to  be  too 
lenient.   Prosecutors  in  states  with  statutes  like  New  York's 
should  also  take  them  into  account  when  seeking  to  define  the 
scope  of  their  states'  relatively  liberal  statutes.   These 

^°Price  v.  Georgia,  398  U.S.  323,  329  (1970). 

''-'•420  U.S.  332  (1975)  . 

72 

Id.  at  352. 


8864 


recent  decisions  suggest  that  there  is  no  constitutional 
barrier  to  seeking  review  of  a  judge's  abuse  of  discretion 
in  sentencing.   a  now  interpretation  of  the  present  appeal 
statute  might  also  be  secured  in  the  right  case. 


8865 


Appendix 

I.  Recidivist  Sentencing 

1138   Recidivist  sentencing  [Note:  works  predating  Specht  v. 

Patterson,  386  U.S.  605  (1967),  and  Burgett  v.  Texas,  389 

U.S.  109  (1967),  do  not  reflect  the  current  state  of  the  law]. 

Note,  "Defendant's  Right  to  Protection  from  Prior 
Uncounseled  Convictions," [1973]  Wash.  U.L.Q.  197. 

Cominent,  "Constitutional  Law--Right  to  Counsel-- 
Valid  Misdemeanor  Conviction  Cannot  be  Used  as  Basis 
for  Recidivist  Sentence  if  Defendant  Was  Not  Represented 
by  Counsel  at  Misdemeanor  Trial,"  4  3  N.Y.U.L.  Rev.  1012 
(1968) . 

Annot.,  "Pardon  as  affecting  consideration  of  earlier 
conviction  in  applying  habitual  criminal  statute," 
31  A.L.R.?d  1186  (1953). 

Annot.,  "Chronological  or  procedural  sequence  of  former 
convictions  as  affecting  enhancement  of  penalty  for 
subsequent  offense  under  habitual  criminal  statutes," 
24  A.L.R.2d  1247  (1952). 

Annot .,  "Determination  of  ch-'.racter  of  former  crime  as  a 
felony,  so  as  to  warrant  punishment  of  an  accused  as 
a  second  offender,"  19  A.L.R.2d  227  (1951). 

Annot.,  "What  constitutes  former  'conviction'  within 
statute  enhancing   penalty  for  second  or  subsequent 
offense,"  5  A.L.R.2d  1080  (1949). 

Note,  "'Defective  Delinquent'  and  Habitual  Criminal 
Offender  Statutes--Pequired  Constitutional  Safeguards," 
20  Rutgers  L.  Rev.  756  (1966). 

Note,  "Recidivist  Procedure,"  40  N.Y.U.L.  Rev.  332  (1965) 

Annot.,  "Form  and  sufficiency  of  allegations  as  to  time, 
place,  or  court  of  prior  offenses  or  convictions,  under 
habitual  criminal  act  or  statute,  enhancing  punishment 
for  repeated  offenses,"  80  A.L.R.2d  1196  (1961). 

Annot.,  "Propriety,  under  statute  enhancing  punishment 
for  second  or  subsequent  offense,  of  restricting  new 
trial  to  issue  of  status  as  habitual  criminal,"  79 
A.L.R.2d  826  (1961)  . 


8866 


Annot.  ,  "Evidence  of  identity  for  purposes  of  statute  as 
to  enhanced  punishment  in  case  of  prior  conviction,"  11 
A.L.R.2d  870  (1950) . 

(Bibliography  obtained  from  T.  Amsterdam,  B.  Segal,  and  M. 
Miller,  Trial  Manual  3  for  the  Defense  of  Criminal  Cases,  ALI- 
ABA  Joint  Committee  on  Continuing  Legal  Education  (1975) ,  pp. 
2-154  to  2-155)  . 


II.  Dangerous  Special  Offender  Sentencing 

1139  The  Sixth  Circuit  has  recently  affirmed  the  constitutionality 
of  the  federal  dangerous  special  offender  statute,  18  U.S.C. 

§3575,  a  part  of  Title  X  of  the  Organized  Crime  Control  Act 
of  1973,   in  United  States  v.  Stewart,  531  F.2d 

326  (1976).   Section  3575  provides  an  increased  sentence  for 

dangerous  special  offenders  onco  certain  age,  frequency  of 

conviction,  and  time  standards  are  met.   Section  3575(b)  reads: 

.  .  .  the  court  shall  sentence  tho  defendant  to 
imprisonment  for  an  appropriate  term  not  to  exceed 
twenty-five  years  and  not  disproportionate  in 
severity  to  the  maximum  term  othc-rwise  authorized 
by  law  for  such  felony. 

The  court  below  had  ruled  that  section  3575(b)  was 
unconstitutionally  vague  and  that  a  sentence  given  under  its 
terms  would  be  a  denial  of  due  process  in  violation  of  the 

Fifth  Amendment.   The  court  similarly  held  that  section  3575(f) 

was  unconstitutionally  vague.   Section  3575(f)  reads: 

.  .  .  a  defendant  is  dangerous  for  purposes  of  this 
section  if  a  period  of  confinement  longer  than  that 
required  for  such  felony  is  required  for  the  protection 
of  the  public  from  further  criminal  conduct  by  the 
defendant. 

1140  The  Sixth  Circuit  reversed  both  holdings.   First,  the  court 
listed  several  procedural  safeguards  regulating  use  of  the 


1/ 

8867 


increased  sentence,  and  found  that  those  procedures  were  far 
less  arbitrary  than  those  employed  in  ordinary  sentencing  prac- 
tices.  For  example,  section  3575(b)  requires  a  presentence 
hearing,  detailed  notice  to  the  defendant,  and  reasonable  time  for 
verification  of  allegations.   The  statute  expressly  guarantees 
the  defendant  the  right  to  counsel,  compulsory  process,  and 
cross  examination.   The  court  found  these  procedural  safeguards, 
extraordinary  for  a  presentence  hearing,  to  reflect  Congress's 
intent  to  control  carefully  the  use  of  the  statute.   The  court 
also  pointed  to  the  specific  language  of  the  statute  "... 
and  not  disproportionate  in  severity  to  the  maximum  term  other- 
wise authorized.  .  .  "  as  further  manifesting  that  intent.  Finally, 
the  court  emphasized  that  the  very  broad  scope  for  review  of 
such  sentences,  allowed  under  section  3576,  would  check  any 
abuse  of  judicial  discretion. 

1141    Second,  the  court  distinguished  this  statute  from  the 
New  Jersey  statute  discussed  in  United  States  v.  Duardi. 
That  New  Jersey  statute  made  it  a  crime  to  be  a  "gangster"; 
Title  X,  in  contrast,  did  not  make  it  a  crime  to  be  "dangerous." 
Section  3575  is  directed,  instead,  at  those  who  have  actually  been 

convicted  of  a  crime.   Having  made  this  distinction,  the  court  held, 

74 
on  the  basis  of  United  States  v.  National  Diary  Products,    that 

when  a  statute  is  challenged  for  vagueness,  a  court  must  seek 

384  F.  Supp.  874  (W.D.Mo.  1974).   The  statute  was  held  uncon- 
stitutional for  vagueness  by  the  district  court.   The  Eighth 
Circuit  did  not  reach  the  issue  of  vagueness,  however,  when  it 
affirmed  the  district  court's  decision.   United  States  v.  Duardi, 
529  F.2d  123  (8th  Cir.  1975).  ~~~ 

''''372  U.S.  29  (1965)  . 


8868 

an  interpretation  which  supports  the  constitutionality  of  the 
legislation.   Accordingly,  the  district  court's  finding  of 
vagueness  was  reversed,  and  the  constitutionality  of  section 
3575(f)  affirmed. 


HEARINGS  ON  REFORM  OF  THE  FEDERAL 
CRIMINAL  LAWS 


WEDNESDAY,  JUNE  8,   1977 

U.S.  Senate, 
Subcommittee  on  Criminal  Laws  and  Procedures 

OF  THE  Committee  on  the  Judiciary, 

Washington,  D.G. 

The  subcommittee  met,  pursuant  to  recess,  at  10:30  a.m.,  in  room 
2228,  Dirksen  Senate  Office  Building,  Hon.  Orrin  G.  Hatch  [acting 
chairman]  presiding. 

Present:  Senator  Hatch. 

Staff  present:  Paul  C.  Summitt,  chief  counsel;  D.  Eric  Hultman, 
minority  counsel,  Paul  PL  Robinson,  counsel;  Michael  M.  Hunter, 
legislative  counsel  to  Senator  Hatch;  and  Mabel  A.  Downey,  chief 
clerk. 

Senator  Hatch  [acting  chairman] .  The  meeting  will  come  to  order. 

Yesterday  we  were  privileged  to  have  a  number  of  distinguished 
witnesses  testify  before  the  Committee  on  the  Judiciary  with  respect 
to  reform  of  the  Federal  criminal  laws,  particularly  S.  1437.  The 
witnesses  included  the  Attorney  General  of  the  United  States, 
Griffin  Bell,  and  Edmund  G.  "Pat"  Brown,  former  Governor  of  the 
State  of  California,  who  served  as  the  Chairman  of  the  National 
Commission  on  Reform  of  the  Federal  Criminal  Laws. 

We  appreciated  the  insight  which  yesterday's  witnesses  provided 
in  relating  the  great  concern  and  necessity  for  revision  of  the  pres- 
ent Federal  criminal  laws. 

This  morning  we  are  again  privileged  to  have  several  equally  dis- 
tinguished authorities  who  have  been  most  agreeable  in  arranging 
their  busy  schedules  to  testify  before  the  Subcommittee  on  Criminal 
Laws  and  Procedures. 

The  testimony  today  and  tomorrow  is  intended  to  go  particularly 
to  the  sentencing  provisions  of  the  legislation  pending  before  the 
Judiciary  Committee.  We  trust  that  the  testimony  will  provide 
special  insight  into  the  problems  which  are  now  present  in  the 
Federal  judicial  system  and  assist  us  in  providing  proper  measures 
to  resolve  these  problems. 

Our  first  witness  tl;is  morning  will  be  Hon.  Marvin  E.  Frankel, 
U.S.  District  Court,  New  York,  N.Y. 

Judge,  we  are  very  pleased  to  welcome  you  before  this  committee, 
and  we  will  be  most  interested  in  your  testimony  today. 

(8869) 


8870 

STATEMENT  OF  HON.  MARVIN  E.  FRANKEL,  U.S.  DISTRICT  JUDGE, 
SOUTHERN  DISTRICT  OF  NEW  YORK 

Judge  Frankel.  Thank  you,  Mr.  Chairman. 

I  suppose  it  is  not  original  to  say  that  I  am  honored  to  be  here, 
but  I  am.  I  am  pleased  and  honored  to  be  here. 

As  you  indicated,  Senator,  I  am  here  to  speak  about  the  sentencing 
provisions  of  S.  1437  and  some  similar  bills  and  particularly  to 
express  the  view  that  these  provisions  mark  a  very  long  and  single 
step  toward  a  rational  and  more  civilized  system  of  sentencing 
criminal  defendants. 

Knowing  that  you  have  a  considerable  roster  of  people  today.  I 
want  to  confine  my  remarks.  I  want  to  speak  particularly  and  most 
favorably  about  two  aspects  of  these  sentencing  pro\'isions. 

First  is  the  proposed  provision  that  would  create  a  Sentencing 
Commission  to  study  sentencing,  to  prepare  guidelines,  to  formulate 
policies,  to  collect  data.  Second  is  the  provision  for  appellate  review 
of  sentences. 

The  things  I  have  to  say  about  these  two  basic  aspects  of  the  bill 
are  mostly  favorable.  I  have  some  criticisms  and  some  suggestions. 
I  will  take  the  liberty  of  expressing  those. 

My  credentials — if  I  should  state  them — are,  first,  I  am  a  trial 
judge  and  have  been  for  nearly  12  years  in  the  business  of  sentencing 
people.  In  the  course  of  that,  I  have  become  increasingly  unhappy 
with  the  awareness  that  I  and  people  like  me  have  too  much  power, 
too  little  knowledge,  and  no  guidance  from  any  of  the  organs  of  the 
law  that  normally  give  guidance  to  trial  judges.  We  have  had  essen- 
tially none  from  the  Congress  and  and  none  from  the  higher  courts 
and  none,  to  speak  of,  from  any  of  the  standard  sources  of  knowl- 
edge and  principle  to  whicli  judges  look. 

I  am  sure  I  have  sentenced  too  many  people  too  harshl^'^;  I  am 
not  happy  with  that.  I  have  sentenced  some,  I  am  sure,  too  leniently; 
and  I  am  not  happy  with  that.  But  I  must  confess  I  worry  less  about 
that  than  about  the  excessive  sentences. 

Disturbed  by  this  area  and  its  uncertainties  and  vagueness,  I 
wrote  a  book  about  it  a  few  years  ago  called  "Criminal  Sentences." 
I  think  it  may  be  permissible  to  say  tliat  some  of  the  ideas  in  this 
proposed  legislation  have  some  resemblance  to  some  of  the  things 
I  wrote  about. 

First  off,  as  I  said,  I  want  to  speak  very  strongly  in  favor  of  the 
idea  of  a  sentencing  commission.  I  think  it  is  a  reflection  of  an 
awareness  that  we  are  not  going  to  cure  all  the  difficulties  with 
sentencing  all  at  once. 

The  Commission,  as  I  understand  it.  is  an  agency  that  will  have 
an  ongoing  responsibility  for  studying  and  formulating  new  ideas 
about,  and  improving  the  process  of,  sentencing.  Tn  addition,  the 
Commission's  task  of  creating  guidelines  and  policies  will  be  an 
important  step  in  the  direction  of  narrowing  and  guiding  the  discre- 
tion of  trial  judges  without  attempting  the  impossible  task — im- 
possible in  my  judgement — of  eliminating  that  discretion. 

I  think,  as  many  people  do,  that  to  have  a  trial  judge  or  a 
miscellaneous  several  hundred  trial  judges  free  to  decide  in  any 
given  case  whether  a  defendant  should  get  no  prison  or  25  years  in 


8871 

prison  or  something  in  between,  without  any  controls  or  criteria  or 
standards,  I  think  that  kind  of  setup — which  is  what  we  live  with 
now — is  intolerable. 

I  think,  on  the  other  hand,  that  the  effort  to  have  the  legislature 
fix  in  advance  the  tariffs  for  each  sentence  for  each  crime  without 
regard  to  the  circumstances  of  the  particular  offense  or  the  charac- 
teristics or  circumstances  of  the  particular  defendant — I  think 
that  opposite  extreme  is  equally  unacceptable. 

I  think  that  no  civilized  system  of  sentencing  could  have  that 
kind  of  mechanical,  decreed-in-advance,  automatic  sentencing  ar- 
rangement by  category  of  crime. 

I  think  the  Commission  is  a  salutary  and  sensible  middle  position 
which  will  leave,  or  could  leave,  a  necessary  measure  of  discretion 
to  discriminate  among  the  several  defendants  and  at  the  same  time 
proceed  to  guide  and  regulate  the  exercise  of  discretion. 

I  think  the  provision  for  the  Sentencing  Commission's  creation 
of  guidelines  for  the  parole  commission  is  also  a  good  idea.  I  am 
aware  from  reading  the  newspapers  that  there  was  testimony  before 
this  committee  yesterday  suggesting  the  desirability  of  abolishing 
the  parole  commission  or  at  least  abolishing  the  release  function 
now  exercised  by  the  parole  agency. 

I  have  felt,  from  thinking  about  it  and  from  studying  it,  that  there 
is  a  lot  to  be  said  for  that  position.  I  have,  on  occasion,  spoken 
for  that  abolitionist  view. 

On  looking  at  this  bill,  I  think  it  is  a  preferable  alternative.  I 
think  the  effort  to  have  scrutiny  of  the  parole  commission  and  on 
an  overall  view  of  the  sentencing  process  by  an  agency  that  will 
make  guidelines  for  both  the  parole  commission  and  the  courts  is  a 
suitable  compromise.  I  tliink  that  it  might  be  desirable  to  let  the 
Sentencing  Commission  function  in  this  fashion  for  a  period  of 
years  and  then,  on  the  basis  of  that  effort  to  have  an  integrated 
system  of  sentencing  functions,  consider  whether  abolition  of  the 
parole  commission  is  still  a  desirable  course. 

I  said  I  had  some  criticisms.  I  have  two  with  respect  to  the 
proposals  concerning  the  Sentencing  Commission. 

They  relate  to  the  matter  of  selection  of  the  members  of  the  Com- 
mission and — perhaps  less  importantly,  but  symbolicaly  significant 
— to  the  matter  of  the  pay  of  the  Commissioners. 

This  bill,  like  some  other  bills  that  have  been  proposed,  places  the 
sentencing  commission  in  the  judicial  branch — which  is  perfectly 
agreeable — and  provides  that  the  members  of  the  commission  are  to 
be  selected  by  the  Judicial  Conference  of  the  United  States.  It  is 
that  aspect  of  the  selection  that  I  disagree  with,  for  two  reasons. 

The  commission  will  have  functions,  obviously,  that  cut  across 
the  three  branches.  Its  guidelines  and  its  policies  will  affect  and,  to 
some  degree,  even  regulate  and  control  the  work  not  only  of  judicial 
people  but  of  executive  and  legislative  people  as  well. 

I  should  not  say  "control"  with  respect  to  the  legislature,  but 
certainl}^  an  important  legislative  function  is  the  role  of  the  com- 
mission in  formulating  ideas  for  new  legislation  for  improvements 
in  the  sentencing  area. 

I  think  the  breadth  of  the  commission's  functions,  if  nothing  else, 
would  argue  for  a  selection  arrangement  not  limited  to  the  Judicial 

92-465—77 20 


8872 

Conference.  The  fact  that  all  three  branches  are  affected  might 
suggest  selection  by  the  three  branches,  as  some  agencies  are  now 
selected. 

But  my  own  vote,  which  I  respectfully  submit  to  the  committee, 
would  be  for  Presidential  appointment  of  the  commissioners. 

I  have  that  in  view  because  I  think  that  the  hope  ought  to  be  that 
this  would  be  an  august  and  significant  commission.  I  think  its 
success,  like  the  success  of  so  many  agencies,  will  depend  on  the 
caliber  of  people  it  can  attract — their  own  professional  and  moral 
attainments — and,  not  much  less  importantly,  their  status  and  the 
regard  in  which  they  are  held  in  the  legal  and  more  general 
community. 

I  think  Presidential  appointment  signifies  this  idea  of  consequence 
and  of  prestige.  It  would  be  a  mode  of  attracting  the  kind  of  people 
you  would  want  to  attract.  I  would  urge  the  committee  to  consider 
a  revision  of  the  appointment  process  to  provide  for  a  Presidential 
appointment. 

Obviously,  it  is  not  unprecedented  to  have  the  President  appoint 
people  whose  functions  are  outside  the  executive  branch.  I  do  not 
need  to  burden  this  committee  with  the  justification  for  that 
arrangement. 

Similarly,  and  on  a  somewhat  more  crass  level,  I  would  urge 
consideration  of  some  change  in  the  provisions  for  pay  of  the 
commission  members. 

There  is  no  problem  about  paying  people  who  are  already  in  Gov- 
ernment at  the  rate  of  their  already-specified  pay;  that  is,  giving 
them  no  additional  pay  for  serving  on  the  commission. 

But  then  there  is  a  provision  in  the  bill  that  people  who  come  into 
the  commission  from  outside  the  Government — as  one  certainly 
hopes  at  least  some  commissioners  would — are  to  be  paid  at  the 
rate  of  grade  18.  I  think  that  is  not  completely  satisfactory. 

I  mention  in  my  statement  and  I  will  repeat  that  I  spent  some 
of  the  best  years  of  my  younger  life  as  a  civil  servant  and  never 
made  it  up  to  grade  18.  I  have  only  the  highest  respect  for  the 
people  who  hold  and  stay  in  those  super  grades. 

Nevertheless,  I  am  back  on  the  point  of  prestige,  symbolism:  I 
think  the  provision  for  pay  at  a  grade  18 — a  kind  of  civil  service 
grade — may  have  a  downgrading  quality  in  this  setting  that  we 
should  avoid. 

My  suggestion,  very  simply,  is  that  the  commissioners  who  come 
from  outside  the  Government  should  be  paid  at  the  rate  of  pay 
wliich  is  now  enjoyed  by  Members  of  Congress  and  by  judges  of 
the  U.S.  Courts  of  Appeals. 

It  seems  to  me  that  gives  some  reflection  of  a  quality  of  eminence 
that  ought  to  be  imported  into  this  arrangement. 

The  second  thing  I  said  I  would  speak  about  is  the  provision  for 
appellate  review  of  sentences. 

The  first  proposition  I  would  make  about  that  is  that  I  am  very 
much  for  such  review.  It  is  very  grossly  overdue.  In  this  country  we 
have  lagged  way  behind  every  civilized  country  in  the  world.  All  the 
other  countries,  as  far  as  I  know,  that  call  themselves  civilized  pro- 
vide for  some  kind  of  review  of  a  sentencing  officer's  determination 
of  the  punishment. 


8873 

I  think  it  is  high  time  that  we  did  the  same.  In  that,  I  take  no 
very  revolutionary  position.  I  join  with  the  ABA's  minimum  stand- 
ards project,  which  back  in  1968,  in  its  Minimum  Standards  for 
Appellate  Review  of  Sentences,  came  out  for  such  review. 

While  I  am  in  favor  of  the  idea  of  review,  I  am  not  completely 
in  accord,  by  any  means,  with  the  specific  provisions  for  review  in 
S.  1437.  I  think  they  are  too  narrow,  too  confined,  and  that  there 
is  no  real  justification  for  the  very  severe  limitations  on  review 
embodied  in  this  bill. 

I  have  no  objection  to  precluding  review — as  the  bill,  very 
generaly  described,  does — where  a  sentence  is  the  result  of  a  plea 
bargain  or  a  sentence  bargain — which  is  probably  the  correct  word 
for  it.  But  I  have  serious  question  about  making  unreviewable 
a  sentence  that  is  within  the  guidelines  formulated  by  the  sentencing 
commission  and  is  consistent  with  policy  statements  of  that  com- 
mission. 

I  think — though  I  am  a  very  staunch  suppoi-ter  of  the  existence 
and  functioning  of  that  commission — this  gives  far  too  much  power 
to  the  commission  and  far  too  little  power  to  the  judges,  especially 
the  judges  of  the  appellate  courts,  including  the  Supreme  Court  of 
the  United  States. 

I  do  not  think  that  a  fair  approach  to  the  necessarily  experimental 
and  tentative  character  of  these  guidelines  and  policy  statements 
would  include  embedding  them  in  concrete,  as  it  were,  to  this  extent. 
I  think,  to  put  it  more  simply,  that,  while  the  commission's  guide- 
lines— one  would  hope — will  be  important  and  will  have  great  weigiit 
and  will  presumptively  bind  all  the  judges,  I  think  they  should  be 
subject  to  reconsideration  and,  on  occasion,  to  revision  or  even 
invalidation  by  the  appellate  courts,  including  the  Supreme  Court, 
as  well  as  the  Congress. 

In  writing  about  this  and  urging  the  existence  of  a  commission 
myself,  I  have  envisioned  it  as  a  very  important  agency  which 
would  be  part  of  an  ongoing  dialog  about  these  questions  of  guide- 
lines and  policies,  and  not  a  kind  of  final  and  unquestioned  author- 
ity, which  is  nearly  the  effect  this  bill  would  have  by  making 
sentences  within  the  commission's  pronouncements  unreviewable. 

I  would  refer  in  this  connection  to  a  book  that  I  am  told  is 
published  today  whose  authors  are  here  and  who  I  know  can  speak 
for  themselves.  It  is  a  volume  called  "Toward  A  Just  and  Effective 
Sentencing  System."  It  is  by  Pierce  O'Donnell,  Michael  Churgin, 
and  Dennis  Curtis.  It  has  a  foreword  by  Senator  Kennedy  and 
some  involvement  of  my  own. 

Since  you  are  looking  for  serious  suggestions,  without  being 
modest  on  their  behalf  or  anybody  else's,  I  would  suggest  that  this 
book  has  a  preferable  alternative  on  that  subject,  in  addition  to 
being  an  excellent  discussion  of  many  other  aspects  of  sentencing. 

The  book  provides,  in  effect,  that  sentences  of  the  sentencing 
commission  will  be  reviewable,  but  that  the  question  whether  they 
are  within  or  outside  the  guidelines  will  affect  the  scope  of  review, 
not  reviewability  as  such. 

Very  briefly,  the  Messrs.  O'Donnell,  Churgin,  and  Curtis  would 
provide  that,  if  a  sentence  is  within  the  guidelines,  it  is  reversible 
only  if  it  is  clearly  unreasonable.  If  it  is  outside  the  guidelines, 
it  would  be  reversiable  merely  on  the  ground  of  being  unreasonable. 


8874 

That  difference  is  important. 

In  both  instances — and  this  is  the  critical  point  I  make  to  this 
committee — the  sentence  is  reviewable.  You  can  get  to  the  appellate 
court.  The  question  is,  what  standards  will  the  appellate  court 
follow  in  deciding  whether  to  affirm  or  reverse. 

My  broad  position  on  this — and  I  will  conclude  with  it — is  that 
T  do  not  think  that  we  should  be  looking  hard  for  ways  to  limit 
access  to  the  court  of  appeals  to  get  review  of  sentences. 

As  I  said  before,  it  is  high  time  that  this  grave  and  critical  aspect 
of  the  judicial  process  in  criminal  cases  was  subjected  to  appellate 
scrutiny.  I  do  not  think  that  we  should  be  looking  for  ways  to 
provide  for  unreviewability  any  more  than  we  look  for  ways  to  do 
that  in  the  case  of  a  post  office  truck  collision  with  your  automobile 
or  an  infringement  of  a  trademark  or  a  breach  of  contract  or  any- 
thing else. 

I  think  the  presumption  ought  to  be  in  faA^or  of  review  and  not 
in  favor  of  limited  and  niggardly  and  reluctant  kinds  of  review. 
I  have  suggested  that  the  tendency  of  this  bill  in  this  respect  is 
toward  that  latter,  less  desirable  kind  of  setup. 

These  are  the  things  I  have  to  say  to  this  committee.  I  will  be 
happy,  to  the  extent  of  my  ability,  to  answer  questions. 

Senator  Hatch.  Judge,  we  appreciate  your  statement  here  toda}'^ 
and  have  deep  respect  for  you  as  a  judge  and  as  a  person. 

Do  you  think  that  appellate  review  of  a  trial  judge's  sentences 
will  open  the  door  for  appellate  consideration  of  matters  that  have 
previously  been  considered  wholly  evidentiary  and  best  determined 
by  the  trial  judge  who  is  right  there  on  the  scene? 

Judge  Fraxkel.  Well,  I  think  the  whole  subject  will  be  opened 
up  if  we  allow  review;  but  that  is  true.  Senator,  of  all  manner  of 
other  things  that  trial  judges  have  primary  responsibility  for, 
including  evidentiary  matters. 

The  appellate  court  looks  at  the  sufficiency  of  the  evidence  to 
sustain  a  conviction.  It  looks  at  rulings  on  evidence.  It  looks  at  the 
sufficiency  of  evidence  to  justify  all  manner  of  things  that  the  trial 
judge  may  have  done.  The  appellate  court  looks  at  a  lot  of  things 
that  are  peculiarly  the  business  of  trial  judges.  Appellate  courts 
do  not  empanel  juries.  Thoy  do  not  keep  order  in  the  courtroom. 
They  do  not  select  juries  generally.  They  do  not  appoint  counsel. 
But  they  do,  in  every  one  of  those  kinds  of  situations,  have  authority 
to  review,  revise,  reverse  what  we  trial  judges  have  done. 

I  would  say  that,  insofar  as  the  things  tliat  the  trial  judge  does 
are  peculiarly  within  his  competence,  insofar  as  he  has  seen  the 
witnesses,  seen  the  defendant,  and  has,  supposedly,  some  special 
advantage  for  judgement,  that  is  handled  by  the  appellate  court  by 
giving  a  certain  degree  of  deference  to  what  the  trial  judge  has 
done. 

But  it  is  not  handled  by  closing  the  door  on  review  altogether. 

Senator  Hatch.  Judge,  the  bill  refers  to  "rehabilitation"  as  a 
possible  goal  of  imprisonment. 

What  arc  your  views  on  that  particular  point? 

Judge  Frankel.  Well,  my  view  have  been  better  stated  by  Norval 
Morris;  but  I  will  repeat  them  because  I  agree  with  them. 

I  think  that  the  bill  makes  an  error — and  it  may  be  an  error  of 
some  consequence — when  it  makes  rehabilitation  one  of  the  purposes 


8875 

of  a  sentence.  I  do  not  think  anybody  ought  to  be  sentenced  for 
rehabilitation. 

I  think  we  kid  ourselves,  and  I  think  we  lead  ourselves  into 
needless  cruelties  when  we  say  we  are  locking  somebody  up  for 
rehabilitation. 

There  is  a  widespread  recognition  of  this  now.  I  think  Mr. 
Carlson,  who  sits  back  here,  and  who  minds  the  people  that  we  lock 
up  is  among  the  many  people  who  have  come  to  recognize  that. 

I  think  once  we  sentence  somebody,  which  should  be  for  purposes 
other  than  rehabilitation,  we  should,  of  course,  do  everything  we 
can  to  help  the  person,  if  we  can.  Just  as  we  do  with  people  outside 
the  prison.  We  should  extend  to  them  any  kind  of  service — educa- 
tion, medical,  therapeutic — that  we  can  make  available. 

But  the  important  point — and  it  is  a  critical  point — is  that  we 
ought  not  to  put  anybody  in  prison  for  so  much  as  one  day  with 
the  notion  that  that  is  good  for  him  and  that  we  are  confining  him 
for  rehabilitation. 

I  would  prefer  to  see  that  portion  of  the  purposes  of  sentencing 
in  this  bill  as  it  is  now  written  deleted. 

Senator  Hatch.  Judge,  you  have  already  commented  on  some 
aspect  of  this,  but  what  makeup  would  you  prefer  to  see  in  the 
membership  of  the  sentencing  commission?  Should  it  be  made  up 
wholly  of  judges? 

Judge  Frankel.  Xo.  I  think  it  very  clearly  should  not  be  made  up 
wholly  of  judges. 

While  I  did  not  state  that  as  one  of  my  reasons  for  opposing 
appointment  by  the  Judicial  Conference,  it  is  something  that  I 
would  adopt  as  an  additional  reason. 

I  think  the  people  who  have  Jvnowledge  and  potential  input  with 
respect  to  the  questions  of  sentencing  come  from  many  disciplines 
and  occupations  other  than  judging.  I  think  you  are  going  to  want 
to  see  on  this  commission — I  would  want  to  see  on  it — lavryers,  people 
with  experience  in  parole,  people  with  experience  in  the  various 
helping-human  professions,  whether  it  is  psychology,  psychiatry, 
sociology,  or  others.  There  are  people  who  have  experience  with  the 
prisons,  and  others  who  have  relevant  kinds  of  knowledge  and 
information. 

It  should  not  be  exclusively  judges  by  any  means. 

Senator  Hatch.  Judge,  you  suggest  the  members  of  the  sentenc- 
ing commission  would  best  be  appointed  by  the  President. 

Judge  Frankel.  Yes. 

Senator  Hatch.  Do  you  feel  that  would  be  a  better  approach 
than  the  selection  method  presently  contained  in  the  bill? 

In  your  prepared  statement,  you  note  some  disappointment  with 
the  caliber  of  the  persons  which  in  the  past  have  been  appointed  to 
the  parole  commission. 

Does  not  that  same  danger  exist  if  the  members  of  the  sentencing 
commission  are  Presidential  appointments? 

Judge  Frankel.  I  would  certainly  hope  not. 

I  might  say,  quite  apart  from  the  fact  that  a  couple  of  my  friends 
from  the  parole  connnission  are  here,  that  I  think  the  imhappy 
condition  of  personnel  in  parole  agencies  has,  in  recent  years,  been 
improving.  I  have  already  expressed  this  publicl}^ 


8876 

But  let  me  get  to  your  question. 

I  think  what  has  happened  in  the  field  of  corrections  and  sentenc- 
ing is  a  basis  for  hope  that  you  would  get  better  people.  This  has 
become  a  matter  of  the  most  intense  public  concern.  People  are 
writing  books  about  it  at  a  great  rate.  You  are  getting  statements 
by  the  Attorney  General  of  great  earnestness  and  deep  concern. 

To  put  it  in  one  word,  there  is  a  very  bright  light  of  public 
attention  on  this  subject.  ]\Iy  sense  of  it,  from  reading  books  and 
observing  what  goes  on  in  the  world  over  the  years,  has  been  that, 
when  you  have  the  spotlight  on  an  agency  or  a  subject  and  a  system 
of  Presidential  appointments,  you  have  a  good  promise — no  guaran- 
tee— that  you  are  going  to  get  good  people. 

The  appointing  process  itself  goes  on  with  intense  public  scrutiny. 
In  addition,  you  have  the  basis  for  attracting  people  who  are  inter- 
ested in  rising  to  a  challenge  and  taking  on  an  important  public 
responsibility. 

I  do  not  tliink  there  is  any  guarantee  in  this  life  of  getting 
supremely  gifted  people  in  any  job  through  any  appointing  process. 
But  I  do  tliink,  for  this  commission  in  our  time.  Presidential  ap- 
pointment holds  higher  promise  than  any  other  kind  of  selection. 

Senator  Hatch.  Judge,  do  you  think  it  might  be  better  to  have  a 
combination — some  appointed  by  the  Judicial  Conference  and  some 
appointed  by  the  President?  Would  that  be  satisfactory? 

Judge  Frankel.  I  would  find  that  an  acceptable  close  second, 
Senator. 

Senator  Hatch.  I  worry  about  the  Commission  being  politicized. 
I  do  not  think  that  it  would  be  politicized  if  it  were  in  the  hands  of 
the  Judical  Conference,  as  presently  provided  in  the  bill. 

I  worry  about  it  being  politicized  if  it  is  in  the  hands  of  tlie 
Executive,  regardless  of  who  the  Executive  is. 

Judge  Feankel.  It  is  a  problem. 

I  also  mention  in  my  statement— and  I  think  I  mentioned  in  the 
oral  version  of  it — that  one  possibility  would  be  tripartite  appoint- 
ment. Again,  that  would  raise  your  problem  of  politics  in  two  of  the 
branches  at  least.  But,  at  the  same  time,  it  would  give  a  certain 
credit  and  representativeness  to  this  commission,  which,  after  all, 
relates  to  and  has  im])act  on  each  of  the  three  branches. 

I  do  not  feel  passionately  about  the  choices  between  that  and 
Presidential  appointment ;  whereas,  I  would  somewhat  more  strongly 
oppose  appointment  exclusively  by  the  Judicial  Conference. 

Senator  TIatcu.  Some  of  tlie  questions  I  have  been  asking  have 
been  requested  by  Senator  Kennedy.  Here  is  another  one  that  he 
wants  asked. 

Will  not  the  unlimited  right  of  appeal  flood  the  courts  of  appeals 
and  7'nise  a  serious  problem  of  court  congestion? 

Judge  Fkaxkel.  AVell,  I  cannot  give  a  flat  "no"'  answer.  Senator; 
but  I  can  say  "probably  not." 

The  answers  to  that  fear,  which,  frankly,  I  think  is  a  hobgoblin, 
are  outlined,  again,  in  this  book  T  mention. 

First,  that  argument  has  been  raised  over  and  over  again  in  the 
States,  which,  over  recent  years,  have  been  adopting  appellate  re- 
view of  sentences.  I  note  that  in  actual  experience  the  argument  has 


8877 

proved  to  be  unfounded.  The  State  appellate  courts  have  not  been 
flooded.  They  have  not  been  overwhelmed. 

I  think  that  appellate  review  is  important.  But,  at  the  same  time, 
rcalisticalJy,  I  do  not  think  the  problem  of  reviewing  sentences  is 
an  onerous  one.  I  do  not  think,  very  candidly,  that  most  sentences 
will  be  modified  or  reversed.  That  is  not  the  important  reason  for 
having  appellate  review.  The  important  reason,  if  you  put  it  in 
two  words,  is,  one,  so  that  we  who  sentence  people  have  a  sense 
that  we  are  subject  to  scrutiny;  and,  two,  so  that  you  get  some 
rationality  and  consistency  finally  into  this  process. 

I  do  not  think  you  are  going  to  have  a  lot  of  them  reversed. 

I  have  one  other  point.  That  is  that  the  sentence  a  person  gets 
for  a  crime,  a  period  of  time  locked  up  by  his  society,  is  a  terribly 
important  problem.  With  all  deference  to  them,  I  would  say  that 
there  is  a  good  deal  of  business  that  the  courts  of  appeals  now  do 
that  is  much  less  important.  I  do  not  think  that  we  ought  to  say 
that  we  cannot  add  sentencing  to  your  responsibilities  because  that 
will  flood  the  appeallate  courts,  leaving  them  flooded,  as  tliey  now 
are,  with  review  of  auto  accident  cases,  copyright  infringement, 
breach  of  contract,  and  other  things  that,  very  frankly,  are  not 
earth  shattering  in  their  significance. 

Senator  Hatch.  Judge,  there  may  be  other  members  of  this  sub- 
committee or  of  the  full  committee  who  would  want  to  submit 
written  questions  to  you;  so  we  will  leave  the  record  open.  Hope- 
fully, you  will  answer  such  questions. 

Judge  Frankel.  I  am  at  your  service,  sir. 

Senator  Hatch.  Your  statement  will  be  placed  in  the  record. 

[Material  follows:] 

Prepared  Statement  of  INIarvin  E.  Frankel,  U.S.  District  Judge, 
Southern  District  of  New  York 

The  sentencing  provisions  of  S.  1437  mark  long  strides  In  the  right  direction. 
I  take  the  privilege  of  this  appearance  mainly  to  support  two  Ivey  improvements 
offered  by  this  measure:  (1)  the  creation  of  a  Sentencing  Commission  to 
pursue  the  tasks  of  study,  policy  formulation,  and  ongoing  revision  that  are 
necessary  in  this  troubled  and  complex  sector  of  the  criminal  justice  system, 
and  (2)  the  provision  for  appellate  review  of  sentences.  At  the  same  time,  I 
have  some  criticisms  of  these  aspects  of  the  bill ;  I  plan  to  state  these  and 
suggest  a  few  changes. 

I 

My  credentials  for  offering  opinions  about  sentencing  legislation  can  be  stated 
fairly  briefly.  Now  in  my  twelfth  year  as  a  district  judge,  I  have  sentenced 
more  people  than  I  find  it  comfortable  to  count.  I  am  certain,  but  certainly 
not  happy,  that  some  of  the  sentences  were  too  harsh.  Some,  no  doubt,  were 
excessively  lenient,  and  I  regret  those  too.  but  frankly  not  as  much.  Always 
there  has  been  a  disquieting  awareness  of  having  too  much  power,  too  little 
knowledge,  and  next  to  nothing  in  the  way  of  guidance  from  the  Congress, 
from  higher  courts,  or  from  any  other  quarter.  I  have  Icnown  vividly  that  I 
am  responsible.  Mith  all  of  my  colleagues,  for  creating  the  crazy-quilt  of 
sentencing  disparities  that  is  probably  the  most  awful  aspect  of  this  siibject. 

Brooding  on  these  problems,  I  wrote  a  small  book  in  1972  called  Criminal 
Sentences.  I  joined  there  with  the  American  Bar  Association  and  many  others 
in  urging  appellate  review  of  sentences.  I  "tendered  as  the  most  important 
single  suggestion  in  this  book"  (p.  119)  the  idea  of  a  Commission  on  Sentencing 
to  study  the  problems,  make  rules  to  guide  the  discretion  of  sentencers,  and 
assist  Congress  with  further  legislation.  The  proposal  was  meant  then,  as  in 
my  testimony  today,  to  suggest  tlie  best  means  I  could  think  of  to  begin 
improving  the  lawlessness  of  our  sentencing  practices. 


8878 
II 

Adhering  to  my  earlier  sense  of  the  priorities,  let  me  speak  first,  and  very 
favorably,  about  the  provisions  in  S.  1437  that  would  add  a  new  Chapter  58 
to  Title  28,  creating  a  United  States  Sentencing  Commission.  The  fundamental 
virtues  of  this  idea,  as  I  see  it,  lie  in  (a)  the  recognition  that  we  are  not 
equipped  now  to  solve  the  problems  of  sentencing  once  and  for  all,  and  (b) 
the  creation  of  a  mechanism  with  which  to  begin  and  continue  working  steadily 
at  the  job.  What  we  have  realized  in  the  last  decade  or  so  is  that  the  field 
of  sentencing  is  a  vast  wasteland  of  ignorance,  curbstone  hunches,  mythology, 
and  general  guesswork.  We  need  information,  guidelines  to  confine  and  assist 
the  exercise  of  sentencing  discretion,  research  and  study  to  improve  our  under- 
standing, and  tiie  steady  development  of  better,  more  civilized  policies.  All 
these  things  the  Commission  could  supply. 

The  idea  of  guidelines  for  categories  of  offenses  and  offenders  offers  a  good 
compromise  between  the  unacceptable  regime  of  imfettered  judicial  discretion, 
which  we  have  now,  and  the  opposite  extreme  of  rigid,  mandatory  sentences, 
which  many  have  been  driven  to  propose.  The  bill,  in  what  would  become 
28  U.S.C.  §994 (a) -(d),  is  a  splendid  groundwork  in  this  respect.  It  directs 
the  Commission  to  create  guideline  ranges,  weighing  an  array  of  factors  about 
the  crime  and  the  criminal,  and  thus  to  supply  rational  and  consistent  bound- 
aries for  the  fixing  of  individual  sentences.  The  prospect  is  presented  of  sub- 
stituting some  decent  measure  of  restriction  on  the  power  of  the  individual 
judge — who  today,  for  example,  is  authorized  to  give  a  bank  robber  a  sentence 
from  probation  to  25  years,  or  anything  in  between,  with  no  stated  criteria  or 
controls  to  govern  the  particular  decision.  Under  the  guidelines  the  .iudge  will 
still  have,  as  he  or  she  should,  leeway  to  distinguish  among  the  varieties  of 
separate  human  beings  who  rob  banks,  but  a  leeway  that  is  sensilily  narrowed 
and  canalized  by  standards  of  general  application. 

It  is  intolerable  to  permit  judges,  however  good  they  are,  to  choose  within 
a  range  from  zero  to  25  years,  so  that  the  actual  sentences  of  similar  defendants 
will  vary  w^ildly  depending,  not  upon  the  offense  or  the  defendant,  but  upon  the 
varying  beliefs  and  idiosyncracies  of  the  sentencers.  It  is  not  more  tolerable 
to  legislate  that  every  bank  robber  should  be  sentenced  to  X  years  regardless 
of  age,  prior  record,  the  seriousness  of  the  particular  robbery,  the  defendant's 
potential  for  lawful  functioning,  etc.  A  middle  course  of  ordered  discretion, 
imder  general  and  steadily  improved  guidelines,  is  the  clearly  preferable 
scheme  of  S.  1437. 

Another  significant  benefit  in  the  Commission  proposal  is  the  mandate  for 
research  and  development  in  §995.  We  are.  as  I  have  said,  enormously  ignorant 
on  all  the  questions  of  human  behavior,  ethical  choice,  and  policy  that  are 
implicated  in  the  business  of  sentencing.  Neither  Congress  nor  the  courts  nor 
any  executive  agency  has  thus  far  found  it  feasible  to  give  these  problems 
tlio  full  time  thouglit,  on  a  substantial  scale,  that  they  so  clearly  retiuire.  The 
Commission  would  be  expected  to  do  that — both  through  its  own  staff  and  in 
its  role  "as  a  clearinghouse  and  information  center  *  *  *  ."  §995(a )  (lOHA). 
That  function,  along  with  the  allied  task  of  collecting  and  systematically  or- 
ganizing the  sentencing  data,  id.,  subsecs.  (11  )-(14) — now  largely  unknown 
and  unknowable  to  those  who  make  the  laws  and  to  those  who  sentence  people 
— would  help  us  to  begin  to  act  upon  knowledtic  rather  thnn  speculation  and 
surmise.  The  bill  expressl.v  contemplates,  id.,  subsec.  (17),  that  the  Commission 
would  act  upon  its  learning  and  organized  data  in  recommending  legislative 
improvements  to  the  Congress.  The  courts  as  well  would  unquestionably  be 
guided  toward  sounder  decision-making  by  this  growing  storehous*^  of  intelli- 
gence. The  prospect  is  one  of  light,  at  long  last,  in  a  sea  of  darkness. 

Also  salutary  are  the  provisions— in  §§3831.  3834,  3535.  and  .38.30— that  would 
require  the  Parole  Commission  to  function  imder  "guidelines  and  *  *  *  policy 
statements  *  *  *  issued  b.v  the  Sentenf»ing  Commission  *  *  *."  The  fragmenta- 
tion of  responsibility  for  the  actual  length  of  sentences  between  the  judges 
and  the  parole  authorities  has  been  a  major  flaw  in  a  thoroughly  flawed 
system.  Many  o))servers.  including  me.  have  thought  the  parole  release  function 
(as  distinguished  from  parole  supervision)  works  abominably:  the  theory  that 
the  parole  board  would  watch  the  prisoner's  progress  and  release  him  when 
he  was  "ready"  has  never  worked  acceptably  in  practice.  Parole  board  (or 
commission)  members,  at  least  until  lately,  have  been  perceived  as  unqualified 
and  arbitrary.  There  has  been  growing  sentiment  for  the  abolition  of  parole 
as  it  has  functioned  \intil  now. 


8S79 

While  I  have  tended  to  share  that  abolitionist  view,  I  think  the  proposals 
in  S.  1437  are  better.  The  Sentencing  Commission,  committed  to  the  acquisition 
of  facts  and  wisdom,  can  develop  an  overview  not  heretofore  possessed  by  any 
agency.  If  parole  finds  a  new  life  and  new  purpose  under  the  Commission's 
guidelines  and  policies,  this  may  be  preferable  to  simple  repeal  of  the  func- 
tion. If  abolition  is  finally  seen  to  be  best,  the  position  will  rest  upon  a 
footing  of  knowledge  more  solid  than  what  we  have  now. 

Passing  other  details,  I  submit  respectfully  that  the  provision  for  a  Sen- 
tencing Commission  is  a  solid  item  of  creative  legislation.  I  would  suggest, 
however,  that  it  is  less  perfect  than  it  might  be  in  the  provisions  for  selec- 
tion and  status  of  Commission  members.  The  Commission  is  to  be  located  'in 
the  judicial  branch,"  and  its  nine  meml)ers  are  to  be  "designated  by  the 
Judicial  Conference  of  the  United  States."  §  991(a).  But  the  Commission's 
work  is  meant  to  guide  and  support  functions  of  all  three  branches — the 
sentencing  work  of  judges,  parole  and  other  executive  responsibilities  and, 
surly  not  least  of  all,  further  legislation  as  needs  and  ideas  for  improvement 
come  to  be  discerned.  It  would  be  desirable  to  have  the  selection  process  reflect 
these  assignments.  Not,  one  would  hope,  in  the  interest  of  narrow  parochial- 
isms. Rather,  the  process  of  choosing  Commission  memliers  should  exemplify 
that  its  mandates  are  broader  and  more  ambitious  than  the  concerns  of  judges 
alone.  One  way  to  accomplish  this  would  be  by  tripartite  appointments.  Another 
way — preferable,  I  think,  for  a  combination  of  reasons — would  be  to  have  the 
President  appoint  the  members  and  designate  the  Chairman. 

It  is  familiar,  of  course,  to  have  the  President  name  officials  whose  positions 
are  judicial,  or  even  legislative  in  character,  as  well  as  those  strictly  "execu- 
tive." Presidential  appointment  implies  qualities  of  prestige  and  consequence 
not  achieved  by  the  provision  for  Judicial  Conference  appointments.  This  Com- 
mission ought  to  be,  or  we  should  make  vivid  the  hope  that  it  will  become,  an 
illustrious  agency,  charged  with  large  responsibilities  for  improvement  and 
innovation.  The  prospects  for  success  will  hinge  upon  the  possibility  of  attract- 
ing as  Commissioners  people  of  rich  qualifications  and  high  repute.  Presidential 
selection  will  enhance  that  possibility. 

In  the  same  vein,  I  question  the  provision  for  paying  members  not  otherwise 
in  Federal  employment  at  the  rate  of  a  grade  18  civil  servant.  §  992(c).  This  is 
a  crass  subject,  to  be  sure.  And  having  been  for  long  and  rewarding  years  a 
civil  servant  in  substantially  lower  grades,  I  have  only  respect  for  the  many 
distinguished  public  people  who  hold  super  grades  at  or  below  18.  Nevertheless, 
to  repeat  the  point  applicable  again,  the  problem  is  one  of  symbolism  as  much 
as  anything  else.  The  pay,  I  suggest,  should  be  stated  at  the  rate  for  judges  on 
the  Courts  of  Axjpeals  and  members  of  Congress.  The  amount  at  stake  is  trivial. 
The  symbolic  value,  whether  or  not  it  is  quite  momentous,  surely  warrants  the 
added  costs. 

Ill 

The  provision  for  appellate  review  of  sentences  is  long  overdue.  The  Federal 
Government  has  in  this  respect  lagged  behind  just  about  every  civilized  country 
in  the  world.  The  history  and  the  anomaly  are  amply  portrayed  by  the  Ameri- 
can Bar  Association's  Project  on  Minimum  Standards  in  its  Standards  Relat- 
ing to  Appellate  Review  of  Sentences   (Approved  Draft,  1968). 

I  strongly  favor  the  basic  idea  of  §3725  insofar  as  it  at  least  provides  some 
review  of  sentences.  I  would  submit,  however,  that  the  narrow  limits  the 
bill  places  upon  reviewability  are  for  the  most  part  undesirable.  It  seems  ac- 
ceptable to  say,  as  the  bill  does  in  effect,  that  sentences  resulting  from  plea 
bargains— or,  more  accurately,  from  sentence  bargains— should  be  unappealable. 
But  I  question  seriously  the  allowance  of  appeals  only  for  sentences  outside 
the  Sentencing  Commission's  guidelines  and  the  denial  of  any  appeal  when  "the 
sentence  is  consistent  with  policy  statements  is.siued  by  the  Sentencing  Com- 
mission *  *  *."  §3725  (a)  (1)  and  (b)  (1).  It  should  be  clear  from  what  I  have 
said  that  I  support  heartily  the  planned  work  of  the  Sentencing  Commission, 
including  its  promulgation  of  policy  statements.  Nevertheless,  it  -seems  excessive 
to  confer  this  much  final  authority  and  to  exclude  in  so  extreme  a  measure  the 
authority  and  potential  contributions  of  the  appellate  courts.  The  actual  task  of 
sentencing  will  remain,  after  all,  for  the  jiidges.  The  policies  of  the  Commission 
will  affect  that  task,  will  merit  substantial  deference,  and  will,  it  is  hoped, 
supply  substantial  assistance.  But  they  should  not  be  immunized  against  recon- 
sideration and  possible  modification  by  our  higher  courts,  including,  of  course, 
the  Supreme  Court  of  the  United  States. 


8880 

On  a  relatively  low,  technical  level,  the  questioned  subsections  in  their  present 
form  would  invite  a  large,  and  largely  trivial,  jurisprudence  as  to  when  sen- 
tences were  or  were  not  "consistent  with  policy  statements"  of  the  Commission. 
That  is.  however,  a  lesser  complaint.  The  strong  objection  is  the  fundamental 
matter  of  principle  already  stated. 

More  broadly,  let  me  urge  that  we  not  be  astute  to  find  ways  of  excluding 
sentences  from  appellate  review.  As  things  stand  today,  a  litigant  can  go  to  the 
Court  of  Ai)peals.  unfettered  by  rules  of  limitation,  in  a  case  involving  a  fender 
bent  by  a  Post  Office  truck,  a  breach  of  a  contract  to  paint  a  pleasure  boat,  or 
an  alleged  infringement  on  a  design  for  chewing  gum  wrappers.  The  amount  of 
time  someone  will  stay  locked  up  is  not  a  lesser  concern  than  those.  Our  approach 
should  be  to  offer  at  least  an  equally  unfettered  scrutiny  by  the  appellate 
tribunal. 

There  is,  as  you  know,  much  more  to  the  sentencing  aspects  of  S.  1437  than 
I  have  covered  in  these  observations.  Knowing  that  you  will  hear  from  others 
views  I  might  have  offered,  I  spare  you  any  repetition.  On  the  whole,  I  think 
sentencing  provisions  are  good.  I  might  have  hoped  to  see  a  general  lowering 
of  the  penalty  ranges.  Some  other  matters  of  relative  detail  have  given  me 
brief  pause.  I  am  prepared  to  mention  some  of  these  things  and  to  answer  the 
Committee's  questions  to  the  extent  that  I  can.  On  the  whole,  ending  this 
statement  as  it  began,  I  think  the  bill  would  effect  valuable  improvements.  I 
would  hope  that,  perhaps  with  some  perfecting  amendments,  the  sentencing 
changes  will  be  enacted. 

Jucljje  Fraxkel.  Thank  you,  ]\Ir.  Chairman. 

Senator  Hatch.  We  appreciate  your  coming  today  and  we  appre- 
ciate your  astute  testimony. 

At  tliis  time  we  are  going  to  recess  for  about  10  minutes. 

[Recess  taken.] 

Senator  Hatch.  The  meeting  will  be  in  order. 

Our  next  witness  is  Mr.  Norman  A.  Carlson,  Director  of  the 
Bureau  of  Prisons. 

STATEMENT   OF  NOEMAN  A.   CAELSON,   DIRECTOE,  BUREAU   OF 

PRISONS 

INIr.  Caklsox.  Thank  you,  JNIr.  Chairman. 

It  is  a  privilege  to  be  here  again  today. 

I  had  an  opportunity  yesterday  to  attend  most  of  the  session. 
Therefore,  to  avoid  misunderstanding,  I  would  like  to  summarize 
my  statement. 

Senator  Hatch  [acting  chairman].  We  would  appreciate  that. 

IMr.  Carlsox.  First,  let  me  state  that  I  strongly  support  the  pro- 
posal to  revise  the  Federal  criminal  code.  Wilhout  question,  the 
present  code  creates  many  disparities  and  inequities  in  the  criminal 
justice  system.  It  is  confusing  and  frustrating,  to  both  criminal 
offenders  in  custody  and  tlic  public. 

Also,  it  causes  unrest  and  uneasiness  on  the  part  of  the  offenders 
who  liavc  been  convicted  of  violating  the  Federal  law. 

I  want  to  compliment  the  committee  and  your  staff  in  coming  up 
with  what  I  consider  to  be  an  innovative  proposal  and  one  that 
I  believe  in  tlie  long  run  will  make  a  significant  and  positive  con- 
tribution to  the  Federal  criminal  justice  system. 

I  have  been  involved  in  the  field  of  corrections  for  22  years.  Dur- 
ing that  period,  I  have  become  increasingly  aware  of  the  tremendous 
importance  that  sentencing  lias  on  the  entire  process.  There  have 
l)een  (wo  recent  books  that  have  had  a  great  impact  on  me.  Judge 
Frankel  mentioned  these  worked  in  his  testimony  earlier  today. 


8881 

I  think  the  book  wliich  Prof.  Nerval  Morris,  now  Dean  of  the 
University  of  Chicago  Law  School,  has  written  entitled  "The 
Future  of  Imprisonment"  as  well  as  the  book  which  is  just  being 
published,  "Toward  a  Just  and  Effective  Sentencing  System,"  both 
outline  clearly  some  of  the  needed  changes  that  should  take  place  to 
make  our  criminal  justice  system  more  effective  and  responsible. 

To  me.  the  most  significant  innovation  that  has  been  suggested 
in  the  proposed  bill  is  the  establishment  of  a  Sentencing  Commis- 
sion. The  Commission  will  establish  sentencing  guidelines  for  Fed- 
eral district  courts.  Federal  judges  will  be  required  to  spell  out 
the  reasons  and  rationale  for  all  sentences.  The  bill  also  provides  for 
appellate  review  of  sentences  imposed  which  are  outside  of  the 
guidelines. 

In  my  opinion,  INIr.  Chairman,  the  Sentencing  Commission  sliould 
significantly  reduce  two  basic  problems  that  we  have  in  the  system 
today.  One  concerns  dispai-ity  of  sentences.  The  second  is  uncer- 
tainty on  the  part  of  the  offenders  as  to  what  the  sentence  actually 
means  m  terms  of  years  of  confinement. 

The  proposal  establishes  a  system  which  I  believe  is  based  on 
the  principles  of  fairness  and  equity.  I  think  it  will  replace  the 
present  concept  which,  frankly,  frustrates  the  system. 

I  am  pleased  to  note  that  the!  sentencing  guidelines  approach 
considers  two  factors :  The  offense  and  the  offender.  I  think  this  will 
create  a  system  which  provides  both  individualized  judgments  and 
a  degree  of  uniform  determinacy  in  the  overall  system  of  sentencing. 

I  am  also  pleased  to  note,  Mr.  Chairman,  that  the  proposed 
legislation  eliminates  the  Youth  Corrections  Act  as  well  as  title  II 
of  the  Narcotic  Addict  Rehabilitation  Act.  Both  of  these  acts 
were  appropriate  when  passed  by  Congress.  However,  I  think  ex- 
perience over  the  years  and  research  findings  raise  questions  as  to 
whether  or  not  the  acts  should  be  continued. 

Nearly  everyone  who  is  involved  in  the  administration  of  criminal 
justice  today  is  willing  to  abandon  the  "medical  model"  or  the  use 
of  rehabilitation  as  a  reason  for  imprisonment. 

This  does  not  mean  that  I  suggest  pulling  back  in  terms  of  the 
programs  we  provide  for  offenders. 

We  recognize  today  that  change  cannot  be  coerced.  When  offenders 
change,  they  change  because  they  want  to.  All  those  of  us  who  work 
in  the  field  of  corrections  can  do  is  facilitate  change.  We  cannot 
legislate  or  require  change  by  the  sentencing  process. 

I  would  like  also  to  comment  briefly  on  the  parole  component  of 
the  proposed  legislation. 

Mv  statement  was  based  on  the  draft  legislation,  which  I  have 
reviewed  with  my  staff.  The  discussion  yesterday  brought  m  a  new 
element;  the  suggestion  that  parole  be  eliminated. 

As  you  know,  the  U.S.  Parole  Commission  has  developed  a  set 
of  sentencing  guidelines.  It  has  been  done  carefully,  after  a  great 
deal  of  research  and  evaluative  effort.  This,  I  believe,  was  the  first 
sentencing  body  in  the  entire  country — or  world — that  began  to 
systematically  develop  a  framework  for  sentencing  guidelines. 

I  think  what  the  Parole  Commission  has  done  is  being  transposed 
by  the  draft  bill  into  an  earlier  stage  in  the  criminal  justice  process. 
In  other  words,  the  Sentencing  Commission  is  using  the  guideline 


8882 

approach  to   establish   a  range  of   sentences   for  specific  criminal 
violations. 

I  note  that  the  draft  bill  also  eliminates  the  concept  of  good  time. 
I  support  the  elimination  of  good-time  credits  if  parole  is  retained. 
However,  should  the  committee  consider  in  its  wisdom,  the  abolition 
of  parole,  there  certainly  should  be  some  provision  provided — a 
light  at  the  end  of  the  tunnel — for  offenders  in  the  system.  I  think 
tliere  must  be  some  inducement  for  inmates  serving  long  sentences 
to  conform  to  institutional  regulations. 

Again,  I  would  favor  the  elimination  of  good-time  credits  if 
parole  is  retained.  However,  should  parole  be  abolished  by  the 
Congress,  I  think  the  legislation  should  include  at  least  a  limited 
good-time  provision. 

If  that  is  the  case,  I  would  suggest  that  a  proposal  in  the  book  by 
Pierce  O'Donnell  which  I  cited  earlier  be  considered.  This  proposal 
provides  for  a  one-tenth  reduction  of  all  sentences  imposed  as  a 
modified  good-time  provision.  There  would  be  the  clear  presump- 
tion that  inmates  will  receive  the  good  time  automatically  unless 
they  are  involved  in  a  serious  infraction  of  institutional  regulations. 

Mr.  Chairman,  should  parole  be  eliminated,  I  believe  there  should 
be  a  careful  review  of  the  possible  length  of  sentences  imposed. 
Today  narly  50  percent  of  all  inmates  in  Federal  custody  are 
released  under  parole  supervision.  In  other  words,  they  are  released 
earlier  than  the  maximum  sentence  imposed  by  the  court. 

At  the  present  time,  we  are  facing  a  serious  problem  of  prison 
overcrowding  in  the  Federal  system  as  well  as  in  virtually  every 
State  in  the  country.  The  Federal  population  is  at  an  alltime  high 
of  over  29,000  offenders.  There  are  limited  resources  available.  The 
committee  should  carefully  consider  the  question  of  good  time  and 
j)arole  as  they  relate  to  the  issue  of  prison  capacity. 

If  I  may,  I  would  like  to  connnent  on  several  other  aspects  of  tlie 
bill.  "We  plan  to  submit  a  memorandum  to  the  committee  staff 
which  comments  on  some  technical  points.  These  are  minor  and  by 
no  means  detract  from  our  overall  endorsement  and  support  of  the 
bill. 

[^Memorandum  referred  to.  p.  SROO.] 

I  would  like,  however,  Mr.  Chairman,  to  comment  on  minimum 
mandatory  sentences.  As  you  recall,  the  bill  contains  mininunn 
mandatory  sentences  for  two  offenses :  trafficking  in  an  opiate  and 
using  a  weapon  in  the  connnission  of  a  crime.  These  are  certainly 
serious  crimes  whicJi  I  think  should  generally  result  in  lengthy 
periods  of  incarceration. 

I  do,  however,  have  a  basic  objection  to  the  concept  of  minimum 
mandatory  sentences.  The  concern  I  have  is  that  tliey  eliminate  all 
flexibility  on  the  part  of  both  the  Sentencing  Connnission  and  the 
sentencing  court.  Even  though  the  bill  attempts  to  spell  out  some 
mitigating  circumstances,  I  think  it  is  impossible  to  fully  anticipate 
all  the  possible  considerations  that  influence  the  imposition  of  a 
sentence. 

As  you  may  recall,  in  1970  the  Congress  had  to  address  a  similar 
problem  when  it  eliminated  the  mininunn  mandatory  sentences  that 
were  contained  in  the  Harrison  Narcotics  Act.  Congress  had  to 
repeal  that  act  because  there  were  many  inequities  which  came  to 


8883 

light  as  a  result  of  inmates  who  were  sentenced  to  long  terms  where 
compelling  extenuating  circumstances  were  present. 

I  would  also  like  to  comment  on  an  area  Judge  Frankel  alluded  to 
concerning  the  four  criteria  which  the  draft  bill  proposes  should 
be  considered  before  the  imposition  of  a  sentence. 

The  first  three  criteria  I  fully  support.  The  concepts  of  deterrence, 
protection  of  the  public,  and  just  punishment  are  totally  under- 
standable. 

The  fourth  concept,  however,  does  present  some  problems  so  far 
as  I  am  concerned. 

Basically,  the  fourth  criterion  says  that  the  sentencing  judge 
should  consider  providing  the  defendant  with  needed  educational 
and  vocational  training,  medical  care,  and  other  correctional  treat- 
ment. 

I  personally  do  not  think — as  Judge  Frankel  has  already  alluded 
to — that  people  should  be  sent  to  a  prison  with  the  thought  that  they 
are  being  sent  for  treatment.  Perhaps  if  that  criterion  were  limited 
to  probation,  I  could  agree.  But  I  believe  it  should  be  eliminated 
as  a  consideration  on  the  part  of  a  sentencing  court  with  respect  to 
incarceration. 

Senator  Hatch.  Well,  that  is  if  it  is  the  only  criterion  applied.  But 
what  if  it  is  one  of  four  that  are  applied? 

Mr.  Carlson.  Mr.  Chairman,  I  am  reluctant  to  see  anyone  com- 
mitted to  an  institution  with  the  idea  that  one  of  the  considerations 
on  the  part  of  the  sentencing  court  was  to  provide  rehabilitation. 
I  think  those  programs  must  be  provided. 

By  no  means  am  I  suggesting  that  we  should  not  provide  oppor- 
tunities, for  inmates  to  change.  But  I  do  not  think  that  people 
should  be  committed  to  an  institution  with  rehabilitation  as  one  of 
the  criteria  that  was  used  by  the  sentencing  judge. 

Senator  Hatch.  Still,  my  point  is,  what  if  it  is  just  one,  and 
maybe  a  minor  one?  But  nevertheless  in  every  case  there  is  a  hope 
that  there  will  be  some  rehabilitation  of  the  person  committed. 

Mr.  Carlson.  I  think,  as  Norval  Morris  has  clarly  articulated,  re- 
habilitation should  be  a  hoped-for  consequence  of  incarceration. 
I  certainly  support  that  notion. 

But  I  do  question  using  rehabilitation  as  a  reason  for  imposition 
of  a  prison  sentence. 

Senator  Hatch.  Is  it  your  opinion  that  it  is  very  unlikely  for  any- 
body to  be  rehabilitated  in  the  prison  system? 

Mr.  Carlson.  Not  at  all,  Mr.  Chairman.  I  think  that  many  in- 
mates do  change.  I  think  they  change  because  they  want  to  change; 
not  because  the  court  intended  that  as  a  reason  for  their  incarcera- 
tion. 

My  concern,  Mr.  Chairman,  is  that  it  might  be  used  by  some 
courts  as  a  reason  to  impose  a  prison  sentence.  I  have  reservations 
about  that  as  being  a  realistic  consideration. 

Senator  Hatch.  I  think  a  lot  of  people  would  agree  with  you  if 
that  is  the  sole  reason.  But  if  it  is  just  one  of  four  and  combines 
with  the  other  three,  I  would  hope  that  every  prison  would  have 
some  aspect  of  rehabilitation  for  inmates. 

Mr.  Carlson.  With  that  I  certainly  agree.  Perhaps  the  legislative 
history   could   reflect  that   it  is   only   a  minor  consideration   and 


8884 

certainly  should  not  replace  the  other  three  which  I  think  are  the 
most  basic  and  important. 

Senator  Hatch.  I  think  that  is  probably  why  it  is  there.  Xobody 
wants  to  fail  to  consider  the  fact  that  there  may  be  rehabilitative 
aspects  of  incarceration  in  Federal  prison. 

Many  people  would  feel  this  bill  remiss  if  it  did  not  make  re- 
habilitation one  of  the  aspects  and  emphasize  this.  But,  you  know,  a 
lot  of  people  feel  that  if  that  is  the  only  reason  then  we  ought  to 
have  better  ways  in  our  society  to  solve  these  problems. 

Mr.  Carlson.  That  is  the  basic  point,  and  I  agree  with  your  ob- 
servations, Mr.  Chairman. 

I  have  several  other  minor  points. 

Section  2302,  paragraph  C,  provides  that  the  Director  of  the 
Bureau  of  Prisons  can  move  a  court  to  reduce  a  sentence  in  extraor- 
dinary circumstances. 

My  point  is  that  the  legislative  history  should  clarify  the  fact 
that  this  would  be  done  in  most  cases  only  for  circumstances  that 
were  unforeseen  at  the  time  of  imposition  of  sentence.  I  do  not 
think  that  procedure  should  be  used  to  usurp  the  appellate  process, 
which  is  also  contained  in  the  bill. 

I  think  there  is  a  need,  however,  to  provide  relief  for  cases  when 
consideration  such  as  medical  problems  come  to  light  after  a 
sentence  has  been  imposed  and  the  person  is  in  confinement. 

I  have  two  other  points.  The  section  on  juvenile  offender  is  some- 
thing that  I  understand.  I  support  the  intent  of  what  the  bill  is 
attempting  to  accomplish. 

I  want  to  point  out  a  problem,  however.  That  concerns  the  older 
juvenile  offender  who  is  convicted  prior  to  the  age  of  18  but  still 
remains  in  custody  when  he  is  18,  19,  and  up  to  21  years  of  age.  We 
have  problems  trying  to  place  those  offenders  in  a  situation  where 
they  are  in  no  way  commingled  with  adult  offenders. 

I  have  no  solution  to  suggest  for  the  problem,  Mr.  Chairman.  I 
merely  want  to  point  out  that  by  tightening  up  on  the  commingling 
aspects,  the  bill  creates  a  significant  operational  problem  foi-  us. 
We  find  that  most  State  institutions,  and  even  including  private 
facilities  and  programs — simply  are  unwilling  to  accept  these 
offenders  because  they  have  no  facilities  and  programs  to  meet  the 
needs  of  the  aggressive,  assaultive  18,  19,  or  20  year  old  who  has 
been  committed  under  the  juvenile  act. 

In  conclusion,  I  would  like  to  comment  on  what  I  consider  to  be 
another  important  aspect  of  the  bill.  This  concerns  the  provisions 
for  offenders  who  have  a  significant  mental  disorder  or  disease. 

The  bill  makes  some  much-needed  improvements,  particularly 
relating  to  persons  who  have  been  acquitted  by  reason  of  insanity. 
As  you  recall,  section  3613  corrects  a  serious  gap  whicli  now  exists. 
At  present,  many  individuals  who  are  acquitted  by  reason  of 
insanity  remain  a  serious  threat  to  society. 

There  is  at  present  no  provision  to  retain  such  individuals  in  any 
type  of  mental  health  facility  or  under  custodial  supervision. 

I  would,  however,  like  to  point  out  a  possible  major  problem  with 
the  draft  bill.  If  the  bill  presumes  that  all  mentally  ill  defendants 
are  to  be  placed  in  a  State  or  private  hospital,  we  would  have 
problems  in  trying  to  arrange  such  placements. 


8885 

We  find  from  experience  that  most  State  and  private  hospitals 
are  reluctant — frequently  unwilling — to  accept  anyone  who  has  a 
criminal  charge  pending  or  presents  a  serious  threat  to  society. 

Also,  many  of  the  State  mental  hospitals  today,  for  good  reason, 
provide  no  security.  They  are  open-type  hospital  settings.  For  the 
serious,  aggressive,  assaultive  person  who  has  been  foimd  incompetent 
to  stand  trial  or  has  been  acquitted  by  reason  of  insanity,  there 
are  great  problems  in  terms  of  trying  to  place  those  people  in  a 
secure  facility. 

This  is  a  difficult  area.  I  have  no  solution,  but  want  to  alert  the 
committee  to  a  possible  problem  in  terms  of  implementation  of  the 
proposed  legislation. 

Mr.  Chairman,  that  concludes  my  summary.  Again,  I  want  to 
point  out  that  I  fully  support  the  bill.  The  minor  modifications  and 
changes  in  no  way  should  detract  from  what  I  consider  to  be  a 
carefully  drafted  piece  of  legislation. 

Senator  Hatch.  We  appreciate  your  consideration  and  the  testi- 
mony you  have  given. 

Without  objection,  your  prepared  statement  will  be  inserted  in  the 
record. 

[Material  follows:] 

Statement  of  Norman   A.   Carlson,   Director,   Federal  Bureau   of   Prisons 

Mr.  Chairman  and  members  of  the  subcommittee,  I  welcome  the  opportunity 
to  appear  before  you  today  to  present  the  views  of  tlie  Federal  Bureau  of 
Prisons  on  S.  1437,  the  Criminal  Code  Reform  Act  of  1977.  Let  me  state  at  the 
outset  that  I  fully  support  these  efforts  at  major  revision  of  the  Federal 
Criminal  Code.  The  patchwork  approach  of  the  present  Criminal  Code  has 
created  sentencing  disparities  which  confuse  and  frustrate  Federal  oifenders, 
malving  the  task  of  correctional  administration  much  more  difficult.  I  am  aware 
of  the  fact  that  the  Committee  has  worked  long  and  diligently  in  their  efforts 
to  improve  the  Federal  Criminal  Code  and  I  want  to  offer  my  congratulations 
for  the  excellent  Bill  you  have  drafted.  Most  of  the  provisions  of  this  legisla- 
tion, particularly  in  the  area  of  sentencing,  will  have  a  significant  and  positive 
impact  on  the  Federal  correctional  system. 

During  my  career  in  the  field  of  correctional  administration,  I  have  become 
increasingly  aware  of  the  tremendous  impact  of  sentencing  procedures  on  the 
correctional  process.  During  the  past  several  years,  I  have  closely  followed  the 
debate  in  legal  and  academic  circles  regarding  sentencing  and  the  purposes  of 
imprisonment.  Two  studies  which  have  had  great  impact,  at  least  on  my  per- 
sonal thinking,  are  The  Future  of  Imprisonment,  by  Dean  Norval  Morris,  and 
Toivard  a  Just  and  Effective  Sentencing  System,  by  O'Donnell,  Churgin  and 
Curtis. 

I  share  the  collective  opinion  of  these  and  others  that  there  is  an  urgent 
need  to  reform  the  present  Federal  sentencing  structure.  In  my  opinion,  S.  1437 
emobides  the  needed  reform :  its  passage  will  significantly  reduce  the  irra- 
tionality of  the  present  system,  and  will  enable  the  Federal  sentencing  system 
to  function  swiftly,  and  with  more  certainty. 

In  my  opinion,  the  most  significant  innovation  contained  in  this  legislation 
is  the  establishment  of  a  Sentencing  Commission  which  will  promulgate  sentenc- 
ing guidelines  for  Federal  district  court  judges.  Under  this  guideline  system, 
judges  must  give  written  reasons  for  the  sentence  imposed,  and  provision  is 
made  for  appellate  review  of  sentencing.  Since  the  sentencing  guidelines 
will,  in  large  measure,  determine  the  size  and  nature  of  our  future  institutional 
population,  it  is  crucial  that  there  be  a  close  working  relationship  between 
the  Sentencing  Commission  and  the  Federal  Bureau  of  Prisons.  By  working 
together,  we  can  ensure  that  sufficient  and  appropriate  correctional  resources 
are  available  to  achieve  and  carry  out  the  purposes  of  sentencing. 

The  legislation  also  eliminates  the  Federal  Youth  Corrections  Act  (18  U.S.C. 
5005  et.  seq.)    and  Title  II  of  the  Narcotics  Addict  Rehabilitation  Act    (18 


8886 

U.S.C.  4251  et.  seq.).  While  both  of  the  Acts  were  needed  and  appropriate  at  the 
time  of  their  passage,  subsequent  experience  operating  under  their  provisions 
has  raised  significant  questions  as  to  whether  tliey  should  be  continued. 
Specifically,  most  individuals  involved  in  the  administration  of  Criminal 
Justice,  including  judges,  prosecutors,  attorneys  and  correctional  administra- 
tors, have  abandoned  the  so-called  "medical  model,"  based  upon  research  and 
experience  which  clearly  indicate  that  change  in  a  criminal  offender  cannot 
be  coerced.  This  does  not  mean,  however,  that  offenders  should  not  be  provided 
the  maximum  opportunity  to  change  their  pattern  of  behavior  through  the 
provision  of  educational,  vocational  and  other  kinds  of  correctional  programs. 
I  will  address  this  issue  later  in  my  testimony  in  connection  with  a  comment 
I  have  on  one  of  the  sentencing  criteria  provided  in  the  bill. 

Another  significant  change  in  this  legislation  is  the  elimination  of  good  time 
credits  which  operate  under  present  law  to  reduce  the  time  an  offender  must 
serve  if  he  is  not  previously  released  on  parole.  Provision  is  made  for  parole 
release,  but  the  elimination  of  good  time  will  mean  that  if  an  offender  fails 
to  gain  parole  release,  he  will  serve  the  entire  sentence  imposed,  not  just  two- 
thirds  of  it  as  is  often  the  case  today.  We  support  the  elimination  of  good 
time  but  we  also  recognize  the  importance  of  giving  offenders  serving  long 
terms  some  "light"  at  the  end  of  the  tunnel.  In  S.  1437  that  "light"  will  be 
provided  by  the  parole  provisions  of  Subchapter  D  of  Chapter  38.  If  the 
possibility  of  parole  were  to  be  eliminated,  however,  we  suggest  that  the  Com- 
mittee consider  a  scaling  down  of  the  maximum  penalties  and  the  retention  of 
some  form  of  good  time,  at  least  for  long  term  offenders.  In  particular,  I 
suggest  that  the  Committee  consider  the  "early  release"  pi-oposal  discussed  in 
Toward  a  Just  and  Effective  Sentencing  System  which  woiild  enable  an  offender 
to  reduce  by  one-tenth  his  term  of  imprisonment.  Among  the  many  good  time 
and  early  release  proposals  which  I  have  reviewed,  I  believe  this  proposal 
is  the  most  logical,  administratively  practical,  and  best  thought  out. 

Finally,  since  under  present  law  good  time  operates  n  a  significant  percent- 
age of  cases  to  reduce  the  actual  time  served  by  offenders,  it  is  critical  that 
the  new  Sentencing  Commission  takes  its  elimination  into  account  in  promulgat- 
ing sentencing  guidelines.  Like  all  resources,  the  amount  of  space  available  in 
prisons  and  jails  is  finite.  We  are  presently  experiencing  severe  overcrowding 
which  is  expected  to  continue  for  the  foreseeable  future.  The  population  of  the 
Bureau  of  Prisons  now  stands  at  an  all  time  record  high  of  29,006,  an  increase 
of  6.203  over  the  last  2  years. 

The  combination  of  the  greatly  needed  innovations  and  changes  in  S.  1437 
will  in  my  opinion,  provide  a  significant  and  critically  needed  infusion  of 
rationality  into  the  present  sentencing  structure.  For  both  offenders  and  the 
public  alike,  it  will  make  the  appearance  and  reality  of  sentencing  fairer  and 
more  straight  forward.  More  importantly,  it  will  provide  a  greater  degree  of 
certainty  of  puni.shment  for  criminal  behavior.  In  my  opinion,  offenders  all 
too  frequently  view  the  criminal  justice  system  in  terms  of  "gambling  odds." 
with  a  conviction  being  perceived  as  simply  a  turn  of  "bad  luck."  By  increasing 
the  certainty  of  punishment  rather  than  its  length  or  severity,  I  believe  we 
can  be  more  effective  in  deterring  crime. 

In  view  of  my  background  and  present  position,  I  will  confine  my  specific 
comments  to  the  provisions  of  the  legislation  which  deal  directly  with,  or 
significantly  impact  on,  the  Federal  Prison  System.  I  again  want  to  point  out, 
however,  that  these  minor  suggestions  in  no  way  detract  from  my  strong 
overall  endorsement  of  this  much  needed  legislation. 

Mandatory  minimum  sentences 

Section  1811,  TraflTicking  in  an  Opiate,  and  Section  1823,  Using  a  Weapon 
in  the  Course  of  a  Crime,  both  provide  for  mandatory  minimum  imprisonment 
penalties  (accompanied  by  a  similar  term  of  parole  ineligiblity)  which  the 
court  will  impose  upon  conviction.  We  are  generally  opposed  to  the  use  of 
mandatory  minimum  sentences  for  any  specific  criminal  offense.  Although  the 
statutes  exempt  application  of  the  mandatory  penalty  for  certain  specific 
mitigating  circumstances  such  as  youth  (under  IS)  or  mental  impairment, 
mandatoi-y  minimums  tmnecessarily  restrict  the  flexibility,  in  terms  of  sentenc- 
ing options,  which  a  judge  needs.  This  flexibility,  in  our  opinion,  is  inherent  in 
the  sentencing  guidelines  process  which  applies  to  sentences  imposed  under 
every  other  criminal  offense  in  the  Code.  The  need  for  deterrence  and  in- 
capacitation can  clearly  be  met  by  stiff  sentencing  guidelines  which  provide 


8887 

high  maximum  terms  and  impose  similarly  severe  terms  of  parole  ineligibility, 
as  I  am  sure  will  be  the  case  for  such  crimes  as  mui-der,  kidnapping  and  arson, 
for  which  no  mandatory  minimum  penalties  have  been  provided.  Finally,  the 
Committee  may  recall  that  Congressional  action  was  recently  required  to 
relieve  inequities  caused  by  minimum  mandatory  penalty  provisions  in  the 
Harrison  Narcotics  Act. 

Penalties  for  rioting 

Unlike  present  law,  S.  1437  includes  a  uniform  set  of  offenses  for  rioting, 
with  increased  penalties  for  riots  in  the  prison  setting.  With  the  pension 
inherent  in  the  prison  environment,  rioting  is  extremely  serious  behavior. 
The  allocation  of  an  entire  subchapter  of  the  Code  to  this  type  of  criminal 
behavior,  and  the  special  penalty  provisions  for  prison  rioting,  are  clearly 
appropriate.  We  believe  there  is  a  problem,  however,  with  the  disparity  in 
penalties  provided  for  an  offense  under  Section  1831,  Leading  a  Riot,  and 
Section  1833,  Engaging  in  a  Riot.  The  former  provides  for  a  class  D  felony 
penalty  for  a  person  who  during  a  riot  in  a  facility  used  for  official  detention 
"urges  participation  in,  leads,  or  gives  commands,  instructions,  or  directions  in 
furtherance  of,  the  riot."  The  other  section  provides  for  only  a  class  A  misde- 
meanor for  persons  convicted  of  engaging  in  a  riot  in  a  facility  used  for 
official  detention.  The  disparity  in  penalties  (6  years  in  terms  of  the  maximum 
term  authorized)  seems  unwarranted,  and  we  would  suggest  the  Committee 
consider  raising  the  penalty  in  Section  1833  for  engaging  in  a  prison  riot  to 
a  Class  E  felony. 

Sentencing  criteria 

Among  the  criteria  which  the  proposed  Code  requires  the  sentencing  judge 
to  consider  in  imposing  a  sentence  is  "the  need  for  the  sentence  imposed  to 
provide  the  defendant  with  needed  educational  or  vocational  training,  medical 
care,  or  other  correctional  treatment  in  the  most  effective  manner."  Section 
2003(a)(2)(D).  In  view  of  the  state  of  the  art  of  corrections  and  recent  re- 
search concerning  rehabilitation,  v/e  frankly  question  using  this  criterion  as  a 
basis  for  imposing  a  sentence  of  imprisonment.  We  can  see,  however,  that  it 
would  be  an  appropriate  cirterion  for  the  judge  to  consider  in  imposing  a 
sentence  of  probation.  It  is  difficult  to  imagine  a  situation  where  a  defendant's 
educational,  vocational  or  medical  needs  could  be  better  provided  in  a  prison 
setting  than  in  the  community.  And  even  if,  for  example,  the  medical  services 
in  the  prison  were  superior  to  those  available  to  an  indigent  defendant  in  the 
community,  the  other  negative  aspects  and  ramifications  of  incarceration  far 
outweight  any  such  advantage. 

As  I  mentioned  in  the  beginning  of  my  testimony,  another  problem  we  have 
with  this  kind  of  sentencing  criteria  is  that,  at  least  with  respect  to  vocational, 
educational  and  other  correctional  programming,  it  is  premised  on  the  old 
"rehabilitative"  model.  Clearly,  the  Bureau  of  Prisons  should  be  statutorily 
required  to  provide  offenders  with  medical  care,  and  to  make  educational, 
vocational  and  other  correctional  programs  and  services.  However,  unless  the 
offender's  participation  is  voluntary,  the  impact  of  these  programs  and  services, 
in  terms  of  changing  offender  behavior  patterns  for  the  better,  will  be  minimal. 
I  suggest  that  the  Bill  be  clarified  to  indicate  that  this  criterion  would  be 
primarily  used  in  connection  with  imposing  a  sentence  of  probation,  and  that 
it  should  not  be  used  as  a  basis  for  imposing  a  term  of  incarceration.  In  addi- 
tion, the  Conforming  Amendments  should  include  a  section  indicating  that  one 
of  the  Bureau  of  Prisons'  responsibilities  and  duties  is  the  provision  of  educa- 
tional, vocational,  medical  and  other  correctional  programs  and  services  to 
offenders. 

Modification  of  the  term  of  imprisonment  or  parole  ineligibility 

Under  Section  2302(c),  upon  motion  of  the  Director  of  the  Bureau  of  Prisons 
"for  extraordinary  and  compelling  reasons,"  the  court  "may  reduce  an  imposed 
term  of  imprisonment  or  term  of  parole  ineligibility  to  the  time  that  the 
defendant  has  served  in  imprisonment."  This  provision  expands  present  law. 
18  U.S.C.  4205(g),  which  permits  the  court,  upon  motion  of  the  Bureau  of 
Prisons,  to  m.ake  an  offender  immediately  eligible  for  parole  by  reducing  any 
minimum  term  to  the  time  the  defendant  has  served.  Based  on  our  experience 
with  requests  for  motions  under  18  U.S.C.  4205(g),  we  urge  the  Committee  to 
make  it  clear  in  the  legislative  history  that  "extraordinary  and  compelling" 
criteria  refer,  in  virtually  all  cases,  to  circumstances  or  events  which  could 

92-465 — 77 21 


8888 

not  have  been  roasonably  foreseen  by  the  court  at  the  time  of  sentencing. 
Without  such  a  limitation,  these  criteria  could  be  construed  to  include  con- 
sideration of  the  appropriateness  of  the  sentence  imposed,  which  would  un- 
necessarily and  inappropriately  overlap  with  the  appellate  review  provisions  of 
Chapter  37. 
Multiple  sentences  of  imprisonment 

Section  2304,  Multiple  Sentences  of  Imprisonment,  provides  that  multiple 
terms  of  imprisonment  run  concurrently  unless  the  court  orders  that  the  terms 
are  to  run  consecutively.  This  codifies  the  presumption  of  current  sentencing 
law  where  a  subsequent  federal  sentence  is  imposed  on  an  offender  presently 
serving  a  prior  federal  sentence.  However,  the  presumption  is  presently  just  the 
reverse  when  a  federal  sentence  is  imposed  upon  an  offender  presently  serving 
a  state  sentence.  In  this  case,  if  the  federal  judge  remains  silent,  case  law  and 
the  application  of  18  U.S.C.  3568  dictate  that  the  federal  sentence  will  be  com- 
liuted  to  run  consecutively.  We  assume  that  Section  2305 (a)  continues  present 
law,  providing  for  commencement  of  a  federal  sentence  in  this  instance  when 
the  defendant  is  released  from  state  custody  and  comes  into  federal  custody  to 
serve. 

Section  2304(c)  provides  that  the  aggregate  of  consecutive  terms  of  imprison- 
ment to  which  a  defendant  may  be  sentenced  may  not  exceed  such  term  as  is 
authorized  by  Section  2301  for  an  offense  one  grade  higher  than  the  most  seri- 
ous offense  for  which  he  was  found  guilty.  It  is  not  clear,  however,  whether 
this  limitation  applies  only  to  sentences  imposed  at  the  same  time,  or  for  any 
subsequent  sentencing  situation.  Clearly,  only  the  more  narrow  construction  is 
appropriate.  If  the  limitation  is  applied  to  any  subsequent  sentencing  situation 
offenders  who  commit  a  series  of  crimes  for  which  the  maximum  penalty  is  no 
greater  than  that  for  which  they  are  presently  incarcerated  would  achieve  a 
certain  degree  of  unwarranted  immunization  from  possible  criminal  sanctions. 
The  most  they  could  get  in  terms  of  a  new  prison  term  is  the  difference  between 
their  present  sentence  and  the  maximum  penalty  for  the  next  grade  higher.  If 
the  limitation  is  only  intended  to  apply  to  sentences  imposed  at  the  same  time, 
we  are  not  opposed  to  this  provision,  but  suggest,  for  purposes  of  clarity,  that 
the  phrase  "at  the  same  time"  used  on  lines  25  and  20  on  page  178  in  Section 
2304(a)  be  inserted  between  the  words  "sentenced"  and  "may"  on  line  11  of 
page  179. 

Finally,  since  the  Bureau  of  Prisons  is  responsible  for  the  computation  of 
prison  terms  for  federal  offenders,  we  suggest  that  some  minor  revision  may  be 
needed  to  clarify  the  relationhlp  between  Section  2304  and  the  parole  eligibility 
provisions  in  Section  3831.  Our  concerns  in  this  area,  due  to  the  nature  and 
complexity  of  sentence  computation,  could  best  be  resolved  through  discussions 
between  I3ureau  of  Prisons  legal  and  records  management  personnel  and  the 
Committee  staff. 

Juveniles 

Under  S.  1437,  the  provisions  for  placing  committed  juveniles  are  much  more 
restrictive  than  present  law.  Under  18  U.S.C.  5039,  "(n)o  juvenile  committed 
to  the  custody  of  the  Attorney  General  may  be  placed  or  retained  in  an  adult 
jail  or  correctional  institution  in  which  he  has  regular  contact  with  adults  in- 
carcerated because  they  have  been  convicted  of  a  crime  or  are  awaiting  trial 
on  criminal  charges."  Under  Section  3603(h),  however,  a  juvenile  cannot  be 
held  "in  an  official  detention  facility  in  which  an  adult  convicted  of  an  offense 
or  awaiting  trial  on  a  charge  of  an  offense  is  held  in  official  detention."  At 
present,  we  are  encountering  many  difficulties  in  trying  to  malie  state  place- 
ments for  some  of  the  more  criminally  sophisticated  juveniles,  particularly  those 
in  the  18-21  year  old  range.  Many  states  simply  do  not  have,  or  refuse  to  make 
available,  juvenile  facilities  for  these  individuals.  If  these  juveniles  cannot  be 
placed  in  a  state  facility,  and  Section  3603 (h)  will  significantly  reduce  the 
number  of  state  facilities  available,  we  may  be  forced  to  establish  one  or  two 
Federal  juvenile  facilities,  which  means  that  most  of  the  offenders  placed  there 
will  be  thousands  of  miles  away  from  their  families. 

While  we  offer  no  specific  solutions,  we  want  to  take  this  opportunity  to  call 
the  Committee's  attention  to  the  difliculties  we  are  presently  encountering  try- 
ing to  carry  out  tlie  juvenile  commitment  provisions  of  present  law  which  are 
less  restrictive  than  the  provisions  in  this  Bill. 


8889 

Offenders  tvith  mental  disease  or  defect 

Chapter  38,  Subchapter  B  replaces  current  Chapter  313  of  Title  18.  The  new 
provisions  are  well  drafted,  and  make  several  long-needed  changes  to  the  pres- 
ent federal  competency  laws.  Most  notable  is  Section  3613,  which  corrects  a 
serious  gap  in  federal  lav/,  providing  commitment  procedures  for  those  who  are 
acquitted  by  reason  of  insanity. 

Commitments  of  the  mentally  ill  under  the  sections  of  the  Subchapter  are  to 
the  custody  of  the  Attorney  General.  The  Attorney  General  is  authorized  to 
place  the  person  in  a  suitable  mental  hospital  for  treatment.  There  is,  however, 
no  definition  of  "a  suitable  mental  hospital." 

We  would  point  out  that,  if  there  is  a  presumption  that  all  of  these  individ- 
uals are  to  be  placed  in  state  or  private  hospitals,  this  in  fact  may  be  extremely 
difficult.  Experience  indicates  that  most  state  and  private  hospitals  will  not 
accept  persons  who  have  criminal  charges  outstanding.  It  is  true  that,  on  the 
other  hand,  placement  of  these  mentally  ill  persons  in  Bureau  of  Prisons  facili- 
ties raises  the  constitutional  issue  of  commingling  the  unconvicted  with  the 
convicted. 

We  believe  that  those  who  are  convicted,  under  Sections  3614  and  3615,  should 
be  confined  in  appropriate  Bureau  of  Prisons  facilities.  Those  who  are  uncon- 
victed, however,  should  be  placed  in  non-prison  hospitals  or  other  suitable  fa- 
cilities, if  at  all  possible. 

Included  in  Section  3611  of  the  draft  legislation  is  the  provision  for  com- 
petency determinations  and  commitments.  Here,  the  presumption  should  be  that 
the  initial  competency  determination,  for  those  awaiting  trial,  should  be  done 
using  local  hospitals  and  mental  health  resources  if  at  all  possible.  We  assume 
that  the  dropping  of  the  separate  commitment  provisions,  currently  in  18 
U.S.C.  4244,  dictates  a  local  psychiatric  examination,  which  we  believe  is  highly 
desirable.  The  psychiatric  examination  may  be  conducted  by  clinical  psycholo- 
gists, as  well  as  certified  psychiatrists.  We  favor  this  addition  of  psychologists, 
with  the  expertise  which  has  developed  in  the  field  of  forensic  psychology,  and 
with  the  availability  of  psychologists  in  some  situations  where  psychiatrists  are 
hard  to  find.  We  do  note,  however,  that  Rule  12.2  of  the  Federal  Rules  of  Crimi- 
nal Procedure,  upon  which  Section  3612  is  based,  will  have  to  be  amended  ta 
allow  psychological  as  well  as  psychiatric  testimony. 

Section  3611(d)  codifies  time  limitations  for  incompetency-to-stand-trial  com- 
mitments. In  practice,  a  6-month  limit  has  been  placed  on  competency  commit- 
ments at  our  Medical  Center,  before  the  defendant  must  be  referred  back  to  the 
committing  court  to  ascertain  the  possibility  of  proceeding  to  trial,  or  dropping 
charges  and  obtaining  a  civil  commitment.  We  find  the  12-month  ceiling — no 
more  than  6  months  to  determine  whether  the  defendant  is  likely  to  be  restored 
to  competency  so  that  he  can  be  tried,  plus  6  months  to  achieve  the  restoration 
to  competency  or  a  dismissal  of  charges — is  a  reasonable  and  workable  statu- 
tory direction.  Section  3616  is  available  for  the  continued  commitment  of  those 
few  who  cannot  be  restored  to  competency  or  civilly  committed  in  their  home 
states,  and  who  pose  a  continuing  and  substantial  danger  to  others. 

Sections  3614  and  3615  provide  hospitalization  commitments  for  offenders,  in 
lieu  of  any  other  sentence  if  raised  immediately  after  conviction  (Section  3614), 
or  as  a  substitute  commitment  for  those  already  serving  a  term  of  imprison- 
ment (Section  3615).  The  rationale  for  the  alternative  commitment  of  Section 
3614  is  appealing.  Psychiatric  difficulties  are  of  course  present  in  the  history  of 
many  offenders,  so  some  grounds  for  raising  the  motion  may  be  present  in  a 
majority  of  cases.  This  may  result  in  a  high  volume  of  defense  motions  under 
the  section.  If  this  in  fact  happens,  psychiatric  examinations,  hearings,  and 
commitments  will  place  a  new  burden  on  court  and  mental  commitment  facili- 
ties. 

Section  3615  also  imposes  a  new  hearing  and  commitment  procedure  on  the 
courts  and  on  the  Department  of  Justice.  While  the  rationale  is  again  under- 
standable, the  burden  it  will  place  on  the  courts  and  other  systems  must  be 
considered.  Since  we  now  administratively  transfer  all  sentenced  persons  who 
are  in  need  of  specialized  psychiatric  care  to  appropriate  facilities,  I  question 
the  need  for  the  separate  judicial  commitment  procedures  of  Section  3615. 

Section  3616  sets  up  a  necessary  procedure  for  the  continued  commitment  of 
those  who  are  due  to  be  released  by  operation  of  other  statutory  provisions,  but 
who  should  be  hospitalized  for  the  protection  of  the  public.  As  with  persons 
who  are  acquitted  because  of  insanity,  the  preferred  course  is  clearly  commit- 


8890 

ment  to  a  mental  hospital  in  the  state  of  residence.  If  that  cannot  be  arranged, 
a  federal  commitment  of  those  who  are  truly  dangerous  is  established. 

I  would  note  that  the  provisions  for  periodic  reporting  to  the  committing 
court,  in  Section  3617(e),  are  highly  desirable,  to  avoid  the  prolonged  commit- 
ment of  a  forgotten  person,  which  has  happened  in  some  systems  of  mental 
health  commitments.  This  periodic  reporting  should  ensure  ongoing  judicial 
review  of  the  basis  for  the  commitment,  and  prevent  the  "forgotten"  person. 

This  concludes  my  formal  statement,  Mr.  Chairman.  I  want  to  emphasize 
again,  however,  that  I  fully  endorse  this  much  needed  legislative  reform.  In 
addition  to  these  comments,  we  have  several  other  minor  suggestions  of  a  tech- 
nical nature  which  we  will  submit  to  the  Committee  in  the  form  of  a  memoran- 
dum. I  would  be  pleased  to  answer  any  questions  you  or  your  colleagues  may 
have. 


June  14,  1977. 
Memorandum  to :  Patricia  M.  Wald,  Assistant  Attorney  General,  Office  of  Legis- 
lative Affairs. 
From  :  Norman  A.  Carlson,  Director,  Bureau  of  Prisons. 

Subject :  Suggested  technical  amendments  to  S.  1437,  the  Criminal  Code  Reform 
Act  of  1977. 
This  memorandum  identifies  several  minor  problems  in  S.  1437  from  the 
standpoint  of  correctional  administration.  During  my  June  8,  1977  testimony 
on  S.  1437.  I  told  the  Committee  that  I  would  forward  my  comments  on  spe- 
cific provisions  in  a  separate  memoi-andum.  If  your  staff  or  the  Committee  have 
any  questions  on  these  comments,  or  any  other  correctionally  related  provisions 
in  the  legislation,  please  feel  free  to  contact  us. 

The  need  to  define  "employee  of  the  Bureau  of  Prisons" 

We  would  suggest  the  Committee  include  in  the  Code  a  definition  of  the 
phrase  "employee  of  the  Bureau  of  Prisons,"  which  would  specify  that  em- 
ployees of  Federal  Prison  Industries  and  the  National  Institute  of  Corrections, 
as  well  as  U.S.  Public  Health  Service  personnel  detailed  to  the  Bureau  of 
Prisons,  are  covered  by  this  term.  This  definition  would  be  helpful  in  defining 
the  scope  of  Section  3017,  which  authorizes  Bureau  of  Prisons  employees  to 
carry  firearms  and  make  arrests.  We  believe  this  definition  should  be  used  in 
lieu  of,  or  in  addition  to,  the  phrase  "an  employee  of  an  official  detention  fa- 
cility" which  is  used  as  a  jurisdictional  base  in  several  of  the  offense  provi- 
sions in  the  Code,  e.g.  §§  IGOl(e)  (2)  (B)  and  1611(c)(2)(B).  By  substituting 
or  including  this  definition  in  these  jurisdictional  provisions,  jurisdictional 
coverage  will  be  extended  to  our  Central  and  regional  offices,  similar  to  the 
coverage  provided  for  law  enforcement  officers. 

Contraband 

The  bill  should  inchide  specific  authority  for  prison  officials  to  seize  and  for- 
feit contraband  described  in  section  1314.  Recently,  the  Eighth  Circuit  Court 
of  Appeals  in  Sell  v.  Parratt  (No.  7(>-1307)  invalidated  a  Nebraska  Department 
of  Corrections  regulation  which  provided  for  the  forfeiture  of  money  found  in 
the  possession  of  an  inmate.  The  court  held  "that  an  administrative  agency  has 
no  right  without  underlying  statutory  authority  to  prescribe  and  enforce  for- 
feitures of  i)roperty  as  i)unitive  measures  for  violntions  of  administrative  rules 
and  regulations,  and  that  when  an  agency  does  so,  it  violates  the  due  process 
clause  of  the  fourteenth  amendment." 

To  prevent,  or  at  least  reduce,  the  flow  of  contraband  in  institutions,  the 
Bureau  of  Prisons  needs  to  be  able  to  seize  and  forfeit  contraband  found  in 
Federal  prisons.  Without  statutory  forfeiture  authority,  for  example,  the  Bu- 
reau of  Prisons  may  be  forced  to  return  confiscated  weapons  to  offenders  at  the 
time  of  their  release. 

There  are  civil  forfeiture  provisions  in  Subchapter  A  of  Chapter  40  which 
permit  the  Attorney  General  to  bring  in  rem  civil  proceedings  in  district  courts 
for  the  seizure  and  forfeiture  of  property  used  in  certain  offenses,  such  as 
Bribery  and  Smuggling.  Contraband  in  prison,  however,  is  a  pervasive  problem, 
not  only  the  obviously  dangerous  article  such  as  weapons  and  drugs,  but  also 
contraband  which  has  to  be  removed,  almost  daily,  from  inmate  living  areas 
for  health  ;ind  safety  reasons.  To  require  civil  judicial  proceedings  such  as 
those  set  out  in  Chnjiter  40  for  the  forfeiture  of  prison  contraband  would  be 
impractical,  and  would,  in  effect,  prevent  enforcement  of  the  contraband  stat- 


8891 

nte.  We  urge  the  Committee  to  place  the  forfeiture  authority  provision  in  Sub- 
chapter C  of  Chapter  38,  and,  if  possible,  to  eliminate,  or  at  least  reduce  to  the 
bare  minimum,  any  procedural  requirements  for  forfeiture. 

Interception  of  oral  or  written  communications 

Section  1521,  Eavesdropping,  and  Section  1524,  Intercepting  Correspondence, 
make  it  a  crime  to  intercept  private  oral  or  written  communications,  w^ithout 
the  consent  of  at  least  one  party  to  the  communication.  Consent  as  defined  on 
page  16  includes  "willing  assent"  but  specifically  excludes  both  the  consent  of 
individuals  unable,  by  age,  mental  disease  or  defect,  etc.,  to  make  a  reasonable 
judgment  as  to  the  nature  or  harmfulness  of  the  conduct  assented  to,  or  con- 
sent given  under  certain  circumstances,  such  as  force  or  threat.  Under  present 
law,  the  consent  of  at  least  one  party  is  needed  to  intercept  external  phone 
conversations  without  a  court  order.  At  many  correctional  facilities,  we  have 
the  capacity  to  monitor  internal  and  external  inmate  telephone  calls.  Inmates 
receive  notice  of  the  monitoring  practices  through  published  regulations  which 
are  placed  in  law  libraries  and  through  institutional  regulations  which  are  given 
to  them.  Since  they  are  on  notice  and  continue  to  use  the  phones,  the  authority 
to  monitor  is  based  on  the  inmates'  implied  consent. 

With  respect  to  inmate  correspondence,  the  Supreme  Court  has  recognized  the 
right  of  correctional  officials  to  read  certain  kinds  of  incoming  and  outgoing 
inmate  mail.  Procunier  v.  Martinez,  416  U.S.  396  (1974).  Under  our  inmate 
correspondence  regulations,  inmates  sign  a  statement  indicating  that  they  un- 
derstand that  staff  may  open  and  read  general  correspondence,  and  that  spe- 
cial correspondence  (attorney  mail,  etc.)  may  be  opened  only  in  their  presence 
in  order  to  check  for  contraband. 

While  the  phone  and  mail  monitoring  capabilities  are  not  regularly  used,  I 
believe  we  need  to  retain  the  ability  to  do  both,  in  order  to  maintain  security. 
If  either  Section  1521  or  Section  1.524,  on  its  own,  or  in  conjunction  with  the 
definition  of  "consent,"  eliminates  the  authority  to  monitor,  we  urge  the  Com- 
mittee to  consider  amending  the  legislation  to  preserve  present  authority. 

Under  present  correspondence  regulations,  all  incoming  mail  is  checked  for 
contraband,  a  procedure  which  on  occasion  has  detected  weapons  and  drugs.  If 
we  were  required  to  seek  a  court  order  each  time  we  needed  to  inspect  mail  and 
packages,  our  ability  to  prevent  the  introduction  of  contraband  would  be  se- 
verely restricted.  The  knowledge  that  incoming  material  may  be  inspected  de- 
ters individuals  from  mailing  contral)and  articles.  Elimination  of  the  search 
mechanism  would  undoubtedly  lead  to  the  introduction  of  additional  dangerous 
items  into  the  institutions. 

Probation 

Section  2103(11)  continues  the  split-sentencing  authority  of  present  law  (18 
U.S.C.  3G51),  but  Section  2101(a)(3)  cuts  back  on  present  judicial  sentencing 
options  because  it  prohibits  a  court  from  imposing  a  sentence  of  probation  for 
conviction  of  one  count  of  a  multi-count  conviction,  if  imprisonment  is  im- 
posed on  another  count.  It  should  be  noted  that  the  present  split-sentencing 
statute  was  passed  to  give  courts  the  same  sentencing  flexibility  for  a  single 
coTint  conviction  which  they  enjoyed  for  multi-count  convictions. 

Section  2103(b)  (12)  which  provides  that  the  defendant  may  be  required  to 
"reside  at,  or  participate  in  the  program  of,  a  community  treatment  facility 
for  all  or  part  of  the  term  of  probation"  also  continues  present  law  but  omits 
the  present  requirement  that  the  Attorney  General  first  certify  that  such  fa- 
cilities are  available.  This  certification  authority,  although  probably  more  ap- 
propriately placed  with  the  Director  of  the  Bureau  of  Prisons,  should  be  con- 
tinued to  insure  that  adequate  and  appropriate  facilities  are  available  to  carry 
out  the  sentencing  intent  provided  in  this  section. 

Interstate  agreement  on  detainers 

Section  3201(a)  is  new  and  provides  that  when  the  Federal  Government  is 
the  requesting  party,  the  production  of  an  offender  can  only  be  by  writ,  and. 
not  pursuant  to  the  Agreement.  This  is  no  change  in  practice,  as  the  U.S.  Attor- 
neys Ofl^ce  almost  invariably  uses  the  writ  and  not  the  Agreement  to  produce  a 
state  offender.  The  purpose  of  the  change  in  the  law  is  to  avoid  certain  restric- 
tions in  the  Agreement  which  some  court  decisions  have  grafted  on  productions 
by  writ :  e.g.,  under  the  Agreement  the  state  can  say  "no"  to  the  production, 
if  the  offender  objects ;  the  offender  can't  be  returned  to  the  original  place  of 
confinement  until  the  prosecution  is  fully  completed,  under  all  stages. 


8892 

While  we  have  some  hesitation  ahout  adopting  only  part  of  a  uniform  agree- 
ment, we  think  it  is  prohably  appropriate,  for  two  reasons :  first,  the  Federal 
Government  is  not  just  another  party  to  the  agreement.  Under  the  Supremacy 
clause,  the  Federal  Government  can  compel  production  pursuant  to  the  writ. 
Second,  it  was  not  the  intent  of  Congress  in  originally  adopting  the  Agreement 
to  limit  the  Government's  right  to  compel  production.  The  Agreement  was 
adopted  not  because  the  Federal  Government  needed  it,  but  to  assist  states  in 
facilitating  production  of  offenders  for  prosecution  purposes. 

Transportation  of  certain  unsentenced  prisoners  or  ivitnesses 

Section  8512,  Discharge  of  an  Arrested  but  Unconvicted  Person,  provides  that 
the  Director  of  the  Bureau  of  Prisons  will  promulgate  regulations  concerning 
the  transportation  by  the  U.S.  Marshals  of  certain  unsentenced  prisoners  or 
witnesses  who  have  been  released  from  official  detention.  Since  this  function 
can  be  performed  by  several  different  divisions  of  the  Department,  the  responsi- 
bility for  promulgating  these  regulations  should  be  vested  in  the  Attorney 
General. 

Gratuities  for  released  prisoners 

S.  14.37  deletes  the  Attorney  General's  authority  under  present  law  (18  U.S.C. 
4284)  to  provide  loans  of  up  to  $150  to  offenders  at  the  time  of  their  release. 
On  the  other  hand.  Section  3824(d)  (2)  increases  the  amount  which  an  offender 
can  be  given  as  a  gratuity  at  the  time  of  his  release  from  $100  (18  U.S.C.  4281) 
to  $."00.  We  support  these  changes.  Experience  has  shown  that  lending  offenders 
money  at  the  time  of  their  release  often  has  negative  side  effects  for  both  the 
offender  and  the  U.S.  Probation  Officer  who  is  responsible  for  monitoring  the 
offender's  repayment  of  the  loan.  Offenders  are  already  facing  many  uncertain- 
ties and  difficulties  in  trying  to  cope  with  the  problem  of  community  reintegra- 
tion, and  they  do  not  need  the  added  burden  of  a  monetary  debt  to  the  Federal 
government.  Probation  Officers,  on  the  other  hand,  are  forced  to  play  the  role 
of  debt  collector,  and  understandably  feel  that  it  interferes  with  their  efforts 
to  aid  the  offender  in  his  community  reintegration.  Our  experience  with  collec- 
tion of  loan  payments  was  very  unfavorable. 

The  statute  also  imposes  a  $200  floor  on  offender  gratuities,  "unless  the  Di- 
rector determines  that  the  financial  position  of  the  offender  is  such  that  no  sum 
should  be  furnished."  Requiring  a  $200  minimum  gratuity  may  unnecessarily 
re.strict  our  flexibility  in  providing  funds  to  offenders  in  need  of  financial  assist- 
ance at  the  time  of  their  release.  For  example,  it  would  prevent  us  from  provid- 
ing financial  assistance  in  certain  borderline  cases  where  an  offender  needs 
some  money  but  not  $200.  This  minimum  requirement  could  also  create  problems 
when  we  encounter  year-end  financial  shortages  and  we  want  to  give  every  needy 
offender  some  financial  aid  at  the  time  of  his  release,  but  we  don't  have  suffi- 
cient funds  to  give  each  $200.  I  would  recommend  elimination  of  the  $200  floor. 

Application  of  the  Administrative  Procedure  Act 

Section  382.5,  Inapplicability  of  the  Administrative  Procedure  Act,  exempts 
"any  determination,  decision,  or  order"  made  under  Subchapter  C  (Imprison- 
ment) of  Chapter  38  from  the  provisions  of  the  Administrative  Procedure  Act. 
This  exemption  is  both  appropriate  and  essential  to  the  operations  of  the 
P.ureau  of  Prisons,  and  reflects  the  present  caselaw,  Clardy  v.  Levi,  545  F.  2d 
1241  (1976).  We  are  concerned,  however,  that  by  limiting  the  exemption  to 
determinations,  decisions,  or  orders  made  under  Subchapter  C  of  Chapter  38, 
inmate  disciplinary  proceedings,  as  well  as  certain  other  correctional  proce- 
dures and  proceedings  which  are  currently  exempt,  are  not  covered.  Clearly  in- 
mate disciplinary  proceedings,  which  were  the  subject  of  the  Ninth  Circuit's 
opinion  in  Clardy,  should  not  be  covered  by  the  Administrative  Procedure  Act. 
If  an  express  exemption  were  not  provided  for  inmate  disciplinary  proceedings, 
the  Code  could  be  construed  as  overruling  Clardy,  thereby  imposing  legislatively 
what  the  Supreme  Court  recently  recognized  as  hazardous  in  the  prison  disci- 
plinary setting,  attorney  representation  and  cross-examination  and  confronta- 
tion of  adverse  witnesses.  ^Volff  v.  McDonnell,  418  U.S.  539  (1974)  and  Baxter 
V.  Palmiiujiano,  425  U.S.  308  (1976). 

We  assume  that  the  authority  of  the  Bureau  of  Prisons  relating  to  inmate 
discipline  will  be  covered  in  Title  28  in  the  Conforming  Amendments,  and  we 
urge  the  Committee  to  include  similar  exemptions  to  at  least  continue  the  hold- 
ing in  Clardy. 


8893 

study  reports  prepared  by  the  Bureau  of  Prisons  for  the  courts  and  the  Parole 
Commission 

Section  2002(b)  and  Section  3832,  respectively,  require  the  Bureau  of  Prisons 
to  prepare  studies  on  offenders  for  the  sentencing  court  and  the  Parole  Com- 
mission. The  information  to  be  covered  by  the  reports  is  identical  in  both  stat- 
utes, and,  we  believe,  unnecessarily  specific.  For  example,  at  least  one  of  the 
criteria  listed  in  Section  3832 (a),  the  availability  of  rehabilitative  resources 
or  programs,  is  not  a  significant  factor  under  the  present  guidelines  of  the 
U.S.  Parole  Commission.  A  more  flexible,  and  certainly  more  responsive,  ap- 
proach would  be  to  delete  any  reference  to  specific  kinds  of  information  and 
require  instead  that  the  Director  of  the  Bureau  of  Prisons  issue  guidelines, 
after  consulting  with  the  U.S.  Sentencing  Commission,  for  preparation  of  such 
studies.  This  consultation  requirement  will  ensure  that  the  Bureau  of  Prisons 
will  always  be  providing  the  information  needed  by  the  Parole  Commission  and 
the  Sentencing  Commission  which  issues  the  controlling  guidelines  for  both 
sentencing  and  parole. 

June  24, 1977. 
Hon.  .ToiiN  L.  McClellan, 

Chairman,  Suicoinmittee  on  Criminal  Laws  and  Procedures, 
Dirkscn  Senate  Office  Building, 
Washington,  B.C. 

Dear  Sekatob  McClellan  :  After  testifying  on  June  8,  1977  in  support  of 
S.  1437,  the  Criminal  Code  Revision  bill,  I  have  carefully  followed  the  subse- 
quent testimony  on  this  legislation,  particularly  as  it  relates  to  correctional; 
issues.  One  concern  of  several  witnesses  has  been  the  application  of  the  Admin- 
istrative Procedure  Act,  the  Freedom  of  Information  Act  and  the  Privacy  Act 
to  the  Bureau  of  Prisons.  Witnesses  representing  the  National  Prison  Project 
and  the  National  Moratorium  on  Prison  Construction,  for  example,  expressed 
concern  that  S.  1437  exempts  the  Bureau  of  Prisons  from  all  three  of  these 
Acts.  Section  3825  provides  that  "the  provisions  of  5  U.S.C.  551  through  559, 
and  701  through  706,  do  not  apply  to  the  making  of  any  determination,  decision, 
or  order  under''  subchapter  C  of  Chapter  38.  The  provisions  of  Chapter  38  Sub- 
chapter C,  however,  have  nothing  to  do  with  the  Bureau  of  Prisons  rulemaking 
and  record  keeping  authority  and  responsibility.  The  provisions  relating  to 
those  areas  would  appear  in  Title  28  of  the  United  States  Code,  as  part  of  the 
Conforming  Amendments  to  S.  1437  which  have  not  yet  been  published.  It  is 
our  understanding  that  the  Conforming  Amendments  will  continue  present  law : 
the  Bureau  of  Prisons  will  not  only  promulgate  its  rules  in  accordance  with  sec- 
tion 553  of  the  Administrative  Procedure  Act,  but  also  will  comply  with  the 
provisions  of  the  Freedom  of  Information  Act  and  the  Privacy  Act.  We  fully 
support  that  approach  and  expect  to  continue  to  carry  out  our  responsibilities 
under  these  Acts. 

I  am  concerned,  however,  about  the  allegations  of  several  witnesses  that  pres- 
ent law  requires  the  Bureau  of  Prisons  to  comply  with  all  the  provisions  of 
the  Administrative  Procedure  Act.  As  mentioned  above,  the  rulemaking  require- 
ments of  section  553  of  Title  5  do  apply,  but  current  caselaw  clearly  exempts 
the  Bureau  of  Prisons  from  the  adjudicatory  provisions  of  the  Administrative 
Procedure  Act.  Clardy  v.  Levi,  545  F.  2d  1241  (1976).  As  the  Ninth  Circuit  ob- 
served in  Clardy,  "(t)he  plain  and  simple  fact  is  that  the  APA  was  not  written 
with  the  problems  of  prison  discipline  in  mind.  The  safeguards  erected  therein 
when  applied  comprehensively  will  unduly  inhibit  prison  management."  As 
noted  in  the  memorandum  which  I  submitted  to  the  Subcommittee  to  supple- 
ment my  testimony,  if  an  express  exemption  from  the  APA  were  not  provided 
for  inmate  disciplinary  proceedings,  the  Code  could  be  construed  as  overruling 
Clardy,  thereby  imposing  legislatively  what  the  Supreme  Court  recently  recog- 
nized as  hazardous  in  the  prison  disciplinary  setting,  attorney  representation 
and  cross-examination  and  confrontation  of  adverse  witnesses.  Wolff  v.  McDon- 
nell, 418  U.S.  539  (1974)  and  Baxter  v.  Palmingiano,  425  U.S.  308  (1976). 
Sincerely, 

NOEMAN  A.  CaELSON, 

Director. 

Senator  Hatch.  I  do  have  a  couple  of  questions. 
You  touched  on  this  subject,  but  I  would  like  to  ask  you  this 
directly. 


8S94 

If  sentencing  using  the  judicial  guidelines  approach  as  provided 
in  S.  1437  is  adopted,  do  you  think  it  is  necessary  or  desirable  to 
continue  the  availability  of  early  release  on  parole? 

Mr.  Caklsox.  Mr.  Chairman,  I  think  there  is  a  need  for  a  guide- 
line system  somewhere  in  the  process,  be  it  at  the  parole  stage  or, 
as  the  bill  proposes,  at  the  sentencing  stage. 

I  do  not,  hovFCver,  think  there  is  need  for  guidelines  to  be  used 
twice  in  the  system.  In  otlier  words,  I  think  if  you  shift  the  guide- 
line approach  from  the  parole  stage  to  the  sentencing  stage  you 
probably  could  eliminate  the  concept  of  parole  as  we  know  it. 

Senator  Hatch.  If  the  early  release  function  of  the  Parole  Com- 
mission were  abolished,  do  you  feel,  as  the  Director  of  the  Bureau 
of  Prisons,  that  the  provision  now  in  the  bill  for  a  possible  release 
during  at  least  the  last  one-tenth  of  a  prisoner's  sentence  is  sufficient 
motivation  for  institutional  discipline? 

Mr.  Carlson.  Yes,  I  do,  Mr.  Chairman, 

There  are  a  number  of  other  inducements  that  we  have  available 
as  a  result  of  the  statutory  provisions  of  this  bill.  I  think  the  one- 
tenth  provision  is  adequate  to  provide  the  flexibility  needed  to  main- 
tain control  and  supervision  in  prison  institutions. 

Senator  Hatch.  We  appreciate  your  testimou}'.  Thank  you  for 
coming. 

Mr.  Carlson.  Thank  you,  Mr.  Chairman. 

Senator  Hatch.  Our  next  witness  will  be  Mr.  Pierce  O'Donnell, 
attorney  at  law,  Washington,  D.C. 

Mr.  O'Donnell,  we  are  happy  to  welcome  you  here  toda}'. 

STATEMENT  OF  PIERCE  O'DONNELL,  ATTORNEY  AT  LAW,  WASH- 
INGTON, D.C,  ACCOMPANIED  BY  MICHAEL  J.  CHURGIN  AND 
DENNIS  E.  CURTIS 

Mr.  O'Donnell.  Thank  you,  ]Mr.  Chairman. 

I  am  an  attorney  here  in  "Washington,  D.C.  ]My  immediate  back- 
ground is  service  as  a  law  clerk  for  Supreme  Court  Justice  Byron 
White  and  a  teaching  fellow  at  the  Yale  Law  School,  where  I 
met  the  two  gentlemen  on  either  side  of  me. 

On  my  right  is  Mr.  Michael  Churgin,  who  is  a  professor  of  law 
at  the  University  of  Texas  at  Austin.  On  my  left  is  ]\[r.  Dennis 
Curtis,  who  serves  as  the  director  of  clinical  studies  on  the  faculty 
of  the  Yale  Law  School.  We  met  in  New  Haven  in  1974  and  em- 
barked on  this  joint  venture  we  will  talk  about  today. 

Senator  Hatch  [acting  chairnuin].  As  I  understand  it,  yon  gentle- 
men are  the  authors  of  this  book  "Toward  A  Just  and  EiTective 
Sentencing  System."  I  understand  the  book  is  being  released  today. 

Mr.  O'Donnkll.  Yes,  sir. 

Senator  Hatch.  I  want  to  congratulate  you  for  the  efforts  that 
you  have  put  forth  in  tryin^^  to  assist  in  this  very  serious  and  very 
important  area  of  criminal  justice. 

]\Ir.  O'Donnell.  Thank  yon,  'Mv.  Chairman. 

I  will  sunmuirize  our  prepared  statement  this  morning. 

You  are  indeed  involved  in  a  historic  undertaking.  This  subcom- 
mittee has  before  it  the  rich  fruits  of  more  than  a  decade's  effort  to 
revainp  the  Federal  criminal  code. 


8895 

The  Federal  criminal  laws  today  are,  regretfully,  a  hodgepodge 
of  statutes  and  procedures.  They  are  a  chaotic  patchwork  of  penalties 
authorized  by  individual  congressional  enactments  passed  at  dif- 
ferent times  with  no  apparent  relationship  to  one  another  and 
establishing  a  bizarre  range  of  penalties  for  an  enormous  variety  of 
criminal  offenses. 

The  subcommittee  has  the  benefit  of  the  combined  product  of  the 
recommendations  of  the  Brown  Commission  and  the  draft  of  S.  1 
introduced  by  Chairman  ISIcClellan,  Senator  Hruska,  and  others 
in  the  94th  Congress. 

Professors  Churgin,  Curtis,  and  I  are  pleased  to  place  before  the 
subcommittee  today  the  results  of  a  3-year  study  of  the  entire  Fed- 
eral criminal  sentencing,  probation,  parole,  and  correctional  systems. 

As  you  indicated,  Mr.  Chairman,  this  book  is  entitled  "Toward  A 
Just  and  Effective  Sentencing  System:  Agenda  for  Legislative  Re- 
form," and  is  being  released  today  by  Praeger  Publishers. 

In  1974,  the  Yale  Law  School  sponsored  this  undertaking,  and  the 
Daniel  and  Florence  Guggenheim  Foundation  graciously  funded 
it.  It  was  a  clinical  workshop  to  investigate  comprehensive  reform 
of  the  Federal  sentencing  and  parole  processes.  We  had  representa- 
tives from  a  broad  spectrum  of  disciplines,  including  two  Federal 
judges,  probation  officers,  the  Chairman  of  the  United  States  Parole 
Commission,  correctional  officials,  a  representative  from  the  United 
States  Department  of  Justice,  Federal  inmates,  the  Bureau  of 
Prisons,  and  Yale  faculty  and  students. 

Out  of  these  deliberations  came  the  recommendations  set  forth  in 
our  book  and  tlie  proposed  Federal  sentencing  statute. 

I  would  like  to  summarize  our  recommendations.  First  of  all,  we 
recommend  the  outright  abolition  of  parole. 

Second,  we  recommend  a  determinate  or  fiat  sentencing  system. 

We  recommend  the  establishment  of  a  Federal  sentencing  commis- 
sion to  prescribe  sentencing  guidelines  to  insure  that  like  offenders 
are  treated  similarly. 

We  recommend  a  requirement  that  Federal  judges  give  reasons 
for  sentences. 

We  recommend  appellate  scrutiny  of  sentences. 

We  recommend  a  50-percent  reduction  in  maximum  prison  sen- 
tences for  all  but  the  most  serious  offenses. 

We  recommend  the  elimination  of  mandatory  minimum  sentences. 

We  recommend  a  statutory  presumption  against  imprisonment  and 
the  greater  use  of  probation  and  fines. 

We  urge  a  severe  limitation  on  the  use  of  rehabilitation  as  a  basis 
for  punishment. 

The  earlier  working  draft  of  our  study  in  1975  had  an  influence 
on  Senator  Kennedy  and  others  in  the  drafting  of  the  sentencing 
guidelines  bill  introduced  as  S.  2699.  AYe  are  also  gratified  to  see  that 
a  number  of  our  recommendations  for  substantial  modifications  of 
S.  1  have  already  been  incorporated  in  S.  1437. 

In  tlie  time  allotted,  we  will  highlight  for  the  subcommittee  the 
major  findings  of  our  study  and  our  conclusions  about  the  indis- 
pensable features  for  any  rational,  just,  and  effective  sentencing  sys- 
tem and  the  extent  to  which  your  proposed  legislation,  S.  1437,  in 
our  view,  measures  up  to  these  standards. 


8896 

Mr,  Chairman,  for  too  long  nov/,  legislators,  judges,  and  practi- 
tioners have  ignored  the  postconviction  justice  process.  The  convicted 
defendant  is  too  often  warehoused  with  little  ceremony  and  usually 
eA-en  less  thought  in  jails  and  prisons  in  the  farfiung  corners  of  this 
country. 

Our  prisons  and  jails  are  overcrowded. 

The  long-neglected  Federal  and  State  sentencing  s^^stems  are  a 
national  disgrace. 

Discretion — unexposed,  unbridled,  and  unreviewable  discretion — 
has  long  been  the  hallmark  of  sentencing  and  parole  decisionmaking. 
With  very  few  exceptions,  judges  and  parole  authorities  can  be 
confident  that  no  other  body  will  review  their  decisions,  much  less 
know  how  their  determinations  were  made.  This  has  truly  been  a 
'•lawless"  system.  As  Judge  Frankel  lamented  in  his  pioneering  book: 

All  of  the  valuable  research  in  the  sentencing  field,  as  well  as  our 
study  group's  own  independent  investigation,  leads  inexorably  to  two 
major  conclusions  about  our  correctional  and  sentencing  process :  The 
system  does  not  work,  and  it  is  grossly  unfair. 

It  does  not  work  in  the  sense  that  it  does  not  succeed  in  either 
reducing  crime  or  in  changing  the  proclivities  of  those  who  engage 
in  criminal  activity. 

It  is  unfair  because  it  lacks  standards  to  prevent,  or  at  least  to 
minimize,  arbitrary  treatment  at  the  hands  of  judges,  corrections 
officials,  and  parole  and  probation  authorities. 

In  the  Federal  system,  and  in  virtually  every  State  and  the  Dis- 
trict of  Columbia,  judges  who  sentence  criminal  offenders  do  so  vir- 
tually without  any  legel  guidance  or  control.  One  judge  can  determine 
conclusively,  decisively,  and  finally  the  period  of  time  a  citizen  can 
be  imprisoned  without  being  subject  to  any  review.  This  exercise  of 
power  goes  unchecked  despite  the  fact  that  a  citizen  may  be  sentenced 
to  imprisonment  for  10,  20.  or  30  years. 

Mr.  Chairman,  the  fault  lies  not  wholly  with  the  judiciary.  Some 
of  the  responsibility  rests  with  Congress.  The  national  legislature  has 
abdicated  its  responsibility  to  delineate  the  goals  of  our  sentencing 
system.  Likewise,  no  meaningful  standards  have  been  prescribed. 

With  no  congressional  direction,  judges  have  been  left  to  them- 
selves to  develop  sentencing  philosophies.  Sadly  enough,  too  many  of 
our  judges  have  no  sentencing  goals  in  mind  when  they  pass  judgment 
on  the  convicted.  Still  others,  Mr.  Chairman,  sentence  on  the  basis  of 
fears  and  prejudice,  which  we  trust  everj'one  here  today  would  con- 
sider Avrong  and  impermissible. 

There  are  still  other  critical  shortcomings. 

T'nless  the  judge  advertises  his  errors,  biases,  and  prejudices,  no 
one  will  ever  know.  Not  even  the  most  fundamental  requirements  of 
due  process  of  law  apph'  at  sentencing.  A  defendant  who  otherwise 
would  be  entitled  to  a  statement  of  reasons  from  a  government  agency 
terminating  welfare  benefits,  or  evicting  him  from  a  public  housing 
project,  or  suspending  his  driver's  license  is  not  entitled  to  know  Avhy 
he  received  a  particular  sentence — even  when  that  sentence  may 
restrict  one-half  or  more  or  his  remaining  life. 

Nor  is  there  any  appeal  from  this  exercise  of  raw  discretion.  A 
convicted  defendant  cannot  appeal  his  sentence  on  the  very  straiglit- 
forward  ground  that  it  is  too  severe,  so  long  as  the  sentence  lies  within 


8897 

the  usually  wide  range  of  penalties  authorized  by  the  criminal  code. 
Nor  can  the  U.S.  attorney  appeal  what  he  believes  to  be  an  impru- 
dently lenient  sentence. 

In  the  parole  system,  we  have  the  same  replication  of  no  legislative 
guidance.  Indeed,  this  situation  may  be  even  more  intolerable.  The 
U.S.  I'arole  Commission  annually  engages  in  more  sentencing  than  all 
Federal  judges  combined.  Last  year  alone,  the  Federal  parole  system 
made  approximately  25,000  parole  decisions. 

Under  existing  Federal  law,  the  true  sentencer  is  the  Parole  Com- 
mission. It  is  the  commission  that  invariably  sets  the  amount  of  time 
a  pei'son  will  serve  behind  bars. 

Mr.  Chariman,  decades  upon  decades  of  legislative  indifference, 
judicial  neglect,  and  administrative  uncertantiy  have  taken  their 
toll.  We  must  report  to  you  that  our  study  at  the  Yale  Law  School 
has  concluded  that  the  present  state  of  afl'airs  in  sentencing  is  a 
national  scandal. 

No  aspect  of  criminal  law  reform  is  more  deserving  of  this  sub- 
connnittee's  attention.  Nor  does  any  other  area  hold  out  the  promise 
of  as  rich  a  return  on  the  investment  of  time  and  energy.  We  have 
reached  a  point  where  more  of  the  resources  of  the  criminal  justice 
system  must  be  devoted  to  the  process  by  which  we  punish  those  who 
violate  our  laws.  Indeed,  in  the  entire  United  States  today,  there 
are  well  over  a  quarter  of  a  million  men,  women,  and  j'Outh  in  prisons 
and  jails.  In  the  Federal  system  alone,  I  believe  we  are  approaching 
29,000. 

The  long-festering  problems  of  our  sentencing  system,  we  believe, 
are  best  dramatized  by  the  shocking  statistics  concerning  sentencing 
disparity,  which  are  set  forth  in  our  book. 

A  natural — indeed,  an  inevitable— byproduct  of  this  "nonsystem'^ 
of  sentencing  is  that  similar  offenders  in  the  United  States  guilty  of 
similar  crimes  commonly  receive  grossly  disparate  sentence.  To  a 
large  extent,  sentencing  in  the  Federal  system  is  a  judicial  lottery, 
a  game  of  Russian  roulette.  In  perhaps  no  other  corner  of  the 
criminal  justice  map  is  it  truer  that  the  quality  of  justice  is  a  func- 
tion of  the  luck  of  the  draw. 

The  most  conspicuous  and  disconcerting  disparity,  Mr.  Chairman, 
ocurs  when  one  person  receives  a  prison  sentence  and  another  person 
conunitting  the  same  crime  and  similar  in  virtually  all  respects  is 
placed  on  probation. 

Substantial  disparities  in  sentencing  are  the  inevitable  result  of 
judicial  discretion  exercised  by  almost  400  Federal  district  judges, 
district  judges  who  are  unfettered  by  legislatively  established  criteria 
and  not  subject  to  the  uniform  requirements  of  procedural  regularity 
and  prescribed  criteria  which  appellate  review  lends  to  almost  every 
other  area  of  our  Federal  law. 

Nor  must  we  overlook  the  perception  of  prison  inmates,  whom  we 
can  consider  the  "consumers"  of  our  system.  Prisoners  believe — and 
our  research  substantiates — that  their  sentences  are  often  imposed 
in  a  random  and  unjust  way  under  a  tyrannical  system  sanctioned 
by  law. 

As  Norman  Carlson's  prepared  statement  indicates,  this  well- 
founded  attitude  undermines  effective  corrections  administration. 

As  we  point  out  in  our  statement,  IMr.  Chairman,  there  are  many 


8898 

other  harmful,  and  at  times  corrupting,  consequences  from  our  present 
sentencing  system. 

We  can  witness  "judge-shopping,"  lawyers  scrambling  from  one 
courtroom  to  the  next  to  get  the  most  lenient  judge. 

There  can  also  be  a  lack  of  candor  on  the  pai't  of  sentencing  judges 
for  fear  that  they  might  be  reversed. 

We  iiave  Federal  judges  and  then  the  Parole  Commission  which 
acts  upon  those  sentences,  neither  having  any  guidance,  neitlier  often 
knowing  what  the  other  did,  working  at  cross  purposes  in  a  vast  sea 
of  ignorance. 

This  has  caused  mounting  public  dissatisfaction  with  the  American 
sentencing  system  despite  the  fact  that  sentences  imposed  in  this  coun- 
try, as  well  as  the  actual  terms  served,  are  far  longer  than  those  in 
other  Western  countries. 

Our  study  concludes  that,  in  devising  a  rational  sentencing  reform 
strategy,  the  subconunittee  should  be  guided  by  the  tandem  objectives 
of  fairness  and  effectiveness.  Sentencing  legislation  should  provide  a 
procedural  framework  that  will  encourage  a  just  and  effective  sen- 
tencing system.  In  a  broad  sense,  this  can  be  done  by  requiring  judges 
to  explain  and  justify  the  sentence,  by  supplanting  the  parole  system 
with  a  determinant  sentencing  system,  by  establishing  a  Federal 
sentencing  commission  which  promulgates  guidelines,  and  by  pro- 
viding for  appellate  review  of  sentences. 

We  urge  you  to  scrap  the  present  sentencing  system  and  to  begin 
anew. 

You  are  to  be  congratulated  on  the  bill  before  you.  S.  1437  shows 
that  you  have  made  an  impressive  start  in  the  right  direction. 

We  would  make  tliese  recommendations  briefly. 

Congress  must  clearly  delineate  the  goals  and  purposes  of  the 
sentencing  system. 

You  asked  earlier,  Mr.  Chaii'man,  about  rehabilitation.  I  think 
we  should  make  known  our  views  on  that. 

We  have  strong  i-eservations  about  the  medical  model,  about  coer- 
cive liehavioral  change  and  incarcera^tion  for  rehabilitative  purposes. 
The  Yale  study  concludes,  however,  that  we  should  not  abandon  all 
inprison  rehabilitation  programs. 

Some  programs  of  limited  scope  and  with  adequate  funding  might 
have  some  measurable  effect  upon  recidivism.  We  recommend,  how- 
ever, that  no  one  should  be  sentenced  to  prison  for  the  pur})ose  of 
rehabilitation  unless  there  have  been  several  findings  made,  including 
one  that  there  can  be  no  hope  of  achieving  the  same  rehabilitative 
residts  through  a  sentence  not  involving  imprisonment. 

If  the  court  concludes  that  iirq^risonment  mnst  be  imposed,  no  one 
shoidd  ])e  sentenced  to  a  prison  for  any  period  of  time  longer  than 
24  months  for  the  purpose  of  rehabilitation. 

Congress  must  also  allocate  respoTisibilities  for  the  various  sen- 
tencing goals  and  fund  ions.  The  ])resent  statute  continues  nuich  of 
the  overlapping  jui'isdiction.  This,  however,  would  be  solved  in  a 
major  way  if  paiole  were  abolished — a  matter  which  I  will  address 
in  a  moment. 

S.  1487  is  landuiark  legislation  because  it  insists  on  many  proce- 
dural guarantees  of  fairness,  access  to   sentencing  information,   a 


8899 

statement  of  reasons  for  sentence,  and  appellate  review — not  to  men- 
tion guidelines. 

We  urge  passage  of  these  provisions. 

In  our  prepared  statement,  we  have  noted  for  the  subcommittee  a 
number  of  changes  that  we  would  like  to  see  in  S.  1437.  In  private 
discussions  with  the  staff  we  have  also  suggested  changes  of  a  techni- 
cal nature. 

I  would,  however,  like  to  urge  one  thing  in  the  public  testimony. 

For  too  many  jiidges  today,  imprisonment  of  an  offender  has 
become  a  habit.  We  suggest  that  a  sentence  of  imprisonment  should 
be  a  sentence  of  last  resort.  We  suggest  that  you  incorporate  an 
explicit  presumption  against  incarceration  or,  at  the  very  least,  a 
presumption  in  favor  of  the  least  drastic  sanctions. 

Your  probation  provisions  are  excellent.  However,  we  oppose  the 
exclusion  of  class  A  felons  and  certain  drug  and  weapons  offenders 
because  our  study  concluded  that  mandatory  minimum  sentence  offend 
basic  principles  of  a  just  and  effective  sentencing  system. 

Parole  should  be  abolished.  This  is  our  most  urgent  and  important 
recommendation. 

The  best  research  indicates  that  parole  has  failed.  The  best  empiri- 
cal studies  show  that  tliere  is  a  greater  deterrent  effect  from  certainty 
and  not  the  severity  of  punishment.  Inmates  in  prison  today  enter 
in  an  agonizing  holding  pattern,  waiting  for  faraway  parole  com- 
missioners or  hearing  examiners  that  visit  them  in  prison  to  determine 
that  magic  moment  when,  for  whatever  reason,  they  are  to  be  released 
from  prison. 

Parole  should  be  replaced  by  a  determinate  sentencing  system.  The 
sentencing  court,  at  the  time  of  sentencing,  should  set  the  amount  of 
time  to  be  served.  At  that  point,  the  defendant  would  know  how  much 
time  he  would  be  in  prison.  Maine,  Illinois,  and  California  have 
adopted  this  type  of  legislation. 

Finally,  we  urge  substantial  reduction  of  prison  terms  because,  with 
the  abolition  of  parole,  there  would  not  be  that  one-half  leveling  effect 
in  the  amount  of  time  served  now  afforded  by  parole. 

Mr.  Chairman,  the  sentencing  provisions  of  S.  1437  represent  a 
dramatic  improvement  over  existing  law.  S.  1437  reflects  j^our  faith 
that  a  just  sentencing  system  can  be  effective  in  promting  respect 
for  law,  deterring  crime,  rehabilitating  some  types  of  offenders,  and 
incapacitating  serious  offenders. 

The  prospect  of  this  far-reaching  legislation  being  enacted  in  this 
Congress  is,  to  those  of  us  who  have  pressed  such  reforms,  a  very 
heartening  prospect. 

Thank  you,  Mv.  Chairman. 

Senator  Hatch.  We  appreciate  the  testimony  that  you  have  given 
here  today.  Your  statement  will  be  placed  in  the  record,  Avithout 
objection. 

[Material  follows :] 

Statement  of  Pierce  O'Donnell,  Michael  J.  Chubgin,  Dennis  E.  Curtis 

Mr.  Chairman  and  members  of  the  subcommittee,  I  am  Pierce  O'Donnell,  an 
attorney  practicing  law  here  in  the  District  of  Columbia.  With  me  today  are 
Michael  Churgin,  who  is  assistant  professor  of  law  at  the  University  of  Texas 
at  Austin,  and  Dennis  Curtis,  who  serves  as  Director  of  Clinical  Studies  on 
the  faculty  of  the  Yale  Law  School.  We  are  delighted  to  appear  before  this 


8900 

distinguished  Subcommittee  to  testify  about  the  sentencing  provisions  of 
S.  1437— the  Criminal  Code  Reform  Act  of  1977. 

You  are  engaged  in  a  great — indeed,  an  historic — undertaking.  This  Sub- 
committee has  before  it  the  rich  fruits  of  more  than  a  decade's  effort  to 
revamp  the  federal  criminal  code.  The  federal  criminal  laws  are  a  hodgepodge 
of  statutes  and  procedures.  They  are  a  chaotic  patchwork  of  penalties  au- 
thorized by  individual  congressional  enactments,  passed  at  different  times  with 
no  apparent  relationship  to  one  another  and  establishing  a  bizarre  range  of 
penalties  for  an  enormous  variety  of  criminal  offenses. 

The  subcommittee  has  the  benefit  of  the  combined  product  of  the  recom- 
mendations of  the  National  Commission  on  Reform  of  the  Federal  Criminal 
I,aws — the  Brown  Commission — and  the  draft  of  S.  1  introduced  by  the  Chair- 
man, Senator  Hruska,  and  others  in  the  94th  Congress.  The  bill  now  under 
consideration,  S.  1437,  also  reflects  what  Senator  Kennedy  has  called  "a  quiet 
but  constructive  debate  .  .  .  over  the  issue  of  comprehensive  criminal  sentencing 
reform  [among]  judges,  lawyers,  corrections  oflScials,  law  enforcement  officers, 
members  of  the  academic  community  and  others." 

THE  YALE  LAW  SCHOOL  SENTENCING  AND  PAROLE  STUDY 

Professors  Churgin  and  Curtis  and  I  are  pleased  to  place  before  the  Sub- 
committee the  results  of  a  three-year  study  of  the  entire  federal  criminal 
sentencing,  probation,  parole  and  correctional  systems.  This  l)ook,  entitled 
"Toward  A  Just  and  Effective  Sentencing  System :  Agenda  for  Legislative 
Reform,"  is  being  released  today  by  Praeger  Publishers  in  New  York  and 
London. 

In  1974  the  Yale  Law  School  sponsored,  and  the  Daniel  and  Florence 
Guggenheim  Foundation  financed,  a  clinical  workshop  to  investigate  com- 
prehensive reform  of  the  federal  sentencing  and  parole  processes.  The  study 
group  was  designed  to  enable  scholars  and  students  to  meet  with  experienced 
professionals  in  the  field  of  sentencing,  probation,  parole  and  corrections. 
Together  we  explored  the  long-neglected  problems  in  these  areas. 

Participants  in  the  monthly  meetings  of  the  workshop  included  two  federal 
judges,  probation  officers,  the  Chairman  of  the  United  States  Parole  Commis- 
sion, correctional  officials,  a  representative  from  the  United  States  Department 
of  Justice,  federal  inmates,  prison  legal  services  attorneys  and  Yale  Law 
School  faculty  and  students. 

The  roster  of  panel  members  reads  like  a  "Who's  Who  in  American  Correc- 
tions." It  includes  Judge  Marvin  E.  Frankel  of  the  United  States  District 
Court  for  the  Southern  District  of  New  York,  who  is  one  of  our  most  distin- 
guished federal  jurists  and  a  pioneer  in  sentencing  reform:  Judge  Jon  O. 
Newman  of  the  United  States  District  Court  for  Connecticut,  who  has  written 
numerous  groundbreaking  opinions  on  sentencing  and  parole ;  Maurice  H. 
Sigler,  who  is  the  recently  retired  Chairman  of  the  U.S.  Parole  Commission ; 
and  Ron  Gainor,  who  is  the  former  Chief  of  the  Legislative  Section  and  now 
serves  as  Deputy  Assistant  Attorney  General,  Office  for  Improvements  in  the 
Adtniiiistration  of  .lustice  in  the  Department  of  Justice. 

Out  of  tliese  deliberations  of  the  Workshop  on  I'arole  and  Sentencing  came 
the  findings  and  recommendations  set  forth  in  our  book.  The  most  significant 
result  of  the  study  group's  intensive  efforts  is  tlie  proposed  federal  sentencing 
statute  contained  in  Api)endix  A  of  "Toward  A  Just  and  Effective  Sentencing 
System."  This  legislation,  wliich  was  originally  drafted  in  the  form  of  amend- 
ments to  the  sentencing  provisions  of  S.  1,  lays  down  a  detailed  blueprint  for 
the  wholesale  reform  of  the  present  antiquated  system  by  which  we  punish 
criminal  offenders. 

On  the  basis  of  an  early  working  draft  of  our  study.  Senators  Kennedy  and 
McClellan  introduced  in  Novemi)er  1975,  S.  20)99,  entitled  "The  Sentencing 
Guidelines  Bill".  Similar  legislation  (S.  181)  has  been  reintroduced  in  this 
Congress. 

We  are  gratified  to  see  that  a  number  of  our  recommendations  for  sultstantial 
modifications  of  S.  1  liave  already  been  incorporated  in  S.  1437.  q'hese  include 
a  statement  of  rea.sons  for  the  sentence  imposed,  sentencing  guidelines,  a 
federal  sentencing  commission,  and  appellate  review  of  sentences.  We  know 
that  the  Subcommittee  has  toiled  long  and  hard  in  the  sentencing  vineyard. 
AVe  particularly  acknowledge  the  outstanding  leadership  efforts  of  the  Chair- 
man and  Senator  Kennedy  to  devise  a  rational  sentencing  system. 


8901 

In  the  time  allotted,  we  will  highlight  for  the  Subcommittee  the  major 
findings  in  our  study.  We  will  also  outline  our  conclusions  about  the  in- 
dispensable features  for  any  rational,  just  and  effective  sentencing  system  and 
the  extent  to  which  S.  1437  measures  up  to  these  standards.  In  discussions 
with  the  Subcommittee  staff,  we  have  recommended  additional  changes  in 
S.  1437  that  are  of  a  more  technical  nature. 

A  SYSTEM  IN  DISGRACE 

For  too  long  now  legislators,  judges,  and  practitioners  have  ignored  the 
postconviction  justice  process.  The  convicted  defendant  is  too  often  warehoused 
with  little  ceremony  and  usually  even  less  thought  in  jails  and  prisons  in  the 
far-flung  corners  of  this  country. 

To  the  legislator,  sentencing  has  historically  been  viewed  as  a  judicial 
responsibility. 

To  the  judge,  sentencing  is  reputed  to  be  the  most  diflBcult  and  agonizing 
part  of  his  job.  It  is  too  often  a  chore  to  be  passed  along  to  the  parole  board 
and  correctional  administrators,  since  they  purportedly  possess  the  experience 
and  expertise  to  determine  that  "magic  moment"  when  an  offender  has  been 
rehabilitated  and  is  ready  for  release  into  the  community. 

And  to  the  lawyer,  too  often  the  overloaded  or  indifferent  court-appointed 
advocate,  sentencing  is  a  part  of  the  process  to  be  tolerated — a  perfunctory 
proceeding  alien  to  the  customary  practice  of  the  courtroom  lawyer's  craft. 

The  long-neglected  federal  and  state  sentencing  systems  are  a  disgrace. 

A  LAWLESS  SYSTEM 

Discretion — unexposed,  unbridled  and  unreviewable  discretion — has  long  been 
the  hallmark  of  sentencing  and  parole  decisionmaking.  With  very  few  ex- 
ceptions, judges  and  paroling  authorities  can  be  confident  that  no  other  body 
will  review  their  decisions,  much  less  know  how  their  determinations  were 
made.  This  truly  has  been  a  "lawless"  system.  As  Judge  Frankel  has  lamented : 
"[t]he  almost  wholly  unchecked  and  sweeping  powers  we  give  to  judges  in  the 
fashioning  of  sentences  are  terrifying  and  intolerable  for  a  society  that 
professes  devotion  to  the  rule  of  law." 

All  of  the  valuable  research  in  the  field,  as  well  as  our  study  group's  in- 
dependent investigation,  leads  inexorably  to  two  major  conclusions  about  our 
postconviction  "correctional"  process :  the  system  does  not  work  and  it  is 
grossly  unfair. 

It  does  not  work  in  the  sense  that  it  does  not  succeed  in  either  reducing 
crime  or  in  changing  the  proclivities  of  those  who  engage  in  criminal  activity. 

It  is  unfair  because  it  lacks  standards  to  prevent,  or  at  least  to  minimize, 
arbitrary  treatment  at  the  hands  of  judges,  corrections  oflicials  and  parole  and 
probation  authorities. 

In  the  federal  system  and  in  virtually  every  state  and  the  District  of 
Columbia,  judges  who  sentence  criminal  offenders  do  so  virtually  without  legal 
guidance  or  control.  One  judge  can  determine  conclusively,  decisively  and  finally 
the  period  of  time  a  citizen  could  be  imprisoned  without  being  subject  to  any 
review.  This  exercise  of  power  goes  unchecked  despite  the  fact  that  a  citizen 
may  be  sentenced  to  imprisonment  for  10,  20,  or  30  years. 

The  fault  lies  not  with  the  judiciary  but  with  Congress.  The  national 
legislature  has  abdicated  its  responsibility  to  delineate  the  goals  of  our 
sentencing  system.  Likewise,  meaningful  legislative  standards  for  trial  judges 
exercising  initial  sentencing  discretion  are  non-existent.  The  only  legislative 
guidance  as  to  whether  an  offender  receives  probation  or  is  imprisoned  is 
whether  "the  ends  of  justice  and  the  best  interests  of  the  public  as  well  as  the 
defendant  will  be  served  thereby."   (18  U.S.C.  §  3651). 

With  no  congressional  direction,  judges  have  been  left  to  themselves  to 
develop  sentencing  philosophies.  Sadly  enough,  too  many  of  our  judges  have 
no  sentencing  goals  In  mind  when  they  pass  judgment  on  the  convicted.  Still 
others  sentence  on  the  basis  of  fears  and  prejudices  which  we  trust  everyone 
here  today  would  agree  are  wrong  and  impermissible. 

NO  REASONS,  REVIEW  OB  RATIONALITY 

This  brings  us  to  another  critical  shortcoming  in  our  sentencing  system. 
Unless  the  judge  advertises  his  errors,  biases,  and  prejudices,  no  one  will  ever 


8902 

know.  Under  current  practices,  tlie  ])ublic,  the  defendant,  and  the  government 
have  no  way  of  discovering  tlie  basis  for  a  sentence. 

Not  even  the  most  fuudamental  requirements  of  due  process  of  law  apply 
at  sentencing.  A  defendant  who  would  be  entitled  to  a  statement  of  reasons 
from  a  government  agency  terminating  his  welfare  benefits,  or  evicting  him 
from  public  housing,  or  suspending  his  driver's  license  is  not  entitled  to  know 
why  he  received  a  particular  sentence — even  when  that  sentence  may  restrict 
one-half  or  more  of  his  remaining  life. 

Nor  is  there  any  appeal  from  the  discretion  of  the  sentencing  .judge  or  any 
procedure  to  correct  sentencing  abuses.  In  its  aflBrmance  of  the  death  penalty 
in  the  Rosenberg  espionage  case  over  a  quarter  century  ago,  the  United  States 
Court  of  Appeals  for  the  Second  Circuit  summed  up  the  state  of  the  law : 

"If  there  is  one  rule  in  the  federal  criminal  practice  which  is  firmly  estab- 
lished, it  is  that  the  appellate  court  has  no  control  over  a  sentence  which  is 
within  the  limits  allovved  l)y  a  statute."  Only  a  few  years  ago,  the  Supreme 
Court  echoed  this  maxim. 

Consequently,  a  convicted  defendant  cannot  appeal  his  sentence  on  the 
straightforward  ground  that  it  is  too  severe,  so  long  as  the  sentence  is  within 
the  iipually  wide  range  of  penalties  authorized  by  the  federal  criminal  code. 
Nor  can  the  government  appeal  what  it  believes  to  be  an  imprudently  lenient 
sentence. 

THE  FAILURE  OF  THE  PAROLE  SYSTEM 

The  lack  of  legislative  guidance  for  sentencing  judges  is  replicated  in  the 
parole  system.  Indeed,  this  situation  may  be  even  more  intolerable:  the  U.S. 
Parole  Commission  annually  engages  in  more  sentencing  than  all  federal  judges 
combined.  Last  year  alone,  the  federal  parole  system  made  over  25,000  parole 
release  decisions.  Under  existing  federal  law,  it  invariably  becomes  the  Parole 
Commission's  responsibility  to  determine  how  much  of  an  inmate's  sentence 
will  be  served  behind  bars. 

Unfortunately,  the  Parole  Commission  performs  its  sentencing  task  with  as 
meager  direction  from  Congress  as  judges.  Under  18  U.S.C.  §  4206(a),  an 
inmate  may  be  paroled  if  his  "release  would  not  depreciate  the  .seriousness  of 
his  offense  or  promote  disrespect  for  law"  and  his  "release  would  not 
jeopardize  the  public  welfare."  AVithoiit  any  meaningful  standards  to  guide  its 
exercise  of  broad  discretion  and  without  a  statement  of  reasons  from  the 
sentencing  judge  to  shed  light  on  what  the  court  expected  to  accomplish,  the 
Parole  Commission  is  given  an  impossible  task  to  decide  in  a  vacuum:  how 
much  of  the  .sentence  imposed  (often  zero  to  5  or  10  years)  should  actually 
be  served. 

Working  in  close  cooperation  with  the  Congress,  the  Parole  Commission 
sought  to  remedy  tliis  situation  by  imposing  upon  itself  a  system  of  guidelines 
for  decisionmaking.  Using  a  table  based  on  nine  characteristics  of  the  offender 
and  a  classification  of  the  severity  of  the  offense,  the  Commission  devised  a 
.set  of  guidelines  for  the  time  to  be  served  before  release.  The  Parole  Commi.'Jr 
sion's  guidelines — and  the  Parole  Commission  and  Reorganization  Act  of  1976 
which  codified  these  administrative  reforms — had  two  laudable  objectives: 
(1)  to  treat  like  offenders  who  committed  similar  crimes  as  equally  as 
possible;  and  (2)  to  moderate  at  least  to  some  extent  the  sentencing  dis- 
parities resulting  from  a  lack  of  a  national  sentencing  policy. 

By  all  objective  standards,  however,  the.se  reforms  in  the  federal  parole 
system  must  be  judged  a  failure.  In  fact,  they  were  doomed  from  the  outset. 
The  Parole  Commission's  attempts  at  .sentencing  reform  have  three  serious 
inherent  limitations. 

First,  the  Parole  Connnission  lacks  control  over  the  most  important  sentencing 
decision  of  all — whethe'*  or  not  to  incarcerate. 

Second,  the  Parole  (Commission  must  operate  within  the  framework  of  the 
judge's  original  sentencing  decision. 

Third,  the  parole  release  guidelines  neither  articulate  a  comprehensive 
sentencing  policy  nor  give  the  inmate  comprehensible  reasons  for  denial  of 
parole.  Therefore,  the  fundamental  weaknesses  in  the  overall  .sentencing 
system  persist. 


8903 


A  NATIONAL  SCANDAL 

Decades  upon  decades  of  legislative  indifference,  judicial  neglect  and 
administrative  uncertainty  have  taken  their  toll. 

The  present  state  of  affiars  in  sentencing  is  a  national  scandal. 

No  aspect  of  criminal  lav/  reform  is  more  deserving  of  this  Subcommittee's 
attention.  Nor  does  any  other  area  hold  out  the  promise  of  as  rich  a  return 
on  the  investment  of  time  and  energy.  We  have  reached  a  point  where  more 
of  the  resources  of  the  criminal  justice  system  must  be  devoted  to  the  process 
by  which  we  punish  those  who  violate  our  laws. 

SENTENCING  DISPARITY 

The  long-festering  problems  of  our  sentencing  system  are  perhaps  best 
dramatized  by  the  shocking  statistics  concerning  sentencing  disparity  that  we 
have  discovered. 

A  natural — indeed,  an  inevitable — byproduct  of  this  "nonsystem"  is  that 
similar  offenders  in  the  United  States  guilty  of  similar  crimes  commonly 
receive  grossly  disparate  sentences.  To  a  large  extent,  sentencing  in  the  federal 
system  is  a  judicial  lottery,  a  game  of  Rusisian  roulette.  In  perhaps  no  other 
corner  of  the  criminal  justice  map  is  it  truer  that  the  quality  of  justice  is  a 
function  of  the  luck  of  the  draw. 

Almost  40  years  ago  United  States  Attorney  General  and  later  Supreme 
Court  Justice  Robert  H.  Jackson  issued  an  indictment  of  the  sentencing  process 
that  still  rings  true  today. 

"It  is  obviously  repugnant  to  one's  sense  of  justice  that  the  judgment  meted 
out  to  an  offender  should  be  dependent  in  large  part  on  a  purely  fortuitous 
circumstance ;  namely  the  personality  of  the  particular  judge  before  whom  the 
case  happens  to  come  for  disposition." 

As  part  of  our  study,  we  evaluated  the  latest  available  sentencing  statistics 
compiled  by  the  Administrative  Office  of  the  United  States  Courts.  For  fiscal 
year  1972,  we  found  widespread  sentencing  disparity.  Table  I  from  our  book 
depicts  the  average  length  of  sentence  imposed  for  six  offenses :  homicide  and 
assault,  robbery,  burglary,  larceny,  auto  theft,  and  forgery  and  counterfeiting. 
In  each  of  the  11  federal  judicial  circuits,  we  selected  the  two  districts  that 
sentenced  the  greatest  number  of  offenders  for  the  selected  offenses. 

TABLE  1.— AVERAGE  SENTENCE  LENGTH  FOR  SELECTED  OFFENSES,  IN  1972 

[In  monthsi 


Homicide 

and 

assault 


Robbery 


Burglary 


Larceny 


Auto 
theft 


Forgery 

and 

counterfeiting 


National  average 

Maine 

Massachusetts 

New  York  (northern) 

Nev;  York  (eastern) 

New  Jersey 

Pennsylvania  (eastern)-. 

Maryland 

Virginia  (eastern) 

Florida  (middle) 

Texas  (northern) 

Kentucky  (eastern) 

Ohio  (northern) 

Illinois  (northern) 

Indiana  (southern) 

Missouri  (eastern) 

Missouri  (western) 

California  (northern) 

California  (central) 

Kansas 

Oklahoma  (western) 

District  of  Columbia 


102 


120 


63 


48  (-54) 


18  (-84) 

11  (-9!) 

102        (0) 

6  (-96) 

66  (-36) 


62  (  -40) 


24 
Z8  ( 
20  (■ 


(  ^78) 
■  -74) 
-82) 
40  (-62) 
27  (-75) 
36  (-66) 
79  (-23) 
190  (+88) 
74  (-28) 
29  (  -73) 
161  (+59) 


115  (-5) 

39  (-81). 

130  (+10) 

103  (-17) 

88  (-32). 

145  (+26) 

135  (  +  15) 

126  (46) 

224  (+104) 

124  (+4) 

119  (-1) 

81  (-39) 

101  (-19) 

180  (+60) 

120  (0)  . 

115  (-5) 

96  (+24) 

115  (-5). 

85  (  -35) 

103  (-17) 


40  (-23) 

"""2"(-6i) 
27  (-36) 

■— 6i"(-2) 
81  (+81) 
34  (-29) 
46  (  -17) 
167  (+104) 
36  (-27) 
30  (  -33) 
24  (  -39) 
60  (-3) 

""i20'(+57) 
24  (-39) 

"'48' (-15) 
84  (+21) 


40 
144  (+104) 

36  (-4) 
11  (-29) 
48  (+8) 
50  (+10) 
25  +15) 

45  (+5) 
50  (+10) 

37  (-3) 
42  (+2) 

25  (-15) 

29  (-11) 

40  (0) 

35  (-5) 
54  (+14) 
57  (+17) 

32  (-8) 
40  (0) 
46  (+6) 

31  (  -9) 

42  (+2) 


38 

42 

21  (-17) 

24  (-18 

20  (-18) 

32  (  -10) 

9  (-29) 

12  (-30) 

12  (-26) 

49  (+7) 

32  (-6) 

29  (-13) 

49  (+11) 

30  (-12) 

49(+ll) 

40  (-2) 

41  (+3) 

39  (-3) 

32  (-6) 

41  (  -1) 

39  (+1) 

66  (+24) 

32  (-6) 

20  (  -22) 

31  (-7) 

35  (  -7) 

45  (+7) 

38  (  -4) 

29  (  9) 

34  (-8) 

46  (+8) 

46  (+4) 

36  ( -2) 

33  (-9) 

42  (+4) 

37  (-5) 

41  (+3) 

43  (+1) 

47  (+9) 

63  (+21) 

36  (  -2) 

41  (-1) 

40  (+2) 

67  (+25) 

Note. — The  federal  district  courts  for  each  of  the  11  circuits  were  chosen  on  the  basis  of  the  2  districts  in  each  circuit 
that  sentenced  the  greatest  number  of  offenders  for  the  selected  offenses. 

Source;  Administrative  Office  of  the  United  States  Courts,  "Federal  Offenders  in  United  States  District  Courts,"  1972, 
app.  table  X-4. 

©  O'Donnell,  Churgin  and  Curtis,  "Toward  A  Just  and  Effective  Sentencing  System:  Agenda  For  Legislative  Reform" 
(Praeger,  1977). 


92-465 — 77- 


-22 


8904 

A  few  representative  examples  dramatize  the  disparity. 

Offendei-s  found  guilty  of  robbery  received  an  average  sentence  of  39  montlis 
in  tlie  Northern  District  of  New  York.  Tlie  average  in  the  nearby  Eastern  Dis- 
trict of  New  York,  however,  was  130  months. 

Elsewliere  the  average  sentence  for  robbery  ranged  from  60  months  in  Mon- 
tana to  240  months  in  the  Northern  District  of  West  Virginia. 

Violation  of  federal  forgery  and  counterfeiting  lav.'s  drew  an  average  sentence 
of  12  months  in  the  Northern  District  of  New  York.  This  compares  with  49 
months  in  the  Eastern  District  of  New  York  and  67  months  in  the  District  of 
Columbia. 

Tlie  most  conspicuous  and  disconcerting  disparity  occurs  when  one  iierson  re- 
ceives a  prison  sentence  and  another  person— who  commits  the  same  crime  and 
is  similar  in  virtually  all  i-espects — receives  probation.  Table  2  from  our  book 
illustrates  the  substantial  variation  among  federal  district  courts  as  to  the  per- 
centage of  offenders  convicted  of  the  same  offense  receiving  probation  in  fiscal 
year  1972. 

TABLE  2.— PERCENTAGE  OF  CONVICTED  OFFENDERS  PLACED  ON  PROBATION,  1972 


Homicide 
and  assault 


Robbery 


Burglary 


Larceny         Auto  theft 


Forgery  and 
counterfeiting 


National  average 

Maine 

Massachusetts 

New  York  (northern) 

New  York  (eastern) 

New  Jersey 

Pennsylvania  (eastern).. 

Maryland 

Virginia  (eastern) 

Florida  (middle) 

Texas  (northern) 

Kentucky  (eastern) 

Ohio  (northern) 

Illinois  (northern) 

Indiana  (southern)' 

Missouri  (eastern) 

Missouri  (western) 

California  (northern) 

California  (central) 

Kansas 

Oklahoma  (western) 

District  of  Columbia 


36 


13 


43 


14  (-22) 

100  (+64) 

60  (+24) 

80  (+44) 

50  (+14) 

33  (-3) 

8  (-28) 

50  (+14) 

0  (  -36) 

50  (+14) 

43  (+7) 

43  (+7) 


60  (+24) 

0  (-36) 

29  (-7) 

53  (+17) 

10  (  -26) 

18  (-18) 

37  (+1) 


17  (+4) 
50  (+37). 

16  (+3) 

6  (-7) 

18  (+5). 

7  (-6) 
6  (-7) 

0  (-13) 
4  (-9) 
0  (-13) 
10  (-3) 
16  (+3) 


0  (-43) 


50  (+7) 
20  (-23) 

""6"(-43) 
50  (+17) 
40  (-3) 
25  (  -18) 
0  (  -43) 
50  (+7) 
0  (-43) 


60 
50  (  -10) 
77  (+17) 
54  (-6) 

52  (-8) 
64  (+4) 

79  (+19) 
79  (+19) 

53  (-7) 
47  (-13) 

51  (-9) 

11  (-49) 

67  (+7) 

64  (+4) 


36 

0  (  -36) 

50  (+14) 

83  (+47) 

89  (+53) 

60  (+24) 

80  (+44) 

57  (+21) 

33  (-3) 

28  (-8) 

24  (-12) 

8  (-28) 

45  (+9) 

50  (+14) 


7  (-6) 
6  (-7) 
12  (-1) 
21  (+8) 
19  (+6) 
25  (+12) 
16  (+3) 


0  (-43) 
100  (+57) 
50  (+7) 
50  (+7) 
100  (+57) 
0  (-43) 
35  (-8) 


51  (-9) 
78  (+18) 

65  (+5) 
75  (+15) 

61  (+1) 
49  (-11) 
49  (-11) 


14  (-22) 

47  (+11) 
25  (  -9) 

64  (+28) 

35  (-1) 

21  (-15) 

48  (+12) 


58 

20  (-38) 

53  (-5) 

62  (+4) 

62  (+4) 

66  (+8) 
74  (+16) 

67  (+9) 
52  (-6) 

45  (-13) 
41  (-17) 
17  (-41) 
68  (+10) 
62  (+4) 


58  (0) 
74  (+16) 

62  (+4) 
79  (+21) 

64  (+6) 
42  (-16) 

54  (-4) 


1972, 


'  No  information  was  available  for  the  Southern  District  of  Indiana. 

Source:  Administrative  Office  of  the  United  States  Courts,  "Federal  Offenders  in  United  States  District  Courts, 
app.  table  X-4. 

©  O'Donnell,  Churgin  and  Curtis,  "Toward  a  Just  and  Effective  Sentencing  System:  Agenda  for  Legislative  Reform" 
(.Praeger,  1977). 


Again,  a  few  example  point  up  the  magnitude  of  the  problem. 

While  100  percent  of  offenders  convicted  of  homicide  and  assault  in  the  North- 
em  District  of  New  York  received  probation,  none  of  their  counterparts  in  West- 
ern District  of  Missouri,  were  put  on  probation. 

Probation  was  the  preferred  sentence  for  only  17  percent  of  the  convicted  forg- 
ers and  counterfeiters  in  the  Eastern  District  of  Kentucky,  while  it  was  used 
in  79  percent  of  the  cases  involving  the  same  offenses  in  the  Central  District  of 
California. 

JUDICIAL  INCONSISTENCY 

The  possibility  that  such  extremes  can  be  attributed  to  an  acute  individualiza- 
tion of  justice  in  sentencing — and  not  to  the  standardless  exercise  of  discretion 
or  judicial  inconsistency — is  largely  disproved  by  self -studies  conducted  by  the 
judges  in  several  federal  judicial  circuits. 

At  one  midwestern  sentencing  workshop,  federal  judges  were  given  identical 
pre-sentence  reports  of  five  defendants  and  asked  to  pronounce  sentence.  The  re- 
sults are  enliglitening.  One  convict,  wlio  was  an  income  tax  evader,  was  fined  by 
three  of  the  judges,  released  on  probation  by  23  judges  and  imprisoned  by  23 
others  for  times  spanning  one  to  five  years. 


8905 

A  car  thief  was  released  ou  probation  by  43  judges.  Six  of  their  colleagues, 
however,  decided  to  commit  the  same  defendant  under  the  Youth  Corrections  Act. 

Tlie  most  pronounced  disparity  was  visited  on  a  bank  robber.  Twenty-eight 
judges  recommended  diagnostic  treatment,  14  judges  imposed  straight  sentences 
i-angiug  up  to  20  years,  six  recommended  indeterminate  sentences  for  maximum 
periods  ranging  from  5  to  20  years,  and  three  recommended  probation  with  psy- 
chiatric care. 

A  more  recent  experimental  study  of  sentencing  disparity  by  50  federal  judges 
in  the  Second  Circuit  (New  York,  Connecticut,  and  Vermont)  dramatically  con- 
firms the  existence  of  substantial  differences  in  sentencing  treatment  of  the  same 
defendants  by  different  judges.  As  Table  3  from  our  book  shows,  the  study  re- 
quired that  all  50  judges  impose  sentence  on  20  different  defendants  charged 
with  diffei-ent  federal  offenses  selected  to  represent  the  sentencing  business  of 
the  circuit.  Each  judge  was  furnished  with  the  same  representative  pre-sentence 
report  prepared  for  each  hypothetical  offender. 


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The  results  of  this  study  put  to  rest  any  notion  that  sentencing  disparity 
is  a  minor  problem  or  a  small  price  to  pay  for  our  commitment  to  individualized 
treatment  of  offenders. 

A  wide  range  of  disagreement  existed  among  the  50  judges  about  the 
appropriate  sentences.  The  study  concludes  that  "the  pattern  displayed  is  not 
one  of  substantial  consensus  with  a  few  sentences  falling  outside  the  area  of 
agreement.  Rather,  .  .  .  absence  of  consensus  is  the  norm." 

Despite  the  impact  of  parole  in  decreasing  time  served  on  a  sentence,  the 
substantial  disparity  of  sentences  imposed  shown  in  Table  3  would  carry  over 
to  disparity  in  time  actually  served. 

As  to  the  critical  threshold  decision  whether  to  place  a  defendant  on 
probation  or  to  imprison,  the  judges  disagreed  in  a  staggering  16  out  of  20  cases. 

Considerable  disparity  also  existed  in  the  lengths  of  probation  terms  and 
amounts  of  fines. 

The  distribution  of  the  sentences  bore  no  relationship  to  the  length  of  a 
judge's  service.  No  evidence  was  found  that  experience  on  the  federal  bench 
tends  to  bring  judges  closer  together  in  their  sentences. 

Sub.stantial  disparity  exists  within  districts — for  example,  among  judges 
sitting  in  Brooklyn— as  well  as  among  all  judges  in  the  Second  Circuit. 

Substantial  disparities  are  the  inevitable  result  of  judicial  discretion  ex- 
ercised by  almost  400  federal  district  judges,  unfettered  by  legislatively 
established  criteria  and  not  subject  to  the  uniform  requirements  of  procedural 
regularity  and  prescribed  substantive  criteria  which  appellate  review  lends  to 
almost  every  other  area  of  the  law. 

ADVERSE  IMPACT  ON  CORRECTIONS 

We  must  not  overlook  the  perception  of  inmates — "consumers"  of  the  system. 
Prisoners  believe — and  our  research  substantiates — that  their  senter.ces  have 
been  imposed  in  a  random  and  unjust  way,  under  a  tyrannical  system  sanc- 
tioned by  law.  As  Norman  Carlson  testified  earlier  today,  this  well-founded 
attitude  undermines  effective  corrections  administration.  James  V.  Bennett, 
another  progressive,  reform-minded  Director  of  the  United  States  Bureau  of 
Prisons,  stated  over  a  decade  ago  : 

"The  prisoner  who  must  serve  his  excessively  long  sentence  with  other 
prisoners  who  receive  relatively  mild  sentences  under  the  same  circumstances 
cannot  be  expected  to  accept  his  situation  witli  equanimity.  And  the  more 
fortunate  prisoners  do  not  attribute  their  luclv  to  a  sense  of  fairness  and 
justice  on  the  part  of  the  law  but  to  its  whimsies.  The  existence  of  sucli 
disparities  is  among  tlie  major  causes  of  prison  riots,  and  it  is  one  of  the 
reasons  why  prison  so  often  fails  to  bring  about  an  improvement  in  the  social 
attitudes  of  its  charges." 

ADDITIONAL  ADVERSE  EFFECTS 

The  present  sentencing  system  produces  many  other  harmful,  and  at  times 
corrupting,  consequences. 

At  the  trial  level,  it  contributes  to  "judge-shopping",  as  defense  counsel 
scraml)le  to  arrange  appearances  before  judges  renowned  for  their  "leniency" 
and  to  fiee  the  courtroom  of  the  most  notorious  "hanging  judges". 

Trial  judges  are  encouraged  not  to  be  candid  in  stating  reasons  for 
sentences.  If  the  judge  discloses  the  basis  for  his  sentencing  decision,  he  may 
be  reversed,  while  his  silent  counterpart  does  not  similarly  risk  reproach  and 
reversal. 

At  the  postconviction  level,  the  Parole  Commission  jterforms  its  weighty 
task  with  as  little  direction  from  Congress  as  the  judges  receive.  Federal 
judges  and  Parole  Commission  members  work  at  cross  purposes  in  a  vast  sea 
of  ignorance. 

The  confusion  of  roles  between  these  two  institutions — neither  of  which 
seems  to  contribute  to  the  rehabilitation  of  inmates — has  eroded  jmblic  con- 
fidence in  our  correctional  system.  This  moi:nting  public  dissatisfaction 
persists  even  though  American  sentences  imposed,  as  well  as  the  actual  terms 
served  before  parole  or  mandatory  release,  are  far  longer  than  those  in  other 
Western  countries. 

TOWARD  JUSTICE  AND  EFFECTIVENESS 

On  the  basis  of  these  findings,  the  Yale  study  concluded  that  there  are  three 
major  flaws  in  the  federal  sentencing  process:  (1)  a  lack  of  legislatively 
prescribed  sentencing  purposes  and  criteria  for  accomplishing  those  purposes; 


8909 

(2)  inadequate  trial  and  appellate  procedures  to  ensux-e  rationality  and  fairness, 
to  reduce  uncertainty,  to  minimize  disparities;  and  (3)  a  dearth  of  empirical 
infoi-mation  about  almost  all  aspects  of  the  sentencing,  parole  and  corrections 
systems. 

In  devising  a  rational  sentencing  reform  strategy,  the  Subcommittee  should 
be  guided  by  the  tandem  objectives  of  fairness  and  effectiveness.  Sentencing 
legislation  should  provide  a  procedural  framework  that  will  encourage  a  just 
and  effective  sentencing  system.  In  a  broad  sense,  this  can  be  done — 

By  requiring  judges  to  explain  and  justify  each  sentence; 

By  supplanting  the  parole  system  with  a  determinate  sentencing  scheme ; 

By  establishing  a  federal  sentencing  commission,  which  through  research 
and  experience  v\ill  devise  guidelines  for  federal  sentencing  i^olicy ;  and 

By  providing  for  appellate  review  of  sentences. 

As  lawyers  and  law  teachers — but  more  importantly  as  citizens  Mho  believe 
that  our  sentencing  and  corrections  processes  need  not  be  unjust,  discriminatory 
and  ineffective — we  urge  you  to  reject  mere  cosmetic  changes  and  to  resist 
the  pressures  of  those  defending  the  status  quo. 

Instead,  we  urge  you  to  scrap  the  present  system  and  begin  anew.  S.  1437 
shows  that  you  have  made  an  impressive  start  in  the  right  direction. 

We  have  learned  from  our  three-year  study  of  sentencing  that  there  are  no 
instant  solutions.  Certainly,  structuring  judicial  discretion  and  reducing  un- 
fairness will  not  make  the  system  wholly  effective.  We  are  hopeful,  however, 
that  this  unprecedented  effort  will  be  worthwhile.  By  specifying  the  goals  we 
expect  the  system  to  achieve  and  by  establishing  substantive  standards  and 
decisionmaking  procedures  by  which  to  attain  these  goals,  the  system's 
effectiveness  should  be  vastly  improved. 

Regardless  of  the  ultimate  shape  of  a  sentencing  system,  the  Yale  study 
found  that  a  number  of  reforms  are  absolutely  essential  in  maximizing  the 
likelihood  that  the  process  will  be  just  and  effective.  Of  course,  there  are 
variations  on  these  themes.  In  the  few  minutes  remaining,  we  will  briefly 
outline  some  of  these  and  comment  how  S.  1437  measures  up  to  these  standards. 

PURPOSES  OF  PUNISHMENT 

Congress  must  clearly  delineate  the  goals  or  purposes  of  the  sentencing 
system.  This  is  peculiarly  a  legislative  function.  The  Yale  sentencing  statute 
identifies  six  goals  similar  to  the  four  purposes  set  forth  in  §  101(1))  and 
§  2003(a)(2)  of  S.  1437:  to  afford  deterrence  to  criminal  conduct,  to  protect 
the  public,  to  provide  for  rehabilitation,  to  promote  respect  for  law  by  means 
of  denunciation,  to  provide  just  punishment  for  the  offense  and  to  reflect  the 
relative  gravity  of  the  offense. 

This  list  is  by  no  means  exhaustive.  The  relative  merits  of  these  sentencing 
goals  are  the  current  subject  of  scholarly  debate.  To  be  sure  these  arguments 
will  persist.  The  Yale  study  concluded  that,  on  the  basis  of  the  present  paltry 
state  of  knowledge,  none  of  these  goals  can  be  categorically  rejected. 

While  we  have  strong  reservations  about  the  "medical  model",  coercive 
behavioral  change,  and  incarceration  for  rehabilitative  purfioses  (which  are 
discussed  later),  we  have  not  abandoned  all  hope  that  certain  in-prison  re- 
habilitative programs — of  limited  scope  and  with  adequate  funding — might 
have  some  measurable  effect  upon  recidivism.  We  nevertheless  remain  uncer- 
tain as  to  what  does  and  does  not  work,  what  is  right  and  what  is  wrong,  and 
what  is  necessary  and  what  is  unnecessary. 

One  noteworthy  omission  from  S.  1437  is  any  definition  of  such  critical  terms 
as  "adequate  deterrence"  and  "just  punishment".  It  is  crucial  that  all  .sentenc- 
ing judges,  as  well  as  the  federal  sentencing  commission,  rely  upon  the  same 
meaning  for  these  fundamental  principles. 

SENTENCING  PRIORITIES 

Congress  must  assign  priorities  to  the  specific,  declared  goals  of  the 
sentencing  process.  Again,  this  weighing  of  goals  is  imiquely  a  legislative 
responsibility.  As  Chief  Judge  David  L.  Brazelon  of  the  United  States  Court 
of  Appeals  for  the  District  of  Columbia  Circuit  has  observed : 

"This  confusion  of  purposes  needs  to  be  unraveled  and  the  precise  social 
justification  for  a  particular  confinement  should  be  forthrightly  x-ecognized.  It 
is  only  in  this  manner  that  we  can  think  clearly  about  the  conditions  and 
extent   of   confinement,    and   rationally    evalxiate    oxxr   response    to    disturbing 


8910 

behavior  that  warrants  societal  intervention.  Of  course,  more  than  one  purpose 
may  be  served  by  a  particular  confinement.  But  we  should  be  clear  as  to  which 
purpo.se  justifies  which  punitive  or  rehabilitative  action." 

S.  1437  is  deficient  in  this  regard.  The  statement  of  sentencing  purposes  in 
§  2003(a)  does  not  indicate  any  priority.  This  issue  should  not  be  delegated 
to  sentencing  judges  or  the  sentencing  commission. 

In  §  2302(d)  of  the  proposed  Yale  statiite,  we  have  suggested  that  deterrence 
and  protection  of  the  public  (incapacitation)  should  be  the  dominant  objectives 
of  the  federal  sentencing  process.  While  this  ranking  suits  our  study  group's 
preferences,  it  of  course  need  not  be  the  one  adopted  by  Congress.  The 
important  point  is  that  Congress  should  clearly  spell  out  its  priorities. 

INSTITUTIONAL  RESPONSIBILITIES 

Congress  must  allocate  responsibilities  for  the  various  sentencing  goals  and 
functions.  The  current  confusion  about  the  respective  roles  of  courts,  correc- 
tions authorities  and  parole  boards  has  led  to  duplicative  and  contradictory 
decisionmaking.  It  has  also  engendered  needless  and  counterproductive  un- 
certainty among  decisionmakers  and  those  subject  to  their  decisions. 

S.  1437  assigns  tasks  to  the  sentencing  court,  the  Court  of  Appeals,  the  Parole 
Commission,  the  Bureau  of  Prisons,  and  the  United  States  Sentencing  Com- 
mission. Nevertheless,  the  statute  essentially  recodifies  the  present  overlapping 
jurisdictions.  Part  of  this  problem  would  be  remedied  by  the  total  abolition  of 
parole,  a  recommendation  that  we  will  discuss  in  a  moment. 

PROCEDURAL  SAFEGUARDS 

The  federal  sentencing  system  must  contain  detailed  trial  and  appellate 
court  procedures  to  assure  rationality  and  fairness  and  to  minimize  sentencing 
disparities.  Differences  in  treatment  should  rest  only  upon  an  objective,  factual 
basis  relevant  to  a  legitimate,  articulated  governmental  interest  in  sentencing 
persons  convicted  of  crime.  S.  1437  is  landmark  legislation  in  view  of  its 
insistence  on  procedural  guarantees  of  fairness  in  terms  of  access  to  sentencing 
information,  a  statement  of  reasons  for  a  sentence,  appellate  review  of 
sentences,  and  pre.sumptive  sentencing  guideline.^  for  all  types   of   sentences. 

We  would  suggest,  however,  that  S.  1437  is  flawed  in  several  respects. 

(a)  The  sentencing  procedure  does  not  require  the  judge  to  consider 
separately  each  of  the  goals  of  sentencing.  In  this  area,  procedure  has  a  .great 
deal  to  do  with  substance.  One  method  might  be  the  "lockstep  progression" 
outlined  in  §  2302(d)  of  the  proposed  Yale  statute.  Under  this  system,  the 
judge  must  first  consider  the  amount  of  prison  time  for  deterrence  purposes, 
then  for  incapacitation,  next  for  rehabilitation,  and  so  forth.  In  addition,  the 
judge  is  furnished  with  specific  criteria  to  consider  in  evaluating  each 
sentencing  goal.  This  type  of  procedure  is  essential  in  assuring  that  the  judge 
independently  and  faithfully  considers  each  sentencing  purpose. 

To  ensure  compliance  for  any  sentence  imposed — whether  probation,  fine, 
imprisonment  or  a  combination  of  these — the  judge  must  place  on  the  record 
the  reasons  for  the  sentence  imposed.  Otherwise,  effective  sentence  review 
is  impossil)le. 

We  applaud  section  2003(b)  of  S.  1437.  This  provision  requires  a  statement 
of  "general  reasons  for  .  .  .  imposition  of  the  particular  sentence"  and  the 
reason  for  the  imposition  of  a  sentence  outside  the  guideline  sentencing  range 
of  the  Sentencing  Commission.  Section  2302(d)  (6)  of  the  proposed  Yale  statute 
has  a  similar  provision. 

(b)  To  date  rehabilitation  efforts  have  not  proven  effective  for  the  majority 
of  offenders.  This  controversial  topic  is  discussed  in  Chapters  3,  6  and  1)  of  our 
book.  Any  sentence  for  rehabilitative  purposes  should  have  an  absolute  ceiling. 
The  Yale  study  recommends  two  years  as  a  maximum.  In  Section  2302(d)(3), 
we  also  impose  stringent  criteria  for  sentencing  an  offender  to  prison  for 
purposes  of  rehabilitation  and  treatment. 

S.  1437  places  no  restrictions  on  the  use  of  impri.«?onment  as  a  rehabilitative 
tool.  We  urge  the  Subcommittee  to  recognize  the  mounting  evidence  of  a  lack 
of  a  direct  correlation  between  length  of  incarceration  and  rate  of  recidivism. 
Substantial  questions  of  civil  liberties  are  raised  by  imprisoning  someone  when 
there  is  no  realistic  prospect  that  any  significant  benefit  v,-ill  result  from  this 
confinement. 


8911 

(c)  Appellate  review  of  sentences  is  a  vital  element  of  any  meaningful 
sentencing  reform  measure.  Some  institxitional  check  on  excessive  and  overly 
lenient  sentences  is  a  touchstone  of  procedural  regularity  and  fairness.  Appellate 
review  also  facilitates  the  development  of  a  case  law  of  sentencing  and  serves 
as  a  mechanism  to  upgrade  the  rationale  and  rationality  of  sentencing. 
Furthermore,  appellate  review  should  result  in  fewer  appeals  on  the  pretext 
of  trial  error  when  the  true  reason  for  the  appeal  is  the  severity  of  the  sentence. 
Finally,  the  appeals  of  sentence  would  greatly  enhance  both  the  defendant's 
and  the  public's  respect  for  the  judicial  system. 

Section  3725  of  S.  1437  provides  for  appellate  review  of  sentences.  This 
provision,  however,  is  too  restrictive.  Under  this  section,  appeals  may  be  taken 
only  from  sentences  outside  the  guidelines — the  most  egregious  sanctions.  This 
restriction,  while  largely  based  on  an  understandable  desire  not  to  overcrowd 
appellate  dockets,  is  unfortunate.  A  broad  right  of  appeal  is  necessary  to 
minimize  disparity  since  even  sentences  within  the  guidelines  can  be  im- 
proper. A  defendant  should  also  have  the  right  to  test  on  appeal  the  accuracy 
of  the  judge's  application  of  the  guidelines  in  his  case.  Any  abuses  of  this 
remedy  can  be  handled  by  the  appellate  courts  under  traditional  appellate 
review  doctrines. 

Moreover,  the  concern  for  flooding  the  appellate  courts  with  sentence  appeals 
is  unfounded.  Under  §  3725(c)  of  the  Yale  statute,  tv/o  standards  for  appellate 
review  are  established.  A  more  stringent  standard  for  setting  aside  a  sentence 
within  the  guidelines — "clearly  unreasonable"  as  opposed  to  only  "unreason- 
able" for  sentences  outside  the  guidelines — places  a  considerable  obstacle  in 
the  way  of  unmeritorious  sentence  appeals. 

THE  SENTENCE  OF  LAST  RESORT 

For  too  many  judges  today,  imprisonment  of  an  offender  has  become  a 
habit.  Under  the  federal  sentencing  system,  imprisonment  should  always  be 
the  sentence  of  last  resort.  Federal  sentencing  legislation  should  incorporate  an 
explicit  presumption  against  incarceration — or  at  the  very  least  a  presumption 
in  favor  of  the  least  drastic  sanction (s)  to  accomplish  the  congressionally- 
established  sentencing  goals.  Before  a  court  considers  a  prison  term  of  any 
length,  it  should  first  determine  whether  the  sentencing  goals  in  a  particular 
case  can  be  accomplished  through  the  use  of  probation,  special  probationary 
conditions,  and/or  a  fine. 

The  probation  provisions  of  S.  1437  are  excellent  and  provide  a  variety  of 
imaginative  alternatives  to  incarceration.  We  would  recommend,  however,  that 
the  absolute  exclusion  of  Class  A  felons  and  certain  drug  and  weapons 
offenders  from  eligi'oility  for  probation  in  §§  2101(a),  1811(b)  and  1823(b)  be 
eliminated.  We  are  opposed  to  any  form  of  mandatory  minimum  sentences. 
They  rob  the  sentencing  system  of  flexibility  and  promote  disparity. 

We  endorse  the  concept  of  swift  and  certain  punishment  and  uniform 
sentencing  practices.  The  Yale  study  and  proposed  statute  are  based  on  these 
principles.  The  price  of  mandatory  minimum  sentences,  however,  is  too  high 
for  the  speculative  benefits  from  such  inflexible  laws.  Indeed,  the  latest  study 
of  New  York's  bitter  experience  with  severe  mandatory  penalties  for  narcotics 
offenses  concluded  that  they  did  not  prove  a  deterrent.  We  should  never  adopt 
a  sentencing  statute  that  squeezes  all  discretion  out  of  the  system.  There  will 
always  be  a  need  for  judgment  exercised  by  humane,  sensitive  and  intelligent 
men  and  women. 

ABOLISH  PAROLE 

Parole  should  be  abolished. 

The  best  available  research  on  deterrence  shows  that  the  most  important 
deterrent  effect  arises  from  the  certainty  and  not  the  severity  of  punishment. 
Under  present  parole  laws,  an  inmate  enters  prison  in  an  agonizing  holding 
pattern — waiting  for  that  "magic  moment"  when  the  parole  examiners  decide 
he  or  she  is  ready  to  be  restored  to  the  community.  But  most  of  the  available 
evidence — discussed  in  Chapters  3,  6  and  9  of  our  book — conclusively  demon- 
strates that  parole  boards  do  not  enjoy  unique  expertise  in  rehabilitation. 
Indeed,  the  U.S.  Parole  Commission  has  abandoned  institutional  performance 
or  "rehabilitative  progress"  as  parole  release  considerations. 

At  this  point,  the  question  naturally  arises :  "Is  there  any  reason  to 
perpetuate  the  parole  system?" 

The  answer,  we  respectfully  submit,  is  "No". 


8912 

As  we  have  already  indicated,  tlie  Parole  Commission  largely  duplicates  the 
initial  sentencing  function  performed  by  the  trial  judge.  With  the  elimination 
of  rehabilitation  as  a  parole  release  factor,  the  Parole  Commission  relies  upon 
the  same  information  (usually  in  the  form  of  a  presentence  investigation 
report)  on  which  the  judge  based  the  sentence. 

Parole  injects  a  paralyzing  uncertainty  into  the  original  sentencing  decision. 
In  addition  to  detracting  from  the  judge's  ability  to  control  the  type  and 
length  of  sentence,  this  uncertainty  deprives  an  inmate  of  the  incentive  to 
prepare  seriously  for  release  and  fosters  self-defeating  despair. 

Recent  social  science  studies,  including  a  pioneering  empirical  study  of 
federal  parole  practices  in  the  Yale  Law  Journal  hy  William  Genego.  Peter 
Goldberger  and  Vicki  Jackson,  document  the  fallacy  of  the  rehabilitative 
("medical  model")  myth.  At  least  with  present  research  tools,  rehabilitation — 
defined  in  the  terms  of  increasing  likelihood  of  successful  adjustment  upon 
release — cannot  be  observed,  detected,  or  measured. 

Parole  should  be  replaced  by  a  determinate  sentencing  system.  The  sentencing 
court  r-houid  set  the  amount  of  time  to  be  served.  A  defendant  sentenced  to 
prison  would  know  then  and  there  the  period  of  incarceration.  The  proposed 
Yale  statute  is  built  on  the  foundation  of  a  determinate  (or  flat  or  fixed) 
sentencing  scheme.  Three  states — Maine,  Illinois  and  California — have  adopted 
this  type  of  legislation. 

S.  1437  does  not  explicitly  abolish  parole.  Under  §  2301(c),  the  trial  court 
could  effectively  eliminate  parole  for  an  offender  and  set  a  fixed  sentence  by 
imposing  the  maximum  authorized  term  of  parole  ineligibility  of  nine-tenths 
of  the  sentence  imposed.  Under  proposed  §  994(a)  (1)  of  Title  28,  the  Sentenc- 
ing Commission  could  administratively  abolish  parole  through  mandatoi-y 
guidelines.  These  measures  are  a  decided  improvement  over  existing  law. 

These  provisions,  however,  are  a  back  door  approach  to  eliminating  parole 
and  could  cause  more  harm  than  good.  The  present  problem  of  widespread 
disparity  could  be  exacerbated  by  a  situation  in  which  some  inmates  would  be 
eligible  for  parole  while  their  similarly  situated  cellmates  would  have  to  serve 
their  entire  sentence.  Furthermore,  the  parole  process  is  a  creature  of  tlie 
Congre.s.s.  If  it  is  to  be  abolished,  it  should  be  done  by  politically  accountal>le 
leaders. 

We  urge  the  Subcommittee  to  make  the  abolition  of  parole  and  the  creation 
of  a  determinate  sentencing  system  the  cornerstones  of  the  Criminal  Code 
Reform  Act  of  1977.  The  excellent  legislative  work  of  this  Subcommittee 
would  be  immeasurably  enhanced  by  the  addition  of  this  urgent  sentencing 
reform  to  the  impressive  list  already  contained  in  S.  1437. 

SUBSTANTIAL  REDUCTION  OF  PRISON  TERMS 

Authorized  prison  terms  in  this  country  are  far  too  long. 

Presently,  parole  and  '"good  time"  credits  have  the  combined  effect  in  most 
cases  of  reducing  an  inmate's  sentence  by  one-half  to  two-thirds.  With  the 
abolition  of  both  of  these  substantial  sentence-reducing  devices,  maximum 
autliorized  sentences — except  for  the  most  serious  Class  A  felonies  carrying  a 
niaxinium  of  life  imprisonment — should  be  reduced  by  one-half. 

Even  without  the  al)olition  of  parole,  maximum  sentences  should  be  reduced. 
Almost  a  decade  ago,  the  American  Bar  Association,  after  a  comprehensive 
study  of  .sentencing  in  this  country,  concluded: 

"It  should  be  recognized  that  in  many  instances  in  this  country  the  prison 
sentences  which  are  now  authorized,  and  sometimes  required,  are  significantly 
higher  than  are  needed  in  the  vast  majority  of  cases  in  order  adequately  to 
protect  the  interests  of  the  public." 

The  Subcommittee  is  to  be  commended  for  its  reduction  of  the  maximum 
prison  terms  for  Class  P.,  C,  and  D  felonies.  We  suggest,  however,  that  these 
modest  reductions  are  inadequate.  The  task  of  setting  ceilings  on  prison  terms 
for  offenses  should  not  be  left  to  administrative  agencies  such  as  the  Parole 
Coiniuission  or  Sentencing  Commission. 

EARLY  RELEASE  PLAN 

Willi  the  elimination  of  good  time  (and  hopefully,  parole),  an  inmate,  as 
Norman  Carlson  indicated  earlier  today,  will  have  no  "  'light'  at  the  end  of 
the  tunnel."  The  Yale  study  concluded  that  some  time-reduction  provision 
should  lie  retained  as  an  incentive  to  assure  good  behavior  and  discipline. 


891 


Q 


In  Chapter  9  of  onr  book,  we  recommend  an  "early  release"  plan.  This 
program,  which  has  been  endorsed  by  the  Director  of  the  Bureau  of  Prisons, 
would  be  limited  to  the  last  one-tenth  of  the  sentence.  This  is  a  substantially 
smaller  percentage  of  the  original  sentence  authorized  by  the  present  "good 
time"  laws.  Early  release  decisions  would  be  made  by  the  Bureau  of  Prisons 
solely  on  the  basis  of  institutional  conduct  and  performance.  Release  would 
occur  at  nine-tenths  of  the  sentence. 

SENTENCING  COMMISSION 

To  give  meaning  and  effect  to  the  legislatively-prescribed  sentencing  goals, 
criteria  and  procedures,  a  United  States  Sentencing  Commission  should  be 
established.  One  of  the  most  indictable  aspects  of  the  present  system  is  the 
dearth  of  information  about  virtually  all  phases  of  the  sentencing,  parole,  and 
corrections  processes.  The  Commission  would  undertalie  ongoing  research  to 
evaluate  different  sentencing  goals  and  to  determine  the  best  way  to  implement 
each  oltjective.  In  addition,  the  Commission  would  promulgate  guidelines  for 
recommended  normal  ("benchmark"  or  "presumptive")  sentence  ranges  to 
structure  the  sentencing  judge's  decisions. 

As  Judge  Frankel.  the  first  proponent  of  such  a  Commission,  has  observed : 

"As  is  true  in  other  domains,  the  notion  of  research  and  development  [in 
the  field  of  sentencing]  must  embrace  more  than  the  generation  of  scholarly 
studies,  though  such  studies  are  surely  wanted.  There  must  be  a  commitment 
to  change,  to  application  of  the  learning  as  it  is  acquired.  There  must  be  a 
recognition  that  the  subject  will  never  be  definitively  'closed',  that  the  process 
is  a  continuous  cycle  of  exploration  and  experimental  change." 

The  proposed  United  States  Sentencing  Commission  is  the  centerpiece  of 
impressive  sentencing  reforms  of  S.  1437.  With  its  ambitious  charter,  the 
Sentencing  Commission  has  been  given  broad  powers  to  instigate  unprecedented 
changes  in  the  federal  sentencing  system.  We  urge  the  passage  of  this 
provision. 

We  would  suggest  a  few  matters  for  your  consideration. 

Under  §  994(a),  you  may  want  to  require  that  the  Judicial  Conference's 
appointees  to  the  Sentencing  Commission  come  from  a  cross-section  of  the 
public  and  private  sector.  It  would  be  a  serious  mistake  if  all  the  commissioners 
were  either  federal  judges  or  private  attorneys. 

Under  §  994(d),  the  Sentencing  Commission  is  required  to  consider  certain 
factors  in  classifying  categories  of  offenders  for  purposes  of  its  sentencing 
guidelines.  Some  of  these  factors  include  the  offender's  education,  family  and 
community  ties,  vocational  skills  and  previous  employment  records.  The 
Subcommittee,  we  are  sure,  is  aware  of  the  care  which  must  be  used  in 
employing  such  considerations.  Not  only  are  there  serious  doubts  about  the 
utility  of  some  of  these  factors  in  making  assessments  of  risk  of  recidivism. 
There  is  also  the  potential  for  inadvertent  discrimination  on  the  basis  of  race 
and  income.  We  would  recommend  that  the  Subcommittee  highlight  these 
concerns  in  its  report  so  that  the  Sentencing  Commission  will  be  fully  aware 
of  congressional  sensitivity  to  these  issues  and  that  after  studying  these 
factors,  the  Sentencing  Commission  need  not  utilize  them  if  it  finds  them 
inappropriate. 

Under  §  994(g),  the  guidelines  of  the  Sentencing  Commission  may  be 
disapproved  by  only  one  House  of  Congress.  Such  one-House  veto  provisions 
are  of  arguable  constitutionality  and  are  under  attack  in  the  courts.  We  do 
not  favor  a  congressional  role  in  the  process  of  implementing  sentencing  guide- 
lines. If  there  is  to  be  legislative  involvement,  however,  we  would  recommend 
a  procedure  similar  to  IS  U.S.C.  §  3771  now  used  in  connection  with  the 
promulgation  of  the  Federal  Rules  of  Criminal  Procedure  by  the  Supreme 
Court. 

Finally,  we  recommend  that  S.  1437  be  amended  to  add  a  requirement  that 
the  Sentencing  Commission  follow  the  public  notice  and  comment  provisions 
of  the  Administrative  Procedure  Act  in  promulgating  sentencing  guidelines  and 
general  policy  statements.  We  commend  to  the  Subcommittee's  attention  §  5(b) 
of  S.  204,  the  Federal  Sentencing  Standards  Act  of  1977,  introduced  by 
Senators  Hart  and  Javits. 

The  sentencing  provisions  of  S.  1437  represent  a  dramatic  improvement  over 
existing  law.  S.  1437  reflects  Congress'  faith  that  a  just  sentencing  system  can 
be  effective  in  promoting  respect  for  law,  deterring  crime,  rehabilitating  some 


8914 

types  of  offenders,  and  incapacitating  serious  offenders.  The  prospect  of  this 
far  reaching  legislation  being  enacted  in  this  Congress — to  those  of  iis  who 
have  pressed  for  these  reforms — is  heartening. 
We  would  be  pleased  to  answer  any  questions. 

Senator  Hatch.  I  think  your  prepared  statement  has  covered  the 
subject  very  comprehensively. 

You  commented  on  the  failure  of  Congress  to  establish  sentencing 
guidelines. 

What  role  do  you  envision  for  Congress  with  respect  to  promulga- 
tion of  guidelines  or  even  supervision  of  guidelines  once  they  are 
promulgated  ? 

Mr,  O'DoNNELL.  Section  994  of  the  present  bill,  sir,  provides  for  a 
one-house  veto  provision  after  a  laying  on  the  table  of,  I  believe,  180 
days. 

As  we  point  out  in  our  statement,  this  is  of  arguable  constitution- 
ality and  the  issue  is  being  litigated.  In  our  book,  we  favor  no  con- 
gressional role  because  we  think  we  have  to  give  this  commission 
stature  and  prestige.  The  legislative  responsibility  is  to  establish  what 
the  purposes  of  sentencing  should  be  and  what  the  criteria  are  for 
reaching  those  purposes. 

If,  however,  there  is  to  be  a  legislative  role  in  scrutinizing  the 
guidelines,  it  should  be  similar  to  what  we  do  with  the  present  Fed- 
eral criminal  rules  of  procedure  in  which  both  Houses  of  Congress 
have  to  act  to  set  them  aside,  so  to  speak. 

We  do  not  recommend  that  Congress  get  in  the  business  of  saying 
that  this  type  of  crime  with  this  type  of  offender  should  result  in  im- 
prisonment for  12  to  16  months.  We  think  this  is  a  tnsk  for  your  sen- 
tencing commission  through  the  research  functions  which  we  envision 
and  which  this  bill — which  gives  it  a  very  ambitious  charter — also 
envisions. 

Senator  Hatch.  Would  the  Congress  have  any  oversight  over  the 
Commission  in  any  guidelines  that  it  might  publish  ? 

Mr.  O'DoNNELL.  Certainly.  If  Congress  were  dissatisfied  with  the 
guidelines,  it  could  always  enact  legislation  repealing  them. 

Senator  Hatch.  To  the  extent  of  its  oversight  authority? 

Mr.  O'DoNNELL.  Yes.  That  would  be  the  traditional  oversight  func- 
tion of  the  Congress  which  we  would  encourage  because  we  do  not 
think  it  has  always  been  exercised  in  the  past. 

These  hearings  and  this  legislation  are  glowing  testimony  to  the 
fact  that  Congress  now  sees  it  has  a  vital  role  to  play  in  the  area  of 
corrections. 

Senator  Hatch.  I  go  along  with  you.  I  think  in  the  case  of  a  lot  of 
legislation  which  causes  serious  problems  in  implementation  is  put  on 
the  books  by  Congress,  turned  over  to  the  bureaucracy,  without  any 
further  thought  by  Congress,  and  the  bureaucracy  pretty  well  does 
whatever  it  wants  with  the  legislation. 

Mr.  O'DoNNELL.  Only  when  we  have  a  crisis,  for  example  the  Attica 
situation  in  New  York,  then  people  start  getting  concerned  about  it. 
I  think  what  you  arc  doing  here  may  obviate  those  types  of  problems 
in  the  Federal  system  down  the  road  if  you  pass  this  type  of  legis- 
lation. 

Senator  Hatch.  In  sngjiesting  that  parole  be  abolished,  are  you 
advocating  that  there  should  be  no  postrelease  supervision  ? 


8915 

Mr.  O'DoNNELL.  As  they  say,  you  have  gone  to  the  jugular,  Mr. 
Chairman. 

At  the  Yale  workshop  over  3  years,  this  was  one  of  the  most  hotly 
debated  topics.  We  conclude  in  the  book  that  there  should  not  be  tra- 
ditional parole  release  supervision.  Hov/ever,  with  what  we  call  a  split 
sentence — so  much  time  in  prison,  then  probation — there  would  be  a 
supervisory  period.  We  do  favor  the  probation-type  of  supervision. 

Also,  as  Mr.  Curtis  points  out,  there  are  halfway  houses  and  other 
types  of  phased  release  into  the  community. 

Senator  Hatch.  Would  those  options  still  be  available? 

Mr.  O'DoNNELL.  Certainly.  In  fact,  this  bill  endorses  and  certainly 
gives  the  Director  of  the  Bureau  of  Prisons  every  amount  of  authority 
he  needs  in  that  respect. 

Senator  Hatch.  We  appreciate  your  testimony  today  and  we  wish 
all  three  of  you  luck  on  your  book. 

Mr.  O'DoNNELL.  Thank  you. 

Senator  Hatch.  Our  next  witness  is  Professor  Ernest  van  den 
Haag. 

Professor,  I  apologize  that  we  are  pressed  for  time. 

Welcome  to  our  committee. 

STATEMENT  OP  ESHEST  VAN  DEN  HAAG,  NEW  YOEK,  N.Y. 

Mr.  VAN  DEN  Haag.  Thank  you,  Mr.  Chairman. 

I  am  Ernest  van  den  Haag.  I  am  a  lecturer  in  psychology  and 
sociology  at  the  New  School  for  Social  Research  in  New  York.  I  have 
been  a  professor  at  a  variety  of  universities  and  am  now  adjunct  pro- 
fessor of  law,  New  York  Law  School. 

I  have  written  a  number  of  books,  the  latest  of  which  is  called 
"Punishing  Criminals:  Concerning  a  Very  Old  and  Painful  Ques- 
tion." Because  the  subject  of  that  book  interests  me,  I  am  here  once 
more.  I  appreciate  the  opportunity  to  testify. 

Let  me  very  briefly  summarize  my  prepared  statem.ent. 

I  think  the  bill  before  you  is  very  great  progress  over  what  we  had 
before.  But  I  would  like  it  to  go  further. 

I  think  that  the  purpose  of  nonmandatory,  nonflat  sentencing  and 
the  purpose  of  parole  basically  is  to  permit  judges — and,  later  on, 
parole  boards — to  determine  whether  a  particular  offender  is  more 
likely  to  be  rehabilitated  and,  accordingly,  to  either  tailor  the  sentence 
to  his  personality  or  tailor  the  length  of  confinement  later  on  to  his 
progress  in  rehabilitation. 

I  do  not  think  this  can  work.  I  do  not  think  a  judge  can  determine 
what  kind  of  personality  the  offender  before  Iiim  has.  As  a  result,  the 
discretion  by  judges  tends  to  be  tailored  to  the  judge's  personality 
rather  than  to  the  defendant's.  This  is  not  particularly  desirable. 

I  also  feel  that  no  one  has  ever  been  able  to  show  that  behavior 
within  prison  enables  parole  boards  to  infer  anything  about  behavior 
after  release.  Yet,  this  prediction  is  the  only  argument  in  favor  of  the 
existence  of  parole  boards.  Anything  other  than  behavior  within 
prison,  the  sentencing  judge  can  be  made  fully  aware  of.  Plence,  he 
can  consider  all  other  factors  in  deciding  on  his  sentence. 

The  only  predictive  elements  that  I  would  seriously  consider  are 
the  previous  offenses  of  the  defendant.  Of  these,  the  sentencing  judge 


8916 

can  be  made  aware.  Hence,  I  do  not  see  any  good  reason  for  the  exist- 
ence of  parole  or  of  parole  boards. 

I  do  see  some  reason  for  giving  prisoners  time  off  for  good  behav- 
ior— abont  10  percent  of  their  sentence  and  no  more.  Else  tlie  warden 
would  have  excessive  power.  Of  course,  this  time  off  for  good  be- 
havior can  be  abused.  Xonetheless,  it  is  an  important  disciplinary 
means  in  the  hands  of  the  warden.  I  would  retain  it. 

Somewhere  between  a  quarter  and  a  half  of  all  of  our  prisoners  are 
recidivists.  The  data  on  this  matter  are  very  uncertain.  Anyway,  the 
rest — about  50  percent — are  not.  There  is  no  evidence  in  the  record — 
and  I  am  quite  familiar  with  the  whole  literature — to  indicate  that 
any  rehabilitation  program  has  ever  made  a  difference  here  or  abroad. 
I  have  in  mind  such  countries  as  Svreden,  Denmark,  and  Holland, 
which  are  famous  for  their  prison  reforms.  There  is  no  evidence  that 
any  rehabilitation  program  has  made  any  difference  whatsoever  in  the 
behavior  of  the  convict  upon  release. 

Some  are  recidivists;  some  are  not.  Prison  may  have  an  influence, 
but  no  study  I  know  of  has  ever  shown  that  any  particular  rehabilita- 
tion program  has  ever  made  a  difference  in  the  proportion  of  released 
offenders  who  become  recidivists.  This  is  provided,  of  course,  that  the 
comparisons  are  proper,  that  one  compares  a  group  of  convicts  who 
have  been  subjected  to  rehabilitation  programs  with  a  group  of  others 
who  have  committed  the  same  offense,  come  from  the  same  socio- 
economic background,  are  of  the  same  age,  et  cetera  and  have  not 
been  subjected  to  the  program. 

Lest  I  be  misunderstood,  I  want  to  make  it  clear  that  I  do  not 
necessarily  advocate  lengthier  confinement  for  all  offenders.  I  do  ad- 
vocate less  arbitrarily  determined  confinement  and  effectively  more 
equal  and  certain  sentences  determined  by  law  and  by  the  courts,  with- 
out any  parole  provisions  whatsoever. 

A  frequent  misunderstanding,  which  I  heard  repeated  here  by  some 
of  the  previous  witnesses  before  you,  is  that  our  prisons  would  become 
overcrowded  if  parole  boards  did  not  release  people. 

It  is  obvious,  however,  that  shorter  effective  sentences,  if  they  are 
desired,  can  achieve  the  same  effect  as  parole  does  now. 

More  important,  more  severe  effective  sentences,  if  they  do  reduce 
the  crime  rate  by  reducing  the  numbers  of  crimes  committed  by  those 
actually  incapacitated,  would  still  cost  less  than  release  would  cost  if 
it  leads  to  more  crime. 

Thus,  if  the  prison  population  were  to  increase,  investment  in  more 
prisons  might  be  entirely  worthwhile. 

But  still  more  important  is  this.  If  the  punishment  of  offenders 
does  deter  others — and  in  my  book,  "Punishing  Criminals,"  I  have 
presented  very  considerable  evidence  that  it  does — then  the  result 
of  more  severe  and  certain  punishment  would  be  to  keep  a  greater 
proportion  of  offenders  behind  bars;  but  also  to  reduce  the  total  num- 
ber of  offenders.  Thus,  ultimately,  the  proportion  of  offenders  behind 
bars  would  increase;  the  number  may  decrease  as  the  number  of  of- 
fenses decreases.  Hence,  there  would  be  ultimately  no  overcrowding 
of  prisons. 

Whether  the  absence  of  parole  will  increase  the  severity  of  sen- 
tences will  depend  on  legislation  and  on  the  sentencing  guidelines  that 
you  have  mentioned. 


8917 

As  has  been  mentioned  before — and  I  wisli  to  agree — confinement 
should  be  only  a  last  resort.  However,  I  think  every  second  offender 
for  violent  crimes  certainly  should  be  confined. 

The  alternative  to  confinement,  very  often,  is  fines.  The  trouble 
with  fines  is  that  most  offenders  are  not  capable  of  paying  a  fine. 

But  I  do  wish  to  make  it  clear  that,  if  we  do  consider  fines,  I  would 
sucfirest  tliese  be  stated  not  in  sums  of  monev  but  in  income  da  vs.  That 
is,  the  sentencing  judge  would  sentence  the  defendant  to  10  days 
income  or  50  days'  income.  There  are  obvious  reasons,  in  terms  of 
equity  and  fairness,  for  prefering  this.  A  fine  of  say  $500  would  ob- 
viously be  too  heavy  a  burden  for  some  and  a  tripling  one  for  others. 
A  fine  of  10  income  days  would  more  nearh^  equalize  the  burden. 

But  I  am  afraid  that  fines  as  an  alternative  to  imprisonment  are  in 
many  cases  not  practical.  « 

There  is  one  other  poiiit  I  wish  to  make  about  parole  and  rehabili- 
tation. 

We  do  sentence  people  to  punishment,  not  because  of  the  future 
expected  behavior — criminal  or  otherwise — ^but  because  of  their  past 
behavior.  If  that  were  not  so,  the  work  of  our  courts  in  ascertaining 
guilt  would  be  wholly  in  vain.  We  could  leave  it  to  psychologists,  if 
they  are  capable  of  that,  to  tell  us  who  will  commit  a  crime  or  who 
will  not. 

We  do  not  do  that.  Our  system  is  called  a  system  of  criminal  justice. 
Justice  means  that  people  are  punished  only  if  they  have  committed  a 
crime  and  only  in  proportion  to  the  seriousness  of  that  crime. 

Hence,  it  seems  to  me  that,  on  principle  and  by  logic,  the  future 
behavior  of  offenders  should  not  be  a  sentencing  consideration.  Their 
past  behavior  should  determine  the  sentence. 

Their  past  behavior,  on  the  other  hand — let  me  add — is  also  what 
is  most  predictive  about  their  future  behavior.  I  should  say  that  a 
man  who  has  committed  two  crimes  is  far  more  likely  to  commit 
crimes  in  the  future  than  a  man  who  has  committed  only  one  crime. 
Hence,  it  seems  to  me  that  whatever  consideration  you  want  to  give  to 
future  behavior  can  easil}^  be  fitted  with  the  proper  consideration  of 
past  behavior. 

We  usually  belieAe,  based,  perhaps,  on  our  belief  in  rehabilitation, 
that  young  people  should  be  treated  most  leniently  and  older  people 
should  be  held  more  responsible  for  their  wrongdoing.  Hence,  the 
3'oung  tend  to  get  more  lenient  treatment. 

I  think  that  is  exactly  the  reverse  of  what  we  should  do. 
Practically  all  violent  crimes  are  committed  by  people  between  the 
ages  of  14  and  30  to  35.  Hardly  anyone  commits  a  crime  requiring 
physical  exertion  after  the  age  of  40. 

It  seems  to  me,  therefore,  that  we  can  afford,  so  to  speak,  to  be 
relative  lenient  with  older  criminals  and  we  cannot  afford  to  be 
lenient  with  younger  criminals. 

I  certainly  do  not  wish  to  condemn  a  person  to  prison  for  a  long 
term  simply  because  he  is  young.  But  younger  criminals  who  give 
signs  of  becoming  career  criminals,  by  committing  more  than  one 
crime — having,  say,  two  previous  convictions — I  should  think,  in  your 
sentencing  provisions,  you  should  deal  with  as  career  criminals. 
Chances  of  changes  in  his  commitment  to  crime  are  extremely  small. 
Early  release  simply  means  that  the  offender  will  continue  his  crimi- 
nal career  as  usual  to  the  age  of  35  or  40. 


8918 

Plence,  contrary  to  the  present  practice  in  a  number  of  States — 
which  is  to  give  practical  immunity  to  people  under  16,  whatever 
crimes  they  commit  and  to  treat  quite  leniently  young  people — I 
would  advocate  that  the  emphasis  be  reversed. 

I  think  tliat  the  abolition  of  parole  and  the  appropriate  mandatory 
flat  sentencing  of  career  criminals  alone  are  likely — quite  npart  from 
the  deteiTcnt  effects — to  reduce  tlie  crime  rate  by  half,  since  at  t]ie 
present  time,  more  than  50  percent  of  all  violent  cidmes  are  committed 
by  people  out  on  parole  or  probation. 

The  abolition  of  parole  for  all  offenders  and  the  mandatory  sen- 
tencing urged  would  by  incapacitation  and  by  deterrence  decreape  the 
crime  rate  much  further.  Thus,  our  Government  could  fulfill  the 
promise  of  the  Declaration  of  Independence  to  secure  the  life,  tlie 
liberties,  and  the  pursuit  of  happiness  of  our  citizens. 

It  is  to  'secure  these  rights"  that  "governments  are  instituted 
among  men"  according  to  our  Declaration  of  Independence. 

If  one  looks  at  the  present  practices  of  the  criminal  justice  system, 
including  the  correctional  establishment,  one  may  think  that  it  was  to 
secure  the  happiness  of  lawbreakers  that  our  Government  was  insti- 
tuted. Yet,  as  Lincoln  warned,  onr  citizens  "become  tired  and  dis- 
gusted with  a  government  which  offers  them  no  protection." 

I  think  we  have  reached  this  point. 

I  congratulate  you  for  considering  a  bill  which  promises  to  cliange 
that. 

Senator  Hatch.  Thank  3'ou. 

We  ai-e  grateful  that  you  took  time  to  be  with  us  today  and  give  us 
your  insights. 

Your  statement  will  be  made  a  part  of  the  record.  I  am  sure  it  will 
be  interesting  to  all  who  read  it. 

[Material  follows :] 

My  name  is  Ernest  van  den  Haag.  I  am  lecturer  in  psycholo.s:y  and  sociology 
at  The  New  School  for  Social  Research,  and  an  Adjunct  l»rofessor  of  Law. 
New  York  Law  School,  as  well  as  a  psychoanalyst  in  private  practice.  I 
studied  here  and  abroad  and  received  a  Ph.D.  in  1952  from  New  York 
University.  Since  then  I  have  been  a  Guirfrenheim  Follow  and  a  Senior  Fellow 
of  the  National  Endowment  for  the  Humanities.  I  have  published  about  200 
articles  and  seven  books,  the  most  recent  of  which  is  Punishing  Criminals: 
Concerning  a  Very  Old  and  Painful  Question  (New  York:  Basic  Books,  1975). 
My  present  address  is  11, S  West  79th  Street,  New  York,  N.Y.  10024.  As  the 
title  of  my  latest  book  indicates,  I  have  a  consideral>le  interest  in  the  way  we 
are  dealing  with  criminals,  and  I  am  grateful  for  the  ojiportiuiity  to  disciis.s 
the  topic  with  you.  I  shall  confine  myself  to  the  sentencing  provisions  of  S.  1437. 

S.  1437  limits  the  discretion  of  judges  and  enables  them  to  limit  the 
discretion  of  parole  boards.  This  is  progress,  but  in  my  opinion,  it  would  be 
better  to  limit  the  discretion  of  judges  much  further  and  to  eliminate  parole 
and  parole  boards  altogether. 

I. 

In  1952,  Mr.  Justice  Black  wrote :  "Retribution  is  no  longer  the  dominant 
objective  of  criminal  law.  Reformation  and  rehal>ilitation  of  offenders  have 
become  important  goals  of  criniiTial  jurisprudence.'*  ^ 

Uis  description  of  the  trend  was  correct ;  but  Justice  Black's  acceptance  of 
it  I  deem  to  be  a  mistake.  Apart  from  incapacitation,  the  purpose  of  punish- 
ment must  be  to  do  jiistice:  To  punish  those  who  by  violating  the  criminal 
law  deserved  and  have  invited  (he  punishment  threatened  by  it.  This  is  the 
threat  or  the  promise  of  the  law.  As  is  any  promise,  that  threat  is  a  moral 


I  Dissenting  in  Carlson  v.  Latidon,  342  U.S.  254,  549. 


8919 

obligation  that  must  be  carried  out  regardless  of  usefulness.  (There  is  a 
common  misunderstanding  here :  It  is  believed  that  the  obligation  is  to  the 
criminal.  It  is  not.  It  is  to  those  who,  perhaps  because  of  the  threat,  did  not 
commit  crimes.)  Further,  if  the  threat  is  not  carried  out  when  the  law  is 
brolceu,  it  becomes  incredible  and,  therefore,  ineffective  in  restraining  future 
lawbreakers.  This  would  defeat  the  second  purpose  of  the  legal  threat :  To 
restrain  prospective  future  lawbrealiers  from  brealving  the  law. 

Promises  should  be  kept ;  threats  should  not  be  made  unless  one  proposes 
to  carry  them  out.  Else  they  will  be  regarded  as  bluffs.  If  they  are,  threats 
cannot  restrain  or  deter  prospective  law  violators.  Deterrence  requires  that 
the  threats  of  the  law  be  carried  out  by  inflicting  pxmishment — not  rehabilita- 
tion— on  those  who  volunteer  to  risk  it,  by  breaking  the  law.  Crime  is  deterred 
by  the  threat  of  punishment  only  as  long  as  it  remains  credible.  Thus,  unlike 
Mr.  Justice  Black,  I  believe  that  the  "dominant  objective  of  criminal  law" 
must  be  to  do  justice  by  punishing  as  threatened  and  thereby  also  to  deter 
others.  Rehabilitation,  however  desirable,  cannot  take  the  place  of  justice  and 
deterrence.  Moreover,  attempts  to  achieve  it  lead  to  gross  injustice  and 
necessarily  must  fail,  as  indeed  they  have.  Let  us  consider  the  distortions  of 
justice  that  have  occurred  to  accomodate  these  attempts. 

II. 

At  the  present  time,  considerable  sentencing  discretion  is  given  to  courts. 
After  they  have  exercised  it,  parole  boards  determine  what  part  of  that 
sentence  pssed  by  the  court  is  actually  served.  I  oppose  the  discretion  given 
judges  and  favor  narrowing  it  to  near  zero.  The  law  should  mandate  the 
sentence  for  each  crime.''  I  propose  further  that  parole  and  parole  boards  be 
abolished  altogether. 

Essentially  sentencing  discretion  is  left  to  courts  because  (a)  the  circum- 
stances of  each  crime  differ,  and  it  is  felt  that  the  judge,  familiar  with  the 
case,  is  the  best  person  to  adapt  the  sentence  to  those  circumstances;  (b)  the 
personality  of  each  criminal  is  different,  and  again  it  is  felt  that  the  judge 
is  more  able  than  the  legislator  to  adapt  the  punishment  to  the  individual 
personality  of  the  offender,  to  his  degree  of  guilt,  and  to  his  chances  for 
rehabilitation. 

Certainly  each  crime  is  committed  in  different  circumstances  of  an  aggravat- 
ing or  extenuating  nature,  which  legitimately  ought  to  influence  the  sentence 
imposed  by  the  court.  However,  these  circumstances  can  be  classitied  and 
listed  in  the  law  to  a  very  large  extent.  Judges  can  be  legally  instructed  to 
increase  or  decrease  sentences  accordingly.  Thus,  judicial  discretion  can  be 
severely  limited  while  aggravating  or  extenuating  circumstances  still  can 
properly  influence  sentences.  This  limitation  of  judicial  discretion  is  desirable, 
for  without  it  elements  of  judgment  (negatively  expressed,  of  capriciousness) 
necessarily  prevail.  They  give  the  appearance  of  injustice,  at  least  of  inequality, 
and  sometimes  the  substance  as  well.  Moreover,  uncertainty  about  the  sentence 
to  be  expected  reduces  the  deterrent  effect  of  punishment — crime  becomes  more 
of  a  gamble  than  it  need  be.  Thus,  I  would  make  all  sentences  mandatory, 
allowing  judges  to  increase  or  decrease  the  mandated  sentence  by  no  more  than 
10  percent  for  reasons  (to  be  stated  in  passing  sentence)  beyond  those 
specified  in  the  law.' 

Defendants  differ,  and  this,  too,  is  alleged  to  necessitate  judicial  discretion. 
Some,  it  is  argued,  have  personalities  more  and  others  less  susceptible  to 
rehabilitation.  This  may  be  so.  But,  as  has  been  noted,  the  purpose  of  a 
sentence  is  to  punish  those  guilty  of  crime — rehabilitation  is  incidental  to  such 
punishment.  Else,  defendants  not  in  need  of  rehabilitation  could  be  released, 
guilty  or  not,  and  unrehabilitated  offenders  would  have  to  be  kept  indefinitely. 
This  would  be  unjust.  Nor  would  it  serve  deterrence — it  would  indeed  grant 
everybody  immunity  for  at  l^ast  one  crime,  provided  he  is  found  unlikely  to 
commit  other  crimes. 


"  The  only  penalty  that  I  believe  should  not  be  mandatory  is  the  death  penalty.  Courts 
should  be  able  to  chose  between  it  and  life  imprisonment  for  the  reasons  that  the  Supreme 
Court  has  specified  in  recent  decisions. 

3  S.  1437,  a  bill  now  before  Congress,  proposes  a  sentencing  commission  that  would 
elaborate  fruidelines.  This,  if  properly  done,  would  have  nearly  the  same  effect  as  making 
sentences  mandatory. 


92-465—77 — —23 


8920 

At  auy  rate,  there  is  no  evidence  whatsoever  that  judges,  even  when  aided 
by  pro!)ation  reports,  or  by  psychologists,  are  able  to  gage  personality  differences 
and  to  adapt  sentences  to  them.  Sentences  are  much  more  likely  to  be  adapted 
to  the  personality  of  the  judge  than  to  that  of  the  defendant.  Of  this  there  is 
empirical  proof  in  the  literature,  which  suggests  that  some  judges  are  con- 
siderably more  lenient  (or  severe)  than  others,  who  may  be  presumed  to 
sentence  a  similar  assortment  of  personalities  and  offenses.  Additional  evidence 
indicates  that  some  judges  habitually  deal  with  some  types  of  offenses  severely, 
while  other  judges  deal  leniently  with  that  same  type  of  offense.  That  much 
about  judicial  discretion.  I  suggest  that  it  be  so  restricted  that  offenders 
having  committed  the  same  crime,  as  legally  defined,  can  expect  the  same 
mandatory  sentence. 

III. 

The  major  purpose  of  parole  has  been  to  release  from  prison  offenders  who, 
in  the  opinion  of  the  parole  board,  are  rehabilitated.  Since  the  parole  board 
thus  determines  within  a  minimum  and  maximum  fixed  by  the  court  the  actual 
length  of  any  sentence,  it  necessarily  makes  all  sentences  indeterminate.  This 
practice  is  unjust ;  it  leads  to  wholly  capricious  punishment ;  and,  finally,  It 
does  not  and  cannot  achieve  its  purpose  of  releasing  the  rehabilitated  and 
keeping  those  who  are  not — regardless  o?  whether  that  purpose  itself  is 
justifiable. 

No  one  has  ever  shovrn  that  behavior  within  prison  enables  parole  lioards 
to  infer  anything  about  behavior  upon  release.  Experience  indicates  that  it 
does  not.  AJid  why,  indeed,  should  behavior  in  the  very  special  conditions  of 
px-ison  tell  us  much  about  behavior  outside?  Yet  all  element-s  other  than 
behavior  within  prison,  are  already  available  at  sentencing  time  and  do  not 
require  a  parole  board  to  second-guess  the  sentencing  judge.  Still,  the  idea  that 
a  parole  board  can  estimate  progress  in  rehabilitation  by  considering  behavior 
in  the  prison  setting  persists.  (So  do  parole  hoards.)  Let  me  add  that  the  idea 
implied  by  Mr.  Justice  Black,  and  accepted  by  influential  writers,  that  re- 
habilitative treatments  can  replace  punishment,  is  theoretically  absurd.  Re- 
habilitation could  succeed  only  when  preceded  by  by  punL-^hment :  Punishment, 
if  sufficient,  may  show  the  offender  that  crime  is  self  defeating  and  might 
motivate  him  to  avoid  it  in  the  future.  Possibly,  rehabilitation  programs  may 
subsequently  help  him  to  do  so,  but  unless  the  program  follows  punishment, 
the  offender  has  no  motive  for  actually  wishing  to  be  rehabilitated.  His  crime 
has  paid.  Therefore,  he  cannot  be  rehabilitated.  In  practical  terms,  no  program 
has  yet  been  discovered  to  effectively  help  rehabilitation.*  Perhaps  rehabilitative 
programs  to  help  noncareer  criminals  v.ill  be  discovered  and  validated  in  the 
future.  Although  they  may  be  added  to  it,  they  can  never  take  the  place  of 
punishment  as  long  as  it  is  to  be  just  and  deterrent.  At  present,  rehabilitative 
programs  simply  foster,  abet  and  reward  whatever  histrionic  and  manipulative 
abilities  prisoners  po.ssess.  For,  what  is  actually  evaluated  by  parole  boards  is 
how  well  the  prisoner  get  along  with  prison  authorities  and  tlieir  notions  of 
of  appropriate  prison  behavior,''  or  of  behavior  indicating  rehabilitation. 

Somewhere  between  a  quarter  and  a  half  of  our  prisoners  are  recidivists. 
(The  data  do  not  permit  greater  specification.)  The  rest  are  not.  There  is  no 
evidence  that  any  rehabilitation  program  here  or  abroad  has  ever  made  a 
difference  in  these  proportions,  in  producing  a  change,  in  leading  more  people 
to  be  lawabiding  upon  release.  It  is  quite  possible  that  imprisonment  itself 
does  Lave  effect.'^,  at  least  on  the  nonprofessional  offenders,  or  tlmt  there  are 
spontaneous  changes.  But  there  is  no  evidence  either  for  (unintentional) 
criminalizing  or  for  (intended)  rehabilitative  effects,  i.e.,  no  evidence  that 
released  offenders  upon  release  commit  either  fewer  or  more  crimes  than  they 
would  have  committed  had  they  never  been  imprisoned.  (Possibly  the  re- 
hal)ilitative  and  criminalizing  effects  of  imprisonment  statistically  offset  each 
other.)  Above  all,  there  is  no  evidence  that  any  specific  treatment  during 
confinement — any  rehabilitation  program — makes  a  difference. 


*  One  rrmst  be  careful  to  distinguish  (1)  rphnhiHtatlon  hrouffht  about  by  the  Influence 
of  eTtraoriiiiiary  [lorsonalltles — which,  by  dolinition,  cannot  he  institutionalized  ;  (2)  re- 
habilitation by  a^e.  punishment,  or  other  factors;  (.">)  rehabilitation  by  a  specific  non- 
punitive  proRram.  It  is  the  latter  that  nowhere  has  succeeded  when  institutionalized. 

5  Elaborate  pseudo-scientific  testa  do  not  change  that  situation. 


8921 

The  methods  now  used  by  parole  boards  do  not  ascertain  the  likely  future 
behavior  of  a  prisoner.  Heuce,  there  is  no  reason  why  the  sentencing  should 
not  be  left  to  the  law  and  the  judge.  The  parole  board  should  l)e  altogether 
abolished.  Evidence  abounds  indicating  that  a  disproportionate  number  of 
crimes  are  committed  by  previously  incarcerated  offenders,  many  released  on 
parole.  Among  them  are  many  career  criminals  whom  parole  boards  believed 
rehabilitated. 

Lest  I  be  misunderstood,  I  do  not  necessarily  advocate  lengthier  confinement 
for  all  offenders.  I  do  advocate  less  arbitrary  decisions  on  confinement  and 
more  equal  sentences  determined  by  law  and  by  the  courts,  without  any  parole 
provisions  whatever.  I  do  not  wish  to  eliminate  "time  off  for  good  behavior" 
either.  As  long  as  it  is  a  privilege  and  not  a  right,  and  left  entirely  to  the 
pri.son  administration  to  grant  or  withhold,  "time  off  lor  good  behavior"  is  a 
valuable  tool  of  prison  discipline.  However,  the  maximum  "time  off"  should 
never  exceed  10  percent  of  the  sentence  being  served.  Else  prison  wardens  gain 
excessive  arbitrary  power  and  sentences  would  no  longer  be  determined  by 
the  law  and  by  the  courts.  On  the  other  hand,  10  percent  of  the  sentence  is 
enough  incentive  for  proper  conduct  for  any  convict  at  all  responsive  to 
positive  incentives. 

IV. 

It  is  frequently  thought  that  our  prisons  would  become  over-crowded  if 
parole  boards  did  not  release  people.  But  if  shorter  effective  sentences  are 
desired,  this  can  be  accomplished  by  reducing  penalties  judicially  or  legisla- 
tively. Parole  boards  are  not  needed  to  shorten  time  served. 

However,  if  severe  effective  sentences  do  reduce  the  crime  rate  by  reducing 
the  numiier  of  crimes  committed  by  those  incapacitated^and  that  is  likely, 
since  many  crimes  are  conmiilted  by  a  small  number  of  "career  criminals" — 
lengthy  confinement  would  still  cost  less  than  release  would.  The  additional 
crimes  committed  by  the  released  convicts  cost  more  to  victims  and  to  the 
criminal  justice  system  than  confinement  does.  Thus,  if  the  prison  population 
were  to  increase,   investment  in   more  prisons  might  be  entirely   worthwhile. 

But  such  ail  increase  of  the  prison  population,  though  likely  in  the  short  run. 
is  unlikely  in  the  long  run.  If  the  punishment  of  offenders  does  deter  others.* 
more  severe  and  certain  punishment  would  keep  a  greater  proportion  of 
offenders  behind  bars,  but  it  also  would  reduce  the  total  number  of  offenses  by 
deterring  prospective  offenders.  Although  the  proportion  of  offenders  behind 
bars  would  increase,  their  total  number  would  decrease  as  the  number  of 
offenses  decreases. 

Whether  or  not  the  absence  of  parole  actually  increases  the  severity  of 
punishment  depends  on  the  legislature  and  on  the  courts,  which  can  increai<e 
or  decrease  the  length  of  sentences.  And  that  is  where  the  decis'on  belongs. 
Parole  boards  have  no  special  competence  which  legislatures  or  courts  lack, 
to,  in  effect,  determine  sentences,  nor  can  they  learn  any  relevant  facts  not 
available  to  the  sentencing  courts. 

V. 

Legislators  and  judges  and,  not  least,  parole  boards  often  appear  to  believe 
that  offenders  are  to  be  confined  not  for  the  crimes  they  committed,  but  for  the 
crimes  they  may  or  may  not  commit.  Tlius,  they  should  be  confined  or  released 
not  on  the  basis  of  past  behavior,  including  crime,  but  on  the  basis  of  predicted 
future  behavior.  The  actual  length  of  the  sentence  served  is  made  to  depend 
on  Vv'hether  criminal  or  lawabiding  behavior  is  predicted. 

As  indicated,  there  is  no  basis  for  making  such  prediction  other  than  the 
kind  of  lawabiding  or  lawbreaking  behavior  of  which  courts  are  made  aware. 
Hence,  there  is  no  reason  for  post-sentence  modification  or  determination  of 
length  of  time  to  be  served  in  prison  by  parole  boards.  But  the  idea  of 
determining  sentences  on  the  basis  of  future  behavior  is  anyway  contrary  to 
our  principles  of  justice,  and  to  our  principles  of  social  defense. 

Clearly,  if  we  are  interested  in  futxire  rather  than  past  l^ehavior.  our 
elaborate  process  of  determining  guilt — which  is  always  and  only  incurred  }>y 
past    behavior — would    be   unnecessary.    (Unless    guilt    itself    predicts    future 


"  There  is  ample  evidence,  experimental  and  statistical,  for  this  effect.  Some  of  it  is 
presented  In  my  Punishing  Criminals  :  Concerning  a  Very  Old  and  Painful  Question  (New 
York  :  Basic  Books,  1975). 


8922 

behavior.  In  which  case,  parole  boards  once  more  would  be  fraperfluons,  since 
the  courts  would  be  able  to  predict  future  behavior.)  If,  however,  past  .sruilt 
is  thought  necessary  and  sufficient  to  determine  sentences  regardless  of  future 
behavior,  then  subsequent  determination,  or  change,  of  the  time  to  be  served 
is  unnecessary.  And  surely  guilt,  past  behavior,  should  be  decisive.  Criminal 
statutes  threaten  with  punishment  those  who  violate  them.  They  do  not 
threaten  punishment  to  those  who  are  believed  likely  to  brealv  the  law  in  the 
future.  However,  unless  carried  out  against  the  guilty,  the  threats  of  the  law 
become  incredible  and  ineffective.  And  the  performance  of  anti-social  acts  is 
encouraged  as  the  threat  that  was  to  deter  them  loses  its  credibility. 

Justice  consists  in  meting  out  the  punishments  threatened  by  law  and 
deserved  by  guilt  to  those — and  only  to  those — who  voluntarily  have  run  the 
risk  of  suffering  them,  regardless  of  predictions,  or  guesses,  about  their  future 
behavior.  By  doing  justice  we  also  hope  to  deter  others  from  offenses,  as  they 
see  that  offenders  suffer  the  punishments  threatened.  Not  all  will  be  deterred, 
but  it  seems  obvious  that  tlie  deterrent  effectiveness  of  punishment  depends  on 
the  certainty  and  severity  of  punishment  that  can  be  expected  by  lawbreakers — 
on  the  expected  cost  of  lawbreaking  compared  to  the  benefits  expected  by  the 
lavt'breaker.'' 

Before  turning  to  the  effectiveness  of  punishment,  let  me  illustrate  briefly 
why  guilt,  and  guilt  alone,  must  determine  the  actual  sentence  served.  Suppose 
a  man  kills  his  wife.  Quite  often  such  a  man  need  not  be  incapacitated — he  is 
unlikely  to  kill  anyone  else.  Further,  the  crime  itself  may  have  fully  re- 
haliilitated  him :  He  wanted  to  kill  this  particular  woman,  his  wife,  and 
having  done  so  he  may  be  a  good  citizen  in  the  future,  he  may  never  remarry, 
and  if  he  does,  live  ever  after  happily  with  his  new  wife. 

We  punish  such  a  person  for  the  sake  of  justice — to  carry  out  the  threat 
of  the  law,  to  inflict  the  punishment  deserved — and  of  deterrence.  We  feel,  in 
Tolstoy's  words,  that  tlie  seeds  of  every  crime  are  in  everyone  of  us.  Hence, 
other  husbands  need  to  be  restrained  from  doing  what  may  tempt  them  by 
seeing  what  happens  to  one  who  has  done  it.  This  way  we  keep  most  wives 
surviving.  Or,  for  that  matter,  most  husbands.  Obviously,  neither  rehabilita- 
tion nor  incapacitation  is  needed  or  relevant — anymore  than  they  were  needed 
for  the  "Watergate"  criminals,  for  most  while  collar  criminals  or  for  most 
"crimes  of  passion."  But  justice  and  deterrence  are  indispensable. 

The  threat  of  punishment  obviously  has  not  deterred  those  who  are  guilty  of 
crimes.  Some,  to  be  sure,  are  altogether  undeterrable.  Others  are  so  committed 
to  a  criminal  career  that  they  are  quite  unlikely  to  be  deterred  or  to  be 
rehabilitated  by  any  reasonable  punishment.  (This  is  often  the  case  for  minor 
professional  criminals,  e.g.,  pickpockets.)  But  the  threat  continues  to  deter  most 
of  us.  Those  who  cannot  be  deterred,  if  guilty  of  crimes,  must  be  incapacitated 
at  least  temporarily,  to  prevent  them  from  committing  the  additional  crimes 
they  would  commit  if  free  and  to  deter  others  from  entering  a  criminal  career. 

I  do  not  advocate  punishment  of  offenders  for  what  they  have  yet  to  do. 
They  can  only  be  punished  for  their  past  crimes.  I  do  suggest,  however,  that 
the  law  mandate  courts  to  impose  a  much  more  severe  sentence  on  second 
offenders  than  on  first  offenders  who  commit  serious  crimes.  Anyone  who  has 
not  learned  from  his  first  conviction  and  punishment  is  v.ell  on  his  way  to  a 
criminal  career;  whatever  mitigates  a  first  offense  does  not  mitigate  the 
second.  Anyone  who  com.mits  a  third  offense  must  be  considered  a  career 
criminal.  He  should,  if  convicted,  be  incapacitated  for  a  lengthy  period  if  his 
crime  was  violent,  or  if,  like  burglary,  it  involves  physical  exertion.  He  should 
not  be  released  before  he  reaches  the  age  of  40.  At  that  age  resumption  of  his 
criminal  career  is  unlikely.  Few  people  commit  violent  crimes  after  35.  Age 
rehabilitates.  Thus,  contrary  to  present  practice,  youthfulness  generally  requires 
longer,  while  age  permits  shorter  confinement :  The  young  career  criminals  are 
most  likely  to  commit  additional  crimes,  and  least  likely  to  be  rehabilitated. 
Leniency  toward  young  career  criminals  is  based  on  the  sentimental  but 
demonstrably  wrong  premise  that  they  are  more  likely  to  reform  than  older 
ones.  The  sentiment  is  generous  but  unrealistic.  And  the  result  is  not  generous 
as  far  as  the  victims  of  crime  are  concerned.  While  mandatory  sentences  should 
be  determined  by  the  gravity  of  the  crime  as  defined  by  the  law  and  by  the 


7  ThP  iflPR  that  oprtalntv  nlono  matters,  or  matters  more  than  severity,  Is  tnie  niuler 
Bome  eonrmions  (IncludinK  mostly  the  present  ones)  and  not  others.  F.c,  cert.Tint.v  of 
miUl  ininishments  invites  crime.  There  is  an  optimum  combination  of  certainty  and 
severity,  and  neither  varinhle  is  In  principle  more  Important  than  the  other,  since  deter- 
rence is  the  product  of  these  joint  causes. 


8923 

courts,  upon  a  third  conviction  the  offender,  particularly  the  assaultive  offender, 
should  not  be  released  before  reaching  the  age  of  40.  The  lavp  should  take  the 
habitual  aspect  of  the  criminal  career  into  consideration.* 

It  is  well  known  that  career  criminals  commit  a  disproportionate  number 
of  all  crimes.  Nearly  50  percent  of  all  violent  crimes  are  committed  by  career 
criminals,  many  released  on  parole.  The  abolition  of  parole  and  the  appropriate 
mandatory  flat  sentencing  of  career  criminals  alone  are  likely  to  reduce  the 
crime  rate  by  half,  merely  by  incapacitation,  quite  apart  from  deterrent  effects. 
Mandatory  sentencing  and  the  abolition  of  parole  for  all  offenders,  by  in- 
capacitation and  by  deterrence,  would  decrease  the  crime  rate  much  further. 
Thus,  our  government  could  fulfill  the  promise  of  the  Declaration  of  Inde- 
pendence :  to  secure  the  life,  the  liberties  and  the  pursuit  of  happiness  of  our 
citizens.  It  is  "to  secure  these  rights"  that  "governments  are  instituted  among 
men,"  according  to  the  framers.  If  one  looks  at  the  present  practices  of  the 
criminal  justice  system,  including  the  correctional  establishment,  one  may 
think  that  it  was  to  secure  the  happiness  of  lawbreakers  that  our  government 
was  instituted.  Yet,  as  Lincoln  warned,  our  citizens  "become  tired  and 
disgusted  with  a  government  which  offers  them  no  protection."  I  think  we  have 
reached  that  point. 

[Excerpts  from  "Punishing  Criminals :  Concerning  a  "Very  Old  and  Painful 
Question,"  Ernest  Van  den  Haag,  New  York:  Basic  Books,  1975.] 

A  Means  To  Rehabilitate? 

Since  offenders  voluntarily  take  the  risk  of  punishment,  and  since  punish- 
ment may  include  treatment  thought  suitable  for  correction,  the  Kantian 
injunction  not  to  use  anyone  just  as  a  means,  even  for  his  own  benefit,  need  not 
prohibit  the  rehabilitative  treatment  of  offenders  as  long  as  it  remains  in- 
cidental to  but  does  not  replace  retributive  justice.  Yet  attempts  to  rehabilitate 
often  do,  and  even  were  meant  to,  replace  retribution.^  In  the  nature  of  the 
matter,  "correction"  requires  individualized,  i.e.,  different,  treatment  for  each 
criminal,  treatment  linked  to  him  rather  than  to  his  crime,  whereas  retribution 
and  deterrence  are  linked  to  the  act  not  the  actor,  and  unlike  rehabilitation 
require  the  same  punishment  for  the  same  offense.  Thus,  rehabilitative  treat- 
ment unless  incidental  to  retribution — unless  it  neither  decreases  nor  increases 
the  punishment  imposed  for  the  offense — tends  to  be  inconsistent  with  justice, 
whereas  deterrence  is  not. 

The  utilitarian  theories,  which  stress  the  correction  of  offenders,  have  found 
wide  acceptance  in  modern  times.  Thus,  the  late  Mr.  Justice  Black  wrote : 
"Retribution  is  no  longer  the  dominant  objective  of  criminal  law.  Reformation 
and  rehabilitation  of  offenders  have  become  important  goals  of  criminal  juris- 
prudence." "  The  idea  that  "punishment"  is  primarily  for  rehabilitation  is  : 

.  .  .  subscribed  to  by  many  if  not  most  psychiatrists,  by  most  practioners  of  the 
behavioral  sciences  who  think  about  problems  of  the  criminal  law,  by  the  over- 
whelming majority  of  "professionalized"  workers  in  the  correctional  field — 
probation  oflicers,  case  workers,  and  the  like — and  by  an  increasing  number  of 
those  popular  writers  who  perform  the  extremely  important  function  of  trans- 
lating the  ideas  of  the  intellectually  advanced  into  current  popular  terms.  Its 
catchwords — "treat  the  criminal,  not  the  crime,"  "punishment  is  obsolete." 
"criminals  are  sick,"  and  the  like — are  standard  fare  in  large  circulation 
magazines,  and  show  that  the  popular  culture  has  absorbed,  even  if  it  has  not 
yielded  to,  the  behavioral  approach  to  crime. 

Concerned  with  the  future  personality  and  conduct  of  the  offender,  the 
"behavioral  approach"  replaces  the  justice  model  of  punishment  with  a 
therapeutic  one.  Hence  Barbara  Wootton  urges  that  "the  formal  distinction 
between  prison  and  hospital  [be]  .  .  .  eventually  obliterated  altogether." '"  A 
similar  view  is  expressed  in  a  letter  to  the  New  York  Times  (Dec.  27,  1973)  : 
"We  on  the  left  should  be  careful  not  to  violate  the  principles  we  preach,  among 


8  Society  obviously  needs  less  protection  from  one  -who  is  at  the  end  of  his  criminal 
career.  Therefore,  we  can  do  with  fewer  years  of  incBpacitation.  Moreover,  it  is  likely  that 
a  year  In  prison  at  40  Is  subjectively  a  preater  loss  than  a  year  in  prison  at  20. 

1  The  only  criminal  code  that  acknowledpes  rehabilitation  of  the  offender — individ- 
ualized treatment — substantially  unaffected  by  the  pravity  of  the  crime  as  its  major  coal 
is  that  of  Greenland.  However,  Greenland  is  an  exception  also  owing  to  historical  tradi- 
tions and  the  nature  of  its  society. 

»  Dissenting  In  Carlson  v.  Lnndon,  342  U.S.  254.  547  (1952). 

•Samuel  Butler  (in  Erewhon)  anticipated  (or  produced)  Lady  Wootton  by  suggesting 
that  criminals  be  hospitalized.  However,  his  hospitals  prescribed  flogging. 


8924 

which  are  the  following :  Acting  in  revenge  is  wrong*  .  .  .  prisons,  if  they  do 
not  reform,  should  be  closed."  The  writer  rejects  punishment  (which  he  confuses 
with  revenge)  and  believes  that  if  society  cannot  rehabilitate  convicts,  it  must 
release  them.  He  does  not  believe  incapacitation  or  deterrence  useful.  He  is 
joined  by  renowned  philosophers  such  as  Richard  H.  Brandt,  who  proposes : 

".  .  .  if  an  accused  were  adjudged  guilty,  decisions  about  his  treatment  would 
then  be  in  the  hands  of  the  experts,  who  would  determine  what  treatment  was 
called  for  and  when  the  individual  was  ready  for  return  to  normal  social  living 
...  it  would  be  criminal-centered  treatment,  not  crime-centered  treatment.  [For] 
it  is  doubtful  whether  threats  of  punishment  have  as  much  deterrent  value  as 
is  often  supposed." 

Because  they  intend  to  meet  the  individual's  needs,  and  concentrate  on  help- 
ing rather  than  punishing  him,  the  future-oriented  treatment  theories  often  are 
regarded  as  more  rational,  charitable,  and  humanitarian  than  retributive 
■theories,  which  punish  past  acts  according  to  legal  definitions  and  prescriptions 
and  ignore  individual  rehabilitative  "needs."  What  could  be  more  humane  than 
to  deal  with  everyone  according  to  his  individual  "needs"?  To  forget  about  guilt 
and  the  past,  and  to  try  to  cure  or  correct  for  a  better  future?  To  help  the 
criminal  rather  than  to  punish  the  crime?  What  could  be  more  rational?* 

One  can  argue  that  the  justice  model  is  more  just  than  the  therapeutic  model, 
but  the  argument  may  amount  to  a  disguised  definition.  Tt  is  more  interesting 
to  ask  which  model  is  ultimately  more  helpful  to  the  offender  and  to  society. 
With  regard  to  the  offender,  the  charity  of  the  therapeutic  model  is  suspect 
because  it  is  compulsory.  Convicts  do  not  volunteer  to  be  corrected.  Most  do  not 
feel  sick  at  aU  and  do  not  want  to  be  cured.  They  are  held  in  a  correctional 
institution  to  be  treated  against  their  will. 

In  the  justice  model  the  convict,  puni.shed  according  to  desert,  leaves  when 
he  has  served  his  time,  as  legally  prescribed  for  the  crime  for  which  he  was 
convicted.  He  does  not  depend  on  the  approval  or  disapproval  of  his  jailers. 
The  correctional  or  therapeutic  model  implies  that  he  will  leave  when  his  needs 
have  been  met.  The  needs,  however,  are  not  those  he  feels  but  those  he  is  felt 
to  have.  Experts  and  prison  authorities  decide  on  them,  and  on  the  length  of  his 
stay.  The  "needs"  they  attribute  to  the  convict  derive  from  their  own  notions 
about  proper  behavior  and  lifestyle.  x\t  best,  experts  define  the  coi'vict's  needs 
according  to  their  reading  of  the  significance  of  his  prison  behavior  (or.  some- 
times, of  his  way  of  life)  in  predicting  his  conduct  when  released.  Tf  he  is  held 
because  bad  behavior  is  predicted,  he  is.  as  it  were,  made  to  suffer  'n  advance 
for  his  expected  future  acts.  Perhaps  these  social  precautions  can  )<e  justified 
as  such,  but  not  as  punishment  nor  as  a  treatment.  For  treatment  in  the 
medical  sense  surely  is  in  the  convict  patient's  interest  as  he  defines  it,  and 
punishment  refers  to  past  offenses  only. 

.Justice,  at  any  rate,  becomes  irrelevant.  There  can  be  no  "just  correction,"  no 
"ju.st  therapy."  Correction  or  treatment  can  be  effective  or  ineffective,  needed 
or  not,  but  neither  can  be  just  or  unjust  any  more  than  an  api)endectomy  can 
be,  or  Vitamin  C.  The  link  between  guilt  and  the  punishment  deserved  by  it — 
justice — is  severed  and  replaced  by  a  link  between  therapy  and  expected  future 
conduct.  Dr.  Karl  Menninger  acknowledges  the  therapeutic  view  when  he  writes: 
"The  very  v,-ord  'justice'  irritates  scientists."  ^ 

To  be  an  involuntary  patient  and  to  depend  on  the  uncertain  judgment  even 
of  competent  and  well-intentioned  authorities  is  al.sio  demeaning.  The  correctional 
model  might  well  mean  that  offenders  are  released  when  they  are  sufficiently 
submissive — when  they  get  along  with  prison  authorities,  including  psychiatrists 


*  Strli^tlv  spoRklnc.  tho  hiiin)»ni*^nr1nn  motlvp  nm«it  he  (Usstlninilsliorl  from  ttip  oorrpctlvo- 
therapoutic  oup.  Thp  Inttpr  Is  histrnmpntnl  nnd  In  iiriridplp  could  Ipnd  to  naiiiful  or  onipl. 
fts  wpU  ns  hiimaiip.  nipnpurps,  dpppnf'inp  on  what  is  pffpctivp.  whpipns  hiiniRnp  trpntniont 
1^!  a  moral  prpcopt,  .iu<<tified  not  by  effpota  but  by  Its  Intrinsic  moral  rltrlitnpss.  Tn  prartice, 
Tiowpvpr,  "htimanp"  trpatmcnt  Is  usnallv  justifipil  by  thp  oxppctpil  Ihprniiputip  pffpcts. 

■  Thosp  who  orlcrlnally  sponsorpd  rohabilltatlon  ns  the  main  coal  of  Ipcnl  sanctions 
ajrainst  law  violators  arp  bp^'innlnL'  to  rpcnll  hnvinc  sopn  thp  oonspniiPiicps.  Tims,  fftrufjgle 
for  Justirr,  A  Report  Prcvnred  for  the  Amerirnn  Frirxrt'x  F!rrv!re  Covtmitter  CTTill  and 
Wane.  T^ll).  althon"h  still  f^nrnmhpred  with  i^nnv  oliohps.  suctrpsts  that  at  least  somp 
amonsr  thp  Qnalcprs  to  whom  wp  owp  thp  rphnhilita*^ivp  Pinnhnsis  hnvp  sppn  thp  liirht. 
Pnrfi'^1  JuHlire  (Alfrpd  S.  Knnpf.  1074')  by  WiUard  Oaylin,  a  psyphonimlvst.  reports  on 
Intprvipws  with  sonio  fortv  fpdpral  indi'ps  which  Ipd  Onylin  to  conclnrlp  that  spntpncinjr 
becomes  capricious  when  dlscrptiooary.  more  influpiicp'l  by  thp  divergent  lifp  PTperiencp  of 

(Continued) 


8925 

and  social  workers.  David  Greenberg's  "The  desire  to  help  when  coupled  with 
a  desire  to  control  is  totalitarian,"  exaggerates  only  a  little.  Furthermore, 
psychiatry  is  not  an  exact  science.  Hence,  capricious  detention  for  involuntary 
treatment  is  hard  to  distinguish  from  detention  based  on  a  bona  fide  diagnosis. 
Once  the  therapeutic  model  replaces  a  definite  punishment  with  indefinite,  in- 
voluntary "correction,"  it  may  turn  out  to  be  less  humane,  as  well  as  less  just 
than  the  retributive  model. 

Is  It  Effective? 

Rehabilitative  treatment  has  not  been  shown  to  be  effective  in  reducing 
recidivism :  the  recidivism  rates  of  those  treated  in  different  programs  by 
different  methods  do  not  differ  from  the  rates  of  those  not  treated  at  all, 
whether  in  the  U.S.  or  elsewhere.  Attempts  to  rehabilitate  need  not  be  given 
up,  although  the  result  so  far  is  discouraging.  A  way  may  yet  be  found.  And 
even  if  it  does  not  portend  rehabilitation,  humane  treatment  is  always  justified 
for  its  own  sake,  as  is  justice.  However,  given  the  evidence  we  now  have  we 
should  no  longer  regard  rehabilitation  as  a  maor  purpose  to  which  piinishment 
is  suited.  Retribution,  deterrence,  and  incapacitation  should  have  priority.  Let 
me  quote  from  an  extensive  report  to  substantiate  the  above. 

With  few  and  isolated  exceptions,  the  rehabilitative  efforts  that  have  been 
reported  so  far  have  had  no  appreciable  effect  on  recidivism. 

The  survey  was  limited  to  the  rehabilitation  methods  generally  in  use  during 
the  period  from  1945  through  1967,  including  small  caseloads  on  probation  or 
parole,  intensive  supervision  in  specialized  caseloads,  early  releases  from 
confinement,  variation  in  sentence  length  and  degree  of  custody,  casework  and 
individual  counseling,  psychotherapy,  group  therapies  of  various  kinds,  so-called 
"milieu  therapy,"  halfway  houses,  pre-release  guidance  centers,  tranquilizing 
drugs,  plastic  surgery,  and  other  factors.  Methods  not  evaluated  included  work 
release,  methadone  maintenance,  recent  forms  of  so-called  "behavior  modifica- 
tion," and  what  have  come  to  be  called  diversion  methods. 

The  weight  of  the  evidence  is  that  the  addition  of  treatment  elements 
("programs"  of  the  kind  evaluated)  to  the  system  has  no  appreciable  effect  in 
changing  offenders  into  non-offenders. 

Those  placed  on  probation  do  no  worse  than  those  imprisoned  and  may  do 
slightly  better.  Small  caseloads  on  probation  do  no  better  than  standard  case- 
loads. Probation  supervision  (as  currently  practiced)  is  not  an  effective  "treat- 
ment," i.e.,  does  not  substantially  improve  the  behavior  of  those  supervised 
over  what  would  be  expected.  A  large  number  of  treatment  programs  took  place 
outside  prison.  The  burden  of  evidence  is  not  encouraging. 

Prof.  Ulla  P.ondeson  found  in  Sweden  "that  different  methods  of  confinement 
do  not  create  any  different  effects."  Bondeson  "compared  four  different  types 
of  correctional  institutions;  Christiansen.  Moe  &  Sehnholt  (1972)  compared 
two  different  types  of  imprisonment;  and  Uusitalo  (1972)  compared  open  labor 
camps  with  closed  prisons.  The  effects  did  not  differ."  Bondeson  concludes : 
"Despite  shorter  terms  of  conlinement,  more  open  institutions,  and  more  treat- 
ment resources  given  both  during  and  after  institutionalization,  the  Swedish 
correctional  institution  seems  to  produce  recidivism  rates  as  high  as  the 
American.  .  .  ."  (If  drunken  driving  is  excluded,  the  recidivism  rates  still 
remain  as  high  as  in  the  U.S.) 

These  results  are  not  unknown,  but  unceasing  efforts  are  being  made  to  ignore 
or  deny  them.  Thus,  Dr.  Seymour  U.  Halleck  still  insists  that  "rehabilitation 
is  a  more  important  goal  than  punishment."  And  the  following  revealing  note 
appeared  in  New  York  magazine  : 

Theoretically,  "work  release"  contributes  to  the  rehabilitation  of  prison  in- 
mates by  freeing  them  for  outside  jobs  under  certain  conditions.  The  New  York 


(CoTiTiniieil ) 

each  judge  than  by  the  crime  or  the  criminal.  Gaylin  might  have  spared  himself  the  inter- 
views by  looking  at  any  of  the  Classical  texts  on  criminal  law.  One  reason  Bentham 
advocated  uniform  sentencing  standards  determined  by  the  crime  and  independent  of  the 
Individual  criminal  was  that  sentences  tailored  to  the  criminal  would  necessarily  be 
unequal  and  never  above  the  suspicions  of  bias.  Furthermore,  he  knew  that  the  sentence 
would  depend  not  on  the  criminal  but  on  the  .iudge  who  evaluates  him.  It  would  be 
unavoidably  capricious.  Yet  physicians,  psychiatrists,  and  psychoanalysts  have  long 
advocated  discretionary  procedures  for  the  sake  of  rehabilitation.  It  Is  good  that  some  of 
them  finally  have  come  to  regret  their  advocacy.  Gaylin  concluded  :  "We  must  mechanize 
justice  because  we  are  not  yet  up  to  the  love  and  understanding  that  is  essential  if  dis- 
creation  is  to  serve  justice."  "Not  yet"-  There  is  no  reason  to  believe  that  we  will  ever  be. 


8926 

Post,  for  example  .  .  .  editorializes  that  "the  repeater  rate  has  been  significantly 
cut ;  therefore  so  has  crime."  Nothing  about  the  program  could  be  further  from 
the  truth. 

.  .  .  More  than  one  out  of  four  in  the  program  escape,  a  substantial  number 
cause  so  much  trouble  that  they're  returned  to  prison ;  the  recidivism  rate  for 
the  program's  "graduates"  is  so  high  that  when  it  is  combined  with  the  other 
statistics,  the  prol)ability  is  that  "work  release"  participants  are  more  likely  to 
commit  future  crimes  than  the  average  prisoner  released  directly  to  the  streets. 

A  large  bureaucracy  of  professionals  and  quasi-professionals  has  gained  a 
vested  interest  in  "reliabilitative"  activities  on  which  its  power,  prestige,  and 
income  depend.  Hence,  the  pressures  for  ever  more  "rehabilitation." 

Why  Rehabilitation  Does  Not  Work 

There  are  three  major  reasons  for  the  failure  of  rehabilitation,  even  under 
favorable  circumstances.  In  unfavorable  circumstances  prison  may  lead  to 
criminalization  more  readily  than  to  rehabilitation. 

1.  Only  diseases  can  be  cured  by  treatment.  Few  offenders  are  sick.  There  is 
no  convincing  independent  evidence  that  convicts  are  more  sick  than  non- 
convicts."  Those  who  feel  that  all  offenders  suffer  from  some  disorder  to  be 
corrected  by  treatment  confuse  their  moral  disapproval  with  a  clinical  diagnosis. 
Theoretically,  it  seems  lil\ely  that  many  offenses  are  rational  acts  on  the  part 
of  the  offender ;  to  minimize  offenses  one  must  change  not  the  offender  but  the 
cost-benefit  ratios  that  cause  offenses  to  be  rational. 

2.  Even  the  offenders  who  are  clinically  sick — some  certainly  are — are  not 
likely  to  be  rehabilitated  coercively.  As  Norval  Morris  puts  it,  "facilitated 
change"  must  replace  "coerced  cure" — i.e.,  the  comforts  of  the  prisoner  and  the 
duration  of  his  incarceration  must  be  entirely  independent  of  his  acceptance 
of  a  treatment  program,  which  should  be  addressed  only  to  those  who  want  it. 
However,  Prof.  Morris  has  given  no  evidence  of  an  available  program  that,  if 
uncoerced,  would  be  successful.  It  is  one  thing  to  point  out  that  coerced 
rehabilitation  does  not  work ;  it  is  quite  another  to  show  that  if  uncoerced  it 
does  work. 

3.  Rehabilitative  treatment  is  necessarily  ineffective,  unless  it  follows  or  is 
part  of  independent  retributive  punishment  for  another  reason  as  well.  When 
a  person  decides  sua  spnnte  to  undergo  psychotherapy  (or  for  that  matter 
medical  treatment),  he  does  so  because  he  is  dissatisfied  either  with  his  state 
of  mind — e.g.,  he  may  suffer  from  anxiety — or  because  he  is  dissatisfied  with 
his  own  behavior.  However  dimly,  he  realizes  that  he  does  not  achieve  what 
he  intends  to  or  succeed  in  the  relationships  or  careers  he  wants  because  he 
defeats  himself,  perhaps  because  of  an  unconscious  conflict.  He  seeks  treatment 
to  help  him  decide  what  he  wants  and  to  help  him  achieve  it. 

In  contrast,  the  offender's  intention  is  defeated  by  his  own  behavior  only 
inasmuch  as  it  is  punished.  Otherwise  he  need  have  no  reason  for  dissatisfac- 
tion. It  is  the  punishment  that  makes  his  behavior  unrewarding  and  tlius, 
perhaps,  causes  him  to  wish  to  change  it.  Unless  his  offense  is  punished,  his 
behavior  need  not  he  self-defeating  or  irrational ;  therefore  he  has  no  reason  to 
desire  the  change  that  the  psychiatrist  might  have  helped  him  mal^e  had  he 
desired  it.  To  be  a  successful  thief  may  be  immoral,  but  it  is  not  self-defeating 
or  irrational.  To  be  an  unsuccessful  one  may  be.  A  criminal  becomes  unsuccess- 
ful inasmuch  as  he  is  punished.  Rehai)ilitative  efforts  make  sense  only  if  offenses 
are  made  unrewarding,  selfdefeating,  irrational,  and  ultimately  painful.  Only 
punisliment  can  achieve  this.''  Hence  rehabilitation  can  follow,  but  it  cannot 
take  the  place  of  puni.shment. 

Sonafor  Hatch.  Thnnk  you  for  boinc  with  ns. 

]Mr.  VAN  DEN  Haact.  Thank  yoii,  Mr.  Chairman. 

Senator  Hatch.  Our  last  witnesp;  this  mornintr  "will  be  Dean  Don  !M. 
Gottfrodson  of  the  Scliool  of  Criminal  Justice,  Rutgers  University  at 
Newark,  N.J. 

Welcome  to  our  committee. 


«  Poo  Chnptor  XT. 

T  To  hp  snro.  thorp  nrc  offonflors  -who  oToi'l  boonnsp  tlioy  iinoonsrlouply  pppV  pnTiish- 
m^nt.  Tfipro  I'?  ovldonoo  for  tho  oxistpnoo  of  such  offpnf?or<5,  hut  nono  to  Indtcitp  thnt  thoir 
numhor  In  clenlflofint  or  that  the  unconscious  need  for  punishment  is  decisive  In  produc- 
ing their  offenses. 


8927 

STATEMENT  OE  DON  M.  GOTTFREDSON,  DEAN,  SCHOOL  OF  CRIMINAL 
JUSTICE,  RUTGERS  UNIVERSITY,  NEWARK,  N.Y. 

]Mr.  GoTTFREDSON.  Thank  you,  Mr.  Chairman. 

I  am  very  pleased  to  be  here.  I  will  summarize  my  prepared  state- 
ment. 

I  have  indicated  in  my  prepared  statement  some  of  my  credentials. 
The  principle  one,  I  think,  that  brings  me  here  is  some  involvement 
with  others  in  research  on  the  topic  of  guidelines  for  paroling  de- 
cisions and  sentencing  decisions. 

Certainly  I  do  appreciate  the  opportunity  to  testify  about  those 
parts  of  the  bill  tliat  concern  sentencing.  I  mainly  wish  to  support  the 
concept  of  the  sentencing  commission  and  adoption  of  a  sentencing 
guideline  system. 

I  would  also  like  to  offer  some  suggestions  that  I  hope  you  will  con- 
sider toward  a  more  complete  implementation  of  this  concept. 

The  concept  of  sentencing  guidelines  as  incorporated  in  this  bill  is 
derived  from  developments  in  the  U.S.  Parole  Commission.  About 
seven  years  ago,  there  was  considerable  criticism  of  that  Commission, 
then  the  U.S.  Parole  Board,  including  arguments,  as  usual,  that  its 
decision-making  practices  were  arbitrary,  capricious,  and  disparate. 

At  about  that  time,  a  study  began  in  close  collaboration  with  the 
members  of  the  U.S.  Parole  Board  that  developed  as  part  of  that  re- 
search the  concept  of  guidelines  as  now  used  throughout  the  U.S. 
Parole  Board  system. 

I  have  summarized  the  nature  of  those  guidelines  in  the  written 
statement;  but  I  will  skip  over  that  in  the  interest  of  time.  I  would 
like  to  urge  the  committee  and  committee  staff  to  look  closely  at  that 
experience  in  the  IT.S.  Parole  Board.  I  do  think  it  provides  a  very  use- 
ful model,  all  of  the  elements  of  which  are  not  immediately  apparent 
without  a  fairly  thoughtful  look  at  that  experience. 

A  major  advantage  of  this  system  is  tliat  its  development  requires 
the  explicit  description  of  paroling  policy.  Hence,  it  is  open,  public, 
and  available  for  public  review  and  criticism. 

Indeed,  a  central  feature  of  this  system  is  its  provision  for  repeated 
review  and  criticism.  This  allows  for — and  indeed  invites — subjecting 
parole  decision-making  criteria  now  in  use  to  rigorous  scrutiny  with 
respect  to  both  the  moral  and  effectiveness  issues  raised.  The  moral 
issues  then  may  be  debated  more  readily ;  the  effectiveness  issues  may 
be  tested. 

I  should  have  mentioned  that  these  studies  of  parole  and  sentencing 
were  done  with  assistance  from  the  Law  Enforcement  Assistance  Ad- 
ministration. 

A  similar  program  is  underwa^^  with  a  number  of  State  paroling 
authorities  and  is  nearly  completed.  Seven  state  parole  boards  have 
been  involved  in  that.  I  could  mention  quickly  that,  in  four  of  those, 
giudelines  are  now  being  implem-ented.  Those  are  the  states  of  North 
Carolina,  Missouri,  Louisiana,  and  Virginia.  Also,  the  paroling  au- 
thority in  Minnesota  has  adopted  and  is  using  a  very  similar  guide- 
lines model. 

The  concept  that  a  paroling  authority  or  a  judiciary  may  develop 
guidelines  for  use  in  their  decision-making  is  in  conflict  with  the  be- 


8928 

liof  tliat  those  decision  makers  require  only  the  individual  wisdom  of 
the  board  member  or  judge  whose  determination  should  be  in  no  way 
restricted. 

Tliat  is,  it  is  inconsistent  with  the  idea  of  complete,  nnbridled  dis- 
cretion for  each  board  member  or  judge.  Similarly,  the  concept  of 
guidelines  conflicts  with  the  belief  that  paroling  authorities  or  judges 
should  exercise  no  discretion  in  determining  the  timing  or  mode  or 
release  from  prison,  the  length  of  stay  in  confi^nement,  or  the  choice 
of  alternative  sentences. 

Thus,  two  quite  different  viewpoints  are  simultaneously  rejected  as 
a  beginning  point  for  the  guidelines  concept  incorpoi-atcd  in  the 
parole  guidelines  and  in  the  Criminal  Code  Reform  Act  of  1977. 

These  are  the  belief,  on  tlie  one  hand,  that  sentences  should  be  en- 
tirely fixed  by  statute,  leaving  no  room  to  maneuver  on  the  part  of  the 
judge  or  paroling  authority;  and,  on  the  other  hand,  the  belief  that 
the  sentence  should  be  wholly  indeterminate,  leaving  it  to  expert 
authority. 

The  former  viewpoint  generally  would  be  associated  with  those 
who  argue  for  mandatory  sentencing,  with  sentences  fixed  by  the  Con- 
gress or  legislatures;  while  the  latter  view  would  be  the  extreme  limit 
of  a  treatment  philosophj'  undergirding  the  concept  of  indeterminate 
sentencing. 

If  discretion  in  sentencing  is  not  to  be  wholly  eliminated,  then  some 
mechanism  for  its  structure  and  control  and  for  explicit  statement  of 
sentencing  policy  is  needed. 

Such  a  system  has  been  demonstrated  to  be  feasible,  not  only  in  the 
case  of  parole  de<iisions,  but  in  sentencing  as  well.  Similar  guidelines 
now  have  been  developed  and  found  to  be  feasible  in  a  study  com- 
pleted in  collaboration  with  several  state  courts.  A  guidelines  model 
is  briefly  described  in  my  statement;  it  is  in  use  in  the  courts  of 
Denver,  Colorado. 

On  the  basis  of  this  experience,  T  believe  the  establishment  of  a  sen- 
tencing commission  and  the  development  of  guidelines  as  proposed  in 
the  bill  to  be  feasible  and  to  offer  the  potential  foT-  markedly  increased 
equity  in  sentencing.  I  would  like  to  suggest,  however,  some  specific 
changes  in  the  bill. 

Tn  I'taragraph  2301,  concerning  the  sentence  of  imprisonment,  in 
subparagraph  C,  about  authorized  terms  of  parole  ineligibility,  the 
imprisonment  that  may  be  required  to  be  served  before  eligibility  for 
parole  is  any  term  found  appropriate  bv  the  court  in  the  light  of  the 
provisions  of  the  offense  class  categorization,  although  no  term  of 
parole  ineligibility  may  extend  into  the  last  one-tenth  of  the  sentence 
imposed. 

This  has  a  potential  for  markedly  increasing  time  to  be  served  in 
confinement,  exacerbating  problems  of  prison  overcrowding  by  in- 
creasing sanctions  in  ways  not  appai-ently  intended  bv  the  authors  of 
the  bill.  This  provision  could  vovy  radically  reduce  the  range  of  dis- 
cretion of  tlie  Parole  Commission,  virtually  abolisliing  parole. 

There  is,  of  course,  as  we  have  seen  yesterdav  and  today,  a  continu- 
ing national  debate  on  this  topic.  Parole  boards  continued  to  be  criti- 
cized on  one  of  three  giounds;  either  on  procedural  grounds,  on  the 
uncertainty  issue,  or  on  effectiveness  issues. 


8929 

I  would  like  to  point  out  that  the  guidelines  model  at  least  partially 
addresses  the  first  two  of  the  principal  concerns. 

The  general  issue  of  parole  abolishment  is  one  that  should  be  ad- 
dressed and  resolved  by  the  Congress  after  full  study  of  the  potential 
consequences.  It  should  not  be  resolved  by  a  sentencing  commission 
such  as  proposed.  That  is,  the  question  of  parole  retention  or  abolish- 
ment is  a  critical  structural  issue  that  will  affect  the  entire  criminal 
justice  system,  not  just  sentencing. 

Parole  decisions  occupy  a  keystone  position  in  the  process.  Changes 
in  the  structure  may  be  expected  to  affect  prosecution  decisions,  in- 
cluding plea  bargaining,  and  prisons  in  very  significant  ways. 

There  are  several  points  in  the  bill — and  I  have  mentioned  these 
in  a  little  bit  more  detail  in  the  written  statement — that  seem  to  me 
inconsistent  in  the  sense  that  they  do  not  reflect  a  full  implementation, 
of  the  guidelines  model  proposed  as  a  kind  of  centerpiece  in   this  bill.. 

I  have  reference,  for  example,  to  the  section  that  discusses  pre-trial 
release.  The  general  decision  problem  is  the  same  in  that  circumstance 
as  in  sentencing.  There  seems  to  be  no  reason  that  guidelines  for  pre- 
trial release  cannot  be  developed  providing  a  specific  policy  for  use  in: 
determining  a  release  before  trial. 

Similarly,  in  the  section  discussing  juvenile  delinquency,  some  gen- 
eral parameters  to  the  initial  decision  as  to  detention  of  juveniles  are 
listed.  Again,  it  would  seem  desirable  to,  by  some  means,  develop 
guidelines  to  structure  and  control  this  important  decision. 

Similarly,  at  the  point  in  which  the  youth  has  been  adjudicated  to 
be  delinquent,  alternative  dispositions  are  noted;  but  it  is  not  specified 
that  guidelines  for  this  decision  shall  be  developed  and  promulgated. 

If  increased  equity  in  sentencing  of  adults  is  desired,  surely  vre  wish 
the  same  for  children.  These  would  be  a  question  about  the  appro- 
priate body  to  develop  and  promulgate  these  guidelines.  I  do  not  have 
a  i-ecommendation  about  that. 

When  the  consideration  of  a  prisoner  for  release  on  parole  is  con- 
sidered, it  seems  to  me  that  the  relation  between  the  present  parole 
commission  and  the  sentencing  commission  is  rather  unclear. 

Surely,  as  we  have  seen,  there  will  be  those  who  will  argue  that,, 
with  a  development  and  implementation  of  the  sentencing  commission, 
and  guidelines  model,  the  parole  commission  and  the  parole  function 
can  be  eliminated.  I  believe  that  this  would  be  unwise  and  that  the- 
present  parole  commission  structure  should  be  retained. 

The  sentencing  guidelines  can  reduce  imwarranted  disparity,  but 
they  cannot  ensure  its  elimination.  With  nearly  400  judges  interpret- 
ing the  use  of  the  guidelines  developed,  considerable  room  for  such 
disparity  remains.  Envisioned  as  a  two-step  process  with  both  the 
judiciary  and  the  paroling  authority  operating  under  explicit  policy, 
a  coordinated  increase  in  sentencing  enuity  can  be  foreseen. 

The  broad  limits  can  be  set  by  the  Congress.  The  sentencing  guide- 
lines can  somewhat  limit  and  better  control  the  exercise  of  discretion 
by  the  judges,  A  smaller  body  operating  also  under  explicit  state- 
ments of  policy  provided  by  the  guidelines  can.  in  the  end,  best  deter- 
mine the  actual  time  to  be  served  in  prison. 

I  briefly  discuss  in  the  prepared  statement  the  composition  of  the 
committee.  My  comments  are  very  similar  to  those  of  Judge  Frankel  in 


8930 

terms  of  the  general  issue  that  sentencing  concerns  tlie  whole  criminal 
justice  system.  I  propose,  also,  the  presidential  appointment  process. 

In  summary,  I  went  to  say  mainly  that  it  is  a  feasible  concept.  It  is 
demonstrably  feasible  by  the  experience  in  the  United  States  Parole 
Board,  other  parole  boards  in  the  United  States,  and  in  the  one  sen- 
tencing study  that  I  mentioned. 

I  would  like  to  congratulate  Senators  ]McClellan  and  Kennedy  for 
inclusion  of  that  concept  in  the  bill  and  to  congratulate  the  committee 
for  its  attention  to  these  important  issues. 

I  thank  you  again  for  the  chance  to  be  with  you,  sir. 

Senator  Hatch.  Thank  vou. 

Your  prepared  statement  will  be  made  a  part  of  the  record. 

[Material  follows :] 

Testimony  of  Don  M.  Gottfredson.  Before  the  Committee  on  the  Jitdiciary, 

June  8, 1977 

Mr.  Chairman  and  members  of  the  committee,  my  name  is  Don  M.  Gottfred- 
son. I  am  the  Dean  of  the  School  of  Criminal  Justice  at  Rutgers  University  in 
Newark,  New  Jers;ey.  Previously.  I  was  Director  of  the  Research  Center  of  the 
National  Council  on  Crime  and  Delinquency  at  Davis.  California.  I  have  been 
a  consultant,  advisor,  or  member  of  various  national  and  state  commissions 
or  task  forces  on  delinquenc.v,  crime  and  criminal  justice,  am  Chairman  of  the 
New  Jersey  Correctional  Master  Plan  Policy  Coimcil  and  a  Fellow  of  the 
National  Center  for  Juvenile  .Justice  of  the  National  Council  of  .Juvenile  Court 
Judffe.s.  With  others  I  have  done  research  on  the  topic  of  guidelines  for  parole 
and  sentencing  decisions.  In  this  testimony,  I  speak  only  for  myself. 

The  opportunity  of  testifying  about  the  aspects  of  S.1437  that  concern 
sentencing  is  appreciated.  I  mainly  wish  to  support  the  concept  of  the 
sentencing  commission  and  the  adoption  of  a  sentencing  guideline  system.  I 
would  like  also  to  offer  some  suggestions  that  I  hope  you  will  consider  toward 
a  more  complete  implementation  of  this  concept. 

The  concept  of  sentencing  guidelines  as  incorporated  in  this  bill  is  derived 
from  developments  in  the  United  States  Parole  Commission.  Altout  seven  years 
ago  there  was  considerable  criticism  of  that  Commission  (then  the  United  States 
Board  of  Parole)  inclrding  arguments  that  its  decision-making  practices  were 
arhitrai'y,  capricious  and  disparate.  The  I>oard  began  a  pilot  pro.iect  in  1972 
that  included  hearings  by  panels  of  hearing  examiners,  the  providing  of 
written  reasons  in  cases  of  parole  denial,  an  administrative  review  process, 
and  the  use  of  guidelines  for  decision-making.  Previously,  the  Board  had  no 
written  general  policy  providing  a  frame-work  within  which  its  individual  case 
decisions  were  made.  The  decision-makng  procedures  developed  were  exjianded 
in  October.  1974  to  all  federal  parole  decisions. 

The  guidelines  developed  by  study  of  the  decisions  of  the  Board  in  the  prior 
year,  were  designed  to  .structure  and  <-ontrol  the  Board's  discretion.  They  were 
developed  in  close  collaboration  with  the  Board  in  a  study  of  parole  decision- 
making (funded  by  the  National  Institute  of  Law  Enforcement  and  Criminal 
.Justice  of  the  Law  Enforcement  Assistance  Administration)  for  which  I  was 
responsible  together  with  Professor  Jjcslie  T.  Wilkins  of  the  School  of  Criminal 
Justice  at  the  State  Univc-sity  of  New  Yorlc  in  AUiany.^  These  guidelines  wei-e 
based  on  the  research  finding  that  the  main  considerations  of  tb.e  Board  were 
for  the  seriousness  of  the  offense,  the  risk  of  recidivism,  if  paroled,  and  the 
inmates  institutional  behavior. 

The  guidelines  now  used  l)y  the  Parole  Commission  are  in  the  form  of  a  two 
dimensional  chart.  On  one  dimension,  the  seriousness  of  the  offender's  commit- 
ment offense  is  considered.  Six  categories  of  offense  seriousness  are  designated, 
and  for  each  the  Commission  has  listed  examples  of  common  offens^e  behaviors 
for   that    category,    arrived    at    by    con.sensus    judgments    of    the    Commission 


1  CiitlfnMison.  Don  "SL.  Wilkins,  T;Os1io  T..  TTnlTninn.  Pnlor  P...  and  Sin^or.  Susan  !M., 
The  Ufilizntion  of  Fxverirvrr  in  Pnrol''  Drrixioji-^fnl-ing:  Summary  Report,  Washington, 
D.C.  :  U.S.  Government  Printing  Office,  November,  1974. 


8931 

Members.  On  the  other  dimension,  four  categories  of  parole  prognosis  or  "rislc" 
(of  parole  violation)  are  defined.  These  classifications  of  offenders  were 
established  by  an  empirically  developed  parole  prediction  device,  called  a 
"salient  factor  score,"  used  as  an  aid  in  making  prognosis  assessments.  For  each 
combination  of  offense  seriousness  category  and  offender  (salient  factor  score) 
class,  a  decision  range  is  provided.  This  decision  range  specifies  the  customary 
paroling  policy  in  terms  of  the  number  of  months  to  be  served  before  release 
(subject  to  the  limitations  of  the  judicially  imposed  sentence)  assuming  that 
the  prisoner  has  demonstrated  good  institutional  behavior.  After  the  offender  is 
classified  according  to  both  offense  seriousness  and  risk  of  parole  violation  if 
released,  the  parole  board  member  or  hearing  examiner  checks  the  table  to 
determine  the  expected  decision.  The  guidelines  define  the  usual  policy.  A  range 
of  months  is  used  in  order  to  allow  for  some  variation  within  broad  seriousness 
and  risk  categories.  Should  the  decision-maker  wish  to  make  the  decision 
outside  the  expected  range,  then  he  or  she  is  required  to  specify  the  factors 
that  made  that  particular  case  unusual  (such  as  particular  aggravating  or 
mitigating  circumstances,  unusually  good  or  poor  institutional  adjustment,  or 
credit  for  time  spent  in  a  sentence  of  another  jurisdiction).  Decisions  outside 
the  specified  guideline  ranges  are  not  only  permitted  but  expected ;  and  they 
are  taken  in  about  twenty  percent  of  the  cases,  with  specific  reasons  given. 

Since  it  was  thought  that  use  of  the  guidelines  could  induce  rigidity,  just 
as  the  absence  of  guidelines  could  produce  disparity,  the  Commission  adopted 
two  basic  procedures  for  examining,  modifying  and  updating  them.  First,  the 
Commission  may  modify  any  guideline  category  at  any  time.  Second,  at  six 
month  intervals  the  Board  is  given  feedback  from  the  decision-making  of  the 
previous  six  months  and  examines  each  category  to  see  whether  the  median 
time  served  has  changed  significantly.  At  these  policy  meetings,  feedback  is 
provided  the  Board  concerning  the  percentage  of  decisions  falling  outside  each 
guideline  category  and  the  reasons  given  for  these  decisions.  This  serves  two 
purposes :  the  reasons  for  the  deviations  from  the  guidelines  may  be  examined 
to  consider  their  appropriateness,  and  the  percentages  of  decisions  within  and 
outside  the  guidelines  for  each  category  can  be  evaluated  to  determine  whether 
the  discretion  range  for  the  category  is  appropriate.  That  is,  too  high  a 
percentage  of  decisions  outside  the  guideline  range  without  adequate  explana- 
tion may  indicate  either  that  a  wider  range  is  thought  necessary  or  that  the 
hearing  panels  are  inappropriately  exceeding  their  discretionary  limits.  On  the 
other  hand,  a  very  high  percentage  of  decisions  within  the  guidelines  may 
indicate  a  mechanical  application  with  excessive  rigidity.  The  guidelines 
themselves  cannot  provide  answers  to  these  questions  of  policy.  But  by 
articulating  the  weights  given  to  the  major  criteria  considered,  explicit  decision 
guidelines  permit  assessment  of  the  rationality  and  appropriateness  of  parole 
board  policy.  In  individual  cases  they  structure  and  control  discretion,  thus 
strengthening  equity,  without  eliminating  that  degree  of  discretion  thought 
necessary. 

A  major  advantage  of  this  system  is  that  its  development  requires  the 
explicit  description  of  paroling  policy.  Hence,  it  is  open,  public,  and  available 
for  public  review  and  criticism.  Indeed,  a  central  feature  of  the  system  is  its 
provision  for  repeated  review  and  revision.  This  allows  for,  and  indeed  invites, 
subjecting  parole  decision-making  criteria  now  in  use  to  rigorous  scrutiny  with 
respect  to  both  the  moral  and  effectiveness  issues  raised.  The  moral  issues  may 
be  debated  more  readily ;  the  effectiveness  issues  can  be  tested.  Recent  legisla- 
tion (Public  Law  94—233)  has  codified  this  administratively  developed  system 
(effective  May  14,  1976). 

Similar  work  also  with  Law  Enforcement  Assistance  Administration  support 
has  been  undertaken  recently  in  a  number  of  state  paroling  authorities;  these 
are  the  parole  boards  in  Washington  State,  The  California  Youth  Authority, 
New  Jersey,  Virginia,  North  Carolina,  Missouri  and  Louisiana.  In  the  latter 
four  state  parole  boards  guidelines  now  are  being  implemented.  Also,  the 
paroling  authority  in  Minnesota  has  developed  and  is  using  similar  guidelines. 

The  concept  that  a  paroling  authority  or  the  judiciary  may  develop  guide- 
lines for  use  in  their  decision-making  processes  is  in  conflict  with  the  belief  that 
these  decision-makers  require  only  the  individual  wisdom  of  the  board  member 
or  judge  whose  determination  should  be  in  no  way  restricted.  That  is,  it  is 
inconsistent  with  the  idea  of  complete  unbridled  discretion  for  each  board 
member   or   judge  in   determination    of   the   decision    outcome.    Similarly,    the 


8932 

concept  of  pnidelincs  conflicts  with  the  belief  that  paroling  aiithoritie«;  or 
juflges  should  exercise  no  discretion  in  determining  the  timing  of  or  mode  of 
release  from  prison,  the  length  of  stay  in  confinement,  or  the  choice  of  alterna- 
tive sentences.  Thus,  two  quite  different  viewpoints  are  simultaneously  rejected 
as  n  beginning  point  for  the  guidelines  concept  Incorporated  in  the  parole 
guidelines  and  in  the  Criminal  Code  Reform  Act  of  1977.  These  are  the  belief 
on  one  hand  that  sentences  should  be  entirely  fixed  by  statute,  leaving  no  room 
to  maneuver  on  the  part  of  the  judge  or  the  paroling  authority,  and  on  the 
other  hand,  the  belief  that  the  sentence  should  be  wholly  indeterminate, 
leaving  it  to  expert  authority.  The  former  viewpoint  generally  would  be 
associated  with  those  who  argue  for  mandatory  sentencing  with  .sentences  fixed 
by  the  Congres.s  or  legislatures,  while  the  latter  view  would  be  the  extreme 
limit  of  a  treatment  philo.sophy  undergirding  the  concept  of  indeterminate 
sentencing.  If  discretion  in  sentencing  is  not  to  be  wholly  eliminated,  then 
some  mechanism  for  its  structure  and  control  and  for  explicit  statement  of 
sentencing  policy  is  desirable. 

Such  a  system  has  been  demonstrated  to  be  feasible  not  only  in  the  case  of 
parole  deci-sions,  but  in  sentencing  as  well.  Similar  guidelines  now  have  been 
developed  and  found  to  be  feasible  in  a  study  completed  in  collaboration  with 
several  state  courts."  Following  similar  procedures  and  working  in  collaboration 
with  representatives  of  the  Denver,  Colorado  Court,  the  Vermont  State  Courts. 
the  Polk  County  Court,  and  the  Essex  County,  Newark,  New  Jersey  Court, 
analogous  guidelines  were  developed  and  are  now  being  implemented  in  the 
Denver  Court.  These  guideline  models  include,  for  each  class  of  offense, 
•clas.sifications  of  seriousne.ss  (on  the  one  hand)  and  of  the  offender  (with 
respect  to  prior  convictions,  legal  status,  and  other  items)  on  the  other.  A 
report  of  this  study  includes  more  detail  about  the  development  and  use  of 
these  guidelines. 

On  the  basis  of  this  experience,  I  believe  the  establishment  of  a  sentencing 
■commission  and  the  development  of  guidelines  as  proposed  in  S.1437  to  be 
feasil)le  and  to  offer  the  potential  for  markedly  increased  equity  in  sentencing. 
I  would  like  to  suggest,  however,  some  specific  changes  in  the  bill. 

In  paragraph  2006,  concerning  orders  of  restitution,  it  would  Ite  preferable 
that  line  11  read  "in  addition  to  or  instead  of"  the  .sentence  that  is  imposed. 
This  change  (i.e..  adding  "instead  of")  would  encourage  judges  to  u.se  restitu- 
tion in  appropriate  instances  as  an  altei-native  to  confinement  rather  than 
always  as  an  addition  to  other  sentences  inii)osed   fas  now  implied). 

In  paragraph  2301,  concerning  the  sentence  of  imp'-isonment,  in  sub-paragraph 
<C)  concerning  authorized  terms  of  parole  ineligibility,  the  imprisonment  that 
Diay  be  required  to  be  served  before  eligibility  for  parole  is  any  term  found 
appropriate  by  the  court  in  the  light  of  the  provisions  of  the  offense  class 
categorization,  although  no  term  of  parole  ineligibility  may  extend  into  the 
last  or.o-tenth  of  the  sentence  impo.sed.  This  has  a  potential  for  markedly 
increasing  time  to  be  served  in  confinement,  exacerbating  proMeu.s  of  prison 
over-crowding  by  increasing  sanctions  in  ways  not  apparently  intended  l)y  the 
authors  of  the  bill.  This  provision  could  very  radically  reduce  the  range  of 
discretion  of  the  Parole  Commission,  virtually  abolishing  parole.  There  is,  of 
course,  a  continuing  national  debate  on  this  topic.  Parole  boards  continue  to  be 
criticized  on  th'-ee  general  grounds.  These  have  to  do  with  procrdurcs  (including 
issues  of  fairness,  equity  and  due  process  concerns),  with  adv.Tse  effects  of 
'aicertainly,  and  with  the  issue  of  effectiveness  in  regard  to  criminal  justice 
goals.  The  first  two  issues  are  at  least  partially  addressed  by  paroling  guide- 
lines. The  general  issue  of  parole  abolishment  is  one  that  should  be  addressed 
and  resolved  by  the  Congj-oss  after  full  study  of  the  potential  con^jequences. 
It  should  not  be  resolved  by  a  sentencing  commission  such  as  in-oposed.  That  is, 
the  question  of  parole  retention  or  abolishment  is  a  critical  structural  issue 
that  will  affect  the  entire  criminal  justice  system — not  just  sentencing.  Parole 
decisions  occupy  a  keystone  po.sition  in  the  process:  and  changes  in  the 
structure  may  be  expected  to  affect  prosecution  decisions  (including  plea 
bargaining^  and  prisons  in  very  significant  ways. 


» Wilkirs,  I.pslle  T..  Kress,  Jack  M..  Gottfrcrlson,  Don  At..  Cnlfiin.  .Tnsoph  C,  mid 
Grlmnn.  Arthur  M.,  Scntencinq  Cui'ieJivei*:  Htructurirq  .Tuilirinl  DJ-^rrelioi).  Albany.  Npw 
York:  rriininni  .Tii'^tifp  ncsenrcli  Center.  Oetoher.  I'.iTfi.  See  also.  Kress.  .T:iek  M..  Wilkins. 
Leslie  T..  and  Gottfredj-on,  Don  M..  "Is  the  End  of  Judicial  Senteuciiij;  in  .Siixht?"  Judica- 
ture, 60,  5.  December,  llt76,  216-222. 


8933 

In  paragraph  2302,  concerning  imposition  of  a  sentence  of  imprisonment,  and 
sub-paragraph  (C)  it  is  indicated  that  the  court  "for  extraordinary  and  com- 
pelling reasons"  may  reduce  imprisonment  to  the  time  that  the  defendent  has 
served ;  it  would  seem  preferable  that  this  read  "the  court,  for  stated  ex- 
traordinary and  compelling  reasons  .  .  ." 

In  Chapter  35,  concerning  release  and  confinement  pending  judicial  proceed- 
ings, release  pending  trial  in  a  non-capital  case  is  discussed  in  paragraph  3502. 
Although  release  conditions  are  described  and  factors  to  be  taken  account  in 
determining  release  are  presented  generally,  it  is  not  indicated  that  guidelines 
for  these  release  decisions  are  to  be  developed  by  the  sentencing  commission. 
The  general  decision  problem  is  the  same  as  in  sentencing ;  and  there  seems 
to  be  no  reason  that  guidelines  for  pre-trial  release  cannot  be  developed, 
providing  a  specific  policy  for  use  in  determining  release  before  trial.  For 
example,  guidelines  structured  according  to  the  seriousness  of  the  alleged  offense 
and  the  liklihood  of  the  defendant's  appearance  for  trial  could  be  developed 
and  used  to  increase  equity  in  these  decisions  as  well.  Whether  or  not  such 
guidelines  should  be  developed  by  the  sentencing  commission  or  by  another 
body  is  an  issue  that  should  be  explored. 

Similarly,  in  paragraph  3603,  juvenile  delinquency  proceedings  are  discussed. 
In  determining  whether  allegedly  delinquent  youth  taken  into  custody  shall 
be  detained  or  released,  general  criteria  are  listed.  Again,  it  would  seem 
desirable  to  develop  guidelines  to  structure  and  control  this  important  decision. 
In  sub-paragraph  (E),  concerning  the  disposition  when  the  court  finds  a  youth 
to  be  a  juvenile  delinquent,  alternative  dispositions  are  noted;  but  it  is  not 
specified  that  guidelines  for  this  decision  shall  be  developed  and  promulgated 
by  the  sentencng  commission.  If  increased  equity  in  sentencing  of  adults  is 
desired,  surely  we  wish  the  same  for  children.  The  appropriate  body  for 
determining  snch  guidelines  is  again  an  important  question. 

In  paragraph  3X81,  the  consideration  of  a  prisoner  for  release  on  parole  is 
considered.  Althou!,'h  the  Parole  Commission  and  its  recent  reforms  in  parole 
dec'is'on-making  would  be  retained,  the  relation  of  that  l)ody  to  the  sentencing 
commission  seems  unclear.  Surely  there  will  be  those  who  argue  that  with  the 
Criminal  Code  Kefurm  Act  of  1977  and  c-reation  of  a  sentencing  commission, 
the  parole  function  may  i»e  eliminated.  I  believe  that  this  would  l)e  unwise 
and  that  the  present  Parole  Commission  structiire  .should  be  retained.  The 
sentencing  guidelines  can  reduce  iniwarranted  disparity,  but  they  cannot  ensure 
its  elimination.  With  nearly  400  federal  judges  interpreting  the  use  of  the 
guidelines  developed  and  promulgated  by  the  sentencing  commission,  con- 
siderable room  for  such  disparity  remains.  Envisioned  as  a  two-step  process, 
with  both  the  judiciary  and  the  paroling  authority  operating  luider  explicit 
policies,  a  coordinated  increase  in  sentencing  equity  can  l»e  foreseen.  The 
broad  limits  can  be  set  by  the  Congress,  the  sentencing  guidelines  can  some- 
what limit  and  better  control  the  exercise  of  discretion  by  the  judges,  and  a 
smaller  body,  operating  aLso  under  explicit  statements  of  policy  provided  by 
the  guidelines,  can  in  the  end  best  determine  the  actual  time  to  l»e  served  in 
prison.  If  the  Parole  Commission  were  to  be  eliminated,  it  probably  would  be 
found  necessary  to  invent  something  like  it  within  the  Bureau  of  Prisons, 
for  example,  to  determine  such  releases  as  provided  for  in  paragraph  3822, 
concerning  the  temporary  release  of  the  prisoner  for  short  terms  or  for 
participation  in  training  or  educational  programs  in  a  community  or  for  work. 

In  paragraph  091,  the  United  States  Sentencing  Commission  is  established. 
The  bill  is  silent  on  the  qualifications  of  the  nine  meml)ers  to  be  designated 
by  the  Judicial  Conference  of  the  United  States  to  serve  on  the  ."sentencing 
commission.  It  seems  highly  desirable  that  a  numlier  of  these  persons  should 
be  those  who  generally  are  involved  in  day-to-day  sentencing  or  paroling 
decisions.  But  sentencing  is  not  a  matter  of  concern  to  judges  alone.  It  may  be 
wise  that  the  commission  be  broadened  by  requiring  the  appointment  of  a 
.small  number  of  additional  members  representing  other  aspects  of  the  criminal 
justice  system,  including  the  areas  of  prosecution  and  corrections.  Such 
appointments  could  be  made  by  the  President  of  the  United  States,  with  the 
advice  and  consent  of  the  Senate. 

In  sub-paragraph  (F)  of  paragraph  994  concerning  the  duties  of  the 
commission,  it  is  indicated  that  the  sentencing  commission  "shall  promulgate 
and  distrilmte  to  the  United   States  Parole   Commission"   guidelines   .   .   .   for 


8934 

use  ...  in  determining  whether  to  parole  a  prisoner  and  in  determining  the 
length  of  the  term  and  conditions  of  parole.  If  this  section  stands,  it  would 
seem  desirable  to  have  one  or  more  members  of  the  parole  commission  on  the 
sentencing  commission.  It  may  be  preferable  to  simply  leave  the  present  parole 
commission  structure  intact. 

Two  aspects  of  the  powers  of  the  commission,  spelled  out  in  paragraph  995, 
deserve  rather  to  be  listed  as  duties  of  that  commission  in  paragraph  994. 
Particularly,  it  should  be  the  duty  of  the  commission  to  monitor  the  use  of 
guidelines,  including  the  giving  of  reasons  outside  the  ranges  specified,  and  the 
conducting  of  regular  reviews,  in  order  to  modify  the  policy  statements  as 
needed.  No  matter  how  excellent  the  guidelines  initially  developed  may  be,  as 
changes  occur  in  the  environment  in  which  they  are  imbedded,  they  will  become 
out  of  date.  The  guidelines  structure  probably  should  not  be  considered  if  it 
does  not  have  built  into  it  a  system  for  the  guidelines  modification.  Thus,  it  is 
necessary  that  the  sentencing  commission  be  admonished  to  invent  the  guide- 
lines system  as  an  evolutionary  process.  To  be  most  useful,  the  guidelines 
procedures  themselves  ought  to  be  continuously  under  review  and  the  results 
of  such  review  must  determine  modifications  in  the  original  design  of  the 
guidelines  system.  The  guidelines  system  may  be  designed,  but  there  must 
also  be  designed  a  system  to  continuously  redesign  the  design.  Similarly,  the 
commission  is  empowered,  in  paragraph  995,  to  establish  a  research  and 
development  program  and  to  conduct  training  and  short  term  instruction  for 
judicial  and  probation  personnel  and  others.  These  functions  too  should  be 
listed  as  duties. 

In  summary,  the  concept  of  decision  guidelines  has  been  demonstrated  to  be 
feasible  in  the  area  of  parole  and  in  at  least  one  state  court.  Such  guidelines 
have  considerable  potential  for  formulation  of  a  consistent  general  sentencing 
policy.  By  articulating  the  weights  given  to  the  main  criteria  considered,  it 
can  allow  interested  publics  to  assess  the  rationality  and  appropriateness  of 
the  policy  set  out  by  the  judiciary  and  paroling  authorities.  In  individual  case 
decision-making,  the  method  provides  for  structuring  and  controlling  discretion 
without  eliminating  it  and  thereby  holds  considerable  promise  for  sentencing 
improvement  particularly  with  respect  to  issues  of  fairness  or  equity. 

I  would  like  to  congratulate  Senators  McClellan  and  Kennedy  for  inclusion 
of  this  concept  in  S.1437  and  congratulate  the  committee  for  its  attention  ta 
the  bill  as  a  whole  including  this  needed  and  promising  sentencing  reform. 
I  urge  you  to  include  the  sentencing  commis.sion  and  guidelines  concept  in  the 
final  version,  with  the  modifications  suggested.  I  very  much  appreciated  the 
opportunity  to  testify.  Thank  you. 

Senator  Hatch.  Yon,  of  course,  have  extensive  experience  in  the 
practical  difficulties  of  formnlatin<2;  and  implementinfjj  o:uidelines.  I 
think  yon  have  described  the  proven  feasibility  of  sentencing  guide- 
lines in  other  jurisdictions. 

Do  you  think  the  guidelines  contemplated  by  this  bill  can,  in  fact, 
be  promulgated  and  used  by  the  Federal  courts  ? 

Mr.  GoTTFREDSON.  I  do  believe  it  is  a  feasible  thing.  I  believe  it  is  a 
complex,  difficult  task. 

I  note  with  some  trepidation  the  24  months  at  the  end  of  the  bill 
when  this  would  take  effect. 

I  believe  that  could  be  realistic.  I  think  you  would  have  to  insure 
adequate  funding  for  that  exercise.  I  believe  that  the  best  develop- 
ment of  those  guidelines,  no  matter  what  the  composition  of  the  sen- 
tencing commission,  will  necessarily  involve  active  collaboration  by 
judges  in  that  activity.  Tt  will  involve  a  good  bit  of  educational  work 
and  training  about  the  concept  with  judges.  It  will  require  quite  a 
lot  of  data  collection  and  analysis. 

I  think  it  is  conceivable  that  good  progress  can  be  made  during  that 
2-year  period.  It  is  at  least  conceptually  possible  that  that  could  be 
sufficient  time. 


8935 

If  tlie  committee  and  the  Congress  were  to  take  me  quite  seriously 
in  the  other  recommendations  about  other  parts  of  the  criminal  justice 
system  and  the  juvenile  justice  system,  I  think  that  becomes  con- 
siderably complex.  I  think  that  probably  it  would  be  necessary  to 
embark  upon  separate  studies  in  each  of  those  areas  to  determine  how 
those  guiclelines  ought  to  be  developed  and  used. 

Senator  Hatch.  Thank  you  again.  We  appreciate  your  appearance 
and  your  testimony  here  today. 

We  will  recess  these  hearings  until  10  a.m.  tomorrow. 

[Whereupon,  at  11 :  55  a.m.,  the  meeting  was  recessed.] 


92-465—77 24 


HEARLNG  ON  REFORM  OF  THE  FEDERAL 
CRIMINAL  LAWS 


THURSDAY,  JUNE  9,   1977 

•  U.S.  Sexate, 

Subcommittee  on  Criminal  Laws  and  Procedure 

OF  THE  Committee  on  the  Judiciary, 

Washington^  D.C. 

The  subcommittco  met.  pursuant  to  recess,  at  10  a.m.  in  room 
2228,  Dirksen  Senate  Office  Buildin;":,  Hon.  Orrin  Hatch  (acting 
chairman  of  the  subcommittee)  presiding. 

Present :  Senator  Thurmond. 

Staff  presont :  Paul  C.  Suuimitt.  chief  counsel;  D.  Eric  Pluhman. 
minority  counsel :  Paul  H.  Robinson,  counsel ;  Michael  jSI.  Hunter, 
legislative  counsel  to  Senator  Hatch;  and  Mabel  A.  Downey,  chief 
clerk. 

Senator  Hatch  [acting  chairman].  The  subcommittee  hearing  will 
come  to  order. 

We  have  had  exceptional  witnesses  this  week  in  what  we  consider 
to  be  extremely  urgent  and  important  changes  in  the  criminal  laws  of 
the  United  States  of  America,  in  particular  S.  1437  and  other  pro- 
posed legislation  we  are  considering  at  this  time. 

"We  are  particularly  honored  to  have  another  distinguished  group 
of  witnesses  this  morning  to  testify  before  the  subcommittee. 

We  will  begin  this  morning  with  Mr.  Harold  D.  Koffsky,  a  con- 
sultan.t  to  the  Committee  on  the  Administration  of  the  Criminal  Law, 
who  will  introduce  Judge  Zirpoli's  statement. 

We  will  then  hear  from  Judge  Gerald  B.  Tjoflat,  chairman  of  the 
Committee  on  the  Administration  of  the  Probation  System,  LT.S. 
Court  of  Appeals  for  the  Fifth  Circuit. 

Following  him,  we  will  call  on  Judge  William  H.  Webster,  of  the 
Advisory  Committee  on  Criminal  Rules  of  the  U.S.  Court  of  Appeals 
for  the  Eighth  Circuit. 

We  are  very  honored  to  have  these  men  with  us  this  morning,  rep- 
resenting tlie  Judicial  Conference  of  the  United  States. 

]Mr.  Koffsky? 

(8937) 


8938 

STATEMENT  OF  HON.  ALFONSO  J.  ZIRPOII,  CHAIRMAN,  COMMIT- 
TEE ON  THE  ADMINISTRATION  OF  THE  CRIMINAL  LAW,  JUDICIAL 
CONFERENCE  OF  THE  UNITED  STATES  AND  JUDGE,  U.S.  DISTRICT 
COURT  FOR  THE  NORTHERN  DISTRICT  OF  CALIFORNIA,  REPRE- 
SENTED BY  HAROLD  D.  KOFFSKY,  CONSULTANT  TO  THE  COMMIT- 
TEE ON  THE  ADMINISTRATION  OF  THE  CRIMINAL  LAV7,  JUDICIAL 
CONFERENCE  OF  THE  UNITED  STATES 

Mv.  KoFFSKY.  Thank  you,  Senator. 

Judge  Zirpoli  has  asked  me  to  come  up  here  and  present  his  state- 
ment for  the  record. 

Senator  PIatch.  Without  objection,  it  will  be  entered  into  the  record 
at  the  conclusion  of  your  testimony. 

Mr.  KoFFSKY,  Judge  Zirpoli  wrote  the  chairman  of  the  subcommit- 
tee expressing  his  extreme  regrets  at  not  being  able  to  be  here  but 
explained  that  his  judicial  commitments  prevented  liim  from  doing  so 
and,  also,  that  anything  he  might  say  would  reiterate  the  statements 
of  Judge  Tjoflat  and  Judge  Webster. 

He  endorses  everyiiiing  they  are  going  to  say.  Up  until  now.  lie  has 
been  the  spokesman  for  the  Judicial  Conference  on  S.  1437  and  of 
predecessors.  But  these  other  committees  have  particular  expertness 
in  the  field,  and  he  felt  that  it  would  save  the  time  of  this  committee, 
if  he  deferred  to  their  statements. 

Senator  Hatch.  Thank  you,  Mr.  Koffsky. 

[Material  follows :] 

Statement  of  Alfonso  J.  Zirpoli,  Senior  United  States  District  Judge  fob  the; 

Northern  District  of  California 

Mr.  Chairman,  I  am  Senior  United  States  District  Judge  Alfonso  J.  Zirpoli, 
Chairman  of  the  Committee  on  the  Administration  of  the  Criminal  Law  of  the 
Judicial  Conference  of  the  United  States.  As  such  representative  of  the  Judicial 
Conference,  I  wi.sh  to  thanlc  the  Chairman  for  the  privilege  accorded  the 
judiciary  to  express  its  views  on  Senate  bill  1437. 

Since  January  of  1971,  at  the  direction  of  the  Judicial  Conference,  our 
Committee  has  been  engaged  in  a  continuous  study  of  the  Brown  Commission 
Report,  Senate  bill  1,  and  the  many  House  versions  thereof,  and  we  are 
presently  engaged  in  a  similar  study  of  Senate  bill  1437,  which  should  be 
completed  by  late  July  of  this  year  for  submission  to  the  Judicial  Conference 
at  its  September  meeting.  Hence,  in  commenting  on  the  bill  before  you  my 
colleagues  and  I  must  for  the  most  part  utilize  past  positions  of  the  Conference. 

Commencing  in  April,  1973,  we  have  made  five  reports  to  the  Senate 
Judiciary  Committee  and  in  March  of  this  year  we  submitted  a  report  to  the 
House  Judiciary  Committee.  In  those  reports  the  Committee  on  the  Ad- 
ministration of  the  Criminal  Law  focused  its  primary  attention  on  the 
provisions  of  Senate  1,  now  incorporated  in  Senate  1437,  covering  "General 
I'rovisions  and  I*rinciples"  found  in  Part  I  and  "Offen.ses  of  General  Applica- 
tion" found  in  Chapter  10  of  Part  II.  On  the  provisions  of  the  bill  relating  to 
sentencing,  the  Federal  Rules  of  Criminal  Procedure  and  utilization  of 
magistrates  we  have  bowed  to  the  superior  expertise  of  the  Conference  com- 
mittees having  primary  responsibility  in  these  respective  areas.  Hence,  the 
position  of  the  judiciary  on  sentencing  and  appellate  review  of  sentences  will 
be  presented  at  this  meeting  by  .Tudge  Gerald  B.  Tjoflat,  a  member  of  the 
Conference  Committee  on  the  Administration  of  the  Probation  System,  and 
Judge  William  B.  Webster,  a  member  of  the  Conference  Advisory  Committee 
on  the  Criminal  Rules. 

While  our  Committee  has  yet  to  complete  Its  study  of  Senate  1437  and  submit 
its  recommendations   to   the   Conference,   I   feel   reasonably   certain   that   our 


8939 

xecommendations  will  conform  to  those  to  be  made  by  my  colleagues,  Judges 
Tjoflat  and  Webster. 

With  your  kind  indulgence,  I  should  like  to  make  one  further  observation. 
Because  the  primary  concern  of  our  Committee  centers  on  Part  I  and  Chapter 
10  of  Part  II  of  the  bill  and  the  impact  that  the  interpretation  and  execution 
of  such  provisions  on  the  day-to-day  operations  of  the  courts  and  the  fairness 
of  their  procedures,  we  trust  and  respectfully  pray  that  before  this  committee 
gives  its  final  approval  to  Senate  bill  1437,  it  will  give  further  consideration 
to  the  views  and  recommendations  made  by  the  Conference  in  its  last  report 
relating  to : 

1.  General  Principles  of  Construction,  §  112  ; 

2.  Culpable  States  of  Mind,  §  302  ; 

3.  Bars  to  Prosecution,  §  511(e)  ; 

4.  Criminal  Conspiracy,  §  1002  ; 

5.  Criminal  Solicitation,  §  1003  ; 

6.  The  Federal  Civil  Commitment  of  Offenders  with  Mental  Disease  or  Defect, 
§§3611-3617; 

7.  The  need  for  amendments  to  the  Bail  Reform  Act  of  1966,  §  3502  ; 

8.  The  need  to  amend  the  Speedy  Trial  Act  of  1974  to  make  the  exclusions  of 
section  3161  (h)  applicable  to  the  interim  time  limits  of  section  3164  ; 

9.  The  failure  of  Senate  1437  to  include  the  provisions  of  the  Youth  Corrections 
Act  whi'^h  would  give  the  courts  discretionary  authority  to  set  aside  convictions 
Tinder  appropriate  circumstances ;  and 

10.  The  effective  date  of  the  proposed  Act. 

Mr.  Harold  D.  Koffsky,  consultant  to  our  Committee  who  submits  this  state- 
ment in  my  behalf,  is  prepared  to  offer  any  assistance  you  or  the  members  of 
your  staff  may  require  of  him  and  I  shall,  of  course,  be  happy  to  comply  with 
any  request  you  may  make  of  me. 

Respectfully  submitted. 

STATEMENT  OF  HON.  GERALD  B.  TJOFLAT,  MEMBER,  COMMITTEE 
ON  THE  ADMINISTRATION  OF  THE  PROBATION  SYSTEM  OF  THE 
JUDICIAL  CONFERENCE  OF  THE  UNITED  STATES  AND  JUDGE, 
US.  COURT  OF  APPEALS,  FIFTH  CIRCUIT 

Judge  Tjofk\t.  Thank  you,  Mr.  Chairman. 

I  am  Gerald  B.  Tjoflat,  and  I  have  been  a  U.S.  Circuit  Judge  for 
the  Fifth  Circuit  since  December  1975.  I  served  as  United  States  Dis- 
trict Judge  for  the  Middle  District  of  Florida  from  October  1970 
until  my  appointment  to  the  appellate  bench.  From  June  1968  until 
October  1970,  I  was  a  judge  of  the  Circuit  Court,  Fourth  Judicial 
■Circuit  of  Florida. 

Since  January  of  this  year,  I  have  been  a  member  of  the  Advisory 
Corrections  Council  authorized  by  18  U.S.C.  5002.  Since  January 
1973, 1  have  been  a  member  of  the  Judicial  Conference  Committee  on 
the  Administration  of  the  Probation  System. 

The  Probation  Committee  was  established  as  a  standing  committee 
of  the  Conference  in  1963.  It  has  oversight  responsibility  for  the  or- 
ganization and  work  of  the  federal  probation  system  and  the  formu- 
lation and  conduct  of  sentencing  institutes  for  judges  and  others,  as 
authorized  by  28  U.S.C.  334. 

As  a  member  of  that  committee  and  at  the  request  of  its  chairman, 
I  appear  before  you  today  to  address  S.  1437,  a  bill  to  codify,  revise, 
and  reform  the  federal  criminal  code. 

I  have  reviewed  those  portions  of  S.  1437  that  have  reference  to  the 
■conr-erns  of  the  Probation  Committee:  namely,  the  sentencing  pro- 
visions and  the  provisions  relating  to  the  agencies  that  carry  out  the 


8940 

sentences — tlie  Federal  Probation  System,  the  Bureau  of  Prisons,  and 
the  U.S.  Parole  Commission. 

At  vonr  reqiiest.  I  shall  limit  mv  testimony  to  sections  appearing^  at 
pa<res'l67  to  179,  256  to  274,  and  301  to  307  of  the  bill.  I  shall  comment 
on  those  sections  in  the  order  in  wliich  tlicy  appear. 

As  you  know,  neither  the  Judicial  Conference  nor  the  Committee 
on  the  Administration  of  the  Probation  System  has  had  the  oppor- 
timity  to  consider  or  render  an  expression  of  views  on  this  legislative 
proposal.  However,  the  committee  has  considered  previous  versions  of 
this  legislative  proposal  and  made  certain  recommendations. 

Throughout  my  testimony.  I  shall  identify  those  statements  that 
are  based  on  previous  recommendations  by  the  committee  or  the 
conference. 

I  have  reviewed  all  of  part  III,  pages  167  to  179.  and  shall  restrict 
my  comments  to  those  sections  where  I  recommend  change. 

Section  2001,  authorized  sentences,  subsection  (b)  authorizes  sen- 
tences for  an  individual  of  probation,  fine,  or  imprisonment.  Since  its 
review  of  the  report  of  the  Brown  Commission  and  the  subseauent 
legislative  proposals,  the  Probation  Committee  has  consistently  rec- 
ommended that  there  be  provision  for  a  sentence  of  unconditional  dis- 
charge without  imprisonment,  fine,  or  probation. 

The  courts  presently  have  the  power  to  effect  such  a  sentence  by 
imposing  imprisonment  for  a  period  of  less  than  1  full  day,  order- 
ing ])ro]iation  for  1  day.  or  im])osing  a  nominal  fine.  A  sentence  of 
unconditional  discharge  would  take  public  notice  of  and  authorize 
this  informal  practice. 

Senator  Hatch.  I  think  that  is  a  very  good  point.  I  am  sure  the 
committee  will  be  cognizant  of  your  suggestions  in  that  regard. 

Judge  Tjoflat.  We  don't  think  it  would  disturb  the  spirit  of  tlie 
bill  at  all. 

Senator  Hatch.  And  it  certainly  allows  the  judge  some  leeway  in  a 
situation  whicli  merits  that  type  of  ti-eatment. 

I  commend  you  for  bringing  that  to  the  attention  of  the  comniittee. 

Judge  Tjoflat.  Thank  you. 

Subsection  Ca)  of  section  2002,  presentence  reports,  indicates  that 
a  piobation  ofRoer  shall  make  a  presentence  investigation  of  a  defend- 
ant "found  guihy  of  nn  offense." 

I  recommend  striking  the  language  "found  guiltv  of  an  ofTei\se.'^ 
thereby  removing  the  limitation  that  a  presentence  investigation  can 
be  conducted  only  on  a  convicted  person. 

l?ule  32  of  the  Federal  Rules  of  Ci-iminal  Procedure  authorizes  tlie 
conduct  of  a  presentence  investigation  prior  to  conviction.  The  only 
restriction  has  been  that  the  report's  contents  could  not  be  disclosed 
to  anyone,  including  the  court,  before  conviction. 

"Recont  amendments  to  rule  32  and  T'ule  11  provide  for  the  investiga- 
tion to  be  conducted  and  the  report  to  be  considered  in  connection 
with  a  plea  agreement.  In  actual  practice,  approximatoly  one-third  of 
all  presentence  investigations  are  conducted  prior  to  conviction. 

Subsection  (c)  provides  tliat  as  part  of  the  presentence  examina- 
tion process,  the  court  may  order  a  psychiatric  examination  by  "two 
or  more  examiners." 

I  recommend  that  provision  be  changed  to  "examination  by  one  or 
more  examiners  where  they  is  no  issue  of  mental  disease  or  defect  but 
the  court  simply  wants  psychiatric  guidance  in  shaping  the  sentence." 


8941 

Speaking  from  my  experience  as  a  district  court  judge,  one  psy- 
chiatric report  should  be  sufficient  in  a  case — except  the  most  un- 
usual— that  reaches  the  sentencing  stage.  Issues  of  mental  disease  or 
defect  have  generally  been  resolved  before  conviction. 

Senator  Hatch.  I  think  that  is  another  excellent  point,  and  I  hope 
that  the  staff  will  look  at  that. 

We  should  be  able  to  have  preguilty  plea  reports  or  presentence 
reports  as  needed  by  the  courts. 

Judge  Tjofi^vt.  Subsection  (a)  (3)  of  section  2003,  imposition  of  a 
sentence,  requires  that  the  court  consider  the  sentencing  range  estab- 
lished by  the  sentencing  commission  in  effect  "on  the  date  the  defend- 
ant committed  the  offense." 

It  would  seem  more  practical  for  the  court  to  consider  guidelines 
that  were  in  effect  at  the  time  of  sentencing. 

Determining  what  guidelines  were  in  effect  at  the  time  of  the  offense 
could  prove  difficult  if  there  had  been  a  significant  delay  in  prosecu- 
tion and  conviction.  Using  the  incorrect  guidelines  could  result  in 
appeal. 

Finally,  it  seems  that  the  whole  justification  for  guidelines  is  based 
on  their  currency.  Guidelines  are  supposed  to  reflect  the  best  informa- 
tion available  at  that  time  about  the  effectiveness  of  sentencing.  It 
would  seem  to  me  that  using  old  guidelines  in  current  sentencing 
could  increase  rather  than  decrease  disparity. 

Subsection  (b)  requires  the  court  to  state  general  reasons  for  im- 
position of  a  particular  sentence  and,  if  the  sentence  is  outside  the 
range  of  the  guidelines  issued  by  the  sentencing  commission,  the  rea- 
son for  imposition  of  a  sentence  outside  the  range. 

The  Probation  Committee  has  consistently  opposed  the  requirement 
for  statements  of  reason  for  particular  sentences  as  provided  by  the 
previous  versions  of  this  legislative  proposal. 

I  note  that  the  language  of  subsection  (b)  calls  for  "general  rea- 
sons" as  opposed  to  the  very  detailed  and  specific  reasons  that  have 
been  required  in  the  previous  versions  and  would  have,  without  ques- 
tion, been  an  open  invitation  to  wholesale  appeal. 

Unfortunately,  the  committee  as  a  whole  has  not  had  an  oppor- 
tunity to  review  this  particular  section.  I  recognize  that  it  is  a  vital 
element,  and  I  am  certain  they  would  find  it  more  acceptable  than  the 
previous  proposal. 

Section  2006,  order  of  restitution,  provides  that  in  addition  to  any 
other  sentence  that  is  imposed,  the  court  can  order  that  tlie  defendant 
"make  direct  restitution  to  a  victim"  in  an  amount  and  manner  set  by 
the  court. 

I  recommend  that  the  word  "direct"  be  striken,  thereby  allowing 
the  court  to  order  collection  and  disbursement  by  the  clerk  of  the 
court.  This  will  provide  for  the  monitoring  process  necessary  for 
notification  of  the  Attorney  General  in  the  event  the  defendant  fails 
to  pay  the  restitution. 

Subsection  (a)  of  section  2101,  sentence  of  probation,  establishes 
restrictions  on  the  court's  ability  to  sentence  a  defendant  to  a  term  of 
probation.  The  Probation  Comm-ittee  has  consistently  recommended 
that  no  offender  should  be  excluded  from  consideration  for  probation. 
Therefore,  I  recommend  striking  the  three  general  restrictions. 

Subsection  (b)  (1)  establishes  a  minimum  term  of  1-year  probation 
for  a  felony.  Here,  again,  the  committee  feels  that  the  sentencing 


8942 

judpe  should  have  the  latitude  to  set  any  term  of  probation  within  a 
maximum  period  authorized  by  law.  Therefore,  I  recommend  elimi- 
nating the  1-year  minimum  term. 

Subsection  (a)  of  Section  2103,  Conditions  of  Probation,  provides 
one  mandatory  condition  of  probation :  that  the  defendant  not  com- 
mit another  crime  during  the  term  of  probation. 

I  recommend  the  inclusion  of  the  following  conditions  as  manda- 
tory conditions :  Report  to  a  probation  officer  at  reasonable  times  as 
directed  by  the  court  or  the  probation  officer;  Permit  the  probation 
officer  to  visit  at  reasonable  times  and  hours  at  the  place  of  residence 
or  elsewhere;  Answer  truthfully  all  reasonable  inquiries  by  the  pro- 
bation officer ;  Notify  the  probation  officer  promptly  of  any  change  in 
situation,  residence,  or  employment;  Obtain  permission  of  probation 
officer  to  leave  the  judicial  district;  Follow  the  probation  officer's 
instructions ;  and  Inform  the  probation  officer  immediately  if  arrested 
or  questioned  by  a  law  enforcement  officer. 

These  are  the  conditions  of  probation  that  the  committee  has  rec- 
ommended that  the  district  courts  adopt  as  general  conditions  of  pro- 
bation. If  these  conditions  are  adopted  as  mandatory  conditions,  you 
should  delete  numbers  15  through  18  of  the  discretionary  conditions 
listed  at  subsection  (b)  of  this  section. 

With  further  regard  to  the  discretionary  conditions  at  subsection 
(b),  I  recommend  the  inclusion  of  one  that  would  provide  for  par- 
ticipation in  an  alcohol  or  drug  treatment  program  as  a  condition  of 
probation  in  an  appropriate  case. 

Subsection  (b)  of  section  2104,  running  of  a  term  of  probation, 
indicates  that  the  term  of  probation  shall  "not  run  during  any  period 
in  which  the  defendant  is  imprisoned  in  connection  with  a  conviction 
of  a  Federal,  State,  or  local  crime." 

This  section  should  be  modified  to  make  it  clear  that  this  does  not 
include  a  period  of  imprisonment  imposed  as  a  condition  of  probation 
under  section  2103  (b)(ll).  There  should  be  some  guidance  as  to 
what  constitutes  imprisonment. 

Is  it  the  intent  of  Congress  that  probation  should  be  tolled  during 
short-term  sentences  for  minor  offenses?  Computing  tlie  term  of  a 
probationer  confined  for  short  terms  for  traffic  or  similar  petty  of- 
fenses could  present  an  administrative  problem.  It  could  create  honest 
uncertainty  in  everyone's  mind  whether  the  offender  was  still  on  pro- 
l)ation  and  could  become  a  crucial  issue  in  determining  jurisdiction  at 
the  time  of  a  subsequent  violation.  I  recommend  the  court  retain  au- 
thority to  toll  the  term  of  probation. 

Subsection  (c)  prohibits  the  court's  terminating  probation  in  a 
felony  case  until  after  one  year.  The  Probation  Comniiftee  has  recom- 
mended that  the  one-year  limitation  be  stricken  and  that  the  court 
liave  the  latitude  to  terminate  probation  at  any  time  in  any  case. 

Section  2302,  imposition  of  a  sentence  of  imprisonment,  subsection 
(c)  gives  the  court  authority  to  reduce  the  imposed  term  of  imprison- 
ment or  term  of  parole  inelJTibility  to  time  served  upon  motion  of  the 
Director  of  the  Bureau  of  Prisons  and  for  "extraordinary  and  com- 
pelling reasons." 

I  recommend  that  the  words  "extraordinarv  and  compelling  rea- 
sons" be  stricken.  This  will  leave  the  court  with  the  authority  it  now 
has  under  the  recently  enacted  Parole  Commission  and  Reorganiza- 
tion Act,  18  U.S.C.  4205. 


8943 

I  have  reviewed  all  of  chapter  38,  pages  258  to  274,  and,  again,  shall 
comment  on  only  those  sections  where  I  recommend  change. 

Section  3801,  supervision  of  probation:  I  suggest  you  amend  this 
section  to  provide  for  supervision  of  a  juvenile  v/ho  has  been  placed 
on  probation  under  chapter  36. 

Section  3802,  subsection  (a),  appointment  of  probation  officers,  pro- 
vides that  a  court  may,  in  its  discretion,  remove  a  probation  ouicer 
previously  appointed.  The  Probation  Committee  has  previously  rec- 
ommended that  this  provision  be  amended  by  striikng  "in  its  discre- 
tion" and  substituting  "for  cause." 

Subsection  (c)  provides  that  if  a  court  appoints  more  than  one 
probation  officer,  one  may  be  designated  by  the  court  as  chief  proba- 
tion officer  and  shall  direct  the  work  of  all  probation  officers  serving 
in  the  court. 

The  Probation  Committee  recommends  that  you  strike  the  phrase 
"in  the  court"  at  the  end  of  that  sentence  and  substitute  "in  the  ju- 
dicial district."  This  will  make  clear  that  there  will  be  only  one  chief 
probation  officer  in  a  judicial  district. 

Finally,  I  would  ask  that  you  add  to  that  section  the  authority  for 
the  appointment  of  volunteer  probation  officers  now  found  in  18 
U.S.C.3654. 

The  Federal  Probation  System  has  a  long  history  of  significant  con- 
tributions by  volunteers,  including  persons  serving  in  that  capacity 
while  under  internship  programs  for  advanced  degrees  in  the  social 
sciences.  As  you  know,  there  is  a  prohibition  against  accepting  volun- 
teer services  without  statutory  authority.  The  Probation  Committee 
does  not  want  to  lose  that  authority. 

Subsection  (g)  of  section  3803,  duties  of  probation  officers,  requires 
a  probation  officer  to  "perform  any  duty  with  respect  to  a  person  on 
parole  that  the  Parole  Commission  may  designate." 

The  committee  has  recommended  that  this  subsection  be  amended  to 
further  provide  that  a  probation  officer  "perform  preparole  investiga- 
tions and  any  duty  with  respect  to  a  person  on  parole,  and  so  forth." 

Section  3832(b)  provides  that  a  probation  officer  shall  prepare  a 
preparole  report  on  request  of  the  Parole  Commission.  I  feel,  how- 
•ever,  that  this  responsibility  should  be  stated  specifically  within  this 
list  of  duties  of  probation  officers. 

I  recommend  another  subsection  requiring  that  a  probation  officer 
"shall,  upon  request  of  the  Attorney  General  or  his  designee,  furnish 
information  about,  and  supervision  of,  persons  within  the  custody  of 
the  Attorney  General  while  on  work  release,  furlough,  or  other  au- 
thorized release  from  their  regidar  place  of  confinement." 

This  additional  duty  was  considered  in  the  form  of  a  legislative 
proposal  drafted  by  the  Department  of  Justice  and  approved  by  the 
Judicial  Conference  at  its  April  1972  meeting.  Incorporation  of  this 
duty  in  the  statute  would  give  authority  to  actual  practice.  Probation 
officers  for  some  time  have  performed  this  duty. 

Section  3805,  transfer  of  jurisdiction  over  a  probationer,  provides 
a  procedure  for  the  transfer  of  jurisdiction  of  a  probationer  from  one 
district  to  any  other  district  to  which  he  "is  required  to  proceed  as  a 
condition  of  his  probation." 

This  language  is  restrictive  and  does  not  cover  the  majority  of 
instances  where  a  transfer  from  one  district  to  another  is  not  effected 


8944 

as  a  condition  of  probation.  I  recommend  that  you  substitute  the  Avord 
''goes"  for  "is  required  to  proceed  as  a  condition  of  his  probation." 

Section  3806,  arrest  and  return  of  a  probationer,  provides  for  the 
arrest  of  a  probationer  and  his  immediate  return  before  the  court 
having  jurisdiction.  I  find  no  provision  for  the  issuance  of  a  summons 
or  warrant  for  probation  violation. 

Therefore,  I  recommend  the  following  language  which  is  a  modifi- 
cation of  that  now  found  in  18  U.S.C.  3653 : 

At  any  time  within  the  probation  period,  the  court  having  jurisdiction  over 
the  probationer  may  issiie  a  summons  or  a  warrant  for  his  arrest  for  violation 
of  probation  occurring  during  the  probation  period.  A  probationer,  when  arrested 
for  violation  of  probation,  shall  be  taken  without  unnecessary  delay  before  the 
court  having  jurisdiction  over  him. 

I  recommend  the  addition  of  two  sections  to  this  subchapter.  The 
first  relates  to  what  I  assume  was  an  omission  in  the  drafting  of  the 
proposal — the  duties  of  the  Director  of  the  Administrative  Office  of 
the  United  States  courts  with  relationship  to  the  Federal  probation 
system  as  found  now  at  18  U.S.C.  3656.  This  appeared  in  previous 
versions  of  this  proposal. 

I  recommend  that  the  entire  section  18  U.S.C.  3656  be  included  at 
this  point. 

The  committee  has  recommended  one  additional  duty ;  that  is,  that 
the  director  be  required  to : 

Collect,  publish,  and  disseminate  to  the  U.S.  Sentencing  Commission — to  each 
judge  and  probation  officer — statistical  and  other  information  concerning  Federal 
sentencing  practices,  including,  to  the  extent  possible,  information  setting  out 
by  category  the  sentencing  practices  in  each  district,  in  each  circuit,  and  in 
the  nation  with  regard  to  persons  with  similar  offenses  under  similar  aggravat- 
ing or  mitigating  cii'cumstances. 

I  recommend  an  additional  subsection  under  the  duties  of  the  Direc- 
tor of  the  Administrative  Office ;  that  is,  that  he — 

May  operate  or  contract  for  the  operation  of  appropriate  facilities  and 
services  for  the  care  of  probationers  or  parolees,  including,  but  not  limited  to, 
residential  halfway  houses,  addict  and  alcoholic  treatment  centers,  counseling 
services,  employment  training,  and  placement;  may  arrange  and  pay  for 
emergency  aid  and  shelter ;  and  may  purchase  the  implements  of  employment. 

The  Judicial  Conference  at  its  September  1075  meeting  was  in- 
formed that  tl)(>  Prol)ation  Couunittee  had  endorsed  in  principle  the 
concept  of  providing  supportive  services  to  persons  on  probation  or 
pai'ole  through  contract  arrangements.  The  Congress  has  expressed 
policy  in  this  area  through  title  TI  of  the  Speedy  Trial  Act  extending 
limited  contract  authority  to  tlie  probation  system  for  persons  on 
pretrial  release. 

The  committee  has  had  the  continuing  concern  that  a  person  par- 
ticipating in  a  program  of  rehabilitation  under  a  contract  arrange- 
ment, while  in  pretrial  release,  could  not  continue  the  treatment 
program  when  placed  on  probation. 

A  specific  example  is  the  need  for  contract  authority  in  drtig  treat- 
ment programs.  These  programs  for  persons  on  probation  or  parole 
are  now  provided  bv  the  Bureau  of  Prisons  under  authority  contained 
in  the  Probation  Act,  18  TLS.C.  3051,  the  parole  laws.  IS  U.S.C.  4209, 
or  the  criminal  ]irovisions  of  the  Narcotic  Addict  Eehabilitation  Act, 
18  T"^.S.C.  4255.  I  cannot  find  that  any  of  these  provisions  are  carried 
forward. 


8945 

There  should  be  specific  provision  for  these  services  somewhere  in 
this  legislative  proposal. 

The  committee  has  informed  the  Judicial  Conference  at  its  April 
1976  meeting  of  its  view  that  the  provision  of  drug  treatment  services 
seems  to  be  a  function  more  appropriate  to  the  executive  branch  than 
the  judicial  branch. 

We  recognize,  however,  that  the  responsibility  for  persons  under 
probation  and  parole  rests  with  tlie  federal  probation  system  and  that 
drug  treatment  services  are  necessary  for  the  proper  operation  of  the 
probation  system.  Aside  from  the  issue  of  who  provides  them,  the 
services  must  be  available. 

Finally,  I  recommend  that  you  make  provision  for  setting  aside  the 
convictions  of  probationers  who  are  successful  on  probation. 

I  have  noted  that  this  legislative  proposal  does  not  carry  forward 
the  Youth  Corrections  Act.  One  vital  element  of  that  act  should  be 
carried  forward,  and  that  is  the  ability  to  set  aside  a  conviction  in  an 
appropriate  case. 

The  committee  has  recommended,  and  the  Judicial  Conference  has 
approved,  a  draft  legislative  proposal  that  was  introduced  but  not 
acted  on  in  the  past  session  of  Congress.  I  would  recommend  that  this 
additional  section  provide  that : 

TTpon  the  unconditional  discharge  of  an  offender  sentenced  to  pro- 
bation, the  court  may  thereafter  in  its  discretion  set  aside  the  convic- 
tion and  issue  to  the  offender  a  certificate  to  that  effect. 

In  the  case  of  an  offender  on  whom  no  sentence  of  imprisonment  or 
probation  is  imposed,  the  court  after  the  expiration  of  two  years  from 
the  date  of  conviction,  in  its  discretion  may  set  aside  the  conviction 
and  issue  to  the  offender  a  certificate  to  that  effect. 

A  conviction  so  set  aside  by  this  section  shall  not  constitute  a  con- 
viction within  the  meaning  of  anv  law  or  regulation  of  the  United 
States. 

This  additional  section  would  allow  for  the  setting  aside  of  convic- 
tions for  probationers,  regardless  of  age.  It  would  provide  an  incen- 
tive to  offenders  to  succeed  on  probation  and  would  partially  alleviate 
the  restrictions  which  are  imposed  on  individuals  previously  con- 
victed of  a  felony. 

lender  the  present  system,  life-long  disabilities  are  indiscriminately 
applied  as  bars  to  employment,  banking,  credit,  and  licensing.  Thus, 
an  ex-offender  often  finds  it  impossible  to  compete  for  employment  or 
in  business,  even  though  no  prison  term  was  imposed. 

.Vs  a  practical  matter,  pardons  are  unavailable  to  many  individuals 
eligible  for  such  relief.  This  additional  section  would  be  a  modest  step 
to  provide  some  relief. 

The  relief  is  discretionary  on  the  part  of  the  court.  The  recom- 
mended provision  would  apply  to  certain  special  classes  of  offenders: 
those  who  successfully  complete  a  period  of  probation  and  those  who 
the  court  decided  did  not  require  a  period  of  supervision.  The  latter 
group  would  be  eligible  only  after  a  period  of  time. 

The  proposal  also  defines,  in  part,  the  effect  which  will  be  given  to 
a  certificate.  Full  definition  is  left  to  judicial  development. 

There  is  nothing  in  the  proposal  that  requires  the  expunction  or 
sealing  of  records,  nor  does  it  constitute  a  "license  to  lie." 


8946 

Likewise,  we  do  not  contemplate  that  this  change  would  in  any  way 
create  a  "perennial  first  offender." 

Subsection  (b)  of  section  3831,  consideration  of  a  prisoner  for 
release  on  parole,  establishes  the  time  schedule  for  a  prisoner  to  re- 
ceive his  first  consideration  for  parole.  The  mechanics  for  determin- 
ing the  time  for  the  first  parole  hearing  seem  to  be  unnecessarily 
complicated. 

Was  your  intent  to  establish  a  system  whereby  a  prisoner  did  not 
receive  his  first  parole  hearing  until  his  date  of  parole  eligibility  had 
passed  ? 

As  I  understand  the  procedure,  a  prisoner  who  had  received  a 
3-year  sentence  without  a  term  of  parole  ineligibility  would  be  eligible 
for  release  on  parole  after  6  months.  However,  by  application  of  sub- 
section (b)  (1),  he  would  not  receive  parole  consideration  until  after 
7  months. 

I  suggest  that  you  change  this  section  to  provide  that  a  prisoner 
shall  receive  first  parole  consideration  at  least  60  days  prior  to  this 
parole  eligibility  date. 

Subsection  (c)  of  section  3834,  term  and  conditions  of  parole,  estab- 
lishes one  mandatory  condition  of  parole  that  the  parolee  not  commit 
another  crime  during  the  term  of  parole.  My  comments  made  previ- 
ously regarding  the  conditions  of  probation  at  section  2103(a)  and 
(b)  also  apply  here. 

I  recommend  adopting  the  same  7  additional  mandatory  conditions 
and  deleting  discretionary  conditions,  numbers  15  through  18,  in  ad- 
dition to  number  11  which  you  have  already  deleted,  I  feel  these  are 
appropriate  and  reasonable  conditions  which  should  apply  in  all 
parole  cases. 

Finally,  I  ask  that  you  include  as  a  discretionary  condition  of 
parole  the  addition  I  suggested  earlier  with  regard  to  probation  re- 
quiring a  parolee  to  participate  in  an  alcoholic  or  drug  treatment 
program  during  the  term  of  parole  as  now  provided  by  18  U.S.C. 
4209. 

Subsection  (e)  deals  with  tlio  effective  period  of  a  parole  term.  !My 
comments  here  are  similar  to  those  made  in  section  2104(b).  There 
should  be  some  statement  as  to  what  constitutes  imprisonment  and  the 
effectof  short  jail  sentences  for  minor  offenses  in  the  computation  of 
the  term  of  parole. 

Subsection  (b)  of  section  3835,  revocation  of  parole,  establishes  the 
requirement  for  a  preliminary  hearing  whenever  a  pnroleo  is  taken 
into  custody  for  violation  of  a  condition  of  parole.  The  purpose  of 
this  hearing  is  to  determine  if  there  is  probable  cause  to  believe  that 
he  has  violated  a  condition  of  his  parole. 

I  recommend  that  this  subsection  be  amended  to  conform  with 
present  law  ])v  providing  thnt  conviction  for  a  federal,  state,  or  local 
crime  committed  subsequent  to  release  on  parole  shall  constitute 
probablv  cause— 18  V.S.C.  4214(b)(1). 

Finally,  I  find  no  provisions  for  continuing  the  T\S.  Parole  Com- 
mission as  you  have  provided  for  the  Bureau  of  Prisons  and  the 
Federal  Prison  Industries  in  title  TTI  at  page  308. 

With  regard  to  the  U.S.  Sentencing  Commission,  in  your  invitation 
for  testimony,  you  indicated  your  awareness  that  the  Judicial  Con- 


8947 

ference  has  not  yet  established  a  formal  position  on  this  legislative 
proposal.  I  am  certain  you  are  also  aware  that  the  Judicial  Confer- 
ence at  its  April  1976  meeting  disapproved  a  bill  that  would  have 
established  a  U.S.  Sentencing  Commission. 

In  the  context  of  the  conference's  previous  action,  I  shall  comment 
on  what  I  would  like  to  see  if  the  Congress  should  establish  a  U.S. 
Sentencing  Commission. 

The  lack  of  sound  knowledge  to  provide  the  base  for  sentencing  has 
been  a  matter  of  concern  for  years.  No  one  is  more  aware  than  the 
judge  on  the  bench  of  the  lack  of  a  sound  body  of  knowledge  to  assist 
him  in  discharging  his  sentencing  responsibilities. 

Usually  he  has  no  guidelines,  except  his  own  experience  to  tell  him 
how  sentences  have  worked  out  in  the  past.  There  are  no  valid  actu- 
arial or  prediction  tables  to  indicate  what  the  outcome  of  a  particular 
case  will  be.  He  does  not  know  what  other  judges  in  other  courts  have 
done  with  respect  to  similarly  situated  defendants. 

When  imposing  a  sentence,  he  has  in  mind  one  or  more  of  the  objec- 
tives you  propose  at  section  101 — deterrence,  protection  of  society, 
just  punishment,  and  reliabilitation  of  the  offender. 

However,  he  has  no  assurance  that  a  given  sentence  will  achieve 
these  objectives.  Nor  does  he  know  the  actual  effectiveness  of  the 
various  correctional  agencies  that  will  carry  out  the  sentence. 

It  was  these  very  concerns  that  prompted  the  Congress  to  establish 
the  Advisory  Corrections  Council,  of  which  I  am  a  member,  18  U.S.C. 
5002. 

The  council  met  regularly  until  1959  when  it  disbanded  after  the 
chairman  resigned  and  the  Attorney  General  did  not  appoint  a 
successor. 

The  council  was  responsible,  in  part,  for  two  pieces  of  legislation : 
One  authorizing  institutes  and  joint  councils  on  sentencing,  28  U.S.C. 
334,  with  a  primary  objective  of  reducing  disparity  of  sentencing, 
and  the  other  to  provide  greater  flexibility  in  sentencing  alternatives 
and  parole  procedures — formerly  18  U.S.C.  4208  and  4209  and  now 
18  U.S.C.  4205  and  4216. 

The  Advisory  Corrections  Council  was  reinstituted  in  December  of 
1976  with  the  designation  of  former  Deputy  Attorney  General  Harold 
Tyler  as  chairman  by  the  then  Attorney  General  Levi.  I  was  desig- 
nated by  the  Chief  Justice  to  fill  one  of  the  three  judicial  positions  on 
the  council. 

The  council  has  met  twice  this  year,  and  the  focus  of  our  attention 
has  been  on  the  need  for  a  comprehensive  statistical  system  in  the 
criminal  justice  field  and  the  need  for  a  more  effective  and  rational 
system  of  sentencing. 

Notwithstanding  the  efforts  that  have  been  made  to  learn  more 
about  the  effectiveness  of  sentencing — the  work  of  the  Advisory  Cor- 
rections Council,  the  institutes  and  joint  councils  on  sentencing,  and 
the  work  of  the  Administrative  Office  of  the  U.S.  Courts  and  the 
Federal  Judicial  Center — the  fact  remains  that  we  are  not  much 
further  along  in  understanding  the  whole  process  than  we  were  years 
ago.  I  do  not  say  this  in  any  sense  of  criticism  of  the  efforts  that  have 
been  made  in  the  past,  but  in  recognition  that  much  needs  to  be  done. 

The  goals  of  the  U.S.  Sentencing  Commission,  as  proposed,  would 
be  of  immense  assistance  to  the  entire  system  of  criminal  justice  if 


8948 

achieved.  "Wliether  or  not  achievement  of  these  goals  is  dependent  on 
establishment  of  a  new  commission  is  a  matter  for  Congress  to  decide. 

Any  organization  charged  with  the  stated  goals  of  the  commission 
should  be  a  central  body  with  authority  to  draw  information  from, 
and  effect  change  of,  the  various  parts  of  the  system.  Your  legislative 
proposal  would  establish  that  capability. 

Section  091,  U.S.  Sentencing  Commission — establishment  and  pur- 
pose, vs^ould  establish  the  commission  in  the  Judicial  Branch  and  pro- 
vide for  the  appointment  of  the  members  b}'  the  Judicial  Conference, 
subject  to  removal  by  the  Conference  for  cause. 

This  form  of  organization  should  provide  the  necessary  independ- 
ence from  pressures  that  might  be  brought  to  bear  on  the  Commission 
if  it  were  outside  the  judicial  branch. 

Establishment  witliin  the  judicial  branch  might  also  enhance  the 
Commission's  acceptance. 

Since  this  legislation  calls  for  judges  to  relinquish  some  of  their 
independence  in  sentencing,  it  is  probably  well  it  be  to  another  body 
established  within  the  judiciary. 

While  the  proposal  does  not  eliminate  judicial  discretion  in  sr>n- 
tencing,  it  does  establish  guidelines  for  the  exercise  of  that  discretion 
and  provides  a  benchmark  for  appellate  review  of  a  sentence. 

Section  994,  subsection  (a),  duties  of  Commission,  provides  that  the 
Commission  shall  prom\ilgate  and  distribute  to  all  courts  of  the 
United  States  and  to  the  U.S.  Probation  System  its  guidelines  for 
sentencing.  I  believe  you  should  make  it  clear  that  such  guidelines  are 
to  be  publicly  distributed  for  the  benefit  of  the  bar  and  tlie  general 
public.  You  may  wish  to  consider  requiring  general  publication  for 
comment  before  adoption. 

Subsection  (e)  requires  the  Commission  to  cstalilish  a  "substantial 
sentence  of  imprisonment"  in  its  guidelines  for  certain  types  of 
offenders. 

In  my  opinion,  the  Commission  should  have  the  latitude  to  estab- 
lisli  guidelines  within  the  maximum  penalties  that  Congress  has 
established  by  statute.  Guidelines  should  be  based  on  tlie  best  and 
most  current  information  available  and  not  mandated  by  a  statutory 
provision. 

This  particular  requirement  runs  contrary  to  the  purpose  of  the 
Commission  and  im})inges  on  its  independence. 

T  have  a  similar  com.ment  regarding  subsection  (g)  of  Section  994 
which  gives  the  Congress  authority  to  approve  or  disapprove  guide- 
lines promulgated  by  the  Commission. 

The  Commission  should  have  the  latitude,  as  an  independent  com- 
mission in  the  Judicial  Branch,  to  establish  guidelines  based  on  the 
resrJts  of  its  studies. 

Subsection  (b)  of  section  990.  director  and  staff,  requires  the  staff 
director  to  appoint  the  Commission's  employees  under  the  competi- 
tive civil  service  laws. 

T  feol  that  the  Commission  should  have  the  latitude  to  appoint  its 
employees  without  regard  to  the  competitive  civil  service  laws  and 
regulations  as  is  the  general  appointment  procedure  within  the  ju- 
dicial branch. 

This  concludes  my  remarks  concerning  the  sections  of  S.  1437  listed 
in  your  request  for  testimony.  There  are,  however,  several  sections  at 


8949 

otlier  points  in  the  bill  which  embody  provisions  that  have  been  the 
subject  of  the  Probation  Committee's  concern.  I  have  prepared  com- 
ments on  these  sections  as  an  appendix  to  this  testimony  and  ask  that 
they  be  included  for  the  record. 

I  appreciate  your  courtesy,  Mv.  Chairman,  and  I  shall  be  pleased 
to  answer  any  questions  you  may  have. 

Senator  Hatch,  Without  objection,  they  shall  be  included  in  the 
record. 

[jMaterial  follows :] 

Appendix 

Statement  of  Judge  Gerald  B.  Tjoflat,  June  9,  1977,  Before  the  Subcommittee 

ON  Criminal  Laws  and  Procedures 

The  following  listed  sections  of  S-1437  have  been  the  subject  of  concern  of 
the  Judicial  Conference  Committee  on  the  Administration  of  the  Probation 
System. 

I  shall  first  address  two  types  of  offenses :  bail  jumping  as  it  relates  to  the 
sentenced  offender  who  has  been  ordered  to  surrender  for  service  of  sentence 
and  crimes  against  the  person  as  they  relate  to  employees  of  the  U.  S.  proba- 
tio}i  system.  Both  of  these  areas  have  been  the  subject  of  consideration  and 
recommendation  by  the  Judicial  Conference. 

SECTION    1312 — bail   JUMPING 

Section  1312  establishes  as  an  offense  the  failure  to  surrender  for  service  of 
sentence  pursuant  to  a  court  order.  In  connection  with  a  penalty  for  the  offense 
I  recommend  the  subsection  (c)  (1)  (B)  be  amended  to  include  the  language 
"or  pending  surrender  for  service  of  sentence."  I  find  no  specific  provision  for 
this  type  of  release  in  chapters  35  or  36  of  the  bill  and  recommend  provision 
for  authority  to  release  for  the  purpose  of  voluntary  surrender  for  service  of 
sentence. 

In  1974  the  Proliation  Committee  endorsed  procedures  drawn  by  the  Bureau 
of  Prisons,  the  Probation  System,  and  the  Marshals  Service  that  provided  for 
the  voluntary  surrender  of  selected  offenders.  The  Bureau  of  Prisons  reports 
great  success  with  this  program  and  the  savings  to  the  Government  are  obvious. 

Specific  authority  in  the  statute  will  encourage  sentencing  judges  to  make 
greater  use  of  this  procedure.  Some  judges  have  expressed  reluctance  to  release 
for  this  purpose  since  criminal  contempt  appeared  the  only  sanction  available 
where  an  offender  failed  to  surrender.  At  the  request  of  the  Probation  Committee 
tlie  Judicial  Conference  at  its  September  1974  meeting  approved  a  legislative 
proposal  that  would  estalilish  failure  to  surrender  as  an  offense.  Adoption  of 
section  1312  would  fill  this  need. 

SECTION    1601,    ET    SEQ. HOMICIDE,    ASSAULT,    KIDNAPPING,    AND    RELATED    OFFENSES 

Certain  sections  of  chapter  16  establish  Federal  jurisdiction  where  offenses 
are  committed  against  an  "employee  of  the  U.  S.  probation  service."  These  pro- 
visions are  consistent  with  numerous  recommendations  of  the  Judicial  Confer- 
ence that  probation  officers  be  included  in  the  protection  statute  (IS  USC  1114). 

I  recommend  that  this  language  be  amended  to  provide  Federal  jurisdiction 
where  those  offenses  are  committed  against  an  employee  of  a  pretrial  services 
agency.  Title  II  of  the  Speedy  Trial  Act  required  the  Administrative  OfBce  to 
establish  10  pretrial  services  agencies.  Five  of  these  agencies  are  administered 
by  the  Probation  Division  of  the  Administrative  Office  of  the  United  States 
Courts  and  five  are  administered  by  local  Boards  of  Trustees.  The  employees  of 
these  agencies  investigate,  supervise,  and  work  in  the  same*  circumstances  of 
hazard  as  probation  officers.  They  should  enjoy  the  same  protection.  I  am  not 
certain  that  they  would  be  covered  under  the  current  proposed  language  of 
these  sections.  Finally,  I  suggest  that  you  change  the  title  "U.  S.  Probation 
Service"  to  "U.  S.  Pro))ation  System,"  Avherever  it  a])pears.  The  original  act 
of  Congress  was  an  act  to  establish  a  probation  system  in  the  I'nited  States 
district  courts.  Subsequent  amendments  have  referred  to  it  as  a  system  and  I 
believe  the  word  "system"  is  more  descriptive  of  the  organization  tlian  the 
word  "service." 


8950 

SECTION  3016 — U.S.  PROBATION  SERVICE 

Subsection  (a)  of  section  3016  provides  that  a  U.  S.  probation  officer  may 
carry  a  firearm  pursuant  to  regulations  issued  by  the  Judicial  Conference  of 
the  United  States.  The  Judicial  Conference  considered  an  identical  legislative 
proposal  on  recommendation  of  the  Probation  Committee  at  its  March  1974 
meeting.  Although  the  Conference  did  not  approve  the  legislative  proposal  it 
did  subsequently  approve  guidelines  which  established  as  policy  that  probation 
officers  should  not  carry  firearms,  however,  the  guidelines  do  provide  for 
exceptions  to  that  general  policy.  As  I  look  at  subsection  (a),  the  Conference 
could  continue  to  carry  out  its  intent  that  carrying  of  firearms  by  probation 
oiBicers  should  be  the  exception  rather  than  the  rule. 

Subsections  (b)  and  (c)  give  a  probation  officer  authority  to  arrest  a 
probationer  or  a  parolee  with  a  warrant  or  without  a  warrant  if  the  officer 
has  "reasonable  grounds"  to  believe  that  the  probationer  or  parolee  has 
violated  a  condition  of  release.  The  Probation  Committee  in  considering  similar 
proposals  in  the  past  has  consistently  recommended  that  a  probation  officer's 
authority  to  arrest  be  limited  to  the  arrest  of  probationers  and  that  "reasonable 
grounds"  be  changed  to  "cause."  Pi-obatiou  officers  have  always  had  the 
statutory  authority  to  arrest  probationers  and  the  extent  to  which  they 
exercise  this  authority  is  defined  by  court  policy.  In  the  unusual  circumstances 
whex-e  a  probation  officer  does  arrest  a  probationer  without  the  court  having 
issued  a  warrant  such  a  probationer  is  brought  immediately  before  the  court. 

Under  current  practices  parolees  are  arrested  generally  by  the  U.  S.  marshal 
after  the  U.  S.  Parole  Commission  has  issued  a  warrant.  Although  probation 
officers  have  authority  to  arrest  a  parolee  under  the  Youth  Corrections  Act 
this  authority  is  not  exercised.  As  a  matter  of  fact  it  is  the  policy  of  the  U.  S. 
Parole  Commission  that  probation  officers  shall  not  arrest  parolees  even  with  a 
warrant.  I  grant  that  in  a  limited  number  of  circumstances  probation  officers 
find  themselves  hampered  in  the  performance  of  their  duties  by  not  being  able 
to  arrest  a  parolee  on  the  spot  of  an  observed  violation.  However,  weighing 
this  against  the  due  process  problems  if  probation  officers  were  to  routinely 
arrest  parolees,  I  am  lead  to  believe  we  can  do  without  this  authority. 

SECTION    3602 — ARREST  AND   DETENTION   OP  A   JtmSNILE  DELINQUENT 

Subsection  (c)  of  section  3602  places  a  60-day  limitation  on  the  detention  of 
a  juvenile  pending  trial.  I  recommend  that  yon  retain  the  30-day  limitation  now 
established  by  18  USC  5036.  Thirty  days  seems  long  enough  to  hold  a  .luvenile 
pending  trial  unless  there  is  some  particular  showing  of  need  for  additional 
delay. 

SECTION    3603 — JUVENILE    DELINQUENCY    PROCEEDINGS 

Subsection  (e)  of  section  3603  provides  that  after  a  hearing  the  "court  may 
suspend  the  finding  of  juvenile  delinquency,  place  him  on  probation,  or  commit 
him  to  official  detention."  If  it  is  your  intent  that  suspension  of  the  finding  of 
juvenile  delinquency  is  a  disposition  unto  itself  I  suggest  you  add  tlie  language 
"on  such  conditions  as  it  deems  proper"  now  found  at  18  USC  5037(b).  This 
allows  the  court  to  suspend  the  find  of  delinquency,  permit  the  juvenile  to 
participate  in  an  informal  program  of  supervision,  then  dismiss  the  entire 
proceedings.  The  current  juvenile  delinquency  act  at  18  USC  5032  prohibits 
changing  from  one  type  of  proceeding  to  another  once  proceedings  have  reached 
a  certain  stage.  You  may  wish  to  consider  its  inclusion  as  I  find  no  similar 
provisions  In  this  proposal. 

Subsection  (f)  (1)  of  section  3603  provides  that  a  juvenile  may  be  placed 
on  probation  for  a  term  not  to  exceed  the  period  of  minority.  I  recommend  that 
you  incorporate  language  from  the  current  juvenile  delinquency  act  which 
further  restricts  the  authorised  probation  term  to  the  maximum  term  that 
could  have  been  imposed  on  an  adult  convicted  of  the  same  offense  (18  USC 
5037(b)). 

SECTION    3605 — USE   OF   JUVENILE   DELINQUENCY   RECORDS 

Subsection  (a)  of  section  3605  cites  six  limited  circumstances  under  which 
a  court  may  release  information  from  the  record  of  a  juvenile.  I  would 
recommend  that  you  include  one  additional  circumstance  under  which  in- 
formation may  be  released  by  authorizing  a  court  to  release  such  information 
it  deems  e.^.sential  to  a  program  of  education,  employment,  training,  or 
rehabilitation  in  which  the  juvenile  is  participating  while  under  supervision. 


8951 

Senator  Hatch.  lYe  appreciate  your  testimony,  Judge. 

I  think  you  have  pointed  out  a  number  of  very  interesting  changes 
that  we  should  consider  in  the  committee.  A  number  of  the  areas  you 
covered  have  been  liotly  debated,  as  you  know.  I  think  you  have 
brought  some  very  meritorious,  substantive  clianges  to  us  today. 

Some  witnesses  before  this  subcommittee  have  suggested  that  the 
members  of  the  Sentencing  Commission  be  appointed  by  the 
President. 

What  would  be  the  view  of  the  Judicial  Conference  to  this  particu- 
lar proposal  ? 

Judge  Tjoflat.  I  think  that  since  we  are  treading  in  new  territory 
for  the  first  time,  that  we  don't  have  much  history  to  go  by.  That  is 
essentially  a  congressional  decision. 

If  the  Commission  is  to  be  wathin  the  judicial  branch,  you  have  a 
separation  of  powers  problem.  The  President,  of  course,  appoints 
article  III  judges  and  other  members  of  the  judiciary.  I  really  can't 
tell  you  what  the  Judicial  Conference  attitude  would  be. 

The  Probation  Committee  is  going  to  meet  next  month,  as  other 
committees  are,  and  the  Conference  will  be  meeting,  either  at  the  end 
of  August  or  early  in  September.  I  am  sure  that  if  the  bill  is  still  in 
the  hearing  stages,  or  in  the  consideration  stage,  that  statement  can 
be  augmented  by  the  views  of  the  Conference. 

Senator  Hatch.  Thank  you.  Judge.  We  appreciate  that. 

With  regard  to  the  marijuana  sections,  this  decriminalizes  the  mere 
possession  of  less  than  10  grams.  How  do  you  feel  about  that  ? 

Ten  grams  would  be  a  little  more  than  one-third  of  an  ounce. 

Judge  Tjoflat.  These  are  my  personal  views,  but  I  think  that 

Senator  Hatch.  We  are  interested  in  that.  You  have  had  extensive 
experience  as  a  Federal  district  and  circuit  courts. 

Judge  Tjoflat.  My  personal  views  depend  on  whether  or  not  you 
are  going  to  decriminalize  trafficking  in  the  drug. 

Senator  Hatch.  No. 

Judge  Tjoflat.  As  long  as  you're  not  decriminalizing  the  traffick- 
ing in  the  drug  and  you  are  restricting  it  narrowly  to  use  privately, 
I  don't  think — no ;  I  don't  disagree  with  that. 

Senator  Hatch.  What  I  am  asking  is  whether  you  disagree  with 
having  a  criminal  penalty  for  possession  of  more  than  10  grams. 

Judge  Tjoflat.  No. 

Senator  Hatch.  Even  though  it  penalizes  possession  without  re- 
quiring the  trafficking  element. 

Judge  Tjoflat.  That's  right. 

The  more  that  you  possess,  the  greater  the  inference  is  that  it's  in- 
volved in  some  kind  of  a  trafficking  operation. 

Senator  Hatch.  I  see. 

Nor  do  you  disagree  with  the  decriminalization  with  regard  to  less 
than  10  grams. 

Judge  Tjoflat.  That's  right. 

Senator  Hatch.  There  have  been  a  lot  of  people  in  our  society,  in- 
cluding Mr.  Bourne  who  suggested  that  it  should  be  decriminalized 
as  to  less  than  one  ounce — I  personally  agree  with  this  particular  sec- 
tion as  being  a  more  in-depth  approach  to  a  very  serious  problem  in 
our  society. 

I  justed  wanted  to  have  your  viewpoint  since  you  have  so  much  ex- 
perience on  the  bench. 

92-465—77 25 


8952 

Judge  Tjoflat.  I  am  drawing  on  all  my  experienco  on  that. 

Senator  Hatch,  "We  appreciate  your  being  here  this  morning,  and 
the  excellent  testimony  that  you  have  given. 

I  have  been  chairing  these  committee  sessions  at  the  specific  request 
of  Senator  McClellan  and  Senator  Thurmond.  I  have  appreciated  the 
testimony  we  have  heard  so  far.  I  think  it's  been  very  enlightening. 

Judge  Webster,  we  are  looking  forward  to  hearing  what  you  have 
to  say. 

STATEMENT  OF  HON.  WILLIAM  H.  WEBSTER,  ADVISORY  COMMIT- 
TEE ON  CRIMINAL  RULES,  JUDICIAL  CONFERENCE  OF  THE 
UNITED  STATES,  AND  JUDGE,  UNITED  STATES  COURT  OF  APPEALS 
FOR  THE  EIGHTH  CIRCUIT 

Judge  Webster.  I  would  like  to  ask  that  my  complete  statement  be 
made  a  part  of  the  record. 

Senator  Hatch.  Without  objection,  it  is  so  ordered  and  will  be 
entered  at  the  end  of  jour  oral  testimony. 

Judge  Webster,  I  will  attempt  to  highlight  the  main  points  which 
might  be  of  inteerst  to  the  chairman  and  to  the  members  of  the 
committee. 

I  shall  direct  my  comments  primarily  to  section  3725  dealing  with 
sentence  review. 

The  views  of  the  Judicial  Conference  of  the  United  States  find 
expression  in  a  proposed  Federal  rule,  rule  35.1,  which  is  incorporated 
in  H.R,  7245,  which  was  introduced  on  May  17, 1977,  by  Congressman 
Rodino. 

Perhaps  the  most  useful  thing  I  could  do  this  morning  is  to  sugs-est 
some  of  the  differences  and  some  of  the  thinking  that  went  into  that 
rule  as  it  may  possibly  apply  to  the  final  workout  of  section  3725  in 
this  bill. 

The  particular  emphasis  that  I  hope  will  attract  your  attention  is 
the  pi'oper  role  of  discretion — both  at  the  district  court  level  nnd  in 
the  appellate  courts — on  the  subject  of  sentence  review  and  the  use 
and  ap})lication  of  the  guidelines  and  the  policy  statements  which  this 
bill  provides  for. 

I  Vv-ould  like  to  refer  to  the  evolution  of  the  thinking  of  the  advisory 
committee  on  the  whole  subject  of  sentence  review  over  the  past  6 
yeai'S. 

We  have  been  studying  this  rather  intensely  over  this  period  of 
time,  and  our  thinking  has  gone  through  quite  a  change. 

In  the  early  1970's,  sentence  review  as  a  matter  of  right  was  viewed 
with  considoi'a])le  hostility  from  within  the  Fodeial  judiciary,  excn 
tliough  tlie  Ignited  Statos  is  said  to  be  tlie  only  Xation  in  the  free 
world  that  does  not  have  some  form  of  sentence  review. 

For  a  number  of  years  it  was  an  open  secret  that  appellate  courts 
were  finding  ways  to  reverse  cases  on  the  basis  of  trial  error  because 
of  excessive  sentences.  We  were  getting  a  lot  of  bad  precedent  as  a 
result.  P]rrors  that  normally  would  be  called  harmless  were  found  to 
be  prejudicial.  So  we  began  to  look  into  this. 

I  will  sld]i  ovov  the  thought  processes  of  the  committee  considering 
sentencing  councils. 


8953 

We  went,  as  perhaps  you  know,  to  a  panel  review  by  district  judges, 
wliicli  we  finally  abandoned  when  we  concluded  that  the  district 
judges  were  simply  overwhelmed  with  present  responsibilities  and 
either  unwilling  or  unable  to  take  on  the  business  of  panel  review  of 
sentences.  We  addressed  ourselves  again  to  appellate  review  of 
sentencing. 

That  is  all  set  out  in  my  statement.  In  view  of  the  time  constraints, 
I  would  like  to  go  to  some  of  the  differences  between  rule  35.1  and 
3725. 

Under  3725,  a  defendant  would  have  no  right  to  appeal  for  review 
of  a  sentence  unless  it  exceeded  the  maximum  punishment  established 
by  the  proposed  Sentencing  Commission  in  guidelines  to  be  promul- 
gated under  proposed  28  U.S.C.  994. 

Proposed  rule  35.1,  on  the  other  hand,  would  apply  a  screening 
approach  in  all  cases,  other  than  those  involving  a  sentence  of  death 
which  is  not  governed  by  the  rule. 

Review  is  not  limited  to  a  sentence  in  excess  of  a  certain  maximum, 
as  in  section  3725,  but  as  a  threshold  requirement,  the  sentence  must 
be  one  of  imprisonment — execution  of  which  is  not  suspended.  And 
that  is  a  slight  difference. 

The  sentence  must  not  have  been  entered  pursuant  to  a  plea  bar- 
gain adopted  by  the  court. 

While  section  3725  excludes  plea  bargained  sentences  from  the  right 
of  review,  it  does  not  appear  to  distinguish  between  executed  and 
suspended  sentences. 

The  need  for  review  of  a  suspended  sentence  prior  to  revocation  of 
probation  is  not  clear. 

Under  rule  35.1,  the  right  to  review  of  a  sentence  would  be  subject 
to  a  prior  determination  by  tho,  court  of  appeals  through  a  screening- 
process  method  that  "a  showing  has  been  made  of  a  substantial  basis 
for  determining  that  the  sentence  is  clearly  unreasonable." 

We  are  accustomed  to  using  the  screening  process  for  weeding  out 
frivolous  claims.  I  think  that  this  method  of  approach,  within  the 
rouit  of  appeals,  has  a  great  deal  to  commend  it,  even  though  guide- 
lines along  the  road  may  point  out  definite  areas  which  should  be 
respected  in  the  screening  process. 

I  seriously  urge  the  committee  to  consider  leaving  room  for  the 
application  of  a  screening  process  which  is  not  entirely  controlled  by 
tb.e  o-uideline  method.  I'm  not  sure  whether  a  sentencin";  guideline 
will  invariably  keep  out,  from  review,  the  sentences  which  perhaps 
ought  to  be  reviewed  because  of  individualized  circumstances  that 
are  aggravating  or  mitigating. 

Both  your  approach  and  the  Judicial  Conference's  approach  are 
designed  to  achieve  the  same  protection  for  the  defendant,  with  rule 
35.1  perhaps  offering  a  less-confining  entry  to  review. 

Much  is  going  to  depend  on  the  range  of  punishment  guidelines 
established  by  the  Sentencing  Commission  under  section  924.  We 
don't  know  how  wide  those  ranges  are  going  to  be.  so  we  don't  know 
how  much  discretion  is  going  to  be  left  to  the  court  of  appeals. 

I  might  also  mention  that  we  excluded  fines  from  the  process  of 
sentence  review.  We  thought  that  the  impact  on  the  individual  would 
not  be  the  same  as  in  the  case  of  imprisonment,  and  we  wonder 


8954 

■whetlier  appellate  review  of  fines  is  warranted.  We  ask  that  the  com- 
mittee would  consider  this  question. 

The  Government  gets  to  appeal  under  the  proposed  bill  that  we  are 
considering  this  morning,  section  3725,  whenever  the  sentence  is  less 
than  the  minimum  recommended  in  the  Sentencing  Commission. 

Rule  35.1  would  give  a  right  of  appeal  if  it  was  less  than  one-third 
of  the  maximum  permissible.  I  think  that's  a  policy  question,  and  I 
simply  call  it  to  your  attention. 

Senator  Hatch.  Do  you  anticipate  any  difficulties  with  double 
jeopardy  problems  concerning  government  appeal  of  sentences? 

Judge  Webster.  In  terms  of  H.R.  7245,  we  were  sufficiently  con- 
cerned about  our  ability  to  handle  that  by  the  rulemaking  process, 
but  we  asked  that  the  Congress  consider  dealing  with  it. 

As  far  as  double  jeopardy  is  concerned,  I  do  not  think  that  is  a 
problem.  There  is  ample  case  authority  for  enhancement  of  sentences. 

Senator  Hatch.  Do  you  both  agree  on  that  ? 

Judge  Tjoflat.  Yes. 

Judge  Webster.  I  would  like  to  talk  about  the  policy  statements. 

This  provision  concerns  me  quite  a  bit.  Section  3725  excludes  from 
•sentence  review,  either  by  the  defendant  or  the  Government,  sentences 
which  are  "consistent  with  policy  statements  issued  by  the  Sentencing 
Commission  pursuant  to  section  28,  U.S.C.  994(a)  (2)." 

These,  of  course,  are  merely  general  policy  statements  that  are  in- 
tended to  further  the  legitimate  objectives  of  sentencing  sanctions 
which  are  also  defined:  deterrence,  protection  of  the  public,  just 
punishment,  and  rehabilitation. 

But  it  is  not  at  all  clear  when,  or  by  whom,  that  determination  is 
made. 

The  use  of  the  policy  statement  here  appears  to  override  the 
maximum-minimum  guidelines  test. 

We  would  ask:  Would  a  policy  statement,  for  example,  that  all 
defendants  convicted  of  crimes  committed  with  weapons  should  re- 
ceive the  maximum  term  permitted  by  law  preclude  all  sentence 
review  ? 

I  would  submit  that  this  language  may  very  well  be  a  catch  22, 
w^hich  should  be  very  carefully  analyzed  before  you  accept  it  as  an 
exception  to  the  right  of  sentence  review. 

If  you  will  recall,  it  says  that  there  will  bo  no  sentence  review  if 
there  is  a  policy  statement  that  is  consistent  with  the  sentence.  Some- 
one is  going  to  have  to  decide  that  at  some  stage  before  we  know 
whether  there  is  a  right  of  sentence  review. 

Here,  again,  the  use  of  the  screening  ]>rocess  by  the  appellate  courts 
with  an  area  of  interim  discretion  would  have  some  utility. 

I  have  a  great  deal  of  doubt  about  the  use  of  the  policy  statement, 
particularly  since  we  don't  know  quite  Avhat  it  might  be. 

It  may  very  well  be  that  such  a  policy  would  exclude  sentence  re- 
view, when  it  really  should  be  granted  by  the  appellate  court.  It  makes 
it  a  condition  of  eligibility.  I  think  this  is  cause  for  considerable 
concern. 

Both  your  bill  and  H.R.  7245  use  the  clearly  unreasonable  standard 
of  review;  that  is,  tliat  the  sentence  is  clearly  unreasonable.  Altliough 
rule  35.1  couples  the  finding  with  clearly  unreasonable  and  excessive 
or  clearly  unreasonable  and  insufficient. 


8955 

We  have  since  heard  from  a  number  of  judges  who  arc  worried 
about  that.  They  understand  the  term  "abuse  of  discretion."  They  are 
not  sure  what  "clearly  unreasonable"  is. 

Senator  Hatch.  Excuse  me,  Judge.  There  is  a  vote  on  the  floor  with 
regard  to  the  clean  air  bill. 

The  subcommittee  will  stand  in  recess  for  just  a  few  minutes. 

[Recess  taken.] 

Senator  Hatch.  The  Subcommittee  on  Criminal  Laws  and  Pro- 
cedure will  come  to  order. 

I  apologize  for  the  length  of  time  which  it  took,  but  we  had  three 
votes  in  a  row. 

I  apologize  especially  to  you,  Judge,  for  interrupting  your  excellent 
statement  right  before  you  were  almost  through. 

But  these  things  do  occur,  and  I  think  you  understand  them. 

Judge  Webster.  I  do  want  to  stress  one  or  two  things  that  appear 
in  the  statement  that  I  think  need  .further  consideration  by  the 
committee. 

I  was  attempting  to  make  the  point  that  the  use  of  policy  statements, 
as  a  method  of  eligibility  for  sentence  appeal,  had  a  catch  22  provision, 
in  them.  I  won't  repeat  myself  there. 

I  have  mentioned  that  the  clearly  unreasonable  test  had  generated 
some  questions  among  judges,  but  since  it  appears  also  in  H.R.  7245 
which  is  the  proposed  rule  35.1, 1  wouldn't  pursue  that. 

I  do  want  to  come  down  hard  on  the  question  of  discretion. 

It  may  be  said  by  some  that  sentence  review  is  the  result  of  the 
failure  of  the  judges  to  meet  their  sentencing  responsibilities  with 
consistent  fairness.  I  think  this  is  much  too  broad  an  indictment. 

Most  judges  perform  their  sentencing  duties  conscientiously  and 
with  great  care. 

I  submit  that  the  aberrational  sentence  should  be  the  main  target  of 
sentence  review. 

We  are  going  to  have  some  degree  of  disparity  by  the  nature  of  the 
fact  that  individuals  are  different,  but  what  we  are  trying  to  reach 
is  the  aberrational  sentence. 

To  the  extent  that  discretion  is  taken  from  the  judges,  it  must  neces- 
sarily be  placed  elsewhere.  If  the  guidelines  are  too  tight  and  the  sen- 
tence range  is  too  narrow,  then  discretion  is  passed  from  the  judge  to 
the  prosecutor,  who  can  more  fully  control  the  sentence  by  selecting 
the  nature  of  the  charge  and  the  number  of  counts. 

I  think  it  will  be  useful  to  utilize  a  Sentencing  Commission  to  pro- 
mote a  greater  degree  of  uniformity  in  sentencing  philosophy. 

It  seems  to  me  that  article  III  judges  should  not  be  totally  ham- 
strung by  guidelines  promulgated  by  the  Sentencing  Commission. 

The  process  of  evolving  suitable  guidelines  promises  to  be  a  lengthy 
one,  and  certainly  one  guided  by  ongoing  experience. 

Your  committee  may  wish  to  consider  utilizing  the  screening  proc- 
ess which  I  discussed  before  the  recess  and  which  is  contained  in  pro- 
posed rule  35.1,  at  least  in  those  areas  in  which  the  guidelines  do  not 
yet  point  the  way. 

It  is  entirely  possible  that  appellate  courts,  in  their  analysis  of  sen- 
tences on  review,  may  be  able  to  contribute  a  useful  body  of  law  from 
which  guidelines  may  be  drawn  by  the  Commission.  In  order  for  this 


8956 

to  be  possible,  the  appellate  courts  may  need  a  greater  area  of  discre- 
tion in  accepting  or  rejecting  demands  for  review  of  sentences. 

This  concludes  my  statement.  I  would  be  glad  to  answer  any 
questions. 

[Material  follows :] 

Statement  of  "William  H.  Webstek,  United  States  Circuit  Judge  and 
Member  Advisory  Committee  on  Criminal  Rules 

Mr.  Chairman  and  members  of  the  committee,  I  am  "William  H.  "Webster, 
Judge  of  the  United  States  Court  of  Appeals  for  the  Eighth  Circuit.  I  appear 
as  a  member  of  the  Judicial  Conference  Advisory  Committee  on  Criminal  Rules. 
On  behalf  of  our  Chairman,  Judge  J.  Edward  Lumbard,  and  the  other  members 
of  the  Committee,  I  thank  you  for  this  opportunity  to  present  our  views  on 
Senate  Bill  1437.  I  shall  direct  my  comments  primarily  to  §3725  dealing  vrith 
sentence  review. 

The  Judicial  Conference  of  the  United  States  has  endorsed  a  slightly  different 
approach  to  sentence  review  and  has  forwarded  its  recommendation  to  the 
Vice  President  and  the  Speaker  of  the  House.  I  am  informed  that  a  bill 
embodying  this  concept  has  been  introduced  by  Congressman  Rodiuo  as  H.R. 
7245. 

I  think  I  can  make  best  use  of  my  time  this  morning  if  I  share  with  the 
members  of  the  Committee  some  of  the  evolution  in  the  thinking  of  the 
Advisory  Committee  on  this  important  subject. 

For  over  six  years,  sentence  review  has  been  the  object  of  an  on-going  study 
by  the  Advisory  Committee,  and  the  Federal  Judiciary  has  been  widely  exposed 
to  the  issue  through  Workshops,  Joint  Sentencing  Institutes  and  the  writings 
of  legal  scholars. 

The  pendency  of  earlier  bills  in  the  Congress  calling  for  various  forms  of 
sentence  review  has  given  substantial  impetus  to  our  work,  since  many  cf  u«? 
felt  some  form  of  sentence  review  was  inevitable  and  that  the  Judiciary  should 
make  its  contribution  in  the  selection  of  the  most  appropriate  procedure. 

I  must  say  in  candor  that  in  the  early  1970's  sentence  review  as  a  matter 
©f  right  was  viewed  with  considerable  hostility  from  within  the  Federal 
Judiciary,  even  though  the  United  States  is  said  to  be  the  only  nation  in  the 
free  world  without  some  form  of  sentence  review.  That  feeling,  while  still 
intact  in  some  quarters,  has  largely  been  ameliorated. 

For  a  number  of  years,  It  was  an  "open  secret"  that  a  conviction  was 
occasionally  reversed  upon  appeal  because  appellate  judges  deemed  the  sentence 
to  be  excessive.  In  order  to  do  this,  it  was  necessary  to  find  reversible  trial 
error.  There  were  substantial  indications  that  this  practice  was  producing  bad 
legal  precedent  on  trial  error  issues  that  would  have  been  deemed  harmless  but 
for  the  sentence  that  the  defendant  received. 

In  the  middle  1070's.  a  number  of  circuit  courts  began  to  cut  around  the 
edges  of  the  traditional  barrier  to  sentence  review  by  finding  authority  to 
review  a  sentence  where  the  trial  judge  had  failed  to  exercise  his  discretion  and 
instead  applied  an  inflexible  mechanical  policy,  such  as  giving  maximum 
sentences  to  all  draft  evaders.  Other  appellate  courts  began  to  assert  their 
authority  to  reverse  based  on  a  finding  of  gross  abuse  of  discretion  sufficient  to 
shock  the  conscience  of  the  court.  The  absence  of  imiformity  within  the  circuita 
and  the  inability  to  adjust,  other  than  to  vacate,  a  sentence  made  review  under 
inherent  powers  an  unsatisfactory  method  of  dealing  with  the  problem. 

The  Advisory  Committee  considered  three  different  alternatives  within  the 
rule-making  powers  of  the  courts : 

(1)  Sentencing  counciU. — The  use  of  the  other  judges  within  the  district  to 
collaborate  on  sentences  has  been  tried  in  a  luuniier  of  districts  and  is  probably 
mo.st  effectively  utilized  in  the  Southern  District  of  IMichigan.  which  includes 
Detroit.  "While  not  technically  sentence  review,  it  meant  that  more  than  one 
judge  contributed  to  the  sentence  determination  and  presumaltly  reduced  the 
amount  of  disparity  within  the  di-trict.  The  Advisory  Committee  recognized 
the  advnntages  that  this  method  might  have  in  an  urban  district,  but  concluded 
it  would  be  less  useful  in  a  nonurl)an  district  with  judges  spaced  ai)art. 
Moreover,  members  of  the  Committee  representing  the  defense  bar  empressed  the 
eoncern  felt  by  defendants  who  were  in  effect  sentenced  by  judges  before  whom 
they  did  not  appear. 


8957 

(2)  Appellate  revietc. — The  Advisory  Committee  vras  Initially  of  the  view 
that  too  few  (then  34  out  of  90)  appellate  judges  had  had  sentencing  experience 
and  that  review  of  this  function  should  be  retained  at  the  district  court  level. 
Moreover,  the  Committee  in  the  main  was  doubtful  that  a  substantive  law  of 
sentencing,  desirable  as  it  might  sound,  could  be  successfully  developed  through 
the  appellate  process.  Accordingly,  the  Committee  opted  for  a  system  of  panel 
review  by  district  judges. 

(3)  Panel  review. — In  1975,  after  considerable  exposure,  the  Advisory  Com- 
mittee and  the  Standing  Committee  recommended  a  system  of  review  by  a 
panel  of  three  district  judges,  similar  to  the  state  systems  in  effect  in 
Massachusetts  and  Maryland.  The  standard  of  review  was  to  be  "excessiveness." 
The  right  of  review  was  limited  to  a  defendant  who  received  a  sentence  that 
might  result  in  imprisonment  for  two  years  or  more.  Review  was  to  be 
conducted  on  the  basis  of  the  papers  on  file,  including  the  presentence  report. 
The  Judicial  Conference  of  the  United  States  did  not  act  upon  proposed  Rule 
85(e),  but  instead  referred  the  matter  back  to  the  Advisory  Committee  for 
further  exposure  and  study.  The  results  of  such  study,  coupled  with  the 
responses  from  district  judges  following  recirculation  of  proposed  Rule  35(c), 
convinced  the  Committee  that  district  judges  were  generally  overwhelmed  with 
existing  responsibilities  and  were  either  unwilling  or  unable  to  assume  respon- 
sibility for  panel  review.  We  therefore  redirected  our  attention  to  appellate 
review. 

At  the  same  time,  we  concluded  that  a  strong  case  had  been  made  for  giving 
the  government  the  right  to  seek  review  of  a  sentence  alleged  to  be  insufficient. 
Because  increasing  a  sentence  has  substantive  implications,  it  was  conclvided 
that  any  rule  incorporating  sentence  enhancement  should  be  enacted  by  the 
Congress  in  the  first  instance  rather  than  by  means  of  the  Rules  Enabling  Acts. 
H.R.  7245  incorporates  the  proposed  Rule  35.1  endorsed  by  the  Judicial 
Conference. 

Perhaps  the  best  way  to  point  up  our  specific  thinking  is  to  discuss  the  main 
points  of  difference  between  proposed  Rule  35.1  and  §3725  of  S.  1437. 

APPEAL  BY  A  DEFENDANT 

Under  §3725.  a  defendant  would  have  no  right  to  appeal  for  review  of  a 
sentence  unless  it  exceeded  the  maximum  punishment  established  by  the 
proposed  Sentencing  Commission  in  guidelines  to  be  promulgated  under  proposed 
28  U.S.C.  §994.  Proposed  Rule  35.1.  on  the  other  hand,  would  apply  a  screening 
approach  in  all  cases  other  than  those  involving  a  sentence  of  death,  which  is 
not  governed  by  the  Rule.  Review  is  not  limited  to  a  sentence  in  excess  of  a 
certain  maximum,  as  in  §3725,  but  as  a  threshold  requirement  the  sentence 
must  be  one  of  imprisonment,  execution  of  which  is  not  suspended,  and  the 
sentence  must  not  have  been  entered  pursuant  to  a  plea  bargain  adopted  by 
the  court.  While  §3725  excludes  plea  bargained  sentences  from  the  right  of 
review,  it  does  not  appear  to  distinguish  between  executed  and  suspended 
sentences.  The  need  for  review  of  a  suspended  sentence  prior  to  revocation  of 
probation  is  not  clear. 

Under  Rule  35.1,  the  right  to  review  of  a  sentence  would  be  subject  to  a 
prior  determination  by  the  court  of  appeals  that  "a  showing  has  lieen  made 
of  a  substantial  basis  for  determining  that  the  sentence  is  clearly  unreasonable." 
Courts  of  appeal  are  experienced  in  preliminary  screening  and  clearly  frivolous 
claims  can  be  swiftly  weeded  out  in  this  manner. 

It  seems  to  me  that  your  Committee  must  decide  whether  sentencing 
guidelines  will  invariably  exclude  the  clearly  unreasonable  sentence  when 
individualized  to  take  into  account  aggravating  and  mitigating  crcumstances. 
Both  approaches  are  designed  to  achieve  the  same  protection  for  the  defendant, 
with  Rule  35.1  perhaps  offering  a  less  confining  entry  to  review.  Much  will 
depend  upon  the  range  of  punishment  guidelines  established  by  the  Sentencing 
Commission  under  §924. 

Your  Committee  may  also  wish  to  consider  carefully  whether  guidelines  for 
fines  can  be  drawn  with  sufficient  general  application  to  provide  a  triggering 
mechanism  for  appellate  review.  After  much  consideration,  the  Advisory 
Committee  concluded  that  fines  do  not  have  the  same  impact  upon  the 
individual  as  does  imprisonment  and  the  economic  circumstances  of  defendants 
are  so  varied  that  it  is  impossible  to  set  either  a  dollar  limit  or  fraction-of- 
maximum-permissible-fine  limit  which  is  applicable  to  all  cases.  Appellate 
review  of  fines  alone  may  prove  to  be  unwarranted. 


8958 

APPEAL  BY  THE  GOVERNMENT 

Both  Rule  35.1  and  §3725  permit  appeals  by  the  government.  Rule  35.1  adopts 
as  its  test  whether  the  sentence  is  less  than  one-third  of  the  maximum 
permissible  term  of  imprisonment.  Section  3725  on  the  other  hand  permits 
appeal  if  the  sentence  includes  a  fine  or  imprisonment  or  a  term  of  parole 
Ineliirihility  less  than  the  minimiim  recommended  in  the  Sentencinsr  Commission 
guidelines.  Both  approaches  exclude  plea  bargained  sentences.  Rule  35.1  would 
not  permit  a  government  appeal  based  on  the  failure  of  the  district  court  to 
impose  consecutive  rather  than  concurrent  sentences. 

POLICY  STATEMENTS 

Section  3725  excludes  from  sentence  review,  either  by  the  defendant  or  the 
government,  sentences  which  are  "consistent  with  policy  statements  issued  by 
the  Sentencing  Commission  pursuant  to  28  U.S.C.  §994(a)(2)."  These  are 
merely  general  policy  statements  that  are  intended  to  further  the  legitimate 
objectives  of  sentencing  sanctions :  deterrence,  protection  of  the  public,  just 
punishment  and  rehabilitation.  It  is  not  at  all  clear  when  or  by  whom  that 
determination  is  made.  The  policy  statement  appears  to  override  the  maximum- 
minimum  guidelines  test.  Would  a  policy  statement,  for  example,  that  all 
defendants  convicted  of  crimes  committed  with  weapons  should  receive  the 
maximum  term  permitted  by  law  preclude  all  sentence  review?  It  is  submitted 
that  this  may  be  a  Catch-22  which  should  be  carefully  analyzed  before 
accepting  it  as  an  exception  to  the  right  of  sentence  review. 

The  policy  statement  exception  presents  one  further  difficulty.  It  appears  to 
be  a  condition  of  eligibility  for  review. 

Who  makes  the  determination  in  the  first  instance  when  the  defendant  seeks 
to  file  his  notice?  It  appears  that  the  appellate  court  will  have  to  deal  with 
§3725(a)(l),  most  likely  as  a  preliminary  administrative  determination.  This 
suggests  that  the  screening  process  proposed  by  Rule  35.1  may  have  cnnsideralile 
merit  and  should  be  more  flexible  and  more  broadly  applied  than  the  pre.<ent 
bill  permits. 

"CLEARLY  unreasonable" 

Both  Rule  35.1  and  §3725  use  the  "clearly  unreasonable"  standard  of  review. 
This  seems  to  be  a  new  term  of  art.  Many  judges  have  expressed  the  view  that 
the  "abuse  of  discretion"  standard  of  review  is  more  of  a  known  quantity. 
Under  Rule  35.1  the  court  of  appeals  is  required  to  find,  as  a  condition  of 
xipsetting  the  sentence,  that  it  is  either  unreasonable  and  excessive  or  that  it 
is  unreasonable  and  insufficient.  Under  §3725  the  court  of  appeals  must  expand 
upon  its  determination  by  stating  "specific  reasons  for  its  conclusion."  A  finding 
of  "insufficiency"  or  "excessiveness"  would  not  appear  to  satisfy  this  require- 
ment. The  extent  of  the  explanation  required  is  apparently  left  to  future 
explication  by  the  Supreme  Court. 

discretion 

It  may  be  said  by  some  that  sentence  review  is  the  result  of  the  failure  of 
the  judges  to  meet  their  sentencing  responsibilities  with  consistent  fairness. 
This  is  much  too  broad  an  indictment.  Mo.st  judges  perform  their  sentencing 
duties  conscientiously  and  with  great  care.  The  aberrational  sentence  should 
be  the  main  target  of  sentence  review. 

To  the  extent  that  discretion  is  taken  from  the  judges,  it  must  necessarily 
be  placed  elsewhere.  If  the  guidelines  are  too  tight  and  sentence  ranges  too 
narrow,  then  discretion  is  passed  from  the  judge  to  the  prosecutor,  who  can 
more  fully  control  the  sentence  by  selecting  the  nature  of  the  charge  and  the 
number  of  counts. 

It  may  be  useful  to  utilize  a  Sentencing  Commission  to  promote  a  greater 
degree  of  uniformity  in  sentencing  philosophy,  but  it  is  submitted  that  Article 
III  judges  should  not  be  hamstrung  by  guidelines  promulgated  by  the  Sentenc- 
ing Commission. 

The  process  of  evolving  suitable  guidelines  promises  to  be  a  lengthy  one, 
certainly  one  guided  by  on-going  experience.  Your  Committee  mav  wish  to 
consider  utilizing  the  screening  process  contained  in  proposed  Rule  35.1.  at 
least  in  those  areas  In  which  guidelines  do  not  yet  point  the  way.  It  ig 
entirely  possible  that  appellate  courts,  in  their  analysis  of  sentences  on  review, 


8959 

may  be  able  to  contribute  a  useful  body  of  law  from  which  guidelines  may  be 
drawn  by  the  Commission.  In  order  for  this  to  be  possible,  the  appellate  courts 
may  need  a  greater  area  of  discretion  in  accepting  or  rejecting  demands  for 
review  of  sentences. 

Senator  Hx\tch.  Judge,  I  appreciate  your  statement  and  the  excel- 
lent suggestions  both  of  you  have  made.  We  will  certainly  give  every 
consideration  to  them  before  reporting  this  bill. 

Thank  you  for  coming  today.  We  appreciate  having  you  with  us. 

Our  next  witness  is  Hon.  Harold  R.  Tyler,  chairman  of  the  Ad- 
visory Corrections  Council. 

We  welcome  you,  Judge  Tyler. 

With  your  service  and  experience  on  the  bench  and  as  a  former 
Deputy  Attorney  General,  I  am  sure  you  will  be  helpful  to  the  Com- 
mittee. We  are  very  pleased  to  have  you  with  us  today,  and  we  are 
looking  forward  to  hearing  what  you  liave  to  say  about  this  and  the 
enlightenment  you  can  provide  with  regard  to  this  particular  piece  of 
legislation  and  the  amendments  thereto. 

STATEMENT  OF  HON.  HAROLD  R.  TYLER,  CHAIRMAN,  ADVISORY 

CORRECTIONS  COUNCIL 

Mr.  Tyler.  Thank  you,  Mr.  Chairman. 

I  would  ask  that  my  written  statement  be  made  a  part  of  the  record, 
and  I  will  summarize  some  of  the  main  points  very  briefly. 

Senator  Hatch.  We  appreciate  that.  We  will  incorporate  your 
statement  in  the  record,  without  objection,  at  the  completion  of  your 
oral  remarks. 

Mr.  Tyler.  Very  broadly,  Mr.  Chairman,  I  am  here  this  morning  to 
submit  my  views  in  support  of  the  thrust  of  the  sentencing  provisions 
which  appear  in  part  III  of  S.  1437  and  also  in  that  appendix  to  the 
draft  bill,  known  as  part  E,  which  would  add  a  new  chapter  to  title  28 
of  the  judicial  code  and  provide  for  a  U.S.  Sentencing  Commission. 

Essentially,  as  I  see  it,  what  this  committee  is  considering  is  the 
legislative  establishment  of  the  outer  limits  of  punishment  in  the 
Federal  courts;  and,  second,  the  creation  by  Congress  of  an  adminis- 
trative body  to  be  known  as  the  Commission  on  Sentencing  which  will 
provide  guidelines  to  tvpical  sentences  for  categories  of  offenses  and 
offenders;  nnd,  third,  the  authorization  of  the  trial  judges  to  impose 
specific  or  fixed  term  sentences,  presumptively  within  the  Commission- 
established  guidelines  but  with  necessary  flexibility  to  go  outside  those 
guidelines  in  appropriate  cases. 

Then,  of  course,  in  the  latter  event,  the  thrust  of  the  new  proposals 
would  be  to  allow  sentence  appeals  to  the  duly  constituted  courts  of 
appeal  where  the  trial  judge  decided,  for  reasons  stated  in  particu- 
larity on  the  record,  to  go  outside  of  the  administrative  proposed 
guidelines. 

It  seems  to  me  that  this  will  be  an  imaginative  and  novel  approach 
in  our  history  and  one  which  will  permit  us  to  build  up  a  body  of  case 
law,  a  body  of  lmowled.<7e  and  learning  on  an  empirical  basis. 

As  you  know.  Mr.  Chairman,  one  of  the  important  parts  of  the 
Sentencing  Commission  mandate  would  be  to  accumulate  informa- 
tion, statistical  and  otherwise,  which  we  are  sadlv  lacking  and  have 
been  sadly  lacking  in  the  Federal  system,  particularly  in  the  punish- 
ment arena,  for  all  of  our  history. 


8960 

I  think  some  of  us  overlook  this  feature  of  the  present  proposal.  I 
am  happy  to  say  that  the  draftsmen  have  not.  The  emphasis  is  very 
clear,  and  I  think  all  to  the  good. 

As  other  witnesses  have  testified,  Mr.  Chairman,  the  hope  is — and 
I  think  it's  a  reasonable  hope — that  the  scheme  here  will  go  a  long  way 
toward  eradicating  what  I  will  call  irrational  disparity. 

Surely,  I  think,  there  must  be  common  agreement  that  there  is  no 
sentencing  scheme  in  any  country,  let  alone  ours,  where  one  has  or  one 
could  expect  to  have  total  similarity  in  sentencing  under  various  penal 
sections. 

I  don't  think  we  want  that,  and  I  don't  think  it  would  be  possible 
to  achieve,  even  if  we  wanted  it. 

What  this  new  proposal  does,  however,  is  to  allow  us  for  the  first 
time  to  be  in  a  position  to  eradicate  unreasonable  disparity  which  has 
no  basis  on  the  record.  Such  disparity  does  not  comport  with  our 
notions  of  fairness  and  due  process  of  law,  and  it  does  not  serve  the 
public  image  of  justice  for  sentencing. 

Finally,  Mr.  Chairman,  to  put  it  very  bluntly,  I  would  say  this  new 
scheme  would  allow  us  to  have  some  simple  candor  and  honesty  in  our 
sentencing  arrangements. 

You  know,  and  I  know,  as  law5^ers,  that  for  years  we  have  read  in 
the  papers  that  an  offender,  John  Doe,  has  been  sentenced  to  15  years 
but  we  know  he  is  not  going  to  serve  15  years.  He  is  going  to  serve 
perhaps  5  years. 

The  public  doesn't  understand  this.  We  lawyers  perhaps  do,  but 
I'm  not  even  sure  we  do  all  the  time. 

I  believe  that  this  new  system  will  allow  fixed-term  sentences,  hope- 
fully for  modest  terms  and  not  unduly  harsh  and  repressive  terms, 
and  that  everybody  will  know  where  they  stand  the  day  the  sentence 
is  imposed. 

That,  of  course,  includes  most  particularly  the  offender  himself.  If 
he  knows  that  he  is  going  to  get  a  minimum  of  4  years  and  a  maxi- 
mum of  6,  that  is  better  for  him  and  it's  better  for  us  who  have  to  be 
also  considered,  because  punishment  can  only  be  sensible  and  only  be 
politically  acceptable  if  it's  clear  and  honest  to  everybody  in  the  gen- 
eral pu})lic,  as  well  as  thosee  of  us  who  labor  in  the  system. 

Earlier  this  morning,  I  heard  some  colloquy  between  you  and 
Judge  Tjoflat,  I  think,  on  the  provisions  in  subparagraph  (a)  of 
section  901  of  new  chapter  5S,  providing  for  the  designation  of  nine 
members  of  the  Sentencing  Commission  by  the  Judicial  Conference. 

I  would  argue  that  the  present  draft  is  a  little  unclear  because  it 
doesn't  really  make  it  ai)parent  what  skills  and  what  talents  and  what 
disciplines  are  to  be  possessed  l)y  members  of  this  commission. 

I  think  the  present  draft  could  be  read  to  permit,  if  not  encourage, 
the  appointment  of  nine  judges. 

As  an  ex-Federal  judge,  ISfr.  Chairman,  I  am  comfortable  with  the 
notion,  from  a  parochial  viewpoint,  of  having  judges  on  the  Com- 
mission; but  I'm  not  so  sure  when  I  try  not  to  be  parochial  tliat  that 
would  be  a  good  idea  entirely.  Therefore,  I  would  earnestly  suggest, 
as  others  have,  that  there  be  reconsideration  of  this  paragraph,  par- 
ticularly along  the  lines  of  mavbe  getting  some  other  appointing  au- 
thorities, in  addition  to  the  Judicial  Conference,  even  though  this 
Commission  will  be  part  of  the  judicial  branch  of  government. 


8961 

As  I  see  it,  there  is  nothing  illegal  about  having  the  President,  or 
perhaps  one  or  more  houses  of  the  Congress,  to  make  the  appoint- 
ments. 

After  all,  the  Congress  and  the  President  are  in  on  the  appointment 
of  Federal  judges.  There  seems  to  me  to  be  no  good  reason  why  they 
couldn't  be  in  on  the  appointment  of  these  Commission  members. 

More  than  that,  I  would  also  advocate  that  we  try  to  get  different 
disciplines. 

Judges  aren't  the  only  people  concerned  with  sentences  in  the 
United  States.  Sentences  are  too  important,  also,  to  be  left  to  the 
judges  alone. 

I  think  most  judges  in  the  federal  system  recognize  this. 

I  would  advocate  that  a  number  of  disciplines  be  reflected  among 
the  members  of  this  Commission.  I  would  say,  for  example,  prosecu- 
tors, parole  officials,  and  perhaps  even  lay  persons,  and  other  pro- 
fessionals— from  the  medical  profession,  perhaps.  In  short,  I  think 
this  is  an  important  feature  which  deserves  further  consideration 
which  X  know  the  subcommittee  will  give  to  the  matter. 

I  am  also  bold  enough,  Mr.  Chairman,  to  point  out  that  the  present 
draft  of  chapter  58  is  a  little  sketchy  about  the  nature,  pay,  skills,  and 
experience  of  the  staff  director  and  staff  employees. 

If  this  Commission  is  as  important  as  I  think  we  all  agree  it's  going 
to  have  to  be,  I  think  the  Congress  might  want  to  make  it  clear  what 
key  staffers  are  going  to  be  paid  and  the  kind  of  people  that  should 
be  encouraged  to  be  staff  members  of  this  Commission. 

It  is  not  going  to  be  easy  to  write  guidelines.  We  know  that.  We 
need  the  best  brains  and  the  best  people  we  can  get  to  assist  in  that, 
and  anything  that  the  Congress  can  do  to  make  that  clear  in  the  staff 
provisions  I  think  might  be  very  helpful  to  the  success  of  this  scheme 
later  on. 

I  would  like  to  say,  Mr.  Chairman,  with  the  utmost  bluntness  and 
candor,  that  I  am  one  of  those  who  thinks  that  the  day  of  the  parole 
boards  and  the  parole  commissions  is  coming  to  an  end. 

However,  I  would  like  to  add,  as  I  think  other  witnesses  have  said, 
that  one  of  the  features  of  the  present  draft  that  I  think  is  quite  prac- 
tical and  sensible  is  that  though  this  proposal  doesn't  quite  get  rid  of 
the  parole  commission,  it  does  leave  open  to  it  certain  duties  which 
are  fairly  important — perhaps  the  most  important  of  which  is  to 
make  sure  that  there  isn't  an  injustice  perpetrated  unwittingly  by  a 
sentence  that  turns  out  not  to  fit  the  offender,  even  where  the  judge 
has  considered  everything  as  best  he  can  and  has  acted  within  the 
guidelines. 

There  may  be  another  reason  that  is  not  spelled  out,  and  it  shouldn't 
have  to  be.  But  it  may  be  in  the  minds  of  the  Congress  and,  if  so,  I 
would  think  wisely  so. 

It  is  probably  a  good  idea  to  think  of  keeping  the  Parole  Commis- 
sion in  place  for  awhile  longer,  just  to  see  how  the  Sentencing  Com- 
mission scheme  functions. 

Although  I  am  one  who  would  concede,  Mr.  Chairman,  that  if  the 
Commission  works  well  there  would  then  be  no  need  of  parole  com- 
missions as  we  now  know  them ;  but  it  may  be  the  better  part  of  wis- 
dom and  practicality  to  go  slow,  as  the  present  draft  does,  in  ordec 
to  see  how  the  Commission  works. 


8962 

Finally,  I  would  note  a  concern  which  I'm  sure  will  be  echoed  by 
others.  It  probably  shows  up  in  the  present  draft  best  in  subpara- 
graph (e)  of  section  994  where  an  attempt  is  made,  as  I  read  it,  to 
have  the  Congress  tell  the  Sentencing  Commisison  that  there  should 
be  a  presumption  in  favor  of  imprisonment  for  certain  categories  of 
offenses  and  offenders. 

As  best  I  can  tell,  this  goes  back  to  the  old  organized  crime  legisla- 
tion, where  the  big  manager  of  a  narcotics  scheme  was  singled  out, 
you  will  remember,  for  special  sentence  treatment,  and  so  on. 

That  is  all  understandable.  I  just  would  like  to  make  two  points, 
however. 

The  present  draft,  to  me,  seems  to  be  unnecessarih"  ambiguous.  The 
language  used  in  the  first  sentence,  for  example,  to  the  effect  that  a 
substantial  sentence  of  imprisonment  shall  be  provided  "for  most 
cases." 

That  phrase  "for  most  cases"  seems  to  me  susceptible  of  difEculty  of 
interpretation  in  the  future.  I  really  believe  what  is  intended  is  to 
say  there  should  be  a  presumption  in  favor  of  incarceration. 

If  that  is  it,  I  think  it  might  be  better  said  that  way. 

I  would  like  to  make  this  broader  point.  I  continue  to  think  that  the 
legislature — in  our  instance,  the  Congress — must  be  involved  where 
punishment  is  being  provided  in  terms  of  rules  or  guidelines.  There- 
fore, I  think  the  legislature  is  entitled  to  put  on  the  outer  limits,  as 
this  proposal  does,  and  also  maybe  to  suggest  priorities  for  considera- 
tion. But  I  think  it  has  to  be  drafted  in  such  a  way  so  as  not  to  fetter 
unduly  the  discretion  and  wisdom  of  the  Sentencing  Commission 
itself. 

My  own  view  is  that  the  draftsmen  here  in  this  committee  are  al- 
ready sensitive  to  the  need  of  balancing  those  two  polar  limits,  but  I 
wanted  to  make  the  point  since  I  am  somewhat  troubled  by  the  pres- 
ent language  as  I  read  it  in  section  994. 

Finally,  Mr.  Chairman,  I  would  like  to  make  one  observation : 

Earlier  this  spring.  Dean  !Morris  of  the  University  of  Chicago  and 
other  witnesses  in  a  symposium  run  by  the  Library  of  Congress,  which 
is  now  reflected  in  a  report  of  the  House  Judiciary  Committee,  pointed 
out  that  in  our  system  surely,  if  not  in  other  systems,  when  a  society 
lays  down  rules  for  punishment,  they  really  are  laying  down  some- 
thing far  more  important.  Sentencing  provisions  more  than  any 
other  portions  of  a  penal  code  stake  out  what  a  society  means  to  be  its 
criteria  of  justice. 

If  that  is  so,  and  I  believe  it  is  so  most  fervently,  then  the  pnr- 
ticulnr  genius  of  the  present  ])roposal  is  that  it  allows  the  legislature 
to  have  its  say,  as  it  should,  on  what  are  America's  criteria  of  justice. 

It  allows,  also,  a  chance  to  get  away  from  the  hobgoblins  of  the 
legislative  action  which  have  always  been  with  us;  that  is,  the  Con- 
gress, for  example,  is  so  terribly  overburdened  it  can't  catch  up  and 
have  an  annual  review  of  penal  code  provisions,  including  sentence 
provision. 

Here  we  have  a  chance  for  the  legislature  to  stay  in  the  frny,  as  it 
should,  to  allow  somebody  who  is  constnntly  in  the  business  to  review 
the  matter  on  a  regular  basis  and,  finally,  in  the  third  part,  to  allow 
the  sentencing  judge  who  has  to  deal  with  the  offender  before  him  to 


8963 

have  sufficient  discretion  to  tailor  tlie  punishment  to  fit  that  particular 
individual. 

That  seems  to  me  to  be  a  very  promising  tripartite  approach  to 
sentencing. 

I  think  that  we  would  be  remiss  if  we  didn't  push  forward  and  see 
how  this  goes.  I  suspect  that  it  would  be  peculiarly  American  in  the 
best  sense  if  we  could  pull  it  off. 

Thank  you  very  much,  Mr.  Chairman. 

Senator  Hatch.  Thank  you,  judge,  for  your  comments. 

Do  you  envision  Congress  playing  any  role  in  the  sentencing  guide- 
lines ? 

Mr.  Tyler.  As  I  read  the  present  draft,  Mr.  Chairman,  the  Con- 
gress will  have  a  chance  to  review,  because  the  Sentencing  Commis- 
sion will  have  to  furnish  its  guidelines  in  a  report  to  the  Congress  and 
then  the  Congress  will  have  the  right  to  approve  or  disapprove.  Al- 
though I  know  some  are  opposed  to  this  because  they  think  it  will  cut 
into  the  discretion  and  independence  of  the  Commission,  for  my  part 
I  til  ink  that's  a  good  idea. 

If  you  take  our  system  of  government,  I  really  think  the  Congress 
can't  get  out  of  this  entirely.  As  I  read  the  draft,  Congress  doesn't 
propose  to  get  out  of  it  entirely,  and  I  think  it  is  balanced  pretty  well. 
I  think  it's  worth  a  try  just  along  these  lines. 

Senator  Hatch.  With  experience  on  the  bench  and  at  the  Depart- 
ment of  Justice,  do  you  envision  any  problems  with  appellate  review 
of  sentencing  ?  If  so,  what  problems  ? 

Mr.  Tyler.  I  have  to  confess,  Mr.  Chairman,  that  I  am  somewhat 
less  than  objective  here  because  I  was  one  of  the  co-schemers  last  year 
in  the  Department  that  worked  on  aspects  of  this  draft  which  still 
incorporates  many  features,  including  this  one  on  appellate  review. 

I  was  hopeful,  quite  frankly,  that  this  scheme  of  appellate  review 
would  satisfy  everybody.  Very  sim])ly,  what  I  mean  lay  that  is  this : 
I  happen  to  believe  that  we  should  have  appellate  review  and  that 
that  review  should  be  done  by  the  duly  constituted  courts  of  appeal 
and  not  by  panels  of  district  judges,  such  as  the  Judicial  Conference 
of  the  United  States  has  recommended  rather  consistently. 

On  the  other  hand,  I  sympathize  with  those — including  many  of 
my  friends  on  the  courts  of  appeal  in  this  country — who  feel  that 
they  would  be  inundated  by  sentencing  appeals  if  they  were  allowed 
generally. 

The  peculiar  attraction  of  this  proposal  in  this  legislation  is  that  it 
should  tend  to  limit  the  appeals  to  serious  appeals,  but  in  a  way  that 
is  totally  visible  to  outsiders. 

One  of  the  reasons  that  I  do  not  quite  accept  the  views  of  my  good 
friend,  Judge  Webster,  that  this  can  be  done  by  an  individual  court 
of  appeal  screening  process  is  that  the  courts  differ  in  their  proce- 
dures. And  the  public  can't  know  and  understand  individually,  inter- 
nal court  procedures. 

Also,  I'm  not  entirely  sure  that  we  should  solely  rest  upon  rules  of 
screening  designed  to  expedite  the  internal  workings  of  a  court,  par- 
ticularly when  we  are  dealing  with  important  subjects  like  punishment. 

Therefore,  my  hope  is  that  this  particular  scheme  will  insure  that 
only  serious  sentence  issues  get  up  to  the  courts  of  appeal. 


8964 

I  also  think,  however,  that  it  is  important  that  the  serious  issues  go 
up  to  the  courts  of  appeal,  because  I  think  they're  the  best  institution 
to  build  the  case  law  of  sentencing  which  our  system  so  badly  needs. 

Senator  Hatch.  Do  you  favor  the  complete  abolishment  of  the 
parole  release  function? 

Mr.  Tyler.  Yes,  Mr.  Chairman.  In  theory,  I  do.  Simply  because 
what  I  look  to  this  proposal  to  provide  us  with  a  scheme  of  fixed 
sentences  and  thus  get  away  from  the  old  indeterminate  sentence. 

Hopefully,  the  fixed  sentences  will  not  be  unduly  harsh  or  long; 
that  they  will  be  fixed  even  in  terms  of  providing,  after  a  period  of 
incarceration,  a  short  period  of  release  on  the  streets,  which  we  now 
call  parole.  But  the  judge  can  do  that. 

Very  simply,  it  seems  to  me,  in  theory  at  least,  we  can  look  to  the 
day  when  there  will  be  no  need  for  a  separate  superstructure  known 
as  the  Parole  Commissipji, 

As  I  said  earlier,  I  sympathize  and  join  in  with  those  who  would 
say:  A  note  of  caution;  let's  not  rush  to  abolish  the  U.  S.  Parole 
Commission  which  is  the  only  parole  commission  I  know  of  which  in 
the  last  few  years  at  least  regularized  their  procedures.  They  deserve 
a  lot  of  credit  for  that.  Until  we're  sure  how  the  new  scheme  works, 
maybe  it's  well,  as  this  proposal  says,  to  keep  them  in  place  a  while 
longer. 

Senator  Hatch.  A  number  of  witnesses  have  suggested  that  the 
legislature  should  in  this  bill  prevent  the  Sentencing  Commission 
fi"om  promulgating  guidelines  which  would  impose  a  sentence  of 
imprisonment  solely  for  the  purpose  of  rehabilitation. 

Do  you  agree  or  disagree  with  that?  Some  say  the  issue  of  rehabili- 
tation shouldn't  even  be  mentioned  in  the  bill. 

Mr.  Tyler.  No;  I  understand  that,  and  I  know  a  good  many  very 
respectable  people  in  the  academic  world  who  say  that.  But,  frankly, 
I  am  not  prepared,  Mr.  Chairman,  to  give  up  on  the  notion  of  re- 
habilitation entirely. 

Senator  Hatch.  Neither  am  I. 

Mr.  Tyler.  I  agree  that  we  aren't  very  good  at  rehabilitating  so  far 
as  we  know,  just  by  putting  man  in  prison,  even  though  I  happen  to 
think  some  of  our  prisons  are  first-rate,  contrary  to  what  a  lot  of 
people  think. 

But  Qxon  in  those  first-rate  institutions,  T  don't  think  we  know  how 
to  rehabilitate.  But  I  still  don't  think  the  Congress  or  the  courts  can 
totally  abdicate  and  say  they  don't  believe  in  rehabilitation  any  more. 

Senator  Hatch.  I  have  been  asking  this  question  to  a  few  witnesses 
on  the  subject  of  marihuana  and  its  decriminalization  below  10 
grams :  "What  would  be  your  viewpoint  on  that  ? 

Mr.  Tyler.  In  other  words,  make  the  10  gram  limit  the  cutofT  point? 

Senator  Hatch.  I\ight.  Possession  of  anything  below  that  would  be 
decriminalized;  anything  above  that  would  be  subject  to  the  effect  of 
this  act. 

ISIr.  T^iXER.  I  don't  have  much  trouble  with  that.  It  would  certainly 
be  an  impi-ovement  over  what  we're  doing  now. 

I  hoard  when  you  put  this  question  to  Judge  Tjoflat.  I  think  I 
would  agree  with  him  on  that,  basicall3\ 

Senator  Hatch.  But  you  still  believe  that  we  should  have  penalties 
for  possession  of  amounts  over  a  certain  gram-size,  but  there  should 
not  be  a  record  for  some  kid  who  has  been  indiscriminate. 


8965 

Mr.  Tyler,  What  bothers  me,  and  I  assume  bothers  people  like 
Judge  Tjoflat  too,  is  this. 

Our  experience  seems  to  indicate  that  if  a  person  has  more  than  a 
quantity  that  seems  reasonable  for  his  own  use,  the  chances  are  he  is 
probably  dealing. 

I  am  reluctant  to  see  us  decriminalizing  dealing  for  profit,  because 
that  lias  its  obvious  consequences. 

I  am  not  sure  I  am  sophisticated  enough  in  m.y  knowledge  to  laiow 
whetlier  it  should  be  precisely  at  10  grams,  but  that  seems  to  me  more 
sensible  than 

Senator  Hatch.  Than  1  ounce  which  might  make  50  to  75 
cigarettes  ? 

Mr.  Tyler.  Yes. 

Senator  Hatch.  Mr.  Bourne  testified  before  one  of  our  subcommit- 
tees that  one  ounce  would  make  something  like  75  marihuana  ciga- 
rettes. Tliat  is  quite  a  few. 

Mr.  Tyler.  Yes. 

Senaror  Hatch.  So  this  seems  to  be  at  least  a  reasonable  approach 
in  your  eyes. 

Mr.  Tyler.  Yes. 

Senator  Hatch.  Thank  you.  We  appreciate  your  testimony  here 
today  and  the  time  j^ou  have  taken  to  come  here. 

[Material  follows :] 

Statement  of  Harold  R.  Tyler,  Jr. 

At  the  kind  invitation  of  this  subcommittee,  I  appear  today  to  speak  to 
S.  1437,  Tlie  Criminal  Code  Reform  Act  of  1977.  More  particularly,  it  is  my 
understanding  that  the  subcommittee  would  like  me  to  address  myself  to  the 
sentencing  provisions  of  this  bill.  Hence,  I  wish  my  remarks  to  be  understood 
as  focusing  upon  Part  III  of  S.  1437  (Sections  2001  et  seq.)  and  that  appendix 
of  the  draft  bill  known  as  Part  E,  which  purports  to  add  a  new  chapter  No.  58  to 
Title  28  of  the  United  States  Code,  providing  for  a  United  States  Sentencing 
Commission  to  be  part  of  the  Judicial  Branch  of  Government.^ 

My  testimony  is  frankly  supportive  of  the  thrust  of  these  provisions  in 
S.  1437.  As  I  read  the  proposals,  the  Senate  is  considering  thereiu  at  least  the 
following  significant  items:  (1)  Legislative  establishment  of  the  outer  limits 
of  punishment;  (2)  the  creation  by  Congress  of  an  administrative  board  to  be 
known  as  the  commission  on  Sentencing  which  will  provide  guidelines  to 
typical  sentences  for  categories  of  offenses  and  offenders;  and  (3)  authoriza- 
tion of  the  trial  judges  to  impose  specific  or  "fixed  term"  sentences,  presump- 
tively within  the  Commission-established  guidelines,  but  with  flexibility  to  go 
outside  the  guidelines,  which  latter  event  would  subject  the  particular  sentence 
to  appellate  review  in  duly  constituted  courts  of  appeal  in  the  federal  system. 
Accepting  the  major  features  of  the  proposal  to  be  substantially  these,  I  am  of 
the  opinion  that  the  new  sentencing  sections  will  be  more  imaginative  than 
those  to  which  we  have  been  accustomed  and,  more  important,  will  permit  an 
orderly  development  of  legal  sentencing — i.e.,  the  creation  of  a  "common  law" 
of  sentencing  in  the  federal  courts  which  will  serve  as  a  model  for  all  segments 
of  the  criminal  justice  systems  in  the  United  States. 

It  should  be  conceded,  however,  that  even  if  and  when  the  new  proposals 
become  law,  it  will  take  a  number  of  years  before  a  significant  edifice  of  case 
law  on  punishment  can  be  erected  in  the  federal  system.  Also,  it  is  probable 
that  the  new  proposals  will  not  by  themselves  reduce  instances  of  crime  very 
much,  if  at  all.  Yet,  with  these  caveats,  I  nonetheless  submit  that  the  proposals 
now  under  consideration  before  this  subcommittee  will  allow  us  to  deal  more 
justly  and  sensibly  with  the  criminal  process  on  the  federal  level  than  hereto- 
fore—and this  in  keeping  with  our  best  notions  of  fairness  and  due  process  of 
law. 


1  See  also  S.  181,  Jan.  11,  1977. 


8966 

Turning  to  more  specific  potential  advantages  of  these  proposals,  they  will 
allow  flexible  responses  to  the  problems  of  irrational  disparities  of  sentencing 
within  the  federal  system.  Although  I  recognize  that  some  argue  to  the 
contrary,  every  study  on  the  subject  indicates  beyond  serious  doubt  that  there 
are  unjust  disparities,  some  within  the  same  courts.  Surely,  one  cannot 
contemplate  any  system  whereby  complete  uniformity  of  sentences  could  or 
should  be  achieved.  What  attracts  me  to  the  present  proposals  is  that  they 
will  go  a  long  way  toward  eradicating  unreasonable  disparities.  In  addition, 
the  guideline  methodology  will  permit  avoidance  of  the  serious  rigidities  of 
mandatory  minimum  sentences.  As  this  subcommittee  knows,  we  have  ex- 
perimented with  mandatory  minima  in  the  federal  system  before,  most  impor- 
tantly and  obviously  in  the  narcotics  offenses  field,  with  conspicuous  lack  of 
success  from  most  viewpoints.  Moreover,  mandatory  minima  at  best  only  serve 
to  shift  discretion  from  the  courts,  which  have  to  consider  each  individual  case, 
to  the  legislature,  which  does  not  and  cannot  do  so. 

In  addition,  it  is  important  to  note  the  sensible  resolution  of  the  much- 
debated  issue  of  sentence  appeals  in  the  federal  system.  The  current  proposals 
would  provide  for  such  appeals  only  in  those  instances  where  the  sentencing 
judge  chooses  to  go  outside  the  guidelines  proposed  by  the  sentencing  commis- 
sion. In  my  judgment,  this  mechanism  would  serve  to  confine  the  appeals  to 
serious  issues  and  to  assure  that  the  courts  of  appeal  are  not  unduly  burdened 
by  sentencing  appeals  on  their  dockets. 

As  has  already  been  publicly  noted,"  Part  III  of  S.  1437  and  proposed  new 
Chapter  58  of  Title  28,  United  States  Code,  would  largely  eliminate  the  federal 
parole  system  as  we  know  it  and  provide  fixed  sentences — either  fixed  terms 
of  incarceration  without  parole  or  terms  of  incarceration  followed  by  specific 
periods  of  parole.  There  is  much  to  be  said  in  favor  of  this  approach,  if  only 
because  offenders  would  know  in  advance  exactly  what  to  exxtect  and  so  too 
would  the  interested  public.  In  short,  there  would  be  precision  and  candor  in 
our  sentencing  procedures — qualities  sadly  lacking  now  and  within  recent 
memory.  Further,  this  approach  may,  with  luck,  lead  us  away  from  unnecessarily 
lengthy  terms  of  incarceration. 

As  stated  at  the  outset,  the  current  proposals  permit  legislative  guidance 
without  the  rigidities  and  time-lags  which  have  heretofore  been  the  hallmarks 
of  legislative  action  in  the  field  of  punishment  during  virtually  our  entire  history 
as  a  nation.  This  is  important  if  one  believes,  as  I  do,  that  punishment  ques- 
tions, more  than  any  other  parts  of  a  criminal  code,  involve  the  "fnirly 
complex  problem  of  definition  of  the  criteria  of  justice."  ^  The  Congress,  thus, 
must  have  an  important  role  in  determining  criteria  of  justice.  The  pertinent 
promise  of  Part  III  is  that  its  provisions  enable  Congress  to  fix  the  punishment 
maxima  in  the  first  instance  and  thereafter  to  exercise  veto  power,  if  it 
chooses,  over  specific  guidelines  within  the  maxima  laid  down  by  the  adminis- 
trative commission.  But,  at  the  .same  time,  the  commission  and  the  judges  in 
individual  cases  still  will  have  the  necessary  flexibility  and  discretion  to  deal 
not  only  with  individual  cases  but  to  take  into  account  accretions  of  statistics 
and  knowledge  that  hopefully  will  be  forthcoming  in  the  years  ahead. 

This  last  point  leads  to  another  intriguing  and  important  potential  of  the 
existing  proposals.  Here  I  am  talking  about  the  mandate  which  Congress 
proposes  to  place  upon  the  Commission  to  gather  statistics  and  other  relevant 
information  on  a  regular  and  current  basis  in  the  field  of  punishment.  In  my 
opinion,  the  lack  of  any  such  capacity  in  the  present  federal  system  is  one  of 
our  mo.st  critical  weaknesses.  Hence,  for  this  reason  alone,  I  respectfull.v 
submit  that  the  new  Commission,  once  it  is  properly  staffed  and  in  being,  may 
turn  out  to  offer  as  its  most  valuable  contribution  the  collection  of  information 
and  knowledge  in  fhis  most  important  and  difficult  field. 

Before  conclusion.  T  respectfully  call  to  the  attention  of  the  siibcommittee 
one  or  two  matters  which  may  not  be  particularly  clear  in  the  present  draft 
of  the  sentencing  ))rovisions.  For  example,  turning  to  the  proposed  new 
Chapter  r»8  establishing  tlie  Sentencing  Commission.  I  note  the  following: 

1.  In  Section  '.)',)\.  subi)arngraph  (a),  it  is  provided  that  the  nine  members 
of  the  Committee  are  to  be  designated  by  the  .Judicial  Conference  of  the  United 
States.  The  disciplines  or  skills  of  the  per.sons  to  be  selected  by  the  Judicial 


» Tom  Wickpr.  "Sentences  to  Fit  the  Crime,"  New  York  Times.  June  7.  1077. 
>l)pnn  Nerval  Morri.s.  University  of  Chicago  Law   School.  Testimony,   House  Judiciary 
Committee,  Subcommittee  on  Crime,  April,  Committee  Print  No.  2,  April,  1977. 


8967 

Conference,  however,  are  not  stated.  Thus,  for  example,  the  present  draft  could 
be  read  to  permit  or  require  the  Conference  to  select  nine  judges  to  be  membera 
of  the  Commission.  Yet  I  am  not  convinced  that  this  Is  clearly  the  intention 
of  the  draftsmen.  In  short,  I  suggest  that  the  subcommittee  might  wish  to 
consider  this  point  and  decide  if  it  wishes  to  propose  types  or  disciplines  of 
persons  to  be  designated  by  the  Judicial  Conference,  either  alone  or  In  concert 
with  other  appointing  officials  or  bodies. 

2.  The  present  draft  of  Chapter  58  fails  to  spell  out  potentially  important 
details  about  the  staff  director  and  employees  of  the  staff.  To  illustrate,  I 
note  that  nothing  is  said  as  to  the  qualifications  and  pay  scale  of  the  staff 
director;  similarly,  the  draft  is  silent  as  to  the  nature,  qualifications  and 
responsibilities  of  key  subordinates  of  the  director.  If  the  Commission  is  to  be 
as  important  as  obviously  intended,  I  would  suggest  that  some  thought  might 
be  given  to  some  specific  additional  language  bearing  on  these  matters.  In 
particular,  because  of  the  provisions  of  Section  995  dealing  with  the  powers 
and  obligations  of  the  Commission,  the  research  and  development  program  alone 
will  require  people  of  considerable  education  and  experience.  Hence,  it  may  be 
important  to  the  Congress  to  malie  clear  initially  that  there  are  appropriate 
positions  with  necessary  pay  scales  in  order  to  attract  persons  of  reputation 
and  capacity  to  these  positions. 

3.  Subparagraph  (e)  of  Section  994  now  provides  that,  "a  substantial  sentence 
of  imprisonment  shall  be  provided  in  the  guidelines  for  most  cases  in  which  .  .  ." 
(emphasis  added).  Although  the  Congress  may  wish  to  indicate  to  the  com- 
mission certain  priorities,  including  priorities  in  terms  of  gradations  of 
punishment,  I  would  suggest  that  the  language  here  in  subparagraph  (e)  may 
be  ambiguous.  Thus,  the  phrase  "for  most  cases"  is  susceptible  of  several 
meanings  which  may  provide  trouble  later  on  in  the  implementation  of  the 
policy  judgment  clearly  intended  in  this  subparagraph — i.e.,  that  there  should 
be  a  presumption  in  favor  of  incarceration  for  the  categories  of  offenders  here 
described. 

4.  Although  this  point  may  be  implicit  in  the  proposed  draft  of  Chapter  58, 
I  note  that  there  are  no  express  provisions  for  full  public  reporting  of  the 
guidelines  promulgated  pursuant  to  paragraph  994(a).  In  other  words,  though 
the  present  draft  requires  reporting  to  the  Congress,  it  goes  into  no  specifics 
as  to  hov>^  the  commission  shall  report  to  the  public,  and  indeed  to  the  courts 
and  the  bar.  Because  of  the  significance  of  the  guidelines  and  the  desirability 
of  their  wide  dissemination  to  not  only  courts  and  lawyers  but  also  the  public, 
the  Congress  may  wish  to  give  attention  to  specific  requirements  upon  the 
commission  for  dissemination  of  guidelines  and  other  Information  on  a  regular 
basis. 

Once  again,  I  thank  the  subcommittee  for  the  invitation  to  appear  here  this 
morning.  The  importance  of  these  sentencing  proposals  is  considerable ;  thus, 
along  with  many  others,  I  look  forward  to  the  progress  of  this  important 
legislation  in  the  weeks  ahead. 

Senator  Hatch.  Our  next  witness  is  Hon.  IVIorris  E.  Lasker,  Judge 
of  the  U.S.  District  Court  for  tlie  Southern  District  of  New  York. 

Judge  Lasker,  we  are  pleased  that  you  would  take  the  time  to  come 
here  and  express  your  viewpoints  concerning  this  important  piece  of 
legislation. 

Your  reputation,  as  with  the  others,  has  preceded  you.  "We  appre- 
ciate vour  being  here. 

STATEMENT  OF  HON.  MOERIS  E.  LASKER,  U.S.  DISTRICT  JUDGE, 
SOUTHERN  DISTRICT  OF  NEW  YORK 

Judge  Lasker.  Thank  you,  Mr.  Chairman. 

I  am  glad  to  have  the  opportunity  to  join  the  other  judges  who  have 
testified  here  today,  particularly  my  friend,  Harold  Tyler,  who  was 
a  member  of  our  court  and  whom  we  miss  very  much. 

Judge  Tyler  was  the  chairman  of  the  Second  Circuit  Sentencing 
Committee.  I  am  delighted  that,  since  his  return  to  New  York,  Chief 

92-465 — 77 26 


8968 

Judge  Kaufman  of  our  circuit  has  been  wise  enough  to  reappoint 
Judge  Tyler  to  that  job.  I  mention  that  because  he  and  I  have  worked 
together  in  this  process.  I  think  a  lot  of  our  views  are  the  same. 

I  still  would  like  to  give  you  my  own  thoughts  about  S.  1437.  I  am 
limiting  what  I  have  to  say  to  the  subjects  of  sentencing  and  parole, 
appeal  of  sentences,  and  the  creation  of  the  commission. 

My  suggestions  as  to  sentencing  and  parole  are,  on  the  whole,  tech- 
jiical  but  no  less  important,  I  hope,  for  that  reason. 

What  I  have  to  say  as  to  the  appeal  of  sentences  and  the  creation 
of  the  commission  expresses  a  philosophy. 

As  to  sentences,  it  seems  to  me  very  important  to  bear  in  mind  that 
the  major  decision  to  be  made  in  imposing  a  sentence  is  whether  or 
not  the  defendant  should  go  to  prison. 

S.  1437  specifies  no  congressional  view  as  to  that  matter.  It  seems 
to  me  that  American  experience  with  incarceration  has  not  been  en- 
couraging. While  there  are  many  sound  reasons  for  imposing  a  term 
of  imprisonment,  recognition  of  its  destructive  effects  requires  that, 
before  sentencing  a  man  or  woman  to  prison,  judges  should  consider 
whether  a  less  drastic  alternative  will  not  do  the  job. 

I,  therefore,  recommend  that  S.  1437  be  amended  to  provide  a  pre- 
sumption against  incarceration,  or  the  inclusion  in  section  2003(a)  of 
a  requirement  that  a  Judge  consider  "whether  other  less  restrictive 
sanctions  have  been  applied  to  the  defendant  frequently  or  recently." 
That  is  language  contained  in  S.  181  introduced  l)y  Senator  Kennedy 
on  behalf  of  himself,  Senator  McClellan  and  10  other  Senators. 

Section  2104(d)  of  S.  1437  authorizes  the  sentencing  court  to  extend 
the  term  of  probation  at  any  time  prior  to  the  expiration  of  the  term 
if  the  original  term  was  less  than  the  authorized  term.  This  provision 
seems  to  me  unnecessary  for  the  protection  of  the  public  and  intro- 
duces into  the  probation  process  for  the  first  time  the  destructive 
element  of  uncertainty  so  widely  believed  to  have  a  pernicious  effect 
on  prisoner  morale. 

As  probation  now  stands,  a  fixed  term  of  probation  is  established 
by  a  judge;  and  it  is  not  extended  unless  there  is  a  violation  of  proba- 
tion during  the  period  of  probation. 

That,  of  course,  is  a  feature  which  I  think  is  salutar}'  and  which  I 
think  should  be  continued. 

Moreover,  as  indicated  in  my  prepared  statement,  I  l)elicve  that 
section  2101(d)  as  now  drafted  raises  questions  of  constitutionality 
which  T  will  discuss  later. 

As  to  fines,  I  want  to  say  that  the  new  level  of  fines  which  may  be 
imposed  on  individuals  and  corporations  and  the  provision  authoriz- 
ing a  court  to  require  a  defendant  to  pay  a  fine  up  to  twice  the  gross 
gain  derived  or  gross  loss  caused,  Arhich  ever  is  greater,  provide  im- 
portant new  tools  for  the  judiciary  which  should  have  a  salutary 
effect  even  if  a  term  of  imprisonment  is  not  imposed. 

As  to  imprisonment  and  parole,  an  intelligent  review  of  S.  1437's 
provisions  on  that  sul)ject  must  be  unitary,  not  ordy  because  the  sub- 
jects are  functionally  integrated  in  general,  but  because  the  provisions 
of  S.  1437  themselves  tie  them  together  so  closely. 

I  am  concerned  that,  to  the  extent  that  1437  reduces  the  Parole 
Commission's  activities  to  merely  ministerial  duties,  at  the  same  time 


8969 

authorizing  the  sentencing  commission  to  prescribe  periods  of  parole 
ineligibility  up  to  nine-tenths  of  the  sentence,  without  significantly 
diminishing  the  length  of  sentences  presently  authorized,  the  result 
■will  be  to  lengthen  substantially  the  average  period  of  imprisonment 
actually  served. 

I  do  not  think  that  that  is  what  S.  1437's  drafters  want  to  accomplish. 

]Many  judges,  I  have  to  say,  Mr.  Chairman,  habituall}^  impose  long 
or  fairly  long  sentences  in  the  expectation  that  a  grant  of  parole  will 
result  in  the  actual  time  served  being  much  less  than  that  originally 
imposed. 

There  are  two  ways  to  eliminate  the  possibility  that  long  sentences 
will  still  be  imposed  without  the  possibility  of  meaningful  parole 
reduction.  One  is  to  reduce  the  scale  of  allowable  sentences  as  pro- 
posed by  the  Hart-Javits  bill,  S.  204.  The  other  is  to  limit  the  sentenc- 
ing commission's  powers,  as  specified  in  Senator  Kennedy's  bill,  S. 
181,  to  setting  standards  for  judicial  sentences  but  not  parole 
decisions. 

My  preference  is  for  the  latter  mainly  because  I  think  it  is  more 
politically  feasible  at  the  moment.  Otherwise,  I  would  favor  reduc- 
tion of  sentences  as  provided  in  the  Hart-Javits  bill.  That  is,  I  favor 
that  the  radical  amendment  of  the  powers  of  the  Parole  Commission 
"vv^iich  1437  contemplates  be  deferred  for  separate  comprehensive 
treatment  of  the  subject  of  parole,  including  its  possible  abolition. 

In  the  meantime,  however,  S.  1437  and  18  U.S.C.  section  4201 — 
which  is  the  Parole  Commission  Act — should  be  amended  to  require 
that  the  sentencing  and  parole  commissions  coordinate  their  activities 
for  the  purpose  of  establishing  a  rational  and  integrated  sentencing 
parole  process. 

If,  however,  the  present  structure  of  S.  1437  is  to  be  adopted,  I 
make  tlie  following  suggestions. 

First,  while  I  realize  that  the  provisions  of  section  2302(a),  which 
authorize  the  sentencing  court  to  specify  a  portion  of  the  term  of 
imprisonment  as  a  term  of  parole  ineligibility,  is  the  functional  equiv- 
alent of  a  judicially  imposed  minimum,  a  feature  common  to  many 
systems,  I  oppose  its  introduction,  particularly  in  its  present  form  in 
which,  for  example,  nine-tenths  of  a  25-year  term  may  be  specified  as 
a  period  of  parole  ineligibility. 

]Minimum  terms  write  in  stone  an  awesome  proposition — that  of 
incarceration — which  ought  not  to  be  put  beyond  the  power  of  the 
community  itself  to  modify  or  alter.  However  substantial  may  be  the 
knowledge  available  to  him  at  the  time  of  sentencing,  no  judge  can 
pretend  to  the  omniscience  necessary  to  be  sure  that  his  sentence,  even 
guided  by  the  standards  of  the  Commission,  may  not  be  mistaken  or 
unjust,  or  that  a  change  of  circumstances  may  not  require  its  altera- 
tion. That,  of  course,  applies  particularly  to  long  sentences. 

While  I  oppose  minimum  sentences,  I  recognize  that  there  is  an  im- 
pressive body  of  support  for  their  imposition  in  appropriate  circum- 
stances. Nevertheless,  even  a  system  of  minimum  sentences  must  main- 
tain a  mechanism  for  relief  in  exceptional  and  appropriate  cases — at 
least  during  the  period  of  experimentation  which  S.  1437  will 
inaug-urate. 

Second,  section  3834(d)  authorizes  the  Parole  Commission  to  set 
the  term  of  parole  at  the  time  of  the  release  determination.  This  pro- 


8970 

vision,  it  seems  to  me,  aggravates  the  factor  of  uncertainty  by  post- 
poning the  decision  of  parole  term  length  unduly.  Parole,  thougli  not 
imprisonment,  constitutes  a  sanction,  the  terms  of  which  should  be  set 
at  the  earliest  possible  time  in  the  corrections  continuum. 

Third,  the  provisions  of  section  3834(g)  authorizing  the  Parole 
Commission  to  extend  the  period  of  parole  supervision  at  anj'  time 
prior  to  its  expiration,  if  less  than  the  maximum  authorized  term  was 
originally  imposed,  are  troublesome.  It  is  certainly  clear  that  au- 
thorizing judicial  increase  of  a  term  of  imprisonment  up  to  the 
statutory  authorized  maximum  at  any  time  prior  to  the  expiration  of 
the  original  sentence  of  imprisonment  would  raise  a  very  serious 
constitutional  question. 

The  provisions  which  allow  the  Parole  Commission  to  extend  tlie- 
term  of  parole  supervision  or  a  judge  to  extend  the  term  of  probation, 
may  be  subject  to  the  same  infirmity  and,  in  any  event,  add  uncer- 
tainty to  uncertainty  in  the  life  of  the  prisoner. 

A  preferable  scheme,  it  seems  to  me,  would  be  the  establishment  of 
an  integrated  guideline's  sentence  to  include  a  prison  term  and  a 
parole  term,  subject  to  review  by  the  Parole  Commission,  so  long  as 
it  continues  to  exist,  for  possible  reduction  in  exceptional  and  appro- 
priate cases  during  the  experimental  period  to  come. 

Finally,  the  provisions  of  section  3835 (i),  which  permits  the  Parole 
Commission  on  a  second  or  later  revocation  of  parole  to  imprison  a 
defendant  for  the  term  of  the  original  sentence  less  only  the  portioii 
of  that  sentence  served  in  confinement  prior  to  the  last  parole,  but 
without  giving  him  credit  for  the  period  of  time  served  on  the  last 
revocation,  if  I  have  read  it  correctly,  seems  to  raise  questions  of 
double  jeopardy  by  twice  punishing  a  defendant  for  the  same  under- 
lying offense. 

I  come  now,  Mr.  Chairman,  to  the  question  of  appeal  of  sentences. 
I  am  pleased  that  S.  1437  contains  provision  for  appeal  of  sentences 
as  did  its  predecessor,  S.  1.  It  is  unsatisfactory,  however,  that  the  bill 
limits  the  right  of  appeal  of  a  defendant  to  the  instance  of  a  sentence 
falling  outside  the  guidelines. 

While  it  is  to  be  expected  that  if  the  guidelines  ultimately  devel- 
oped are  sound  and  are  intelligently  applied  by  the  sentencing  judge, 
the  result  should  be  reasonable  and  fair,  I  nevertheless  believe  that  all 
sentences  should  be  appealable  be  a  defendant. 

Even  where  guidelines  are  followed,  we  cannot  be  sure  that  the 
guidelines — an  entirely  new  venture  in  criminal  justice — will  bo  so 
obviously  just  as  to  preclude  the  need  for  modification  in  individual 
cases.  Nor  can  we  be  certain  that  judges  may  not  mechanically  «ipply 
the  standards  themselves  with  results  which  may  be  unjust  at  least  on' 
occasion.  We  have  learned  that  the  act  of  sentencing  is  too  awesome' 
to  be  entrusted  to  one  man  alone. 

There  may  come  a  time — and  I  certainly  hope  there  will — when  the 
body  of  material  developed  by  the  Commission  is  so  foolproof,  or 
nearly  foolproof,  that  a  single  judL*:e's  sentence  \vithin  the  guidelines 
can  be  trusted  as  sound.  Tliat  time  has  not  yet  arrived. 

At  least  until  it  does,  the  defendant  should  have  the  right  to  appeal 
any  sentence;  but  no  appeal  should  be  favorably  granted  unless  the- 
court  of  appeals  finds  that  a  sentence  outside  the  guidelines  is  unrea- 
sonable or,  within  the  guidelines,  is  clearly  unreasonable.. 


8071 

It  may  be  argued  that  granting  defendants  a  right  of  appeal  in  all 
'Cases  will  impose  an  unworkable  burden  on  the  courts  of  appeals. 
I  do  not  believe  this  will  be  so,  although  it  may  be  easy  for  a  district 
judge  to  say  that. 

First,  it  is  unlikely  that  sentences  within  the  guidelines  will  often 
be  appealed.  If  they  are,  the  appellate  courts  should  be  able  to  decide 
them  summarily  in  many,  if  not  most,  instances. 

Second,  where  the  conviction  itself  is  appealed,  a  determination  as 
to  the  propriety  of  the  sentence  will  add  only  marginally  to  the  bur- 
den on  the  court.  Experience  in  States  which  permit  appellate  review 
of  all  sentences,  suggests  that  the  burden  is  not  heavy. 

Senator  Hatch.  Judge,  excuse  me. 

This  is  Senator  Thurmond,  who  is  going  to  relieve  me  at  this  point. 
He  is  our  ranking  minority  member  in  this  subcommittee  and  in  the 
full  committee.  He  is  a  man  for  whom  I  have  a  great  deal  of  respect. 

I  apologize  that  I  have  to  leave,  but  I  do  need  to  be  over  on  the 
floor. 

Judge  Lasker.  Senator  Hatch,  I  am  grateful  that  you  were  here. 

Senator  Hatch.  I  am  grateful  that  Senator  Thurmond  is  able  to  be 
*here. 

Senator  Tiiuemond  [acting  chairman].  We  have  such  a  good  man 
'here,  I  hate  to  replace  him. 

You  may  proceed. 

Judge  Lasker.  Senator,  I  am  coming  now  to  the  question  of  the 
Commission  membership. 

It  seems  to  me  that  the  major  questions  relating  to  the  membership 
of  the  Commission  are  whether  the  membership  should  be  restricted 
to  judges  and  who  should  appoint  the  members. 

In  my  view,  the  membership  of  the  Commission  should  not  be 
limited  to  judges. 

The  process  of  sentencing  represents  the  exercise  of  the  com- 
munity's collective  sanction  upon  destructive  behavior.  Wide  as  the 
experience  of  judges  may  be,  it  cannot  encompass  the  views  of  the 
community  as  a  whole.  Aloreover,  the  membership  of  nonjudges  on 
the  Commission  would  give  perspective  to  the  judicial  approach  and 
enri-'h  thp  thinking  which  would  otherwise  emanate  from  this  spe- 
cialized group. 

Furthermore,  the  sentencing  process  inevitably  draws  not  only  on 
the  intelligence  and  experience  of  judges  but  on  the  professional 
training  and  expertise  of  those  in  the  probation  and  parole  service, 
for  example.  The  value  of  their  contribution  is  embodied  in  presen- 
tence reports  furnished  to  judges. 

An  experienced  probation  officer  who  has  recommended  sentences 
over  a  period  of  years  and  supervised  junior  officers  in  the  prepara- 
tion of  such  reports  could  be  a  valuable  commission  member. 

I,  therefore,  favor  the  terms  of  Senator  Kennedy's  bill,  which  pro- 
vides that  the  Commission  membership  shall  include  practicing  at- 
tornevs,  criminologists,  prison,  and  parole  authorities.  I  would  add  to 
this  list,  although  I  deem  the  list  inclusive  only,  a  specification  that 
the  Commission  should  include  a  person  experienced  in  probation 
::administration. 

Now,  who  should  appoint  the  members  ? 


8972 

S.  1437  provides  that  members  of  tlie  commission  shall  be  appointed 
by  the  Judicial  Conference.  With  all  respect  to  my  honored  colleagues 
who  aie  or  may  be  members  of  that  important  body,  I  question  the 
wisdom  or  efficacy  of  the  bill  in  this  regard. 

I  favor  the  provisions  of  the  Hart-Javits  bill,  which  provide  for 
appointment  of  the  commission  members  by  the  President  with  the 
advice  and  consent  of  the  Senate.  Presidential  appointment,  it  seems 
to  me,  has  very  important  advantages. 

First,  in  the  light  of  our  historic  experience,  appointments  by  the 
President  with  the  advice  and  consent  of  the  Senate  are  regarded  as 
positions  of  distinction.  Thus,  a  Presidential  appointment  will  con- 
fer the  maximum  possible  dignity  upon  the  office  of  member  of  the 
commission. 

Second,  Presidential  appointment  will  confer,  as  it  should,  an 
equality  of  position  between  judicial  and  nonjudicial  members  of  the 
commission.  If  the  commission  is  to  be  made  up  both  of  judges  and 
nonjudges,  as  I  believe  it  should,  then  appointments  should  be  made 
by  a  nonjudicial  authority. 

Third,  whether  or  not  the  membership  of  the  commission  is  re- 
stricted to  judges,  lodging  authority  for  appointment  of  its  members 
in  the  Judicial  Conference  may  throw  an  apple  of  discord  among  tlie 
members  of  the  judiciary.  One  cannot  say  whether  membershij")  on 
the  commission  will  now  or  in  the  future  be  regarded  as  a  form  of 
patronage,  whether  in  terms  of  psychic  or  financial  income.  IIoAvever, 
since  that  possibility  exists,  the  judiciary  should  not  be  involved  in 
the  process. 

The  final  objection  to  authorizing  tlie  Judicial  Conference  to  ap- 
point the  members  of  the  commission  is  that  such  a  process  would  be 
inefficient.  The  conference,  as  you  know,  presently  consists  of  approxi- 
mately 25  judges  chaired  by  the  Chief  Justice.  Such  a  large  body  is 
particularly  unsuited  to  exercise  an  appointive  power  which  for  good 
reasons  is  normally  lodged  within  the  authority  of  an  individual,  not 
a  large  group. 

I  have  earlier  recommended  that  until  the  phasing  out  of  parole  as 
an  institution  can  be  separately  and  comprehensively  studied,  or  until 
the  scale  of  sentences  set  by  S.  14-'i7  is  substantially  lowered,  the  com- 
mission should  not  be  authorized  to  establisli  parole  ineligibility  ov 
release  guidelines.  I  reiterate  the  point  here  because  such  a  proposed 
power  is  an  imjwrtant  feature  of  S.  1437. 

Mv  final  point  has  to  do  with  when  the  guidelines  should  become 
effective. 

Section  904(g)  provides  that  the  guidelines  shall  take  effect  ISO 
days  after  they  are  reiwrted  to  Congress  subject  to  veto  by  either 
house  of  Congress.  T  favor  this  provision  over  those  of  the  ITart- 
Javits  bill,  which  requires  a  two-honse  veto  to  disa]ipro\e  proposed 
guidelines,  or  the  Kennedy  bill  which  permits  the  guidelines  to  take 
effect  Avithin  180  days  unless  Congress  acts  as  a  whole. 

Indeed,  a  good  argument  may  be  made  that  the  guidelines  should 
not  become  effective  without  affirmntive  approval  by  both  houses. 
Such  a  provision  would  eliminate  any  lingering  question  as  to  the 
constitutionality  of  a  one-house  veto — a  subject  recently  passed  upon 
bv  the  Court  of  Claims  in  a  suit  brought  by  the  judges  against  the 
United  States. 


8973 

A  sounder  reason,  however,  for  requiring  two-house  approval  of  the 
guidelines  is  that  no  subject  is  more  important  in  the  process  of  gov- 
ernment or  to  the  welfare  of  the  people  than  the  fixing  of  criminal 
sanctions. 

I  end  my  remarks  by  complimenting  the  drafters  of  S.  1437  for 
authorizing  the  Commission,  in  subdivision  (a)  (13)  of  section  995  of 
chapter  58,  to  collect  and  disseminate  information  concerning  sen- 
tences actually  imposed  and  the  relationship  of  those  sentences  to  the 
purposes  of  sentencing  set  forth  in  the  statute. 

Such  a  program  should  include  research  to  follow  up  the  behavior 
of  Federal  convicts  both  on  probation  and  at  the  end  of  prison  terms. 
Its  results  should  furnish  information  which  would  enable  the  Com- 
mission and  judges  to  evaluate  their  sentencing  practices  and  the 
Bureau  of  Prisons  to  test  the  validity  of  its  programs.  Under  present 
circumstances,  no  one  knows  the  effect  of  sentences  imposed.  The  pro- 
gram which  the  statute  authorizes  would  help  us  emerge  from  this 
wilderness  of  ignorance. 

]\Ir.  Chairman,  it  is  gratifying  for  me  to  have  the  opportunity  to- 
give  you  my  views. 

If  you  have  any  questions  to  put  to  me,  I  would  be  glad  to  answer 
them. 

Senator  Thurmond.  Judge,  S.  1437  provides  that  the  Congress  have 
veto  power  over  sentencing  guidelines  set  by  the  new  sentencing 
commission. 

Does  this  procedure  seem  reasonable  in  terms  of  allowing  Congress 
to  set  minimum  levels  of  punishment  for  crimes  ? 

Judge  Lasker.  I  think,  Senator,  as  I  have  just  indicated,  that  it  is 
a  sound  provision.  I  do  think  that  it  probably  is  adequate. 

The  provision,  as  I  understand  it,  follows  the  procedure  which  is 
allowed  with  regard  to  the  Federal  rules  of  criminal  procedure  and 
civil  procedure  and  so  on.  As  you  know,  Congress  has  found  that  to 
be  fully  effective  to  enable  it  to  influence  the  content  of  those  rules, 
and  I  assume  it  will  be  fully  effective  to  enable  Congress  to  affect 
the  substance  of  the  guidelines  when  they  are  finally  created. 

So,  I  think  the  answer  to  your  question  is  yes. 

Senator  Thurmond.  A  number  of  witnesses  have  advocated  the 
abolishment  of  the  U.S.  Parole  Commission.  Do  you  think  it  should 
be  abolished  ? 

Judge  Lasker.  I  do  believe  that  history  is  showing  that  parole  as 
an  institution  is  an  idea  whose  time  may  be  past. 

But,  as  I  expressed  in  my  earlier  remarks  before  you  arrived,  Mr. 
Chairman,  I  am  concerned  about  bringing  about  such  a  radical  change 
without  considering  the  effect  which  it  ought  to  have  on  the  sen- 
tencing structure.  As  I  explained  when  Senator  Hatch  was  in  the 
chair,  I  believe  that  many  judges  impose  sentences  much  longer  than 
thev  would  if  there  were  no  parole  mechanism  available. 

Therefore,  I  believe  the  matter  has  got  to  be  studied  much  more 
carefully  before  the  commission  or  the  institution  is  abolished. 

Senator  Thurmond.  I  want  to  take  this  opportunity  to  express  our 
appreciation  to  you  for  your  appearance  here.  I  am  sure  that  your 
testimony  will  constitute  very  helpful  recommendations  to  this 
committee. 

Judge  Lasker.  I  will  be  happy  if  that  is  the  case. 


8974 

Senator  Thurmond,  Thank  you  very  much.  I  believe  I  neglected 
to  state  that  your  entire  statement  will  be  placed  in  the  record. 
Judge  Lasker.  Thank  you,  Mr.  Chairman. 

Statement  of  Morris  E.  Laskeb,  U.S.  District  Judge  of  the  Southern  District 

OF  New  York 

S  1437  constitutes  an  impressive  accomplishment :  a  substantial  recodification 
and  revision  of  Title  18  of  the  United  States  Code  and  the  creation  of  a  new 
imaginative  and  business-lilce  sentencing  structure.  The  recodification,  which 
eliminates  or  reconciles  previously  disparate  provisions  and  which  rationalizes 
the  Code  as  a  whole  will  furnish  a  more  efficient,  workable  and  fairer  vehicle 
for  the  administration  of  justice.  The  new  sentencing  structure  may  eliminate 
and  should  minimize,  insofar  as  human  efforts  can,  the  injustices  which  have 
flowed  from  the  rudderless  existing  system.  In  doing  so,  the  application  of  the 
new  procedures  should  restore  the  confidence  of  those  who  are  convicted  of 
crime,  as  well  as  the  public,  that  administration  of  justice  in  the  federal  courts 
and  correctional  system  is  fair. 

My  remarks  are  limited  to  the  subjects  of  sentencing  and  parole,  appeal  of 
sentences  and  the  creation  of  a  proposed  United  States  Sentencing  Commission. 
My  suggestions  as  to  sentencing  and  parole  are  on  the  whole  technical,  but  not 
less  important  for  that  reason.  What  I  have  to  say  as  to  appeal  of  sentences 
and  the  creation  of  the  Commission  expresses  a  philosophy. 

AS  TO  SENTENCES 

The  major  decision  to  be  made  in  imposing  a  sentence  is  whether  or  not  the 
defendant  should  be  sent  to  prison.  S  1437  specifies  no  Congressional  view  as 
to  the  matter.  American  experience  with  incarceration  has  not  been  encourag- 
ing. While  there  are  many  sound  reasons  for  imposing  a  term  of  imprisonment, 
recognition  of  its  destructive  effects  requires  that  before  sentencing  a  man  or 
woman  to  prison  Judges  should  consider  whether  a  less  drastic  alternative  will 
not  do  the  job.  I  therefore  recommend  that  S  1437  be  amended  to  provide  a 
presumption  against  incarceration,  or  the  inclusion  in  §2003 (a)  of  a  require- 
ment that  a  .Judge  consider  "whether  other  less  restrictive  sanctions  have  been 
applied  to  the  defendant  frequently  or  recently."  language  contained  in  S  181 
introduced  by  Senator  Kennedy  on  behalf  of  himself,  Senator  McClellan  and 
ten  other  Senators. 

Section  2104(d)  of  S  1437  authorizes  the  sentencing  court  to  extend  the 
term  of  probation  at  any  time  prior  to  the  expiration  of  the  term  if  the 
original  term  was  less  than  the  a\ithorized  term.  This  provision  seems  to  me 
unnecessary  for  the  protection  of  the  public  and  introduces  into  the  probation 
process  for  the  first  time  the  destructive  element  of  uncertainty  so  widely 
believed  to  have  a  pernicious  effect  on  prisoner  morale.  Moreover,  as  indicated 
below,  I  believe  the  provision  raises  questions  of  constitutionality. 

FINES 

The  now  levels  of  fines  which  may  be  imposed  on  Individuals  and  corporations 
and  the  provision  authorizing  a  court  to  require  a  defendant  to  pay  a  fine  up 
to  twice  the  gross  gain  derived  or  gross  loss  caused,  whichever  is  greater, 
provide  important  new  tools  for  the  judiciary  which  should  have  a  salutary 
effect  even  if  a  term  of  imprisonment  is  not  imposed. 

IMPRISONMENT  AND  PAROLE 

An  intelligent  review  of  S  1437's  provisions  as  to  imprisonment  and  parole 
must  be  unitary,  not  only  because  the  subjects  are  functionally  integrated  in 
general,  but  because  the  provisions  of  S  1437  itself  ties  them  together  so 
closely.  I  am  concerned  that  to  the  extent  that  S  1437  reduces  the  Parole 
Commission's  activities  to  merely  ministerial  duties,  at  the  same  time 
authorizing  the  Sentencing  Commission  to  prescribe  periods  of  parole  in- 
eligibility up  to  9/10  of  the  sentence,  without  signifimntly  diminishing  the 
length  of  sentences  presently  authorized,  the  result  will  be  to  lengthen  sub- 
stantially the  average  period  of  imprisonment  actually  served.  Many  Judges 
-habitually  impose  long  or  fairly  long  sentences  in  the  expectation  that  a  grant 


8975 

of  parole  will  result  in  the  actual  time  served  being  much  less  than  the 
sentence  originally  imposed. 

There  are  two  ways  to  eliminate  the  possibility  that  long  sentences  will  still 
be  imposed  without  the  possibility  of  meaningful  parole  reduction.  One  is  to 
reduce  the  scale  of  allowable  sentences  as  proposed  by  the  Hart-Javits  Bill 
S  204 ;  the  other  is  to  limit  the  Sentencing  Commission's  powers  as  specified  in 
Senator  Kennedy's  Bill  S  ISl  to  setting  standards  for  judicial  sentences  but 
not  parole  decisions.  My  preference  is  for  the  latter :  that  is,  that  the  radical 
amendment  of  the  powers  of  the  Parole  Commission  which  S  1437  contemplates 
be  deferred  for  separate  comprehensive  treatment  of  the  subject  of  parole, 
including  its  possible  aliolition.  In  the  meantime,  however,  S  1437  and  18 
U.S.C.  §4201  et  seq.  (Parole  Commission  Act  of  1976)  should  be  amended  to 
require  that  the  Sentencing  and  Parole  Commissions  coordinate  their  activities 
for  the  purpose  of  establishing  a  rational  and  integrated  sentencing-parole 
process. 

If,  however,  the  present  structure  of  S  1437  is  to  be  adopted,  I  make  the 
following  suggestions. 

1.  While  I  realize  that  the  provisions  of  §2302 (a),  authorizing  the  court  to 
specify  a  portion  of  the  term  of  imprisonment  as  a  term  of  parole  ineligibility, 
is  the  functional  equivalent  of  a  judicially  imposed  minimum  term  of  imprison- 
ment, a  feature  common  to  many  systems,  I  oppose  its  introduction  particularly 
in  its  present  form,  in  which,  for  example,  9/10  of  a  twenty-five  year  term  may 
be  .specified  as  a  period  of  parole  ineligibility.  Minimum  terms  write  in  stone  an 
awesome  proposition — that  of  incarceration — whch  ought  not  be  put  beyond 
the  power  of  the  community  to  modify  or  alter.  However  substantial  may  be  the 
knowledge  available  to  him  at  the  time  of  sentencing,  no  Judge  can  pretend 
to  the  omniscience  necessary  to  be  sure  that  his  sentence,  even  guided  by  the 
standards  of  the  Commission,  may  not  be  mistaken  or  unjust,  or  that  a  change 
of  circumstances  may  not  require  its  alteration. 

While  I  oppose  mandatory  minimum  sentences,  I  recognize  that  there  is  an 
impressive  body  of  support  for  their  imposition  in  appropriate  circumstances. 
Nevertheless,  even  a  system  of  minimum  sentences  must  maintain  a  mechanism 
for  relief  in  exceptional  and  appropriate  cases — at  least  during  the  period  of 
experimentation  which  S.  1437  will  inaugurate. 

2.  Section  3834(b)  authorizes  the  Parole  Commission  to  set  the  term  of 
parole  at  the  time  of  the  release  determination.  This  provision  aggravates  the 
factor  of  uncertainty  by  postponing  the  decision  of  parole  term  length  unduly. 
Parole,  though  not  imprisonment,  constitutes  a  sanction,  the  terms  of  which 
should  be  set  at  the  earliest  possible  time  in  the  corrections  continuum. 

3.  The  provisions  of  §3834 (g)  authorizing  the  Parole  Commission  to  extend 
the  period  of  parole  supervision  at  any  time  prior  to  its  expiration,  if  less  than 
the  maximum  authorized  term  was  originally  imposed,  are  troublesome.  It  is 
certainly  clear  that  authorizing  judicial  increase  of  a  term  of  imprisonment 
up  to  the  statutory  authorized  maximum  at  any  time  prior  to  the  exjnration 
of  the  original  sentence  date  would  raise  a  serious  constitutional  question.  The 
provisions  which  allow  the  Parole  Commission  to  extend  the  term  of  parole 
supervision  or  a  Judge  to  extend  the  term  of  probation  may  be  subject  to  the 
same  infirmity  and,  in  any  event,  add  uncertainty  to  uncertainty  in  the  life 
of  the  prisoner.  A  preferable  scheme  would  be  the  establishment  of  an  integrated 
guideline  sentence  to  include  a  prison  term  and  a  parole  term,  subject  to 
review  by  the  Parole  Commission  for  possible  reduction  in  exceptional  and 
appropriate  cases  during  the  experimental  period  to  come. 

4.  The  provisions  of  §383.5 (i)  which  permit  the  Parole  Commission  on  a 
second  or  later  revocation  of  parole  to  imprison  a  defendant  for  the  term  of  the 
original  sentence  less  only  the  portion  of  the  original  sentence  served  in 
confinement  prior  to  the  last  parole,  but  without  giving  him  credit  for  the 
period  of  time  served  on  the  last  revocation,  if  I  have  read  it  correctly,  seems 
to  raise  questions  of  double  jeopardy  by  twice  punishing  a  defendant  for  the 
same  underlying  offense. 

APPEAL  OF  SENTENCES 

I  am  pleased  that  S.  1437  contains  provision  for  appeal  of  sentences  as  did 
its  predecessor  S.  1.  It  is  unsatisfactory,  however,  that  the  bill  limits  the  right 
of  appeal  of  a  defendant  to  the  instance  of  a  sentence  falling  outside  the 
guidelines.  While  it  is  to  be  expected  that  if  the  guidelines  ultimately  developed 


8976 

are  soniul  and  are  intellicjently  applied  by  the  ?entencing  Jiidse.  the  result 
should  he  reasonable  and  fair,  I  nevertheless  believe  that  all  sentences  should 
be  appealable  by  a  defendant.  Even  where  .ffuidelines  are  followed  we  cannot 
be  sure  that  the  guidelines — an  entirely  new  venture  in  criminal  justice — will 
be  so  obviously  just  as  to  preclude  the  need  for  modification  in  individual 
cases.  Nor  can  we  be  certain  that  Judges  may  not  mechanically  apply  the 
.standards  themselves  with  results  which  may  be  unjust  at  least  on  occasion. 
We  have  learned  that  the  act  of  sentencing  is  too  awesome  to  be  entrusted  to 
one  man  alone.  There  may  come  a  time  when  the  body  of  material  developed 
by  the  Commission  is  so  foolproof  or  nearly  foolproof  that  a  single  Judge's 
sentence  within  the  guidelines  can  be  trusted  as  sound.  That  time  has  not  yet 
arrived.  At  least  until  it  does  the  defendant  should  have  the  right  to  appeal  any 
sentence  but  no  appeal  should  be  favorably  granted  unless  the  Court  of  Appeals 
finds  that  a  sentence  outside  the  guidelines  is  "unreasonable"  or  within  the 
guidelines,  is  "clearly  unreasonable." 

It  may  be  argued  that  granting  defendants  a  right  of  appeal  in  all  cases  will 
impo.se  an  unworkable  burden  on  the  Courts  of  Appeal.  I  do  not  believe  this 
will  be  so.  First,  it  is  unlikely  that  sentences  within  the  guidelines  v,'ill  often 
be  appealed,  and  if  they  are  the  Appellate  Courts  should  be  able  to  decide  them 
summarily  in  many  instances.  Second,  where  the  conviction  itself  is  appealed, 
a  determination  as  to  the  propriety  of  the  sentence  will  add  only  marginally 
to  the  burden  of  the  Court.  Experience  in  states  which  permit  appellate  review 
of  all  sentences,  suggests  that  the  burden  is  not  heavy. 

One  further  small  but  significant  consideration  as  to  appeals  of  sentences: 

S.  1  provided  that  in  acting  on  an  appeal  the  Appellate  Court  should  take 

Into    consideration    "the    opportunity    of    the    district    court    to    ob.serve    the 

defendant."  The  provision  has  been  eliminated  from  S.  1437.  I  believe  it  should 

be  restored. 

COMMISSION  MEMBERSHIP 

The  major  questions  relating  to  the  membership  of  the  Commission  are 
whether  the  membership  should  be  restricted  to  Judges,  and  who  should 
appoint  the  members. 

In  my  view,  the  membership  of  the  Commission  should  not  be  limited  to 
Judges.  The  process  of  sentencing  represents  the  exercise  of  the  community's 
collective  sanction  upon  destructive  behavior.  Wide  as  the  experience  of  Judges 
may  be  it  cannot  encompass  the  views  of  the  community  as  a  whole.  Moreover, 
the  membership  of  non-Judges  on  the  Commission  would  give  perspective  to  the 
judicial  approach  and  enrich  the  thinking  which  would  otherwise  emanate  from 
this  specialized  group.  Furthermore,  the  sentencing  iirocess  inevitably  draw.s 
not  only  on  the  intelligence  and  experience  of  Judges  but  on  the  professional 
training  and  experti.se  of  those  in  the  probation  and  parole  service.  The  value 
of  their  contribution  is  embodied,  for  example,  in  the  pre-sentence  reports 
furnished  to  Judges.  An  experienced  probation  officer  who  has  recommended 
sentences  over  a  period  of  years  and  supervised  junior  officers  in  the  prpparation 
of  surh  reports,  could  be  a  valuable  Commission  member.  I,  therefore,  favor 
the  terms  of  Senator  Kennedy's  Bill.  S.  3 SI.  which  provides  that  the  Commi.'S- 
sion  membership  .shall  include  practicing  attorneys,  criminologists,  prison  and 
parole  authorities.  I  would  add  to  this  list,  although  T  deem  the  list  inclusive 
only,  a  specification  that  the  Commission  should  include  a  person  experienced 
In  probation  administration. 

WHO  SHOULD  APPOINT  THE  MEMBEKS 

S.  1-137  provides  thnt  meml)ers  of  the  Commission  shall  be  appointed  by  the 
Judicial  Conference.  With  all  respect  to  my  honored  collengues  who  are  or  may 
be  a  member  of  that  important  body,  I  question  the  wisdom  or  efficacy  of  the 
Bill  in  tills  rotrard.  I  favor  the  provisions  of  the  Ilart-Jnvits  Bill.  S.  201.  which 
provides  for  appointment  of  Commission  members  by  the  President  with  the 
advice  and  consent  of  the  Senate.  Presidential  appointment  has  important 
advantages. 

First,  in  the  light  of  our  historic  experience,  appointments  by  the  President 
with  the  advice  and  consent  of  the  Senate  are  regarded  as  positions  of 
distinction.  Thus  a  Presidential  appointment  will  confer  the  maximum  po.ssible 
dignity  upon  the  office  of  member  of  the  Commission. 

Second,  Presidential  appointment  will  confer,  as  it  should,  an  equality  of 
position  between  judicial  and  non-judicial  members  of  the  Commission.  If  the 


8977 

Commission  is  to  be  made  up  hoth  of  Judges  and  non-Judges,  as  I  believe  it 
should,  then  appointments  sliould  be  made  by  a  non-judicial  authority. 

Third,  whether  or  not  the  membership  of  the  Commission  is  restricted  to 
Judges,  lodging  authority  for  appointment  of  its  members  in  the  Judicial 
Conference  may  throw  an  apple  of  discord  among  the  members  of  the 
Judiciary.  One  cannot  say  whether  membership  on  the  Commission  will  now 
or  in  the  future  be  regarded  as  a  form  of  patronage,  whether  in  terms  of 
psychic  or  financial  income.  However,  since  that  possibility  exists,  the  Judiciary 
should  not  be  involved  in  the  process. 

The  final  objection  to  authorizing  the  Judicial  Conference  to  appoint  the 
members  of  the  Commission  is  that  such  a  process  would  be  inefficient.  The 
Conference,  as  you  know,  presently  consists  of  approximately  twenty-five 
Judges  chaired  by  the  Chief  Justice.  Such  a  large  body  is  particularly  unsuited 
to  exercise  an  appointive  power  which  for  good  reasons  is  normally  lodged 
within  the  authority  of  an  individual,  not  a  large  group. 

THE  POWERS  OF  THE  COMMISSION 

I  have  earlier  recommended  that  until  the  phasing  out  of  parole  as  an 
institution  can  be  separately  and  comprehensively  studied,  or  until  the  scale 

•of  sentences  set  by  S.  1437  is  substantially  lowered,  the  Commission  should  not 
be  authorized  to  establish  parole  ineligibility  or  release  guidelines.  I  reiterate 
the  point  here  because  such  a  proposed  power  is  an  important  feature  of  S.  1437. 

WHEN  SHOULD  THE  GUIDELINES  BECOME  EFFECTIVE 

Section  994(g)  provides  that  the  guidelines  shall  take  effect  180  days  after 
they  are  reported  to  Congress  stibject  to  veto  by  either  House  of  Congress.  I 
favor  this  provision  over  those  of  the  Hart-Javits  Bill  (S.  204)  which  requires 
a  two  House  veto  to  disapprove  proposed  guidelines,  or  the  Kennedy  Bill 
(S.  181)  which  permits  the  guidelines  to  take  effect  within  ISO  days  unless 
Congress  as  a  whole  acts.  Indeed,  a  good  argument  may  be  made  that  the 
guidelines  should  not  become  effective  without  affirmative  approval  by  both 
Houses.  Such  a  provision  would  eliminate  any  lingering  question  as  to  the 
constitutionality  of  a  one  House  veto  (a  subject  recently  passed  upon  by  the 
Court  of  Claims  in  Atkins,  ct  al.  v.  United  States,  (41-76  May  18,  1977)).  A 
sounder  reason,  however,  for  requiring  two  House  approval  of  the  guidelines 
is  that  no  subject  is  more  important  in  the  process  of  government  or  to  the 
welfare  of  the  people  than  the  fixing  of  criminal  sanctions. 

I  end  my  remarks  by  complimenting  the  drafter  of  S.  1437  for  authorizing 
the  Commission,  in  sub-division  (a)  (13)  of  §995  of  Chapter  58,  to  collect  and 
disseminate  information  concerning  sentences  actually  imposed  and  the  rela- 
tionship of  those  sentences  to  the  purposes  of  sentencing  set  forth  in  the  statute. 
Such  a  program  should  include  research  to  follow-up  the  behavior  of  federal 
convicts  both  on  probation  and  at  the  end  of  prison  terms.  Its  results  should 
furnish  information  which  would  enable  the  Commission  and  Judges  to 
evaluate  their  sentencing  practices  and  the  Bureau  of  Prisons  to  test  the 
validity  of  its  programs.  Under  present  circumstances,  no  one  knows  the  effect 
of  sentences  imposed.  The  program  which  the  statute  authorizes  would  help 
us  emerge  from  this  wilderness  of  ignorance. 

Senator  Thurmond.  Our  next  witness  is  Andrew  von  Hirscli  of  the 
Center  for  Policy  Research,  New  York,  N.Y. 

STATEMEITT   OF  ANDEEW  VON  HISSCH,   SCHOOL   OF  CSIMINAL 
JUSTICE,  HTJTGESS  UNIVERSITY 

]Mr.  VON  HiRSCH.  !Mr.  Chairman,  it  is  a  pleasure  to  be  here  to  have 
the  op]Dortunity  to  testify. 

In  the  interest  of  time,  I  will  try  to  summarize  some  of  the  main 
points  of  my  prepared  testimony  as  quickly  as  I  can. 

IMy  own  involvement  in  this  area  comes  from  a  number  of  projects 
that  I  have  been  workinj;  on.  T  was  the  principal  author  of  a  book 
entitled  "Doing  Justice:  The  Choice  of  Punishments,"  which  advo- 


8978 

cated  a  "just-deserts"  rationale  for  sentencing.  It  contended  that 
sentences  should  be  primarily  based  on  the  seriousness  of  the  offense  ;• 
and  that,  in  the  interests  of  fairness,  rehabilitative  and  predictive' 
considerations  should  not  be  taken  into  account  in  settincr  the  severity 
of  punishment.  The  Hart-Javits  bill,  S.  204,  which  I  helped  draft, 
reflects  this  rationale. 

I  am  now  engaged  in  an  LEAA-funded  study  on  one  of  the  issuf^s 
which  wo  have  been  talking  about  here:  the  alternative  to  parole.  It 
deals  with  the  question:  if  you  get  away  from  a  rehabilitative  mode], 
what  should  happen  to  parole  ? 

Let  me  say,  first,  that  I  think  that  this  legislation,  S.  1437,  marks; 
a  great  stride  towards  a  sensible  sentencing  system.  The  existing 
situation,  where  judges  have  virtually  almost  unstructured  discretion 
to  decide  the  duration  of  confinement  and  whether  to  confine  has 
never  made  any  sense.  As  we  begin  to  move  away  from  the  idea  of 
rehabilitation  as  a  justification  for  confinement,  and  as  we  move  to- 
ward the  idea  that  sentencing  decisions  should  be  based  (at  least  irt 
important  j^art)  on  what  somebody  did — on  the  seriousness  of  his 
crime — it  becomes  absolutely  essential  to  have  standards. 

I  think  that  the  technique  which  that  the  bills  uses,  which  is  to 
create  a  sentencing  commission  to  set  the  standards,  is  the  most  sensi- 
ble alternative. 

California  has  tried  to  set  sentencing  standards  by  legislation.  The 
experience  in  California  suggests  it  is  not  a  good  idea.  There  are  two 
kinds  of  problems.  There  is  the  political  problems  that  arise  from  the 
fact  that  it  is  always  tempting  for  a  legislature  advocate  long  mini- 
mum sentences,  even  when  there  is  doubt  that  they  actually  can  be 
imposed.  But,  beyond  the  political  problem  is  simply  the  question  of 
time.  This  body  is  engaged  in  a  great  deal  of  very  important  decision- 
making. Sentencing  standards  are  very  complicated.  They  have  to  be 
constantly  revised.  I  do  not  think  that  a  legislative  body  with  this 
much  on  its  agenda  as  the  Congress  has  the  time  left  over  from  more 
important  functions  to  tinker  with  sentencing  standards  over  time. 

So,  I  do  think  that  the  basic  thrust  of  the  legislation  is  very 
salutary. 

Let  me,  though,  raise  what  I  see  to  be  problems  in  the  bill.  ThoT 
revolve  mainly  around  one  issue.  It  is  the  issue  of  what  should  happen 
with  parole. 

The  legislation,  S.  1437,  at  the  present  time,  leaves  the  commission 
to  decide  the  details  of  the  standards — which  I  think  is  sensible.  It 
also  leaves  the  commission  to  decide  what  the  purposes  of  the  stand- 
ards should  be — which  is  an  arguable  point.  I  prefer  the  approach  of 
the  Hart-Javits  bill,  S.  204,  which  specifies  in  some  detail  what  pur- 
poses the  sentencing  commission  should  follow. 

But  S.  1437  goes  furtlier.  Namely,  it  leaves  the  commission  to 
decide  the  bnsic  structural  issue  of  whether  ])arole  should  exist  or  not. 
It  docs  this  by  providing  that  the  commission  may  prescribe  periods 
of  parole  ineligibility  of  up  to  nine-tenths  of  the  sentence.  If  you 
impose  across  the  board  nine-tenths  pnrole  ineligibility,  the  effect  is, 
of  course,  that  parole,  for  all  practical  purposes,  disappears. 

Now,  I  think  that  that  issue,  of  what  should  happen  to  parole,  is  a 
structurally  important  enough  question  that  it  should  not  be  simply^ 


8979 

passed  on  to  the  sentencing  commission.  It  sliould,  I  think,  be  ad- 
dressed in  the  legislation.  That  is  the  fundamental  problem  I  have. 

Let  me  mention  some  specific  pioblems — some  of  them  were  touched 
on  by  Judge  Lasker — in  the  manner  in  which  the  bill  authorizes  the 
effective  elimination  of  parole. 

My  own  theory  of  punishment  would  be  a  theory  which  would  not 
leave  much  room  for 

Senator  Thurmond.  Excuse  me.  I  notice  that  there  is  another  vote 
on  the  floor. 

Can  you  finish  in  3  or  4  minutes?  Otherwise,  I  am  afraid  that  we 
will  have  to  come  back  another  day. 

Mr.  VON  HiRSCH.  I  could  try  to  finish  in  5  minutes. 

Senator  Thurmond.  We  are  going  to  insert  your  full  statement  into 
the  record.  Are  you  saying  things  that  are  not  in  your  statement  ? 

Please  take  just  3  or  4  minutes  to  wind  up,  because  I  will  have  to 
leave. 

Mr.  VON  HiRSCH.  To  put  it  very  succinctly,  Mr.  Chairman,  I  think  it 
is  very  dangerous  to  try  to  abolish  parole  if  you  do  the  two  things 
that  the  bill  now  does:  namely,  preserve  the  very  long  authorized 
sentences  of  confinement,  and — and  I  think  this  is  the  most  serious 
problem — continue  to  have  the  judiciary  appoint  the  members  of  the 
commission. 

Judges  are  now  used  to  prescribing  long  purported  sentences  of 
confinement.  They  are  not  used  to  the  functions  a  parole  board  now 
has  of,  namely,  imposing  actual  durations  of  confinement — which 
have  to  be  shorter. 

If  you  authorize  the  abolition  of  parole,  continue  the  long  maxima, 
and  have  a  judge-dominated  commission  continue  to  prescribe  the 
terms,  I  think  you  could  have  an  enormous  jump  in  the  duration  of 

•  confinement. 

I,  therefore,  suggest  the  following. 

First  of  all,  I  agree  with  Judge  Lasker  that  the  ideal  solution 
would  be  that  we  defer  any  major  change  in  the  status  of  parole  until 
we  take  a  look  at  how  well  the  sentencing  commission  has  been  han- 

•  dling  its  initial  job  of  structuring  judges'  sentencing  standards. 

I  think  if  you  do  that,  then  I  think  it  would  make  sense  in  the  in- 
terim to  change  the  factors  described  in  section  3831  (c)  of  the  bill, 
that  the  parole  board  is  supposed  to  consider  in  its  parole  decisions  so 
that  they  read  similarly  to  the  factors  which  the  bill  requires  the 
sentencing  commission  to  consider. 

If  you  do  not  do  this,  if  you  want  to  act  now,  then  it  seems  to  me 
that  if  you  give  the  sentencing  commission  discretion  on  the  question 
of  parole  abolition,  that  a  few  things  have  to  be  changed. 

First,  I  think  you  have  to  change  the  appointing  authority.  You 
have  to  move  toward  a  presidential  appointment  or  some  other 
method  to  insure  that  this  is  not  totally  a  judge-dominated 
commission. 

I  think,  also,  that  you  should  not  allow • 

Senator  Thurmond  [acting  chairman].  Have  you  said  this  in  your 
statement  ? 

Mr.  von  Hirsch.  No  ;  Senator,  I  have  not. 

Senator  Thurmond.  Go  ahead. 


8980 

Mr.  VON  HiRSCH.  If  you  authorize  periods  of  parole  ineligibility  in 
excess  of  one-tliird,  you  should  do  so  only  to  the  extent  prescribed  by 
the  Commission.  At  the  present  time,  the  way  the  bill  works  is  that 
the  Commission's  guidelines  are  only  guidelines  which  judges  are 
asked  to  consider. 

Finally,  it  seems  to  me  that  the  commission  should  then  be  required 
to  hold  separate  hearings  on  the  question  of  the  proposed  phaseout  or 
elimination  of  parole.  I  think  there  should  be  language  expressly 
inserted  in  the  bill  which  provides  that  if  there  is  an}'  phaseout  of 
parole,  the  commission  be  required  to  adjust  durations  of  confinement 
in  such  a  way  as  to  reflect  the  fact  that  parole  is  now  no  longer  avail- 
able to  reduce  times  of  actual  imprisonment. 

I  talve  it,  because  of  the  absence  of  time,  if  that  is  all  right.  Senator, 
I  can  try  to  submit  a  separate  letter  in  which  I  submit  some  of  these 
details  to  the  staff. 

Senator  Thurmond.  Without  objection,  your  statement  will  be 
inserted  in  the  record.  If  you  wish  to  make  any  addendum  to  your 
statement  for  the  record,  feel  free  to  do  that. 

]VIr.  VON  HiRscH.  Thank  you. 

Senator  Thurmond.  We  will  keep  the  record  open  for  that. 

Thank  you  very  much  for  appearing  here.  We  appreciate  your  pres- 
ence. I  am  sure  your  testimony  will  be  A^er}^  helpful. 

Statement  of  Andrew  von  Hirsch.  Graduate  School  of  Criminal  Justice, 

Rutgers  University 

The  sentencinf?  provisions  of  S.1437  contain  an  innovation  which  I  strongly 
support — the  creation  of  a  sentencing  commission  to  formulate  standards  for 
criminal  sentences.  At  the  same  time,  I  have  some  concerns  about  some  of  the 
specifics  of  the  legislation,  which  I  shall  explain. 

My  credentials  for  offering  these  opinions  can  briefly  be  stated.  I  was 
principal  author  of  Doing  Justice:  The  Choice  of  Punishments^,  which  was  the 
report  on  the  aims  of  criminal  sentencing  of  the  Committee  for  the  Study  of 
Incarceration,  an  interdisciplinary  study  group  of  scholars  funded  by  the 
Field  Foundation  and  New  World  Foundation.  The  report  recommended  a 
"just  de.serts"  rationale,  and  the  creation  of  sentencing  standards  in  the  form 
of  presumptive  sentences.  The  substance  of  the  report's  reconunendations  are 
embodied  in  the  Ilart-.Tavits  bill  (S.204),  now  before  this  Sul)committee,  and 
I  assisted  in  the  drafting  of  that  bill. 

I  was  also  a  member  of  the  Twentieth  Century  Fund's  Task  Force  on 
Criminal  Sentencing,  whose  report,  Fai?'  and  Certain.  Punishment,-  likewise 
recommends  the  adoittion  of  presumptive  sentences. 

Recently,  I  have  been  conducting  a  study  on  alternatives  to  parole,  funded: 
by  the  Law  Enforcement  Assistance  Administration. 

The  Weed  for  Sentencing  Standards. — I  shall  not  dwell  long  on  the  urgent 
need  for  standards  in  sentencing.  Numerous  studies  and  reports  have  docu- 
nient(>d  that  need,  as  a  means  for  structuring  discretion  and  reducing  disparity.' 
My  own  book,  Doing  Justice  strongly  recommends  the  establishment  of  such 
standards. 

Those  of  us  who  advocate  sentencing  standards  do  not  claim,  I  should  note, 
that  disparity  can  Jie  corrected  solely  l)y  estal)lishing  norms  for  judges'  formal 
sentencing  decisions.  Equal  justice  in  sentencing  will  be  elusive  as  long  as 
prosecutors  continue  to  have  unlimited  and  unstructured  powers  to  decide  what 
crime  to  charge  and  what  guilty  plea  to  accept.  We  claim  merely  that  sentencing 


1  Aiiilr "w  von  Hirsch,  Doing  Justice:  The  Choice  of  Punishments,  (New  York:  Hill  and 
Wan;:.  litTO). 

•Twpiitloni  Conturv  Fund,  Tnsk  Forcp  on  Criminal  Sentencing,  Fair  and  Certain 
Puninfimcnt  (New  York:  McGraw-Hill,  107G). 

"  Sco,  o.t'.,  ^rn^vin  E.  Frniikcl,  Criminal  Sentences  (New  York  :  mil  and  Wang,  1976)  : 
Fair  and  Certain  Punishment,  op.  clt. 


8981 

Btandards  are  a  useful  first  step:  that  once  some  semblance  of  coherence  is 
given  the  formal  sentencing  decision,  one  can  then  address  the  politically  and 
substantively  harder  question  of  regulating  prosecutorial  discretion/ 

The  Advantages  of  a  Sentencing  Commission. — Sometimes,  it  is  supposed 
that  the  only  alternative  to  wide  sentencing  discretion  is  to  have  the  legislature 
set  the  sentencing  standards.  Suggestions  to  limit  judges'  discretion  evoke 
arguments  about  the  ills  of  legislative  sentencing — for  instance,  the  tendency 
of  some  legislatures  to  adopt  harsh  penalties  to  show  "toughness  on  crime" 
to  the  electorate.' 

I  do  not  believe  that  the  legislature  is  well  suited  to  write  the  sentencing 
standards.  Aside  from  the  dangers  of  escalating  the  penalties  for  political 
reasons,  legislatures  simply  do  not  have  the  necessary  time.  Adequate  standards 
are  complicated — and  will  require  experimentation  and  revision  over  time.  The 
standard-setting  agency  should  be  capable  of  reviewing  and  adusting  the 
standards  continually,  in  the  light  of  accumulating  judicial  experience  with  the 
use  of  such  norms.  A  Congress  that  must  each  year  decide  a  huge  national 
budget  and  develop  major  programs  in  the  fields  of  energy,  environment,  job- 
creation  and  a  host  of  other  areas  simply  does  not  have  time  and  resources 
for  the  tasli  of  reviewing  and  fine-tuning  sentencing  standards  adopted  in  a 
previous  session. 

It  is  much  preferable,  T  thinli,  to  create  a  special  rule-making  agency— 
namely,  a  sentencing  commission — to  set  the  standards,  as  this  Subcommittee's 
bill  (S.  1437)  as  well  as  the  Kennedy  bill  (S.181)  and  the  Hart-Javits  bill 
(S.204)  propose.  A  specialized  rule-making  agency,  having  the  setting  of 
sentencing  standards  as  its  primary  function,  could  develop  expertise  in  this 
task.  It  could  collect  empirical  data  for  use  in  formulating  its  standards.  It 
could  regularly  modify  and  revise  its  norms  on  the  basis  of  experience.  And  as 
a  body  that  is  comparatively  insulated  from  political  stresses,  it  will  be  under 
less  pressure  to  adopt  harsh  symbolic  penalties  that,  in  a  system  having  limited 
resources,  cannot  feasibly  be  applied  in  normal  cases. 

Who  Should  Appoint  the  Commission? — The  Subcommittee  bill  (S.1437) 
provides  that  the  Commission  is  to  be  located  in  the  judicial  branch,  and  that 
its  members  are  to  be  appointed  by  the  Judicial  Conference. 

I  do  not  share  the  view  that  sentencing  standards  are  a  matter  of  concern 
to  judges  alone.  Then  sentencing  norms  adopted  by  the  Commission  will  have  an 
enormous  impact  on  the  decisions  of  prosecutors  and  parole  oflicials — who  are 
not  members  of  the  judicial  branch,  but  who  nevertheless  substantially  in- 
fluence what  happens  to  the  convicted  offender. 

Consider  the  prosecutor.  Even  in  the  Federal  system,  pleas  of  guilty  are  not 
uncommon ;  and  the  prosecutor's  decision  on  what  plea  to  accept  and  what 
sentence  to  recommend  may  largely  determine  the  disposition.  Whether  the 
standards  succeed  or  fail  may  depend  on  the  Commission's  ability  to  anticipate 
how  these  norms  will  affect  such  prosecutorial  decisions.  With  careful  attention 
given  this  subject,  the  standards  miglit  help  alleviate  some  present  abuses  of 
prosecutorial  discretion — by  making  the  penalty  that  would  follow  from  a  given 
charge  more  predictable,  and  by  limiting  the  power  to  threaten  disproportionate 
punishments  against  those  who  insist  on  their  right  of  trial.  But  if  the  impact 
of  the  standards  on  prosecutorial  decisions  is  overlooked,  the  standards  may — 
as  Professor  Alschuler  has  warned  in  a  thoughtful  recent  paper" — accomplish 
little  more  than  to  shift  the  locus  of  discretion  from  judges  to  plea  bargainers. 
The  large  impact  which  the  sentencing  standards  may  have  on  parole  decisions 
is  still  more  obvious. 

This  suggests  that  the  Commission,  although  affecting  judges  most  directly, 
is  not  a  parochial  concern  of  the  judicial  branch  alone.  The  appointing 
authority  should  be  one  whose  interests  are  broad  enough  to  take  into  account 
how  the  standards  would  affect  and  be  affected  by  prosecutorial,  parole  and 
correctional  decisions — and  to  appoint  individuals  to  the  Commission  who  can 
give  guidance  on  these  difficult  interaction  effects. 

To  my  mind,  the  official  best  suited  to  make  appintments  that  thus  involve 
the  activities  of  several  branches  of  government  is  the  President.  As  Judge 
Marvin  Frankel  has  aptly  noted  in  his  testimony  yesterday, 


*CoTiii>nrp  T)o'.ng  JusHcf.  op.  pit.,  p.  104-lOF,  wH^  Zimring:,  "Making  The  Punishment 
Fit  the  Crime,"  Hastings  Center  Report,  December  1976. 

'  Zimring.  op.  clt. 

0  Albert  Alschuler.  "Impact  of  Determinate  Sentencing  Upon  Judges,  Defense  Attorneys 
and  Pros'^cutors."  paper  presented  before  the  Special  Conference  on  Determinate  Sen- 
tencing, i:arl  Warren  Legal  Institute,  University  of  California,  Berkeley,  June  3,  1977. 


89S2 

"It  is  familiar,  of  course,  to  have  the  President  name  oflBcials  whose  positions 
are  .indicial.  or  eA'en  legislative  in  character,  as  well  as  those  strictly  'execu- 
tive.' Presidential  appDintment  implies  qualities  of  prestige  and  consequence 
not  achieved  by  the  provision  for  Judicial  Conference  appointments.  This 
Commission  ought  to  be,  or  we  should  make  vivid  the  hope  that  it  will  become, 
an  illustrious  agency,  charged  with  large  responsibilities  for  improvement  and 
innovation.  The  prospects  for  success  will  hinge  upon  the  possibility  of 
attracting  as  Commissioners  people  of  rich  qualifications  and  high  repute. 
Presidential  selection  will  enhance  that  possibility." 

I  would  thus  have  the  members  of  the  Commission  appointed  by  the  President 
■with  the  advice  and  consent  of  the  Senate,  as  the  Hart-Javits  bill  (S.204) 
provides. 

What  Rationale  Should  the  CommisHon  Use? — Sentencing  has  been  plagued 
with  the  problem  of  competing  aims.  The  criminal  sanction  is  said  to  serve  at 
least  four  purpo.ses :  rehabilitation,  incapacitation,  deterrence  and  desert.  Yet 
these  can  conflict :  the  best  treatment  may  be  a  poor  deterrent,  and  the  best 
deterrent  may  be  undeservedly  severe. 

The  Commission's  success  will  depend  largely  on  establishing  a  consistent 
rationale  for  its  decisions.  If  there  are  to  be  multiple  aims  in  sentencing, 
priorities  among  those  aims  will  have  to  be  set.  Otherwise  it  will  be  difficult 
to  resist  the  temptation  of  leaving,  as  the  Model  Penal  Code  did,  the  reconcilia- 
tion of  competing  purposes  to  the  discretion  of  the  judge  in  the  individual  case.* 

Which  body,  then,  should  decide  what  the  rationale  for  the  standards  should 
be? 

My  preference  would  be  to  follow  the  approach  of  the  Hart-.Tavits  bill 
^ S.204)  :  embody  a  clear  statement  of  purposes  in  the  legislation.  The  Hart- 
Javits  bill  gives  priority  to  the  requirements  of  desert — the  Commission  is 
required,  in  prescribing  presumptive  sentences,  to  ensure  that  "the  severty  of 
each  presumptive  sentence  shall  be  commensurate  with  the  gravity  of  the 
criminal  offense  to  which  [it]  is  assigned."  A  similar  approach  will  soon  be 
adopted  in  Oregon."  According  to  legislation  passed  in  the  state  House  of 
Representatives  and  likely  to  pass  in  the  Senate,  a  Commission  on  Prison  terms 
is  required  to  recommend,  and  the  parole  board  to  adopt,  standards  for  duration 
of  confinement.  The  legislation  reqiiires  that  those  standards  give  priority  to 
desert,  and  consider  other  aims  only  if  they  do  not  result  in  disproportionate 
severity  or  leniency. 

If  the  legislature  cannot  agree  on  a  clear  statement  of  purposes,  then  that 
should  he  the  responsibility  of  the  Commission.  The  Commission  should  ex- 
plicitly state  the  rationale  for  its  standards,  and  then  decide  the  specifics  on 
the  basis  of  that  rationale.  This  approach  gives  the  Commission  wider  power, 
but  at  least  assures  that  the  content  of  the  standards  will  be  decided  in  a 
principled  fashion. 

This  lirings  me  to  a  feature  that  I  find  troublesome  in  the  Subcommittee's 
bill  (S.1437).  The  "purposes"  section  of  the  bill  does  not  set  forth  a  coeherent 
rationale — but  merely  lists  the  four  competing  aims  of  rehabilitation,  in- 
capacitation, deterrence  and  desert.  Then,  the  bill  lists  a  miscellany  of  factors 
about  the  offender  and  offense  which  the  Commission  is  supposed  to  consider. 


*  Dninq  Justice,  op.  clt.,  ph.  4. 

"  Orosron  lioulslnf  ivf>  .Asspmbly.  1077  'RPErulnr  Rpssion.  A-Knerossprt  Housp  Pill  201.*^.  ns 
Bmpnripfl  by  thp  House  of  ReprPspiitRtivps.  Atny  1(>,  1!177.  Thp  bill  prpntps  nn  Advisory 
Commission  on  Prison  Tprnis,  consistini;  of  llip  fivp  nipnibprs  of  tlip  jinrolp  lionrd  find  five 
circuit  .iudcrcs.  The  rommission  is  rcquirpd  to  reconiniond,  nnd  flip  parole  board  to  adopt 
standards  for  duration  of  conflnpment.  Prisoners  must  be  notified  within  six  months  of 
enterinfT  prison  of  their  Pxpected  rcloasp  date.  The  eritienl  seetinn  of  thp  bill,  which 
fpquirps  thp  Commission  and  the  board  to  rely  primarily  on  "just  deserts"  In  setting 
durntlon  of  confinpnient,  reads  ns  follows  : 

Section  2  fll  The  commission  shall  propose  to  the  board  and  the  board  shall  adopt 
rules  establishinK  rantres  of  duration  of  imprisonment  to  he  served  for  felony  offenses 
prior  to  relense  on  narole.  The  ranpo  for  any  offense  shall  be  within  the  maximum 
sentence  provided  for  that  offense. 

(2)     The  r.inces  shall  he  designed  to  achieve  the  following  objectives  : 
<n)     Punishment    which    is    commensurate    with    the    seriousness    of    the    prisoner's 
criminal  conduet  ;  and 

(h)     To  the  extent  not  Inconsistent  with  p.irntrraph   (a)  of  this  subsection  : 
(A)     The  deterrence  of  criminal  conduct  :  and 

fP)     The  protection  of  the  public  from  further  crimes  by  the  defendant. 
f.T)    The  ranpes.  in  nehievlnc  the  purposes  set  forth  in  subsection   (2)   of  this  section, 
shall  trlve  primary  weijjht  to  the  seriousness  of  the  prisoner's  present  offense  and  his 
criminal  history." 


8983 

Some  of  these  are  relevant  to  the  offender's  cle^ree  of  blameworthiness  (e.g., 
the  "nature  and  degree  of  harm  caused  by  the  offense,"  and  "the  [defendant's] 
role  in  the  offense").  Others  seem  germane  only  to  his  supposed  future 
dangerousness  or  need  for  treatment  (e.g..  "previous  employment  record", 
"community  ties"  and  "vocational  skills").  Yet  no  one  is  called  upon  to  address 
the  issues  of  principle  involved  in  including  the  latter  factors:  whether  and  to 
what  extent  a  just  sentencing  system  should  allow  someone  to  be  punished 
more  severely  for  what  he  is  expected  to  do  in  future.** 

If  Congress  does  not  wish  to  furnish  the  Commission  with  a  rationale,  then 
it  should  be  up  to  the  Commission  to  decide  what  it  should  be.  In  that  event, 
the  Commission  should  decide,  on  the  basis  of  its  assumed  aims,  what  particular 
factors  should  be  included  in  the  standards.  The  language  of  the  bill  should 
therefore  make  it  clear  it  should  be  within  the  Cornmission's  discretion  to 
determine  whether  any  particular  factors  are  to  be  part  of  the  standards.  The 
bill  ought  not,  as  it  now  seems  to,  require  the  Commission's  standards  to 
include  all  the  listed  factors. 

What  Happen.t  to  Parole?  The  Subcommittee's  bill  goes  far  toward  relegat- 
ing the  Parole  Commission  to  merely  ministerial  duties.  Standards  relating  to 
parole  release  are  to  be  prescribed  by  the  Sentencing  Commission,  rather  than 
the  parole  board.  And  the  bill  authorizes  the  Sentencing  Commission  to  pre- 
scribe periods  of  parole  ineligibility  of  up  to  nine-tenths  of  the  sentence. 

Parole  is  now  coming  under  attack  from  many  quarters,^"  the  most  notable 
being  the  Attorney  General's  recent  call  for  its  abolition.  Much  of  the  current 
criticism  of  parole  is.  in  my  view,  justified.  I  have  no  sympathy  with  parole 
boards'  traditional  practice  of  making  standardless  decisions  about  when  an 
inmate  was  "ready"  for  release.  There  must  be  standards  governing  the 
duration  of  confinement.  And  on  the  "just  deserts"  view  I  espouse  in  Doing 
Justice,  there  would  be  no  reason  to  delay  notifying  the  prisoner  of  when  he 
may  be  expected  to  be  released.  The  duration  of  confinement  should  depend  on 
the  seriousness  of  the  crime ;  and  the  latter  is  as  well  ascertainable  at  the 
moment  of  sentence  as  at  any  later  date. 

Yet  I  have  lieen  spending  the  last  eighteen  months  on  the  LEAA-funded 
study  I  mentioned  earlier,  dealing  with  the  subject  of  parole  abolition  and  its 
possible  consequences.  The  one  thing  that  study  has  convinced  me  is  that  we 
should  approach  this  subject  with  caution.  Parole  is  now  so  integral  to  the 
whole  sentencing  system,  that  its  elimination  or  downgrading  could  have  all 
kinds  of  repercussions :  unless  care  is  taken,  the  unintended  effects  could 
largely  vitiate  the  usefulness  of  that  reform.  Thus: 

1.  Whatever  its  other  defects,  parole  does  perform  one  vital  function :  it 
reduces  the  time  of  confinement  to  manageable  levels.  Judges  are  accustomed 
to  imposing  long  purported  sentences  of  confinement  which  (whatever  their 
possible  symbolic  usefulness  may  be)  could  not  be  carried  out  given  the 
limitation  of  prison  resources ;  and  which  would  be  disproportionately  severe 
were  they  carried  out.  The  parole  board  reduces  these  purported  terms  by 
somewhere  ))etween  one-  and  two-thirds — thus  producing  less  harsh  penalties, 
consistent  also  with  the  limitation  of  resources. 

If  one  wishes  to  phase  out  parole,  therefore,  one  must  create  some  alternative 
mechanism  to  keep  durations  of  confinement  within  reasonable  bounds.  The 
Hart-.Tavits  liill  (S.204)  does  so  by  setting  stringent  limits  on  durations  of 
confinement.  Parole  is  abolished,  and  judges  decide  the  actual  duration  of 
confinement  pursuant  to  rules  of  the  Sentencing  Commission.  But  the  legisla- 
tion expressly  renuires  that  the  Commission's  standards  make  sparing  use  of 
terms  in  excess  of  five  years  of  actiial  confinement. 

What  troubles  me  about  the  Subcommittee's  bill  is  that  it  authorizes  the 
near-eclipse  of  the  parole  board  without  reducing  the  permitted  duration   of 


°  For  citniion  in  footnotp  :  An^li-pw  von  Hir'=f'h.  "Prprlipfinn  of  Criminni  ronrlnr'<-  anrl 
■Prpvpntivp  PoTifinpinpn*^  of  Conviffprl  Porsons."  21  RiiffnJo  L.  Per.  7'>7  f  10721  :  Norvnl 
Morris,  The  Future  of  Imprisonment,  (■Chicatro  :  University  of  Chicasro  Press.  1074").  ch.  .". 

*  Norvfi]  ]\roTris  aiirl  I  havp  arj'UPfl  th.Tt  it  is  unjust  to  rely  on  prp'lictions  of  criminal 
ponrUict  in  rlppiriinir  the  spvprity  of  punishmpnt — beoausp  of  the  inherent  tenrleney  of  such 
forpcasts  to  ovprprpfliet.  and  because  an  offender  does  not  deserve  additional  punishment 
becnnsp  of  whnt  he  is  merely  expected  to  do  in  future. 

^^  See,  e.jr..  Citizens'  Inquiry  on  Parole  and  Criminal  .Tustice.  Prr.sow  Without  Wnlls: 
Report  on  Neiii  York  Parole.  (New  York  :  Praecer  Publishers.  1075)  ;  David  T.  Stanley, 
Prisovers  Amour/  Us:  The  Problem  of  Pnrole  ( Washinarton.  D.C.  :  The  Brookincs  Institu- 
tion. in7(i)  :  M.  Kav  Harris,  "'nisnuisition  on  the  Need  for  a  New  Model  for  Criminal 
Sentencing  Systems,"  77  West  Virginia  L.  Rev.  263  (1975). 

92-465 — 77 27 


8984 

confinement.  The  Sentencing  Commission  may  set  rules  that  make  the  offender 
virtually  ineligible  for  parole,  and  yet  the  bill's  statutory  limits  on  imprison- 
ment continue  to  be  nearly  as  high  as  before.  Instead  of  the  modest  durational 
limits  called  for  by  the  Hart-Javits  bill,  the  Subcommittee  bill  prescribes  such 
large  limits  as  25  years,  12  years  and  6  years. 

This  problem  is  compounded  by  the  bill's  choice  of  appointing  authority,  of 
which  I  spoke  earlier.  Parole  boards,  whatever  their  other  defects,  are  used  to 
thinking  in  terms  of  actual  durations  of  confinement.  Judges  are  used  to 
thinking  in  terms  of  long  symbolic  durations  which  parole  boards  later  shorten. 
Yet  the  bill,  by  having  the  Judicial  Conference  choose  the  Commission,  may 
result  in  a  rule-making  body  dominated  by  judges. 

2.  The  U.S.  Parole  Commission  has  been  the  first  sentencing  or  correctional 
agency  in  the  nation  to  adopt  explicit  standards  governing  its  release  decisions. 
Only  last  year.  Congress  adopted  legislation  formalizing  its  standard-setting 
powers.  I  do  not  completely  agree  with  the  Parole  Commission's  standards,  as 
they  depend  in  part  on  predictive  factors  whereas  I  prefer  to  rely  wholly  on 
the  gravity  of  the  offender's  criminal  conduct.  And  others  have  pointed  out 
technical  defects  in  the  standards."  But  the  Commission  has  striven  hard  to 
structure  its  discretion  and  has  continually  revised  its  standards  in  the  light 
of  criticism  and  new  information.* 

The  Sentencing  Commission  is  a  new  agency,  which  is  given  the  novel  and 
diflicult  mission  of  establishing  standards  for  judges'  sentencing  decisions.  We 
all  hope  that  it  will  succeed  in  that  task — and  if  experience  bears  out  this 
hope.  Congress  can  then  phase  out  parole  and  have  the  Commission  assume  the 
parole  board's  present  rule-making  functions  governing  release  from  prison. 
But,  we  should  realistically  realize  that  our  hopes  could  be  disappointed. 
Perhaps,  the  Sentencing  Commission  will  prescribe  "standards"  that  are  too 
imprecise  to  give  much  guidance  to  sentencing  decisions.  (This  has  just 
happened  in  California,  where  the  new  sentencing  legislation — besides  prescril)- 
ing  a  detailed  tariff  of  prison  terms  for  those  sent  to  prison — requires  the 
state's  Judicial  Council  to  set  standards  governing  the  judges'  decision  to 
grant  or  deny  probation.^"  The  Council's  recently  published  standards,  many 
observers  feel,  are  too  vague  to  give  much  useful  guidance  to  judges.^*  Were 
that  to  happen,  we  could  be  worse  off  were  the  Subcommittee  bill's  approacli 
taken.  Not  only  will  we  have  failed  to  structure  judges'  sentencing  discretion  ; 
but  the  new  Commission  might  prove  less  effective  in  developing  parole  release 
standards,  than  the  Federal  Parole  Commission  is  today. 

My  suggested  solution  is  that,  for  the  moment,  we  take  the  approach  of  the 
Kennedy  bill— simply  authorize  the  Sentencing  Commission  to  prescril>e 
standards  governing  judicial  sentences.  Before  changing  the  status  of  parole 
and  the  standard-setting  authority  of  the  parole  board,  full  hearings  should  be 
held  on  the  specific  subject  of  parole  abolition.  Those  hearings  should  not  only 
consider  the  proposals  on  periods  of  parole  ineligibility  contained  in  the  Sub- 
committee bill,  but  also  more  ambitious  proposals  for  complete  abolition  of 
parole."** 

Mandatory  Minima. — I  notice  that  the  Subcommittee  bill  contains  two 
provisions  for  mandatory  minimum  sentences.  I  do  not  think  they  are  desirable — 
for  my  t^arlicr-statod  reason  tluit  the  Commission  is  j)referable  to  the  legisla- 
ture as  the  body  that  decides  durations  of  confinement. 


11  Spo.  p.cr.,  Projpct,  "Parole  Release  Decisionmaking  and  the  Sentencin?  Process,"  SI 
Yale  L..J.  810  (in?.-?). 

♦  I  nni  pleaspfl  to  note  tlint,  for  example,  the  Board  is  now  considering:  a  chanse  of 
I)olicv  that  would  rctniire  ofTondprs  to  be  notified  early  of  their  expected  date  of  release. 

"California  Penal  Code.  §1170..'? 

LI  Sop_  p. jr.,  Philip  v..  .Johnson  and  Sheldon  L.  Messin?er.  "rjilifornia  Ppferminate  Spii- 
tencing  Statute:  Ilistory  and  Issues,"  Paper  presented  before  the  Special  Conference  on 
Determinate  Sentencing,  Early  'Warren  Legal  Institute,  University  of  California,  Berke- 
ley. .Tune  2,  1077. 

"  Caleb  Foote.  "The  Unanticipated  Consequencps  of  Reform,"  Paper  presented  before 
the  Special  Conference  on  Determinate  Sentencing,  Earl  Warren  Legal  Institute,  Univer- 
sity of  California,  Berkeley,  .Tune  :'.,  I!t77. 

**.My  own  study  on  the  question  of  parole  abolition  will  be  completed  shortly,  and  other 
scholars  are  also  looking  at  the  subject.  At  a  recent  LEAA-sjionsored  conference  on 
determinate  sentencing.  Professor  Caleb  Foote  of  the  TTniversity  of  California  Law 
School  at  Berkeley  read  an  excellent  paper  on  the  possible  collateral  consequences  of 
parole  abolition. 


8985 

Biographical  Statement 

Andrew  von  Hirseh  is  associate  professor  at  the  Gradnate  School  of  Criminal 
Justice,  Rutgers  University,  in  Newark,  New  Jersey.  He  is  also  Senior  Research 
Associate  at  the  Center  for  Policy  Research  in  New  York  City. 

He  was  principal  author  of  Doing  Justice:  The  Choice  of  Punishments,  the 
report  on  the  aims  of  criminal  sentencing  of  the  Committee  for  the  Study  of 
Incarcertaion,  and  interdisciplinary  study  group  funded  by  the  Field  Founda- 
tion and  New  World  Foundation.  The  report  was  published  by  Hill  and  Wang, 
New  York,  New  York  in  1976. 

He  is  now  heading  a  study  on  alternatives  to  parole,  funded  by  the  Law 
Enforcement  Assistance  Asministration,  Washington,  D.C.  The  report  is  ex- 
pected to  be  completed  in  the  fall  of  1977. 

Mr.  von  Hirseh  was  also  a  member  of  the  Twentieth  Century  Fund's  Task 
Force  on  Criminal  Sentencing,  whose  report,  Fair  and  Certain  Punishment,  was 
published  recently. 

He  is  a  graduate  of  Harvard  College  and  Harvard  Law  School.  He  is  a 
member  of  the  New  York  Bar. 

Our  last  witness  is  INIr.  John  Shattuck,  wlio  is  with  Mr.  Aryeh 
Neier. 

Mr.  Shattuck,  we  can  give  you  from  now  until  the  5-minute  bell 
rino:s. 

Your  statement  will  be  inserted  in  the  record  later.  If  it  is  not  com- 
plete and  vou  would  like  to  file  any  other  paper,  we  will  allow  you  to 
do  that.  [See  p.  9058.] 

You  might  touch  on  anything  that  is  not  in  j'our  statement  so  we 
get  tlie  benefit  of  that. 

"Welcome  to  the  committee. 

STATEMENT  OF  AEYEH  NEIER,  EXECUTIVE  DIRECTOR,  AMERICAN 
CIVIL  LIBERTIES  UNION,  AND  JOHN  H.  F.  SHATTUCK,  WASHING- 
TON OFFICE  DIRECTOR,  ACLU 

]\Ir.  Shattuck.  Thank  you,  ISIr.  Chairman. 

I  think  the  most  effective  way  in  which  we  can  utilize  Wm  short  time 
available  is  for  Mr.  Aryeh  Neier,  who  is  the  executive  director  of  the 
American  Civil  Liberties  Union  and  who  appears  with  me  today,  is 
to  present  a  general  introductory  view  tliat  we  set  fortli  in  the  begin- 
ning of  our  prepared  statement.  He  will  summarize  it  for  you.  The 
details  of  our  testimony  on  the  entire  bill  are  available  in  the  re- 
mainder of  our  prepared  statement.  We  may  supplement  them  at 
some  future  time. 

Senator  Thurmond  [acting  chairman].  Go  right  ahead. 

Mr.  Neier.  Thank  you  very  much,  Senator. 

The  testimony  that  we  have  presented  contains  a  large  number  of 
detailed  criticism  of  S.  1437.  We  make  these  criticisms  of  the  bill  be- 
cause we  approach  the  entire  process  of  criminal  code  revision  as  a 
once-in-a-lifetime  opportunity  to  obtain  Federal  legislation  that 
adopts  a  coherent  approach  to  the  problem  of  crime  and  punishment. 

We  recognize  that  this  process  has  been  underway  for  a  great  many 
years.  A  great  many  compromises  have  been  made.  This  bill  is  a  vast 
improvement  over  its  predecessor,  S.  1 ;  but  we  still  find  a  large 
number  of  deficiencies  in  this  legislation.  We  feel  obligated  to  seek 
the  best  possible  legislation 

Senator  Thurmond.  You  have  outlined  those  in  vour  statement  ? 


8986 

Mr.  Xeier.  There  are  three  basic  principles  which  we  address  in  the 
various  detailed  criticisms.  I  just  want  to  take  a  few  moments  to 
describe  those  basic  principles. 

One  of  the  basic  principles  is  that  the  criminal  code  should  be 
focused  on  those  crimes  which  injure  other  persons. 

We  say  this  because  the  Federal  Criminal  Code  is  important  in  and 
of  itself  but  also  because  the  Federal  Criminal  Code  is  a  model  for 
the  States.  The  State  criminal  laws  seriously  affect 

Senator  Tiiurmoxd.  Excuse  me.  We  will  have  to  close  the  hearing. 

Mr.  Neier.  Let  me  suggest  something  else,  Senator.  That  is  the 
possibility  that  we  come  back  on  some  other  occasion  and  present 
fuller  testimony.  I  think  we  would  like  the  opportunity  to  do  that. 

Senator  Thurmond.  That  would  be  all  right. 

We  will  hold  your  statement  until  3'our  later  appearance.  If  you 
want  to  submit  any  supplementary  statement,  feel  free  to  do  that. 

]Mr.  Neier.  Very  good. 

Senator  Thurmond.  We  will  now  recess,  subject  to  the  call  of  the 
chair. 

[Whereupon,  at  12 :30  p.m.,  the  meeting  was  recessed.] 


CRIMINAL  CODE  REFORM  ACT  OF  1977 


MONDAY,  JUNE  20,  1977 

U.S.  Senate, 
Subcommittee  ox  Criminal  L^vws  and  Procedures, 

Committee  on  tiie  Judiciary, 

Washington^  D.C. 

The  subcommittee  met,  pursuant  to  notice,  at  9 :50  a.m.,  in  room 
2228,  Dirksen  Senate  Office  Building,  Senator  Edward  M.  Kennedy 
(acting  chairman  of  the  subcommittee)   presiding. 

Staff  present :  Paul  C.  Summitt,  D.  Eric  Hultman,  Paul  H.  Robin- 
son, Kenneth  Feinberg,  and  Mabel  A.  Downey  of  the  committee  staff. 

Senator  Kennedy.  The  subcommittee  will  come  to  order. 

We  will  continue  our  hearings  on  S.  1437,  legislation  introduced 
by  Senator  McClellan  and  myself  to  recodify  the  entire  Federal 
criminal  code.  This  has  been  an  ongoing  effort  for  the  last  11  3^ears, 
beginning  with  the  Brown  Commission.  We  have  had  a  concentrated 
series  of  hearings  in  the  last  2  weeks  in  an  effort  to  move  this  legis- 
lation along,  recognizing  its  timeliness. 

We  will  be  focusing  primarily  on  the  issues  of  sentencing  here 
today.  We  will  continue  tomorrow,  and  hopefully,  that  will  conclude 
the  hearings  on  this  extremely  important  effort  to  recodify  the 
criminal  code. 

We  want  to  welcome  this  morning  the  former  ranking  minority 
member  of  the  committee  and  also  an  extremely  active  member  of  the 
Brown  Commission,  Senator  Hruska.  He  has  given  a  great  deal  of 
time  and  effort  to  this  whole  area  of  recodification.  This  was  one  of 
his  very  important  interests. 

Beyond  all  of  that,  he  has  been  a  good  friend  as  well.  We  have  not 
always  looked  at  matters  in  the  same  light,  but  we  have  enjoA^ed  our 
exchanges.  The  committee  was  stronger  for  his  service  to  it  as  was 
the  Senate. 

We  are  delighted  to  have  Senator  Hruska  here  to  testify. 

OPENING  STATEMENT  OF  ROMAN  L.  HEUSKA 

Mr.  Hruska.  I  thank  you  for  your  welcome.  It  is  a  pleasure  to  return 
to  these  familiar  surroundings,  the  scene  of  many  parliamentary  forays 
in  many  fields  of  endeavor.  I  recall  them  with  a  great  deal  of  pleasure 
and  a  little  bit  of  homesickness. 

Mr.  Chairman,  I  have  a  prej^ared  statement  here  which  I  would 
like  to  have  incorpoi-ated  in  the  record  at  the  conclusion  of  my  remarks. 

(8987) 


8988 

^[\  support  for  the  creation  and  enactment  of  a  criminal  code  is  a 
matter  of  record.  About  10  years  has  been  devoted  to  the  creation  of 
sucli  a  code.  My  prepared  statement  refers  to  the  various  steps  in  the 
development  of  the  measure  now  before  us. 

I  read  with  a  f^reat  deal  of  interest  the  statement  of  former  Gover- 
nor "Pat"  Brown  before  this  committee.  My  association  with  him  on 
the  Conmiission  on  Reform  of  the  Federal  Criminal  Laws,  whicli  he 
•chaired,  was  the  first  time  I  had  the  opportunity  to  work  with  him. 
I  have  formed  a  very  high  respect  and  admiration  for  his  qualities 
of  leadership  and  his  capabiltiies  as  an  administrator. 

We  were  lucky  and  fortunate  to  have  had  former  Justice  Tom 
Clark  as  chairman  of  the  Advisory  Committee.  The  Members  of  the 
Senate  on  that  Commission,  as  you  Avill  recall,  were  Senator  ]\[cClellan, 
Senator  Ervin,  and  myself. 

I  must  sav.  Mr.  Chairman,  that  over  the  last  10  vears  the  code 
has  retained  its  essential  integrity.  A  code  is  not  only,  as  I  under- 
stand it  and  as  we  have  frequently  been  reminded  by  authorities,  a 
rational,  comprehensive  and  logical  arrangement  of  rules  and  princi- 
ples on  a  given  subject.  It  is  an  arrangement  which  comes  about  at  the 
hands  of  a  competent  authority,  which  in  this  case  would  be  the 
Congress  and  the  President,  and  also — and  tliis  is  important — it  must 
be  achieved  and  made  effective  within  a  I'elatively  brief  frame  of 
time.  Without  that,  it  ])artakes  of  ihe  nature  of  being  a  piecemeal 
effort. 

Ten  years  is  not  an  unduly  long  time  frame.  Certainly  one  criminal 
code  for  a  Republic  whicli  just  recently  celebrated  its  200th  year  of 
independence  is  not  an  oversurplus  of  crinunal  codes.  We  have  had 
none.  This,  if  it  is  adopted,  will  be  the  first. 

Throughout  the  process,  all  the  way  from  the  final  report  of  the 
Brown  Commission  to  the  several  bills  which  have  been  introduced 
in  the  Congress,  there  has  been  a  retention  of  tlie  essential  quality  and 
integrity  of  a  code. 

Given  the  broad  level  of  support  for  the  bill  in  its  present  form, 
we  do  hope  for  its  enactment.  However,  there  are  still  some  potential 
o1)stacles.  The  subject  of  criminal  law  and  codification  alwavs  raises 
sensational  issues.  You  liave  political  winds  Avliich  change.  Coalitions 
are  formed  and  they  diffuse.  Time  is  of  the  essence.  Tt  is  hoped — and 
T  certainly  support  that  hone  and  express  it  as  fervently  as  I  can — 
that  whatever  issues  that  might  arise  will  not  suffocate  the  code. 

T  believe  there  is  reason  to  believe  that  the  volumes  of  heariniis  and 
reports  and  the  years  of  debate  and  analysis  provides  an  unusually 
sound  basis  on  which  to  make  a  decision  as  to  the  merits  of  each  ^of 
these  issues. 

Obviously  some  of  these  issues  will  be  the  subject  of  sliari>  debate  on 
the  floor  of  the  Senate,  and  later  in  the  oMier  body.  This  is  as  it  should 
be.  Vfter  all.  that  is  the  essence  of  the  leirislative  process. 

There  comes  a  time.  howcA-er,  when  a  vote  will  be  taken  and  at  least 
tempoi-nrily  the  i-esnlts  of  that  vote  will  abide  and  we  will  go  on  to  the 
next  item. 

There  may  be  a  temptation.  ^\r.  Chairman,  in  the  months  abend  to 
split  up  the  code  into  more  readily  consnnimable  parts.  Tt  would  be 
a  trao"ic  mistake  if  that  temptation  was  yielded  to. 


8989 

A  code  is  an  integral  thing,  as  I  have  already  pointed  out.  Its  inte- 
grated nature  provides  its  greatest  advantage.  Our  laws  cannot  suf- 
fer additional  patching  up.  I  will  not  go  into  the  details  of  the  rea- 
sons why  it  is  necessary  that  this  be  done — the  inconsistencies  and  the 
obsolescence  and  the  duplication — that  has  been  well  documented. 

Senator  Kennedy.  I  think  that  is  important,  however,  Senator. 
I  think  that  will  be  the  attempt  that  will  be  made  by  those,  for  what- 
ever reasons,  who  are  not  sympathetic  to  the  general  approach  that  is 
being  taken  in  this  legislation. 

I  think  you  understand  the  interrelationship  between  these  various 
provisions  and  the  description  of  culpability,  for  example,  and  the 
proliferation  of  different  terms  that  are  used  in  different  sections  of 
the  code  and  the  interrelationship  of  these  different  provisions,  both 
directly  in  terms  of  the  different  definitions  of  theft  and  armed  rob- 
bery, let  alone  how  that  relates  to  the  whole  common  approach  with 
regard  to  the  sentencing  provisions. 

I  think  we  cannot  stress  enough  the  importance  of  the  interrelation- 
ships of  the  various  provisions,  the  definitions,  the  terms,  and  the 
extremely  important  sentencing  provisions  in  terms  of  a  composite 
package. 

I  am  wondering  whether  we  could  not  underline  this  a  bit  from 
your  own  experience  as  a  member  of  the  Brown  Commission.  You 
have  seen  this  interrelationship.  I  think  this  will  be  one  of  the  key 
points  that  will  be  attempted  by  those  who  want  to  frustrate  it. 

I  would  appreciate  your  underlining  your  own  views  on  that. 

Mr.  Hruska.  I  quote  Sir  Francis  Bacon  in  my  statement.  It  was 
just  as  true  in  his  time  as  it  is  now.  "The  laws  of  most  kingdoms  and 
states  have  heon  like  buildings  of  many  pieces,  patched  up  from  time 
to  time  according  to  occasions,  without  frame  or  model." 

Unless  it  is  considered  as  a  unit,  the  code  simply  would  not  be  a 
success.  Even  the  finding  of  the  law  is  difficult  under  the  present  situa- 
tion because  of  its  being  scattered  through  numerous  titles.  The  bill, 
as  it  now  exists,  makes  the  law  simple  and  knowable. 

Mr.  Chairman,  if  w^e  are  going  to  consider  various  segments  at 
different  times  without  the  necessity  of  the  interrelationship  to  which 
you  have  referred  in  your  comment,  we  will  have  failed.  So,  T  do 
believe  that,  notwithstanding  the  fact  that  there  are  parts  of  it  that 
anyone  of  us  might  severely  criticize,  it  is  incumbent  upon  us,  how- 
evQv  close  or  however  removed  we  are  from  the  creation  of  this  legisla- 
tion in  its  present  form,  to  set  aside  points  of  individual  preference,  so 
that  the  effort  to  produce  a  code  can  succeed.  Then,  with  the  reserva- 
tions that  have  been  made  on  various  specific  points,  there  can  be  con- 
sidered these  other  propositions  at  a  later  time. 

The  new  sentencing  provisions,  Mr.  Chairman,  as  they  are  before 
us  in  this  bill,  give  me  no  pause  in  stating  that  the  bill  continues  to 
have  my  full  support, 

I  have  some  reservations  about  it.  I  shall  mention  one  in  particular 
a  little  bit  later.  However,  if  a  person  is  convicted  of  an  offense  under 
the  code,  he  will  be  sentenced  under  a  system  that  provides  some  hope 
of  fair  and  uniform  punishment.  Under  our  present  system  we  do  not 
have  uniform  punishment  for  the  same  types  of  offense  committed  by 
persons  of  the  same  status  or  history.  That  is  too  well  known  to  re- 
quire further  documentation  now. 


8990 

Tlie  creation  of  a  sentencing  commission  and  the  elimination  of  the 
indeterminate  sentence  in  favor  of  more  uniform  sentences  within  the 
bounds  set  by  tiie  Commission  will  be  a  great  improvement.  It  is  not 
perfect.  It  will  still  remain  for  a  fair  trial  of  that  metliod  before  we 
can  make  a  hnal  judgment.  But  I  believe  I  am  safe  in  sayirig,  ]Mr. 
Chairman,  that  it  holds  bright  ])romise  to  be  a  great  impro\ement  over 
what  we  have. 

Within  the  bounds  of  the  Commission's  guidelines,  sentence  may  be 
imposed  by  the  sentencing  court.  If  it  is  within  those  guidelines,  then 
appeal  will  not  lie.  If  there  is  a  departure  from  the  bounds  of  those 
guidelines,  then  two  things  will  happen.  First  of  all,  the  judge  will  be 
called  upon  to  give  his  reasons  why  he  chose  to  go  be3-ond  the  guide- 
lines. Second,  the  convicted  person  or  the  one  who  is  sentenced  will 
have  an  opportunity  to  appeal. 

On  the  subject  of  appellate  review,  my  views  are  well  known.  For 
about  10  or  12  years  every  Congress  was  favored  or  disfavored  with 
the  presence  of  a  bill  proposed  by  this  one-time  Senator  on  the  subject 
of  appellate  review.  I  took  a  little  different  view  of  appellate  review  in 
tliose  bills  than  is  reflected  in  this  present  bill. 

Notwithstanding  that  the  method  that  was  proposed  in  tliose  bills 
in  earlier  times  was  not  adopted  and  no  action  was  taken  on  them, 
nevertheless,  the  literature  that  was  created  as  a  result  of  the  hearings 
served  a  purpose.  The  rejection  of  those  bills  served  a  purpose  because 
it  showed  us  certain  ways  in  which  the  problem  could  not  be  done. 
That  reminds  me  of  the  story  of  Edison  when  he  was  told,  after  mak- 
ing six  or  seven  attempts  in  laboratory  experiments  to  achieve  a  given 
result  he  was  asked  if  that  was  not  a  waste  of  time.  He  said.  "Xo,  it 
is  not  a  waste  of  time.  It  shows  six  or  seven  ways  in  which  that  objec- 
tive may  not  be  reached.  That  narrows  the  field." 

It  was  my  thought  in  the  bills  that  I  had  introduced  that  there  should 
be  appellate  review  with  proper  procedural  requirements  available 
to  anyone  who  is  convicted  of  a  crime.  The  basis  of  that — and  it  is 
perhaps  the  most  persuasive  argument  in  favor  of  it — is  that  America 
is  the  only  civilized  country  that  I  am  aware  of  that  does  not  have 
some  form  of  appeal  of  sentence.  We  are  the  only  country,  Mr.  Chair- 
man, in  vv'hich  the  M'ord  of  one  man  is  not  superA-ised.  is  not  reviewed, 
and  is  totally  uncontrollal)le  as  it  now  stands,  ban-ing  only  those  Avide 
ranges  in  wliich  the  sentence  may  be  imposed. 

Senator  Ki^xnedy,  You  Avould  favor  more  general  appellate  review? 

Mr.  ITruska.  Yes. 

Senator  Kennedy.  T  mean,  other  than  in  (ho  bill  itself.  If  sentenced 
within  the  various  guidelines,  thei-e  wonld  not  be  any  ap)")ellate  re- 
view. T5nt  sentences  below  the  guidelines  would  be  appealed  by  the 
Goveinment.  or  above  conld  be  ai)iv\'ile(l  by  the  defendant. 

But  your  position  generally  would  be  to  poj-Tnit  appeal  of  sentences 
under  anv  circumstances.  Is  that  correct  ? 

Mr.  Hrttska.  Mr.  Chairman,  I  express  support  of  the  bill  in  its 
present  form. 

Senator  Kennedy.  Yes. 

IVfr.  IIrxtstva.  Judge  Frankel  favoicd  Ihi^  bill  also.  He  said,  ''If 
I  had  my  way,  T  wonld  make  more  nnmerons  the  occasions  u\)on 
which  apj^eal  may  be  taken  from  sentence  " 


8991 

I  would  be  a  little  bit  liypocritical  if  I  urged  that  we  not  depart  too 
much  from  this  bill  with  the  exception  of  something-  in  which  I  have  a 
pet  interest. 

Senator  Kennedy.  That  is  right. 

]Mr.  IIkuska.  My  mentioning  that  point  is  not  for  the  purpose  of 
urging  upon  the  committee  or  upon  the  Congress  that  they  should 
not  let  this  bill  pass  unless  it  had  my  pet  concern  taken  care  of.  That 
is  not  my  point. 

My  point  it,  however,  that  here  are  guidelines  set  by  the  sentencing 
com.mission.  If  the  judge,  in  sentencing,  stays  within  those  guidelines, 
then  there  is  ]io  opportunity  to  appeal. 

Consider  this  type  of  situation.  In  our  country  we  used  to  have 
wheat  acreage  allotments  with  guidelines  that  fill  books  inches  high. 
And  yet,  when  a  decision  was  made  that  the  acreage  allotment  would 
be  212  acres,  rather  than  300  acres,  an  appeal  would  lie.  The  same 
thing  is  true  in  an  Internal  Revenue  case. 

In  every  other  situation  that  we  know  of,  there  lies  an  appeal  except 
where  a  man's  liberty  is  taken  from  him  by  a  judge  whose  action  is 
not  apiiealable  as  long  as  he  stays  within  those  guidelines. 

Having  said  that,  again  let  me  repeat.  The  point  is  not  to  derogate 
one  whit  from  my  support  of  the  bill  as  it  is.  In  due  time  I  do  believe 
the  concept  of  appellate  review  embodied  in  this  bill  will  be  expanded. 

Senator  Kennedy.  My  inclination  would  be  exactly  the  same  as 
yours.  How  do  you  react  to  Chief  Justice  Burger's  observations 
about  the  flooding  of  appellate  courts,  and  Attorney  General  Bell's 
concurrence  in  that  view?  I  am  talking  about  all  cases.  That  has  been 
their  position.  They  have  written  about  it.  The  Chief  Justice  has 
spoken  about  it.  He  has  communicated  his  views  to  us,  on  occasion. 

I  am  wondering,  as  someone  who  is  obviously  concerned  with  the 
functioning  of  the  courts,  whether  you  think  that  would  be  a  real 
problem  ? 

]Mr.  Hruska.  There  are  tliree  observations  I  would  like  to  make  on 
that.  That  type  of  objection  was  made  when  we  were  considering  the 
criminal  justice  bill  some  2.5  years  arro.  I  was  here  when  that  happened, 
as  well  as  Senator  Keating  of  New  York — who  was  one  of  the  sponsors 
of  tlie  early  l)ills  wlien  lie  was  a  Member  of  the  other  body. 

It  was  said  that  we  could  not  do  that.  It  would  cost  too  much  money 
and  it  would  cost  too  much  judge  power  and  prosecutor's  power  and 
defender's  power.  Yet,  it  was  a  requirement  of  the  Sixth  Amendment 
as  construed  bv  the  Su]:)reme  Court. 

Then  came  the  second  step.  The  second  step  was  this :  Not  only  would 
that  be  a  requirement  in  the  Federal  court  system,  but  also  in  the  State 
courts,  even  with  respect  to  misdemeanors  and  juvenile  cases.  The  same 
cry  was  raised  then.  Howe^'er.  the  system  is  working". 

The  other  point  is  this :  ]\Ir.  Chairman,  since  when  are  we  going  to 
say,  "Obviously,  there  is  injustice  here  but  we  cannot  afford  to  correct 
that  injustice  because  of  the  tax  on  manpower  or  dollars." 

Since  when  has  that  been  a  criterion  ?  It  cannot  be  a  criterion  because 
if  it  were,  we  would  have  to  yield  many  of  the  prerogatives  and  many 
of  the  fundamental  riglits  furnished  by  the  Constitution  out  of  defer- 
ence to  budgetary  considerations. 

Last,  I  would  note  that  if  we  authorize  pleas  to  sentence  and  deny 
review  in  such  cases,  virtually  all  of  the  manpower  problems  disappear. 


8992 

I  iniffht  f=ay  tliat  T  read  -with  interest  the  statements  of  Judjio  Frankel 
and  Attorney  Gonernl  Bell.  ^Nly  ineinorv  o'oes  back  to  a  year  or  so  ao-o 
wlien  Jiidue  Tyler,  then  Deputy  Attorney  General,  came  to  my  home 
city  of  Omaha  to  bo  a  speaker  at  the  "'LaAv  Day"  ceremonies  at  Crei<2;h- 
ton,  my  alma  mater.  He  chose  for  a  subject  the  idea  of  flat-time  sen- 
tenciuii"  as  opposed  to  indeterminate  sentencinof. 

At  a  later  time  I  inserted  the  text  of  his  remarks  into  the  Cono-rps- 
sional  Record  to  oet  the  idea  a  little  more  currency  and  a  little  wider 
dissemination.  I  believe  the  approval  of  people  like  Judofe  Bell.  Judi^e 
Frankel  and  Judire  Tyler  should  be  most  helpful. 

I  am  pleased  with  the  bill.  Mr.  Chairman.  I  inight  sav  in  summary 
that  there  are  provisions  with  which  I  would  not  agree.  Yet  the  demo- 
cratic process  has  worked.  I  find  so  much  that  is  good  in  it  and  so 
nnich  that  is  along  the  right  and  proper  road  that  I  strongly  approve 
of  the  bill  and  hope  it  will  pass. 

I  do  believe  that  the  two  predecessors  of  President  Carter  spoke  in 
favor  of  a  criminal  code  and  the  adoption  thereof.  I  do  not  know 
whether  President  Carter  has  already  spoken.  But  within  the  bounds 
of  propriety — and  we  know  that  the  administration  does  approve  of  it 
as  Judge  Bell  indicated- — it  might  be  helpful  if  the  President  Avould 
personally  speak  on  this  subject  and  hopefully  in  a  favorable  way. 

Senator  Kennedy.  Without  objection  your  written  statement  will 
be  inserted  in  the  record  at  this  point. 

[The  material  follows :] 

Prepared   Statement  of  Roman   L.   IIruska 

Thank  yon.  Mr.  Chairm.nn.  for  the  kind  invitation  to  appear  before  the  Sub- 
committee and  to  express  my  views  on  S.  1437. 

As  you  know.  I  have  attempted  to  be  of  some  assistance  in  the  federal  codifica- 
tion effort  over  the  years.  I  served  as  a  member  of  the  Brown  Commission  from 
]0G6  through  1971.  I  was  privileged  to  he  a  member  of  this  Snt)Committee  during 
my  service  in  the  Senate  and  participated  in  the  lengtliy  and  tliorougli  hearings 
that  the  Subcommittee  held  on  the  various  codification  proposals.  I  participated 
actively  in  the  efforts  during  the  last  Congress  to  achieve  a  consensus  on  a  codi- 
fication bill.  Tn  short,  tlie  co<lification  effort  has  l)een  a  key  interest  of  mine  for 
more  than  a  decade. 

S.  1187  is  the  sixtli  attempt  at  a  bill  tlint  would  receive  the  necessary  Con- 
gressional support.  The  first  effort  was  tlie  final  report  of  the  Brown  Commis- 
sion issued  in  1971  as  a  worlving  basis  for  further  legislative  efforts. 

In  early  1973  there  came  the  original  S.  1.  a  bill  drafted  by  this  Subcomniitfce. 
That  proposal  was  followed  shortly  by  S.  1400.  a  bill  drafted  by  a  team  of  career 
attorneys  in  the  Department  of  .lustice.  Hearings  were  held  on  these  proimsals 
and  strenuous  efforts  were  made  to  draft  a  single  bill.  Early  in  the  94th  Con- 
gress that  bill  was  introduced,  again  carrying  the  number  S.  1. 

That  proposal,  as  you  know,  engendered  heated  debate.  Each  provision  in  it  was 
gone  over  with  a  fine  tooth  comb.  In  the  House  a  so-called  •'liberal"  alternative. 
II.R.  12r)04  was  introduced  but  no  hearings  were  held  on  its  provisions  and  no 
action  was  taken  on  it  in  the  House. 

In  the  meantime  efforts  instigated  by  the  Senate  leadership  to  form  a  com- 
))romise  proposal  were  bearing  fruit.  Representatives  of  this  Subcoinmittee  and 
representatives  of  the  Department  of  .Tustice  as  well  as  various  interest  gronjis 
met  regularly  to  develop  a  position  that  was  acceptable  to  all.  Those  efforts  con- 
tinned  and  the  product  of  these  efforts— S.  1437— is  before  the  Subcommittee 
today. 

Whib^  earlier  efforts  at  codification  were  met  with  extremely  hostile  reactions, 
this  new  effort  has  received  almost  uniform  praise. 

The  Wn>thinf/tn7i  Pofit  has  referred  to  the  bill  editorially  as  ".  .  .  one  that 
de.serves  to  be  pas.sed  and  will  be  worth  all  the  years  of  work  that  went  into  it." 


8993 

The  JSlew  York  Times  described  it  as  the  ''.  .  .  product  of  masterly  legishitive 
compromise  ....  (I) t  merits  enactment."  Former  Govei-nor  Brown,  the  chair- 
man ot"  the  Brown  Commission,  testified  here  earlier  this  month  that  the  bill  was 
'•eminently  sensible  and  pragmatic"  and  represented  "a  delicate  balance  between 
the  separate  viewpoints  of  conservatives  and  liberals."  Attorney  General  Bell 
provided  his  approval  by  stating  that  S.  1437  "is  as  fair  and  workable  a  code  as 
has  yet  been  devised"  and  pledged  Administration  support  before  this  Sub- 
committee. 

I  should  note  that  throughout  this  process  of  compromise,  the  code  has  retained 
its  essential  integrity.  The  bill  before  us  today  has  been  modihed  to  reflect  certain 
differing  views.  However,  it  has  not  been  turned  into  a  hodge  podge  of  internal 
inconsistencies  and  conflicts.  It  is  a  uniform  body  of  law — a  code. 

Given  the  broad  level  of  support  that  has  come  forth  for  the  bill  it  may  seem 
that  passage  is  assured.  Yet  we  know  that  obstacles  to  enactment  still  exist.  The 
subject  of  criminal  law  codification  always  raises  sensational  issues.  Political 
winds  change.  Coalitions  diffuse.  Thus,  time  is  of  the  essence.  You  must  move 
promptly  on  the  measure. 

I  hope  that  difficult  issues  will  not  suffocate  the  code.  I  believe  that  there  is  no 
reason  why  they  should.  The  years  of  debate  and  analysis,  the  volumes  of  hearings 
and  reports,  provide  an  unusually  sound  basis  on  which  to  make  a  decision  as  to 
(he  merits  of  each  of  these  issues.  Obviously  some  of  these  issues  will  be  the  sub- 
ject of  shai-p  debate  on  the  floor  of  the  Senate.  This  is  as  it  should  be.  That  this 
will  consume  some  valuable  time  is  also  apparent  but  S.  1-137  is  major  legislation 
and  the  time  spent  on  its  passage  wull  be  time  well  spent.  The  Senate  justifiably 
prides  itself  on  its  strength  as  a  deliberative  body.  Surely  it  can  deliberate  the 
issues  involved  in  a  criminal  code  as  well  as  it  can  those  involved  in  a  tax  code 
or  energy  legislation. 

There  may  be  a  temptation  in  the  months  ahead  to  split  up  the  code  into  more 
readily  consumable  parts.  I  fear  that  would  be  a  tragic  mistake.  A  code  is  an 
integral  thing.  It  is  its  integrated  nature  that  provides  its  greatest  advantages. 
Sir  Francis  Bacon,  the  Lord  Chancellor  of  England,  once  proposed  to  the  King 
that  the  laws  of  England  be  codified.  He  pointed  out  what  has  become  so  ob- 
viously true  to  those  of  us  who  haA^e  worked  on  codification :  "The  laws  of  most 
kingdoms  and  states  have  been  like  buildings  of  many  pieces,  and  patched  up 
from  time  to  time  according  to  occasions,  w'ithout  frame  or  model." 

Our  laws  do  not  need,  nor  can  they  suffer,  further  patcliing  up.  They  need  a 
frame  or  model,  a  structure  that  hoids  the  whole  of  the  law  together  and  makes 
the  individual  parts  more  comprehensible.  Already  significant  parts  of  the  code 
have  been  set  aside  for  later  action.  The  defenses  have  been  left  for  the  moment 
to  continued  judicial  construction.  The  national  security  offenses,  although 
outmoded  in  great  parts,  have  been  retained  word  for  word  from  current  law. 
Difficult  issues  such  as  the  death  penalty  and  gun  control  have  been  removed 
from  consideration. 

I  recognize  the  necessity  of  these  deferrals  but  I  belieA'e  that  further  deferrals 
will  only  weaken  the  structure  of  the  code  until  codification  itself  becomes  a 
patchwork  process.  The  years  of  thought  and  effort  that  have  gone  into  codifica- 
tion would  be  wasted  if  such  a  thing  were  to  come  to  be.  I  trust  that  the  Senate 
and  the  House  will  see  the  necessity  of  treating  the  code  as  one  unified  item,  not 
a  series  of  separable  parts. 

Turning  from  the  question  of  ways  of  dealing  with  a  code,  let  me  point  out  to 
the  Subcommitee  why  I  feel  a  new  code  is  needed  and  why  I  believe  that  this  bill 
is  the  answer  to  that  need. 

It  is  generally  agreed  liy  those  familiar  with  the  federal  criminal  laws  tliat 
they  are  seriously  in  need  of  revision.  Certainly  today  the  nation  does  not  have 
a  federal  criminal  code  in  the  true  sense  of  the  term,  but  has  instead  a  jumble 
of  piecemeal  legislative  efforts  that  have  been  enacted  sporadically  over  the 
last  two  hundred  years.  While  many  of  the  current  statutes  are  very  u.seful,  alto- 
gether too  many  are  outmoded.  Still  others  are  unenforceable,  either  because  of 
inadequate  drafting  in  the  first  instance,  or  court  interpretations  construing  pro- 
visions in  an  unintended  fashion.  Even  those  statutes  that  have  utility  are.  in 
many  respects,  overlapping  and  inconsistent.  Moreover,  there  are  serious  gaps 
in  the  coverage  of  the  federal  criminal  laws. 

Even  finding  the  law  is  at  times  a  problem.  Some  areas  of  law  where  there 
appear  to  be  gaps,  such  as  aircraft  hijacking  and  espionage  involving  atomic 
weapons,  actually  are  covered  in  obscure  parts  of  the  regulatory  provisions  of 


8994 

the  United  States  Code.  Other  provisions  are  hard  to  find  simply  liecanse  they 
do  not  exist  in  statutory  form;  several  areas  of  the  law,  such  as  the  principle 
governing  the  criminal  liability  of  corporations,  have  been  left  entirely  to 
development  by  judges  in  the  course  of  writing  judicial  decisions  on  a  case-by- 
case  basis — a  process  that  has  made  standardization  and  stabilization  almost 
impossible. 

In  instances  where  the  penal  law  does  appear  in  statutory  form,  widely  differ- 
ing terms  are  often  used  to  describe  a  defendant's  intent  or  other  state  of  mind 
that  must  be  found  to  coexist  with  his  criminal  action. 

Finally,  the  periods  of  imprisonment  and  fine  levels  carried  by  current  offenses 
seem  to  bear  little  relationship  to  each  other  and  a  questionable  connection  with 
what  would  appear  to  be  a  fair  penalty  under  all  the  circumstances;  in  fact,  the 
whole  sentencing  process,  which  today  may  result  in  widely  disparate  sentences 
for  essentially  similar  conduct,  is  sadly  in  need  of  reform. 

S.  1437  makes  the  law  simple  and  knowable.  It  takes  the  volumes  of  judge- 
made  law  and  incorporates  them  into  the  related  sections  of  the  criminal  code. 
The  statute  itself  will  be  the  basic  source  of  law  not  the  dozens,  sometimes  thou- 
sands of  interpretive  case. 

I  recall  an  incident  a  few  years  ago  where  a  reporter  for  a  major  network  who 
happened  to  be  an  attorney  solemnly  read  the  section  of  existing  law  dealing 
with  misprison  of  a  felony  to  the  television  audience.  He  concluded  that,  from 
the  face  of  the  statute,  it  was  clear  that  a  public  figure  had  violated  the  law 
through  inaction.  Yet  the  annotations,  if  they  had  been  read,  made  it  clear  that 
the  courts  required  some  positive  action  not  mere  inaction  and  so  his  statement 
was  incorrect.  I  am  not  faulting  the  gentleman  involved.  His  error  simply  points 
out  the  problems  involved  with  current  law. 

S.  1437  introduces  literally  hundreds  of  reforms  to  the  specific  criminal  provi- 
sions of  federal  law.  Hundreds  of  sections  are  consolidated  into  a  few.  Outmoded 
laws  such  as  those  covering  offenses  against  civil  rights  and  sex  offenses  are  re- 
vised and  modernized.  Recent  Innovations  in  crime  such  as  pyramid  sales  schemes 
are  treated  in  a  forthright  fashion. 

Uniform  definitions  and  common  terms  are  introduced.  Sentences  are  graded 
according  to  seriousness  of  offense  rather  than  the  fashion  or  whim  of  the  enact- 
ing Congress.  These  innovations  will  save  our  courts  and  attorneys  countless 
hours  by  settling  the  side  issues  and  letting  them  concentrate  their  efforts  on 
the  search  for  truth. 

The  new  sentencing  provisions  in  the  code  before  us  give  me  no  pause  in  stating 
that  the  bill  continues  to  have  my  full  support.  If  a  person  is  convicted  of  an 
offense  under  the  code  he  will  be  sentenced  under  a  system  that  provides  some 
hope  of  fair  and  uniform  punishment.  The  sentence  will  be  determined  accord- 
ing to  applicable  standards.  Persons  committing  similar  offenses  and  sharing 
similar  basic  characteristics  will  receive  similar  sentences.  If  the  defendant  or 
the  government  believes  that  the  sentence  ignored  this  desired  uniformity,  appel- 
late review  of  the  sentence  would  be  available. 

This  is  the  only  civilized  nation  that  I  am  aware  of  that  does  not  provide  for 
appellate  review  of  the  sentence  imposed.  That  step  has  been  a  long  time  in  com- 
ing but  S.  1437  provides  an  opportunity  to  achieve  it.  "While  my  own  views  on 
appellate  review  may  be  a  ))it  more  bullish  than  those  of  the  members  of  this 
Subcommittee,  I  believe  the  approach  taken  in  this  area  represents  a  worthwhile 
advancement. 

I  am  pleased  with  this  bill.  There  are  provisions  I  would  disagree  with.  Yet  the 
democratic  process  has  worked  its  will  on  the  legislation  and  T  find  so  much  tliat 
I  strongly  approve  of  that  my  disagreements  are  substantially  outweighed. 

It  is  now  time  to  move  on  to  the  business  of  enacting  S.  1437.  While  the  Ad- 
ministration is  on  record  in  support  of  the  measure,  I  urge  the  leadership  of  this 
Subcommittee  to  call  upon  President  Carter  to  lend  his  personal  support  and 
efforts  to  the  early  adoption  of  the  measure.  Fainthearted  attempts  will  not 
suffice.  "We  need  a  code  and  we  need  it  now.  Bold  action  is  in  order. 

Senator  Kkxnkdy.  Yonr  expression  about  some  reservations  with 
the  lej2:islatioii  is  eelioed.  I  e.xpeot,  by  just  about  every  member  of  this 
committee.  I  suppose  if  any  of  us  were  completely  satisfierl  witli  it, 
we  would  find  members  who  were  completely  dissatisfied  with  it. 


8995 

I  want  to  thank  you  very  much.  I  think  your  support  for  this  ap- 
proach will  be  very  helpful.  I  think  it  wnll  be  helpful  to  members  of 
this  committee  because  they  know  how  much  time  and  effort  you  have 
spent  in  this  area  of  public  policy.  Having  your  support  for  this  ap- 
proach will,  I  think,  be  extremely  important  to  the  members  of  both 
this  committee  and  the  Senate. 

j\Ir.  Hruska.  Thank  3'ou  so  much,  Mr.  Chairman.  I  hope  that  prog- 
ress will  be  made.  Time  is  of  the  essence.  Times  change  and  views 
change  and  personalities  change.  The  time  is  ripe  for  action.  I  do  hope 
within  a  short  period  of  time  the  full  committee  can  lact  and  get  the 
bill  o]i  the  floor  where  consideration  will  be  given  at  an  early  date. 

Senator  Kennedy.  Thank  you  very  much. 

Our  next  witness  is  Ronald  Gainer,  who  is  the  Acting  Assistant 
Attorney  General  for  Improvement  in  Criminal  Justice,  in  the  De- 
partment of  Justice. 

He  has  worked  closely  with  this  committee  and  with  me  on  a  num- 
ber of  different  issues. 

We  are  delighted  to  have  you  with  us  here  this  morning.  We  look 
forward  to  your  testimony. 

STATEMENT  OP  EOKALD  L.  GAINER,  ACTING  DEPUTY  ASSISTANT 
ATTORNEY  GENERAL  FOR  IMPROVEMENTS  IN  THE  ADMINISTRA- 
TION OF  CRIMINAL  JUSTICE,  DEPARTMENT  OF  JUSTICE;  ACCOM- 
PANIED BY  KAREN  SKRIVSETH,  DEPARTMENT  OF  JUSTICE 

Mr.  Gainer.  Mr.  Chairman,  as  you  know,  the  Attorney  General  has 
spoken  on  behalf  of  the  Department  as  to  the  need  for  a  new  Federal 
criminal  code  generally.  I  have  been  asked  to  address  some  remarks 
this  morning  to  the  sentencing"  provisions,  in  j)articular,  in  current 
law  and  in  the  proposed  new  code. 

I  have  a  prepared  statement  on  the  subject.  It  is  close  to  50  pages  in 
length,  and  in  the  interest  of  time  and  in  the  interest  of  our  common 
sanity,  I  would  like  simply  to  paraphrase  some  of  the  thoughts  that 
are  contained  therein. 

Senator  Kennedy.  We  will  include  it  in  its  entirety  as  if  read. 

[The  material  follows :] 

Prepared  Statement  of  Ronald  L.  Gainkr,  Acting  Deputy  Assistant  Attorney 
General,  Office  for  Improvements  in  the  Administration  of  Justice 

Mr.  Chairman:  The  snprising  thing  about  the  current  federal  system  of 
sentencing  criminal  offenders  is  that  it  often  wends  its  way  to  generally  satisfac- 
tory results  in  individual  cases.  As  a  system,  though,  it  is  an  anachronism.  Its 
successes  represent  sporadic  triumphs  over  legislative  neglect. 

/.  The  current  law  in  general 

The  sentencing  process  lies  at  the  chronological  culmination  of  an  elaborately 
structured  series  of  processes  designed  to  assure  a  scrupulously  fair  determina- 
tion of  a  defendant's  guilt  or  innocence.  It  should  represent  the  apex  of  rational- 
ity and  fairness — fairness  to  the  defendant  and  to  the  public  alike.  It  does  not. 

Tlie  sentencing  of  criminal  offenders  is  left  to  the  discretion  of  federal 
judges — persons  who  are  well  trained  in  the  nuances  of  arcane  torts  and  the 
rule  against  prerpotuities  but  who  have  no  more  formal  training  than  the  rest 
of  us  in  divining  societal  values  and  in  understanding  the  various  grounds  for 


8996 

Iho  occurrence  and  persistence  of  criminal  conduct.  Some  judges  feel  comfort- 
able in  the  assigned  role.  Others  find  the  lade  of  legislative  guidance  to  be 
frustrating;  as  Judge  Learned  Hand  once  noted  '"Here  I  am  an  old  man  in  a 
long  niglitgown  making  muiUed  noises  at  people  who  may  be  no  worse  than 
I  am."  thereby  sealing  their  fate  for  years  to  come.  The  judges  are  free  to 
follow  any  philosophical  rationale  they  find  appropriate  in  imposing  a  sentence, 
and  are  not  required  to  divulge  to  anyone  the  reasons  that  prompted  the 
selection  of  a  particular  sentence  in  an  individual  case. 

The  only  real  legislative  guidance  as  to  an  appropriate  penalty  is  provided 
by  the  maximum  sentence  specified  for  the  particular  offense  involved,  but 
under  current  federal  law  similar  offenses  may  carry  widely  differing  maximum 
penalties,  less  serious  oifenses  may  carry  penalties  which  are  longer  than  those 
of  more  serious  offenses,  and  one  federal  offense  of  relatively  moderate  serious- 
ness carries  no  upper  limit  at  all  on  the  penalty  that  may  be  assessed.  Other 
than  the  stated  maximum  ijenalties,  about  the  only  congressional  guidance 
afi'orded  sentencing  judges  are  the  helpful  admonitions  at  the  beginning  of 
Chapter  227  that  a  judge  should  not  impose  a  sentence  that  would  "work  cor- 
ruption of  blood"  or  a  sentence  that  would  require  the  defendant  to  stand  in  the 
local  pillory. 

The  current  statutes  do,  however,  recognize  the  sentencing  alternatives  of  pro- 
bation, fines,  and  imprisonment.  Yet,  although  probation  is  pennitted,  it  is  con- 
ijidered  a  suspension  of  the  imposition  or  execution  of  a  sentence  rather  than  a 
sentence  itself,  and  partly  for  that  reason  has  not  been  commonly  employed  on  a 
conditional  basis  to  induce  a  defendant  to  engage  in  such  remedial  measures  as 
imying  reparation  to  his  victims  or  working  in  community  service.  The  prescribed 
fine  levels  are  abysmally  low,  often  frustra/ting  fedei'al  judges  seeking  an  effective 
sanction  against  white  collar  offenders ;  the  limited  fine  levels  that  may  be  assessed 
against  a  defendant  corporation  are  so  low  as  frequently  to  constitute  little  more 
than  the  entity's  annual  expenditure  for  paper  clips.  Even  when  fines  are  imposed, 
the  existing  law  provides  no  effective  means  of  insuring  that  they  can  be  collected. 
The  imprisonment  provisions  reflect  the  philosophy  of  past  decades  that  crimi- 
nality is  a  disease  that  can  be  cured  through  incarceration  and  that  once  an 
offender  has  been  found  by  parole  authorities  to  be  cured  he  should  immediately 
lie  released  notwithstanding  the  fact  that  there  may  be  considerable  time  remain- 
ing on  the  sentence  imposed  by  the  judge  and  notwithstanding  the  fact  that  the 
judge  may  actually  have  had  in  mind  a  quite  different  purpose  for  the  sentence. 
Within  the  last  few  years,  however,  it  has  been  genei-ally  concluded  that  we  do 
not  know  how  to  induce  rehabilitation  or  to  recognize  it  when  it  occurs.  Conse- 
quently, 'the  federal  Parole  Commission  now,  rather  than  looking  for  signs  of 
rehabilitation,  releases  an  offender  on  the  basis  of  mechanically-applied  criteria 
developed  from  tJhe  same  factors  that  were  available  to  the  judge  at  the  time  he 
decided  to  incarcerate  the  offender — the  whole  reason  for  a  variable  or  indeter- 
minate sentence  has  virtually  disappeared. 

As  might  be  assumed,  sentences  imposed  under  such  conditions  vary  consider- 
ably, with  offenders  in  similar  circumstances  receiving  inexplicably  disparate 
sentences.  Such  sentences  would  .seem  to  be  prime  candidates  for  review  by  appel- 
late courts,  but  no  appeal  is  permitted.  While  the  most  tenuous  suggestion  of 
technical  irregularity  in  pretrial  or  trial  procedure  may  be  brought  by  counsel  to 
the  attention  of  an  appellate  court,  the  most  climatic  event  in  the  whole  criminal 
justice  process — the  sentence — may  not  be.  Even  if  review  were  iiermitfed  in  the 
current  system,  it  probably  would  be  of  dubious  value  since  it  is  difl^cult  to  make 
an  intelligent  and  useful  assessment  of  the  propriety  of  a  lawful  exercise  of  un- 
fettered discretion. 

Finally,  the  sentencing  provisions  of  current  law  take  no  cognizance  of  the 
need  for  reparation  to  the  victim.  The  existing  federal  criminal  title,  for  example, 
provides  no  means  of  compensating  a  person  who  may  have  l)een  maimed  for  life 
by  a  federal  criminal  offense :  anomalously,  however,  it  does  provide  redress  in 
one  instance — any  fine  imposed  for  the  offense  of  seducing  a  female  steamship 
passenger  is  directed  by  18  U.S.C.  3614  to  "be  paid  for  the  use  of  the  female 

seduced.*' 

Such  a  recitation  reads  like  an  outline  for  a  Gilbert  and  SiUlivan  production. 
But  it  plays  like  a  tragedy.  The  situation  leaves  victims  frustrated,  leaves  con- 
victed offenders  preoccupied  with  what  they  perceive  to  be  gross  unfairness,  and 
leaves  the  public  jaded  about  the  efficacy  of  the  whole  criminal  justice  process. 
It  thereby  bears  a  principal  responsibility  for  the  stifling  of  whatever  potential 
deterrence  the  system  might  otherwi.se  be  capable  of  producing. 


8997 

//.  The  unwarranted  disparities  in  sentencing  under  current  law 

The  lack  of  logic  iu  the  current  federal  seuteucing  system  could  largely  be 
forgiven  if,  by  happenstance  or  by  extraordinarily  careful  adminstrative  guid- 
ance, it  produced  results  perceived  as  generally  equitable.  It  fails,  however,  to 
achieve  such  results.  Although  the  average  sentences  of  incarcerated  offenders, 
at  least  when  the  calculations  retlect  the  time  actually  served,  may  appear  to 
strike  a  generally  reasonable  balance,  it  is  apparent  that  many  of  the  extreme 
differences  between  sentences  cannot  fairly  be  justilied  on  the  basis  of  differences 
between  offenses  or  offenders.  A  balance  obtained  by  the  averaging  of  extremes  Is 
no  real  balance  at  all. 

The  legal  invitations  to  disparity  under  the  existing  system  have  already  been 
suggested.  Chief  among  the  problems  are  the  following.  First,  because  the  federal 
criminal  laws  have  been  enacted  on  a  piecemeal  basis  rather  than  as  a  compre- 
hensive criminal  code,  persons  who  commit  substantially  similar  offenses  today 
may  be  subject  to  substantially  different  penalties  depending  upon  the  particular 
statutes  under  which  they  are  prosecuted.  Second,  even  when  defendants  are 
convicted  under  the  same  statute,  they  may  be  subject  to  sentences  under  differ- 
ing and  overlapping  sentencing  statutes.  Third,  the  current  statutes  contain  no 
clearly  articulated  sentencing  philosophy  to  guide  sentencing  judges  in  the  choice 
among  the  sentences  that  may  be  available.  Fourth,  even  when  a  sentence  of 
imprisonment  is  imposed,  the  existing  statutes  have  mandated  a  substantial 
amount  of  uncertainty  as  to  the  actual  length  of  the  imposed  sentences.  The  inter- 
relationship of  the  above  factors  has  caused  considerable  confusion  and  disparity. 
Although  the  federal  Parole  Commission  has  stepped  into  the  void  and  has  at- 
tempted to  reduce  the  extremes  of  disparity,  its  efforts  cannot  help  substantially 
with  the  problem — nor  can  the  collective  efforts  that  have  been  made  in  the  past 
by  the  federal  judges. 

A.    THE   PENALTY   LEVELS   IN    THE   PENAL   OFFENSES 

Current  law  contains  numerous  examples  of  inconsistent  grading  of  criminal 
offenses.  In  many  such  instances,  there  are  material  variations  in  the  maximum 
penalties  applicable  under  different  statutes  to  essentially  similar  criminal  con- 
duct ;  in  other  instances,  there  are  little  or  no  variations  in  the  maximum  penal- 
ties applicable  to  offenses  that  may  be  similar  in  kind  but  materially  different  in 
gravity.  Frequently,  the  punishment  prescribed  by  a  penal  statute  appears  to 
depend  more  upon  the  nature  of  the  federal  jurisdictional  interest  involved  than 
upon  the  nature  of  the  underlying  criminal  conduct. 

A  few  examples  will  suffice.  The  penalty  for  embezzlement  of  more  than  .$100 
may  vary  from  a  maximum  of  2  years'  imprisonment  to  a  maximum  of  10  years' 
imprisonment  even  if  the  only  difference  between  the  offenses  is  the  identity  of 
the  entity  from  which  the  money  is  embezzled.  See  IS  U.S.C.  641,  650,  and  665(a). 
The  penalty  for  lying  to  the  Department  of  Housing  and  Urban  Development  for 
the  purpose  of  obtaining  a  mortgage  loan  is  3  years'  imprisonment  if  the  prosecu- 
tion is  brought  under  one  statute  and  5  years'  imprisonment  if  the  prosecution 
is  brought  under  another.  See  18  U.S.C.  1001  and  1010.  The  penalty  for  robbery 
of  a  bank  is  20  years,  for  robbery  on  a  federal  enclave  is  15  years,  and  for  rob- 
bery of  government  property  is  either  15  or  10  years  years  depending  upon  the 
statute  under  which  the  charge  is  brought.  See  18  U.S.C.  2111  through  2114.  The 
penalty  for  an  attempt  to  commit  murder  on  federal  land  is  20  years  under  one 
statute  and  3  years  under  another.  See  18  U.S.C.  113  and  1113. 

The  maximum  fine  levels  carried  by  the  penal  offenses  vary  as  greatly  and  as 
inexplicably  as  the  maximum  terms  of  imprisonment.  The  principal  difference  is 
that  almost  all  the  maximum  fine  levels  are  much  too  low  to  be  considered  a 
realistic  monetary  approximation  of  the  gravity  of  the  offense. 

B.  THE  VARYING    SENTENCING  STATUTES 

Once  a  defendant  has  been  convicted  of  an  offense  under  federal  law,  the 
sentencing  judge  is  faced  with  a  variety  of  statutory  options.  Under  current 
federal  law,  even  in  the  most  simple  criminal  case  the  sentencing  judge  is  pre- 
sented with  at  least  five  alternative  kinds  of  sentences,  with  no  statutory  guid- 
ance as  to  the  manner  in  which  an  appropriate  selection  should  be  made  among 
them.  An  ordinary  adult  offender  may  be  sentenced  to  a  term  of  probation,  to 
pay  a  fine,  to  a  term  of  imprisonment  with  immediate  eligibility  for  parole,  to  a 


8998 

term  of  imprisonment  with  eligibility  for  parole  after  serving  such  period  of  time 
as  is  specified  by  the  sentencing  judge  within  the  first  one-third  of  the  term 
of  imprisonment,  or  to  a  term  of  imprisonment  with  ehgibility  for  parole  by 
operation  of  law  after  serving  one-third  of  the  term  imposed.  18  U.S.C.  4205(a), 
(b)(1),  and  (b)(2). 

If  a  convicted  defendant  is  a  drug  addict  or  is  under  26  years  of  age,  the 
sentencing  options  become  even  more  complex.  If  the  judge  reaches  the  con- 
clusion that  the  defendant  is  an  addict  and  is  '•hkely  to  be  rehabilitated  through 
treatment,"  the  defendant  may  be  committed  for  an  indeterminate  period  of  time 
of  up  to  10  years'  duration,  as  long  as  the  sentence  imposed  does  not  exceed  the 
maximum  that  otherwise  would  be  permitted  for  the  offense.  On  the  other  hand, 
if  the  judge  believes  that  the  defendant  is  a  drug  user  but  not  an  addict,  or  is 
an  addict  who  is  not  likely  to  be  rehabihtated  through  treatment,  another  statute 
must  be  used  in  imposing  sentence.  Any  person  who  is  sentenced  luider  these 
statutes  automatically  becomes  eligible  for  parole  after  the  first  6  months  of 
his  incarceration.  18  U.S.C.  4253  and  4254. 

If  a  convicted  defendant  is  under  26  years  of  age  at  the  time  of  his  convic- 
tion, the  Fetleral  Youth  Corrections  Act  provides  still  additional  sentencing 
options.  If  the  defendant  is  under  22  years  of  age  at  the  time  of  his  conviction, 
the  sentencing  judge  is  required  to  consider  sentencing  him  under  the  Youth 
Corrections  Act,  but  may  still  sentence  him  as  an  adult  if  he  believes  "that  the 
vouth  offender  will  not  derive  benefit  from  treatment"  under  the  Youth  Correc- 
tions Act.  18  U.S.C.  5010(d)  ;  see  Dorszynski  v.  Vnitcd  States,  418  U.S.  437  at 
441  (15)74).  If  the  defendant,  at  the  time  of  his  conviction,  is  between  the  ages 
of  22  and  26,  he  may  be  considered  a  "young  adult  offender."  As  to  such  an 
offender,  the  sentencing  judge  need  not  consider  imposing  sentence  under  the 
Youth  Corrections  Act,  although  he  may  do  so  if  he  "finds  that  there  are  reason- 
able grounds  to  believe  that  the  defendant  will  benefit  from  the  treatment  pro- 
vided under  the  Federal  Youth  Corrections  Act."  18  U.S.C.  4216. 

If  the  sentencing  judge  in  his  discretion  decides  to  sentence  a  young  defend- 
ant— either  one  under  22  years  of  age  or  one  between  the  ages  of  22  and  2(3 — 
pursuant  to  the  provisions  of  the  Youth  Corrections  Act,  he  still  has  three  sen- 
tencing options  under  that  Act.  He  may  sentence  the  defendant  to  probation ; 
he  may  sentence  him  to  an  indeterminate  sentence  of  6  years'  duration,  with 
immediate  eligibility  for  parole  and  with  no  more  than  4  of  the  6  years  to  be 
spent  in  prison :  or.  if  the  judge  finds  that  the  defendant  "may  not  be  able  to 
derive  maximum  benefit  from  treatment  by  the  (Parole)  Commission  prior  to 
the  expiration  of  6  years,"  he  may  sentence  him  to  any  period  of  incarceration 
as  long  as  it  does  not  exceed  the  maximum  otherwise  authorized  for  the  offense. 
18  U.S.C.  5010  and  5017. 

C.    THE  LACK  OF  STATUTORY  GUIDANCE  TO  SENTENCING  JUDGES 

The  current  federal  statutes  provide  no  specific  guidance  to  sentencing  judges 
as  to  the  purposes  songht  to  be  achieved  by  the  sentencing  process.  For  the  most 
l)art,  no  sentencing  philosophy  is  outlined,  and  no  direction  is  afforded  as  to  the 
factors  pertaining  to  the  offense  and  the  offender  that  warrant  consideration  an 
the  imposition  of  an  appropriate  penalty.  No  instruction  is  set  forth  to  govern 
the  selection  of  the  type  of  penalty  to  be  imposed  or  of  the  severity  of  the 
]»ennlty  selected. 

Because  there  exist  no  legi.slative  standards — or,  for  that  matter,  judicial 
standards — governing  the  proper  imposition  of  sentences  in  particular  kinds  of 
cases,  judicially  imposed  sentences  vary  considerably. 

Sentences  vary  according  to  the  sentencing  statute  employed  by  the  judge, 
despite  similarities  in  the  characteristics  of  the  offense  and  of  the  offender. 
For  cxamytle.  the  sentences  imposed  on  male  bank  robbers  who  were  discharged 
from  the  Bureau  of  Prisons  in  1974  and  1975  ranged  from  72  months  under  the 
indeterminate  sentencing  provision  of  the  Yonth  Corrections  Act  in  18  U.S.C. 
."OlOfb)- — the  maximum  .sentence  available  under  that  statute — to  141  months 
under  the  ordinary  sentencing  stntutes  when  the  judge  specified  a  maximum 
.sentence  but  did  not  specify  a  date  of  parole  eligibility.  Offenders  who  were 
sentenced  under  the  Youth  Corrections  Act  to  a  specified  term  under  the  provi- 
.sions  of  IS  U.S.C.  .5010(c)  were  also  sentenced  to  an  average  of  141  months. 
In  between  those  terms  were  the  indeterminate  sentences  imposed  under  the 
Narcotic  Addict  Rehabilitation  Act    (105  months),  the  sentences  imposed  on 


8999 

ordinary  offenders  under  IS  U.S.C.  420S(a)(l)  with  early  parole  eligibility 
specified  by  the  judge  (111>  months),  and  the  sentences  imposed  on  ordinary 
offenders  with  immediate  eligibility  for  parole  specified  by  the  judge  under 
IS  U.S.C.  4208(a)  (2)    (139  months). 

Sentences  imposed  upon  defendants  who  are  similarly  situated  also  appear  to 
vary  substantially  from  case  to  case  and  from  district  to  district.  For  example, 
Bureau  of  Prisons  reports  for  1974  and  197.5  show  that  approximately  two-thirds 
of  a  group  of  17  male  bank  robbers  with  similar  backgrounds  in  terms  of  age, 
education,  marital  status,  employment  record,  and  criminal  history,  were  sen- 
tenced to  prison  for  terms  varying  from  75  to  195  months.  The  remainder  of 
these  offenders  received  sentences  either  above  or  below  this  range.  Nationally, 
the  average  sentence  imposed  for  bank  robbery  was  130,  but  in  nine  judicial 
districts  the  average  sentence  was  less  than  85  months,  and  in  eight  judicial 
districts  the  average  was  over  200  months. 

Some  recent  studies  have  suggested  that  sentencing  philosophy  varies  from 
one  federal  court  to  another,  although  this  is  a  difficult  matter  to  ascertain  with 
any  certainty  since  there  exists  no  requirement  that  judges  specify  reasons  for 
their  sentences  and  judges  in  fact  rarely  do  so.  While  federal  sentences  usually 
exhibit  a  direct  correlation  between  the  type  and  length  of  a  sentence  on  the  one 
hand  and  the  offense  and  criminal  history  of  the  offender  on  the  otlier  hand, 
a  number  of  other  factors  may  be  construed  as  playing  a  role  in  determining 
the  sentence  imposed  even  though  those  factors  may  not  appear  pertinent  in 
many  cases.  Among  the  factors  that  seem  to  be  related  to  sentence  length  for 
particular  offenses  in  particular  districts  are  the  age,  sex,  and  race  of  the  defend- 
ant ;  whether  the  defendant  had  pleaded  guilty  or  had  proceeded  to  trial,  and 
whether  the  defendant  was  tried  before  a  jury  or  before  a  judge  sitting  without 
a  jury.  Although  there  may  be  valid  reasons  for  such  relationships  under  certain 
circumstances,  and  although  the  samples  may  suggest  more  differences  than 
actually  exist,  the  lack  of  sentencing  standards  makes  any  perceived  unfairness 
harder  to  dismiss. 

In  addition  to  sentences  for  similar  offenders  varying  without  clear  reason, 
sentences  for  dissimilar  offenders  appear  to  vary  less  than  logic  would  suggest. 
One  anomaly  under  current  law  is  that,  contrary  to  what  one  would  expect, 
there  is  not  always  a  high  correlation  between  the  sentence  imposed  for  a  par- 
ticular offense  and  the  incarceration  history  of  the  defendant.  For  example.  Bu- 
reau of  Prisons  statistics  indicate  tliat  among  the  prisoners  confined  in  federal 
institutions  in  1975  on  assault  convictions,  those  with  three  or  more  prior  commit- 
ments to  prison  were  serving  an  average  sentence  of  97.7  months  while  those 
with  only  two  prior  commitments  were  serving  an  average  sentence  of  103.4 
months.  Similarly,  for  the  offense  of  fraud,  defendants  sentenced  to  prison 
for  the  first  time  actually  received  longer  terms  of  confinement  than  did  de- 
fendants who  had  previously  been  committed;  in  1975,  of  federal  prisoners 
serving  sentences  to  imprisonment  for  fraud,  those  who  had  not  previoiisly  been 
committed  to  prison  were  serving  average  terms  of  52. S  months,  while  those 
with  one.  two,  or  even  three  or  more  prior  commitments  were  all  serving  average 
terms  of  at  least  4  months  less  than  offenders  who  were  committed  for  the  first 
time. 

D.     THE    UNCEBTAINTT    REMAINING    IN    IMPOSED    SENTENCES    TO    IMPRISONMENT 

Disparity  does  not  end,  of  course,  with  the  imposition  of  sentences.  Defendants 
sentenced  to  identical  terms  of  imprisonment  may  find  themselves  released  from 
confinement  after  serving  differing  proportions  of  their  imposed  terms.  As  to  each 
prisoner  sentenced  to  a  term  of  imprisonment  in  excess  of  1  year,  two  methods 
are  employed  simultaneously  to  determine  his  potential  release  date  even  though 
only  one  of  the  two  methods  will  actually  determine  his  time  of  release.  The 
Bureau  of  Prisons  determines  the  potential  release  date  according  to  the  term 
of  imprisonment  imposed  by  the  judge  less  any  accumulated  "good  time"  af- 
forded for  complying  with  prison  rules,  for  participation  in  industrial  programs, 
or  for  exceptional  institutional  service.  18  U.S.C.  4161  through  4163.  At  the 
same  time,  the  Parole  Commission  must  determine  whether  a  prisoner  who  is 
eligible  for  parole  should  l)e  released  on  parole  and,  if  so,  the  date  upon  which 
his  pai-ole  should  begin.  18  U.S.C.  4206.  The  availability  of  "work-release"  pro- 
grams, which  free  a  ijrisoner  from  confinement  without  affecting  his  formal 
release  date,  complicates  the  matter  still  further.  18  U.S.C.  4082(c). 

92-46.5 — 77 2S 


9000 

Although  the  original  purpose  of  the  indeterminate  sentence  subject  to  review 
by  parole  authorities  was  to  provide  for  a  prisoner's  i-elease  when  it  was  found 
through  review  of  his  prison  conduct  that  he  liad  become  rehabilitated,  the 
I'arole  Commission  today  does  not  predicate  its  release  determination  upon  a 
prisoner's  institutional  conduct  but  rather  has  adopted  a  mechanistic  approach 
to  release  determinations  based  upon  offender  and  offense  characteristics  known 
at  the  time  of  sentencing.  The  Parole  Commission's  self-developed  guidelines  for 
prisoner  release  are  followed  in  approximately  So  percent  of  parole  determina- 
tions, thereby  introducing  more  certainty  into  the  computation  of  an  eligible 
prisoners  expected  release  date  than  previously  had  existed. 

E.  THE  INTERRELATIONSHIP  OF  THE  ABOVE  FACTORS 

The  interrelationship  between  the  operation  of  the  maximum  penalty  provi- 
sion-s  of  the  penal  statutes,  the  sentencing  statutes,  the  statutory  provisions  con- 
cerning parole  eligibility  and  "good  time,"  and  the  parole  guidelines,  compounds 
the  uncertainties  in  the  existing  law.  This  may  be  illustrated  by  the  example  of 
three  23-year-old  defendants  with  identical  backgrounds  who  are  convicted  of 
armed  bank  robbery  in  which  a  weapon  is  not  fired  and  no  one  is  injured.  To 
begin  with,  each  defendant  faces  a  statutory  maximum  sentence  of  20  years  in 
prison,  a  $5,000  fine,  or  both  imprisonment  and  a  fine.  However,  if  the  first  defend- 
ant is  sentenced  under  the  ordinary  sentencing  statutes  to  15  years  in  prison  with 
no  specification  by  the  judge  as  to  early  parole  eligibility,  the  second  is  sentenced 
under  the  indeterminate  sentencing  provisions  of  the  Youth  Corrections  Act 
(which  permit  incarceration  for  no  more  than  4  years),  and  the  third  is  sentenced 
under  the  Youth  Corrections  Act  to  15  years  in  prison,  they  will  serve  different 
lengths  of  time  in  confinement  even  though  there  is  no  difference  in  their  cases 
other  than  the  statute  under  which  they  are  sentenced.  The  defendant  sentenced 
under  the  ordinary  sentencing  provisions  would  be  released  on  parole  at  the  time 
of  his  statutory  eligibility  for  parole — after  serving  5  years  in  prison  (if  he  had 
been  eligible  for  parole  at  an  earlier  time  he  might  be  released  under  the  current 
parole  guidelines  in  36  to  48  months).  Under  the  parole  guidelines  for  persons 
sentenced  under  the  Youth  Corrections  Act,  both  defendants  sentenced  under  that 
Act  will  be  paroled  after  serving  between  27  and  34  months  in  prison.  Tims, 
the  defendant  sentenced  under  the  more  common  sentencing  provisions  will  serve 
between  26  and  33  months  more  time  in  prison  because  the  length  of  the  sentence 
imposed  precluded  his  eligibility  for  parole  at  the  time  recommeded  in  the  current 
guidelines.  Even  if  the  judge  in  his  case  had  imix)sed  a  lower  sentence  or  had 
specified  an  earlier  parole  eligibility,  the  defendant  sentenced  under  the  usual  pro- 
visions would  still  have  to  spend  10  to  15  months  longer  in  prison  than  his  con- 
temi)(>raries  sentenced  under  the  Youth  Corrections  Act. 

F.   THE  ATTEMPT  TO  REDUCE  DISPARITY  THROUGH   THE  PAROLE  COMMISSION 

GUIDELINES 

The  Parole  Commission,  in  a  role  somewhat  altered  from  the  original  design, 
has  over  the  past  few  years  undertaken  to  moderate  the  effects  of  disparate 
sentences  to  the  extent  that  it  has  the  power  to  do  so.  It  has  succeeded,  through 
its  guidelines,  in  bringing  a  measure  of  uniformity  and  predictability  to  the 
final  part  of  the  penal  and  correctional  process.  But  while  the  Commission's 
guidelines  represent  a  remedial  attempt  to  bring  about  equal  treatment  for  pris- 
oners who  are  similarly  situated,  it  is  apparent  that  this  is  an  inadequate 
mechanism  for  eliminating  all  unwarranted  disparities.  First,  the  Commission 
obviously  can  do  nothing  about  the  inadequacy  of  a  judicially  imposed  sentence 
to  probation  when  a  sentence  to  a  term  of  imprisonment  might  be  more  appro- 
priate under  all  the  circumstances.  Second,  the  Commission  cannot  correct  the 
inconsistencies  in  judges'  selections  among  alternative  sentencing  statutes.  Third, 
the  Commission  can  do  nothing  about  a  sentence  that  is  so  long  that  a  prisoner 
is  not  eligible  for  parole  at  the  time  recommended  in  the  guidelines.  Fourth,  the 
Commission  cannot  extend  a  prison  sentence  that  is  shorter  than  the  period 
that  would  be  appropriate  for  the  prisoner  under  the  Commission's  guidelines. 
Thus,  all  that  the  Parole  Commission  can  do  to  alleviate  sentencing  disparity 
is  to  apply  its  guidelines  to  the  approximately  50  percent  of  the  defendants 
sentenced  to  imprisonment  who  are  eligible  for  parole  at  the  time  recommended 
in  the  guidelines ;  it  cannot  affect  the  sentences  of  the  other  50  percent  of  the 
defendants  sentenced  to  incarceration,  and  cannot,  of  course,  reach  those  defend- 
ants whose  sentences  do  not  include  a  prison  term. 


9001 

The  Parole  Commission  has  undertaken  a  progressive  and  unique  step  to  meet 
some  of  the  existing  sentencing  problems.  It  deserves  credit  for  its  effort,  but 
its  impact  is  limited. 

0.    THE    ATTEMPT    TO    REDUCE    DISPARITY    THKOUGII    JUDICIAL    INITIATIVES 

TIio  judicial  branch  of  the  federal  government  has  undertaken  a  number  of 
efforts  designed  to  alleviate  sentencing  disparity. 

The  circuit  courts  have  undertaken,  pursuant  to  28  U.S.C.  344.  to  hold  sentenc- 
ing institutes  for  the  purpose  of  bringing  together  judges,  prosecutors,  and  penal 
and  correctional  specialists  for  discussions  of  sentencing  problems  and  training 
on  sentencing  issues.  Although  the  sentencing  institutes  have  served  a  useful 
educational  purpose,  they  cannot  be  said  to  have  achieved  much  more  than  an 
enhanced  awareness  of  avaihible  sentencing  options  and  of  some  of  the  problems 
in  current  sentencing  law. 

Some  district  courts  have  experimented  with  three-judge  sentencing  councils, 
consisting  of  the  sentencing  judge  in  a  particular  case  and  two  colleagues.  Each 
of  the  judges  receives  a  copy  of  the  presentence  report  in  the  case,  and  the  judges 
then  meet  to  exchange  recommendations  concerning  an  appropriate  sentence, 
yucli  councils  may  be  helpful  to  the  sentencing  judge,  but  they  cannot  achieve  the 
goal  of  eliminating  unwarranted  sentencing  disparity  for  a  number  of  reasons. 
First,  the  panels  are  merely  advisory,  and  the  sentencing  judge  may  impose  a 
sentence  quite  ditTerent  from  the  sentence  recommended  by  his  colleagues  with- 
out stating  his  reasons  for  doing  so.  Second,  the  panels  operate  on  a  case-by- 
case  basis  within  a  single  district,  and  do  not  have  the  benefit  of  detailed  ju- 
dicial points  of  view  reflecting  nation-wide  or  even  circuit-wide  practices.  Third, 
the  panels  necessarily  operate  within  the  existing  statutory  law,  which  itself 
fosthers  a  great  deal  of  the  current  disparity.  An  additional  problem  with  the  use 
of  such  councils,  not  related  to  the  problem  of  disparity,  is  that  they  require 
the  time  of  three  judge  to  make  a  single  sentencing  decision. 

In  sum,  the  efforts  of  the  judiciary,  too,  have  proved  largely  unavailing  because 
of  the  nature  and  magnitude  of  the  underlying  problems. 

///.  Tlic  sentencing  reform  proposal  in  S.  14-37 

It  is  clear  that  a  major  reform  of  federal  sentencing  law  is  required. 

A  dramatic  proposal  for  reform  of  tlie  entire  sentencing  process  is  now  pending 
before  this  Subcommittee  in  S.  1437,  the  bill  to  revise  the  entire  Federal  Crim- 
inal Code.  While  the  Subcommittee  has  under  consideration  a  number  of  other 
bills  that  would  restructure  the  sentencing  process,  only  the  one  appearing  in 
S.  1437  is  sufficiently  comprehensive  to  permit  the  degree  of  sentencing  reform 
that  is  needed.  Since  the  disparity  in  tlie  existing  system  arises  from  a  variety 
of  causes,  only  a  proposal  that  undertakes  to  deal  with  all  of  those  causes  holds 
real  promise.  Sentencing  proposals  addressing  only  the  problem  caused  by  un- 
structured judicial  discretion  cannot  effectively  reach  the  disparity  arising  from 
the  inconsistent  grading  of  offenses,  the  failure  of  the  statutes  to  define  the  pur- 
poses of  sentencing,  and  the  welter  of  sentencing  and  prison  release  provisions. 

The  Administration  strongly  supports  S.  1437's  sweeping  reforms  of  current 
sentencing  law  in  the  context  of  the  revision  of  the  Federal  Criminal  Code.  By 
addressing  all  aspects  of  the  law  affecting  criminal  sentences,  S.  1437  will  intro- 
duce a  rationality  and  fairness  that  has  not  previously  appeared  in  the  federal 
system.  It  is,  moreover,  highly  practical  in  its  approach. 

A.    THE    GBADING    OK    OFFENSES 

The  new  Code  contained  in  S.  1437  completely  restructures  and  rewrites  the 
current  federal  penal  laws  to  make  them  more  understandable,  to  clarify  their 
interrelationships,  and  to  grade  them  consistently  Avith  their  relative  seriousness. 
It  draws  logical  penalty  distinctions  where  none  have  existed  before  and  intro- 
duces lesser-included  offenses  where  felonies  have  previously  stood  alone.  For 
example,  the  penalty  for  the  offense  of  theft  is  made  to  vary* with  the  kind  and 
value  of  the  property  stolen ;  large-scale  thefts  and  frauds  carry  penalties  sig- 
nificantly higher  than  those  in  current  law,  theft  of  items  of  little  value  are 
reduced  to  a  misdemeanor  level,  and  a  youth's  temporarily  taking  a  motor 
vehicle  without  authority  and  then  abandoning  it  is  reduced  from  the  current 
five-year  penalty  to  a  maximum  of  six  months'  confinement.  The  Code  also 
introduces  uniform  culpability  standards,   thereby  permitting  the  grading  of 


9002 

offenses,  when  appropriate,  according  to  the  state  of  mind  with  Avhich  the 
defendant  committed  the  ottense.  Moreover,  tlie  Code  also  introduces  uniform 
culpability  standards,  thereby  permitting  the  grading  of  offenses,  when  appro- 
])riate,  according  to  the  state  of  mind  with  which  the  defendant  committed  the 
offense.  Moreover,  the  Code  pi'ovides  a  convenient,  shorthand  method  of  referring 
to  the  penalties  and  other  sentencing  considerations  that  are  pertinent  to  the 
offense  by  using  common  grading  categories — five  grades  of  felonies,  three 
grades  of  misdemeanors,  and  one  grade  of  infraction.  In  a  separate  subsection 
of  each  offense  the  appropriate  grade  for  the  offense  is  set  forth.  In  doing  so, 
care  is  taken  to  grade  the  offense  according  to  the  underl.ving  criminal  mis- 
conduct rather  than  the  federal  jurisdictional  Interest  involved.  Moreover,  if 
the  seriousness  of  the  offense  varies  according  to  specific  circumstances,  the 
grading  subsection  specifies  the  circumstances  in  which  a  different  grade  applie.s 
to  the  offense.  This  approach  facilitates  the  establishment  of  a  penalty  structure 
assviring  consistent  penalties  for  conduct  of  a  similar  nature  or  similar  degree  of 
seriou.sness. 

B.    THE    PXJRPOSES    OF    SEXTEXCIXG 

The  new  Code  sets  forth  for  the  first  time  the  four  generally  recognized  pur- 
poses of  sentencing — deterrence,  protection  of  the  public,  assurance  of  just 
punishment,  and  rehabilitation.  They  appear  at  the  beginning  of  the  Code  in 
Section  101,  and  are  set  forth  again  at  the  beginning  of  the  sentencing  provisions 
in  Section  2001.  The  Code  does  not  direct  the  setting  of  priorities  among  those 
IRirposes,  recognizing  that  for  a  particular  offense  committed  by  a  particular 
offender,  one  of  the  purposes  or  a  combination,  of  purposes  may  be  of  over- 
riding importance.  The  Code  recognizes  in  the  provisions  governing  the  imposi- 
tion of  sentences  to  probation,  fines,  and  imprisonment  that  not  all  the  specified 
])urposes  would  he  appropriate  or  even  relevant  in  individual  cases.  For  example, 
a  young  first  offender  who  commits  a  nonviolent  offense  might  appropriately 
be  sentenced  to  probation  primarily  or  solely  for  rehabilitative  purposes;  a 
repeat  violent  offender  might  be  sentenced  to  imprisonment  primarily  for 
incapacitatlve  purposes ;  and  a  perpetrator  of  a  large-scale  fraud  might  be 
sentenced  to  imprisonment  primarily  for  deterrent  purposes.  Other  purposes 
suggesting  other  penalties  either  may  be  inapposite  in  such  cases,  or  may 
be  of  such  reduced  importance  as  to  be  dismissed  in  the  course  of  seeking  to 
achieve  the  principal  goal. 

C.    THE   PR0BATI0?f    PROVISIONS 

The  nev7  Code  makes  a  number  of  useful  changes  in  the  probation  laws. 

First,  a  sentence  to  probation  is  specified  as  a  sentence  in  itself,  and  not  simply 
the  suspension  of  the  imposition  or  execution  of  a  sentence  to  imprisonment.  In 
combination  with  other  provisions,  this  should  help  to  encourage  the  use  of  more 
innovative  refpilremcnts  that  a  defendant  sliould  be  expected  to  fulfill  as  a  condi- 
tion of  his  proiiation. 

Second,  the  Code  sets  forth  an  extensive  list  of  possible  conditions  of  proba- 
tion that  might  be  appropriate  in  particular  cases.  T'nder  Section  2103(a),  it  is 
a  mandatory  condition  of  probation  that  the  defendant  not  commit  another 
crime  during  the  term  of  his  prol)ation.  This  is  the  only  mandatory  condition. 
Section  2103(b)  permits  the  sentencing  judge  to  exercise  his  discretion  whether 
to  impose  one  or  more  of  the  18  suggested  conditions  that  might  be  siutable  in 
particular  situations,  or  whether  to  impose  other  conditions  that  he  might 
wish  to  tailor  to  the  offender  or  the  offense.  The  simple  listing  of  such  provisions 
on  the  face  of  the  statute  should  help  assure  that  courts  will  give  more  cognizance 
to  the  possibility  of  predic.iting  release  upon  compliance  with  conditions  appro- 
priate to  the  case.  In  addition  to  such  discretionary  condition.^  as  the  payment 
of  a  fine  imposed  as  a  part  of  the  sentence  and  the  mnking  of  direct  restitu<^ion 
to  a  victim  of  the  offense,  the  sontion  includes  a  condition  that  the  defendant 
engage  in  some  form  of  commtmity  s(>rvice — a  condition  that  might  more  effec- 
tively serve  the  underlying  purposes  of  a  sentencing  in  particular  cases  than 
the  more  traditional  criminal  sentences. 

Third,  Section  2101  specifies  diff(M-ent  maximum  terms  of  probation  for  dif- 
ferent offense  severity  levels.  T'nder  current  law  the  maximum  term  of  jiroba- 
tion  is  any  period  uj)  to  five  years,  without  regard  to  the  seriousness  of  the  of- 
fense. Tinder  the  Code,  the  maximum  prolmtion  terms  would  be  five  .vears  for  a 
felony,  two  years  for  a  misdemeanor,  and  one  year  for  an  infraction. 


9003 

D.     THE    FINE    PROVISIONS 

Chai)ter  22  of  the  Code  sets  forth  the  maximum  tines  applicable  to  each  grade 
of  offense.  The  specified  fine  levels  are  substantially  higher  than  those  appear- 
ing in  curi-ent  law  which,  for  most  offenses,  are  now  so  low  as  to  be  meaningless, 
particularly  as  they  apply  to  corporate  violators.  For  too  long  fines  have  been 
at  such  low  levels  that  they  tend  to  be  considered  by  white  collar  offenders  simply 
as  minor,  potential  costs  of  doing  business. 

Under  Section  2201(b)  of  the  Code,  an  individual  defendant  is,  for  a  felony, 
subjecr  to  a  maximum  fine  of  up  to  $100,000;  for  a  misdemeanor,  a  mnximum 
fine  of  up  to  $10,000;  and  for  an  infraction,  a  maximum  fine  of  up  to  $1,000.  The 
fines  for  organizations  are  even  higher;  for  a  felony,  up  to  $.")00.000;  for  a  mis- 
demeanor, up  to  $100,000;  and  for  an  infraction,  up  to  $10,000.  In  addition,  the 
Code  permits  an  alternative  fine  of  double  the  pecuniary  gain  which  accrued 
to  the  defendant  or  double  the  loss  caused  to  the  victim,  v/hatever  is  greater — 
a  provision  that  could  be  a  particularly  useful  sanction  against  white  collar 
offenders  who  conduct  fraudulent  liusinesses.  It  should  be  noted  that  as  to  all 
the  fine  levels  under  the  Code,  however,  the  imposition  of  a  fine  is  specifically 
conditioned  upon  a  defendant's  ability  to  pay,  thereby  assuring  that  an  individual 
or  an  organization  with  a  few  assets  will  not  be  fined  an  aljsurdly  high  amount. 

Subchapter  B  of  Chapter  38  of  the  Code,  relating  to  the  implementation  of 
the  tine  provisions,  introduces  a  change  in  the  law  of  similar  importance.  It  in- 
corporates a  series  of  provisions  permitting  resource  to  the  Internal  Revenue 
Service  statutes  so  as  to  allow  the  levying  of  a  lien  upon  a  defendant's  property 
if  he  has  attempted  to  circumvent  a  court's  order  to  pay  a  fine  as  directed.  Under 
current  law,  criminal  fines  are  collected  from  contumacious  defendants  pri- 
marily by  executing  judgment  against  real  or  personal  property,  or  by  the  often 
cumbersome  method  of  garnisheeing  wages.  The  effectiveness  of  a  garnishment 
varies  from  state  to  state  since  state  law  controls  the  manner  in  which  the  pro- 
cedure operates  in  the  federal  district  involved.  The  Code's  introduction  of  a  pro- 
cedure akin  to  a  tax  lien  should  substantially  improve  the  ability  of  the  govern- 
ment to  collect  unpaid  criminal  fines,  and,  by  providing  a  uniform  set  of  pro- 
cedures, should  simplify  the  collection  process.  The  result  should  be  a  more 
effective  penalty  and  a  substantial  increase  in  revenues. 

E.    THE    IMPEISONMENT    PROVISIONS 

The  terms  of  imprisonment  permitted  by  the  Code  are  generally  somewhat 
reduced  from  those  in  current  law,  with  the  major  changes  applying  to  the 
Code's  counterparts  to  those  existing  statutes  that  carry  penalties  substantially 
higher  or  substantially  lower  than  most  similar  offenses.  The  sentencing  judge, 
however,  is  enabled  for  the  first  time  to  specify  in  appropriate  cases  that  the 
sentence  imposed  shall  not  be  subject  to  parole  except  for  a  stated  period  at  the 
end  of  the  imposed  term — as  short  a  period  as  the  last  ten  percent  of  the  term. 
This  provision  is  included  in  recognition  of  the  fact  that  sentences  for  punitive 
or  deterrent  purposes  afford  no  basis  at  all  for  an  indeterminate  sentence,  and 
that  there  is  no  legitimate  reason  for  continuing  the  existing  requirement  that,  if 
a  judge  wishes  to  assure,  for  example,  that  a  white  collar  defendant  will  spend 
one  year  in  prison  for  purposes  of  deterrence,  he  must  go  through  the  dis- 
increnuous  process  of  imposing  an  illusory  three-year  term  with  parole  after 
service  of  the  first  one-third.  This  change  alone  will  help  to  make  the  sentencing 
system  more  forthright. 

The  complicated,  special  sentencing  provisions  of  current  law  that  are  designed 
for  particularly  dangerous  offenders,  youth  offenders,  and  narcotics  offenders,  are 
eliminated  as  unnecessary.  Mandatory  sentences  to  imprisonment  are  permitted 
for  only  two  offenses — trafiicking  in  heroin  and  using  a  weapon  in  the  coiu'se  of 
a  federal  crime:  in  those  instances,  the  mandatory  penalty  is  a  moderate  two- 
year  term,  and  a  judge  is  not  required  to  impose  the  mandatory  penalty  if  the 
defendant  was  less  than  eighteen,  was  of  impaired  mental  capacity,  was  under 
unusual  and  substantial  duress,  or  was  only  a  minor  accomplice  in  an  offense 
committed  primarily  by  another  person.  Finally,  provisions  are  added  to  the  law 
to  make  it  clear  that  penalties  for  individual  offenses  cannot  be  strung  together 
so  as  to  create  a  total  sentence  that  is  unreasonably  long :  the  maximum  limit  is 
roughly  double  the  penalty  for  the  most  serious  offense  committed. 


9004 

F.    THE    COLLATERAL    PENALTY    PROVISIONS 

A  variety  of  specific  changes  are  introduced  hy  the  Code  to  augment  the  pen- 
alties traditionally  applicable. 

Under  Section  2005  of  the  Code,  a  court  is  empowered,  in  addition  to  impos- 
ing anj'  other  sentence,  to  require  that  an  individual  defendant  v\lio  has  lieen 
found  guilty  of  an  offense  involving  fraud  or  other  deceptive  practice,  or  an  orga- 
nization that  has  been  found  guilty  of  any  offense,  provide  notice  and  an  expla- 
nation of  the  conviction  to  the  class  of  persons  or  the  sector  of  the  public  affecte<l 
by  the  conviction  or  financially  interested  in  the  subject  matter  of  the  offense. 
The  provision  is  designed  to  inform  the  public  of  '"white  collar"  offenses  that 
may  affect  their  financial  interests,  in  order  to  facilitate  civil  actions  for  recov- 
eries of  losses. 

In  Section  2000  of  the  Code  the  court  is  empowered  to  impose,  in  addition  to 
any  other  sentence,  a  requirement  that  a  defendant  found  guilty  of  an  offense 
causing  bodily  injury,  property  damage,  or  other  loss,  make  direct  restitution 
to  the  victim  of  the  offense.  Today  restitution  is  an  under-utilized  remedy.  Al- 
though it  may  be  required  as  a  condition  of  probation,  there  is  no  statutory  en- 
couragement to  its  use  and.  in  any  event,  if  imprisonment  is  otherwise  appro- 
priate for  the  defendant  there  is  no  means  by  which  an  additional  reqnirenient 
of  restitution  may  effectively  be  enforced.  This  i)rovision  of  the  Code  should  prove 
to  be  of  particular  utility  in  cases  where  a  defendant  can  well  afford  to  pay. 
immediately  or  in  installments,  for  the  damage  he  has  inflicted. 

The  Code  also  contains  two  new  provisions  which,  although  not  sentencing  jiro- 
visions.  bear  mention  in  a  discussion  of  the  Code's  sentencii;g  consequences. 

First,  Subchapter  A  of  Chapter  41.  in  addition  to  carrying  forward  tlie  pro- 
visions of  current  law  permitting  an  individual  in  a  civil  action  to  obtain  redress 
from  a  racketeering  offender  or  au  eavesdropping  offender,  includes  a  provision 
tliat  will  permit  a  civil  action  against  an  offender  who  has  been  convicted  of  a 
crinie  invoking  fraud.  A  person  who  has  l>een  financially  injured  as  a  result  of 
the  fraud  is  permitted  to  bring  a  civil  action  in  a  federal  court  to  recover  three 
times  the  damages  .sustained  plus  a  reasonable  attorney's  fee  and  other  litigation 
costs. 

Second,  Subchapter  15  of  Chapter  41  creates  a  victim  compensation  system  to 
provide  recompen.se  for  personal  injury  or  death  to  victims  or  their  survivors, 
of  violent  federal  crimes.  This  provision  demonstrates  the  recognition  that  the 
criminal  justice  system  for  too  long  has  concentrated  .'^olely  on  the  investigation 
and  pro.secution  of  criminal  offenses,  paying  little  attention  to  the  plight  of  the 
individual  victims  of  those  offenses.  In  effect,  the  system  has  tended  to  consider 
crimes  as  affronts  to  society  as  a  whole  and  has  left  the  individual  victims  to 
bear  by  themselves  the  real  costs  of  those  affronts.  The  new  subchapter  will  not 
only  relieve  the  liardshij)  of  the  victims  :  it  will  i)rovide  a  m(>ans  of  ensuring  that, 
to  the  extent  practicable,  the  criminal  offenders  ultimately  will  be  liable  for  costs 
incurred  by  the  compensation  program. 

G.    THE    GUIDELINE    SENTENCING    SYSTEM 

Although  the  new  provisions  noted  above  are  important,  they  are  overshadowed 
by  the  structural  and  procedural  changes  in  tlu^  sentencing  jirocess.  Those  changes 
are  designed  to  achieve  a  rationality,  uniformity,  and  fairness  that  simply  has 
not  existed  before. 

The  Code  creates  a  Sentencing  Commission  within  the  judicial  branch  of  the 
federal  government  for  the  puriio-^e  of  esl.'iblishing  sentencing  guidelines  to  govern 
tl)e  impositicm  of  s(>ntences  for  all  federal  offenses.  In  drafting  the  guidelines, 
the  Commission  is  directed  to  take  into  consideration  factors  relating  to  the  pur- 
po.ses  of  sentencing,  the  characteristics  of  otTenders.  and  the  aggravating  and 
mitigating  circumstances  under  which  specific  offenses  may  be  committed.  For 
e.-ich  federal  offense,  the  guidelines  will  be  ex]iect(Ml  to  specify  a  variety  of  api)ro- 
priate  sentencing  ranges,  depending  \\\)nn  the  i)articul:ir  history  and  characteris- 
tics of  the  defendant  in  the  ca.se  and  the  particular  circumstances  under  which 
the  offense  is  committed.  The  judge  will  be  expected  to  sentence  a  defendant  with- 
in the  range  specified  in  the  guideline  <'overing  the  specific  situation  in  the  case 
before  him.  although,  if  he  considers  the  guideline  range  inappropriate  because  of 
factors  not  adequately  taken  into  consideration  by  the  Sentencing  Connnission, 
he  is  free  to  sentence  the  defendant  above  of  below  the  guideline  range  as  long  as 


I 


9005 

lie  explains  his  reasons  for  doing  so.  If  an  offeiider  is  sentenced  above  the  range 
specified  in  the  guidelines  he  may  obtain  a  review  of  his  sentence  by  the  federal 
court  of  appeals  for  the  circuit ;  if  he  is  sentenced  below  the  range  specified  in 
the  guidelines  the  government,  with  the  Attorney  General's  concurrence,  may 
obtain  a  review  of  the  sentence. 

The  guideline  sentencing  system  is  designed  to  promote  general  uniformity  and 
fairness  while  retiiining  necessary  flexibility.  It  is  as  dramatic  and  innovative 
u  series  of  provisions  as  appear  anywhere  in  the  new  Code. 

1.  The  sentencing  commission 

The  Code  will  establish  in  the  judicial  branch  of  the  federal  government  an 
independent  United  States  Sentencing  Commission  with  resix)nsibility  for  devel- 
oping and  issuing  guidance  to  federal  judges  with  regard  to  appropriate  sen- 
tences for  convicted  defendants.  The  Commission  members  will  be  designated  by 
the  Judicial  Conference  of  the  United  States  for  six-year  terms.  The  Code  is 
silent  as  to  the  makeup  of  the  Commission's  membership,  leaving  its  composition 
to  the  Judicial  Conference.  It  is  expected  that,  as  is  the  case  with  the  advisory 
committees  on  federal  rules  that  have  been  appointed  by  the  Judicial  Conference, 
it  probably  will  be  found  appropriate  to  include  members  who  are  not  judges.  In 
any  event,  under  the  Code  the  Commission  will  be  accorded  a  staff  composed  of 
experts  in  various  fields  relating  to  sentencing,  probation,  penal,  and  correctional 
matters,  and  the  Commission  will  be  able  also  to  draw  upon  the  knowledge  and 
experience  of  persons  outside  the  Commission. 

It  seems  appropriate,  since  the  sentencing  function  that  the  Commission  will 
be  guiding  is  historically  a  judicial  function,  to  repose  ultimate  responsibility  for 
the  guidelines  in  the  judicial  branch.  If  guidelines  were  to  be  promulgated  by  an 
agency  outside  the  judicial  branch,  it  might  be  viewed  as  an  encroachment  on  a 
judicial  function  and  engender  a  circumspection  on  the  part  of  sentencing  judges 
"that  could  impede  the  effective  operation  of  the  guidelines. 

The  Commission  will  be  a  permanent  agency,  reflecting  recognition  that  the 
guidance  it  develops  and  publishes  is  guidance  based  upon  an  expanding  area  of 
knowledge,  and  that  to  presume  that  the  Commission's  initial  efforts  could  not 
be  improved  upon  would  be  an  unfortunate  impediment  to  the  goal  of  producing  a 
Federal  Criminal  Code  that  can  readily  adapt  to  future  advances  in  knowledge. 
Permanence  will  enable  the  Sentencing  Commission  to  conduct  a  continuing  re- 
view of  the  operation  of  the  sentencing  guidelines,  permitting  necessary  reflne- 
meuts  as  more  is  learned  about  the  effectiveness  of  different  sentencing  practices 
and  as  case  law  is  developed  regarding  the  operation  of  the  guidelines. 

2.  The  sentencing  guidelines 

The  principal  function  of  the  Sentencing  Commission  is  to  promulgate  guide- 
lines and  policy  statements  for  use  by  federal  judges  in  imposing  sentences  in 
individual  cases.  The  guidelines  will  span  a  sufficiently  broad  reach  of  offender 
and  offense  characteristics  that  they  will  obviate  the  existing  variety  of  narrow 
statutes  designed  to  take  into  account  particular  factors,  such  as  age  or  drug 
addiction,  that  might  be  relevant  to  determining  an  appropriate  sentence  in  a 
particular  case.  The  policy  statements,  as  noted  by  the  Code,  will  provide  direc- 
tion concerning  the  proper  application  of  the  guidelines  and  provide  standard 
policies  on  sentencing  issues  not  covered  by  the  guidelines.  The  policy  statements 
might  be  used,  for  example,  to  list  aggravating  and  mitigating  factors  that  might 
not  occur  sufficiently  frequently  to  warrant  incorporation  in  the  sentencing  guide- 
lines but  that  might  appropriately  affect  the  type  and  quality  of  particular  sen- 
tences ;  they  might  indicate  offense  or  offender  characteristics  that  should  not 
affect  the  sentence;  they  might  afford  guidance  as  to  the  use  of  the  authorized 
orders  of  notice  to  victims  or  of  restitution  under  Sections  2005  and  2000 ;  and 
they  might  suggest  standards  for  the  imposition  of  consecutive  rather  than  con- 
current sentences  to  incarceration.  In  addition,  the  Code  specifically  provides  that 
the  policy  statements  of  the  Commission  are  to  guide  the  Bureau  of  Prisons  in 
determining  an  appropriate  prison  facility  for  an  offender  and  in  determining 
the  appropriateness  of  work  release  programs  in  individual  cases. 

In  promulgating  the  guidelines,  the  Sentencing  Commission  is  required  to  take 
into  account  the  stated  purposes  of  sentencing  and  the  grades  of  individual 
offenses.  In  establishing  sentencing  categories  for  offenders  and  offenses  for 
purposes  of  guideline  application,  the  Commission  will  be  expected  to  consider 
such  offender  and  offense  characteristics  as  are  suggested  by  the  Congress  in  the 


9006 

proposed  28  U.S.C.  904.  It  should  be  noted  that  the  Commission  may,  in  addition, 
consider  any  unlisted  factors  that  it  determines  to  be  pertinent,  and  that  the 
Commission  may  well  conclude  that  certain  listed  factors  may  be  inappropriate 
or  irrelevant  in  establishing  guideline  categories  for  certain  sentencing  purposes. 

It  may  be  expected  that  the  initial  sentencing  guidelines  will  bear  some  simi- 
larities to  the  existing  parole  guidelines,  but  that  the  considerations  on  which 
they  are  based  will  differ  appreciably  from  the  considerations  underlying  the 
latter  guidelines.  For  one  thing,  the  current  parole  guidelines  are  designed  in 
large  measure  to  perpetuate  its  past  policy  decisions  without  the  occurrence  of 
disparity.  The  Sentencing  Commission,  however,  is  faced  with  a  much  broader 
task — de  novo  consideration  of  appropriate  sentences  for  particular  purposes— 
a  task  that  has  never  previously  been  undertaken.  ^Moreover,  the  parole  guide- 
lines are  fornuilated  on  the  basis  of  empirical  data  concerning  the  relationship 
between  factors  pertaining  to  the  defendant  and  his  offense  and  factors  pertain- 
ing to  tlie  probability  that  a  person  with  those  characteristics  will  violate  parole 
within  a  two-year  period  after  release.  The  sentencing  guidelines,  on  the  other 
hand,  will  not  l»e  predicated  primarily  upon  considerations  relating  to  the  pos- 
sible future  criminality  of  the  defendant.  Rather,  they  will  be  based  on  con- 
siderations relating  to  the  four  purposes  of  sentencing  cited  in  Section  101  of 
the  Code,  and  on  identifiable  offense  and  offender  characteristics  determined  to 
be  pertinent  to  those  purposes. 

In  one  area,  the  bill  will  provide  legislative  guidance  as  to  the  type  and  length 
of  sentence  that  would  be  appropriate  under  the  guidelines.  Proposed  28  Tt.S.C. 
994 (e)  would  require  that  the  sentencing  guidelines  provide  "a  substantial  sen- 
tence of  imprisonment"  for  a  defendant  with  a  history  of  several  convictions,  a 
defend.int  whose  criminal  activity  was  part  of  a  pattern  of  criminal  conduct  from 
which  he  derived  a  susbtantial  portion  of  his  income,  and  a  defendant  whose 
offense  was  committed  in  furtherance  of  a  pattern  of  activity  by  a  group  of  per- 
sons engaged  in  racketeering.  This  provision  is,  of  course,  an  abbreviated  reflec- 
tion of  the  considerations  underlying  the  special  dangerous  offender  provisions 
of  current  law.  The  Department  of  Justice  concurs  in  this  approach ;  rather  tlian 
employing  special  sentencing  provisions  in  Part  III  of  the  Code,  it  is  reasonable 
to  provide  a  means  of  ensuring  that  these  considerations  will  be  incorporated 
instead  in  the  general  guidelines  developed  by  the  Sentencing  Commission.  This 
is  exactly  the  sort  of  special  consideration  that  can  he  assured  through  the  guide- 
lines process,  without  requiring  complex  statutory  coverage. 

In  light  of  the  Code's  treatment  of  the  special  offender  sentencing  provisions 
of  current  law.  the  Subcommittee  might  wish  to  consider  whether  the  Sentencing 
Commission  sliould  be  given  similar  legislative  guidance  with  respect  to  the  pro- 
mulgation of  guidelines  for  other  types  of  offenders  or  offenses.  For  examples, 
the  Subcommittee  might  wi.sh  to  give  consideration  to  providing,  in  the  bill  itself 
or  in  the  legislative  history,  an  example  of  the  kinds  of  situaitons  that  ordinarily 
woulrl  be  considered  to  .I'nstify  probation  rather  than  imprisonment.  The  Snl)- 
committee  might  also  wish  to  consider  whether  it  should  suggest  the  approi)ri- 
ateness  of  an  incremental  penalty  for  each  offense  when  a  defendant  is  convicted 
at  one  time  for  several  offenses  committed  at  different  times.  In  addition,  the 
Subcommittee  might  wish  to  consider  whether  the  two  mandatory  penalties  now 
set  forth  in  Sections  1811  and  182.3  of  the  new  Code  might  lie  superseded  by  a 
legislative  direction  that  the  Sentencing  Commission  guidelines  assure  the  im- 
position of  an  appropriate  sentence  to  imprisonment  under  the  instances  cov- 
ered by  these  sections.  Since  the  whole  purpose  of  sentencing  guidelines  is  to 
acliieve  consistency  in  sentencing  by  taking  into  account  the  particular  aguravat- 
ing  or  mitigating  circumstances  found  to  warrant  special  treatment.  W(>]1  drafted 
guidelines  should  be  able  to  accommodate  the  views  of  both  those  who  have  called 
for  a  presumption  of  probation  in  certain  instances,  and  those  who  have  called 
for  a  presumption  of  incarceration  in  other  situations.  It  appears  to  be  preferable 
to  permit  the  Sentencing  Commission  to  establish  thvotmh  the  guidelines  them- 
selve*-'.  on  the  basis  of  aggrav.ating  and  mitigating  factors,  the  kinds  of  ca.ses 
warranting  a  particular  type  and  severity  of  sentence. 

.'?.  The  impoRltion  nf  ftrnfenrc  under  tJir  gnidcliiiCH 

Tender  Section  2001  of  the  Code,  an  individual  found  guilty  of  a  federal  offense 
may  be  sentenced  to  a  term  of  i)robation.  a  fine,  or  a  term  of  imprisonment.  The 
sentence  to  pay  a  fine  niav  be  imi)osed  in  combliuitioii  vrith  either  a  term  of  pro- 
liation  or  a  term  of  inii)r;sonment.  An  organization  may  be  sentenced  to  a  term 
of  probation,  a  fine,  or  both. 


9007 

In  determining  the  type  and  severity  of  sentence  to  be  imposed,  the  sentencing 
judge  will  be  required  to  consider  the  nature  and  circumstances  of  the  offense,  the 
history  and  characteristics  of  the  defendant,  the  four  purposes  for  which  sen- 
tence may  be  imposed,  the  sentencing  range  recommended  in  the  guidelines  pro- 
mulgated by  the  Sentencing  Commission  for  the  applicable  category  of  offense 
and  applicable  category  of  defendant,  and  any  pertinent  policy  statements  issued 
by  the  Sentencing  Commission.  The  guidelines  will  reconmiend  an  appropriate 
sentence  for  a  person  of  the  defendant's  bacicground  and  characteristics  who  has 
committed  the  specified  oft'ense  under  the  particular  aggravating  and  mitigating 
circumstances  found  to  exist.  The  judge  ordinarily  will  be  expected  to  sentence 
within  the  range  recommended  l)y  the  guidelines;  although  it  would  be  impos- 
sible for  the  guidelines  to  account  for  every  conceivable  combination  of  circum- 
stances, it  seems  unlikely  that  departures  from  the  guidelines  will  l)e  more  com- 
mon than  the  departures  from  the  present  parole  guidelines  which  occur  in  no 
more  than  10  to  15  percent  of  the  cases  to  which  the  guidelines  are  applied.  If, 
however,  the  judge  finds  that  there  are  particularly  aggravating  or  mitigating 
circumstances  of  a  nature  not  adequately  reflected  in  the  Sentencing  Commis- 
sion guidelines,  he  will  be  free  to  impose  a  sentence  outside  the  guideline  range. 
In  doing  so.  however,  he  will  l)e  required  to  state  specific  reasons  for  the  sentence 
imposed,  and  the  sentence  will  be  subject  to  appellate  review. 

The  sentencing  guideline  approach  should  help  consideral)ly  in  maintaining 
consistent  adherence  to  a  standard  sentencing  philosophy  and  in  structuring  the 
exercise  of  judicial  discretion  to  the  degree  that  sentences  do  not  carry  ir- 
rationally between  similarly  situated  defendants.  At  the  same  time,  it  will 
preserve  flexibility  for  use  when  it  is  most  needed. 

4-  The  sentence  appeal  provisions. 

Section  3725  of  the  Code  permits  for  the  first  time  an  appeal  from  sentences 
imposed  by  federal  judges.  By  incorporating  the  appeal  procedures  into  the  gen- 
eral structure  of  a  guideline  sentencing  system,  the  Code  assures  that  the  ex- 
tremes of  sentencing  that  most  deserve  review  may  be  called  to  the  attention  of 
an  appellate  court,  without  overburdening  the  court  wtih  a  flood  of  challenges 
to  sentences  well  within  the  bounds  of  what  would  generally  be  considered 
reasonable  under  all  the  circumstances.  A  defendant  will  be  free  to  appeal  a  fine, 
a  term  of  imprisonment,  or  a  term  of  parole  ineligibility  falling  above  the  range 
specified  in  the  guidelines.  The  government  will  be  able  to  appeal  a  sentence  fall- 
ing l)elow  the  recommended  range  of  the  guidelines,  if  in  such  a  case  the  Attor- 
ney General  approves  the  filing  of  an  appeal.  If.  in  light  of  all  the  factors  to  be 
considered  in  imposing  a  sentence  and  in  light  of  the  .sentence  rationale  expressed 
by  the  district  court  judge,  the  court  of  appeals  finds  the  sentence  to  be  clearly 
unreasonable,  it  may  remand  the  case  for  imposition  of  a  new  sentence  or  for 
further  sentencing  proceedings,  or  it  may  revise  the  sentence  itself.  x\ppellate 
review  under  this  proposal  should  result  in  the  development  of  a  body  of  ease  law 
concerning  the  circumstances  under  which  a  sentence  outside  the  guideline  range 
is  appropriate,  and  should  encourage  continuing  refinement  of  the  guidelines  by 
the  Sentencing  Commission. 

It  should  be  noted  that  under  Rule  35  of  the  Federal  Rules  of  Criminal  Proce- 
dure a  mechanism  exists  for  correction  of  a  sentence  in  a  case  in  which  the 
guidelines  have  been  incorrectly  applied. 

5.  The  determination  of  imprisonment  release  dates 

Under  the  Code,  the  "good  time"'  provisions  of  current  law  are  abolished  and 
the  parole  system  is  retained  as  the  sole  mechanism  for  determining  the  release 
date  of  an  incarcerated  prisoner.  Under  Section  2302(c),  at  the  time  the  judge 
imposes  a  sentence  to  a  term  of  imprisonment  he  will  also  designate  the  portion 
of  the  sentence,  if  any,  during  which  the  prisoner  will  be  ineligible  for  release 
on  parole.  The  decision  whether  to  impose  such  a  term  of  parole  ineligibility,  and, 
if  it  is  to  be  imposed,  the  decision  as  to  its  length,  is  governed  by  the  sentencing 
guidelines  and  by  other  factors  the  judge  is  required  to  consider  in  imposing 
sentence.  If,  under  the  Sentencing  Commission  guidelines,  a  judge  detei*mines 
that  a  particular  category  of  white  collar  offender  .should  spend  some  time  in 
prison  for  purposes  of  deterrence  and  just  punishment,  he  might  conclude  that, 
because  such  purposes  would  not  support  an  indeterminate  sentence,  the  maxi- 
mum term  of  parole  ineligibility — 90  percent — should  be  imposed.  On  the  other 
hand,  if  the  judge  determine.'?  under  Sentencing  Commission  guidelines  that  a 
particular  offender  warrants  incarceration  solely  for  purposes  of  incapacitation, 


9008 

he  might  conclude  that,  assuming  the  offense  is  one  for  which  correlating  factors 
for  recidivism  have  then  been  developed,  he  may  wish  to  employ  a  more  substan- 
tial variable  in  the  prison  term.  In  any  event,  a  prisoner's  release  date  will  be 
set  according  to  parole  guidelines  developed  by  the  Sentencing  Commission  to 
dovetail  with  the  sentencing  guidelines  applicable  in  each  particular  case. 

In  combination,  these  factors  will  substantially  increase  the  certainty  of  the 
effect  of  a  particular  sentence  on  a  particular  defendant.  Such  certainty  should 
help  enhance  the  credibility  of  the  criminal  justice  system,  permitting  both  the 
defendant  and  the  general  public  to  know  the  true  import  of  a  particular  sen- 
tence. Moreover,  it  should  benefit  the  defendant  by  permitting  him  to  know  in 
advance  the  actual  length  of  his  sentence,  and  may  help  concentrate  his  atten- 
tion on  planning  more  effectively  for  his  future  after  release. 

IV.  Consideration  of  the  need  for  retaining  indeterminate  sentences  subject  to 
parole  in  the  context  of  a  guideline  sentencing  system 

As  the  Attorney  General  previously  has  suggested  to  this  Subcommittee,  it 
is  appropriate  that  the  Congress  give  consideration  to  abolishing  the  existing 
parole  system  in  the  context  of  the  guideline  sentencing  system  provided  in  the 
new  Code.  It  is  an  action  that  would  follow  logically  from  the  creation  of  a 
guideline  sentencing  system  and  that  could  result  in  additional  benefits  to  the 
federal  criminal  justice  system. 

The  existing  federal  sentencing  system  as  it  pertains  to  sentences  to  imprison- 
ment is,  of  course,  essentially  a  two-step  process,  with  the  judge  imposing  a 
sentence  somewhere  within  the  maximum  range  specified  by  Congress  for  the 
offense  and  the  Parole  Commission  determining  what  portion  of  the  original 
sentence  should  be  the  actual  amount  of  time  to  be  served  by  the  offender.  The 
new  Code  contained  in  S.  1437 — except  for  permitting  the  sentencing  judge  to 
impose  a  substantial  period  of  parole  ineligibility,  and  except  for  assigning  the 
drafting  of  parole  release  guidelines  to  the  Sentencing  Commission  to  assure 
that  they  dovetail  with  the  sentencing  guidelines  in  every  case — continues  this 
aspect  of  current  law. 

In  the  last  several  years,  a  growing  number  of  persons  of  all  political  views 
have  called  for  reform  of  sentencing  and  parole  practices,  partly  because  of 
recognition  that  the  present  system  produces  unwarranted  disparities  in  sen- 
tencing, and  partly  because  of  a  belated  recognition  that  the  theory  of  rehabilita- 
tion, which  is  the  primary  basis  for  indeterminate  sentencing,  has  proven  un- 
satisfactory in  practice.  The  first  problem,  that  of  unwarrante<l  disparity  in 
sentencing,  of  course  is  addressed  in  the  provisions  of  S.  14.S7  that  cle;irly  define 
the  appropriate  purposes  of  sentencing,  establish  a  guideline  spnteufing  system. 
and  provide  for  appellate  review  of  sentences  falling  outside  the  guidelines.  The 
second  problem  is  not  addressed  directly  by  the  bill. 

The  parole  system  is  made  necessary  by  the  indeterminate  sentence  approach 
under  which  a  judge  imposes  only  the  maximum  period  of  imprisonment  that 
tlie  defendant  should  be  expected  to  serve.  The  theory  underlying  the  indeter- 
minate senteiice  is  predicated  on  the  rehabilitative  ideal.  It  focuses  on  sentencing 
for  rehabilitation,  not  sentencing  for  punishment,  deterrence,  or  incapacitation. 
Simply  stated,  the  theory  assumes  that  i»y  definition  an  offender  is  socially  "ill," 
that  he  should  be  confined  to  prison  for  purposes  of  "treatment,"  and  that  he 
shouhl  be  released  just  as  soon  as  it  is  determined  by  parole  authorities  that  he 
is  "cured."  The  difficulty  with  the  rehabilitative  ideal,  which  has  permeated 
our  sentencing  legislation  for  decades,  is  that  it  is  unrealistic.  Recent  studies 
J)y  Dr.  Martinson  and  others  have  demonstrated  that  our  behavioral  scientists 
do  not  yet  know  of  any  rcli.Mble  means  af  inducing  rebabilit;ition  of  prisoners, 
nor  can  they  provide  a  means  of  identifying  an  individual  who  has  become  re- 
habilitated. If  there  is  no  accurate  way  to  determine  when  a  person  has  become 
rehabilitated,  there  is  no  reason  in  the  first  instance  for  sentencing  him  to  an 
indcliiiite  term  of  imprisonment  which  is  to  l)e  terminated  only  upon  such  a 
determination,  as  opi>()sed  to  a  definite  term.  Cons(>queMlly,  a  ration;il  sentencing 
system  seemingly  should  provide  that  the  sentence  announced  b.v  the  judge,  pur- 
suant to  sentencing  guidelines,  should  be  the  sentence  actually  to  be  served.  Under 
such  a  system,  the  maximum  iH'ualties  of  the  new  Code  could  be  further  reduced, 
and  the  Sentencing  Commission  could  be  required  to  take  into  account  the  fact 
that  the  sentence  imposed  would  be  the  sentence  actually  served,  and,  conse- 
quently, would  be  expected  to  recommend  shorter  sentences  than  those  imposed 


9009 

today.  In  those  rare  cases  where  extraordinary  circumstances  such  as  terminal 
illness  or  drastic  changes  in  family  circumstances  would  justify  early  release, 
the  authority  provided  by  the  new  Code's  Section  2302(c)(1)  for  the  Bureau 
of  Prisons  to  ask  the  court  to  reduce  the  sentence  would  provide  an  appropriate 
means  of  altering  the  release  date. 

The  benefits  currently  provided  by  the  parole  system  would  be  lost  under 
such  a  structure.  Today  the  federal  parole  system  is  thought  to  serve  four  basic 
purposes.  First,  it  attempts  to  mitigate  unfair  disparity  by  releasing  similar 
offenders  after  similar  periods  of  time  regardless  of  the  sentence  imposed  by 
the  court.  Second,  it  seeks  to  monitor  a  prisoner's  progress  toward  rehabilitation 
so  that  he  may  be  released  when  he  is  ready  to  return  to  society.  Third,  it  offers  a 
hope  of  early  release  that  serves  as  an  incentive  to  good  behavior  in  prison, 
llnally,  it  creates  a  post-release  i)eriod  during  which  the  Probation  Service  can 
provide  asssitance  to  former  prisoners  and  supervise  their  behavior  to  ensure 
against  recidivism. 

The  first  purpose — helping  to  eliminate  unfairness — will  be  much  better  served 
by  the  sentencing  guidelines  system.  The  second  purpose — monitoring  rehabilita- 
tive progress — has  fallen  into  such  general  disrepute  that  today  the  Parole 
C'oiumission  generally  bases  its  release  determination,  as  noted  previously,  only 
upon  factors  known  at  the  time  of  sentencing  rather  than  upon  a  prisoner's  be- 
havior while  confined.  The  third  purpose — encouraging  good  behavior — is  felt  to 
be  unnecessary  by  the  Bureau  of  Prisons ;  the  granting  or  withholding  of  various 
pri\i leges  has  been  found  to  be  a  more  effective  means  of  encouraging  com- 
pliance with  prison  regulations,  and,  in  any  event,  the  substitution  of  a  modest 
"good  time"  proposal  (perhaps  ten  percent  of  the  prison  term)  for  the  Code's 
l)arole  variable  could  provide  any  additional  incentive  that  might  be  needed. 
The  final  purpose — prevention  of  recidivism — is  now  attempted  through  post- 
release assistance  and  sui)ervision.  That  aspect  of  the  parole  system  designed  to 
assist  pi'isoners  in  making  the  transition  back  to  society  could  be  replaced  by 
requiring  prisoners  to  spend  a  short  period  of  time  in  a  halfway  house  or  other 
.similar  facility  and  by  giving  them  post-release  access  to  the  assistance  of  the 
Probation  Service.  The  supervisory  role  of  the  parole  system  would  be  eliminateil, 
.since  it  has  not  been  found  eft'ective  in  preventing  recidivism  and  since  it  would 
be  fairer  to  use  the  criminal  trial  process  to  deal  with  the  more  serious  mis- 
conchict  of  recently  released  prisoners  as  is  done  in  the  case  of  other  members 
of  society. 

It  appears,  therefore,  that  the  purposes  of  the  parole  system  wuld  be  served  at 
least  as  well  by  such  a  modification  of  the  Code's  guideline  sentencing  system. 
In  addition,  determinate  sentences  resulting  from  the  abolition  of  parole  would 
oft'er  two  clear  advantages  over  indeterminate  sentences. 

One  advantage  is  that,  by  eliminating  all  remaining  uncertainty  concerning  a 
prisoner's  release  date,  a  major  cause  of  prisoner  complaints  would  be  removed. 
The  increased  fairness,  and  the  increased  appearance  of  fairness,  could  help  fur- 
ther to  reduce  a  major  reason  for  prisoner  bitterness — a  bibterness  that  hampers 
preparation  for  reentry  into  society  since  real  or  imagined  injustices  focus  a 
prisoner's  attention  upon  relitigating  the  propriety  of  his  incarceration  rather 
than  upon  his  future  after  release.  Participation  in  educational  and  training 
programs  would  no  longer  be  designed  simply  to  try  to  secure  more  favorable 
treatment  from  parole  authorities ;  participation  would  become  truly  voluntary, 
and  hence  potentially  more  effective. 

Another  advantage  is  that  a  determinate  sentencing  system  would  enhance  the 
credibility  of  sentences  handed  down  by  courts.  Most  persons  recognize  that  even 
the  small  percentage  of  criminals  who  reach  the  end  of  the  criminal  justice  proc- 
ess today  will  not  be  required  to  serve  anything  close  to  the  periods  prescribed  in 
the  sentences  imposed  upon  them.  This  lack  of  credibility  in  sentencing  makes  a 
measurable  contribution  to  the  current  disrespect  for  the  criminal  justice  system 
and  decreases  any  deterrent  impact  the  system  may  be  capable  of.  While  there  is 
substantial  potential  for  increased  credibility  in  the  current  version  of  the  Code 
contained  in  S.  1437,  the  elimination  of  the  remaining  opportunity  for  indetermi- 
nate sentences  could  have  a  much  greater  impact. 

V.  Conclusion 

The  deficiencies  of  the  existing  sentencing  laws  will  be  dramatically  rectified  by 
the  adoption  of  the  proposed  new  Federal  Criminal  Code  contained  in  S.  1437. 
The  Department  of  Justice  urges  its  prompt  passage.  Whether  or  not  the  Con- 


9010 

gress  determines  to  make  any  further  changes  to  eliminate  the  vestiges  of  inde- 
terminate sentencing  still  contained  in  the  new  Code,  the  Code's  sentencing  provi- 
sions will  contribute  significantly  to  the  realization  of  a  rational  and  fair  crimi- 
nal justice  system. 

Mr.  Gainer.  I  would  like  also  to  be  permitted  to  introduce  for  the 
subcommittee's  consideration  a  paper  prepared  by  Miss  Skrivseth  on 
what  would  happen  if  the  sole  vestiges  of  indeterminancy  were  elimi- 
nated from  the  code.  It  is  a  lengthy  paper,  and  the  typing  should  be 
completed  in  another  day  or  two. 

Senator  Kennedy.  We  will  look  forward  to  that. 

fMaterial  appears  on  pp.  9200-9228.] 

Mr.  Gainer.  The  current  Federal  sentencing  statutes,  Mr.  Chair- 
man, are  not  particularly  helpful.  The  first  section  that  appears  in  the 
current  sentencing  chapter  informs  Federal  judges  that  they  should 
not  impose  a  sentence  that  would  "work  corruption  of  the  blood.''  The 
second  section  that  appears  in  the  sentencing  chapter  informs  Federal 
judges  that  they  should  not  impose  a  sentence  that  Avould  require  a 
defendant  to  stand  in  the  local  pillory.  This  is  not  an  auspicious  ijitro- 
duction  to  the  Federal  criminal  sentencing  statutes,  and  in  fact,  in 
many  respects  they  go  downhill  from  that  point. 

The  statutes  provide  very  little  guidance  to  sentencing  judges.  As  a 
matter  of  fact,  they  leave  the  sentence  to  be  imposed  in  a  particular 
case — to  the  unfettered  discretion  of  the  judge.  Federal  judges,  for  the 
most  part,  are  highly  competent  individuals,  but  they  have  no  more 
formal  training  than  the  rest  of  us  in  penology,  criminology,  psychol- 
ogy, and  defining  the  societal  values  that  should  afl'ect  the  sentencing 
process.  This  does  not  bother  some  judges.  Some  judges  feel  that  in 
sentencing  they  are  at  the  apex  of  their  proper  judicial  authority  and 
that  they  are  as  well  prepared  as  anyone  in  society  to  exercise  that 
authority.  It  does  bother  other  judges.  Judge  Frankel  has  quoted 
Judge  Learned  Hand  as  saying,  in  essence,  that  he  often  felt  like  an 
old  man  in  a  black  nightgown  mutterinjr  under  his  breatli  and  thei-ebv 
sealing  the  doom  of  some  poor  individual  who  might  be  no  worse  than 
he  is. 

There  is  little  in  the  way  of  stated  purposes  of  sentencing  in  the  ex- 
isting statutes.  There  is  no  legislative  guidance  whether  sentences 
should  appropriately  be  inijiosed  for  deterrent  purposes  or  incapacita- 
tion purposes  or  purposes  of  just  punishment.  The  only  directions  that 
appear  are  in  a  coujjle  of  peripheral  statutes  dealing  with  tlie  pni-pose 
of  rehabilitation. 

The  penalty  limits  supplied  by  existing  criminnl  offenses  vary  irra- 
tionally. The  maximum  terms  of  imprisonment  that  may  be  imposed 
ai'e  the  only  guidance  in  the  existing  law.  really,  tliat  govern  tlie  impo- 
sition of  terms  by  Federal  judges. 

Yet,  there  are  considerable  ditTerences  in  the  available  sentences  for 
like  offenses.  Robbery,  for  example,  under  one  Federal  statute,  carries 
10  years'  imprisonment;  under  another  Federal  statute,  it  carries  20 
years'.  Kml)ezzlement  undei-  one  Federal  statute  carries  10  years'  im- 
prisonment ;  under  another  Federal  statute,  embezzlement  of  the  same 
amount  of  money  carries  5  years'  imprisonment ;  and  under  another 
Fed(>ral  statute,  eml)ezzlement  of  tlie  same  amount  of  money  carries 
2  yeai's'  imiirisoniuent.  The  line  a\ailab!e  for  the  5-year  offense  in- 


9011 

ci dentally,  is  $5,000.  while  the  fine  available  for  the  2-yeai'  offense  is 
$10,000. 

The  penalty  for  perjnry,  intentional  lyinc:  in  an  official  proceeding 
after  being  sworn  to  tell  the  truth — carries  5  years  and  $5,000,  but  the 
penalty  for  false  statements — intentionally  lying  to  any  Federal  em- 
ployee, not  in  an  official  proceeding,  and  not  after  having  sworn  to  tell 
the.^ruth — carries  a  like  penalty  of  5  years,  but  a  greater  fine  of  $10,000. 

The  dangerous  s])ecial  offender  provisions  of  current  law  permit  a 
penalty  of  up  to  25  years  for  any  offense — regardless  of  the  offense 
penalty  otherwise  applicable. — for  certain  kinds  of  offenders. 

The  penalty  limits  on  contempt  are  nonexistent.  A  judge,  in  theory, 
can  impose  any  penalty  he  wishes  for  contempt,  two  or  three  lifetimes 
or  two  or  three  fortunes. 

Probation  is  not  considered  a  sentence  under  current  law.  It  is  con- 
sidered a  suspension  of  tlie  imposition  or  execution  of  the  sentence. 
That  is  one  of  the  reasons  why  it  has  not  been  used  particularly 
innovatively. 

The  maximum  fines  under  current  law  are  abysmally  low.  They 
amount,  usually,  to  no  more  than  a  potential  slap  on  the  wrist.  They 
certainly  have  not  been  keeping  pace  with  inflation.  They  are  not,  by 
any  stretch  of  the  imagination,  serious  alternatives  to  incarceration. 
Even  when  fines  are  imposed,  there  is  no  statutory  means  provided  to 
assure  that  they  can  be  collected. 

Imprisonment  maxima,  under  current  law,  arc  relatively  lengihy, 
and  the  imprisonment  is  indeterminate  in  nature.  Generally,  it  is  a  two- 
step  process  under  current  law.  The  judge  imposes  the  maximum  pen- 
alty that  he  believes  the  individual  should  serve  and  then  the  Parole 
Commission  comes  along  and  imposes  the  release  date  within  that 
n.iaximum  penalty.  The  theoretical  underpinning  for  this  indetermine 
sentencing  approach  is,  of  course,  the  rehabilitative  ideal.  This  has  been 
an  ideal  that  has  permeated  our  sentencing  philosophy,  and  certainly 
our  legislative  philosophy,  for  some  decades.  It  is  based  upon  the  as- 
sumption that  crime  is  a  social  disease— the  persons  who  commit  crimes 
are,  by  definition,  socially  ill,  and  therefore  we  will  place  them  in 
penitentiaries  where  they  may  become  "penitent,"  reflect  upon  their 
wrongdoings,  engage  in  rehabilitative  programs,  and,  at  some  junc- 
ture, reach  a  point  where  they  are  rehabilitated. 

At  this  magical  moment,  the  parole  authorities  are  to  recognize  that 
a  prisoner  is  rehabilitated  and  release  him,  no  matter  what  the  sen- 
tence imposed  by  the  judge.  They  are  to  release  him  regardless  of 
the  fact  that  the  sentence  imposed  by  the  judge  may  have  been  imposed 
for  purposes  entirely  different  from  the  purpose  of  rehabilitation.  It 
may  have  been  imposed  for  just  punishment.  It  may  have  been  imposed 
for  deterrence.  Nevertheless,  under  the  current  sentencing  philosophy, 
predicated  upon  the  rehabilitative  ideal,  the  individual  is  to  be  released 
as  soon  as  rehabilitated. 

In  the  last  few  years  the  whole  underpinning  of  the  rehabilitative 
ideal  has  been  somewhat  shattered  by  the  findings  of  Dr.  Martin- 
son and  others  when  they  conducted  reviews  of  all  rehabilitative 
efforts  that  had  been  tried  over  a  22-year  period  and  found  that 
nothing  works.  Nothing  at  all  works.  It  does  not  matter  what  was 
tried  to  induce  rehabilitation — work  release  programs,  conjugal  visits. 


9012 

group  therapy,  and  wliat  not — tlie  recidivism  rate  of  the  test  frroup 
was  invariably  approximately  that  of  the  control  group.  The  only 
thing  Dr.  Martinson  found  that  worked  was  castration,  something  tried 
Ijy  Denmark  in  regard  to  sex  oft'enders,  and  even  then  tlie  rate  was 
reduced  from  about  30  percent  to  3  percent  and  not  to  zero. 

With  the  recognition  that  we  do  ]iot  know  how  to  induce  rehabilita- 
tion and  with  the  increasingly  broad  recognition  that  we  cannot  iden- 
tify rehabilitation  when  it  actually  takes  place,  if  it  takes  place,  there 
is  no  real  reason  to  have  the  parole  authorities  second-guessing  tlie 
judge  as  to  the  time  an  individual  should  spend  in  prison.  They  are 
no  longer  looking  to  those  factors  pertaining  to  the  individuars  re- 
habilitative progress  in  the  institutional  setting. 

The  Federal  Parole  Commission,  with  admirable  candor,  has  given 
up  tiying  to  base  its  release  determination  upon  the  individual's  in- 
stitutional behavior.  The  Commissioners  have  developed,  to  their 
credit,  a  set  of  giiidelines,  to  be  somewhat  mechanistically  applied, 
which  indicate  when  an  individual  probably  should  be  released  regard- 
less of  the  maximum  sentence  imposed  upon  him.  The  factors  that 
underlie  the  guidelines  are  not  factors  pertaining  to  the  individual's 
development  while  in  the  institutional  setting.  l)ut  instead  are  factors 
that  were  known  to  the  judge  at  the  time  of  sentencing. 

If  those  factors  are  known  to  the  judge  at  the  time  of  sentencing, 
why  cannot  the  judge  himself  say:  "This  is  the  term  the  individual 
should  actually  serve,''  instead  of  imposing  a  gieater  term  and  leaving 
it  to  the  Parole  Commission  to  look  at  the  same  factors  and  say:  "Tliis 
is  the  limit  of  the  term  the  individual  sliould  actually  serve.''  The 
Parole  Commission  is  not  looking  at  new  information. 

The  result  of  the  interrelationship  of  these  peculiar  features  of  our 
current  laws  is  a  great  deal  of  unwarranted  disparity  in  sentences 
imposed.  "We  used  to  feel  that  our  Federal  system  was  somewhat 
sacrosanct  and  that  while  disparity  occurred,  of  course,  in  the  State 
systems,  it  did  not  occur  in  the  Federal  system.  "Well,  it  does. 

"We  have  had  the  benefit  in  the  last  several  years  of  the  second  cir- 
cuit sentencing  study,  among  others,  wherein  hypothetical  situations 
listing  all  soi-ts  of  factors  concerning  a  particular  oiTcTider,  and  the 
manner  in  which  he  committed  the  offense,  were  passed  out  to  40-some 
judges  in  the  second  circuit  who  were  asked :  "AVhat  do  you  tliink  an 
appropriate  sentence  would  be  in  this  particular  case?  What  sen'^ence 
would  you  impose?"  The  judges,  as  an  example,  in  the  hypothetical 
situation  involving  a  loan-sharking  offendei-,  ranged  fi'om  3  vears' 
imprisonment  to  20  yeai-s'  imprisonment.  These  are  judges  Avithiu  one 
limited  part  of  the  country.  More  significantly,  the  judges  varied  con- 
siderably on  the  issue  whether  any  imprisonment  was  appropriate  in 
over  three-fourths  of  the  hypothetical  situations  submitt(^d  to  them. 

Such  dispai-ities  do  not  exist  solelv  in  theory.  Tliey  exist  in  practice. 
The  Bureau  of  Prisons  has  recently  undertaken  some  studies  of  in- 
dividuals incarcerated  in  1974  and  1075.  The  reseaichers  were  looking 
for  individuals  similarly  situated  with  similar  backgrounds  who  com- 
mitted similar  offenses,  and  looking  at  the  sentences  actuallv  imjwsed 
in  those  cases.  They  found,  for  example,  that  with  regaid  to  baiik 
robbei-s  of  similar  backgrounds,  the  average  sentences  varied  consid- 
erably. At  one  extreme  the  average  sentence  in  nine  judicial  districts 


9013 

was  85  months.  At  the  other  extreme  the  average  sentence  in  eight 
judicial  districts  was  over  200  months. 

The  bahmce  achieved  by  the  averaging  of  extremes  is  no  real  baUmce 
at  all.  That  is  all  we  have  today.  In  many  instances  we  may  as  well  be 
using  what  was  given  me  some  time  ago  as  a  suggested  "judge's  sen- 
tencing selector'' — given  to  me  by  an  individual  who  purported  to  have 
received  it  from  a  sentencing  judge.  It  is  one  page  of  directions  in  the 
form  of  a  dart  board.  All  it  requires  in  addition  to  the  page  is  a  dart. 
It  lists  "2  to  10  years,"  "3  to  5  years,"  "the  first  two  digits  of  your 
street  address  minus  the  last  two  digits  of  your  phone  number,"  and  so 
forth.  The  sad  thing  is  that  this  attempt  at  caustic  humor  by  the  au- 
thor is  very  close  to  what  might  be  achieved  through  the  system  we 
have  today. 

The  attempts  to  rectify  the  current  situation  that  have  been  under- 
taken by  the  Judicial  Conference,  and  undertaken  by  the  Parole  Com- 
mission, have  been  largely  ineffective  because  the  heart  of  the  problem 
is  the  legislation  that  exists  today  in  the  sentencing  area.  They  cannot 
i-each  that  through  sentencing  councils,  through  sentencing  practice 
institutes,  or  through  Parole  Commission  guidelines  that  let  out  an 
individual  at  a  set  time,  no  matter  what  the  maximum  sentence  that 
the  judge  imposed.  Beyond  that,  the  Parole  Cominission,  of  course, 
even  in  trying  to  eliminate  disparity  in  sentences  that  are  imposed 
today,  can  reach  only  the  50  percent  of  sentenced  offenders  in  prison 
who  come  within  their  jurisdiction  as  a  result  of  the  periods  of  parole 
eligibility  and  the  operation  of  the  "good  time"  provisions.  Of  course, 
they  can  do  nothing  about  the  other  50  percent  of  those  in  prison.  Of 
course,  they  can  do  nothing  about  the  other  60  percent  or  so  of  offenders 
who  are  not  sentenced  to  imprisonment  at  all.  And,  of  course,  they  can 
do  nothing  about  raising  a  sentence  that  is  inadequate. 

The  entire  Federal  sentencing  structure  is  drastically  in  need  of  a 
major  overhaul. 

The  bill  before  this  committee,  S.  1437,  contains,  in  the  context  of 
providing  a  major  reform  of  all  the  Federal  criminal  laws,  a  dramatic 
and  innovative  proposal  in  the  sentencing  area. 

Under  the  proposed  new  code,  there  would  be  rational  grading  for 
the  first  time,  with  offenses  of  similar  severity  carrying  similar  penal- 
ties and  offenses  of  dissimilar  severity  carrying  appropriately  dis- 
similar penalties. 

Purposes  of  sentencing  would  be  recognized  for  the  first  time  by 
the  legislature.  The  judicially  recognized  purposes  of  deterrence,  and 
incapacitation,  and  just  punishment,  and  reliabilitation  are  set  forth 
specifically  in  the  first  section  of  the  entire  code,  and  are  set  forth 
again  in  the  first  section  of  the  sentencing  provisions.  The}'  are  not  all 
applicable,  of  course  in  all  instances.  They  are  not  all  applicable  to 
all  forms  of  sentencing  that  might  be  imposed.  Accordingly,  this  bill, 
at  the  beginning  of  the  chapter  on  imprisonment,  at  the  beginning  of 
the  chapter  on  fines,  and  at  the  beginning  of  the  cliapter  on  probation, 
provides  that  the  judge,  in  assessing  a  sentence,  shall  consider,  among 
other  things,  the  purposes  of  sentencing  set  forth  in  the  code  "to  the 
extent  that  they  are  applicable"  to  that  kind  of  sentence.  The  assump- 
tion is,  of  course,  that  if  the  purpose  required  in  a  particular  case  is 
incapacitation,  probation  probably  could  not  be  supported  by  that 


9014 

purpose.  The  assumption  is  also  that,  under  our  current  state  of 
knowled<>:e,  if  the  purpose  of  sentencing  is  rehabilitation,  incarcera- 
tion probably,  in  most  instances,  woukl  not  be  an  appropriate  means 
of  executint^  that  particular  sentencino-  philosophy. 

The  special,  collateral  penalties  and  provisions  included  in  the  code 
provide  some  innovate  options  that  simply  have  not  existed  prior  to 
this  time.  The  judge  is  permitted,  in  any  case,  to  impose,  in  addition  to 
whatever  sentence  he  comes  up  with,  an  order  that  a  fraudulent  of- 
fender or  a  corporate  oft'ender  notify  the  victims  of  the  offense  in  order 
to  facilitate  civil  actions  for  damages.  Indeed,  the  code  contains  a 
civil  action  for  damages  that  may  be  brought  in  a  Federal  district 
court. 

There  is  another  special  provision  that  provides  for  the  first  time 
in  Federal  law  that  a  judge  may  direct,  in  addition  to  any  other  sen- 
tence, that  the  individual  provide  reparation  to  the  victim  of  his 
offense. 

There  is  also  contained  in  tlie  code  an  impoitant  provision  that 
would  provide  compensation,  through  the  Federal  Government,  to 
victims  of  all  violent  Federal  offenses.  Today,  there  are  no  proAnsions 
in  cu.rrent  Federal  title  IS  that  provide  compensation  for  victims  of 
offense,  save  one.  The  one  instance  where  victim  compensation  is  pro- 
vided is  not  for  murder,  not  for  maiming,  but  for  the  offense  of  seduc- 
tion of  a  female  steamship  passenger.  Tn  that  instance,  the  fine  is  to  be 
paid  "for  the  use  of  the  female  seduced." 

For  too  long  in  our  society  we  have  considered,  or  tended  to  con- 
sider, crimes  to  be  affronts  to  society  itself.  'We  talk  in  terms  of  in- 
dividuals paying  their  debt  to  society.  It  is  the  victims  of  those  offenses 
who  are  the  ones  who  really  end  up  pavin<r  those  debts,  as  the  current 
law  is  constituted.  For  the  first  time,  in  this  code,  there  would  be  an 
effective  program  of  compensating  the  victims  of  those  violent  offenses. 

Probation  is  set  fortli  in  the  new  code,  not  as  a  suspension  of  im- 
position of  sentence  or  a  suspension  of  execution  of  sentence,  but  as  a 
sentence  itself.  A  series  of  conditions  are  suggested  that  miHit  be  ap- 
propi'iate  in  ])articular  instances,  such  as  a  sentence  to  probation  on 
condition  that  the  individual  pcT-form  community  service.  ]\Iany  of 
tlies^  condition';^  have  not  been  specified  before. 

The  maximum  fines  are  greatly  higher  than  tliose  in  current  law. 
The  fine  for  an  individual  conunitting  any  felonv  is  $100,000.  The  fine 
for  an  organization  committing  any  felony  which  today  is  often  no 
movf.  than  the  entity's  annual  cost  of  paper  clips,  is  raised  to  half  a 
million  dollars.  There  is  an  nlternntive  fine  proA'ision  th^t  provides  a 
fine  in  appro'^riate  eases,  of  double  the  loss  occasioned  to  the  victini  of 
the  offense,  or  double  the  gain  accrued  by  the  defendant  in  committing 
the  offense.  Tmpoi'tantlv,  the  fines  are  made  more  collectable,  too.  in  a 
separate  subchapter.  The  code  Thermits  the  utilization  of  the  Inter- 
nal Ivevenue  Service  lien  pi'ocodures.  so  that  when  fines  are  imposed 
there  is  some  real  hope  that  they  can  be  collected.  In  order  to  prevent 
an  enormous  fine  from  beino:  imposed  upon  a  person  who  has  no  means 
of  paying  it,  however,  all  fines  under  the  code  are  conditioned  upon 
tlie  individual's  or  the  organization's  ability  to  pay. 

Imprisonment  terms  are  generally  somewhat  lower  than  current 
law,  and  lesser  included  offenses  appear  where  none  have  appeared 


9015 

previously.  For  instance,  while  thefts  today  g^enerally  carry  about  5 
years,  under  the  new  code  serious  thefts  would  carry  more,  average 
thefts  would  carry  about  that  time,  and  minor  thefts  would  carry  less. 
The  petty  offense  of  "joy  riding,"  which  today  is  treated  like  any  other 
theft  as  a  5-year  offense,  is  dropped  to  a.  maximum  penalty  of  6  months. 

The  sentences  to  imprisonment,  in  addition,  may  be  imposed  without 
eligibility  or  parole,  eliminating  in  large  measure,  in  appropriate 
cases,  the  indeterminate  aspects  of  sentencing  under  existing  law.  A 
period  of  parole  ineligibility  may  be  imposed  for  close  to  tlie  maxi- 
mum term  of  imprisonment,  or  it  may  not  be  imposed  at  all,  depend- 
ing upon  what  appears  appropriate  in  an  individual  case. 

All  of  these  specific  provisions  pale,  however,  in  light  of  the  general 
structure  used  to  guide  the  judges  in  the  imposition  of  sentences.  The 
bill  creates  a  guidelines  sentencing  system  under  which  a  Sentencing 
Commission  is  established  in  the  judicial  branch  of  the  Federal  Gov- 
ernment. That  Commission  is  directed  to  issue  specific  guidelines  as  to 
appropriate  sentences  for  particular  offenses  committed  by  particular 
offenders  under  particular  aggravating  and  mitigating  circimistances. 
The  guidelines  might  take  the  form  of  a  grid  system.  When  a  judge 
had  before  him  a  particular  offender  he  could  look  to  see  the  offender 
characteristics  involved,  the  aggravating  circumstances  involved  in 
the  offense,  the  mitigating  circumstances  of  the  offense,  and  determine 
what  the  Commission  recommended  in  such  a  situation — probation 
on  certain  conditions,  a  fine  of  a  certain  amount,  or  imprisonment  in  a. 
certain  amount,  whatever  was  the  recommendation  in  that  particular 
area.  The  sentencing  range  would  be  narrow — in  imprisonment,  for 
example,  maybe  a  year  and  a  half  to  a  year  and  three-quarters;  5 
years  to  514  years.  It  would  be  a  fairly  tight  range. 

The  judge  would  be  expected  ordinarily  to  sentence  within  that 
range,  but  he  would  be  free,  if  he  came  across  particular  circumstances 
in  the  case  that  led  him  to  conclude  that  important  factors  were  not 
adequately  considered  by  the  Sentencing  Commission,  to  impose  a 
sentence  above  the  guidelines  or  below  the  guidelines.  Tf  he  did  sen- 
tence outside  the  guideline  range,  he  would  have  to  state  his  reasons  for 
the  sentence — no  reasons  are  required  today — and  that  sentence  would 
be  subject,  as  Senator  Kruska  has  noted,  to  appellate  review  where 
there  is  no  appellate  review  today. 

Senator  Kennedy.  He  would  like  to  give  it  to  everyone. 

Mr.  Gainer.  Pie  would.  The  original  proposal  that  Senator  Hruska 
was  working  on,  of  course,  was  a  proposal  that  would  look  to  appellate 
review  in  tlie  context  of  the  current  system  where  the  disparities  are 
rampant.  Under  the  sentencing  system  that  is  designed  in  the  code, 
there  should  be  a  tremendous  amount  of  uniformity  in  Federal  sen- 
tencing where  it  simplv  has  not  existed  before. 

Senator  Kennedy.  We  hope  that  is  the  case,  but  what  about  his 
point?  We  are  moving  ahead  with  over  100  new  judges.  Should  we  not 
consider  the  opportunity  for  appellate  review  for  all  sentences? 

Mr.  Gainer.  The  way  to  meet  a  problem  is  to  meet  it  head  on  and  not 
to  try  to  graft  on  some  remedial  measure  to  correct  a  bad  situation  that 
exists  at  the  beginning  of  the  process.  That  is  what  this  bill  does.  It 
corrects  a  bad  situation  that  today  exists  at  the  bejrinning  of  the 
sentencing  process.  It  introduces  rationality  and  uniformity  at  the 

95-465 — 77 29 


9016 

first  stage.  It  should  provide  ji  moans  so  that  disparity  will  occur  rela- 
tively rarely,  and,  when  extremes  do  occur,  those  instances  will  be  sub- 
ject to  a])pellate  review. 

In  the  instances  found  by  the  sentencing  judge  to  be  appropriatelv 
within  the  Conunission's  guidelines,  where  the  Connnibsion  had  found 
its  guidelines  to  be  appropriate,  and  where  this  Congress  in  review  of 
those  guidelines  had  fomid  the  range  to  be  appropriate,  there  would 
be  no  general  need,  as  exists  today,  for  appellate  review  of  those 
sentences. 

This  is  a  major  step  forward  to  reach  the  extremes  of  sentencing.  It 
should  be  adequate  for  those  purposes.  If  it  is  not,  after  several  years 
of  experience,  it  can  be  looked  at  again.  It  would  seem  that  by  meeting 
the  problem  head  on.  at  the  l)eginning  of  the  process,  it  is  a  far  more 
rational  way  to  approach  the  difficulty  than  attempting  the  use  of 
remedial  device,  or  relying  in  large  meas-ure  on  such  a  remedial  devi<?e. 

The  proposals  of  the  code,  in  com!)ination.  would  provide  a  dra- 
matic change  in  the  Federal  law  concerning  sentencing.  They  provide 
a  change  that  is  very  badly  needed.  They  are  probably,  in  combination, 
the  most  innovate  set  of  proposals  in  the  proposed  new  code. 

These  pro])osals  have  the  stron.g  support  of  the  Department  of  Jus- 
tice and  they  have  the  strong  sui)))ort  of  this  administration.  V\"e  urge 
early  passage  of  the  bill  containing  them. 

Senator  Kexxedv.  Let  me  touch  uDon  two  areas  with  yon.  One  is  the 
need  for  the  continuation  of  ])arole  release  for  ]>risoners  who  are 
already  in  pi'ison,  that  is,  prior  to  the  enactn>ent  of  the  sentencing 
procedures  included  in  this  legislation.  What  are  we  going  to  do  in  the 
transitional  period? 

Mr.  Gatxer.  Of  course,  as  the  bill  now  stands,  it  would  contiTiue  the 
l^arole  Commission.  The  Connnission  in  a))])i'opriate  cases  would  have 
a  function  similar  to  that  which  it  had  when  ori<>inally  designed,  and 
Avould  be  imposin.g  relea^;e  dates  based  upon  guidelines  developed  by 
the  Sentencing  (Commission  in  order  to  dovetail  with  the  Sentencing 
(^omuiission's 'Oi'igiual  purposes  in  its  sentenciuo-  guidelines. 

Since  the  Pai'ole  Commission  would  continue  under  the  ]iresent 
draft,  it  is  oidy  if  this  committee  decides  that  it  might  abo'lish  the  re- 
maining vestages  of  indetei'minate  sentences,  and,  accordlingly.  the 
])arole  authority  as  it  now  exists,  that  consideration  would  ha\e  to  be 
gi\'en  to  this  factor.  If  the  committee  should  choose  to  do  th;it,  there 
would  still  l)e  n  delay  of  31^  years,  assuming  I14  years  before  enact- 
ment and  2  years  before  the  effective  date,  durino-  v.-hich  the  Pai'ole 
Commission  would  have  to  remain  in  existeiu'e.  Kven  then.  ])robably 
the  Parole  Commission  would  hnve  to  remain  in  existence  for  a  further 
]»eriod  in  oi-der  to  hand'e  the  offenders  who  had  been  sentenced  under 
th(»  pre\ions  laws. 

Senator  Kkxxkdy.  TIow  long? 

Mr.  (taixkk.  Well,  it  might  i-ange  hclv.HHMi  5  and  )()  years.  The  num- 
lu'i-  of  cases  coming  before  (he  Connnission  would  decrease  over  time, 
of  <'Ourse. 

The  committee  might  wish  to  consider  ano1h(M-  altenuitive  which 
would  be  to  abolish  the  Connnission — if  this  is  the  tack  it  chooses  to 
take — at  the  time  of  enactment.  It  could  give  all  the  pei-sons  in  j)rison 
at  the  time  lliat  this  code  comes  into  existence  the  benefit  of  the  doubt, 


9017 

iTleapin-v  tlieni  aiitomaticallv  at  the  release  date  that  would  have  been 
aft'orde(l Under  the  current  Parole  Commission  oiudehnes,  or  givnig 
them  the  maxinunn  sentence  that  would  be  impossible  under  the  new 
code's  guidelines,  Avhichcver  is  less. 

Senator  Kennedy.  :Mavbe  we  could  take  a  look  at  that  proposal. 

Mr.  Gainer.  Again,  that  would  come  into  play  only  if  this  commit- 
tee wanted  to  elinnnate  early  release  on  parole. 

Senator  IvENNEnr.  That  ought  to  be  before  the  couimittee. 

Let  me  hear  your  views  about  rehabilitation.  Yon  liaxe  made  refer- 
ence in  your  statement  about  the  importance  of  sentencing  for  purposes 
of  deterrence  and  just  punishment. 

What  is  your  view  of  rehalnlitation,  just  generally,  and  what  should 
we  be  thinking  al}Out  in  that  area  ^ 

Mr.  Gainer.  Senator,  rehabilitation  is  really  the  primary  purpose 
for  most  sentences  to  probation.  Therefore,  it  has  to  be  a  purpose  of 
sentencing  in  the  code. 

The  question  usually  arises  as  whether  or  not  relia1)ilitation  con- 
tinues to  be  a  valid  purpose  for  incarceration.  When  iMai-tinson  com- 
pleted his  study,  he  seemed  somewhat  edgy  about  the  public  reception 
of  his  results.  He  was  afraid  they  would  be  interjn-eted  to  mean  that 
we  should  not  even  try  rehabilitation  anymore.  Of  course,  we  should 
try  for  two  reasons.  The  first  is  simply  a  humanitarian  reason;  that  is, 
]Dersons  who  are  in  ])rison  should  be  given  the  benefit  of  whatever 
rehabilitation  ]n'ogranis  we  can  design.  Second,  who  knows  but  tliat; 
we  niight  find  something  that  works. 

A  couple  of  weeks  ago,  there  was  a  report  that  some  lesearchers  had 
found  that  criminality  in  particular  individuals  could  be  reduced  by^^ 
feeding  them  chocolate.  I  am  not  sui'e  that  we  will  come  to  such  a  neat 
solution  in  many  cases,  but  whatever  remedial  attempts  we  can  take 
certainly  should  be  left  open  for  experimentation. 

But  beyond  that,  it  would  clearly  be  a  shame  to  cut  off  the  possibility' 
of  any  sentence  in  the  future  for  rehabilitative  purj)oses.  Even  today, 
th_ere  mav  he  some  sorts  of  situations  in  vrhich  incarceration  may 
appropriatelj''  be  imposed  for  limited  times  for  essentially  rehabilita- 
ti\'e  purposes,  such,  as  pei'haps,  a  defendant  I'equiring  a  withdrawal 
jjcriod  (luring  drug-  addiction  treatment.  The  issue  [)robab]y  could  be 
handled  adequately  in  the  legislative  history  of  the  bill,  indicating- 
that,  under  the  current  state  of  knowledge,  it  would  generally  seem 
inappropriate  to  use  rehabilitation  as  the  sole  purpose — not  as  a  col- 
lateral ])ur})ose  but  as  the  sole  ]iur]>ose — for  incarceration.  lender  th& 
bilTs  approach,  the  propriety  of  the  purpose  would  be  left  to  the  Sen- 
tencing Commission,  based  upon  the  information  coaning  to  it  in  the 
course  of  its  keeping  current  with  penological  and  certain  sociological 
thinkiuij-  as  to  what  would  be  appropriate  under  all  the  circumstances. 

I  think  it  would  be  a  mistake  to  delete  rehabiUtation  as  a  purpose  of 
sentencing  simply  on  the  basis  of  the  most  recent  findings  and  the  cur- 
rent conventional  wisdom. 

Senator  Kennedy.  I  think  that  we  have  to  try  to  find  Avays  of  ex- 
panding rehabilitative  pi-ograms.  I  agree  with  everything  yon  said'  in 
terms  of  confused  attitudes  and  the  injustices  which  have  resulted  from 
the  failui-e  to  understand  the  distinction  between  incarceration  and 
rehabilitation. 


9018 

But  it  seems  to  me  that  the  only  way  that  these  sentencing  provi- 
sions are  going  to  make  sense  over  a  long  period  of  time  is  with  a  strong 
emphasis  on  rehabilitation.  That,  I  think,  has  to  be  recognized  and 
has  to  be  advanced. 

Mr.  Gainer.  I  think,  Senator,  the  bill  that  you  and  otliers  have 
produced  does  take  cognizance  of  that  need,  particularly  in  the  train- 
ing area  by  providing  the  opportunity  for  engaging  in  industries  in 
which  prison  personnel  may  sell  in  the  competitive  market.  This  will 
provide  training  in  job  skills  where  there  is  a  market  for  job  skills, 
and  training  that  may  eventually  help  in  rehabilitation  under  the  broad 
understanding  of  the  term. 

ISenator  Kenxedy.  I  want  to  thank  you  very  much  and  we  want  to 
thank  Karen  Skrivseth.  She  has  been  very  helpful  to  tlie  Committee. 
We  look  forward  to  working  with  you.  Thank  you  very  much. 

Our  next  witness  is  Curtis  Crawford,  Acting  Chairman  of  the  U.S. 
Parole  Commission,  accompanied  by  Commissioner  Dorothy  Parker, 
Dorothy  Parker  is  a  former  employee  of  the  committee. 

Ms.  Parker.  Senator,  it  might  be  better  if  I  did  not  join  the  Chair- 
man. I  do  not  agree  with  the  philosophy  of  the  majority  of  the  Com- 
mission in  the  handling  of  this.  The  Chairman  will  state  the  opinion 
of  the  majority. 

Senator  Kennedy.  Fine. 

You  have  views  and  if  you  would  like  to  submit  them,  we  would 
welcome  them  as  well. 

Ms.  Parker.  I  would  be  glad  to. 

Senator  Kennedy.  We  will  hear  from  the  Chairman,  but  if  you  have 
other  views  and  would  like  to  submit  them,  we  would  include  them 
in  the  record. 

[Material  appears  on  page  9028.] 

STATEMENT  OF  CURTIS  C.  CRAWFOED,  ACTING  CHAIRMAN,  IJ.S. 
PAROLE  COMMISSION;  ACCOMPANIED  BY  PETER  HOFFMAN,  DI- 
RECTOR OF  RESEARCH,  U.S.  PAROLE  COMMISSION 

Mr.  Crawford.  Thank  you,  Mr.  Chairman. 

T  would  like  to  say  that  I  have  with  me  tliis  morning  Dr.  Peter 
Hoffman,  who  directs  the  research  foi-  tlie  U.S.  Parole  Conunissiou. 

I  have  a  brief  statement  that  I  would  like  to  read  into  this  record 
and  also  I  would  like  to  state  that  my  comments  here  this  morning — • 
I  am  not  speaking  for  either  the  Department  of  Justice  or  the  ad- 
ministration. 

Smiator  Kennedy.  What  does  that  mean  ? 

Mr.  Crawford.  Briefly,  what  I  am  saying  is  that  the  Department 
under  Attorney  General  Bell  has  taken  a  position.  I  do  not  want 
anybody  to  misconstrue  my  thoughts  liere  and  perhaps  adopt  these 
thoughts  as  being  the  thoughts  of  the  Department  of  Justice  or  the 
administration.  I  want  it  clear  in  this  record  that  these  are  the  com- 
ments of  a  majoT-ity  of  the  mem})ors  of  the  Parole  Connnission. 

On  behalf  of  the  U.S.  I'arole  Connnission,  I  welcome  this  op- 
portunity to  appear  here  today  to  present  for  your  consideration  the 


9019 

views  of  the  majority  of  the  members  of  the  Parole  Commission  on 
certain  provisions  of  S.  1437  relatino^  to  parole  and  sentencing. 

As  I  indicated,  I  am  not  speaking  for  either  the  Department  of 
Justice  or  the  administration. 

The  foundation  of  modern  parole  is  founding  in  the  progression 
from  strict  imprisonment  to  gradual  freedom  within  liniited_  areas, 
to  liberation  with  conditions  of  parole  and  supervision  in  tlie. 
community. 

Parole  in  America  has  played  a  continuing,  vital,  and  distinguished 
role  over  the  past  100  years  in  the  administration  of  criminal  justice: 

Two  national  attorney  general's  conferences  on  parole  have  been 
called  by  the  Attorney  General  and  President  to  evaluate  the  progress 
of  the  parole  system  in  America.  The  first  national  conference  was  in 
April  1939  by  Attorney  General  Frank  Murphy  with  the  very  active 
participation  of  President  Franklin  D.  Roosevelt. 

The  conference  was  attended  by  nearly  800  delegates  representing 
46  States  of  the  Union.  Objectives  of  the  conference  as  stated  by 
General  Murphy  was  to:  (1)  Present  the  facts  about  parole  to  the 
American  people;  (2)  to  reach  agreement  as  to  desirable  standards  in 
administration ;  and  (3)  to  point  the  way  to  closer  cooperation  between 
the  Federal  Government  and  that  of  the  several  State  paroling 
authorities. 

In  opening  this  historical  National  Parole  Conference,  President 
Roosevelt  stated  that  he  "considered  parole  the  most  enlightened  and 
promising  method  of  terminating  a  prison  sentence." 

President  Roosevelt,  in  the  keynote  address,  pointed  out  that  public 
criticism  has  been  based  upon  inadequate  information,  particularly 
about  the  ratio  of  parole  success.  The  President  continued : 

It  is  especially  important  that  people  should  not  he  deceived  by  violent  attacks 
on  properly  run  parole  administrations  if  one  parolee  goes  wrong  and  cominits 
another  crime.  The  fact  clearly  show  that  while  a  properly  run  parole  system 
gives  no  guarantee  of  perfection,  the  percentages  of  parolees  who  go  straight  for 
the  rest  of  their  lives  are  infinitely  higher  than  where  there  is  no  parole  system 
at  all.  Well  administered  parole  is  an  instrument  of  tested  values  in  the  control 
of  crime.  Its  proper  use  in  all  jurisdictions  will  promote  our  national  security. 

The  second  National  Conference  on  Parole  was  called  by  U.S.  At- 
torney General  Herbert  Brownell,  Jr.,  in  April  1956  in  the  Nation's 
Capital. 

Chief  Justice  Earl  Warren,  in  his  keynote  address,  stated : 

It  has  been  my  opportunity  in  life  to  see  parole  from  different  vantage  points. 
First,  of  course,  as  a  citizen ;  second,  as  a  prosecutor ;  third,  as  a  legal  adviser  of 
a  parole  system ;  fourth,  as  Governor  of  my  State  charged  with  the  administra- 
tion of  a  parole  system  :  and  recently  from  the  bench.  I  say  to  yovi  frankly  that  it 
presents  a  different  picture  from  each  of  these  vantage  points  because  each  of 
these  experiences  has  strengthened  my  belief  in  the  parole  system  arid  my  expecta- 
tion for  its  accelerated  progress  in  the  future. 

Now,  let  me  say  that  the  members  of  the  Parole  Commission  support 
the  general  thrust  of  this  bill  to  reform  the  Federal  criminal  laws  and 
particularly  the  efforts  to  set  forth  a  system  to  reduce  judicial  sen- 
tencing disparity.  Problems  of  excessive  and  unwarranted  variations 
in  criminal  justice  sentences  are  all  too  readily  apparent. in; the. way  the 
system  presently  operates. 


9020 


It  is  believed  that  a  guideline  system  promulgated  by  a  sentencing 
'commisison  can  provide  a  significant  step  in  regard  to  improving  ju- 
dicial sentencing.  We  do,  however,  have  certain  suggestions  to  otier 
concerning  the  role  of  a  parole  authority  and  its  i-elation  to  the  sen- 
tencing commission,  which  we  think  will  prove  this  measure. 

As  you  may  know  from  the  previous  testimony  of  Bureau  of  Prisons 
Director  Norman  Carlson,  Dean  Don  M.  Gottfredson.  and  former  Dep- 
uty Attoi-ney  General  Harold  Tyler,  the  I".S.  Parole  Poard — now  the 
Parole  Commission — was  the  first  operating  criminal  justice  agency 
to  implement  a  guideline  model  for  the  determination  of  time  to  be 
served  in  prison  before  release — within  the  limits  set  oy  statute  and 
sentencing  judge. 

Decisions  outside  the  guidelines  are  pei'mitted,  but  only  for  good 
cause  and  upon  the  provision  of  specific  written  reasons.  Based  upon 
the  work  of  a  team  of  distinguished  researchers,  including  Dean  Gott- 
fredson. who  has  testified  before  this  committee  in  relation  to  his  work 
with  guidelines  for  sentencing,  guidelines  for  parole  release  decisions 
first  went  into  effect  in  October  1072,  nearly  5  years  ago. 

Expanded  to  all  Federal  parole  release  decisions  by  October  1974, 
this  guideline  model  was  incoi-jiorated  into  statute  in  the  Parole  Com- 
mission Reorganization  Act  of  1976,  a  major  reform  of  the  Federal 
pai'ole  practices  resulting  from  over  3  years  of  study. 

In  content  and  application,  this  guideline  model  is  (luite  similar  to 
what  S.  1437  appears  to  contemplate  wouhl  be  promulgated  by  the  Sen- 
tencing Commission.  For  example,  one  might  compai'e  the  ci-iteria  of 
proposed  1437  with  the  present  18  T^S.C.  4206  and  the  detailed  text  of 
the  accompanying  conference  report. 

Since  the  first  pilot  ])roject  nearly  5  years  ago.  pai-ole  release  guide- 
lines have  been  api)lied  to  nearly  40.000  sentenced  Fedei-al  i)i'isoners. 
Thus,  the  Pai-ole  Connnission  feels  that  it  has  considerable  exi)erience 
with  the  guideline  concept  in  practice  and  can  attest  to  both  its  strength 
aiul  its  limitations. 

That  brings  me  to  consideration  of  the  I'ole  of  the  Pai'ole  Conunis- 
sion  undei-  pro[)osed  S.  1437.  (Jiven  the  conce])t  of  Federal  judges  iM\- 
posing  sentences  undei-  a  guideline  framewoik.  the  (juestion  has  been 
raised  as  to  v.hat.  if  any,  function  woidd  be  served  by  a  parole 
authority. 

In  fact,  sevei'al  witnesses  testifying  befoi-e  this  committee  have  con- 
cluded that  mider  this  act  the  Pai'ole  Conunission  would  merely  be 
du))licative  aiul  should  be  eliminated.  We  feel  that  sucli  conclusions 
are  ba^^cnl  upon  ecu-tain  eri'oneous  assuni])!  ions  aiul  that  there  is  a  clear 
and  viable  role  f'or  a  parole  authority  working  in  t'onjunction  willi  the 
Sentencing  Conunission  and  judiciary  in  deteruiijiing  fail-  ami  con- 
sistent prison  terms. 

It  is  our  reasoiu'd  belief  that  while  iui])lementation  of  a  Sentencing 
Commission  is  likely  to  (>nhance  equity  in  certain  areas,  such  as  the 
pi'imaiT  decision  as  to  who  is  committed  to  prison  and  who  is  placed 
on  i)i'obatio?i. 

AVithout  the  retention  of  th(>  Pai'ole  Commissioji.  equify  in  otlier 
areas,  speeilically  in  the  determination  of  the  actual  length  of  prison 
terms,  is  likely  to  be  reduced. 


9021 

Even  Mr.  O'Donnell,  who  ai'oued  before  this  committee  that  parole 
sliould  be  abolished,  points  out  in  his  text,  "Towards  a  Just  and  Effec- 
tive Sentencino-  System,''  the  fact  that  a  strono-  limitation  of  the  Parole 
Commission's  present  use  of  guidelines  is  that  the  Parole  Board  does 
not  have  adequate  control  over  sentencing  practices  to  sufficiently 
reduce  judicial  sentencing  disparit3^ 

Thus,  it  might  appear  that  a  liability  under  the  present  system  is 
not  too  much  authority  for  the  Parole  Commission,  but  ratlier  too  little. 

Simply  stated,  it  is  our  belief  from  considerable  experience  within 
a  guideline  system,  that  sentencing  guidelines  alone,  applied  by  o'98  or 
more,  as  I  have  heard.  Federal  judges,  sitting  individually  will,  even 
with  appellate  review,  not  produce  the  fairness  and  equity  in  the  setting 
of  actual  time  to  be  spent  in  prison  that  is  the  underlying  intent  of  this 
legislation. 

Senator  Kkxxedt.  Let  me  ask  you  this.  That  is  the  whole  point 
that  we  are  attempting  to  reach;  that  is,  that  the  prisoner  will  know 
at  the  time  by  his  initial  sentence  exactly  how  nuich  time  he  is  going  to 
spend. 

Why  shouldn't  he  know  at  the  outset  that  he  is  going  to  spend  x 
number  of  years  in  prison,  subject  to  good  behavior?  If  he  does  not 
misbehave,  on  x  date  he  will  be  released.  Not  only  will  he  know,  but 
society  will  know  as  well. 

It  seems  to  me  that  those  are  the  two  elements  that  we  are  trying 
to  achieve.  Why  is  not  that  your  concern  about  the  disparity  between 
difi'erent  judges  and  all  the  other  factors?  Why  is  not  that  the  best 
way  to  deal  with  it  ? 

Mr.  Craw^ford.  I  could  say  at  this  particular  time,  Senator,  that  the 
Commission  has  only  recently  done  this.  It  is  currently  running  in  the 
Federal  Register.  The  fact  that  we  are  seeking  to  give  prisoners 
within  120  days,  or  within  4  months  of  their  incarceration  the  specifics 
as  to  how  long  they  will  be  there. 

Senator  Kennedy.  Why  not  have  that  done  in  the  courtroom?  Why 
not  have  the  judge  do  that  ?  Why  should  you  do  that  ? 

]Mr.  Hoffman.  INIr.  Chairman,  I  think  that  has  to  do  solely  with  the 
number  of  individuals  involved.  I  think  from  our  experience,  using  a 
very  similar  guideline  concept,  that  we  have  learned  that  while  the 
guidelines  are  very,  very  valuable,  that  they  will  not  alone  be  sufficient 
to  serve  their  intended  tasks;  that  is,  while  guidelines  can  reduce  dis- 
parity, it  is  doubtful  that  the  guidelines  alone,  applied  by  400  to  500 
separate  individuals,  can  substantially  reduce  that  to  accomplish  the 
aims  at  fair  and  consistent  present  terms. 

Senator  Kennedy.  AVe  have  heard  the  proposals.  Senator  Hart  has 
said  that  rather  than  have  a  1-  or  2-year  flexibility  period  he  would 
provide  the  exact  number  of  years. 

jNIr.  Hoffman.  Yes. 

Senator  Kennedy.  Would  you  favor  that  ? 

Mr,  Hoffman.  No.  I  think  the  liability  with  that  approach  is  the 
liability  of  the  mandatory  sentence  provision.  It  is  simply  that  it  is 
extremely  difficult,  if  not  impossible,  for  anybody  to,  in  advance, 
articulate  all  of  the  possible  permutations  and  combinations  of  cir- 
cumstances that  may  arise.  That  is  why  flat  sentencing,  or  mandatory 


9022 

sentencin<r,  lias  run  into  the  situation  ^Yhe^e  a  law  vrWl  pass  and  a 
proposal  will  come  that  sale  of  drugs  to  juveniles  will  receive  a  very 
stitf  penalty.  Then  it  turns  out,  for  example,  in  the  State  system,  that 
the  a^o  of  criminal  responsibility  is  16,  and  the  age  of  majority  is  18. 
So,  distribution  by  a  16-year-old  to  a  17-year-old  friend,  comes  under 
the  lieading  of  sale  of  marihuana  to  a  minor  which  was  obviously  not 
the  intent. 

It  is  simplv  a  matter  that  while  guidelines  can  substantially  struc- 
ture the  discretion,  it  is  doubtful,  at  least  in  our  view,  that  they  can 
be  written  comprehensively  enough  so  that  they  can  be  applied  by  500 
separate  individuals  and  achieve  the  consistency  you  desire  without 
making  them  too  rigid.  This  is  why  it  is  suggested  that  there  should 
be  a  two-stage  process.  There  Avould  be  the  initial  determination  using 
guidelines  and  that  would  be  made  by  the  Federal  judge. 

But  for  the  much  more  limited  number  of  inclividuals  who  receive 
Federal  prison  terms,  there  would  be  a  collegial  body  which  would  be 
a  smaller  number  of  individuals  and  they  would  sentence  full  time. 
They  would  use  guidelines  dovetailed  into  the  Sentencing  Commission 
guidelines,  and  they  would  apply  the  actual  determination  as  to  the 
length  of  time  served. 

It  is  argued  that  the  advantage  and  the  production  of  equity  by  hav- 
ing a  full-time  group,  which  specializes  in  this  task,  to  do  it.  AVe  do  not 
care  what  they  are  called,  but  they  will  be  a  group  wliich  could  pro- 
duce a  result  which  will  much  more  than  make  up  for  the  alleged 
duplicativeness  of  this  system. 

While  the  average  Federal  judge,  with  400  Federal  judges  now,  and 
you  run  approximately  12,000  prison  terms,  which  is  approximately 
30  prison  terms  per  year  per  judge,  then  sentencing  is  a  part-time 
function. 

If  it  is  true  that  the  guidelines  themselves  cannot  be  written  that 
specifically,  then  it  is  argued  that  you  are  better  off  with  a  small  full- 
time  body  implementing  the  actual  prison  term. 

Senator  Kexnedy.  I  have  not  heard  among  those  who  have  testified 
that  they  feel  that  they  could  not  address  those  variables. 

^Ir.  Hoffman.  Dean  Gottfredson  and  Andrew  von  Ilirsch  did  ad- 
dress that  subject.  I  believe  that  even  Judge  Tyler  recommended  that 
the  Parole  Commission  be  kept  in  place  for  a  while  sjiecifically  for 
a  similar  purpose. 

Wo  simply  do  not  know  whether  guidelines  can  be  written  that 
tightly.  There  is  the  experience  with  4  years  and  40,000  cases  with  tlie 
Parole  Commission,  and  that  seems  to  indicate,  to  me  at  least,  that 
both  a  small  number  of  full-time  decisionmakers  and  guidelines  are 
required  rather  than  one  or  the  other. 

I  believe  this  is  the  position  of  Dean  Gottfredson  who,  as  you  know, 
worked  for  the  Parole  Commission,  but  who  more  recentlv  has  been 
working  with  the  sentencing  guidelines,  in  a  feasibility  of  State  courts 
fields. 

Senator  Kennedy.  But  T  do  not  know  what  information  you  are 
going  to  have  2  or  8  or  4  months  hence  after  sentencimr. 

Mr.  Hoffman.  No,  sir,  it  is  not  a  question  of  having  additional 
information.  It  is  simply  a  question  of  this.  If  it  is  true  that  the  guide- 
lines can  articulate  the  underlying  principles  and  can  articulate  cer- 


9023 

tain  fact  situations,  but  if  it  is  true  that  it  is  supplied  by  500  individ- 
uals, and  if  it  is  true  that  they  sit  separately  and  individually,  then 
y^ou  will  not  achieve  the  consistency  that  you  desire.  Then  the  func- 
tion of  the  Parole  Commission  or  whatever  agency  you  would  want  to 
call  it,  would  be  that  they  would  not  have  additional  information 
within  4  months.  It  would  be  that  with  the  limited  task  of  setting  a 
prison  term  you  would  have  a  small  full-time  body  who  communi- 
cates with  each  other  and  works  in  panels  rather  than  individuals. 

So,  you  have  the  concept  of  guidelines  going  for  you.  In  addition, 
you  have  the  concept  of  a  small  body  who  are  working  full  time.  They 
would  have  sentencing  panels  which  have  been  advocated  in  the  Fed- 
eral system  for  so  long,  but  rarely  tried.  All  of  these  work  together  to 
reduce  the  disparity  rather  than  only  using  it  one  way. 

Senator  Kennedy.  Under  your  proposal,  then,  they  would  have  the 
authority  to  reduce  the  sentence  imposed  by  a  judge;  is  that  correct? 

Mr.  Hoffman.  Under  this  type  of  proposal,  which  has  been  recently 
passed  by  both  houses  of  the  Oregon  legislation,  you  would  have  a 
judge  who  would  fix  a  maximum  term.  In  Oregon,  a  judge  may  fix  a 
maximum  up  to  one-half  of  the  maximum.  Then,  within  6  months  in 
Oregon,  although  administratively  the  parole  board  in  Oregon  does  it 
within  90  days,  the  parole  board  would  affix  the  actual  release  date. 
As  a  matter  of  fact,  the  Oregon  proposal  has  this.  The  parole  board 
has  an  override  so  that  if  four  of  the  five  members  concur,  they  may  fix 
a  release  date  notwithstanding  the  minimum  sentence. 

What  you  have  is  this.  You  have  the  original  decision  as  to  who  to 
incarcerate,  which  is  a  broad  decision  that  would  be  made  in  this  sys- 
tem under  the  guidelines  by  the  Federal  judge,  and  then  very,  very 
quickly  you  would  have  a  smaller  body  fix  the  actual  time  to  be  served. 

The  advantage  is  simply  the  smaller  full-time  body.  There  is  no  new 
information  necessarily. 

If  the  guidelines  could  be  written  so  specifically  and  if  they  could 
take  into  account  all  the  permutations  and  accommodations  which 
would  be  required,  then  this  would  be  duplicative. 

But  the  liability  of  mandatory  sentences,  which  we  have  had  in  the 
past,  and  which  have  not  worked  very  elTectively,  have  been  that  they 
liave  tried  to  take  into  accoimt  all  of  the  combination  and  permuta- 
tions. They  have  not  been  successful. 

Our  experience  with  the  parole  ofuidelines,  in  applying  them  and  im- 
plementing them,  is  simply  that  they  can  be  a  variable  tool.  They  can 
be  a  dramatic  tool,  but  in  themselves,  there  is  simply  the  question  as  to 
Avhether  they  are  the  end-all  and  whether  they  can  be  totally  sufficient 
in  themselves. 

Senator  Kennedy.  We  will  get  a  chance  to  look  at  the  Oregon  legis- 
lation. It  seems  to  me  it  is  an  improvement  over  the  present  system,  but 
I  think  you  still  face  indecisiveness  from  the  point  of  view  of  the 
prisoner  him  or  herself,  as  well  as  society. 

Mr.  Hoffman.  Sir,  I  agree.  The  question  is  simply  this.  Would  you 
trade  several  months  of  indecisiveness,  or  of  not  knowing,  for  the  in- 
creased equity  which  this  system  can  provide  ?  I  agree  with  you  com- 
pletely that  you  have  to  have  one  or  the  other. 

If  the  underlying  intent  is  to  produce  fair  and  consistent  prison 
terms,  then  it  is  simply  recommended  that  this  may  do  the  job  better. 


9024 

Senator  Kennedy.  That  assumes  it  will  be  fair  and  more  equitable. 

Mr,  Hoffman.  Yes. 

Senator  Kennedy.  That  case  still  has  to  be  made,  does  it  not  'I 

Mr.  HoFF3[AN.  Yes,  sir.  That  certainly  is  true.  ISut  it  is  simply  the 
(juestion.  I  think  the  witnesses  who  have  testified  previously  mioht  be 
asked  specifically  on  the  point  as  to  whether  a  very,  very  larg;e  number 
of  decisionmakers,  that  is,  whether  tlie  interjiretation  of  these  ofuide- 
lines  will  i)e  sufficiently  consistent  so  that  this  will  l)e  unnecessary. 

Mr.  Crawford.  Senator,  also  in  conjunction  Avith  the  question,  it 
seems  to  me  that  I  should  say  tliis.  We  know  these  facts.  AVe  do  know 
tliat  many  sentences  are  controlled  by  conununity  pressure.  AVe  know 
that  a.  judge  sitthi<i:  there  is  responding-  nuuiy  times  in  his  sentence  to 
the  pressures  of  a  given  connnunity. 

So,  even  thougli  facts  that  are  simihar  are  used  by  the  Parole  Board 
in  making-  its  determination  after  he  has  been  incarcerated,  it  is  made 
under  circumstances  tliat  are  far  different  and  far  more  calm  than  it 
Avould  be  normally  at  the  time  of  the  sentence  made  by  the  sentencing 
jud<»e. 

That  Avas  just  one  other  factor  relating  to  the  question  as  to  whetlier 
or  not  the  judge  could  pei-form  that  same  function  tliat  tlie  l^irole 
Commission  could  pei-foi'in  4  or  5  months  after  tlie  incarceration. 

I  wish  to  be  clear  that  this  is  not  meant  as  a  reflection  on  the  ability 
of  the  Federal  judiciary,  but,  rather,  as  I  shall  discuss  shortly,  simply 
a  limitation  imposed  by  the  very  large  nmnber  of  individuals  involved. 

Xevertlu'less.  it  is  our  belief  that  working  together,  tlie  Sentencing 
Commission,  judiciary,  and  Parole  Commission  can  enliance  equity 
and  fairness,  particularlv  in  the  time  actuallv  to  be  served  bv  similarly 
situated  oft'cnchu's.  That  is,  we  will  attem]:)t  to  show  that  a  Senten.cing 
Conu)iission  model  and  a  Parole  Authoi-ity  are  complementary,  rather 
than  competitive  concepts,  and  that  the  increased  consistency,  eft'ec- 
tiveiu'ss  and  checks  and  balances  of  this  complementary  inodel  far  out- 
weighs aiiy  claims  of  dnplicativcMiess. 

To  discuss  these  issues,  I  must  lir^-t  highlight  the  functions  that  the 
Parole  Commission  actually  serves  and  those  that  it  does  not  serve. 

A  primary  function  of  the  Pai'ole  Commission  undei-  present  statutes 
is  to  ■>{'\:  fair  and  equitable  ])rison  tei-ms  within  the  limits  set  by  the 
sentencing  judge.  'J'hus.  at  present  the  Pai'ole  Commission  is  the  only 
body  that  has  any  responsibility  at  the  Federal  level  for  reducing  dis- 
]iarity  in  sentences. 

This  has  rejieatedly  been  recognized  by  Congress  siiecificallv  in  the 
legislative  histoiy  of  IS  TT.S.C.  4208  in  IDnS,  and  again  in  the  Parole 
Commission  and  l\eorganization  Act  of  ]97()  which  states: 

In  the  first  instanc(>.  parolo  lias  fho  practical  olToct  of  halaiiciiii,'  difforeiicps  in 
seiitciH-iiiir  policios  and  i>ra<-f i('(>s  l)<'t\v<vMi  judsjjos  and  courts  in  a  system  that  is  as 
wide  and  diverse  as  tlie  {"'ederal  ci-iniinal  justice  system. 

Nevei-theless.  this  is  certainly  luit  a  widely  known  role.  It  is  a  role 
explicitly  stated  by  only  a  few  other  ])ai-ole  systems — for  exam])le. 
Minnesota  and  Oregon:  and  it  is  most  emphatically  not  th(>  image  of 
the  I'arole  Commission  that  is  generally  cremated  and  re})oi'ted  by  the 
ma  SB  media. 

You  have  heard,  in  ))revious  testimony,  an  ai'gument  that  coercive 
rehabilitation  programs  are  not  elective,  aiul  that  consequently  the 


9025 

Parolo  Commission  should  be  abolished.  As  applied  to  present  Fed- 
eral parole  practice,  this  criticism  is  simply  inaccurate. 

As  noted  al)ove,  the  primary  purpose  of  the  Parole  Commission  is 
the  provision  of  fair  and  consistent  prison  terms,  not  coerced  rehabili- 
tation. Rehabilitation — rather  than  being  a  function  of  the  parole 
board — lies  primarily  within  the  province  of  tlie  Bureau  of  Prisons. 

Another  criticism 'has  been  related  to  indeterminacy  and  to  tlie  un- 
certainty under  which  prisoners  are  kept  reo-ardino-  their  release  date. 
Ahhough  this  has  been  the  traditional  practice  of  paroling  ao-encies, 
since  the  development  of  the  guideline  model  in  1972,  the  U.S.  Parole 
Commission  has  been  moving  in  the  direction  of  increased  certainly 
in  the  determination  of  parole  release  dates. 

Not  only  do  the  guiclelines  provide  an  estimate  for  prisoners  as  to 
the  time  they  wilTactually  serve,  but  the  Parole  Commission  has 
actively  been  experimenting  with  a  procedure  for  reducing  unneces- 
sary uncertainty. 

In  May  of  last  year,  an  experimental  project  was  begun  in  the  west- 
ern region  of  the  country  by  the  Parole  Commission  which  involved 
informing  a  prisoner  early  in  his  term  of  a  prospective  parole  date — 
contingent  upon  good  conduct.  A  similar  joint  eii'ort  with  the  Bureau 
of  Prisons  was  also  begun  last  year  at  the  Butner  facility  in  North 
Carolina. 

The  tentative  feedback  obtained  to  date,  although  based  upon  an 
extremely  limited  sample,  is  veiy  encouraging.  Partially  as  a  result 
of  this  experiment,  the  Parole  Commission  has  recently  set  forth  pro- 
posed regulations  under  wliich  most  prisoners  would  be  infoi'med  of 
a  presumptive  release  date,  contingent  upon  good  behavior,  within  4 
months  of  their  arrival  at  the  Federal  prison. 

While  this  method  may  still  technically  be  classified  as  an  indeter- 
minate sentence,  it  certainly  does  not  contain  the  uncertainty  or  coer- 
cive rehabilitation  pressure  that  certain  critics  decry.  Upon  receipt 
and  consideration  of  public  comment  as  provided  by  tlie  Aduiinistra- 
tive  Procedure  Act,  it  is  the  Commission's  intention  to  move  forward 
promptly  in  this  area. 

Another  criticism  that  you  have  heard  in  testimony  is  that  the  Parole 
Commission  does  not  operate  under  clearly  drawn  legislative  standards. 
I  submit  that  this  is  incorrect.  It  is  our  belief  that  the  standards  drawn 
by  the  Parole  Commission  Act  of  1976  in  IS  U.S.C.  4206  are  extremely 
clear,  particularly  when  read  in  light  of  the  conference  committee 
report.  It  is  noted  that  these  standards  are  quite  similar  to  those 
enunciated  in  S.  1437,  except  that  rehabilitation  is  not  mentioned  in 
the  Parole  Commission  Reorganization  Act. 

Let  me  turn  to  the  guidelines  themselves.  From  experience  with  our 
system,  we  know  that  the  guidelines  are  a  valuable  tool;  we  also  know 
that  even  with  a  small  staff  of  36  hearing  examiners  supervised  by 
five  regional  commissioners  and  a  three-member  National  Appeals 
Board,  there  can  be  considerable  differences  in  guideline  interpreta- 
tions; and  if  training  and  review  is  not  constant  and  ongoing,  con- 
siderable disparity  even  with  guidelines  can  occur. 

Morevover.  Parole  Commission  staff  devotes  full-time  effort  to  the 
setting  of  prison  terms,  and  decisionmaking  is  by  two-member  panel. 
Sentencing,  and  particularly  the  imposition  of  prison  terms,  is  but  a 


9026 

minute  portion  of  the  Federal  judge's  role.  Last  year,  there  were 
rou;Li:hly  12,000  prison  terms  imposed  by  398  judges,  an  average  of  30 
per  judge  in  the  entire  year. 

It  is  our  belief  that  even  with  the  most  sophisticated  guidelines, 
there  remains  considerable  potential  for  disparity  in  relation  to  actual 
prison  terms  in  their  application  by  400  Federal  judges — and  I  am 
told  that  an  increase  to  over  500  judges  with  the  new  legislation  may 
be  forthcoming. 

Moreover,  we  do  not  believe  that  appellate  review  by  11  circuit 
courts,  divided  into  numerous  panels  and  already  overworked,  would 
be  the  best  vehicle  for  insuring  the  consistency  requireti.  That  is  why 
even  with  valuable  sentencing  guidelines,  it  is  our  view,  the  role  of  a 
smaller  full-time  body — whose  primary  duty  is  to  fix  prison  terms — 
needs  to  be  maintained. 

I  believe  this  was  explicitedly  stated  by  Dean  Gottfredson  and 
Professor  von  Ilirsch  in  their  testimony  before  this  committee  and 
alluded  to  by  other  committee  witnesses  who  have  testified  that  aboli- 
tion of  the  Parole  Commission  at  this  stage  would  not  be  wise. 

This  role  has  also  been  recognized  in  recent  legislation  passed  in 
Oregon,  which  creates  a  Joint  Parole — Sentencing  Commission  on 
Prison  Terms.  Under  this  Oregon  legislation,  judges  and  parole  board 
members  will  combine  to  provide  guidelines  for  prison  terms. 

The  judiciary  will  decide  whether  or  not  to  impose  a  prison  sentence 
and  if  so,  its  maximum  length.  The  parole  board,  a  small  full-time 
body,  which  like  the  Federal  Parole  Commission,  is  already  using 
guidelines,  will  set  the  actual  prison  term. 

Moreover,  to  provide  determinancy  and  reduce  uncertainty,  the  Ore- 
gon Parole  Board  will  be  required  by  law — as  it  already  does  by  ad- 
ministrative rule — to  tell  the  prisoner  within  6  months  of  commit- 
ment of  his  presumptive  release  date — contingent  upon  good  conduct. 

The  second  primary  function  of  the  Parole  Commission  under  pres- 
ent statutes  relates  to  the  sanctioning  of  institutional  disciplinary  in- 
fractions and  thus,  to  the  maintenance  of  institutional  order. 

In  1976  the  Congress  stated : 

It  is  the  infoiit  of  the  Conferees  that  the  Parole  rommission  reach  a  jxid?- 
meiit  on  the  institutional  behavior  of  each  prospective  parolee.  It  is  the  view  of 
the  Conferees  that  understanfling  by  the  prisoner  of  the  importance  of  his  institu- 
tional behavior  is  crucial  to  the  maintenance  of  safe  and  orderly  prisons. 

It  would  appear  that  this  function  would  become  even  more  critical 
with  the  proposed  elimination  of  good  time  in  S.  14;i7.  Although  it  has 
been  suggested  by  Mr.  Carlson  that  restriction  of  internal  ])iivileges, 
combined  with  good  time  loss  of  10  percent  of  the  total  sentence  would 
l^e  insufficient  to  maintain  institutional  order,  this  has  not  been  empiri- 
cally tested. 

Moreover,  it  must  be  recognized  that  elimination  of  the  Parole  Com- 
mission from  this  task  would  simply  transfer  the  power  from  a  limited 
number  of  specialized  decisionmakers  to  numerous  disciplinary  com- 
mittees in  38  Federal  institutions,  plus  numerous  additional  com- 
numity  treatment  centers  and  State  contract  facilities. 

The  U.S.  Parole  Commission's  experience  in  observing  Bureau  of 
Prison  disciplinary  actions  and  good  time  allocation  in  the  course  of 
parole  hearings,  unfortunately,  has  pointed  up  considerable  disparities 


9027 

from  institution  to  institution.  The  type  of  institution  and  philosophy 
of  the  warden  heading  it  seems  to  be  a  significant  factor  in  determining 
whether  a  certain  action  is  disciplined  or  good  time  lost. 

Even  if  all  prisoners  within  an  institution  are  treated  similarly,  the 
difference  between  institutions  is  too  great  to  permit  a  retuim  to  the 
pre-Parole  Board  days  when  the  Bureau  and  its  wardens  totally  deter- 
mined who  was  paroled  and  when.  It  is  to  be  remembered  that  disparity 
is  not  related  solely  to  the  matter  of  sentence  length,  but  if  left  vin- 
checked  can  affect  any  criminal  justice  decision. 

Moreover,  it  might  be  recalled  that  in  1930,  all  parole  decisionmak- 
ing, which  had  previously  been  under  institutional  control,  was  re- 
moved to  a  small  full-time  decisionmaking  body,  such  as  the  Paroki 
Board,  partially  to  correct  such  problems  and  to  reduce  the  possibility 
that  prior  release,  by  whatever  method  it  is  called,  parole  or  good  time, 
would  be  tied  too  closely  to  institutional  considerations  or  institutiontil 
needs. 

Under  any  system,  from  time  to  time,  powers  which  may  be  placed 
under  the  general  heading  of  clemency  need  to  be  exercised.  For  exam- 
ple, serious  medical  problems  such  as  terminal  cancer  or  heart  disease; 
exceptional  meritorious  acts  within  the  institution ;  or  even  changes  of 
public  perception  of  offenses  may  require  such  action — reduced  per- 
cei)tion  of  the  seriousness  of  marihuana  offenses. 

Again,  the  Parole  Commission  provides  an  efficient  vehicle  for  the 
required  exercise  of  this  discretion.  For  example,  when  the  Congress 
repealed  the  mandatory  sentencing  provisions  of  the  Harrison  Nar- 
cotics Act,  the  approximately  600  cases  were  efficiently  processed.  Cost 
of  transportation  alone  for  resentencing  would  have  been  extremelj 
high,  not  to  mention  judicial  time  involved. 

In  the  other  situations  mentioned,  the  remedy  of  pardon  as  a  practi- 
cal matter  would  often  be  overly  cumbersome  or  time  consuming. 

As  with  disciplinary  infractions,  merely  turning  the  function  over  to 
individual  institutional  officials  would  not  likely  result  in  uniform  and 
consistent  policy  as  provided  by  a  more  specialized  body. 

S.  1437  provides  in  the  proposed  18  U.S.C.  2303  that  a' sentence  of  a 
term  of  imprisonment,  in  the  case  of  a  felony  or  a  class  A  misdemeanor 
carrys  an  automatic  post-sentence  parole  term.  These  terms  of  post- 
sentence  parole  are  fixed  under  the  proposed  18  U.S.C.  383-4 (b)  and  I 
assume  are  to  follow  the  expiration  of  the  service  of  the  regular  sen- 
tence imposed. 

Obviously,  somebody  must  undertake  this  function.  If  the  Parole 
Board  was  abolished  and  the  court  fixed  the  post-parole  term,  who 
would  supervise  the  parolee?  Who  is  to  make  the  determination  if  a 
condition  of  parole  is  violated?  Who  is  to  make  the  decision  of  what 
to  do  with  the  parolee  if  it  is  found  that  the  parole  has  been  violated? 

The  IT.S.  Parole  Commission,  in  the  period  from  October  1975  to 
September  1976,  conducted  1,560  institutional  parole  revocation  hear- 
ings and  256  local  revocation  hearings,  as  well  as  made  equal  numbers 
of  decisions  relating  to  warrant  issuance  and  findings  of  probable 
cause. 

Absent  a  parole  commission,  this  would  simply  be  much  more  work 
for  overburdened  district  courts  and  courts  of  appeal  judges. 

In  summary,  we  believe  that  retention  of  the  parole  board — a  small 
collegial  body  of  decisionmakers  which  votes  in  panels — sucli  as  the 


9028 

seiitoncing  jianels  Avliicli  liavo  for  ?o  long  been  advocated  but  rarely 
implemented,  and  devotes  full  time  to  these  specialized  tasks  is  essen- 
tial to  accomplish  the  primary  aim  of  this  legislative  reform:  That 
of  providing  ecjuitable  and  just  prison  terms. 
/■Specifically,  we  believe  that: 

1.  The  Parole  Commission  should  be  specifically  authorized  by 
statute  to  tell  the  prisoner  early  in  his  term  of  a  pre^^umptive  release 
date,  contingent  upon  good  conduct : 

2.  That  the  period  of  permissible  parole  ineligibility — of  up  to 
00  ])ercent — specified  in  S.  1437  shovdd  be  substantially  reduced.  Judge 
Lasker  in  his  testimony  has  suggested  retaining  the  present  33.3  ])er- 
cent — one -third ; 

3.  That  until  substantial  experience  with  the  Sentencing  Com- 
mission is  developed,  the  Parole  Connnission  should  retain  the  power 
to  establish  its  own  regulations  and  guidelines,  but  as  Judge  Lasker 
suggested,  the  legislation  shoidd  specify  that  the  Parole  and  Sentenc- 
ing Commissions  should  coordinate  their  activities:  and 

4.  Xow  is  the  appropriate  time  for  the  President,  Atiorney  General, 
and  the  Congress  to  call  for  a  Third  Xational  Conference  on  Parole. 

T  might  add  that  we  have  a  number  of  additional  suggestions  of  a 
more  technical  nature  and  I  would  ask  that  we  be  granted  permission 
to  submit  them  separately  subsequent  to  this  meeting. 

Senator  Kkxxedv.  AVithout  objection,  that  will  be  inserted  in  the 
recoi'd. 

]Nrr.  Crawford.  This  concludes  my  formal  statement.  On  behalf  of 
the  Commissioners  on  the  T".S.  I^nrolo  Commission.  T  wi^h  to  thaidv  ynu 
for  this  o]:)portunity  to  appear  before  tlie  subconunittee  and  })resent 
the  Commission's  vie"',vs. 

T  should  be  happy  to  answer  any  questions  you  mioht  have. 

Senator  KF,xxT:i>r.  T  thiTik  that  has  ]>een  hel]rfu1.  ^Xc  will  get  a 
chance  to  examine  your  statement  in  detail.  I  think  yon  have  made  in- 
teresting points  here  which  we  will  have  to  examine  and  review.  We 
Avill  hear  other  comments  but  it  is  useful  and  helpful  testimon}'.  We 
iivo  V(>ry  grateful. 

We  thank  you  very  nmch. 

[The  following  letter  from  Commissioner  Dorothy  Parker  was  sub- 
sequently received :] 

U.S.  Department  of  .Tusttce. 

T^.S.  Parole  Commission, 
Washington,  B.C.  June  20, 1977. 
Hon.  EnwARo  ]M.  Kennedy, 
r.Sl.  S!cnate, 
Wnt'hhiriiori.  D.r..  June  201077. 

Dear  Senator  Kexnedy:  As  suc;jip.'<t(Ml  liy  yon  ;it  today's  lioaiMnss  on  (ho  son- 
tonfins  i)rovisi()ns  of  S.  14.S7.  bofore  the  Snhconnnittee  on  Criminal  Laws  and 
Procednros,  Avhich  yon  chaired.  T  an\  snhniitlinii  my  i)orsonal  views  on  tlie  suh- 
.i'M-t.  Tliese  are  solely  mv  views  and  are  not  t<>  he  deemed  those  of  my  fellow- 
Commissioners   on   the   U.S.    Parole   Commission   nor  of  anyone  else. 

Xoiiethless.  hased  on  my  over  2.")  years  of  exi)erienc'e  in  the  private  prnotiee 
of  the  law  i)lns  my  five  years  with  tlie  Office  of  Le.cal  Counsel.  Dejiartment  of 
IlfaKIi.  Udncation.  and  Welfare:  my  six  and  (Mie-lia!f  years  of  work  on  the  ITill 
witli  Die  Senate  .Indicinry  CcmmiKee  and  my  ei;,dit  months  of  exiuM-ience  servinji 
as  the  only  member  of  the  T'.S.  Parole  Commis.sion  eonfirmed  nnder  the  Parole 
Commission  and  Reoi-franization  Act  (P.Iy.  !)-4-2:i3).  T  apnreciate  this  opportnnity 
to  voice  certain  snuu^estions  for  consideration  by  this  Snbcommittee  in  connec- 
tion with  one  of  the  most  important,  if  not  the  most  important,  aspect  of  the 


9029 

criminal  justice  process — the  imposition  of  sentence  and  ttie  method  of  selection 
of  the  type  of  sentence  to  be  imposed,  by  whom  and  upon  what  conditions  and 
based  on  what  considerations. 

The  basic  philosophical  different  I  voiced  today  which  made  it  impossible  for 
me  to  support  the  views  of  the  majority  of  the  Commissioners  on  the  U.S.  Parole 
Commission  is  based  on  the  difference  in  concept  of  the  basis  for  determining 
incarcerated  time  to  be  served — i.e. :  is  it  a  judicial  or  executive  function  which 
the  U.S.  Parole  Commission  perf oi-uis V  My  colleagues  contend  the  function  is 
executive  in  nature  ;  I  contend  it  is  judicial. 

Based  upon  the  historical  concept  of  parole,  my  colleagues,  George  Reed  and 
AVilliam  Amos  ^  in  an  article  in  Federal  I'rohation,  1972.  pp.  10-18  entitled: 
''Improved  Parole  Decision-Making"  supported  the  interpretation  that  "parole  is 
a  matter  of  'grace'  and  not  of  'right'  "  and  that  parole  decision-making  is  "to 
the  end  that  (a)  the  (Parole)  Board  will  release  from  prison  inmates  who  Jiave 
arrived  at  the  psychologically  riglit  period  of  maturation  to  be  able  to  make  a 
satisfactory  comnuuiity  adjustment  under  parole  supervision  and  that  (b)  the 
Board  will  better  protect  society  by  continuing  to  provide  institutionalized  treat- 
ment for  the  inmate  who  is  not  yet  ready  even  under  supervision  to  provide 
self-direction  in  an  open  society."  (at  p.  17). 

The  presentation  for  this  Subcommittee  argues  the  "history"  of  parole  and 
that  the  U.S.  Parole  Commission's  function  under  the  Parole  Commission  and 
Reorganization  Act  is  executive  in  nature.  That  conclusion  is  only  possible  if 
the  time  of  incarceration  is  determined  upon  the  basis  of  the  executive-sovereign's 
determination  that  the  person  involved  is  "rehabilitated"  and  therefore  that  as 
a  nuitter  of  the  sovereign's  "grace"  he  should  be  released. 

It  is  my  contention  that  in  fact  under  the  Parole  Couunission  and  Reorganiza- 
tion Act  which  became  effective  May  14,  1976,  the  Congress  converted  the  U.S. 
Parole  Commission  into  an  agency  mandated  to  fix  the  time  of  incarceration  to 
be  served  by  federal  prisoners  based  upon  the  "nature  and  circumstances  of 
the  offense  and  the  liistory  and  characteristics  of  the  prisoner"  (as  enunciated 
in  IS  U.S.C.  420(j(a)).  This,  I  suggest,  is  part  of  the  judicial  sentence  iixing 
function  and  rightly  is  a  jurlicial  function.  Hence,  the  U.S.  Parole  Commission 
belongs  in  the  .Tudicial  branch  of  the  government,  not  the  Executive. 

In  my  opinion,  neither  I  nor  anyone  under  the  present  state  of  the  art  has 
the  prescience  to  determine  when  a  prisoner  is  "rehabilitated"  so  as  to  be  I'e- 
leased  to  the  community.  In  recognition  of  this  fact,  nowhere  in  the  Parole 
Commission  and  Reorganization  Act  is  there  mention  of  this  concept  of  rehabili- 
tation as  a  basis  for  prisoner  release.  To  introduce  the  concept,  I  contend,  flies  in 
the  face  of  the  Congressional  mandate  expressed  in  the  Parole  Commission 
and  Reorganization  Act,  P.L.  !)4-233.  and  the  Congressional  intention  expressed 
in  the  Act  and  throughout  its  legislative  history.  See  Conference  Report,  S. 
Report  No.  94-(M8,  wherein  it  is  stated,  at  p.  26 :  "The  parole-decision  makers 
nnjst  weigh  the  concepts  of  general  and  special  deterrence,  retribution  and  pun- 
ishment"— They  talk  of  "fairness"  and  "just  puni.shment,"  not  of  rehal)ilitation 
of  the  offender. 

Eligibility  for  "parole"  under  the  Parole  Commission  and  Reorganization  Act 
is  based  on  "the  nature  and  circumstances  of  the  offense  and  the  history  and 
characteristics  of  the  prisoner''  and  is  granted  solely  when  "release  would  not 
depreciate  the  seriousness  of  the  offense  or  promote  disrespect  for  law"  ;  and 
when  "release  would  not  jeopardize  the  public  welfare"  ;  (18  U.S.C.  4206(a)  (1) 
and  (2) — and,  nowhere  is  there  mention  of  when  the  pi'isoner  is  "rehabilitated." 
As  pointed  out  in  84  Yale  Law  Journal,  810,  814:  "Although  parole  release 
decisions  have  been  regarded  as  virtually  autonomous  from  sentencing  per  se, 
parole  is  an  integral  part  of  the  sentencing  and  correctional  process."  (Footnote 
omitted). 

Accordingly,  I  suggest  that  the  U.S.  Parole  Commission,  as  a  sentencing  body, 
should  be  renamed,  taken  out  of  the  Department  of  Justice,  and  made  a  part  of 
the  Judicial  Branch  of  the  United  States  Government  in  recognition  of  the  fact 
that  it  no  longer  performs  an  executive  or  at  best  quasi-judicial  functions,  but 
in  and  sliould  be  an  integral  part  of  the  judicial  sentencing  process. 

1  Mr.  Reed  is  npnring  his  20tli  year  as  a  member  of  the  Parole  Board  and  as  a  Commis- 
sioner on  the  TT.S.  Parole  Commission.  Dr.  Amos  is  serving  his  second  term  as  a  member 
of  the  Parole  Board  and  as  a  Commissioner  on  the  U.S.  Parole  Commission. 


9030 

A.    SUGGESTED    OriDELIXE    STSTEM    FOR    S.    14  07 

For  reasons  which  will  be  presently  shown,  the  United  States  Sentencing 
Commission  to  be  set  up  under  Sec.  241  of  S.  1437  to  add  Chapter  58,  28  U.S.C. 
991,  et  seq.,  should,  with  the  assistance  of  expert  staff  and  consultants  who  have 
varied  disciplines,  develop  guidelines  for  U.S.  District  Court  Judges  to  apply  in 
determining  what  penalty  shall  follow  conviction  of  a  federal  offense. 

Bi-oadly  viewed  guidelines  for  use  by  Federal  Judges  should  be  developed  by 
the  Sentencing  Commission.  These  guidelines  should  set  forth  according  to  spe- 
cific standards  whether  in  a  particular  type  of  case  and  for  a  particular  kind 
of  offender  the  punishment  most  likely  to  be  effective  is  to  be  a  fine  and,  if  so, 
how  much ;  a  term  of  probation  and,  if  so,  for  how  long  and  subject  to  what 
conditions ;  an  order  of  restitution  and,  if  so.  on  what  notice,  in  what  amount 
and  to  whom  payable:  imprisonment  and,  if  so,  the  reasons  thei'efor  and  if  the 
Judge  so  desires  the  suggested  time  he  deems  appropriate  for  the  defendant  to 
serve  in  incarceration :   or  any  combination  thereof. 

It  cannot  be  denied  that  one  thing  that  is  radically  wrong  with  the  present 
sentence  fixing  adjustments  by  the  U.S.  Parole  Commission  is  that  there  is  not 
adequate  control  over  the  sentencing  process  before  it  reaches  the  Commission. 

As  Mr.  Pierce  O'Donnell  pointed  out  in  his  testimony  before  this  Subcom- 
mittee on  June  8, 1977  : 

"The  most  conspicuous  and  disconcerting  disparity,  Mr.  Chairman,  occurs  when 
one  person  receives  a  prison  sentence  and  another  person  committing  the  same 
crime  and  who  we  would  consider  to  be  similar  in  virtually  all  respects  is  placed 
on  probation."  (Testimony  Transcript,  June  8, 1977,  at  p.  44). 

The  guideline  system  envisioned  for  determination  of  the  type  of  sentence  to 
be  imposed  would  radically  reduce  if  not  eliminate  this  tyi>e  of  dissimilarity  in 
sentence.  Then,  if  such  broadly  viewed  guidelines  outlined  above  wlien  apjilied 
by  the  U.S.  District  Court  Judges  result  in  a  judgment  that  imprisonment  would 
be  the  fairest  punishment,  the  Judge  would  fix  the  statutory  sentence.  There- 
after, the  U.S.  Parole  Commission,  under  whatever  name  it  is  to  be  given,  could 
apply  its  even-handedness  predicated  upon  the  expertise  developed  over  the  past 
five  years  by  applying  its  different,  supplemental  and  si>ecific  guidelines  to  de- 
termine, within  the  first  120  days  or  preferably  within  00-90  days  after  incar- 
ceration, the  presumptive  term  that  would  have  to  be  served  in  a  particular 
case  and  the  reasons  therefor,  whether  within  the  guidelines  or  above  or  below 
the  guidelines.  Of  course,  the  rights  of  appeal  now  available  under  the  Parole 
Commission  regulations  to  the  Regional  (Commissioner  for  reconsideration  and 
to  the  National  Api>eals  Board  would  and  should  remain  available  under  such 
system. 

Obviously,  both  the  Judicial  Sentencing  Commission  and  the  Parole  Sentence- 
Fixing  (Commission  or  Commission  on  Federal  Incarceration,  as  I  i)refer  to  call 
it,  should  work  very  closely  in  coordinating  guidelines.  Both  guidelines,  I  am 
earnestly  convincetl.  should  be  subject  to  the  Administrative  Procedures  Act  in 
their  promulgation  and  further  subject  to  the  Congressional  review  contemplated 
under  the  proposed  Sec.  994  (g)  amendment  to  Chapter  58,  Title  28,  U.S.  Code. 

B.    ADVANTAGES    OF   ITSE   OF    S^fAI  I,    COLI.EGI.M.    BODY   VERSUS    U.S.    DISTRICT    COURT 
JUDGES    IN    FIXING   TIME    OF    INCARCERATION 

The  U.S.  Parole  Commission,  as  you  are  well  aware,  was  the  first  agency  to 
implement  a  guideline  .system  for  the  determination  of  the  range  of  time  to  be 
.served  for  a  particular  offense  behavior  based  on  the  characteristics  of  the  of- 
fender. Deviations  from  the  gui<1eliiies  both  above  and  below  the  range,  of  course, 
occur  for  good  cause,  with  written  reasons  given  in  general  terms  for  decisions 
within  the  guidelines  and  should  be  given  with  specificity  if  the  decision  is  to 
go  over  or  below  the  guideline  range. 

The  guideline's  were  developed  iiy  a  team  of  researchers  in  the  field  of  criminol- 
ogy and  related  areas  and  were  first  tried  on  an  experimental  basis  in  1972. 
The  concept  of  a  guideline  model  as  thus  develoiKMl  was  incorporated  into  P.].. 
94-238  in  18  TT.S.(^.  420;{(a)  (1)  wherein  the  Conunission  w.as  exi>ressly  author- 
ized to  "promulgate  rules  and  regulations  establishing  guidelines  for  the  powers 
enumerated  .  .  .  and  such  other  rules  and  regulatiojis  as  are  nece.s.sary  to  carry 
out  a  national  parole  policy  and  the  purposes  of  this  chapter.  .  .  ."  And^  the 
enumerated  powers  of  the  Commis.sion  include  the  power  to — 


9031 

"(1)  grant  or  deny  an  application  or  recommendation  to  parole  any  eligible 
prisoner ; 

"(2)  impose  reasonable  conditions  on  an  order  granting  parole  ; 

"(3)  modify  or  revoke  an  order  paroling  any  eligible  prisoner  ;  and 

"(4)  recpiest  probation  officers  and  other  individnals,  organizations,  and  pnblic 
or  private  agencies  to  perform  such  duties  with  respect  to  any  paroles  as  the 
Commission  deems  necessary  for  maintaining  proper  supervision  of  and  as- 
sistance to  such  parolees  ;"  *  *  *  (18  V.H.C.  4203(b)  ). 

Since  the  first  pilot  project  nearly  five  years  ago,  parole  release  guidelines 
have  been  applied  to  nearly  40,000  Federal  prisoners  by  the  Commission's  36 
Hearing  Examiners  and  Commissioners,  as  well  as  previous  Parole  Board  Mem- 
bers. Rehearings  are  mandated  after  IN  months  and  24  montlis  under  the  Parole 
Commission  and  Reorganization  Act  depending  on  whether  the  sentence  is  less 
than  or  more  than  7  years  and  also  rehearings  occur  more  frequently  if  release 
is  likely  in  the  interim. 

1.  Criteria  for  guidelines 

The  guideline  considerations  used  by  the  Parole  Commission  and  its  precursor, 
the  Parole  Board,  are  quite  similar  to  those  set  forth  in  Section  241  of  S.  1437 
as  an  amendment  to  28  U.S.  Code,  Chapter  f>8.  Sec.  994.  Similar  guideline  con- 
siderations would  be  the  basis  upon  which  the  proposed  Sentencing  Commission 
would  formulate  guidelines  for  probation,  fine,  imprisonment  and  parole  ineligi- 
bility and  for  general  policy  statements  regarding  application  of  the  guidelines 
or  anv  other  aspect  of  sentencing  that  would  further  the  purposes  set  forth  in 
18  U.S.C.  101  (b) .  These  purposes  as  set  forth  in  S.  1437  are  : 

"(1>)  Prescribing  appropriate  sanctions  for  engaging  in  such  conduct  that  will : 

"  (1)  Deter  such  conduct ; 

"(2)  Protect  the  public  from  persons  who  engage  in  such  conduct; 

"  (3)  Assure  just  punishment  for  such  conduct : 

"(4)  Prcmiote  the  correction  and  rehabilitation  of  persons  who  engage  in  such 
conduct,  *  *  *" 

The  U.S.  Parole  Commission  based  on  its  considerable  practical  experience 
with  such  guideline  concept  can  attest  to  both  its  strengths  and  limitations.  Sec. 
994  (c)  and  (d)  considerations  should  be  the  basis  for  determination  of  time 
to  be  served.  More  generalized  guidelines  should  determine  imposition  of  a  jirison 
term.  The  implementation  as  well  as  the  formulations  of  the  guidelines  requires 
constant  oversight  in  order  to  mak<»  the  guidelines  function  properly  and  achieves 
the  ends  for  which  they  were  designed. 

For  example:  (1)  S.  1437  and  the  U.S.  Parole  Commission  guidelines  agree 
that  "family  ties  and  responsibilities"  have  great  predictive  value  as  a  factor 
in  predicting  success  on  release.  However,  the  Commissioners  working  with  the 
guidelines  soon  discovered  that  meretricious  relationships  were  springing  up  in 
almost  every  case.  Family  ties  were  predictive,  but  too  subject  to  manii>ulation 
to  be  reliable,  so  this  factor  was  eliminated  from  the  salient  factor  score  of  the 
guidelines. 

(2)  S.  1437  and  the  U.S.  Parole  Commission  guidelines  agree  that  the  defend- 
ant's "education"  is  a  valid  predictive  factor  in  successful  releases.  Numerous 
complaints  came  from  low  income  minority  prisoners  that  it  was  discriminatory 
to  deny  them  a  point  on  their  salient  factor  score  because  they  had  had  to  go  to 
work  at  an  early  age  and  had  no  high  school  or  college  education.  This  appear- 
ance of  unfairness  was  deemed  by  the  Commissioners  to  be  detrimental  and 
this  item  was  deleted,  although  it  was  a  valid  predictive  factor  for  success  on 
parole. 

The  statute  should  not  freeze  in  items  for  inclusion  in  guidelines — and  even 
more  importantly,  only  a  closely  knit  body  such  as  the  Commissioners  on  tlie 
Incarceration  Commission  could  become  aware  of  needed  changes  in  guidelines, 
regardless  of  the  predictive  value  of  a  particular  item  on  the  guideline's  statutorv 
laundry  list. 

Almost  400  U.S.  District  Court  Judges  working  with  guidelines  when  they  try  a 
criminal  case  and  imposing  an  average  of  30  prison  terms  a  year  will  not  be  in  a 
position  to  catch  these  "flaws"  in  the  guidelines,  let  alone  call  them  to  the  atten- 
tion of  a  Sentencing  Commission  rapidly  enough  to  make  timely  changes,  whicli 
then  have  to  be  disjiersed  to  all  398  or  more  U.S.  District  Court  Judges  and  the 
new  guidelines  then  uniformly  implemented  by  this  large  body  of  U.S.  District 
Court  Judges. 

95-465 — 77 .30 


9032 

2.  Application  of  guidelines  and  discrepancy  in  punishment 

The  U.S.  Parole  Commission  experience  in  having  3G  Hearing  Examiners  and 
S  Commissioners  (tliere  has  never  l)een  a  full  complement  of  Commissioners) 
applying  the  guidelines  has  clearly  shown  that,  in  order  to  get  uniformity 
in  application,  constant  training  and  retraining  and  consistent  supervision 
are  absolutely  indispensible. 

It  must  he  obvious  that  unless  the  Sentencing  Commission  in  discharging  its 
obligations  imder  S.  1437  goes  to  a  determinate  sentence  for  each  degree  of  each 
criminal  offense,  with  specific  add-ons  for  specific  multiple  offenses  an  impossible 
criminal  offense,  with  si>ecific  add-ons  for  specific  multiple  offenses — an  impos- 
sible combination  and  permutation — much  must  be  left  to  the  discretion  of  the 
person  applying  the  guidelines. 

Judges'  time  and  frjiining  are  too  valuable  to  be  diverted  to  any  mechaniral 
computation  of  guidelines  to  fix  specific  individual  sentences.  Absent  such 
specificity  in  guidelines,  898  U.S.  District  Court  Judges  cannot  be  so  trained 
and  sui>ervi.sed  as  can  less  than  40  Hearing  Examiners,  whose  recommendations 
are  subject  to  review  l)y  the  Regional  Administrative  Hearing  Examiner  and  tiie 
Regional  Commissioner  and  further  subject  to  reconsideration  by  the  Regional 
Commissioner  and  to  review  on  appeal  by  the  prisoner  by  the  Connnissioners 
constituting  the  three-member  National  Appeals  Boards.  It  is  only  such  closely 
knit,  constantly  supervised  and  consistently  applied  guidelines  by  the  newly 
named  Commission  on  Federal  Incarcerations  which  will  result  in  gi'eater  uni- 
formity in  decisions. 

Discrepanc.v  in  sentence  and  fairness  in  sentencing  will  not  and  cannot,  in  my 
opinion,  be  solved  by  realistic  guidelines  applie<l  by  approximately  400  independ- 
ent U.S.  District  Court  Judges,  each  appointed  for  life,  even  with  a  statement  of 
the  reasons  for  the  sentence  and  with  an  Api>ellate  Court  review  under  the 
proposed  amendment  of  S.  1437  to  18  U.S.C.  3725  or  the  proposed  amendment  to 
Rule  35A  of  the  Rules  of  Criminal  Procedure. 

Of  course,  the  price  of  pi*oi)er  application  of  the  guidelines  by  a  small  body, 
which  I  call  the  Commission  on  Federal  Incarceration  rather  than  the  Parole 
Commission,  to  be  sure  of  compliance  with  Congressional  intent  is  constant 
and  close  oversight  of  such  Commission.  With  such  oversight  it  would  be  possible 
not  only  to  assure  the  proper  implementation  of  the  statute  but  since  the  appoint- 
ment of  Commissionei-s  is  subject  to  Senate  advice  and  consent,  and  tliey  are 
limited  by  statute  to  a  maximum  of  two  six-year  terms,  it  would  be  possil)le  fen- 
the  Senate  to  assure  itself  that  each  Commhssioner  is  carrying  out  his  function 
fully  and  in  accordance  with  the  statutory  intent.  Such  control  over  judges 
ai)pointed  for  life  is  not  possible  and  might  be,  in  my  opinion,  unwarranted  in  the 
exercise  of  their  other  judicial  functions. 

3.  Recognised  need  for  fixing  of  prison  /c/v^.s'  hi/  sjikiH  hodi/  on  fiiU-litiiv  Jxisia 
Judge  Tyler,  Judge  Webster.  Judge  Uasker,  Judge  Frankel,  Dean  Gottfredson, 
Professor  Schwartz  and  Professor  \'on  Hirsli  all  have  testified  that  abolition  of 
the  I'aroU'  Conunission  nt  this  time  would  not  be  wise. 

Recent  Oregon  legisbition.  foHowing  the  model  s(>t  by  the  U.S.  Parole  Com- 
mis.sion,  specifically  provides  for  the  setting  of  parole  guidelines  by  a  Council 
on  Prison  Terms  consisting  of  .1  members  of  the  Parole  Hoard.  "»  (^ircuit  Court 
Judges  and  Legal  Counsel  to  the  (Governor.  Within  six  months  of  incarceration, 
tin-  State  I'.oard  of  Parole  is  to  set  the  date  for  release  on  ])!irol(>.  based  on  the 
guidelines  and  considering  aggravating  and  mitigatimr  circumstances  and  other 
factors.  This  date  can  be  within  or  without  the  guidelines  for  good  cau.se  pro- 
vided the  reasons  therefor  are  stated  in  writing.  A  final  interview  is  had  prior 
to  release  to  review  the  release  plan,  the  i)sy(  hiatric  report,  if  any.  and  the 
record  during  confinement,  witli  a  .">  month  postponement  if  the  parole  pl.-in  is 
not  adet|unte. 

So,  despite  the  present  trend  to  downgrade  or  eliminate  rehabilitation  ns  a 
goal  of  imi)risonment,  many  states,  many  criminal  justice  experts,  including 
some  who  heretofore  urged  abolition  of  tlie  Parole  Coniniission.  now  recognize 
the  need  for  sentence-term  fixing  by  a  small,  colleirial  body.  Iiased  on  guidelines — 
the  prototype  of  which  is  and  has  always  been  the  U.S.  Parole  Connnissicn. 

Jf.  Commission  ns  hiiffer  proinding  justice  and  flcxibiliti/ 

Public  ojiinion.  most  legislatures  and  many  criminologists  cnll  for  long  stat- 
utory terms  of  imiJrisonment  for  purposes  of  punishment  and  deterrence  as  well 


9033 

as  a  means  of  satisfying  the  community  need  for  a  "get-tough"  policy  on  crimi- 
nals. Yet,  almost  all,  if  not  all,  experts  feel  that  certainty  of  punishment  rather 
than  length  of  period  of  incarceration  would  serve  as  a  better  deterrent  to  crime 
and  thus  afford  greater  protection  to  the  public.  Furthermore,  it  is  frequently 
argued  tiiat  rehabilitation  of  the  criminal  might  better  be  achieved  outside  the 
prison  system,  liius,  justice  can  best  be  achieved  by  long  statutory  prison  terms 
being  set,  long  maximum  terms  being  set  by  a  judge  when  his  guidelines  call 
for  incarceration  and  tlie  Commission  on  Federal  Incarceration  (now  tlie  U.H. 
I'arole  Commission^,  based  on  guidelines  and  taking  into  consideration  tlie  of- 
fender and  his  background,  the  offense  behavior  and  aggravating  or  mitigating 
circumstances,  determining  the  time  to  be  served  which  is  fair  under  all  the  cir- 
cumstances, with  tlie  type  of  uniformity  in  time  to  be  served  achievable  only 
,by  a  small  body  of  full-time  "experts"'  in  sentencing. 

Furtiiermore,  present  law  recognizes  that  sentences  imposed  by  a  judge,  who 
lives  in  the  comnuiuity,  immediately  after  the  heat  of  a  trial  are  not  necessar- 
ily the  optimum  sentences,  affected  as  they  are  by  community  and  emotional 
pressures.  18  U.S.C.  4205(b)  (2)  sentences  now  permit  a  judge  to  impose  a  long 
si'iiteiue — for  public  mtiUihcation — with  the  U.S.  Parole  Commission,  away  from 
the  glare  of  the  press  and  the  emotions  of  the  community  being  empowered  to 
more  even-handeiUy  assess  the  offender,  his  offense  behavior  and  the  circum- 
stances and,  applying  the  sentencing  guidelines  now  set  forth  in  28  C.F.R.  2.20. 
.to  tix  the  time  to  be  served.  As  tliis  could  be  done  within  the  tirst  60-90  days 
ct  incarceration,  certainty  in  sentence  and  greater  fairness  to  all  parties  could 
be  aciiieved. 

K.  14;i7  has  no  provision  for  any  such  "cooling  off"  period.  Immediately  after 
trial,  sentence  would  follow,  according  to  guidelines,  with  a  parole  ineligibility 
flf  up  to  90%  a  possibility.  Emotion  rather  than  reason  could  well  he  the  basis 
of  sentence,  with  fairness  to  the  defendant  and  the  calmer  and  better  judgment 
of  the  community  after  a  cooling-off"  period  being  ignored. 

All  too  frequently,  after  a  trial  for  a  crime  such  as  bank  fraud,  the  comuiu- 
iiity  clamors  for  long  term  imprisonment  of  "the  culprit."  Within  a  few  months 
and  usually  by  the  time  the  prisoner  is  scheduled  for  his  initial  (b)  (2)  parole 
hearing,  the  community  has  reverted  to  its  old-time  appraisal  of  the  individual. 
\\h()  up  until  the  time  of  the  crime  had  been  a  pillar  of  suciety  and  the  church 
but  who  yielded  to  certain  pressures,  and  the  Parole  Commission  files  I  have 
noted  are  tilled  with  letters  and  petitions  urging  his  early,  if  not  immediate, 
release  as  by  then  the  community  has  cooled  down  and,  realizing  he  is  never 
going  to  commit  another  offense,  ceases  to  call  for  its  pound  of  flesh. 

Under  the  dictates  of  S.  1437  nothing  could  be  done  to  effectuate  the  new 
community  sense  of  justice.  The  Commission  on  Federal  Incarceration  on  the 
other  hand,  as  does  the  U.S.  Parole  Commission,  could  fix  the  prison  term  based 
on  its  guidelines,  absent  emotion. 

Another  situation  arises  when  an  offense  behavior  is  no  longer  considered  by 
the  community  to  be  as  severe  as  it  was  at  the  time  of  sentencing.  For  example, 
when  Congress  repealed  the  mandatory  sentencing  provisions  of  the  Harrison 
Narcotic  Act,  the  000  or  so  persons  serving  such  mandatory  terms  were  given 
he;irings  and  eftieiently  processed  by  the  I'.S.   Parole  Commission. 

Similarly,  under  the  S.  1487  proposal  to  decriminalize  for  Federal  purposes 
the  possession  of  under  10  grams  of  marihuana,  an  offender  serving  a  long  term 
for  such  offense  could  have  his  sentence  reduced  at  his  next  parole  hearing, 
under  new  guidelines.  However,  even  if  Section  1813 (a)  of  S.  1437  were  to 
be  enacted,  no  such  flexibility  would  exist  absent  a  Commission  on  Federal 
Incarceration. 

AVhile  Section  2302(c)(1)  does  provide  for  court  modification  of  a  term  of 
imprisonment  upon  motion  of  the  Director  of  the  Bureau  of  Prisons  for  "extraor- 
dinary and  compelling  reasons,"  that  is  not  an-as-easily  available  remedy  and 
at  best  would  further  liurden  over-burdened  courts  with  more  cases. 

Nor  is  a  i)ardon  the  answer  to  either  changes  in  law  or  in  circumstances.  This 
remedy  is  too  long  drawn  out.  The  average  case  takes  well  over  a  year  for  con- 
sideration by  the  Pardon  Attorney  and  requires  Presidential  action — a  much  too 
cumbersome  procedure  to  remedy  emergency  situations  or  where  the  concept  of 
th"  severity  of  a  crime  has  changed. 

Neither  alternate  remedy  to  Commission  action  is  a  better  answer  to  the  need 
fir  flexibility  in  sentence  should  an  emergency  situation,  such  as  the  prisoner's 
health  warranting  release,  etc.,  require  humanitarian  action. 


9034 

Only  a  Commission  on  Federal  Incarceration  in  its  application  of  it.s  frequently- 
reviewed,  reconsidered  and  revised  guidelines  could  meet  these  needs  for  fair- 
Jiess  and  justice  in  time  served  by  an  individual. 

5.  Commission  on  Federal  incarceration  vs.  Bureau  of  Prisons  good  time 

S.  1437  rightly  does  not  provide  for  good  time.  The  U.S.  Parole  Commission's 
experience  in  reviewing  Bureau  of  Prison  disciplinary  actions  and  good  time 
allocation  in  the  course  of  parole  hearings,  unfortunately,  has  pointed  up  wide 
discrepancies  in  the  Bureau's  revocation  of  good  time  and  in  disciplinary  \\ro- 
ceedings  available  in  each  institution.  The  type  of  institution  and  philosophy  of 
the  warden  heading  each  institution  seem  to  be  the  governing  factors  in  deter- 
mining whetlier  a  certain  action  is  disciplined  and  good  time  lost  or  even  if 
extra  good  time  is  awarded.  Even  if  all  prisoners  within  an  institution  are  trented 
similarly,  the  difference  between  institutions  is  too  great  to  permit  a  return  to 
the  pre-Parole  Board  days  when  the  Bureau  of  Prisons  and  its  wardens  deter- 
mined who  was  released  on  parole  and  when. 

Giving  the  Bureau  of  Prisons  indirect  control  of  release  time  by  re-introdiu- 
ing  good  time,  above  and  beyond  tlie  90%  parole  ineligibility  term,  would  be 
a  giant  step  backwards — and  might  even  be  a  great  temptation  to  unwarranted, 
early  release  of  pri.soners  by  the  Bureau  so  as  to  make  "beds"  available  espe- 
cially in  view  of  the  overcrowded  conditions  in  Federal  prisons.  It  would  be  a 
horrible  situation  if  such  improper  early  release  were  to  result  from  the  need 
for  facilities — a  consideration  which  does  not  enter  into  parole  consid(>ration 
and  could  not  enter  into  a  Commission  on  Federal  Incarceration  consideration 
of  whether  or  not  a  prisoner  should  be  released. 

Director  Carlson  of  the  Bureau  of  I*risons  in  bis  testimony  before  this  Sub- 
committee supported  the  elimination  of  good  time,  but  only  if  the  parole  pro- 
visions of  Sulichapter  I)  of  Chapter  .38  of  S.  1437  were  retained.  If  not.  he 
advocated  the  .scaling  down  of  the  maximum  penalties  and  the  retention  of  good 
time,  at  least  for  long  term  offenders,  since  offenders  must  have  "some  'liirht' 
at  the  end  of  the  tunnel."  If  such  "light"  is  necessary,  its  control  should  not  be 
transferred  from  the  T'.S.  Parole  Commission  successor  agency,  the  Comnnssion 
on  Federal  Incarceration,  back  to  the  Bureau  of  Prisons  where  it  reposed  i)rior 
to  the  1930's  when  a  Parole  Board  was  set  uj)  to  get  away  from  Bureau  of 
Prison's  control  of  such  "light." 

C).  Pic  a -bargained  cases 

There  is  one  more  area  in  which  I  should  like  to  suggest  to  this  Subcom- 
mittee that  there  is  an  absolute  need  for  Parole  Commission  or  Commission  on 
Federal  Incarceration  action.  In  cases  in  which  there  is  plea-bargaining  and  a 
sentence  is  agreed  to  or  not  obiected  to  bv  the  attorne.v  for  the  Government, 
18  T^.S.C.  .372."(a)  (2)  and  (3)  (.f  S.  1437  deny  the  right  of  appeal  to  eith.r  the 
defendant  or  the  Government.  Similarly.  Rule  11  (e)  (3)  of  the  liules  of  Grimi- 
nnl  Procedure  provides  for  the  embodiment  in  tlie  judgment  and  sentence  of  the 
disposition  provided  for  in  the  plea  agreement. 

Ooncededly,  the  U.S.  Attorney  must  have  the  right  to  determine  for  what  crime 
he  will  seek  an  indictment  and  for  what  crime  be  will  accept  n  plea  nnd  nzreo  to 
fix  a  sentence.  However,  exjierience  '-iiows  that  in  some  areas  and  with  some  T'  S. 
District  Court  Judges  and  some  U.S.  Attorneys,  sentences  are  inordinately  long 
or  too  short  for  the  actual  total  offense  behavior  nnd  offender.  While  flie  T\S. 
Parole  Coiinnission  can  do  nothing  with  a  sontence  below  its  guidelines  even  when 
in  the  Commissioji's  judgment  there  are  no  reasons  for  going  below  the  guide- 
lines, the  Commission  can  and  does,  independ(Mitly,  determine  how  much  of  n  "too 
long"  sentence  is  actually  to  be  served,  all  or  only  a  part  thereof  depending  on  the 
circumstances  and  guidelines.  This  procedure,  ■«hile  imperfect  bocanse  of  too 
many,  too  short  plea-bargained  .sentences,  does  bring  some  uniformity  nnd  some 
fairness  into  an  otherwi.'ie  impossible  to  oversee  plea-bargnined  situation.  And, 
with  all  due  respeot  to  the  ability  of  the  lesal  profession,  nil  too  frequently 
lawyers  appointed  by  the  Court  imrsuant  to  the  i)rovisioiis  of  the  Sixth  Amend- 
ment, often  inexj)erienced  in  criminal  proi-edures.  feud,  o^•en  in  their  plea- 
linrgaining,  not  to  be  able  to  achi<>ve  for  their  client  all  than  an  experienced 
criminal  lawyer  can  negotiate  in  the  way  of  a  sentence.  The  I'.S.  I'arole  Com- 
mission is  a  gre.at  Ipvolcr  in  this  respect  as  would  be  its  successor,  the  Comn)issioui 
on  Federal  Incarcerations,  by  whatever  name  it  is  called. 


9035 

7.  Post  sentence  parole  and  parole  revoeatlon  proceedings 

S.  1437  provides  in  the  propcsed  18  U.S.C.  2303  that  a  sentence  of  a  term  of  ini- 
in-isonmeut  in  the  case  of  a  feh)ny  or  a  Class  A  misdemeanor  carries  an  automatic 
l)ost-seii fence  parole  term.  Tliese  terms  of  post-sentence  parole  are  tixed  under  the 
proposed  18  U.S.C.  3834(1))  and  I  assume  are  to  follow  the  expiration  of  the 
service  of  the  regular  sentence  imposed  pursuant  to  Sec.  2301(b)  and  the  parole 
ineligibility  period  of  Sec.  2301(c).  Obviously,  the  U.S.  Parole  Commission  or  an 
agency  taking  over  its  functions  is  needed  and  must  he  in  existence  to  parole  an 
inmate  under  Sec.  3834(a)  and  to  impose  a  parole  term. 

But  more  importantly,  even  if  the  Court  in  the  initial  sentence  fixed  the  post- 
parole  terra,  who  would  supervise  the  parolee?  Who  is  to  make  the  determination 
if  a  condition  of  parole  has  been  violated?  Who  is  to  make  the  decision  of  what  to 
■do  with  the  parolee  if  it  is  found  that  parole  lias  been  violated? 

The  U.S.  Parole  Commission  in  the  period  from  October,  1975  to  September, 
1976  conducted  15G0  institutional  parole  revocation  hearings  and  256  local  revoca- 
tion hearings,  all  held  after  an  inter^iew  and  determination  that  probable  cause 
existed  to  hold  a  parolee  for  the  parole  revocation  hearing.  It  was  then  deter- 
nilne<i  by  the  Commission  whether  to  revoke  parole  or  not ;  if  it  was  revoked, 
vhether  or  not  to  allow  street  time  and  whether  to  reparole  or  incarcerate  the 
individual.  If  the  decision  was  to  incarcerate,  the  time  to  be  served  had  to  be 
computed  according  to  the  U.S.  Parole  Commission  guidelines.  All  action,  of 
course,  is  subject  to  the  review  procedure  of  the  Commission. 

Absent  a  U.S.  Parole  Commission  or  its  successor,  this  would  be  that  much 
more  work  for  overburdened  U.S.  District  Court  and  U.S.  Courts  of  Appeals 
Judges. 

a.  operation  of  U.S.  Parole  Commission,  misconceptions  and  suggested  changes 
in  'modus  operandi 

The  U.S.  Parole  Commission  performs  its  sentence-fixing  function  through  five 
regional  offices,  each  headed  by  a  Regional  Commissioner,  with  Central  Office 
support.  Hearing  Examiners,  in  pairs,  many  of  whom  have  a  jNIaster's  Degree  in 
'Criminology  or  the  Social  Sciences,  go  into  Federal  and  State  prisons  and  conduct 
X)arole  hearings  of  Federal  prisoners  incarcerated  therein.  The  Hearing  Summary 
and  Recommendations  are  then  reviewed  by  the  Regional  Administrative  Hear- 
ing Officer  and  the  Regional  Commissioner.  If  the  inmate  is  dissatisfied  with  the 
decision,  he  has  a  right  to  appeal  to  the  Regional  Commissioner  for  reconsidera- 
tion and  then,  he  has  a  further  right  of  appeal  to  the  three-member  National 
Appeals  Board  in  Washington.  All  parole  proceedings  are  conducted  in  accord- 
ance with  the  regulations  and  guidelines  promulgated  by  the  U.S.  Parole  Commis- 
sion and  published  in  the  Federal  Register  pursuant  to  the  Administrative 
Procedure  Act. 

The  Parole  Commission  has  been  experimenting  for  the  past  year  with  two 
projects  wherein  release  dates  were  fixed  early  in  the  sen!  ence.  One  project  was  in 
the  We- tern  Region  and  one  in  the  Federal  institution  at  Butner,  North  Carolina. 
It  was  determined  by  the  Cojnniissioners  that  the  detriment,  if  any,  to  the  prison 
system  discipline  resulting  from  the  early  fixing  of  the  release  dates  was  so  small 
Ihat  it  was  far  outweighed  by  the  benefits  to  prisoners  ol)tained  from  their  knowl- 
edge with  certainty  as  to  what  is  their  release  date  early  into  their  terms  of  in- 
carceration (subject  to  change  only  if  institutional  behavior  or  other  unusual 
circumstances  so  warranted).  Hence,  at  the  last  Commission  meeting  in  May, 
1977,  it  was  determined,  subject  to  public  comment,  to  initiate  a  system  of  fixing 
pre-sumptive  parole  dates  of  inmates  at  the  initial  hearing,  within  120  days  of 
reception  of  the  inmate  at  a  Federal  institution.  This  proposed  procedural  change 
was  published  as  a  Proposed  Rule  in  42  Federal  Register,  No.  112,  at  page  29034, 
on  .Tune  10,  1977,  as  required  by  the  Administrative  Procedure  Act. 

Were  a  Commission  on  Federal  Incarceration  to  take  over  the  sentence-fixing 
and  revocation  functions  of  the  U.S.  Parole  Commission,  I  would  suggest  the 
elimination  of  all  regional  offices.  It  is  my  opinion  that  Commissioners  based  m 
Washington,  able  to  constantly  communicate  with  each  other,  would  be  better 
able  to  formulate  policy  than  is  presently  the  case  with  a  Commission  whose 
Commissioners  are  scattered  throughout  the  country.  One  Commissioner  is  located 
in  Atlanta,  another  in  Philadelphia,  another  in  Dallas,  another  in  Kansas  City 


9036 

and  a  fifth  in  Bnrlingame,  California  respectively,  and  3  Commissioners  and  the 
Chairman  are  in  Washinjrton,  D.C. 

A  pool  of  30  Hearing  Examiners  and  supporting  pre-  and  post-release  analysts 
all  located  in  Wa^Iiinuton.  J^.C.  wonld  be  much  more  effective  in  making  decisions 
in  constantly  changing  panels  of  two  examiners  than  <3,  7  or  S  hearing  examiners 
located  in  5  regions.  Comliinations  of  these  examiners  shonld  he  shuffled  and  re- 
shuftied  to  assure  independent  decision-making  and  to  inTvent  building  up  of  any 
buddy  system  wirhin  the  examiner  corps  or  A^ith  institution^. 

I  strongly  urge  that  the  Commission  on  Federal  Incarceration  liearingv,  in  the 
interest  of  fairness  and  (>penness.  should  be  open  to  the  puldic  and  exempt  from 
the  Privacy  Act,  except  for  the  limitations  imposed  under  Rule  32(c)  (3)  of  the 
Rules  of  Criminal  Procedure.  Most  serious  consideration  should  be  given  to  hav- 
ing the  attorney  wlio  represent^ed  the  defendant  at  trial  also  appear  for  the  in- 
mate at  the  Commission  hearings,  especially  the  initial  hearing  at  which  the  time 
to  be  served  is  to  be  tixed.  And.  in  going  to  such  type  of  hearing,  consideration 
should  be  given  to  the  use  of  Administrative  Law  Judges  to  conduct  institutional 
hearings,  with  the  decisions  as  to  time  to  be  served  made  by  the  present  Hearing 
I'^xamiuers.  Regional  Commissicmers  and  with  a  National  Appeals  Board  review. 

In  passing,  it  should  be  noted  that  throughout  these  hearings,  I  have  heard 
much  which  may  indicatf  a  failure,  deliberately  or  unwittingly,  to  understand 
the  elfect  of  S.  1437  on  sentencing  and  parole  generally. 

For  example :  The  ilanson  case  was  mentioned ;  a  case  in  which  imposition  of 
a  1433-year  sentence  by  a  Texas  jury  was  mentioned  as  means  of  getting  n 
jirisoner  to  serve  a  longer  sentence.  Both  ai'e  State  cases  and  would  obviously  be 
unaffected   by   any  change   in   Federal   sentencing-parole  procedures. 

A\'hile  the  Federal  system  has  and  will  continue  to  influence,  and  hopefully, 
lead  the  States  in  better  implementation  of  the  criminal  .iustice  systom,  Fed'.u-al 
law  is  no  sinecure  for  the  states"  actions.  Kach  state  will  have  to  evolve  its  own 
method  of  sentence  imposition  and  detei'mination  of  time  of  actual  incarcera- 
tion— and,  if  any  should  turn  out  to  be  an  improvement  over  the  Fed(>ral  method, 
hopefully,  that  would  he  adojtted  by  the  Commis'^ion  on  Federal  Incarcerati<»n  or 
whate^  er  the  successor  to  tlie  U.S.  I'arole  Commission  is  called. 

C.     RF.CO.MXtKNOATIOXS 

With  this  background  and  based  uimn  the  considerations  outlined  above,  to 
wit:  the  attainment  of  greater  iniiformity  Ihronghout  the  I'nited  States  in 
sentences  served  ]»y  Federal  offenders  taking  into  account  the  partcu.lar  offender 
and  the  offense  behavior;  the  need  for  close  and  constant  watch  over  the  guide- 
line use-development  so  as  readily  to  make  necessary  revisions  therein  :  the  need 
for  even-liand'.'d.  disi)assionate  sentencing  and  flexiliility  in  adjusting  .sentence 
tim  to  reflect  individual  changes  in  circumstances  (including  lioisefuliy.  the  "re- 
habilitated offender")  and  in  law;  the  need  for  keeping  human  hope  alive  in 
the  breast  of  the  human  being  incarcerated  in  Federal  prisons:  the  need  for 
evening-out  of  ])lea-bargnine(l  sentences  and  ))ost-sente7ice  i)arole  fixing  and 
parole  revocation  and  based  on  the  experience  ol>tained  from  implementation  of 
sentence-fixing  guidelines.   I   urge   the   Subconu)iittee  consider: 

1.  The  setting  up  of  a  Sentencing  Conujiission  by  the  Judicial  Confereiice 
which,  with  the  assistance  of  any  and  all  expert  staff  and  consultants,  will  de- 
velop guidelines  for  Federal  Judges  for  use  in  determining  whether  to  imito^e  a 
sanction  after  conviction  of  a  particular  crime  and  under  what  circumstances  and 
whether  the  sancti(>n  be  (1 )  fine  ai'.d  if  so.  how  much  :  (2)  in-obation  and  if  so.  for 
liow  long  and  under  what  conditions:  (3)  imprisonment  ami  if  so.  the  reasons 
therefor;  (4)  restitution  and  if  so.  how  nun-Ii  and  to  whom;  or  (">)  any  com- 
bination thereof. 

2.  The  renaming  of  the  present  T\S.  Parole  Commission  t(^  i-efhvt  its  s(>nt('nce- 
fixing  function  and  its  transfer  to  the  Judicial  Pr.ancli  of  tlie  CovernmfMit  so  as 
to  make  its  location  within  tl>e  Covenunent  structure  coinci(l(>  with  its  actual 
functions.  For  <>xaniple:  I  have  uscmI  liie  noiiuMiclature  :  Comniis-^ion  on  Fe(h'ral 
Incarceration. 

3.  The  guidelines  and  regulations  iironnilgatcd  liy  both  Commissions  should  he 
coordinated  with  each  otlier,  jiroinulgatcMl  under  the  .\dministrative  Procedures- 
Act  and  subject  to  being  reported  to  the  Congress.  Tliey  should  become  effective 
ISO  days  after  each  Commis.sion  reports  them,  unless  within  that  time  one  House- 
of  Congress  votes  to  disajiprove  tliem. 


9037 

4.  The  location  of  the  Commission  on  Federal  Incarceration,  or  whatever  the 
successor  to  the  T\S.  Parole  Commission  is  called,  should  he  a  Washington-l)ased 
operation,  with  all  hearin.us  open  to  the  public  and  exempted  from  tlie  Privacy 
Act,  except  for  the  limitations  imposed  luider  Rule  32(c)(3)  of  the  Rules  of 
Criminal  Procedure.  A  prisoner  should  he  represented  by  his  trial  attorney  at  the 
initial  hearinj^'.  and  thereafter  if  he  so  desires  but  in  that  case  at  the  expense  of 
the  prisoner,  unless  the  Connnission  determines  that  in  the  interest  of  justice 
such  representation  is  required.  Hearinjrs  should  be  conducted  by  Administrative 
Law  Judges,  though  not  necessarily  sul).iect  to  the  Administrative  Procedure  Act 
practice,  with  the  determination  of  time  to  be  served  or  whether  or  not  a  prisoner 
is  to  be  reincarcerated  for  a  violation  of  parole  and  if  so  for  how  long  being  made 
by  Commission  lleariiig  Examiners  who  have  training  and  a  developed  expertise 
in  making  such  deterndnations.  subject  to  the  review  by  a  Regional  Commis- 
sioner and  also  subject  to  appeal  by  the  prisoner  to  the  National  Appeals  Board. 
whose  decision  is  final. 

I  appreciate  your  affording  me  this  opportunity  to  again  work  with  and  sub- 
mit my  views  to  a  Senate  Judiciary  Subcommittee. 
Respectfully  yours, 

Dorothy  Parker. 

Commissioner. 


U.S.  Department  of  Justice. 

U.S.   Parole   Commission. 
Washington,  D.C.,  June  21,  1977. 
Hon.  Edvv'Ard  M.  Kennedy, 
U.S.  Senate,  Washington,  B.C. 

Dear  Senator  Kennedy:  Pursuant  to  your  invitation  yesterday  to  Curtis 
Crawford.  Acting  Chairman  of  the  I'nited  States  Parole  CommisKiou,  when  you 
granted  his  request  to  have  further  documents  presented  for  the  record.  I  am 
forwarding  you  and  tlie  other  memlters  of  the  subcommittee,  uow  conducting 
hearings  on  Criminal  Code  Refoi-m  Act  of  1977.  Senate  Bill  14.S7.  a  copy  of  a 
speech  titled  "Probation  and  Parole  Better  Protect  Society"  which  I  gave  at  the 
Houghton  College's  Community  Forum  on  Pri.son  Reform  on  ^larch  IG.  1977. 

I  was  appointed  by  President  Dwight  David  Eisenhower  in  1953  and  have  had 
the  honor  of  serving  as  Chairman  or  Vice  Chairman  of  the  I'nited  States  Parole 
Commission  (formerly  United  States  Board  of  Parole)  for  10  of  the  past  24 
years.  I  have  served  under  both  the  Repul)lican  and  Democratic  Party  adminis- 
trations including  the  honor  of  serving  under  your  brother,  the  late  Robert  F. 
Kennedy  when  he  was  Attorney  General  of  the  United  States. 

I  l)elieve  that  tlie  enclosed  speech  should  be  made  a  part  of  the  record  of  your 
suliconnnittee  and  carefully  read  to  understand  the  tremendous  contribution 
which  some  three  years  of  research  and  operating  under  the  new  guidelines  for 
nearly  four  years  has  been  made  by  the  I'nited  States  Parole  Commission  in  im- 
])roving  the  administration  of  criminal  justice  at  the  federal  level. 

I  have  read  and  have  carefully  studied  Senate  Bill  1437  which  you  and  Senator 
McClellan  introduced  into  the  United  States  Senate.  May  2.  1977.  before  the  First 
Session  of  the  95th  Congress,  under  Title  I,  Codification.  Revision  and  Reform 
of  Title  18  U.S.  Penal  Code.  During  the  past  twenty-five  years  no  one  has  de- 
cried the  disparity  in  sentencing  as  practiced  by  the  federal  courts  of  this  Nation 
more  than  I.  I  applaud  the  efforts  of  Senator  McClellan  and  you  in  attempting  to 
reduce  disparity  in  sentencing  through  Senate  Bill  1437.  However.  T  must  admit 
in  all  candor  that  I  believe  in  our  efforts  to  reduce  disparity  in  sentencing  imder 
the  pro]K)sed  act  we  ma.v  be  diminishing  other  areas  of  the  Federal  Criminal 
Justice  System  which  could  result  in  the  setting  liack  the  criminal  justice  system 
unless  some  modifications  are  made  in  the  Bill  as  it  is  constituted.  I  fully  support 
the  concept  of  a  sentencing  commission  using  the  enormous  experience  which  the 
Ignited  States  Parole  Commission  has  had  in  developing  highly  predictive  salient 
factor  scores  as  well  as  guidelines  in  sentencing.  However,  unless  the  United 
States  Parole  Commission  is  permitted  to  continue  its  seven  years  of  research 
and  programing  under  this  ))rogram.  gi-eat  liarm  can  be  done  to  convicted  felons 
under  the  federal  system  in  determining  what  shall  hajipen  to  the  inmate  once 
he  is  convicted  by  the  sentencing  court.  Thus,  it  is  an  imperative  that  the  United 
States  Parole  Commission  exercise  its  highly  predictive  salient  factor  scores  and 
guidelines  and  be  carefully  attuned  to  the  sentencing  guidelines  as  the  Parole 


9038 

Commission  continues  to  administer  the  sentence  including  providing  a  certainty 
of  fairness  and  eciuity  to  tlie  inmate. 

The  sentencing  jiidge  and  the  proposed  sentencing  commission  would  have  in- 
formation only  at  the  time  of  sentencing  and.  in  view  of  the  fact  that  S.5  percent 
of  all  federal  offenders  are  convirted  on  a  plea  of  guilty  and  only  15  percent 
appear  hefore  the  sentencing  .iudge  dui'ing  trial,  the  coui't  or  the  sentencing  com- 
mission would  have  very  little  information  upon  which  to  make  a  prnjjor  decision, 
while  the  T'nited  States  Parole  Commission  has  greater  after-the-fact  knowledge 
as  we  apply  the  highly  predictive  salient  factor  scores  and  the  guidelines  to  those 
offenders  who  are  responsive  to  the  treatment  prograna  within  the  institution 
and,  despite  some  academia  testimony  to  the  contrary,  there  are  still  inmates 
in  federal  institutions  who  are  being  rehabilitated  in  1077. 

The  harsh  determinate  sentences  ecpially  i)unish  the  situational  offender, 
youth  offender,  and  the  immature  offender  who  emotionally  matures  during  his  in- 
carceration with  the  "hard-nosed,  aggressive  and  dangerous  offender."  Thf>  latter 
will  continue  to  be  a  threat  to  society  for  a  long  period  of  time  and  for  the  best 
protection  of  the  jiuhlic  should  be  incarcerated  for  a  vastly  longer  period  of  time 
than  the  situational,  youth  or  immature  offender  who  could  safely  be  released 
at  a  relatively  earlier  period  after  diagnosis  and  treatment  within  the  institu- 
tional setting  and  will  benefit  by  a  period  of  parole  supervision  in  the  community. 

As  the  conclusion  of  my  sjieech  indicates  empirical  research  shows  tlint  studies 
completed  by  the  Cnited  States  Parole  Commission  possesses  the  assistance  of 
an  imolicit  policy  that  has  been  made  explicit  through  an  analysis  of  individual 
case  decisions.  Judgments  on  offense  severity,  parole  risks,  predictive  power  of 
the  salient  factor  scores,  and  individual  performance  were  found  to  account  for 
most  of  the  variants  in  parole  decisions  (Peter  Hoffman — 107li).  Accordingly, 
"guidelines"  were  developed  to  combine  the  dimensions  as  a  statement  of  opera- 
tional jiolicy. 

The  Ignited  States  Parole  Commission's  statistical  research  highlights  cover- 
ing October  1074-SeptemIier  1070.  a  statistical  review  of  how  the  (\)nnnission  is 
functioning  after  three  years  of  research  and  now  four  years  operating  under  the 
guideliTies  and  highly  predictive  salient  factor  scores  are  most  encouraging  in 
improved  parole  decision-making  of  the  United  States  Parole  Commission.  The 
study  includes  as  follows  : 

"(A^  Total  numlters  of  pantle  or  re-parole  irranls  ("all  sentence  types)  show 
that  the  Federal  Parole  Commission  granted  57.1  percent  of  all  inmates  eligible 
for  nnrole  during  this  time  frame. 

"(R)  Recidivism — (1)  Adult  Offenders  under  supervision  at  beginning  of  time 
frame,  violation  warrants  with  a  two  year  follow-up  of  paroles  granted  in  1070 
show  that  70.0  percent  succeeded.  Paroles  granted  in  1072  with  two  year  follow- 
up  showed  a  success  rate  of  S6.1  percent.  (2)  Youth  offenders  released  in  1070 
show  a  success  rate  of  (55.1  jiercent  while  youths  released  with  two-year  follow- 
up  show  a  70.1  percent  success.  (8)  Mandatory  Releases — (not  granted  parole) 
after  a  two  year  follow-up  show  a  success  rate  of  only  (JS.S  percent  for  those  re- 
leased in  1070. 

"COXCLITSIOX 

"T.  Parole  as  administered  by  the  T'nited  States  Parole  Commission  better 
protects  society  by  releasing  more  inmates  from  prison.  57.1  percent,  while  be- 
cause of  empirical  research  which  has  been  operational  for  the  three  past  years, 
it  shows  that  in  1072.  SCt.l  percent  of  all  adult  T>risouers  granted  i>arole  succeeded 
under  adequate  pai'olo  suoervision  in  the  community,  while  pri.soners  releasi^l 
without  T)arole  in  1070  only  US.S  jM'rcent  succeeded  over  the  two  year  follow-up 
period.  Thus,  pri.soners  irranted  narole  in  1072  had  a  20  jiercent  better  success 
rate  than  prisoners  released  in  1070  under  mandatory  release. 

"TI.  With  crime  in  increasing  at  a  frightening  rate  of  1.1  ))ercent  l.'ist  year  and 
threatening  the  safetv  and  security  of  every  American  citizen,  including  the 
private  enterprise  system  and  an  orderlv  society,  it  is  imperative  that  we  im- 
r>rove  our  criminal  iusticp  system.  "While  we  bui^d  more  and  more  prisons  to 
house  ihe  dangerous  offenders,  an  improved  parole  system  better  protects  the 
connnunity.  the  tax  dollar,  the  citizen,  and  onv  beloved  America." 

I  believe  tha<"  our  three  years  of  empirical  research  under  thr>  auspices  of  the 
best  researchers  in  th's  Nation  resulted  in  the  Consrress  onl.v  last  year  passing 
TMiblip  Law  04-22.S.  I'arole  Commission  and  Reorcranizatiou  Act.  establishing 
vastly  improved  procedures  for  implementing  the  improved  i>arole  decision-mak- 
ing process. 


9039 

The  United  States  Tarole  Commission  is  continnins  a  re-evaluation  of  the 
Commission's  empirical  research  which  developed  the  salient  factor  scores  and 
guideUnes  and  a  "hlue  ril)bon"  panel  composed  of  the  following  will  supervise 
the  re-evaluation  study.  Distinsjuished  members  of  this  panel  are:  Hon.  A.  Leon 
Kigsinbotham.  District  Court  Judse  in  Philadelphia  ;  Judge  CorneUa  Kennedy, 
Northern  District  of  Illinois ;  and,  representing  the  academic  community,  Dr. 
Herbert  Solomon,  Director  of  Industrial  Research.  Stanford  University,  and 
Dr.  Marvin  E.  Wolfgang,  Director  of  Criminology,  University  of  Pennsylvania, 
and  Dr.  Charles  Wellford  of  the  Attorney  General's  research  and  development 
staff,  Department  of  Justice,  as  well  as  Parole  Commissioner  Joseph  A.  Nardoza 
and  myself. 

If  I  can  be  of  any  further  assistance  to  you,  your  subcommittee,  or  your  staff 
in  coordinating  the  above  listed  suggestions,  please  be  assured  of  my  willingness 
to  do  so. 

Very  sincerely  yours, 

George  J.  Reed, 
Chairman,  National  Appeals  Board. 

Enclosure. 

Probation  and  Parole  Better  Protect  Society 

By  George  J.  Reed,  Vice  Chairman.  I'nited  States  Parole  Commission,  presented 
at  Houghton  College's  Community  Forum  on  Prison  Reform,  Houghton,  N.Y., 
March  16,  1977 

Thank  you,  Mr.  Chairman,  it  is  indeed  a  real  personal  privilege  to  be  back  on 
a  college  campus  that  is  not  only  quiet,  but  which  has  thoughtful  students,  .sin- 
cerely and  scliolarly  preparing  themselves  to  make  a  contribution  to  our  homes, 
communities  and  our  lieloved  America. 

It  is  most  appropriate  that  Houghton  College,  located  so  near  to  the  Attica 
State  Prison  where  the  tragedy  of  "The  Attica  t'prising"  occurred  a  few  years 
ago,  should  be  promoting  a  "Communit.v  Forum  on  Prison  Reform."  I  am 
honored  to  share  this  program  with  the  Warden  of  the  Attica  State  Prison  and 
appreciate  his  earlier  remarks  on  ''Prison  as  an  Alternative." 

Before  discussing  "Alternatives  to  Prison"  I  feel  compelled  to  take  a  brief 
look  at  some  of  the  causative  Factors  that  are  contributing  to  the  "lawless  so- 
ciety" in  which  we  live  in  America  toda.v.  Last  week,  the  Nation's  Capital  was 
almost  paralyzed  when  some  four  dozen  Hanafi  IMuslim  black  gunmen  took  125 
citizens  hostage  in  thi-ee  downtown  locations,  representing  what  was  called  by 
the  News  media  a  "Holy  War'',  between  warring  factions  of  Black  Muslim  mili- 
tant groups  and  other  religious  and  cultural  groups.  One  man  was  killed,  a  City 
Councilman  shot  and  seriously  injured  and  reportedly  some  two  dozen  innocent 
unsuspecting  citizens  were  beaten  and  mistreated  for  some  39  hours  by  their 
captors.  Taking  hostages  by  disturbed  individuals  and  revolutionary  groups  ap- 
pears to  be  rapidly  increasing  in  this  country  and  around  the  world. 

When  some  of  our  national  leaders,  including  "Watergate"  defendants.  State' 
Governors,  States  Attorney's  Generals,  Mayors,  Judges,  and  Members  of  Congress 
are  being  sent  to  prison  for  violating  the  laws  of  the  land,  it  is  little  wonder  that 
concerned  citizens  are  beginning  to  ask  "Why'/"  AVhen  Daniel  El.sberg  becomes 
a  national  hero  for  turning  over  "classified  material"  to  the  news  media  to  print 
and  distribute  for  not  only  United  States  citizens  to  read,  but  made  available 
to  our  potential  enemies,  we  have  somehow  confused  the  right  of  the  individual 
to  know  as  against  the  Nation's  ability  to  operate  a  viable  intelligence  system 
to  protect  this  Nation's  security. 

The  foundations  of  our  society,  culture  and  national  greatness  has,  during 
the  history  of  this  Nation,  relied  upon  the  integritv  of  the  American  mono- 
gomistic  home.  Today  m%  of  all  marriages  end  in  divorce.  It's  the  cliie 
and  the  growing  iwpular  practice  for  couples  to  live  together,  produce  children 
and  split  when  things  become  difficult  or  the  responsibility  of  feeding,  providing 
a  home  and  love  for  the  children  become  too  much  of  a  drag.  Thus,  we  are  today 
proflucing  unloved,  undisciplined,  emotionally  rejected  children,  who  cry  out  for 
someone  to  care  enough  to  provide  physical  and  emotional  .security  during  infancy, 
pre-adolescent  and  adolescent  years.  When  their  basic  emotional  needs  are  denied 
them  at  all  socioeconomical  levels  of  society,  we  produce  emotionally  bhmted 
children  and  youth  who  are  turning  at  an  ever  increasing  rate  to  alcoholics, 
drug  users  and  pushers  and  from  there  into  a  life  of  crime  and  violence 


9040 

The  frifjhtening  rise  of  an  ever  uiore  powerful  organized  crime,  casts  a  shadow 
«Ter  our  land.  They  buy.  pressure  or  "wipe  out"  all  opposition  as  the  wel)  of 
their  iuHuence  weakens  our  political,  business  and  lab(»r  leaders  until  the  fabric 
of  our  entire  society  stands  in  danger.  In  some  of  our  large  cities  you  cannot  buy, 
.sell  (ir  get  a  job  without  a  payoff  to  organized  crime. 

Turning  now  to  the  debate  over  "Prison  Reform"  in  America,  it  goes  without 
saying  tliat.  while  prison  reform  is  necessary,  a  reformed  society  is  a  greater 
need.  No  sooner  had  the  debate  over  rehabilitation  surfaced  and  become  center 
stage,  than  prison  iM)pulations  began  to  grow  and  grow  and  grow.  The  over- 
crowding of  all  our  correctional  institutions  is  the  one  problem  that  is  bearing 
'down  hardest  on  penal  administrators  at  this  moment.  The  Federal  prison  system 
and  every  State  system,  witli  the  exception  of  Calif(U-nia,  experienced  a  sharp 
rise  in  prison  populations  during  1970.  The  overall  total  of  inmates  in  our  Nation's 
penal  institutions  rose  from  249,500  to  2r)5.8(K)  or  11  percent  increase  during  the 
course  of  197")  and  continued  to  rise  at  a  higher  rate  during  1976.  Serious  crime 
increased  17  percent  during  1974,  another  10  percent  during  1975  and  continues 
to  grow  in  1976  and  1977. 

Factors  overlooked  in  ))redicting  prison  populations  included  the  failure  to 
note  that  the  peak  of  the  World  War  II  babies  would  enter  the  20-30  age  bracket 
'during  the  1970's.  As  you  know,  this  is  the  age  group  that  accounts  for  most  of 
the  Naticm's  adult  crime. 

All  connniuiity  based  programs  were  thouglit  to  greatly  influence  prison  popu- 
lations, but  the  use  of  community  based  programs  has  its  strengths  as  well  as  its 
weaknesses.  Such  programs  as  deferred  prosecution  as  used  by  the  federal 
courts  on  a  very  select  group  of  tirst  time  offenders  has  I»een  relatively  successful. 
Well  trained  and  adetiuately  staffed  probation  departments  capable  of  making 
full  use  of  community  resources  have  a  very  good  track  record.  I  (piestion 
seriously  whether  the  public  will  stand  for  any  expansion  at  this  time.  The 
Federal  and  State  community  treatment  centers  have  provided  an  excellent 
j)rogram  for  offenders  who  have  been  granted  a  parole  but  providing  for  a  6 
niontlis  period  to  depressure  his  prison  experience  gradually  get  reacquainted 
with  his  family,  conunnnity,  and  secure  a  .iol»  compatible  with  his  vocation  train- 
ing in  the  institution.  The  drug  treatment  community  centers,  including  regular 
urinalysis  tests  and  counseling,  have  scored  well  in  aiding  the  drug  user  to  kick 
the  habit. 

Federal  parole  statutes,  as  interpreted  by  the  federal  courts  over  a  period 
of  many  years,  nuide  it  plain  that  parole  was  a  matter  of  "grace"  and  "not  of 
right."  Thus,  the  courts  at  that  time  indicated  that  "I'arole  is  left  to  the  informed 
discretion  of  the  Parole  Board".  It  soon  became  apparent  that  Parole  Board 
decisions,  operating  under  such  a  l)road  discretion,  became  more  of  a  "gut 
reaction"  than  an  "informed  discretion."^  In  1969  the  Federal  Courts  began 
looking  over  the  shoulders  of  prisons,  parole  and  probation  administrators,  to 
insure  that  decision  makers  in  the  criminal  .iustice  system  developed  a  more  scien- 
tific i>rocedure  to  (a)  Improved  Parole  Decision  Mtiklng  (b)  Provide  for  l)etter 
structured  ('(piity,  and  (c)  Improved  Prediction  Devices,  and  (d)  Appeal 
Procedures. 

TIIK    PROJECT 

In  1969  as  Chairman  of  the  United  States  Board  of  Parole  T  presented  to 
Attorney  Ceneral  John  ^litchell  a  very  comprdiensive  and  costly  research 
design  titled  "Tmiiroved  Parole  I)(>cision  Making."  The  project  and  .$.500,000  were 
api)roved  for  a  three-year  research  project.  The  i)roject  was  direct (mI  by  two 
of  the  most  distinguislu'd  scholars  in  the  held  of  research  in  the  criminal  justice 
field.  Dr.  Donald  :m.  Gottfredson.  Dean  of  the  School  of  Criminal  .Tustice.  Rutgers 
TTniversity,  and  learned  British  scholar.  Professor  Leslie  Wilkins  of  the  I'ni- 
versity  of  Xew  York,  and  an  outstanding  research  staff. 

GO.\T,S 

Goals  included  :  (1 )  the  definition  of  jiaroling  decisions,  objectives,  alternatives, 
and  information  needs;  (2)  tlie  nu\isnreiiieiit  of  relationships  between  offender 
information  and  parole  objectives;    (3)   the  development  and  testing  of  "expe- 


^HvKer  V.  Peed,  21S  F.  2d.  2.2.">  (C-A.-X-r.)  :  Pprtlornri  donipd  sub.  noni.  Thompson  v. 
T'liifcft  States.  No.  LMHIO.  (C.A.  .-.),  doclfled  fi/ir./iO  :  Initcd  .States  v.  Freflriek.  40.")  F.  2(1. 
1.2!>  <C..\.  .',.  IOCS)  :  lirrst  v.  Ciccone.  371  F.  2d.  9.81  (C.A.  8.  19G7)  ;  Walher  v.  Taylor, 
33S  F.  2d  !).4.j  (C.A.  10,  19G4). 


9041 

Tience  tables";  (4)  the  development  and  demonstration  of  procedures  for  rapid 
retrieval  of  relevant  objective  information;  and  (5)  the  assessment  of  the 
utility  of  the  procedures  developed. 

ITXIQUE   RESEARCH    PROJECT 

Tb.is  project  was  unique  l»ecause  it  provided  for  the  first  time  the  ability 
tlirougli  the  miracle  of  modern  computers  to  update  the  old  parole  predictions 
tables^  data  to  current  socioloj^ical  factors  (salient  factors)  that  are  truly  pre- 
dictive of  potential  success  or  failure  of  a  federal  prisoner,  should  the  United 
States  Parole  Commission  (formerly  United  States  Board  of  Parole)  grant 
or  deny  parole.  Anotlier  first  in  this  project  that  no  other  research  program  had 
ever  been  able  to  achieve  is  individual  case  follow-np  over  a  period  of  five  years 
after  release  on  parole  or  mandatory  release.  No  other  research  project  had  ever 
been  able  to  follow  up  on  the  individual  case  because  they  got  lost.  The  Federal 
Bureau  of  Investigation,  witli  the  approval  of  tlie  late  F.B.I.  Director  J.  Edgar 
Hoover,  agreed  to  furnish  the  United  States  Parole  Commission  and  the  re- 
search project  a  "rap  sheet"  tliat  has  allowed  the  project  and  this  Commission  to 
know  exactly  what  happens  to  every  parolee  or  mandatory  releasee  released  from 
a  federal  prison  for  a  period  of  five  years  after  release.  Critics  of  parole  have  for 
years  been  throwing  around  wild  statistics  on  the  success  or  failure  of  the  parole 
"system  with  no  real  researcli  or  facts  to  back  up  their  criticism.  This  no  longer 
can  be  federated  l)y  the  United  States  Parole  Commission. 

Controversy  has  recently  surfaced  over  the  structure  and  effectiveness  of 
parole.  The  suggestion  of  aiiolishing  parole  is  complex,  and  debate  on  its  relative 
merits  has  often  been  devoid  of  empirical  research  data  pertinent  to  the  unin- 
formed and  unrealistic  deductions  drawn. 

The  first  criticism  focuses  primarily  on  concern  for  Equity.  It  includes  argu- 
ments that  paroling  decisions  are  arl»itrary  or  capricious,  or  reflects  the  exercise 
of  unfettered  discretion   without  established  boundaries." 

A  second  popular  theme  involves  the  effectiveness  of  treatment.  There  appears 
to  be  a  growing  disenchantment  with  the  concept  of  rehabilitation,  a  cry  for 
abolishment  of  the  "treatment  medical  model  myth"  and  a  return  to  a  punish- 
ment philosophy — renamed  as  "just  desserts".  David  Fogel  of  the  Illinois  Law 
Enforcement  Commission  loudly  preaches  and  supports  an  act  to  provide  deter- 
minate sentencing  with  additional  penalties  for  repeat  offenders.^  Dr.  Fogel's 
".Tustice  Model  for  Corrections"  would  reverse  the  hands  of  justice  liy  more  than 
100  years  and  would,  under  the  determinate  sentence,  equally  punish  the  situa- 
tional offender  and  the  immature  offender  who  emotionally  matures  during  his 
incarceration  with  the  Iiard  nosed,  dangerous  offender  who  is  a  real  threat  to 
society  and  should  lie  incarcerated  for  a  much  longer  period  of  time  than  the 
situational  or  immature  offender  who  could  safely  be  released  at  a  relatively 
earlv  date. 

Research  studies  completed  by  the  United  States  Parole  Commission  show  the 
existence  of  an  implicit  policy  that  could  be  made  explicit  through  an  analysis 
of  individual  case  decisions.  .Judgments  on  offense  severity,  parole  risk,  pre- 
dictive power  of  the  salient  factor  scores,  and  individual  performance  were 
found  to  account  for  most  of  the  variance  in  paroling  decisions  (Hoffman,  1972). 
Acc(u-dingly,  "Guidelines"  were  developed  to  combine  the  dimensions  as  a  state- 
ment of  operational  policy.  The  Commission  has  been  operational  under  the 
guidelines  for  some  three  years  and  each  report  vindicates  the  predictive  power 
of  the  Federal  Parole  Commission's  guidelines.* 

Since  1965  Uniform  Parole  Reports  have  been  collecting  data  on  parolees  re- 
leased in  the  United  States.  The  project  currently  has  parole  performance  in- 
formation on  approximately  2.50.000  males  and  females  with  one,  two  and  three 
year  follow-up.  The  Uniform  Parole  reports  on  a  national  basis  and  shows  that 
cohorts  releasetl  each  year  from  1!^K>,S  through  1974  with  one  ,vear  follow-up  or 
until  parole  supervision  was  terminated.  Of  the  1974  cohorts  82  percent  con- 


-  Harris.  :\r.  Kav.  "Disnni.sitif^n  on  tl^p  npprt  for  a  new  model  for  Criminal  Sanctions 
svstpn<s;."  77  West  Virsinia  T.aw  Review.  P.  206  (1074-7.5).  ^ 

'  3  Spp    ^merinan   Friends   Serviee  fommittee.    StriiETslf  for  JnsHce.    New   i  ork  :    HiU   and 
Wanjr.   1971,  Clis.  6  and  8;  Fogel.  David — "We  are  living  proof" — The  Justice  Model  for 

*  Parole -How  It  is  Working,  nnpuhlislied  report  by  Dr.  William  H.  Atoseley.  Associate 
Director.  Uniform  Parole  Reports,  National  Council  on  Crime  and  Delinquency  Research 
Center,  Davis.  California. 


9042 

tinued  on  parole.  They  had  a  return  to  prison  rate  of  14  percent ;  technical 
violations  accounted  for  9  percent,  and  new  major  convictions  were  5  percent. 

In  the  United  .States  Parole  Commission's  Statistical  Highlights  covering: 
October  li)74-Septeml)er  1976,  a  statistical  review  of  how  the  Commission  is 
functioning  after  three  years  of  research  and  now  three  years  oi>erating  under 
the  Guidelines  and  salient  factor  predictive  devices  in  the  administration  of 
the  federal  parole  system. 

(A)  Total  numbers  of  parole  or  re-parole  grants  (all  sentence  types)  show 
that  the  Federal  Parole  Commission  granted  parole  to  57.1  percent  of  all  in- 
mates eligible  for  parole  during  this  time  frame. 

(B)  Recidivism — Adult  offenders  under  supervision  at  beginning  of 
time  frame,  violation  warrants  with  a  two  year  follow-up  of  paroles  granted  in 
1970  show  that  79.9  percent  succeeded.  I'aroled  granted  in  1972  with  two  year 
follow-up  showed  a  success  rate  of  86.1  percent.  (2)  Youth  offenders  released  in 
1970  show  a  success  rate  of  65.1  percent  while  youths  released  with  two  year 
follow-up  show  a  70.1  i»ercent  success.  (3)  Mandatory  releases — (Not  granted 
parole)  after  a  two  year  follow-up  show  a  success  rate  of  only  68.8  percent  for 
those  released  in  1970. 

Conclusion  : 

I.  Parole  as  administered  by  the  United  States  Parole  Commission  better 
protects  society  by  releasing  more  inmates  from  prison.  57.1  percent,  while  be- 
cause of  imperical  research  which  has  been  operational  for  the  three  past  years^ 
It  shows  that  in  1972 — 86.1  percent  of  all  adult  prisoners  granted  parole  suc- 
ceeded under  adequate  parole  supervision  in  the  community,  while  prisoners  re- 
leased without  parole  in  1970  only  68.8  percent  succeeded  over  the  two  year  fol- 
low-up period.  Thus,  prisoners  granted  parole  in  1972  had  a  20  percent  better 
success  rate  than  prisoners  released  in  1970  under  mandatory  release. 

II.  With  crime  increasing  at  a  frightening  rate  of  15  percent  last  year  and 
threatening  the  safety  and  security  of  every  American  citizen,  including  the 
l)rivate  enterprise  system  and  an  orderly  society,  it  is  imperative  that  we  im- 
prove our  criminal  justice  system.  While  we  build  more  and  more  prisons  to 
house  the  dangerous  offenders,  an  improved  parole  system  better  protects  the 
community,  the  tax  dollar,  the  citizen  and  our  beloved  America. 


Sonator  Kexnedy.  I  will  ask  Professor  Dersliowitz  if  lio  would  be 
^ood  enoiiirh  to  conio  next.  AVe  will  ask  INIr.  Shatttirk  of  the  ACLI^  to 
follow  Mr.  Dershowitz,  who  has  to  catch  a  plane  and  return  to  Cam- 
bridge. 

I  want  to  welcome  Professor  Dershowitz.  He  has  been  extremely 
helpful  to  this  committee  ovei-  the  years,  and  ]iarticularly  over  thft 
last  year,  in  helping  us  to  deal  with  an  extremely  complex,  difficult 
assignment — the  recodification  of  the  criminal  code.  His  suggestions 
have  been  of  enormous  value  to  us.  His  guidance  in  these  areavS  is 
highly  regai'ded  by  myself  and  other  members  of  this  committee. 
We  look  forAvard  to  liis  testimony  on  this  legislation. 

I  will  ask  him  after  his  testimony,  or  even  during  the  testimony, 
if  he  has  some  reaction  to  the  last  proposal  about  how  we  might 
deal  with  sentenciiig. 

But  we  welcome  you  here. 

Please  proceed. 

STATEMENT  OF  ALAN  DERSHOWITZ,  HARVARD  LAW  SCHOOL 

Mr.  Dersiiowitz.  Thank  you  very  much,  Mr.  Chaimian. 

When  S.  1  was  oi'iginally  launclied,  T  was  strongly  opfxKsed  to  its  en- 
actment, as  were  many  of  my  colleagues.  It  was  in  tone,  in  S])irit,  and 
in  substance  simply  too  prosecutorial  in  its  oi-ientation.  At  a  time  of 
contracting  constitutional  safeguards  by  the  courts,  many  of  us  felt 
that  enactment  of  this  kind  of  legislation  by  Congress  would  not 


9043 

acliieve  an  appropriate  balance  between  tlie  le<>-itimate  needs  of  law  en- 
forcement and  the  equally  legitimate  needs  of  our  society  to  treat 
those  accused  of  crime  with  justice  and  compassion. 

Over  the  past  months,  however,  as  you  have  indicated.  I  have  had 
the  privilege  of  working  with  this  committee  and  suggesting  certain 
changes  and  responding  to  the  suggested  changes  of  others.  I  think 
the  process  has  been  an  extremely  useful  and  valuable  one.  We  have 
seen  input  from  a  great  many  sources  in  an  attempt  to  dei)oliticize  the 
process  and  to  achieve  a  code  which  has  both  scholarly  acceptability 
and  acceptability  to  the  wide  spectrum  of  political  views  and  law- 
enforcement  views  and  needs  reflected  in  this  country.  The  process  is 
still  an  ongoing  one  as  evidenced  by  these  hearings  and  as  evidenced 
by  the  fact  that  so  many  different  and  interesting  views  have  been 
brought  to  the  attention  of  this  committee. 

At  this  point,  I  would  now,  on  balance  favor  the  enactment  of  the 
criminal  code  reform,  especially  if  certain  additional  changes,  each 
of  which  I  think  is  entirely  reasonable,  and  none  of  which  I  think  is 
earth  shaking  or  tremendously  controversial,  could  be  considered  and 
possibly  added. 

I  will  speak  to  some  of  these  possible  changes  at  the  end  of  my  testi- 
mony, but  I  did  want  to  devote  the  substance  of  my  remarks  to  the 
sentencing  provisions  which  have  been  under  discussion  today. 

I  have  a  prepared  statement  which  I  would  like  to  have  incorporated 

in  the  record.  I  will  only  briefly  summarize  the  views  on  sentencing 

that  are  reflected  therein,  and  also  add  to  my  views  in  response  to 

some  of  the  statements  previously  made,  particularly  relating  to  the 

possible  abolition  of  the  Parole  Commission. 

Senator  Kennedy.  Without  objection,  your  statement  will  be  in- 
serted in  the  record  at  this  point. 

[The  material  follows :] 

Prepared  Statement  of  Professor  Alan  Dershowitz 

The  sentencing  provisions  of  the  proposed  Federal  Criminal  Code  are,  in  my 
view,  the  most  significant  aspect  of  this  important  bill.  Indeed,  they  may  well  con- 
stitute the  most  enduring  and  far  reaching  criminal  law  reform  of  this  century. 

Judge  Marvin  E.  Frankel,  a  leading  .iudicial  authority  on  sentencing,  has  re- 
cently observed  that  "the  imposition  of  sentence  is  probably  the  most  critical 
point  in  our  system  of  administering  criminal  justice."  I  need  not  belabor  the  ob- 
vious significance  of  the  sentencing  function :  the  criminal  defendant  may  at 
that  point  be  poised  between  life  and  death,  freedom  or  conhnement,  short  or 
long  imprisonment.  Moreover,  sentencing  may  be  the  sole  instance  of  judicial 
decisionmaking  in  the  criminal  justice  process  for  many  criminal  defendants, 
since  the  vast  majority  of  criminal  cases  are  disposed  of  without  a  trial. 

Despite  these  high  stakes,  sentencing  is  in  most  jurisdictions  essentially  law- 
less :  judges  are  furnished  few  guidelines  and  are  accountable  in  most  circum- 
stances to  no  higher  authority.  Defendants  charged  with  identical  crimes  in 
virtually  identical  circumstances  may  receive  stunningly  disparate  sentences. 
In  one  recent  study,  fifty  federal  trial  judges  were  givpn  twenty  identical  files, 
drawn  from  actual  cases,  and  asked  to  indicate  the  sentence  they  would  impose 
ou  each  defendant.  In  a  case  of  possession  of  barbiturates  with  intent  to  dis- 
tribute, one  judge  gave  the  defendant  five  years  in  prison,  while  another  put  him 
on  pr(>bation.  A  middle-aged  union  official  convicted  on  several  counts  of  ex- 
tortionate credit  transactions  was  sentenced  by  one  judge  to  20  years  in  prison 
and  a  !f65,000  fine,  and  by  another  judge  to  3  years  Imprisonment  with  no  fine. 
Factors  such  as  race,  personal  appearance,  and  dress  have  repeatedly  been  shown 
to  significantly  influence  the  sentencing  process,  usually  to  the  detriment  of 
.minorities  and  ihe  poor. 


9044 

These  disparities  cannot  be  explained  by  reference  to  relevant  differences; 
amonj;  criminals.  They  are — to  (luote  Jiuljie  Frankel  once  again — more  often  a 
function  "of  the  wide  spectrnms  of  character,  bias,  neurosis  and  daily  vaiiary 
encountered  among  occupants  of  the  trial  bench."  Release  decisions  made  by 
parole  boards  also  reflect  the  per.sonal  inclinations  of  the  boards"  members. 

It  is  not  surprising-,  then,  that  recent  years  have  .seen  a  gathering  wave  of 
criticism  from  all  sides  of  the  political  spectrum  against  sentencing  systems 
which  rely  heavily  on  the  idiosyncracies  of  individual  judges  or  parole  otficials. 
The  proposed  sentencing  provisions  reflect  these  criticisms  and  tlie  virtually 
inianimous  view  that  the  time  has  come  to  establish  a  new  and  significantly 
more  .lust  .sentencing  structure.  The  creation  of  a  .system  of  rational,  consistent, 
and  comparable  punishments  for  comparable  criminal  activities  is  mandated  by 
our  commitment  to  equal  justice,  by  the  necessity  or  maintaining  public  respect 
for  the  law's  impnrtiality,  and  by  the  hope  that  increased  certainly  in  punish- 
ment will  enhance  the  deterrent  impact  of  the  criminal  sanction. 

A  number  of  i)roposals  for  supplanting  the  present  system  of  wide  judicial  nnd 
parole  board  discretion  with  legislatively  fixed  .sentences  have  gained  recent 
attention.  Two  of  the  most  prominent  of  the.se  are  the  concepts  of  "flat-time 
sentencing"  and  "mandatory  minimum  sentencing." 

Flat-time  sentencing  has  several  variations.  In  its  most  extreme  form  it  mean.s 
that  the  legislature  defines  one  single  sentence  for  each  crime  or  degree  of  crime  : 
that  term  is  impo.sed  by  the  judge  in  every  ca.se  and  is  served  in  full,  with  the 
only  po.ssible  reduction  being  for  "good  time"  or  by  executing  commutation  in 
an  extraordinary  case.  Former  President  Ford  added  his  voice  to  those  supi)ort- 
iiig  this  system  in  his  l!t7.~i  message  to  Congress  on  crime,  in  which  he  stated 
that  "it  may  be  time  to  give  .s(>rious  study  to  the  concept  of  so-caib'd  tint-time 
sentencing  in  the  Federal  law,"  as  a  means  for  eliminating  "wide  disparities  in 
sentencing  for  essentially  equivalent  offenses."  As  an  alternative  to  indeterminate 
sentencing,  this  pro])osal  has  gathered  wide-ranging  sui)port.  Jessica  Mltl'ord.. 
wlutse  book  Kind  nnd  I  niisiinl  I'uiiixlnnriit  declares  that  jtrisons  are  intriiis-nPy 
evil  and  ought  eventually  to  be  abolished,  prefers  fl:it-time  to  indeterminate 
sentencing.  Likewise,  The  Prisoners'  Tnion.  a  national  organization  controlled 
and  staffed  by  ex-convicts,  has  made  "the  abolishment  of  the  indeterminate' 
sentence  and  all  its  ramifications"  its  i)rimary  object.  The  Fnion  is  supported  in 
this  drive  by  Evelle  Younger.  California's  attorney  general,  and  by  nniny  oilier 
law-enforcement  ollicials  dissatisfied  with  the  operation  of  indeterminate 
sentencing. 

However,  it  is  my  view  and  the  view  of  mnny  others  that  this  kind  of  flnt-time 
sentencing  is  simply  too  extreme  a  remedy;  by  eliminating  all  flexibility  and 
rciiniring  judges  to  impose  the  identical  sentence  on  ev(>ry  single  defend:int  con- 
victed under  the  snme  statute.  Hat-time  sentencing  threatens  to  create  a  system 
so  automatic  that  it  will  produce  major  injustices  of  its  own.  It  is  simply  im- 
possible to  devise  a  single  just  .sentence  for  all  armed  robbers,  burglars,  or  first- 
degree  murderers.  Some  degree  of  flexiiiility.  bf>th  at  the  sentencing  and  parok' 
stage,  must  remain  in  order  for  the  system  to  maintain  <'redibi!ity. 

Fnder  another  variation  of  flat-time  sentencing,  the  sentencing  judge  would' 
retain  his  di.scretion  to  impose  any  sentence  within  the  leaisla lively  i>rescrii>ed 
range,  but  whatever  sentence  he  selects  would  be  iiniK)scd  as  "ll.it-time".  This 
variation  elimiiiiites  the  discietion  of  the  parole  boai-d.  but  retains  the  discretion 
of  the  sentencing  judge. 

;\lan(lat()ry  mininium  sentencing.  The  half-itrother  of  llat-fiuie  sentencing,  simply 
eliminates  all  discretion  to  go  below  a  certain  sentence  which  nnist  be  served 
for  a  given  crimi".  regardless  of  the  circuinslances.  Massachusetts,  for  examiile. 
has  a  mandatory  one-yeai-  sentence  for  unlicensed  possession  of  ;\  gun  :  New  York 
has  one  for  certain  drug  crimes,  liut  there  are  a  numlier  of  jiroiilems  with  this 
aiiproach  as  well.  First  (»f  all,  it  deals  with  only  discretion  at  the  mininnim  end 
of  the  statutory  spectrum,  and  not  with  di.scretion  at  the  maximum  end.  It  ad- 
dresses only  the  floor — not  the  bouse  it.self,  oi-  the  ceiling.  Further,  there  is 
mouiiiing  evidence  that  rigidly  fixed  sentences  do  not  work:  ways  are  found  to 
circumvent  them  by  prosecutois.  judges,  and  jui'ies.  In  Massachus(>tts,  for  exam- 
ple, judges  have  contrived  reasons  for  freeing  otherwi.se  "law-abiding"  citizens- 
who  hive  run  afoul  of  the  strict  giui-control  law.  In  states  with  a  mandatory 
d  'atli  penalty  for  murder,  prosecutors  are  redu<ing  charges  and  juries  ;ire  re- 
turning "nianslaughter'  verdicts  in  cjises  where  th(>  death  iienally  is  deemed  in- 
api)ropi-iate.  Thus  it  is  clear  that  discretion  finds  its  way  into  the  law's  oiiera- 
tiuti,  whether  exercised  by  pro.secutor,  judge,  or  jury. 


9045 

My  personal  preference  is  for  a  system  which  I  call  "presumptive  sentencing", 
a  system  which  was  proposed  by  the  Task  Force  on  Criminal  Sentencing  of  the 
liotii  Century  Fund  for  wliicli  I  was  the  reporter.  To  a  greater  extent  than  either 
flat-time  or  mandatory  minimum  sentencing,  presumptive  sentencing  seeks  to 
steer  a  delicate  cour.se  between  tlie  Scylhi  of  glaring  disparity  and  the  Charybdis 
of  intiexible  eciuality  in  sentencing. 

I'resumptive  sentencing  entails  the  specification  by  the  legislature  of  not  only 
the  minimum  and  maximum  sentence  for  a  given  crime,  biit  of  wliat  the  fairly 
typical  tirst  offender  convicted  under  the  statute  sliould  i-eceive.  For  example, 
most  armed  robberies  are  connnitted  by  unmarried  males  in  their  early  20's  who 
never  fini.shed  liigli  scliool  and  have  been  unemployed  for  more  than  a  year. 
The  robbery  typically  consists  of  an  entry  into  a  local  store  late  at  night  with 
a  loaded  pistol.  The  store  clerk  and  a  few  customei-s  are  frightened  but  not 
otherwise  injured,  and  the  robber  takes  several  hundred  doUai's.  Taking  these 
factors  into  consideration,  the  presumi>tive  sentence  for  a  tirst  offender  might  be 
set  at.  say,  two  years.  The  ))resence  of  legislatively  specified  mitigating  or  ag- 
gravating circumstances  could  be  used  by  the  trial  .iudge  to  raise  or  lower  the 
presumptive  sentence:  to  raise  it,  for  exami)le,  in  the  case  of  the  robber  who 
terrorizes  his  elderly  victims  by  cocking  a  pistol  held  at  their  heads ;  to  low^er 
it  in  the  case  of  the  robber  who  nervously  uses  a  toy  gun  in  a  desperate  attempt 
to  rob  enough  money  to  pay  for  his  child's  operation.  So,  too,  prior  convictions 
would  increase  the  presumptive  sentence  by  a  si>ecified  percentage,  perhaps 
2r»9f.  On  appeal,  there  would  be  a  presumption  against  any  departure  from  the 
range  of  presumptive  sentences,  which  would  at  once  pressure  sentencing  judges, 
to  remain  within  the  presumptive  range  and  yet  leave  them  some  needed  flexibil- 
ity to  go  outside  it  in  truly  extraordinary  cases. 

As  may  be  clear  to  you  by  now,  my  jiosition  is  liasically  in  accord  with  that 
set  forth  in  the  sentencing  provisions  of  S.  1437.  with  some  reservations.  The 
system  of  presumptive  sentencing  which  I  sketched  earlier  is  a  schematic  one, 
and  I  would  like  to  note  some  of  the  instances  in  which  I  believe  this  bill  departs 
from  that  model. 

First  of  all.  I  applaud  tlie  innovative  step  taken  by  the  creation  of  a  Sentencing 
Commission  to  devehip  (iuidelines  for  the  use  of  judges  and  tlie  Parole  Commis- 
sion. As  noted  previously,  the  absence  of  meaningful  guidelines  has  contributed 
to  the  glaring  disparity  in  sentences  meted  out  by  different  judges  for  comparable 
crimes.  I  welcome  this  development,  however,  with  serious  concern  for  the  com- 
position of  the  Commission,  which  is  to  be  appointed  by  the  Judicial  Conference 
of  the  United  States.  I  would  hope  and  expect  that  the  nine  members  of  this 
Commission  would  be  suitably  familiar  with  the  problems  involved  in  sentencing, 
and  that  such  exiicrtise  will  be  the  sole  ba.sis  for  appointment. 

The  promulgation  of  Guidelines  leads  me  to  hope  that  the  Commission  will 
not  set  the  range  of  presinnptive  sentences  higher  than  is  necessary.  That  is  a 
danger  which  lurks  in  systems  that  focus  on  the  atypical  offender — the  particu- 
larly heinous  criminal — and  one  which  I  hope  may  be  avoided. 

The  American  Civil  Liberties  Tnion  has  critized  the  maximum  authorized 
terms  set  forth  in  this  bill  as  being  far  too  high  ;  I  would  join  in  that  criticism, 
especially  if  those  maximmns  came  to  jilay  a  substantial  i)art  in  establishing 
the  I'ange  of  presumptive  sentences.  If  indeed  the  maxinuim  is  designated  as  the 
extreme  to  which  a  judge  may  go  in  the  extraordinary  case,  my  concerns  would 
be  reduced.  But  I  would  certainly  object  to  a  presumptive  sentencing  range 
wliich  approached  the  maxinmms  provided  for.  or  indeed,  one  which  was  set 
even  at  the  mid-point  between  tlie  minima  and  tlie  maxima  established  by  the 
provisions  of  the  Proposed  Code.  In  short,  it  is  important  that  these  maxima  not 
serve  as  the  basis  or  even  as  a  guideline  for  the  presumptive  sentence  range. 
The  value  of  the  presumptive  sentencing  procedure  lies  in  its  ability  lioth  to  pro- 
vide certainty  and  fairness  by  placing  the  vast  majority  of  similar  ci-imes  within 
a  narrow  ranee  of  sentences,  and  to  jirovide  the  flexibility  necessary  to  deal  with 
extraordinarily  different  crimes  of  the  same  genre  by  reaching  either  above  or  be-^ 
low  this  range.  Consequently  it  is  not  necessary,  and  would  be  a  mistake,  to  set 
the  range  too  high  :  if  aggrevating  cirmumstances  ai-e  present  the  trial  judge 
may  deal  with  the  sentence  accordingly.  But  once  having  establislied  a  range, 
tlie  tendency  of  judges — and  proi)erly  so — will  be  to  place  nearly  all  defendants 
convicted  of  that  j)articular  crime  within  that  range.  Thus  it  is  imperative  that 
the  fear  of  "letting  him  off  easy"  not  be  allowed  to  drive  up  the  range  to  un-^ 
necessary  heights,  thereby  inordinately  penalizing  the  average  defendant.  There- 


9046 

fore,  the  range  must  be  kept  narrow  and  low,  and  reliance  placed  on  judicial  dis- 
cretion to  go  beyond  it  when  circumstances  so  dictate.  Moreover,  I  must  em- 
phasize that  if  the  range  is  set  too  high,  it  simply  will  not  work.  History  has 
taught  us  that  we  pay  for  every  increase  in  severity  by  a  decrease  in  c-crtaintu, 
and  that  certainty  is  far  more  impotraut  than  severity  in  reducing  crime. 

It  would  be  a  sure  sign  of  failure  of  the  proposed  sentencing  system  if  it  re- 
sulted in  more  total  person-days  of  imprisonment;  its  goal  is  to  improve  the 
justice  and  effectiveness  of  sentencing  without  creating  more  imprisonment— 
without  requiring  additional  prisons.  This  admirable  goal  is  achievable  only  if 
we  have  the  courage  to  keep  presumptive  sentences  at  a  reasonaide  level  of 
severity,  while  increasing  the  certainty  that  the  vast  majority  of  convicted  seri- 
ous criminals  will  receive  some  serious  punishment. 

I  also  favor  the  provision  in  this  propo.sed  code  [§  2003(b)]  compelling  the 
court  to  state,  at  the  time  of  sentencing  and  in  open  court,  the  general  reasons 
for  its  imposition  of  the  particular  sentence,  and  particularly  of  the  obligation 
to  set  forth  the  reasons  for  any  sentence  outside  the  presumptive  range.  How- 
ever, I  would  prefer  that  there  be  a  presumption  in  favor  of  a  sentence  within 
the  applicable  range,  an  element  which  is  not  explicitly  provided  for  at  present. 
Also  in  the  realm  of  sentencing  review,  I  am  troubled  by  the  provision  [§3725 
(a)  (1)]  denying  a  felony  defendant  review  of  a  sentence  higher  than  the  max- 
imum established  in  the  Guidelines  if  "the  sentence  is  consistent  with  policy 
statements  issued  by  the  Sentencing  Commission  pursuant  to  28  U.S.C.  994(a) 
(2)."  I  believe  that  any  sentence  outside  the  presumptive  range  should  lie  appeal- 
able of  right ;  to  allow  a  policy  statement  of  the  Commission  to  provide  a  justifica- 
tiou  for  denying  review  threatens  to  vmdermine  the  impact  of  the  presumptive 
range.  The  central  function  of  the  Commission  is  to  create  such  ranges  in  order  to 
infuse  a  greater  degree  of  certainty  into  sentencing,  and  subsequent  jiolicy  state- 
ments susceptible  of  varying  interpretations  should  not  be  warrant  for  overriding 
this  purpose  without  review. 

I  shoukl  note,  also,  my  objections  to  this  bill's  mandatory  sentencing  provi- 
sions, particularly  as  to  trafficking  in  an  opiate  [§  1811].  and,  to  a  lesser  degree, 
to  tlie  use  of  weapons  in  the  commission  of  a  crime  [§  1823].  Again,  mandatory 
sentences  address  the  problem  of  discretion  only  at  the  minimum  end  of  the 
spectrum :  the  tioor  and  not  the  entire  house,  and  are  in  any  case  incapable  of 
truly  impartial  enforcement. 

In  sum,  I  would  stress  again  my  behef  that  the  time  has  now  come  for 
greater  certainty  and  uniformity  in  sentencing,  a  principle  which  I  believe  may 
be  furthered  by  tlie  proper  employment  of  a  system  of  presumptive  sentencing 
such  as  this  bill  contemplates.  I  think  the  creation  of  a  Sentencing  Commission 
is  an  important  step  in  the  necessary  move  to  rein  in  the  untrammeled  discre- 
tion of  judges  and  parole  boards.  Rut  I  caution  that  the  Commission  must 
remain  ahiof  from  pressures  which  would  disserve  these  goals;  its  fimclion  is  to 
narrow  the  permissil)!e  range  of  sentence  in  all  but  the  extraordinary  cases.  If  it 
chooses  to  set  the  range  high  in  response  to  external  i)ressures.  "it  will  have 
frittered  away  an  unusual  opportunity  for  truly  significant  reform  of  our 
criminal  justice  system. 

Mr.  Dkrsiiowitz.  In  my  view,  and  one  of  the  reasons  I  now  favor 
tlie  enaciiiiont  of  tliis  bi]l,"is  that  tlie  sentencinir  provisions  of  the  pro- 
posed criminal  code  are,  I  think,  the  most  sijrnificant  aspect  of  this 
important  codilication. 

Indeed,  I  wonld  "fo  so  far  as  to  say  that  these  sentencing  provisions 
may  very  well  constitute  the  most  enduring  and  far-reaching  criminal 
law  reform  of  this  century.  That  may  sound  grandiose,  but  I  think  in 
light  of  the  important  role  that  senleucing  i)lays  in  (he  criminal  jus- 
tice system  of  this  countiy,  and  in  light  of  the  fact  that  so  little  at- 
tention has  been  paid  to  it  in  the  past,  a  systematic  new  approach  to 
sentencing,  which  incorpoi'ates  considerations  of  fairness  and  equity, 
as  Ave  11  as  etliciency,  can  make  the  major  dillerencc  in  our  approach  to 
crime. 

As  I  point  out  in  my  prepared  statement,  the  imposition  of  sen- 
tence, not  only  is  the  most  important  aspect  of  the  criminal  justice 


9047 

system,  but  for  a  great  many  defendants,  it  may  indeed  be  the  only  ju- 
dicial aspect  of  our  criminal  justice  system,  since  the  vast  majority 
of  criminal  defendants  do  not  have  an  actual  trial.  Their  "trial"  is 
the  sentencing  proceeding  itself.  Although  in  recent  years  there  has 
been  a  great  deal  more  attention  devoted  to  this  process  of  sentencing, 
it  is  one  which  has  been  considerably  neglected  by  legislatures  through- 
out the  country,  and  also  by  scholars.  I  think  we  academics  have  to  take 
responsibility  as  well.  It  should  be  no  surprise  that  the  lack  of  guide- 
lines and  the  lack  of  law  on  the  issue  of  sentencmg,  has  enured  pri- 
marily to  the  disadvantage  of  the  poor,  the  disadvantaged  of  other 
minorities  who  suffer  grievously  from  the  lack  of  equity. 

The  statistics  are  appalling.  I  need  not  quote  them  here.  They  have 
been  quoted  repeatedly,  indicating  that  both  in  Federal  and  State 
courts,  when  both  the  crime  and  the  previous  history  of  the  offender 
are  held  equal,  black  and  minority  offenders  fare  considerably  worse 
in  discretionary  sentencing  by  judges  than  I  think  they  w^ould  under 
the  proposals  that  are  being  considered  today. 

As  Judge  Frankel,  who  has  testified  here,  indicates :  These  dispari- 
ties simply  cannot  be  explained  by  reference  to  differences ;  that  is,  rela- 
tive differences  among  the  criminals  charged  and  convicted.  They  are 
primarily  a  function  of  the  different  views  felt  and  expressed  by  dif- 
ferent judges. 

As  indicated  in  the  prior  testimonj^,  perhaps  there  will  be  500  judges 
and  when  one  considers  the  number  of  State  judges  who  impose  sen- 
tences today,  the  amount  of  disparity  is  simply  staggering. 

I  will  not  go  into  the  studies  that  have  been  made.  They  have  been 
alluded  to  by  previous  witnesses. 

I  think  this  committee  can  take  as  a  given — I  do  not  think  there  is 
any  dispute  about  that — that  sentencing  disparity  in  this  country  is 
rampant  and  that  virtually  everybody,  regardless  of  their  view  on 
criminal  justice,  wants  to  see  change  in  the  system  reduction  of 
disparity. 

The  only  remaining  dispute  really  is  how  much  we  narrow  the  ex- 
isting disparity.  Should  we  opt  for  fairly  radical  provisions  such  as 
flat  time  sentencing  provisions  which  require  the  judge  to  impose  a 
single  sentence  and  require  the  defendant  to  serve  it?  Should  we  opt 
for  the  kind  of  flat  time  sentencing  provisions  which  enable  the  judge 
to  select  from  a  wide  range  of  legislatively  prescribed  sentences,  but 
whatever  sentence  he  picks  is  a  flat  time  sentence;  that  is,  must  be 
served  in  full  ? 

That  kind  of  flat  time  sentencing  is  simply  an  abolition  of  parole. 
It  does  not  address  the  problem  of  disparity  at  the  judicial  level; 
indeed,  the  disparity  would  probably  be  fare  worse  because  I  think  the 
prior  witness  is  correct  when  he  points  out  that  the  Parole  Board  does 
serve,  in  its  own  way,  the  function  of  reducing  disparity. 

Indeed,  one  of  the  original  functions  of  parole,  when  enacted  in  this 
country,  was  to  reduce  the  disparity  of  sentencing.  Historically,  parole 
comes  just  at  about  the  time  when  legislatively  fixed  sentences  are  on 
the  way  out. 

One  centralized  parole  agency,  whether  in  the  Federal  Government 
or  in  the  State,  simply  by  the  very  nature  of  the  fact  that  it  is  a  small 
cohesive  group,  will  have  less  disparity  than  several  hundred  judges 
operating  around  the  country.  ^    .  .^.. 

93-4G5 — 77 31 


9048 

Perhaps  at  this  point  it  would  be  appropriate  to  address  myself  to 
the  remarks  made  by  the  previous  witnesses  because  I  think  they  make 
a  telling  argument,  but  one  wliich  ultimately  I  think  misses  the  point 
of  the  appropriate  function  of  parole  in  our  society. 

The  argument  is  simply  this.  It  is  a  tautology :  The  more  you  cen- 
tralize sentencing,  the  less  the  disparity  will  be.  If  j^ou  have  10  people 
deciding  on  sentencing,  there  will  be  less  disparity  than  if  you  have 
500  people.  It  does  not  matter  whether  the  10  people  are  judges  or 
parole  officials.  If  you  had  a  system  whereby  10  judges  in  the  United 
States  were  to  determine,  one  a  full-time  basis,  all  of  the  sentences  for 
the  Federal  defendants,  then  there  would  be  considerably  less  dis- 
parity. There  would  be  10  points  of  view.  The\'  would  be  acting  col- 
lectively and,  therefore,  even  the  10  points  of  view  would  tend  to  be 
compressed  into  perhaps  only  one  or  two  or  three  points  of  view. 

So,  I  think  there  is  some  truth,  necessarily,  to  the  fact  that  the  more 
you  centralize  sentencing,  the  more  equality  there  will  be  and  also 
perhaps  the  more  rigidity  there  will  be.  There  is  always  that  trade-otf. 
As  I  think  the  last  witness  Avas  candid  to  acknowledge  that  it  has 
nothing  really  to  do  with  the  passage  of  time,  whether  it  be  the  four 
weeks  or  the  years  that  niay  come  between  the  judicial  imposition  of 
sentencing  and  the  parole  amelioration  of  that  sentencing.  The  time 
is  not  the  factor,  and  the  personnel  is  not  the  factor.  It  does  not  mat- 
ter whether  they  are  judges  or  parole  officials. 

It  is  just  that  the  fewer  there  are,  the  more  centralization  and  the 
less  disparity  there  will  be. 

That  is  not,  however,  an  argument  for  the  retention  of  parole.  It 
is  perhaps  an  argument  for  some  kind  of  centralization  of  sentencing. 
It  may  very  well  be  that  since  we  have  an  existing  parole  board,  and 
since  in  the  area  of  criminal  law  reform,  one  does  not  like  to  move  in 
groat  leaps — one  likes  to  move  incrementally — that  there  might  be  an 
argument  for  retaining  this  function  for  a  limited  period  of  time  as 
a  kind  of  phasing  out  process. 

I,  myself,  favor  the  retention  of  some  kind  of  parole  authority  pre- 
cisely for  the  kinds  of  cases  that  the  last  witness  alluded  to  at  the  end 
of  his  testimony.  There  are  going  to  be  special  circumstances  that 
arise  during  the  course  of  the  prisoner  serving  his  sentence.  Whether 
they  be  considerations  of  illness,  or  whether  tliey  be  considerations  of 
safety,  or  whether  they  be  unique  educational  oppoi-tunities,  or 
whether,  despite  Martinson's  studies,  there  is  the  rare  defendant  who 
truly  is  rehabilitated,  then  there  are  going  to  be  certain  factors  which 
come  into  operation  during  the  course  of  the  prison  sentence. 

For  that  reason,  I  personally  would  like  to  see  more  authority 
retained  for  a  small  amount  of  discretion  to  ho  handled  in  individual- 
ized cases,  but  not  a  discretion  to  determine  the  actual  sentence. 

For  example,  it  seems  to  me  a  person  who  is  sentenced  to  serve  two 
years,  and  that  two-year  sentence  expires  in  November,  and  he  has  a 
rare  educaticmal  opportunity  that  begins  in  September,  and  that  ed- 
ucational op])ortunity  was  not  known  or  could  not  have  been  known  to 
the  sentencing  judge,  or  a  rare  work  opportunity,  then  it  seems  to  me 
there  is  every  reason  for  allowing  the  group  of  experts — not  to  make 
jjolicy  or  broad  determinations  as  to  what  this  person  deserves — but  to 
make  technical  expert  decisions  involving  the  need  to  fit  the  precise  and 
tailored  punishment  to  this  person's  individual  needs. 


9049 

That.  T  think,  does  not  conflict  with  the  basic  thrust  underlying  the 
sentencing  proposal  suggested  here.  It  seems  to  me  that  it  fits  exactly 
into  the  spirit  of  what  this  committee,  I  think,  is  doing,  Avliich  is,  that 
it  is  not  seeking  to  adopt  an  academic  model.  It  is  seeking  to  adopt 
a  practical  compromise  which  steers  the  delicate  course  between  the 
Scylla  and  Charybdis  of  much  too  inflexible  flat-time  sentencing  and 
much  too  discretionary  indeterminate  sentencing. 

Eveiy  good  piece  of  legislation  in  that  respect  involves  compro- 
mises. The  job  of  the  academic  is  to  create  models,  not  to  suggest  com- 
promises. I,  for  one,  would  not  want  this  committee  to  adopt  the  kinds 
of  models  that  I  personally  have  suggested  in  the  academic  literature. 
I  do  not  have  the  background  and  the  knowledge  to  know  how  that  is 
going  to  operate  in  the  real  world  of  politics.  That  is  the  job  of  the 
committee.  That  is  the  job  of  the  Congress. 

For  that  reason  I  strongly  favor  the  modification  that  lias  been  made 
by  this  committee  of  the  presumptive  sentencing  suggestions  I  have 
made  in  an  academic  setting. 

Let  me  speak  to  those  briefly  for  one  moment. 

Before  I  do  that,  let  me  return  to  one  point  on  parole  before  I 
forget  it. 

I  think  it  is  extremely  important  the  decision  whether  to  abolish 
the  Parole  Board  be  made  in  absolutely  practical  teiins  with  a  cautious 
eye  toward  seeing  what  its  real  impact  will  be  on  the  duration  of 
sentences. 

If  the  abolition  of  the  Parole  Board  results  in  people  serving  far 
more  time  than  thev  currently  serve,  then  that  would  be  a  failure. 
If  the  Parole  Board  is  going  to  be  abolished,  or  phased  out,  or  changed 
in  its  function,  or  converted  from  a  major  policy  making  organization 
to  an  expert  technical  organization,  then  the  presumptive  sentences,, 
or  the  guideline  sentences,  have  to  be  reduced  accordingly  to  reflect  the 
fact  that  under  existing  approaches,  a  sentence  of  five  years  is  seen  by 
everybody  in  the  process  as  really  a  sentence  of  two  years. 

What  we  cannot  tolerate  is  the  situation  where  sentencing  remains 
the  same  and  where  the  parole  reduction  is  eliminated,  and  the  net 
result  is  to  build  far  more  prisons  than  are  needed  and  to  keep  far  more 
people  in  jail  for  longer  periods  of  time. 

iSTow  let  me  turn  briefly  to  presumptive  sentencing  and  how  I  think 
it  is  very  well  incorporated  into  this  bill.  The  idea  of  presumptive 
sentencing  is  that  instead  of  legislators  only  deciding  what  the  worse 
criminal  would  get,  that  is,  the  maximum,  and  what  the  best  criminal 
gets,  that  is,  the  minimum,  the  legislature,  or  somebody  delegated  by 
the  legislature,  has  the  responsibility  to  determine  what  the  typical 
average  offender  will  get. 

I  know  we  do  not  like  to  hear  words  like  "typical  average  offenders". 
It  is  kind  of  demeaning.  It  is  insulting.  Everybody  is  different.  There 
is  no  typical  average  offender,  just  as  there  is  no  typical  average  law 
student  or  applicant  for  admission. 

But  really  there  are.  When  one  looks  at  the  data,  one  finds  that  the 
average  armed  robbery,  for  example,  is  committed  by  somebody  who 
fits  into  relatively  narrow  circumstances. 

I  will  not  go  into  the  circumstances  here.  They  are  outlined  in  my 
prepared  testimony.  But  many  armed  robbers  are  amazingly  similar. 


r9050 

Even  if  they  are  reall.y  different  and  even  if  their  souls  and  hearts  are 
different,  these  are  not  the  considerations  tliat  judges  take  into  ac- 
count in  sentencing. 

Judges,  in  fact,  take  into  account  only  a  small  number  of  factors 
which  this  committee  is  fully  capable  of  articulating  and  fully  capable 
of  assigning  weight  to,  or  at  least  articulating  and  having  a  commis- 
sion assign  weight  to. 

So  the  idea  of  presumptive  sentencing  is  to  shift  back  to  the  legis- 
lature the  responsibility  for  determining  what  typical  offenders  should 
get  for  typical  first  offenses. 

At  the  same  time,  presumptive  sentencing  does  not  surrender  to  the 
temptation  of  having  one  sentence  for  every  crime.  AVe  simply  do  not 
have  the  human  capability  of  knowing  in  advance  every  factor  that 
will  operate  in  a  given  crime  on  a  given  defendant. 

The  vast  majority  of  criminals,  who  are  fairly  typical  by  definition, 
should  receive  a  fairly  typical  sentence,  articulated  in  advance  by  some 
group,  whether  it  be  a  committee  or  commission,  but  some  group  des- 
ignated by  Congress. 

But  there  is  flexibility  for  any  judge  to  use  the  judicial  ability  for 
which  he  has  been  selected  to  tliat  important  position  on  the  bench. 
There  is  the  factor  of  discretion  in  unusual  situations.  In  presumptive 
sentencing  you  build  that  in  by  calling  the  sentence  "presumptive", 
that  is.  we  are  to  presume  that  the  sentence  will  fall  into  a  narrow 
range,  but  if  the  judge  has  good  reasons  which  he  can  articulate  for 
taking  tlie  sentence  outside  of  that  range,  then  he  is  encouraged  to  write 
those  reasons  out  and  to  impose  any  sentence  which  Congress  has  spec- 
ified within  minimum-maximum  range. 

The  proposal  suggested  in  this  bill  is  somewhat  different  in  detail, 
but  in  purpose  and  effect,  they  are  very  similar.  What  it  basicall}'  does 
is  it  says  there  should  be  a  commission,  "hopefully  of  experts",  as  part 
of  the  judicial  system  of  this  country  so  as  to  avoid  problems  of  sepa- 
ration of  powers  and  to  give  the  judiciary  what  the  judiciary  essen- 
tially is  entitled  to  do  under  tlic  Constitution,  which  is  to  fit  the  punish- 
ment to  the  particular  crime. 

So  there  will  be  a  judicial  body.  That  body  will  set  out  presumptive 
ranges.  They  are  not  called  presumptive,  l)ut  in  effect 

Senator  Kennedy.  What  about  the  makeup  of  that  panel  ?  There 
have  been  those  that  ha^'e  suggested  that  it  be  more  representative  and 
not  just  judicial.  W^hat  about  tliat  ? 

Mr.  Dkusiiowitz.  I  am  concerned  that  tlie  body  not  be  a  political 
body  in  the  sense  of  iiot  being  a  body  that  is  immediately  responsive 
to  some  of  the  baser  instincts  that  x)eople  in  this  country  temporarily 
feel  when  there  is  a  crimewave  or  when  there  is  concern  about  in- 
creasing crime.  I  think  it  would  be  independent  and  insulated,  but 
nonetheless  ultimately  responsible. 

If  we  could  know  in  advance  what  kinds  of  people  would  serve  on 
the  Commission,  I  tliiidv  we  Avould  have  a  better  opportunity  to  know 
whether  a  judicial  appointed  Counnission  would  be  better  than,  let  us 
say,  a  mixed  Connnission. 

i  am  satisfied,  personally,  with  the  judicially  selected  Commission, 
so  long  as  the  message  is  clear  to  the  judicial  cojiference  that  what  is 
sought  is  expertise  and  what  is  sought  is  a  wide  range  of  views  and 


9051 

what  is  soii<Tlit  is  insulation  from  the  immediate  pressures.  One,  of 
course,  has  to  have  some  degree  of  hope  and  faith  that  the  commis- 
sion will  be  appointed  in  that  spirit.  . 

There  is  no  guarantee.  I  think  the  American  Civil  Liberties  Union 
has  a  point  when  it  says  that  we  have  to  hold  back  ultimate  decisions 
about  whether  or  not  this  is  going  to  w^ork  until  we  see  what  kinds 
of  people  are  appointed  to  the  Commission  and  what  kinds  of  guide- 
lines they  actually  set  out. 

I,  for  one,  thiiik  the  judicial  conference  probably  is  as  good  an  ap- 
pointing body  as  one  can  come  up  with. 

Senator  Kennedy.  Should  it  be  just  judges  ? 

Mr.  Dersiiowitz.  Oh,  no.  I  would  not  think  the  people  appointed 
to  the  Commission  should  be  just  judges.  I  would  hope  there  would  be 
some  judges  and  that  there  would  be  some  experts.  I  would  hope  that 
they  would  reflect  the  wide  and  rich  diversity  ethnically  and  in  terms 
of  gender  and  race  that  we  have  in  this  country.  I  would  think  it  should 
reflect  a  wide  spectrum  of  views.  I  think  it  should,  with  all  due  respect, 
include  some  academics  and  experts,  either  in  staff  capacities  or  in 
Commission  capacities. 

But  it  should  not  consist — and  I  do  not  think  the  bill  indicates — 
that  it  should  consist  entirely  of  judges.  I  think  that  would  be  a  mis- 
take. I  think  the  problem  would  be  that  judges  might  turn  out  to  be 
somewhat  too  protective  of  the  judicial  prerogative  and  somewhat  too 
anxious,  conscientiously  or  unconscientiously,  to  preserve  an  existing 
status  quo  and  not  to  act  in  areas  which  might  be  seen  as  criticism  of 
their  colleagues  and  brothers  on  the  bench. 

I  think  it  is  tremendously  important  that  this  body,  however  it  is 
constituted,  understand  that  it  would  be  absolutely  gutting  the  pur- 
poses of  this  legislation  were  it  to  set  the  presumptive  sentences  very 
high  and  were  it  to  take  a  one-sided  prosecutorial  point  of  view,  on  the 
a]:)propriate  range  of  sentencing,  I  am  not  arguing  that  point  as  a  civil 
liberatarian,  which  I  am.  I  am  not  arguing  that  point  in  terms  of 
sentimentality  for  criminal  defendants.  I  want  to  make  this  point  as, 
I  thinlv,  somewhat  as  an  expert  in  this  field. 

History  has  taught  us  that  we  pay  for  every  increase  in  severity  by 
a  decrease  in  certaintj^  Moreover,  certainty  is  far  more  important  thaii 
severity  in  reducing  crime.  It  is  not  just  a  matter  of  muscle  flexing. 
If  you  set  presumptive  sentencing  high,  judges  and  proescutors  and 
defense  attorneys  and  the  system  will  find  ways  around  that  kind  of 
presumptive  high  sentencing. 

Evidence  comes  from  our  own  State,  Senator,  where  there  was  a  1- 
year  mandatory  minimum  imposed  for  gun  possession.  Without  taking 
into  account  the  diversity  of  factors  under  which  a  person  might  lind 
himself  possessing  a  gun,  consider  the  extreme  case  of  somebody  from 
New  Hampshire  legally  having  a  gun,  and  chasing  the  kidnapper  of 
his  son  across  State  lines,  and  being  found  in  Massachusetts  carrying 
that  gun  which  he  legally  had  in  New  Hampshire,  no  judge  or  prosecu- 
tor would  tolerate  sentencing  that  law-abiding  person  to  a  year  in 
prison.  That  case  actually  occurred  several  months  ago. 

Ways  are  found  around  high  sentences,  whether  they  be  called 
"mandatory"  or  "presumptive".  The  system  simply  will  not  work 
unless  we  are  willing  to  make  a  sacrifice  of  reducing  what  are  some- 


9052 

what  hif^her  sentences  in  the  interest  of  buying  j^reater  certaint}^  and 
the  hope  thereby  of  increasing  both  the  fairness  and  efficiency  of  the 
system. 

It  would  be  a  sure  sign  of  faihire  of  the  proposed  sentencing  system 
if  it  resulted  in  more  total  pei-son  days  of  imprisonment  than  the 
current  system.  Its  goal,  one  would  hope,  is  to  improve  the  justice  and 
effectiA-eness  of  sentencing  Avithout  creating  many  more  imprisonment 
than  currently  exists  and  without  requiring  the  building  of  any  addi- 
tional penitentiaries, 

I  think  this  admirable  goal  is  achievable  only  if  we  have  the  courage 
of  keeping  presumptive  sentences  at  a  reasonable  level  of  severity, 
wliile  increasing  the  certainty  that  the  vast  majority  of  convicted 
criminals  will  receive  some  substantial  punishment. 

There  is  one  detail  of  the  sentencing  bill  that  I  did  Avant  to  briefly 
address  myself  to,  because  I  do  disagree  with  it. 

That  is  section  3725(a)(1),  Maybe  I  misunderstand  it.  or  maybe 
there  is  a  policy  decision  there.  It  provides  that  there  should  be  auto- 
matic i-eview  of  sentencing  anytime  a  sentence  goes  bej'ond  the  pre- 
sumptiA^e  range. 

But  then  it  states  one  important  exception  that  there  Avould  not  be  an 
appeal  of  sentencing,  even  if  it  Avent  beyond  t]\e  range,  if  it  Avas.  and  I 
paraphrase,  consistent  Avith  the  policy  guidelines  of  the  Commission. 

It  seems  to  me  that  is  simply  too  general.  It  simply  gives  the  judge 
the  power  unequiA'ocably  and'  unilaterally  to  deny  api)ellate  rovicAV. 
All  the  judge  has  to  do  is  impose  a  sentence  outside  the  range  and  state 
that  is  consistent  Avith  the  policy  guidelines  of  the  Commission.  It  does 
not  even  require  him  to  explain  the  reason  Avhy  he  would  do  it  or  to 
justify  it  in  any  Avay. 

Obviously,  as  a  practical  laAvyer.  it  cannot  Avork.  If  the  judge  states 
it  is  consistent  Avith  the  policy  guidelines,  then  the  defense  attorney 
certainly  has  the  right  to  say  that  it  is  not  consistent.  Then  you  have  an 
appeal  as  to  whether  there  is  a  right  to  an  appeal.  That  simply  dj-o- 
lifciates  the  problem. 

Senator  Kennedy.  We  Avill  change  that. 

Mr.  Dersiioavitz.  Good.  I  am  sorry  to  haA'e  taken  the  committee's 
time  on  that. 

[Laughter.] 

Mt\  DERSnoAvaTZ.  That  is  probably  just  a  technical  change. 

I  have  really  finished  my  remarks,  I  think,  on  the  sentencing  pro- 
visions Avhich  again,  let  me  ap]ilnud  you  for  and  indicate  how  impor- 
tant I  think  they  are.  I  do  luna'  certain  other  observations  al)out 
changes  I  think  would  be  Avairanted  in  the  code  if  you  Avant  me  to 
addiess  myself  briefly  to  that. 

Senator  Kennedy.  Go  right  ahead. 

Mr,  DEUsiioAvrrz.  In  the  area  of  victimless  ci'ime.  my  own  views, 
and  the  vieAvs  of  the  ACLU  are  Avell  knoAvn.  I  Avill  not  try  to  pei-suade 
this  committee  to  adopt  those  views,  Tiie  vicAvs  are  generally  that  vic- 
tindess  crimes  should  not  be  legislated,  but  again  I  Avill  not  si)eak  to 
tliat. 

AVhat  T  Avill  speak  to  is  the  A'ery  serious  problem  of  federalism  that 
1  thiidc  exists  in  the  current  code  as  to  tAvo  major  provisions  but.  has 
been  eliminated  interestingly  enough  as  to  a  third  nuijor  provision. 
The  problem  is  simply  stated  as  follows. 


9053 

The  Federal  Government  may  have  very  different  views  than  certain 
States  may  have  on  the  use  of  marihuana  or  the  availability  of  sexually 
explicit  material. 

Certain  areas  of  Michigan,  for  example,  are  experimenting,  withm 
the  tradition  of  Brandeis'  great  laboratory  concept  with  the  decrim- 
inalization of  marihuana.  Iowa  experimented  and  may  still  be  doing 
it  with  the  decriminalization  of  certain  sexual  explicit  material  not 
available  to  minors  and  not  thrust  on  unconsenting  adults. 

For  purposes  of  this  testimony  I  do  not  think  it  is  important  for 
any  of  us  to  decide  who  is  right  and  who  is  wrong  or  whether  Michi- 
gan is  more  correct  than  its  neighboring  State,  or  whether  Iowa  is 
more  correct  than  its  neighboring  State. 

I  think  the  important  thing  is  that  States  should  be  entitled  to 
experiment. 

Tliis  bill  does  not  enable  States  to  experiment  in  a  iTalistic  way. 
What  it  says  basically  is  that  even  though  it  is  not  illegal  for  some- 
body to  possess  a  certain  amount  of  marihuana  in  Michigan  as  a  matter 
of  State  law,  he  still  cannot  possess  it  because  it  is  illegal  as  a  matter 
of  Federal  law. 

Even  though  the  citizens  of  Iowa  are  entitled  to  read  certain  mag- 
azines under  State  law,  they  may  not  be  entitled  to  get  those  mag- 
azines under  Federal  law. 

It  seems  to  me  that  the  provision  of  the  code  as  it  relates  to  prostitu- 
tion in  1843  (c) ,  adopts  a  model  which  I  think  is  appropriately  a  balance 
between  the  interests  of  States  and  the  Federal  Government. 

It  says  there  that  if  the  matter  is  legal  within  the  State,  then  it  is  a 
defense  to  a  charge  of  Federal  crime.  I  strongly  urge  that  similar 
defenses  be  written  in  to  all  victimless  crime  provisions,  particularly 
the  sexually  explicit  material  provision  and  the  drug,  particularly 
marihuana,  and  perhaps  other  "soft  drug"  provisions  as  well. 

I  think  it  gives  the  Federal  Government  what  it  is  entitled  to  and  it 
gives  the  State  what  they  are  entitled  to,  and  most  importantly,  it 
gives  the  citizens  of  a  particular  State  what  they  are  entitled  to.  It 
is  in  keeping  with  the  spirit  of  experimentation.  It  is  in  keeping  with 
the  appropriate  Federal  role  which  in  this  area,  after  all,  is  as  an 
aid  to  State  enforcement. 

If  you  look  at  the  legislative  history  behind  these  provisions,  they 
are  definitely  designed  as  an  aid  to  State  enforcement.  The  Federal 
Government  comes  in  and  prosecutes  those  people  who  are  involved 
in  national  distribution  where  the  State  may  have  a  problem  of 
prosecuting. 

But  it  turns  the  problem  on  its  head  to  say  that  the  Federal  Govern- 
ment may  prosecute  where  the  State  does  not  want  to  prosecute. 

Lest  anybody  feels  this  is  hypothetical,  let  me  alert  you  to  a  Supreme 
Court  decision  rendered,  I  think  2  weeks  ago  today,  involving  the  State 
of  Iowa  where,  in  fact,  somebody  was  prosecuted  for  Federal  mail 
violations  for  sending  allegedly  obscene  material  within  the  State  of 
Iowa.  It  did  not  even  go  out  of  the  State  of  Iowa.  The  package  was 
sent  from  somebody  who  sent  it  legally  under  State  law  to  somebody 
who  received  it  legally,  and  nonetheless  the  Federal  Government  came 
in  and  prosecuted.  The  Supreme  Court,  in  a  split  decision,  upheld, 
that  provision. 


9054 

But  there  is  no  oblifjation  on  Congress  to  enact  a  law  permitting  that 
kind  of  prosecution.  The  Supreme  Court  did  not  say  that  those  kinds  of 
statutes  are  mandatory  or  even  desirable.  All  they  said  is  that  they  are 
not  so  inconsistent  with  the  constitution  as  to  warrant  invocation  of  the 
extraordinary  remedy  of  declaring  it  unconstitutional. 

Senator  Kexxedy.  I  suppose  the  Federal  Government  ought  to 
be  using  its  resources  in  other  areas  anyway,  shouldn't  it? 

Mr.  Dershowitz.  Yes;  that  is  the  more  general  argument,  but  cer- 
tainly at  least  this  potentially  dangerous  situation  warrants  a  change. 

Another  change  which  I  had  hoped  to  see  achieved  and  it  had  been 
under  discussion,  but  I  notice  it  has  not  been  incorporated  in  the  leg- 
islation, is  tJie  venue  pi'ovisions  of  section  Soil. 

Under  existing  Federal  law,  anybody  can  be  prosecuted  for  a 
Federal  crime  in  the  district  where  any  minor  aspect  of  the  crime 
occured.  like  even  a  letter  sent  through  the  mail. 

The  civil  law,  1  think,  has  achieved  a  far  more  appropriate  balance. 
It  requires  that  in  order  for  a  case  to  be  brought  in  the  district,  it  is 
essential  that  that  district  has  to  have  significant  contracts  and  signifi- 
cant ties.  It  is  discretionary.  It  gives  a  judge  great  power  to  determine 
where  the  case  should  be  brought,  but  under  existing  Federal  law, 
there  is  no  power  in  the  judge  at  all.  The  power  lies  exclusively  in  the 
prosecutor.  It  is  not  fair.  It  permits  the  prosecutor  to  take  somebody 
from  his  home  town  and  put  him  on  trial  in  a  district  where  he  has 
never  been  in  his  life  and  where  no  part  of  the  crime  really  took  place, 
but  where,  as  a  result  of  the  fortuities  of  mail,  or  tlie  fortuities  of 
the  messenger  service,  venue  happened  to  be  found  mider  these  varied 
laws. 

I  would  recommend  a  change  in  that  area. 

Senator  Kenxedy.  Yes.  We  are  attempting  to  make  some  important 
adjustments  on  that.  That  is  a  good  suggestion. 

Mr.  Dershowitz.  One  other  area  that  I  would  again  bring  to  your 
attention  is  this.  I  know  it  is  controversial.  It  deals  with  oral  false 
statements. 

The  existing  law  is  no  better  than  the  proposed  law  because  the 
existing  law  as  well,  is  a  shambles  in  this  area. 

As  indicated  previously,  it  is  worse  because  it  carries  harsher  penal- 
ties for  making  a  statement  not  under  oath  under  certain  circum- 
stances, than  if  the  statement  were  made  under  oath. 

There  is  certainly  a  legitimate  interest  in  making  certain  oral  state- 
ments criminal.  An  obvious  example  is  any  kind  of  a  false  alarm  or 
any  kind  of  a  statement  made  to  law  enforcement  officials  Avhich  makes 
them  divert  their  efforts  from  one  direction  to  a  false  lead.  Ciying  fii*e 
in  a  theater  is  appropriately  criminal.  There  is  a  Avay  of  drafting  the 
statute  to  legislate  that  without  any  ambiguity.  "Wliat  I  am  concerned 
about  is  the  following  situation. 

A  Fodci-al  agent  walks  over  to  a  potential  criminal  defendant  on 
the  street  and  says,  "ITey,  I  would  like  to  talk  with  you  about  certain 
charges  that  have  been  leveled  against  you." 

He  says,  "I  am  innocent.  I  did  not  do  it." 

By  the  terms  of  this  statute,  that  very  prockmation  of  innocence, 
which  anybody,  you  would  think  under  our  American  sj'stem,  has  the 


9055 

right  to  claim,  could  constitute  a  criminal  act.  After  all,  it  is  a  false 
statement  if,  in  fact,  he  is  guilty.  It  is  made  to  a  law  enforcement 
official.  Even  though  he  has  not  been  warned  about  it,  but  he  has  volun- 
teei-ed  that,  and  the  voluntary  aspect  of  it  is  very  troublesome. 

I  can  understand  how  the  committee  and  the  draftsmen  made  the 
mistake  it  did.  They  tried  to  use  the  concept  of  the  Miranda  v^armng. 
The  Miranda  warning  does  have  an  exception  for  voluntariness,  but 
that  is  very  different.  He  is  not  being  charged  with  a  crime  for  making 
that  statement.  The  statement  is  true,  and  presumably  because  it  was 
spontaneously  uttered,  and  the  needs  that  people  feel  about  warnings 
do  not  exist  in  that  situation.  I  would  not  argue  with  that,  but  the  com- 
pelling need  to  warn  somebody  that  what  he  is  going  to  say  in  con- 
vers^ation  may  be  result  in  his  being  sentenced  to  a  substantial  amount 
of  time,  is  so  foreign  to  the  typical  American  experience,_that  I  think 
it  requires  more  careful  legislation  than  that  contained  in  the 
proposed  bill. 

I  think  that  most  Americans  understand  that  when  you  file  a  writ- 
ten statement,  then  you  must  tell  the  truth.  I  am  not  suggesting  that 
we  are  dishonest.  I  am  not  suggesting  that  the  lessons  of  Watergate  tell 
us  anything  about  the  general  morality  of  individuals. 

But  I  think  it  is  fair  to  say  that  Americans  today  do  not  think  it  is 
a  crime  to  say  something  that  turns  out  not  to  be  true  to  somebody 
even  if  he  is  a  law  enforcement  official. 

When  Congress  seeks  to  move  into  an  area  which  flies  in  the  face 
of  what  I  think  are  fairly  deeply  rooted  common  expectations,  then 
they  have  to  do  it  with  extraordinary  care.  I  think  this  statute  does 
not  reflect  the  kind  of  care  that  is  required  in  this  area . 

There  are  other  provisions  with  which  I  disagree.  Hopefully,  I  will 
continue  to  be  in  touch  with  the  committee,  and  I  will  provide  con- 
tinued suggestions,  particularly  as  to  certain  technical  changes  that  I 
think  can  be  made. 

I  only  want  to  highlight  one  more  general  area :  The  area  of  mental 
illness  commitment.  I  think  there  have  been  some  major  improve- 
ments in  existing  law  in  the  area.  I  think  there  is  one  suggestion  that 
I  would  like  to  propose,  which  I  think  can  also  add  a  dimension  of 
safety  and  security.  Today  if  a  person  is  found  not  quilty  by  reason  of 
insanity,  he  can  be  senteiiced  indeterminately.  Under  the  provisions 
of  this  bill,  he  can  still  be  sentenced  for  an  indeterminate  period  of 
time.  T  do  not  think  that  is  consistent  with  the  spirit  of  the  sentencing 
provisions  in  the  remainder  of  the  code. 

I  think  that  one  should  think  carefully  about  how  to  reconcile 
mental  illness  confinement  wtih  the  presumptive  sentence  provision 
of  the  code.  I  think,  in  general,  the  absolute  maximum  that  a  person 
should  be  able  to  be  held  if  he  is  found  innocent  of  a  crime  on  insanity 
grounds  is  the  maximum  he  would  have  been  held  for  if  he  were  found 
guilty  of  that  crime. 

If  he  continues  to  be  dangerous,  of  course,  he  can  be  civily  com- 
mitted, whether  by  State  or  Federal  authorities.  But  the  fact  of  con- 
viction of  a  crime,  coupled  with  mental  illness,  should  not  be  able  to 
result  in  confinement  for  more  than  the  maximum  time.  Indeed,  it 
might  be  mv  suggestion  that  the  committee  ought  to  at  least  think 


9056 

about  wliether  he  should  be  able  to  be  held  for  a  time  more  than  the 
jDresumptive  lange,  before  a  new  civil  commitment  proceeding  could 
be  instituted.  There  is  literally  no  danger  here.  If  we  have  one  of  the 
rare  cases  where  a  person  continues  to  be  dangerous,  there  are  adequate 
civil  commitment  provisions. 

But  the  remainder  of  that  part  of  the  code  is  a  substantial  improve- 
ment. As  you  know,  the  change  from  pi'epondercnce  of  the  evidence, 
the  ci\"il  standard,  to  clear  and  convincing  evidence,  1  think,  ade- 
quately reflects  the  diU'erence  betw-een  our  society's  feelings  toward 
money,  under  wliich  the  civil  standard  of  preponderance  generally 
operates  and  feelings  of  liberty  under  which  a  higher  standard,  such 
as  clear  and  convincing  should  operate. 

So,  I  think  that  is  an  area  where,  although  there  are  some  changes 
that  are  needed,  there  is  a  general  and  considerable  inq^rovement. 

1  liave  one  final  '^ummaiT  statement. 

I  think  the  bill  as  a  Avliole  is  a  substantial  inq)rovement  over  exist- 
ing law,  in  several  respects:  Codification  in  and  of  itself  is  a  substan- 
tial improvement.  I  think  also  several  inq)ortant  existing  problems  in 
the  prior  law  have  been  changed. 

Let  me  mention  just  one  and  make  an  ai'gument  that  n^.ight  not  be 
apparent  to  this  committee. 

I  have  recently  had  extensive  dealings  with  the  Soviet  Union  on  the 
issue  of  human  rights.  I  pai-ticipated  recently  in  an  international  de- 
bate on  human  rights,  I  can  tell  you  that  in  my  discussions  with  tlie 
Soviet  Union,  they  constantly  focused  on  the  Smith  Act,  saying.  ''Look, 
how  can  vour  President  be  so  concerned  with  huuian  riiihts  in  other 
parts  of  the  world  when  you  have  a  statute  on  your  books  under  wliich 
vou  can  go  around  prosecuting  Communists  for  membership  in  the 
party?" 

I  was  pleased  to  be  able  to  say  to  them,  "That  is  going  to  be 
changed."  That.  T  think,  is  an  important  message  sent  out  to  the  world 
community.  I  think  several  of  the  other  changes  that  have  been  made 
arc  consistent,  not  only  Avith  the  domestic  concerns  of  this  comiti-y, 
but  with  the  new  and  important  foreign  })olicy  initiative  undertaken 
by  President  Carter  in  trying  to  bring  a  semblance  of  human  rights 
to  other  counti-ies  in  the  Avorld  today. 

We  sim])ly  have  to  begin  at  home.  T  think  this  bill  j^rovides  an  im- 
portant begiiminir,  though  by  no  means  an  ending  point.  T.  foi-  oiun 
would  continue  my  efforts,  and  I  know  colleagues  will  continue  our 
effoi-ts  to  see  major  improvements  in  the  criminal  code. 

But  this  bill,  T  think,  should  be  passed. 

Senator  Ivp:xxEnY.  Let  me  just  ask  you  how  you  reached  the  con- 
clusion that  this  bill  is  a  net  gain  in  the  area  of  the,  civil  liberties  of 
the  American  people. 

Mr.  Di:i{siiowrrz.  It  is  a  comi)licated  process  to  decide  that  a  bill,  as 
long  and  as  conq)lex  as  this,  achieves  a  net  gain.  I  tried  to  use  several 
criteria  in  my  own  mind.  Is  not  codification  an  inq^ortant  net  gain  for 
civil  liberties?  I  think  the  answers  to  that  is  clearly  yes.  It  ])ermits  the 
citizenry  to  look  to  one  place  and  find  what  its  govermnont  is  saying  to 
them  about  crime.  It  i)rovides  much  more  adequate  fair  warning.  It 
reduces  discretion  by  prosecutors  to  charge  under  one  provision  rather 


9057 

than  another  for  identical  conduct.  And  it  provides  coherence.  As 
Justice  Black  once  said  many  j^ears  a^ro,  "Tyrants  in  the  old  days  used 
to  write  their  criminal  laws  in  print  so  fine  or  languages  so  strange  that 
citizens  could  not  read  it.'' 

Our  existing  criminal  code  was  not  quite  written  in  that  kind  of 
obscurity,  but  in  practice  it  provides  almost  as  great  an  obstacle  as  a 
foreign  tongue. 

So,  I  think  codification  in  and  of  itself  has  to  be  weighed  heavily. 

Second,  I  asked  myself  a  question.  Are  there  any  civil  liberties 
"hoirors"'  in  the  bill  ?  Are  there  any  ]3ro visions  which  are  so  intolerable 
to  tlie  mind  of  a  civil  libertarian  that  the  entire  bill  Avould  not  be  worth 
the  eifort  of  enactment? 

Although  I  can  say  I  think  there  were  some  provisions  in  the  old 
bill  which  could  be  reasonably  categorized  as  fitting  that  definition, 
there  are  none  in  the  existing  bill.  There  are  problems  in  the  existing 
bill.  There  are  areas  where,  if  I  had  the  last  word,  I  would  change 
them.  They  are  provisions  dealing  with  wiretaps  and  immunity  and 
})rovisions  where  I  think  the  balance  has  been  struck  somewhat  to  the 
disadvantage  of  those  accused  of  crime. 

But  those  are  all  within  reasonable  ranges  of  disagreement. 

INIoreover,  in  every  such  case,  we  see  nothing  w^orse  than  in  existing 
law.  When  one  combines  major  advantages  in  the  area  of  sentencing 
and  major  advantages  in  the  area  of  civil  commitment  and  major 
advantages  in  the  area  of  codification,  and  several  other  major  advan- 
tages— for  example,  the  decriminalization  of  small  amounts  of  mari- 
huana Avhich  will  hopefully  be  followed  over  the  years  with  increasing 
decriminalization — then  that  is  a  beginning  and  an  important  improve- 
ment. There  are  some  important  changes  in  the  crimes  of  advocacy. 

For  example,  eliminating  the  crimes  of  attempt  of  conspiracy  and 
solicitation  as  they  relate  to  certain  forms  of  CORE  political  advocacy. 

When  one  adds  into  the  balance  what  one,  I  guess,  could  call  perhaps 
a  dozen  major  substantive  civil  libertarian  changes,  and  one  finds  there 
are  really  no  changes  in  the  opposite  direction,  then  the  only  criticism 
one  can  really  make  of  the  code — and  it  is  an  important  criticism 
and  one  which  I  do  not  think  should  be  downplayed — is  the  criticism 
of  the  A(T^U  that  this  committee  did  not  seize  the  opportunity  to  make 
enough  changes;  that  the  committee  did  not  seize  the  opportunity  to 
structure  a  criminal  code  in  a  way  so  as  to  really  achieve  a  model  of 
balance. 

One  can  join  those  criticisms  and  one  can  hope  that  eventually  those 
kinds  of  changes  will  be  seen.  But  at  the  same  time  oiie  can  support 
the  bill  Avhich  has  moved  us  considerably  along  the  lines  of  protection 
of  civil  liberties  which  has  made  other  major  changes  and  which  has 
done  so  Avithout  the  sacrifice  of,  I  think,  any  major  interests  of  the 
civil  liberties  community  in  relation  to  existing  law. 

Senator  Kennedy.  I  would  say  that  in  the  areas  you  have  identified, 
which  are  troublesome,  we  have  a  responsibility  to  attempt  to  make 
important  changes. 

The  fact  of  the  matter  is  that  the  issue  of  recodificatioji  has  been 
before  the  committee  for  about  10  years.  I  think  we  are  either  going 
to  try  to  make  progress  in  a  meaningful  way  along  the  lines  you  have 
outlined,  or  we  will  have  nothing  to  show  for  it. 

We  thank  you  very  much. 


9058 

"We  will  now  hear  from  Mr.  John  Shattuck  and  Nancy  Crisman  of 
the  American  Civil  Liberties  Union. 
We  Avelcome  you  back. 

STATEMENT  OF  JOHN  SHATTUCK  AND  NANCY  CRISMAN, 
AMERICAN  CIVIL  LIBERTIES  UNION 

Mr.  Shattuck.  It  seems  to  me  I  have  been  here  for  4  days  now, 

Mr.  Chairman,  as  yon  know,  the  issue  before  this  subcommittee 
has  long  been  of  great  interest  and  concern  to  the  American  Civil 
Liberties  Union. 

I  have  submitted  a  length}^  statement  for  the  record  which  covers  a 
lot  of  territory.  I  will  attempt  to  smnmarize  the  principal  points  in  it. 

Senator  Ivennedy.  Without  objection,  your  statement  will  appear  in 
the  record  at  this  point. 

[The  material  follows:] 

Prepared  Statement  of  Aryeii  Neier,  Executive  Director  axd  .Tohit  H.   F, 
Shattuck,  Washington  Office  Director,  America  Civil  Liberties  Union 

Mr.  Chairman.  We  are  pleased  to  be  invited  to  appear  before  this  Subcommittee 
on  an  issue  of  vital  concern  to  tlie  American  Civil  Liberties  Union.  The  ACLU 
is  a  nationwide,  nonpartisan  orjranization  of  2T.J.000  members  dedicated  to  pro- 
tecting individual  rights  and  liberties  guaranteed  by  the  Constitution  of  the 
Liuited  States.  One  of  the  ACLU's  primary  missions  is  to  encourage  legislative 
advancement  of  civil  liberties  and  to  oppose  legislative  encroacliment  of  them. 

I.  introduction 

An  opportunity  for  comprehensive  revision  of  the  federal  criminal  code  comes 
but  once  in  a  great  many  years.  It  is  a  moment  to  seize  to  put  into  practice  a 
coherent  approach  to  crime  and  punishment  that  concentrates  law  enforcement 
energies  on  the  crimes  against  persons  and  proi)erty  that  plague  Americans  and 
that  respects  the  limits  on  government  power  that  are  mandated  by  the  United 
States  Constitution. 

Tlie  federal  criminal  law  is  significant  both  in  its  own  right  and  in  its  potential 
to  serve  as  a  model  for  the  criminal  laws  of  the  states.  The  American  Civil  Liber- 
ties Union  approach  to  the  process  of  criminal  code  revision  is  to  attempt  to 
insure  that  this  vital  legislation  is  not  merely  an  improvement  on  what  has  gone 
before.  If  that  is  all  that  emerges  from  the  deliberations  of  the  Congress,  we 
will  count  it  as  a  setback  for  civil  liberties  because  we  know  only  too  well  that 
we  are  unlikely  to  have  another  opportunity  for  significant  revision  in  the  fore- 
see able  future.  Our  approach  is  to  seek  the  best  criminal  code  that  can  be  con- 
ceivably obtained.  We  are  very  well  aware  that  the  process  of  criminal  code 
revision  has  already  been  underway  for  a  decade  and  understand  the  impatience 
of  th.ose  who  seek  to  complete  the  process.  We  know  that  many  compromises  have 
taken  place  to  arrive  at  the  proposal  that  is  now  before  you  in  S.  1437.  We  believe 
it  is  incumbent  nn  us  and  on  tliis  Committee  to  look  afresh  at  each  provision 
of  the  law,  regardless  of  the  compromises  that  have  been  reached  by  its  sponsors, 
in  pursuit  of  a  law  that  will  serve  us  well  for  many  years  to  come. 

Before  setting  forth  our  views  on  particular  provisions  of  the  proposed  legis- 
lation, we  state  some  principles  which  should  guide  the  Congress  in  its  enactment 
of  a  new  criminal  code : 

A.  Criminal  mnctions  stlioiild  he  applirrf  onhi  to  rotidvrt  that  eatiftcfi  harm  to 
others.  The  proscription  of  sin,  or  of  covxcnsvnl  Ichnrior  in  irhirh  no  other 
person  is  victimised,  is  not  a  proper  concern  of  the  crirainai  Jaw 
Almost  half  of  the  approximately  nine  million  arrests  nationwide  each  year  are 
for  crimes  that  do  not  harm  others:  public  drunkenness,  possession  of  drugs  for 
one's  own  use,  consensual  sex  acts,  vagrancy,  loitering,  obscenity,  gambling  and 
the  .status  offenses  committed  by  the  young — running  away,  truancy,  disobedi- 
ence to  parents,  curfew  violations  and  "incorrigibility."  The  damage  done  by 


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these  arrests  is  iucalculable.  Tliey  criminalize  millions  of  people.  They  punish 
people  though  no  legitimate  purpose  is  served  by  punishment.  They  consume  a 
very  large  part  of  the  time  of  our  police,  prosecutors,  judges  and  defense  attor- 
neys. They  jam  the  judicial  process,  and  their  presence  in  it  is  a  major  factor 
In  making  it  necessary  for  matters  that  are  the  proper  concern  of  the  criminal 
courts  to  be  disposed  of  through  plea-bargaining.  They  account  for  about  60 
percent  of  the  population  of  our  juvenile  institutions,  at  a  moment  when  there 
is  a  great  outcry  about  violent  crime  by  juveniles  and  not  enough  space  to  con- 
fine those  convicted  of  such  crimes ;  they  account  for  about  40  percent  of  the 
population  of  local  jails  nationwide ;  and  for  about  10  percent  of  the  population 
of  our  prisons.  They  stigmatize  with  arrest  records  many  millions  of  persons 
who,  thereby,  find  difficulty  in  finding  employment  and  in  integrating  themselves 
into  the  mainstream  of  society.  And  they  breed  an  intense  disrespect  for  the 
criminal  laws  that  is  inimical  to  the  very  idea  of  a  law  abiding  society. 

In  seeking  to  punish  such  conduct,  the  law  does  much  more  to  create  crime  than 
to  control  it.  At  the  same  time,  all  parts  of  the  machinery  of  law  are  so  preoccu- 
pied with  the  crime  thus  created  that  they  can  deal  effectively  with  little  else. 

As  just  one  example  of  the  misplaced  emphasis  of  law  enforcement  energies, 
in  the  last  few  years  there  have  been  about  the  same  number  of  arrests  nation- 
wide for  all  the  major  crimes  of  violence  or  threatened  violence  combined — 
murder,  manslaughter,  rape,  robbery  and  aggravated  assault — as  for  offenses 
involving  marijuana.  Americans  ai'e  outraged  by  the  shoddy  way  our  police, 
prosecutors  and  courts  deal  with  crimes  of  violence.  The  police  are  slow  to 
respond  to  calls.  No  one  has  any  time  to  inform  witnesses  of  court  adjournments. 
Violent  criminals  are  allowed  to  plead  to  minor  offenses.  Would  any  of  us  care 
to  face  the  victims  of  a  violent  crime  and  admit  that  these  things  came  about 
because  law  enforcement  oflicials  were  preoccupied  with  arresting,  booking,  jail- 
ing, prosecuting  and  judging  a  youngster  charged  with  possession  of  marijuana? 
But  admit  it  or  not,  that  is  one  of  the  practical  consequences  of  the  criminaliza- 
tion of  this  drug.  Then  consider  that  marijuana  counts  for  only  10  percent  of  the 
arrests  for  behavior  that  does  not  harm  others.  There  are  almost  ten  times  as 
many  arrests  for  victimless  behavior  as  for  crimes  of  violence  or  threatened 
violence. 

B.  The  criminal  laws  mnst  respect  constitutional  provisions,  such  as  the  guaran- 
tee of  freedom  of  expression  in  the  First  Amendment,  the  guarantee  of 
privacy  in  the  Fourth  Amendment  and  the  guarantee  of  due  process  of  law 
in  the  Fifth  Amendment 

It  should  be  elementary,  of  course,  that  no  law  may  be  passed  by  Congress  that 
that  violates  the  provisions  of  the  United  States  Constitution.  There  is  no  room 
here  for  compromises. 

Many  of  the  provisions  of  the  present  criminal  law  and  the  proposed  criminal 
law  attempt  to  place  forms  of  speech  outside  the  pale  of  constitutional  protection. 
These  include  provisions  dealing  with  conspiracy,  solicitation,  incitement,  impair- 
ing, espionage,  demonstrating  and  obscenity.  In  each  instance,  the  ACLU  has 
examined  the  provision  to  see  whether  it  is  speech  itself  that  is  punished — which 
is  impermissible — or  whether  it  is  some  form  of  conduct  that  may  be  legitimately 
prohibited  by  the  government.  In  connection  with  some  crimes — such  as  espio- 
nage— certain  speech  may  be  so  closely  brigaged  with  conduct  that  no  separation 
can  be  made  and  a  constitutional  statute  may  prohibit  it.  In  other  instances,  as 
in  the  case  of  obscenity,  it  is  only  a  perjorative  label  that  has  been  attached  to 
speech.  No  conduct  other  than  speech  is  involved  and  there  should  be  no  criminal 
sanction. 

We  approach  in  the  same  spirit  provisions  of  the  law  which  intrude  on  privacy, 
such  as  those  maintaining  authority  for  wiretapping  or  providing  for  the  use  in 
evidence  of  the  products  of  illegal  searches,  and  provisions  of  the  law  violating 
due  process,  such  as  those  dealing  with  contempt  and  the  compulsion  of  testi- 
mony. Again,  there  can  be  no  compromise  with  constitutional  standards.  Nor  do 
we  think  that  the  law  enacted  by  Congress  should  go  to  the  very  brink  of  what  the 
United  States  Supreme  Court  will  tolerate  before  it  declares  a  law  unconstitu- 
tional. Where  constitutional  rights  are  at  stake,  it  is  unbecoming  for  the  Congress 
of  the  United  States  to  adopt  a  law  with  provisions  drafted  in  the  spirit  of  "How 
mtich  can  we  get  away  with?" 

Respect  for  constitutional  provisions  in  the  criminal  law  also  requires  machin- 
ery for  enforcement  of  those  provisions.  This  means  punishment  of  those  who 


9060 

would  deprive  others  of  rierhts  directly  guaranteed  by  the  Constitution  and  rights 
guaranteed  in  implementing  legislation.  Government  otiicials  must  recognize  that 
they  face  punishment  for  violating  individual  rights. 

C.  A  sentencing  ayston.  must  be  deiiscd  that  is  fair  and  no  more  Juir.sh  than  is 
absolutely  necessary. 

The  present  system  of  sentencing  persons  convicted  of  crimes  is  patently 
unfair.  Much  of  it  is  a  legacy  of  the  belief  that  people  should  l>e  punished  for 
their  own  good  so  that  they  could  be  rehabilitated  through  isolation  from  society. 
It  is  a  theory  that  has  long  since  fallen  into  disrepute. 

One  of  the  con.sequences  of  the  belief  that  people  would  be  made  better  by 
punishment  is  that  the  authority  to  determine  the  length  of  punishment  was 
shifted  from  judges  to  parole  boards.  Judges  would  only  set  the  outer  limits, 
while  parole  boards,  which  could  evaluate  a  pri.soner's  rehabilitation,  determined 
the  actual  length  of  sentences.  The  system  has  been  a  complete  failure.  Parole 
boards  have  shown  no  ability  to  determine  rehabilitation.  It  is  also  grossly  unfair. 
It  makes  the  length  of  a  sentence  depend  on  behavior  in  prison,  on  reports  on  that 
l»ehavior  by  guards,  and  on  the  prisoner's  performance  at  a  parole  board  hearing. 
The  sentence  for  a  crime,  we  believe,  should  be  proportional  to  the  crime  com- 
mitted. This  means  it  should  be  fixed  by  a  .judge  at  trial  wlio  knows  what  crime 
has  been  committed  and  the  aggravating  circumstances  or  mitigating  circum- 
stances of  the  crime. 

As  study  after  study  has  shown,  there  are  wide  disparities  in  the  sentences 
meted  out  by  judges.  This,  too.  is  unfair.  A  sentence  should  not  be  dependent  on 
the  character  traits,  moods  and  whims  of  judges.  Discretion  in  sentencing  must 
be  maintained  because  the  nature  and  circumstances  of  each  crime  diJTei-.  It 
should  be  recognized  that  there  is  no  such  thing  as  a  mandatory  sentence.  What 
is  labelled  mandatory  sentencing  merely  shifts  discretion  out  of  the  hands  of 
judges  into  the  hands  of  prosecutors  who  determine  the  charges  to  l)e  brought. 
But,  while  judicial  discretion  is  essential,  it  should  be  guided  by  the  legislature. 
Aggravating  and  mitigating  circumstances  should  be  spelled  out  in  law.  This 
would  reduce  disparities  in  sentencing.  Requiring  judges  to  explain  their  sentenc- 
ing on  the  record  and  to  state  which  aggravatinir  or  miti""atin<T  circumstances  in- 
fluenced their  sentences  would  further  reduce  disparities.  It  would  also  allow 
for  appellate  review  of  sentences.  In  the  interests  of  fairness,  such  appeals 
should  be  a  right  of  any  defendant  facing  incarceration. 

Sentencing  refoi'm  also  requires  the  elimination  of  unnecessary  harshn^^s^.  The 
death  penalt.v  is  outright  barbarous  and  should  be  abDlished.  Pesoite  l'>ud  as- 
sertions to  tiie  contrary,  and  des]nte  the  public  oi)inion  polls  showing  sunj>ort 
for  the  death  penalty,  this  is  something  Americans  have  long  recngni^.ed  in 
practice.  Only  one  American  criminal — Gary  Gilmore — has  been  legally  executed 
in  the  last  decade.  Before  that,  executions  were  very  few  and  far  between. 
Even  if  capital  i)unishment  is  resumed  full  force,  no  one  expects  more  than  100 
or  200  executions  each  year.  That  many  legal  executions  would  be  a  blood  bath. 
And  yet,  it  would  still  mean  that  only  %  of  1  percent  of  the  l!0  Oi10  ni"ider:>rs 
each  year  would  be  executed.  The  death  penalty  would  remain  the  freak'sh  thing 
it  has  been  and  nuist  be  in  a  society  which  has  recotrnized  in  practice,  if  not  yet 
in  word,  that  it  is  too  cruel  and  barb.-irous  to  be  used  systematically. 

Except  as  puni,--hment  for  repeated  crimes  of  violence,  long  jirison  sentences 
are  also  unnecessarily  harsh.  Prison  itself  should  be  used  sparingly  and  only  as 
P'.nii^hnient  for  serious  crime.  For  the  most  part,  jnison  does  the  opposite  of  what 
the  advocates  of  reliabilitation  had  hoped:  it  makes  jjeople  worse.  "When  serious 
crimes  have  been  cominilted,  there  may  be  no  alternative.  Prison  iray  be  the 
best  way  to  piinish  such  criminals — for  the  good  of  the  rest  of  us.  not  for  the 
good  of  the  prisoner.  But  recognizing  that  pri.son  is  likely  to  make  people  worse — 
and  more  likely  than  ever  to  connnit  crimes  after  they  iret  out — shnuM  make  us, 
in  i)rndence,  resort  to  prison  as  a  punishment  only  when  we  are  p"rsu:)(led  that 
no  lesser  pmiishmeut  will  sullice.  T^ong  sentences,  such  as  three  years  in  prison 
or  five  years  in  i)rison,  make  peo])le  worse  than  three  month  sentences,  .\gain. 
prudence  dictates  the  very  sparing  use  of  long  sentences.  For  rejieated  crimes  of 
violence,  long  sentences  may  be  the  only  alternative,  but  they  are  an  inappro- 
priate response  to  lesser  crimes. 

Based  on  these  principles,  we  recognize  that  S.14.'^7  represents  an  improvement 
over  S.l  and  other  earlier  efforts  to  co<lify  the  ftnleral  criminal  laws.  Wr  are 
pleased  that  several  of  the  most  objectionable  features  of  these  earlier  bills — - 


9061 

such  as  the  "official  secrets"  sections  and  tlie  Nnreniburg  defense  for  government 
officials— have  lieen  droi)i)ed.  We  also  note  favorably  that  8.1437  contains  several 
important  reforms  which  would  either  tighten  existing  law  from  a  civil  liberties 
standpoint  or  eliminate  repressive  sections  of  S.l  These  include  : 

Repeal  of  tlie  Smith  Act  (5?  1103)  which  penalizes  advocacy  of  overthi-owing 
the  government.  While  this  statute  has  been  greatly  weakened  by  Supreme  Court 
decisions  it  still  has  provided  the  alleged  legal  basis  since  1940  for  FBI  actions 
against  political  groups. 

Repeal  of  the  liOgan  Act  which  prohibits  private  communications  to  a  foreign 
government.  It  was  this  law  passed  in  1701)  which  tlie  government  attempted  to 
use  against  those  U.S.  citizens  who  ccmtacted  and  visited  North  Vietnam  during 
the  war,  in  their  attempt  to  achieve  i^^ace. 

Expansion  of  the  Civil  Rights  Act  of  l!>6iS  to  make  it  a  criminal  ottense  to  dis- 
criminate on  the  basis  of  sex  as  well  as  race,  color,  religious  or  national  origin. 

Strengthening  tlie  law  to  permit  prose<-ution  of  any  person  who  deprives  an- 
other by  intimidation  of  liis/her  federally  pr(»tected  civil  riglits  (S  loOli)  Itecause 
specihc  intent  need  not  be  shown.  Current  law  deals  only  witl>  a  conspiracy  to 
violate  civil  rights  whereas  under  S.1437  the  casts  of  an  individual  may  also  be 
prosecuted. 

Return  of  the  constitutional  requirements  for  proof  of  treason  (*5  1101  fb) ). 

Improvement  of  the  definition  (tf  rape  by  making  it  sex  neutral,  clarifying  the 
type  of  force  re(iuired  and  eliminating  the  necessity  fur  corroborating  of  the  vic- 
tim's testimony  ( SJ§  1641.  1(>40). 

Elimination  of  the  crime  of  disorderly  conduct,  proposed  for  the  first  time 
in  S.l. 

Repeal  of  the  si)ee<*h-related  crime  of  impairing  nulitary  effectiveness  by  false 
statement. 

We  turn  now  to  a  closer  look  at  other  provisions  of  S.1437  which,  although  in 
a  few  cases  are  an  improvement  over  S.  1,  continue  to  threaten  civil  liberties  and 
cau.se  us  to  continue  to  oppose  the  bill.  We  urge  Couirress  ti>  make  the  amend- 
ments we  suggest  in  our  te.stimony  before  taking  any  further  action  to  codify  the 
criminal  law. 

II.   CHAPTKR  4 — COMPLICITY 

The  dangers  in  the  complicity  provisions  of  Chapter  4  §§  HOI— 104  were  de- 
scribed l)y  this  Subcommittee  when  it  accurately  stated  in  its  report  on  S.  1,  "com- 
jtlicity  concepts  .  .  .  mark  the  outermost  limits  of  the  ci-imiiuil  hiw  for.  in  some 
instances,  they  operate  to  hold  liable  persons  who  took  no  part  in  the  conduct 
and  who  had  no  agreement  with  the  actor.  .  .  .  There  is  an  inherent  risk  of 
overreacliing  and  constant  danger  of  understating"  (Report  No.  94-00,  p.  63). 
The  pitfalls  of  overreaching  and  understating  are  to  be  found  in  S.  1437. 

A.  Accomplice  liaMlity 

Section  401(a)  (1)  provides  in  general  that  one  who  "knowingly  aids  or  abets" 
the  commission  of  an  offense  by  a  principal  actor  is  criminally  liable  for  that 
offense.  Although  the  National  Commission  on  Reform  of  Federal  Criminal  Laws 
(hereinafter  the  Brown  Commission)  limited  its  definition  of  "abets"  to  com- 
mands, induces  [and]  procures,"  the  definiti(m  of  "abet"  in  §  111  of  S.  1437  in- 
cludes ''counsel,  induce,  procure  and  command."  We  submit  that  the  term 
"counsel"  is  overreaching  and  should  be  deleted  from  the  definition  of  "abet" 
in  §  111.  Retaining  the  term  "coun.sel"  leaves  open  the  possibility  of  punishins  a 
person  engaged  in  speech  activities  (e.g.,  draft  counselling)  as  piuncipals.  But 
under  the  Supreme  Court  definition  of  "aiding  and  abetting"  fhe.v  are  not  asso- 
ciated with  the  venture,  have  not  participated  in  it  wishing  to  bring  it  about. 
nor  sought  by  coTuiselling  to  make  it  succeed.  Xyc  d-  Nisscii  v.  Vnitcd  States,  336 
U.S.  613,  619  (1949). 

B.  Conspirator  liability 

Contrary  to  the  recommendations  of  the  Brown  Commission.  Section  401(b)  re- 
tains the  Pinkcrtoji  rule,  setting  a  different  standard  for  conspirator  liability 
than  for  accomplice  liability  in  general.  In  Pinlerfon  v.  United  States,  328  I^.S. 
640  (1946)  the  test  established  for  conspirator  liability  was  whether  it  is  "reason- 
ably foreseeable  that  the  conduct  would  be  performed  in  furtherance  of  the 
conspiracy."  On  that  basis  the  Court  sustained  a  conviction  of  a  substantive  crime 
where  there  was  no  proof  of  participation  or  knowledge  of  the  crime. 


9062 

The  Brown  Commission  rejected  the  doctrine  of  Pinkcrton  that  mere  mem- 
bership in  a  conspiracy  creates  criminal  liability  for  all  specifie  offenses  com- 
mitted in  furtherance  of  the  conspiracy.  Comment,  to  §  401.  Since  an  application 
of  the  Pinkerton  test  could  often  reach  conduct  too  attenuated  from  the  con- 
spiratorial goal  fairly  to  hold  all  parties  liable,  §401  (b)  (3)  should  be  deleted 
as  overreaching.  Instead,  we  recommend  that  the  standard  for  holding  con- 
spirator parties  liable  should  be  the  same  standard  as  §  401(a)  for  general  ac- 
complice liability,  that  is,  whether  the  parties  knowingly  aided  or  abetted  the 
commission  of  the  offense.  To  find  criminal  liability  where  persons  would  not  be 
guilty  of  aiding  and  abetting  is  to  "inci-iminate  persons  on  the  fringe  of  offend- 
ing." KrulewitcJi  v.  United  States,  336  U.S.  440  (1949)   (Jackson,  J.,  concurring). 

C.  Defenses  precluded 

Section  404  (b)(2)  provides  that  an  accomplice  can  be  held  liable  for  the 
conduct  of  the  principal  actor  even  if  the  principal  has  been  acquitted,  has  not 
been  prosecuted,  has  been  convicted  of  another  offense  or  is  otherwise  immime 
from  prosecution.  This  is  an  exception  to  the  general  rule  that  a  secondary 
actor  cannot  be  convicted  where  the  principal  actor  has  committed  no  crime  for 
which  he  or  she  may  be  convicted.  "There  is  no  question  but  that  there  must  be  a 
guilty  principal  before  there  can  be  an  aider  and  abettor."'  United  States  v. 
Jones.  425  P.2d  104S,  1056  (9th  Cir.  1970)  ;  Edwards  v.  United  States,  2S6  F.2d 
681  (5th  Cir.  1960). 

Furtheiniore,  while  a  principal  may  be  able  to  exclude  crucial  evidence  on  the 
grounds  that  it  was  illegally  seized,  an  accomplice  might  not  have  standing  to 
raise  this  objection. 

In  order  to  insure  fourth  amendment  freedom  from  illegal  search  and  seizure, 
and  reduce  the  danger  of  police  misconduct  in  obtaining  evidence,  we  recom- 
mend that  where  the  principal  is  acquitted  based  on  illegally  obtained  evidence, 
the  accomplice,  as  well,  should  be  able  to  raise  this  defense.  In  addition,  it  is 
patently  unfair  for  a  secondary  actor  to  be  prosecuted  wlien  the  principal  actor 
has  been  acquitted.  This  same  argument  applies  to  §  1002(c),  tlie  identical  pro- 
vision concerning  defenses  precluded  for  conspirators.  Xo  person  sliould  be  con- 
victed of  conspiracy  if  all  other  alleged  conspirators  have  been  acquitted.  Thus, 
the  same  deletion  is  recommended  in  §  1002(c)  in  order  to  restore  the  defenses 
precluded  for  both  complicity  and  conspiracy  charges. 

III.    CIIAPTEK    10 — INCHOATE   OFFENSES 

The  criminal  law  has  wrestled  long  and  hard  with  the  problem  of  when  the 
law  may  intervene  to  prevent  criminal  conduct  by  imposing  sanctions  against 
activities  which  lead  up  to  the  actual  criminal  event.  The  ACLU  acknowledges 
the  importance  of  crime  prevention  and  the  logic  of  punishment  which  protects 
the  innocent  public  before  rather  than  after  completion  of  the  criminal  act.  At 
the  same  time,  we  believe  that  the  so-called  inchoate  offenses — solicitation,  at- 
tempt, and  conspiracy — offer  unparalleled  opportunities  for  over-zealous  law 
enforcement  which  invades  constitutional  guarantees  of  freedom  of  the  press, 
free  .speech,  free  association  with  others,  and  due  process  of  law. 

The  combination  of  inchoate  with  substantive  offenses  can  lead  to  such  ab- 
surdities as  the  prosecution  of  out.spoken  public  critics  of  the  government  for 
conspiracy  to  incite  draft  resistance.  See  United  States  v.  Spoek,  416  F.  2d  165  (1st 
Cir.  19C9).  In  such  cases  the  conduct  alleged  to  constitute  a  criminal  offense  is 
doubly  removed  from  any  act  in  itself  criminal ;  the  links  connecting  them  may 
consist  entirely  of  constitutionally  protected  speech  and  association,  and  there 
is  seldom  any  possible  proof  fliat  another's  act  originated  in  the  speech  or 
assembly  prosecuted  rather  than  springing  from  individual  choice.  Such  prose- 
cutions, with  their  unmistakable  overtones  of  political  repression  and  enforced 
unanimity  of  i)ublic  opinion,  move  far  away  from  the  general  purposes  of  the 
criminal  law  and  tlie  theories  under  wliich  inchoate  offenses  havt^  been  held 
punishal)le.  See  GrunnrdJd  v.  United  States.  353  U.S.  391,  402  (1957)  :  "For 
every  conspiracy  is  by  its  very  nature  secret ;  a  case  can  hardly  be  supposed 
where  men  concert  together  for  crime  and  advertise  their  purpose  to  the  world." 

Society  unquestionably  has  a  stake  in  punishing  or  deterring  those  who  seek 
to  undermine  it  liy  criminal  activity.  P.ut  it  lias  at  least  as  great  a  stake  in 
clearly  marking  tlie  limits  of  the  criminal  sanction.  Laws  which  make  political 
dissent  evidence  of  criminality  have  no  place  in  our  system  of  constitutional 


9063 

self-government.  The  government  which  extends  criminal  punishment  to  re- 
sponsible opposition  attacks  its  own  foundations.  The  government  which  sweeps 
within  the  label  of  criminality  those  who  only  may  perhaps  belong  there,  who 
may  have  lacked  firm  purpose,  or  drifted  temporarily  close  the  margin  of  legality, 
makes  more  outlaws  than  it  needs.  See  Working  Papers  of  the  National  Com- 
mission on  Reform  of  Federal  Criminal  Laws,  Vol.  I,  at  362-363  (1970)  (here- 
inafter Working  Papers).  Indeed,  it  may  even  induce  criminal  behavior.  Cf. 
Wootton,  Crime  and  the  Criminal  Law  14  (1^63)  :  "one  conviction,  and  still 
more  one  period  of  imprisonment,  is  a  great  impediment  to  a  subsequent  honest 
and  respectable  living ;  and  .  .  .  the  experience  of  conviction,  and  still  more 
of  imprisonment,  is  itself  only  too  likely  to  be  criminogenic."  Until  we  learn  far 
more  than  we  now  know  about  deterrence  of  crime  and  rehabilitation  of  offenders, 
we  have  an  obligation  to  society,  as  well  as  to  the  prosix-ctive  victims  and 
defendants,  not  to  make  too  many  criminals. 

A.  Criminal  attempt 

Section  1001  would  give  the  federal  government,  for  the  first  time,  an  across- 
the-board  attempt  statute  applicable  to  all  other  offenses.  Such  a  statute  may 
have  the  virtue  of  uniformity,  but  it  directs  Congressional  attention  away  from 
the  salutary  effort  to  determine,  in  respect  to  particular  crimes,  whether  an 
attempt  statute  is  wise  or  necessary.  Do  we  really  want  to  punish  unsuccessful 
attempts  to  engage  in  disorderly  conduct,  disseminate  obscene  books,  or  disclose 
classified  information?  Are  such  prosecutions  an  intelligent  use  of  limited  re- 
sources for  combatting  serious  crime?  Moreover,  the  ACLU  believes  that  punish- 
ing attempts  to  incite  unlawful  conduct  seriously  increases  the  danger  of  govern- 
ment prosecution  for  advocacy  plainly  protected  by  the  First  Amendment. 

Section  1001(a)  of  S.  1437 — like  S.  1,  but  contrary  to  the  Brown  Commission 
recommendations-defines  the  conduct  sufficient  to  constitute  an  attempt  as 
"more  than  mere  preparation  for  and  that  indicates  his  intent  to  complete  the 
commission  of  the  crime."  Such  a  standard  could  aft'ect  many  First  Amendment 
activities  from  their  very  beginning.  For  example,  making  arrangements  for  a 
public  assembly  at  which  infiammatory  starements  v.'ere  to  be  made  would  argu- 
ably be  enough  to  constitute  an  attempted  incitement  to  riot.  News  reporters 
gathering  information  for  reports  on  issues  of  vital  public  interest  might  be 
subject  to  prosecution  for  attempts  to  obtain  classified  infoi-mation  if  their 
research  annoyed  someone  in  authority. 

These  examples  are  not  farfetched.  Courts  have  not  found  it  easy  to  define 
the  meaning  of  "attempt"  in  the  criminal  law.  Even  Justice  Holmes,  as  Chief 
Justice  of  the  Supreme  Judicial  Court  of  Massachusetts,  had  his  difficulties.  See 
Commonwealth  v.  Peaslee,  111  Mass.  267,  272,  59  N.E.  55,  56  (1901)  :  ".  .  .  prepa- 
ration is  not  an  attempt.  But  some  preparations  may  amount  to  an  attempt  .  It 
is  a  question  of  degree.  If  the  preparation  comes  very  near  to  the  accomplish- 
ment of  the  act,  the  intent  to  complete  it  renders  the  crime  so  probable  that 
the  act  will  be  a  misdemeanor,  although  there  is  still  .  .  .  need  of  a  further 
exertion  of  the  will  to  complete  the  crime." 

To  eliminate  this  dangerous  ambiguity,  we  recommend  that  conduct  sufficient 
to  constitute  an  attempt  should,  at  the  least,  be  defined  as  a  "substantial  step 
toward  commission  of  the  offense"  in  line  with  both  the  current  practice  of 
federal  courts  and  the  Brown  Commission  recommendation  in  §  1001(a).  Further, 
a  substantial  step  should  be  defined  as  any  conduct  "cori-oboration  of  the  firm- 
ness of  the  actor's  intent  to  complete  the  commission  of  the  offense."  Brown 
Commission,  §  1001(a). 

Section  1002(b)  permits  defense  of  "voluntary  and  complete  renunciation" 
of  criminal  conduct.  The  defendant  must  abandon  his  criminal  effort  and.  if  this 
does  not  prevent  the  crime  in  itself,  take  aflSrmative  steps  which  do  prevent  it. 

However,  such  a  high  standard  for  renunciation  is  defined  in  §  1004(a)  that 
the  aflSrmative  defense  of  §  1002(b)  is  severly  weakened.  A  renunciation  does 
not  meet  the  "voluntary  and  complete"  standard  if  motivated  even  in  part  by 
belief  that  "a  circumstance  exists  that  increases  the  probability  of  detection  or 
apprehension  .  .  ."  or  by  a  decision  to  postpone  the  criminal  activity.  Remember- 
ing that  the  offense  involved  is  merely  an  attempt,  such  a  high  standard  for 
renunciation  may  be  a  trap  for  the  belatedly  innocent  who  go  along  so  long  as 
crimnial  purposes  are  hazy  but  draw  back  when  faced  with  the  actual  necessity 
for  criminal  behavior  if  their  end  is  to  be  accomplished.  One  purpose  of  criminal 
sanctions  is  to  deter  people  from  making  the  ultimate  decision  to  violate  the 
law.  If  the  sanctions  work,  the  case  for  punishment  is  at  best  tenuous. 

95-465 — 77 32 


9064 

B.  Conspiracy 

In  defining  criminal  conspiracy.  Section  1002  does  nothing  to  limit  the  "elastic, 
sprawling  and  pervasive"  nature  of  the  offense.  Krulewitch  v.  United  States,  336 
U.S.  440,  445  (1949)  (.Tackson.  .1..  concurring).  As  long  ago  as  1925,  the  federal 
.imliciary  expressed  serious  concern  that  conspiracy  prosecutions  were  ranging 
far  beyond  the  legitimate  purposes  of  conspiracy  law — to  prevent  the  establish- 
ment of  continuing  group  schemes  for  cooperative  lawbreaking — and  being  used 
"arbitrarily  and  harshly."  Annual  Report  of  the  Attorney  General  for  1925  at 
5-6.  Some  tweny-five  years  later  Justice  .Jackson  again  warned  that  '"loose  prac- 
tice as  to  this  offense  constitutes  a  serious  threat  to  fairness  in  our  administra- 
tion of  justice."  Krulewitch,  supra,  336  U.S.  at  446  (concurring  opinion).  Twenty- 
live  more  years  have  passed,  with  conspii-acy  prosecutions  for  political  dissent 
and  mere  advocacy  drawing  yet  more  criticism.  Yet  S.  1437  would  leave  con- 
spiracy law  in  nuu'h  tlie  same  state  of  confusion  and  overbreadth,  subject  to 
the  same  flagrant  abuse,  as  it  is  now. 

"The  modei-n  crime  of  conspiracy  is  so  vague  that  it  almost  defies  definition." 
Krulewitch,  supra,  336  U.S.  at  446  (concurring  opinion).  According  to  section 
1002.  conspiracy  occurs  when  someone  "agrees  with  one  or  more  persons  to  engage 
in  conduct,  the  performance  of  which  would  constitute  a  crime  or  crimes,  and  he 
or  one  of  such  persons  in  fact  engages  in  any  conduct  with  intent  to  effect  any 
objective  of  the  agreement." 

By  using  the  overbroad  terminology,  "any  conduct"  and  "any  objective",  the 
conspirator  need  not  know  that  the  conduct  he  or  she  agrees  to  engage  in  or 
cause  is  actually  a  crime.  He  or  .she  can  therefore  be  punished  merely  for  an 
agreement,  evidenced  only  be  speech  ordinarily  protected  by  the  First  Amend- 
ment, to  engage  in  other  speech  ordinarily  protected  by  the  First  Amendment. 
The  only  consummation  required  is  some  act  to  effect  an  objective  of  the  agree- 
ment or  relationship.  "Any  act  or  omission,  however  otherwise  innocent,  other 
tluin  those  acts  surrounding  the  hatching  of  the  plot  it.self.  performed  by  any 
member  of  the  conspiracy,  while  the  conspiracy  remains  yet  afoot,  fulfills  the 
requirement."  Working  Papers,  vol.  I  at  393  and  cases  there  cited.  Attendance 
at  a  meeting  may  l)e  sufficient.  See  Yates  v.  United  States,  354  U.S.  29S,  333-334 
(1957).  The  objective  effected  need  not  itself  be  criminal  under  the  terms  of 
S.  1002(a).  In  short,  one  may  be  convicted  of  conspiracy  on  almost  no  proof  at 
all  of  serious  criminal  intent  or  behavior  seriously  tending  to  accomplish  a  crime. 
The  divorce  between  criminal  act  and  criminal  intent  is  virtually  complete.  See 
Unit'd  States  v.  Spoctx,  416  R.  2d  165  (1st  Cir.  1969). 

At  a  minimum,  reform  of  §  1002(a)  should  delete  "any  conduct  with  intent" 
and  substitute  a  "substantial  step"  standard  so  that  only  a  substantial  step 
towards  the  completion  of  the  consiaratorial  goal  would  constitute  sufficient  con- 
duct for  commission  of  the  offense. 

The  substantive  law  of  conspiracy  is  made  even  more  dangerous  l)y  tlie  pro- 
cedural anomalie.s  that  have  grown  up  around  it.  Since  the  parties  to  a  conspir- 
acy need  not  be  awnre  of  the  jiarticipation  of  others  or  know  each  other's 
identity.  Blumenthal  v.  T'nited  States.  .",.32  U.S.  .-.39.  .".."7-5.S  (1947).  and  since 
one  c()-consi)irator  may  be  convicted  on  the  hearsay  evidence  of  another.  Krute- 
viteh  V.  United  States,  ?,:]6  U.S.  440  (1949).  a  defendant  may  be  convicted  of 
con.spiracy  on  the  basis  of  collateral  agreements  or  acts  he  knew  nothing  abftut, 
engaged  in  by  persons  he  had  never  heard  of. 

:Moreover.  aldiough  tlie  Sixtli  Amendment  grants  the  rights  to  trial  in  the 
district  where  the  crime  was  committed,  a  conspiracy  prosecution  may  be 
brought  anywhere  any  conspirator  did  any  act  to  effect  an  objective  of  the 
con.spiracy.  Thus  in  the  Spoek  case,  supra,  the  government  cho.«e  to  try  the  case 
in  Boston  although  several  of  tlie  acts  charged  in  tlie  indictment  took  place  in 
Xew  York  and  Washington,  !).('.  The  pr(>c<Mlural  law  (if  conspiracy  permits  the 
government  to  engage  in  fornm-shopping  for  the  place  where  a  conviction  is 
tJjought  most  likely  to  be  obtained. 

The  political  misuses  of  conspiracy  law  liave  been  amply  demonstrated  in  the 
last  few  years.  The  more  ordinary  altuses.  against  less  publicized  defendants, 
were  well-known  as  much  as  fifty  y(>ars  ago.  One  t(»st  of  any  revision  or  reform 
of  the  Federal  Uriminal  Code  is  Its  willingness  to  grapple  with  and  end  the 
abuses  of  this  prosecutorial  tool.  S.  1437  totally  abdicates  Congressional  re- 
sponsibility in  this  critical  area  of  the  law. 


9065 

C.  Criminal  solicitation 

Section  1003(a)  makes  it  a  crime  to  endeavor  to  persuade  another  to  do 
something  which  constitutes  a  criminal  offense  under  "circumstances  strongly 
corroborative  of  that  intent."  Tlie  solicitor  need  not  ivuow  that  the  conduct  he 
endeavors  to  persuade  another  to  undertake  is  criminal.  He  need  only  intend  that 
the  conduct  occur.  Thus  under  S.  14H7  he  could  be  convicted  for  encouraging 
someone  else  to  engage  in  what  he  thinks  is  constitutionally  protected  protest 
activity,  and  still  be  convicted  for  soliciting  disorderly  conduct. 

In  proposing  a  solicitation  statute,  the  Brown  Commission  intended  to  provide 
punishment  for  those  who  instigate  offenses  and  thereby  are  truly  culpable. 
Working  Papers,  Vol.  I  at  .368.  But  terms  like  "endeavor  to  persuade"  cast  a 
nuich  wider  net.  On  their  face  they  ensnare  the  speaker  for  nothing  more  than 
speech,  when  no  other  criminal  act  has  occurred.  By  deleting  the  Brown  Com- 
mission's requirement  of  an  overt  act  in  response  to  the  solicitation,  see  Final 
Report  §  1003,  S.  1437  could  be  used  to  punish  advocacy  without  the  slightest 
possibility  of  producing  lawless  action.  But  the  First  Amendment  plainly  forbids 
this  consequence.  E.g.,  Brundrnhurg  v.  Ohio.  395  U.S.  444  ( 1969) . 

Although  Section  10r)4(b)  (2)  of  the  proposed  bill  renders  the  offenses  in  Chap- 
ter 10  inapplicable  to  certain  advocacy  crimes  ( such  as  obstructing  military  re- 
cruitment, inviting  mutiny,  or  leading  a  riot),  this  is  not  sufficient  to  safeguard 
against  overreacliing.  Even  with  the.se  exclusions,  we  question  whether  solici- 
tation should  be  applicable  as  a  general  provision ;  the  entire  liill  should  be  ex- 
amined to  determine  whether  solicitation  should  be  proscribed  in  particular 
instances  rather  than  by  general  provision.  In  accord  with  tlie  Brown  Commis- 
sion recommendation  to  limit  solicitation  to  the  instigation  of  "a  particular  crime 
which  is.  in  fact,  a  felony,"  solicitation  of  crimes  which  are  not  felonies  should 
not  be  an  offense. 

IV.    CHAPTER    11 — OFFENSES    INVOLVING    NATIONAL    DEFENSE 

A.  t^aJ)otage 

Sections  1111  and  1112  prohibit  impairing  military  effectiveness  by  damaging, 
tampering  with,  or  contaminating  any  proi>erty  particularly  suited  for  use  in  the 
national  defense.  The  retpiired  intent  is  "to  impair,  interfere  with,  or  obstruct 
the  ability  of  the  Fnited  States  or  an  associate  nation  to  prepare  for  or  to  en- 
gage in  war  or  defense  activities.'" 

Under  the  vague  terms  of  §  1111,  anti-Vietnam  war  demonstrators  who  "inter- 
fered with"  public  transportation  by  their  very  numbers  could  have  been  prose- 
cuted for  sabotage,  a  major  felony.  Nothing  in  the  statute's  language  prohibits 
a  jury  from  deducing  "intent  ...  to  obstruct  the  ability  of  the  United  States  .  .  . 
to  .  .  .  engage  in  war  or  defense  activities"  from  such  circumstances.  Nothing 
would  prevent  prosecution  under  the  general  criminal  attempt,  conspiracy,  and 
.solicitation  sections  of  S.  1437,  see  sections  1001-03,  for  speech  encouraging  such 
a  demonstration.  The  section  could  be  used  to  chill  the  rights  of  association  and 
assembly  guaranteed  by  the  First  Amendment.  It  would  make  every  public 
demonstration,  no  matter  how  peaceful  and  orderly,  subject  to  criminal  sanctions 
at  the  whim  of  official  power.  See  Cox  v.  Louisiana,  379  U.S.  536,  557-58  (1965), 
where  the  Supreme  Court,  in  striking  down  a  similarly  vague  and  overboard 
statute,  observed  : 

"It  is  clearly  unconstitutional  to  enable  a  public  official  to  determine  which 
expressions  of  view  will  be  permitted  and  which  will  not  or  to  engage  in  invidious 
discrimination  among  p^;-sons  or  groups  either  by  use  of  a  statute  providing  a 
system  of  broad  discretionary  licensing  power  or,  as  in  this  case,  the  equivalent 
of  such  a  system  by  selective  enforcement  of  an  extremely  broad  prohibitory 
statute." 

Since  intent  to  impair  military  effectiveness  could  be  read  to  include  any  op- 
position to  development  of  weapons,  no  matter  how  costly  or  obsolete,  editorials 
against  the  ABM,  news  stories  exposing  enormous  cost  over-runs  and  mechanical 
failure,  or  simply  a  citizen's  public  or  private  remarks  against  the  situatina:  of 
nuclear  stockpiles  in  his  homeitown,  could  be  prosecuted  on  the  theory  that  they 
"damage"  the  objects  of  their  disapproval. 

This  section  should  therefore  be  narrowed  to  apply  only  to  substantial  physical 
damage. 


9066 

Moreover,  §  1111  applies  to  a  limitless  array  of  property.  "Any  property", 
§1111  (a)  (1)  (A),  or  "any  public  facility."  S  1111  (a)  (1)  (C),  can  qnaUfy 
simply  be  being  "particularly  suited  for  use  in  the  national  defense."  At  the  very 
least,  therefore,  this  section  should  be  amended  to  require  designation  of  such 
property  or  facility  (for  example  specific  military  hardware),  or  should  raise 
the  culpability  level  to  "knowing." 

Section  1112  essentially  repeats  the  offense  outlined  in  §  1111,  but  lowers  the 
level  of  required  intent  to  "reckless  disregard."  It  thus  extends  still  further  the 
opportunities  for  official  suppression  of  that  vigorous  and  effective  dissent  on 
which  democracy  relies. 

If  there  should  bo  any  impairment  of  military  effectiveness  offense  at  all.  it 
should  be  limited  to  periods  of  declared  war,  and  only  to  a  narrowly  defined 
category  of  major  weapons  systems.  This  is  a  critical  amendment  to  §  1112,  and 
as  presently  drafted,  a  major  defect  of  S.  1437. 

B.  Espionage — Subchapter  C 

Through  cross-referencing,  the  proposed  bill  would  retain  the  Innguase  of 
existing  espionage  statutes,  thereby  losing  a  significant  opportunity  to  reform 
the  archaic  and  ambigious  provisions  of  existing  law. 

If  Congress  is  to  codify  the  general  espionage  laws,  it  should  at  least  make 
clear  in  the  legislative  history  that  proof  of  specific  intent  to  injure  the  national 
defense  is  an  essential  element  of  the  offense.  The  Ellsberg  indictment  in  1973 
demonstrates  the  vagueness,  overbreadth,  and  adverse  impact  on  the  First 
Amendment  of  18  U.S.C.  §  79.3.  Prior  to  the  Ellsberg  indictment  for  disclosing 
the  Pentagon  Papers,  the  general  espionage  laws  had  been  interpreted  to  require 
proof  of  an  intent  to  injure  the  national  defense. 

The  Ellsberg  indictment  was  constitutionally  deficient  in  that  it  failed  to 
reflect  this  element.  This  deficiency  should  ho  cured  in  codifying  existing  lav,-. 

If  the  Committee  determines  merely  to  re-enact  existing  espionage  laws,  every 
effort  must  be  made  to  ensure  that  re-enactment  does  not  carry  with  it  any  change 
in  meaning.  We  note  with  approval  that  the  provisions  of  Chapter  3  are  expressly 
made  inapplicable  to  the  espionage  provisions  in  order  to  avoid  any  change  in 
the  statement  of  mind  necessary  for  conviction.  However,  the  term  "commu- 
nicate" is  defined  in  §111  (General  Definitions)  to  include  publication  by  a 
newspaper.  The  use  of  the  word  "communicate"  in  the  existing  espionage  laws 
has  been  the  source  of  continuing  controversy.  See  ^cic  York  Ti)ii<'fi  Co.  v. 
TJnited  l^fatc.^i,  403  U.S.  713  (1971)  (compare  the  concurring  opinions  of  .Justices 
White,  Douglas  and  Black)  ;  see  also  for  an  exhaustive  review  of  the  legislative 
liistory  accompanying  original  enactment  of  the  espionage  laws  concluding  that 
the  laws  did  not  pertain  to  publication  by  a  newspaix^r  excejit  with  regard  to  a 
narrow  category  of  cryptographic  information.  II.  Edgar  and  P..  Schmidt.  .Jr., 
"The  Espionage  Statutes  and  Publication  of  Defense  Information,"  73  Col.  L. 
Rev.  929  (1973)  (reprinted  in  Hearings,  p.  7141). 

C.  Obstructing  a  Government  function  by  fraud 

According  to  <&  1301,  a  person  commits  a  felony  if  he  or  she  "intentionally  ob- 
structs or  impairs  a  government  function  by  defrauding  the  government  in  any 
manner." 

To  avoid  the  possibiity  that  defrauding  the  government  micrht  be  rend  to 
include  publishing  a  government  document  which  does  not  fall  under  the  Freedom 
of  Information  Act,  the  ACLU  believes  that  either  the  statutory  language  or  the 
legislative  history  should  make  clear  tliat  this  section  cannot  ho  used  to  prosecute 
legitimate  journalistic  activities.  For  this  reason,  the  statute  should  be  narrowed' 
in  three  ways : 

To  provide  an  affirmative  defense  where  tlie  primary  purpose  of  a  defendant's 
conduct  was  the  dissemination  of  information  to  the  pujilic  ; 

To  pro.secute  only  "material"  obstructions  of  government  functions,  and 

To  y)rovide  a  defen.se  where  the  government  function  obstructed  was  itself 
unlawful.     ' 

/).  JTindcring  law  enforcement 

§  1311  of  the  bill  is  aimed  at  deterring  and  punishing  persons  who  destroy 
evidence  or  conceal  a  susi)ect  in  a  crniinal  case.  Although  these  purposes  are 
clearly  legitimate,  the  statutory  language  also  rea(  lies  jiersons  who  conceal 
merely  the  identity  of  a  susi>ect  language  whi<h  could  be  interpreted  to  include 
news  reporters  protecting  their  sources. 


9067 

Another  section  of  the  bill,  §  1333,  which  penalizes  refusing  to  testify  or  pro- 
duce information  when  ordered  to  do  so  by  Congress  or  a  federal  court,  contains 
an  affirmative  defense  in  cases  where  a  defendant  is  legally  privileged  to  with- 
hold information.  An  earlier  version  of  §  1311  made  it  clear  that  a  similar 
defense  applied  to  this  section  so  as  to  protect  a  reporter  who  asserts  constitu- 
tional or  statutory  privilege  not  to  reveal  the  identity  or  confidential  commu- 
nications of  a  secret  news  source.  See  Senate  Judiciary  Committee  Report  on 
the  Criminal  Reform  Act  of  1974,  Vol.  II,  pp.  317-319. 

The  ACLU  believe  that  §  1311  should  include  a  similar  limitation,  a  result 
-which  requires  the  elimination  or  modification  of  §  1311(C),  which  precludes 
such  a  defense  as  currently  written. 

E.  Tampering  with  a  Government  record 

§  1344  penalizes  a  person  who  "alters,  destroys,  mutilates,  conceals,  removes, 
■or  otherwise  impairs  the  integrity  of  a  government  record."  The  ACLU  is  con- 
cerned about  the  scope  of  the  terms,  "otherwise  impairing  the  integrity  of"  a 
government  record.  The  term  is  inherently  vague,  raising  constitutional  prob- 
lems of  notice  and  due  process.  In  addition,  it  is  possible  to  interpert  the  section 
to  criminalize  unauthorized  photocopying  or  mere  disclosure  of  the  contents  of 
a  government  document,  despite  the  fact  that  the  document  itself  was  neither 
removed  from  government  premises  nor  altered  in  any  way. 

Since  other  provisions  of  the  proposed  code  deal  with  the  unauthor- 
ized disclosure  of  information  in  government  documents  (see,  e.g.  §  1525 — Re- 
vealing Private  Information  Submitted  for  a  Government  purpose),  we  submit 
that  First  Amendment  interests  must  be  protected  by  either  a  clarifying  amend- 
ment to  this  section  or  a  statement  in  the  Committee  Report  that  the  section 
is  not  to  be  construed  to  extend  to  unauthorized  photocopying  or  disclosure  of  the 
content  of  government  documents  without  more. 

F.  Retaliating  against  a  public  servant 

§  1358  prohibits  any  conduct  subjecting  "another  person"  to  bodily  injury, 
property  damage,  or  improper  economic  business,  or  professional  loss  because 
of  the  official  action  or  status  of  a  public  servant. 

This  section  is  overbroad  in  its  potentially  chilling  effect  on  freedom  of  the 
press.  Because  the  bill's  definition  of  a  public  servant — which  includes  any  gov- 
ernment employee,  consi;ltant,  or  juror — is  broader  than  the  concept  of  a  "public 
figure"  under  New  York  Times  v.  Sullivan,  this  section  may  criminalize  the 
publication  of  a  financially  damaging  news  report  which  has  been  found  libelous 
(i.e.  "improper")  by  state  law  under  a  mere  negligence  standard.  Just  because 
criticism  of  certain  public  servants  is  not  protected  by  the  First  Amendment 
for  purposes  of  civil  liability  does  not  mean  that  such  criticism  should  be  turned 
into  a  federal  criminal  offense. 

While  we  recognize  that  the  statute  is  not  intended  to  reach  robust  editorial 
criticism  of  former  or  present  public  servants,  this  is  clearly  a  section  requiring 
the  inclusion  of  an  editorial  writer/news  reporter's  defense. 

V.    CHAPTER     13 OFFENSES    INVOLVING    GOVERNMENT    PROCESSES 

(SPEECH  RELATED  OFFENSES) 

Under  the  guise  of  protecting  the  integrity  and  neutrality  of  government  op- 
erations. Chapter  13  would  permit  governmental  interference  with  First.  Fifth, 
and  Sixth  Amendment  rights.  There  is  a  genuine  need  to  protect  judicial  and 
administrative  proceedings  from  corruption  and  intimidation.  But  this  need  must 
not  l>e  used  to  invade  constitutional  rights  where  the  behavior  curbed  has,  at 
most,  slight  chance  of  deleterious  effect.  Public  demonstrations  directed  pri- 
marily at  public  opinion  must  not  be  suppressed  on  the  theory  that  they  inter- 
fere with  the  sanctity  of  the  judicial  process.  Vigorous  advocacy  must  not  be 
stifled  under  the  label  of  criminal  contempt. 

A.  Ohstrncting  a  Oovernment  function  by  physical  interference 

Section  1302  makes  physical  interference  with  federal  government  functions 
a  felony.  The  proposed  bill  in  subsection  (a)(2)  through  (a)(4)  specifically 
defines  the  conduct  to  be  covered  in  acceptable  language.  However,  subsections 
(a)  (1)  serves  as  a  residual  clause  covering  obstruction  or  impairing  "the  per- 
formance by  a  federal  public  servant  of  an  official  duty."  This  broad  language 
■could  be  misused  against  lawful  and  peaceful  demonstrations.  Virtually  every 


9068 

mass  demonstration  would,  at  one  moment  or  another,  fall  within  its  prohibition. 
Yet  such  demonstrations  can  be  an  important  contribution  to  the  public  debate 
on  a  wide  variety  of  topics. 

Under  the  unfettered  terms  of  subsection  (a)  (1).  it  would  be  up  to  the  prosecu- 
tor to  determine  whether  a  larce  demonstration  on  federal  grounds  or  near  fed- 
eral buildings  was  or  was  not  "physicall.v  interfering"  with  the  performance  by 
a  federal  pul)lic  servant  of  an  official  duty.  Even  an  influx  of  cars  carrying 
demonstrators  to  the  chosen  site  might  constitute  the  proscribed  felony.  Since 
mass  arrests  on  the  basis  of  group  behavior  are  constitutionally  forbidden  by  the 
particularly  requirements  of  the  Fourth  Amendment,  this  provision  would  invite 
selective  abuse  by  law  enforcement  officials  who  object  to  life-styles  different 
from  their  own.  See  e.g..  Coates  v.  Viti/  of  Cinrinnati.  402  U.S.  fill.  616  (l!>71t. 
Subsection  (a)  (1)  should  therefore,  be  amended  to  specify  the  particular  kinds 
of  public  servants  and  duties  that  are  covered.  This  could  be  accomplishetl  by 
returning  to  exi.sting  law  contained  in  18  U.S.C.  §  1114. 

B.  Demonstrating  to  mfluencc  a  judicial  prorerding 

Section  132S  prohibits  pickets,  parades,  display  of  signs  or  other  demonstra- 
tions on  the  grounds  or  within  200  feet  of  a  courthouse.  Although  the  ACLT' 
generally  endorses  such  statutes  as  necessary  to  protect  due  i)rocess  rights,  we 
believe  the  statute  should  be  written  so  as  not  to  appl.v  to  demonstrators  who 
have  no  possibility  of  influencinsr  or  intimidating  the  courts,  and  whose  nriniary 
intent  is  to  express  opinions  of  the  judicial  process  which  are  protected  by  the 
First  Amendment. 

The  courthou.se  should  not  be  treated  differently  from  other  pulilic  buildin<rs 
generally  open  to  the  public.  A  demonstration  should  not  be  prohibited  unless  it 
disrupts  proceedings  being  conducted  within  the  courthou.se  by  unreasonable 
noise,  obstruction  of  an  entry,  or  the  threat  of  force  or  propei-fy  injury.  For  ex- 
ample, the  grounds  of  the  Supreme  Court  should  be  open  to  demonstrators  wish- 
ing to  protest  the  abortion  decisions  even  while  the  Court  is  in  session  unless 
the  demonstrators  knowingly  disrupt  the  Court's  business. 

C  Criminal  contempt 

Section  1331  makes  it  a  crime  to  "misbehave*  in  the  presence  of  a  court  or 
so  near  to  it  as  to  obstruct  the  administration  of  justice."  But  the  provision  offers 
no  further  guide  to  judicial  discretion.  The  Supreme  Court  has  cautioned  that 
liefore  the  "drastic  procedures  of  the  summary  contempt  power  may  be  invoked." 
it  must  be  clearly  shown  that  the  Court  lias  actually  been  obstructed  in  "the 
performance  of  a  judicial  duty."  In  re  McConnell.  370  T'.S.  230.  234  (1062 K 

Tinder  §  1331,  there  is  a  significant  danger  that  vigorous  i-epreseut;ition  or  self- 
representation  may  be  held  subject  to  snmuiary  pnni.sbnu'ut,  tliereby  cliilliu'^  tlie 
Sixth  Ameudriient  right  to  effective  assistance  of  coun.sel.  See  FoireU,\.  Ahihnmn, 
2K7  U.S.  45  (1032)  :  MrCovneU.  supra.  The  vagueness  of  the  term,  "inisltehaves." 
could  violate  due  process  rights  by  leaving  the  trier  of  fact  "free  to  decide,  with- 
out any  legally  fixed  standards,  what  is  i»robiIiifed  and  what  is  not  in  each  par- 
ticular case."  fliaccio  v.  /'(nii.yi/lranift.  3S2.  T'.S.  ,390.  402-03  (1066).  See  Smith 
v.aogucn.  415  T'.S.  .156  (1074 ).  The  potential  overbreadtli  of  the  term  may  invade 
First  Amendment  rights  to  present  relevant  pnlilic  Issues  for  discussion*  or  deci- 
sion, no  matter  how  distasteful  to  the  individual  iudge.  Cf.  Kniinhiun  v  Board 
of  Regen  ts.  3S5  TT.  S.  .5S0  ( 1 067  » . 

Section  1331  (1»)  adds  an  affirmative  defense  to  the  propo.sed  bill  if  the  court 
order  disobeyed  was  "clearly  invalid"  and  if  there  was  no  reasonable  oj»)>ortiuiity 
to  obtain  judicial  review  of  the  order  prior  to  tlie  disolted'ence  char<red.  However. 
by  stating  the  elements  of  tlie  defense  conjunctively  rattier  than  in  tlie  ;iltcrna- 
tive.  this  defense  has  b(>en  unnecessarily  limited.  There  is  no  i(>ason  why  .-i  jter- 
son  who  can  show  (hat  a  court  order  was.  in  fact,  invalid  (  re.iiardless  of  whether 
the  invalidity  was  "clear")  slionld  be  guilty  of  contempt  //  he  or  she  had  no 
prior  opportunity  to  obtain  timely  judicial  review.' 

Section  1331(d)  further  sjiecities  that  a  criminal  contempt  iiroceediu"-  doe-  not 
bar  snbse<|ueiit  prosecution  for  another  feder.il  oflfen.se  ba.sed  on  tlie  .same  conduct. 


^  Thus,  wp  WDtild  siicjipst  that  the  afflrinat ivp  dofenso  to  contPiiipt  should  r«id  as  follows  : 
"It   Is  an   aliirnintivp  dpfensp   to  a   prospcutioii   iitidpr  snbspction    (a)(2>    that  tlip   writ 
pi-ncpss.  ordpr.  nilp.  dorrpp.  or  comiiiimd  was:   (1)   plparlv  inv.-illd  :  or  (2)  Invalid    ind  that 
tho  di'fpiidant  did  not  Lave  judicial  review  or  a  stay  thereof  prior  to  the  dLsobcdipiice  or 
reslstiince  charged." 


9069 

The  ACLU  believes  that  there  is  a  serious  question  whether  the  double  jeopardy 
clau'^e  of  the  Fifth  Amendment  permits  more  than  one  prosecution  based  on  the 
same  conduct.  Such  a  bifurcation  invites  prosecutorial  harassment.  See  Comment 
in  the  Brown  Commission  Working  Papers.  Vol.  I  at  602. 

Because  the  criminal  contempt  power  is  often  subject  to  judicial  abuse  and 
has  been  too  often  invoiced  against  politically  controversial  defendants  and  their 
counsel,  we  endorse  the  recommendation  in  the  original  Brown  Commission  study 
draft  that  penalties  be  sharply  curtailed  to  no  more  than  five  days  imprisonment 
and  a  $500  fine.  We  also  believe  that  a  criminal  contempt  trial  nuist  be  held 
before  a  neutral  judge— not  the  one  in  whose  court  the  alleged  contemi)t  oc- 
curred. See  Working  Papers.  Vol.  I  at  60.3.  If  longer  penalties  are  to  be  imposed, 
there  can  be  no  substitute  for  the  intervention  of  a  jury  between  the  court  and 
the  accused.  Indeed.  Supreme  Court  decisions  require  a  jury  trial  in  criminal 
contempt  cases  where  a  sentence  longer  than  six  months  is  imposed.  Vhcff  v. 
Srhnuckenbevff,  384  U.S.  373  (1966)  :  Bloom  v.  Illinois.  391  U.S.  194.  208  (1968) 
(Jury  trial  must  be  granted  in  contempt  cases  where  "serious  punishment  .  .  . 
is  contemplated" ) . 
D.  Making  a  false  stafcmcnt  to  a  laic  enforcement  official 

While  judicial  authority  is  split  over  whether  18  U.S.C.  §  1001  covers  false 
statements  made  to  law  enforcement  authorities,  compare  United  States  v.  Adler, 
380  F.  2d  917  (2nd  Cir  1967).  cvrt.  denied.  389  U.S.  1006  (1967)  with  Friedman 
V.  United  Htatrs.  374  F.  2d  363  (Sth  Cir.  1967),  Section  1343  resolves  this  con- 
flict in  favor  of  covering  such  statements.  Even  with  the  limitation  that  the 
defendant  must  have  known  he  was  speaking  to  a  law  enforcement  agent  (unless 
he  volunteered  the  statement  or  was  advised  that  the  making  of  such  a  statement 
was  an  offense),  this  Section  invites  abuse  by  law  enforcement  officials.  The  pos- 
sibility of  altuse  is  particulary  great  with  regard  to  allegedly  false  oral  state- 
ments. Prosecution  for  perjui-y  recpiires  close  examination  of  tlie  actual  words 
used  by  the  defendant.  Since  this  offense  sets  up  a  "my  word  against  yours" 
situation  when  tlie  defendant  and  the  police  officer  are  the  only  two  witnesses. 
the  unfair  advantage  of  the  officer's  presumed  credibility  in  the  eyes  of  the  jury 
makes  the  fabrication  of  charges  a  potential  danger.  False  statements  to  a  law 
enforcement  officer,  whether  oral  or  written,  or  sworn  or  unsworn,  should  not 
be  an  offense  except  in  the  case  of  false  alarms  or  a  i>erson's  intentionnl  false 
imlication  of  another  ijerson  in  the  conunission  of  a  crime.  See  Final  Reports 
§  1354. 

v.   CHAPTER   18 — OFFENSES  INVOLVING  PUBLIC  ORDER,  SAFETY,   HEALTH,  AND  WELFARE 

A.  Drug  offenses 

Chapter  18,  subchai)ter  B,  eliminates  as  a  federal  offi^nse  possession  for  per- 
sonal use  of  10  grams  or  less  of  marijuana.  The  ACLU  endorses  the  decriminali- 
zation of  marijuana  possession  and  uses,  but  recommends  in  addition,  that  gratui- 
tous transfer  of  nuirijuana  also  be  decriminalized.  Further,  no  federal  penalty 
should  be  provided  in  excess  of  any  state  law  that  decriminalizes  possession  of 
marijuana. 

Beyond  marijuana,  the  ACLU  believes  that  criminal  punishment  of  drug  ad- 
dicts, wliose  use  and  possession  of  the  drugs  is  fundamentally  a  result  of  illness 
rather  than  criminal  intent,  is  a  violation  of  the  Constitution.  See  Robinson  v. 
California.  370  U.S.  660  (1962).  holding  it  unconstitutional  to  make  addiction  per 
se  a  crime;  Powell  v.  Texas.  ,392  U.S.  514  (1968)  (dissenting  opinion).  If  the 
Eighth  Amendment  ban  on  cruel  and  unusual  punishment  forbids  punishment  for 
"an  irresistible  compulsion."  according  to  .Justice  White,  concurring  in  P'lireH. 
supra.  392  TT.S.  at  348.  "I  do  not  see  how  it  can  constitutionally  be  a  crime  to 
yield  to  such  a  compulsion.'*  We  agree. 

B.  Riot  offenses 

Like  many  of  the  offenses  against  national  security,  the  anti-riot  laws  are 
broad  and  vague,  sweeping  within  their  terms  conduct  clearly  j)rotected  by  the 
First  Amendment,  failing  to  notify  the  law-abiding  of  what  conduct  is  properly 
forbidden,  and  providing  a  convenient  tool  for  discriminatory  prosecution  and 
governmental  oppression  of  political  adversaries. 

Although  the  term,  "incitement."  in  §  1831(a)  (1)  has  now  been  defined  in  sec- 
tion 111  in  general  accord  with  the  formulation  in  Brandenburg  v.  Ohio.  ,395  U.S. 
444  (1969),  one  further  change  is  necessary.  The  proposed  bill  defines  "incites" 


9070 

as  "urging  other  persons  to  engage  imminently  in  conduct  in  circumstances  under 
wtiich  there  is  a  substantial  likelihood  of  imminently  causing  such  conduct."  - 

Under  this  definition,  the  defendant  need  only  be  reckless  with  regard  to  the 
fact  that  circumstances  exist  which  render  his  otherwise  lawful  advocacy  likely 
to  result  in  a  riot.  The  definition  of  incites  in  §  111,  therefore,  should  be  changed 
to  require  knowledge  of  the  requisite  existing  circumstances. 

Section  1831(a)  (2)  punishes  the  leading  or  giving  of  "commands,  instructions, 
or  directions  in  furtherance  of"  a  riot.  This  is  vague  and  overbroad.  Hess  v.  In- 
diana, 94  S.Ct.  326  (1973),  amply  demonstrates  the  difiSculties  encountered  in 
determining  who  is  trying  to  further  a  riot  and  who  is  trying  to  limit  it.  Such 
speech  is  protected  not  only  by  the  First  Amendment,  but  also  by  the  Fifth 
Amendment  guarantee  of  due  process  of  law.  The  standards  for  punishment  are 
so  vague  as  to  require  potential  viohitors,  law  enforcement  personnel,  and  judge 
or  jury  to  guess  at  their  meaning.  See  Lanzetta  v.  Hew  Jersey,  306  U.S.  4551 
(1938). 

Section  1833.  which  prohibits  "engaging  in  a  riot,"  also  suffers  from  vagueness. 
The  problem  created  by  such  vagueness  is  the  discretion  left  to  law  enforcement 
oflicials  to  determine  what  conduct  is  criminal. 

Such  broad  provisions  can  only  encourage  dragnet  arrests,  where  police  make 
the  arbitrary  determination  that  everyone  within  sight  or  reach  is  "engaging  in" 
the  disturbance,  even  though  many  of  them  may  be  persons  who  have  committed 
no  culpable  act  whatsoever  or  innocent  bystanders  caught  up  in  unexpected 
circumstances.  It  invites  arrest  on  the  basis  of  such  irrelevant  factors  as  race, 
age,  and  manner  of  dress.  The  later  invalidation  of  such  arrests  or  the  dismissal 
of  charges  cannot  compensate  the  victims  for  restraint,  incarceration,  or  such  col- 
lateral consequences  of  arrest  as,  under  current  law,  the  inclusion  of  their  finger- 
prints in  crime  control  databanks  and  the  refusal  by  public  or  private  employers 
to  hire  them  on  the  basis  of  their  brush  with  the  law.  See  Sullivan  v.  Murphxi,  478 
F.2d  938  (D.C.  Cir.  1973). 

C.   Obscenity 

Section  1842  makes  it  a  federal  felony  to  disseminate  obscene  material,  thereby 
punishing  the  freedom  of  speech  and  press  guaranteed  by  the  First  Amendment. 

The  ACLU  opposes  any  restriction  on  expression  on  the  grounds  that  it  is 
somehow  obscene,  immoral,  shameful,  or  distasteful.  The  Constitution  requires 
that  such  judgments  be  left  to  the  individual  rather  than  to  the  government. 
.Tustice  Douglas,  dissenting  from  the  Supreme  Court  majority  in  Miller  v.  Cali- 
fornia, 93  S.Ct.  2607  (1973),  outlined  the  dangers  of  determining  that  some  forms 
of  expression  are  beyond  the  protection  of  the  Constitution. 

"Tlie  idea  that  the  First  Amendment  permits  government  to  ban  publications 
that  are  'offensive'  to  some  people  puts  an  ominous  gloss  on  freedom  of  the  press. 
That  test  would  make  it  possible  to  ban  any  paper  or  any  journal  or  magazine  in 
some  benighted  place  *  *  *  To  give  the  power  to  the  censor,  as  we  do  today,  is  to 
make  a  sharp  and  radical  break  with  the  traditions  of  a  free  society  *  *  *  The 
materials  before  us  may  be  garbage.  But  so  is  much  of  what  is  said  in  political 
campaigTis,  in  the  daily  press,  on  TV  or  over  the  radio.  By  reason  of  the  First 
Amendment — and  solely  because  of  it — -speakers  and  publishers  have  not  been 
threatened  or  subdued  because  their  tlioughts  and  ideas  may  be  'offensive'  to 
some."  Id.  at  2026. 

A  definition  of  ol)Scenity  that  would  both  give  fair  warning  of  what  is  prohib- 
ited and  limit  itself  to  the  ti'uly  i>ornographic  has  defied  the  best  legal  minds  of 
the  century.  In  Miller,  suirr-a.  the  Court  majority  confidently  predicted  that  its 
newest  test  would  single  out  protected  "commerce  in  ideas"  from  punishable  "com- 
mercial exploitation  of  obscene  material."  Id.  at  2621.  The  Georgia  Supreme  Court 
responded  two  weeks  later  by  holding  that  the  widely  acclaimed  movie  "Carnal 
Knowledge"  was  obscene,  the  Sui>reme  Court  of  the  United  States  failed  to  relieve 
itself  of  "the  awesome  task  of  making  ca.se  by  case  at  once  the  criminal  and  the 
constitutional  law."  Id.  at  .50."8  (Brennan,  .1.  dissenting).  The  constitutional 
■definition  of  o1>scenity  remains  uncertain. 

I^nfortunately,  the  proposed  bill  codifies  the  standards  laid  down  in  Miller,  thus 
cementing  the  "community  standards"  test  into  the  federal  criminal  laws. 


-yXo  nvfsvmo  thnt  thorp  Is  eitlior  a  t.vpojrraphlral  or  (ir.iftlnsr  error  In  S  1831.  Subsw^tlon 
fa)  nrnhibits  "inritinp"  partiolpation  in  a  rirvt  dnrinf?  a  riot.  Siih^jprtlon  (h)  however 
prolilhits  "nrfrinR"  participation  in  a  riot  dnriuff  a  riot.  If  "iirfrinp;"  is  meant  to  denote  a 
ies.'spr  quantum  of  conduct  than  "Inciting."  tlien  defininp:  IncltinfT  In  accord  with  Brandrn- 
hurrj  hecomes  nn  Illusory  chanffo.  We  assume  the  sponsors  of  this  bill  Intended  no  such 
result,  and  will  readily  agree  to  delete  the  relevant  language  from  snbsection  (b). 


9071 

Under  Section  1842(b)  (4)  (B)  (i)  and  the  venue  provisions  of  Section  3311,  the 
contemporary  community  standards  to  be  applied  are  those  generally  accepted  in 
the  judicial  district  where  the  offense  occurred.  Section  1842  thus  invites  a  local 
jury  in  any  district  through  which  or  into  which  the  material  has  passed  by  mails 
or  commerce  to  dictate  the  standards  for  the  rest  of  the  community.  The  ACLU 
strongly  opposes  any  federal  obscenity  statute,  but  at  the  very  least,  the  venue 
provisions  must  be  modified  to  reduce  the  liability  of  defendants  to  prosecution 
in  every  district  of  the  country. 

D.  Failing  to  obey  a  public  safety  order 

Under  Section  1861,  it  is  an  offense  to  disobey  a  lawful  order  of  any  public 
servant  "issued  in  response  to  a  fire,  flood,  riot  or  other  connection  that  creates  a 
risk  of  serious  injury  to  a  person  or  serious  damage  to  property."  No  comparable 
offense  exists  under  current  federal  law.  The  residual  clauses,  "other  condition 
that  creates  a  risk.  .  .  ,"  is  vague  and  should  be  deleted.  Furthermore,  authority 
to  issue  such  orders  should  be  narrowed  since  the  definition  of  public  servant  in 
Section  111  included  any  "oflScer,  employee,  advisor,  consultant,  juror,  or  other 
person  authorized  to  act  for  or  on  behalf"  of  the  government.  Nothing  in  Section 
1861  requires  the  public  servant  whose  orders  it  is  an  infraction  to  disobey  to  be 
a  public  safety  oflScer  or  to  have  any  specific  authority  related  to  the  specific 
circumstances.  In  addition,  like  other  infractions,  the  offense  should  carry  no 
prison  term,  but  be  punishable  solely  as  a  civil  violation  subjecting  the  offender  to 
minimal  fines. 

Under  §  1861,  members  of  the  press  and  public  could  be  ordered  to  "move,  dis- 
perse, or  refrain  from  specified  activity" — such  as  taking  photographs — by  any 
government  ofiicial  who  objected  to  their  presence  or  activity  in  an  area  where  a 
riot  was  "impending"  if  the  order  were  "reasonably  designed"  to  prevent  injury 
to  persons  or  property.  Such  vague  provisions  give  government  officials  broad 
powers  to  interfere  with  free  speech  and  press  and  to  control  what  the  public 
learns  about  government  response  to  protest  demonstrations  as  well  as  to  riots,  or 
potential  riots.  But  these  are  matters  of  which  the  public  should  be  thoroughly 
and  accurately  informed. 

VII.    PART    III — SENTENCES 

In  addition  to  the  general  comments  on  sentencing  which  are  set  forth  at  the 
beginning  of  our  statement,  we  refer  the  Subcommittee  to  the  testimony  of  the 
ACLU  National  Prison  Project  which  addresses  in  detail  the  proposals  in  S.  1437. 

VIII.    CHAPTER    SI — ANCILLARY    INA^STIGATIVE    AUTHORITY 

A.  Wiretapping — subchapter  A 

The  ACLU  has  long  opposed  wiretapping  and  electronic  surveillance  by  any- 
one— including  the  government — for  any  reason.  The  use  of  electronic  devices  to 
invade  the  privacy  of  conversation  in  homes  and  offices,  in  telephone  booths,  and 
nearly  anywhere  else  is  a  flagrant  violation  of  the  Fourth  Amendment  ban  ou 
dragnet  searches  and  seizures,  the  Fifth  Amendment  privilege  against  self- 
incrimination,  and  the  constitutional  right  of  privacy.  The  electronic  ear  does  not 
discriminate  between  conversations  about  criminal  activity  and  conversations 
entirely  within  the  protection  of  the  First  Amendment.  It  does  not  separate  the 
intimate  discussions  of  friends  from  the  clandestine  plotting  of  criminals.  It 
sweeps  up  everything  in  its  way.  As  Justice  Brandeis  observed  in  Olmstead  v. 
United  States,  277  U.S.  438,  475-76,  478   (1928)    (dissenting  opinion)  : 

"The  evil  incident  to  invasion  of  the  privacy  of  the  telephone  is  far  greater  than 
that  involved  in  tampering  with  the  mails.  Whenever  a  telephone  line  is  tapped, 
the  privacy  of  the  persons  at  both  ends  of  the  line  is  invaded  and  all  conversations 
between  them  upon  any  subject,  and  although  proper,  confldential  and  privileged, 
may  be  overheard.  Moreover,  the  tapping  of  one  man's  telephone  line  involves  the 
tapping  of  the  telephone  of  every  other  person  whom  he  may  call  or  who  may  call 
him.  As  a  means  of  espionage,  writs  of  assistance  and  general  warrants  are  but 
puny  instruments  of  tyranny  and  oppression  when  compared  with  wire- 
tapping  

"The  makers  of  our  Constitution  undertook  to  secure  conditions  favorable  to 
the  pursuit  of  happiness.  *  *  *  They  conferred,  as  against  the  Government,  the 
right  to  be  let  alone — the  most  comprehensive  of  rights  and  the  right  most  valued 
by  civilized  men." 

The  threat  to  privacy  from  electronic  surveillance  was  so  great,  so  pervasive, 
and  SiO  alien  to  the  spirit  of  the  Constitution,  Brandeis  wrote,  that  even  intrusions 


9072 

in  the  name  of  law  enforcement  must  be  banned.  "Experience  should  teach  us  to 
be  most  on  our  guard  to  i>rotect  liberty  when  the  government's  purposes  are  bene- 
flcient.  *  *  *  The  greatest  dangers  to  liberty  lurk  in  insidious  encroachment  by 
men   of  zeal,   well-meaniug,  but  without  understanding."  Id.  at  479. 

Despite  studies  indicating  that,  from  the  government's  point  of  view,  the  costs 
of  electronic  surveillance  far  outweigh  its  purported  benefits.  Schwartz,  Report  on 
Costs  and  Benefits  of  Electronic  Surveillance  (ACLU  1973),  S.  1437  essentially 
re-enacts  the  electronic  surveillance  provisions  of  Title  III  of  the  Omnibus  Crime 
Control  and  Safe  Streets  Act,  18  U.S.C.  §§  2")l(>-20. 

The  ACLU  vigorously  opposed  Title  III  at  the  time  it  was  under  consideration 
by  Congress.  We  oppose  its  re-enactment  now.  Despite  its  requirement  that  a 
neutral  magistrate  issue  a  warrant  based  on  "probable  cause"  and  on  the  failure 
of  ordinary  investigative  techniciues.  Title  III  has  greatly  expanded  the  use  of 
electi-onic  surveillance.  In  the  overwhelming  majority  of  cases,  the  neutral  magis- 
trate has  accepted  the  government's  word  that  such  surveillance  was  necessary 
and  would  be  carefully  limited  within  statutory  guidelines. 

The  number  of  "intercept  applications"  authorized  has  risen  from  174  in  1968 
to  686  in  1976;  in  the  latter  year  only  two  applications  were  denied.  Of  the  686 
applications  granted  in  1976.  only  20%  were  granted  by  federal  rather  than  state 
.ludges.  In  1976,  the  average  number  of  persons  whose  conversations  were  over- 
heard was  54  per  wiretape;  and  the  average  number  of  conversations  ovei'heard 
was  662  per  order.  The  average  wiretape  was  in  actual  operation  for  ahnost  19 
days.  Administrative  Office  of  the  United  States  Courts.  Report  on  Applications 
for  Orders  Authorizing  or  Approving  the  Interception  of  Wire  or  Oral  Com- 
munications (1976). 

Yet  there  have  been  extraordinary  abuses — abuses  involving  wholesale  deceiv 
tion  of  the  courts  by  the  Administration.  Despite  the  requirement  that  only  the 
Attorney  General  or  an  Assistant  Attorney  General  specially  designated  by  him 
could  authorize  federal  applications  for  intercept  orders,  18  IT.S.C.  §  2516,  a 
recpiirement  designed  by  Congress  to  insure  that  only  a  "pultlicly  responsible 
official"  would  set  law  enforcement  policy  in  tbis  sensitive  area.  S.  Rep.  No. 
10(57.  90th  Cong.,  2d  Se.ss.,  96-97  (1968),  a  large  number  of  such  orders  were 
routinely  approved  by  an  executive  assistant  to  the  Attorney  General  and  sub- 
mitted to  the  courts  in  the  anem  of  an  Assistant  Attorney  General  who  had, 
in  fact,  nothing  to  do  with  their  authorization.  As  a  result,  the  Supreme  Court 
lias  held  that  evidence  gathered  under  those  orders  cannot  be  admitted  in  court. 
Sen  generally.  T'nifcfl  l^latrs'  v.  Ginrdann,  416  U.S.  5<)5  (974  I. 

While  Section  3104  limits  the  types  of  crimes  for  which  an  emergency  war- 
rantless wiretap  is  obtainable,  and  removes  the  reservation  of  an  inherent  presi- 
dential power  to  conduct  wiretaps  without  warrants,  it  still  permits  broad 
wiretapping.  An  important  oi)portiuiity  is  thus  lost  to  examine  closely  the  record 
of  nine  years  luider  Title  III  to  determine  wliether  tlie  minimal  gains  for  law 
enforcement  are,  as  we  submit,  far  outweighed  by  the  loss  of  privacy  which  has 
been  suffered. 

B.  Compulsion  of  testimony 

Subchapter  31  (b)  restates  existing  law.  comi>elling  a  per.son's  testimony  even 
tliough  his  or  her  refusal  is  bast'd  on  the  i)rivil('ges  against  self-incrimination. 
Section  311  (b>  thus  continues  the  practice  adopted  in  1970  in  the  Organized 
Crime  Control  Act.  which  cut  to  the  beart  of  the  Fifth  Amendment  privilege  l>y 
providing  that  a  witness  cliiiining  tlie  privilege  could  nevertbeless  I)e  conii>elled 
to  testify  by  being  granted  limited,  "nse"  imninnity.  Vs(^  immunity  meaiis  tbat 
testimony  or  evidence  derivetl  from  such  testimony  cannot  be  used  against  the 
witness,  but  the  witness  can  still  be  prosecuted  for  any  crimes  admitted  in  the 
testimony,  so  long  as  the  pro.secution  is  based  on  independent  evidence. 

Substituting  use  immunity  for  tbe  broader,  historically  approved  "transac- 
tional" innnunity  from  pros<'Cu(ion  severely  weakens  Fiftb  Amendment  rights. 
Thp  ACLT'  opposes  use  immunity  on  the  ground  tbat  the  Fifth  Amendment  guar- 
antees a  per.son's  right  to  renmin  silent  and  to  be  free  from  compulsory  .self- 
incrimination.  Tbe  re((uirement  of  full  transactional  immunity  is  tlie  mininnjm 
constitutional  compromise  which  could  justify  disidacing  tbat  rit,'lit  f)f  silence. 

Tbe  rationale  for  this  jxtsition  is  explained  in  .Justice  Douglas'  dis.senting 
opinion  in  Kd.sfifjar  v.  I'tiitcd  States,  406  I'.S.  411.  467  (1972)  : 

"The  Self-incrimination  Clause  says:  'Xo  person  .  .  .  shall  be  compelled  in 
any  criminal  case  to  be  a  witness  against  himself.'  T  see  no  answer  to  the  propo- 
sition that  he  is  such  a  witness  when  only  "use"  immunity  is  granted."  Kustiijur 


9073 

T.  United  States,  406  U.S.  at  462.  Emphasizing  the  broad  reach  of  the  Fifth 
Amendment,  Justice  Douglas  noted  that  "the  framers  put  it  beyond  the  power 
of  Congress  to  compel  anyone  to  confess  his  crimes.  The  Self-incrimination 
clause  creates,  as  I  have  said  before,  "the  federally  protected  right  of  silence,' 
making  it  unconstitutional  to  u.se  a  law  'to  pry  open  one's  lips  and  make  him  a 
witness  against  himself.'  "  Id.,  at  467.  We  agree.  The  compulsion  of  involuntary 
self-incriminating  testimony  through  use  immunity  should  be  abolished. 

IX.     CHAPTER    36 — DISPOSITION    OF    INCOMPETENT    OFFENDERS 

Chapter  36(b)  deals  with  determination  of  competency  to  stand  trial  and 
treatment  of  offenders  who  are  suffering  from  mental  disease  or  defect.  It  also 
provides  for  the  disposition  of  persons  found  not  guilty  of  any  federal  offense  by 
reason  of  insanity.  Most  of  these  sections  either  entirely  rewrite  existing  law  or 
codify  current  practice  that  is  not  dealt  with  at  present  by  statute.  The  subject 
is  not  without  difficulty  and  a  complete  discussion  would  substantially  lengthen 
this  already  lengthy  testimony.  Therefore,  we  merely  set  forth  below  some  gen- 
eral comments  in  this  subchapter  as  a  starting  point  for  the  Committee :  ''' 

A.  S.  1347  makes  an  important  change  in  S.  3611.  A  per.son  held  to  determince 
competency  to  stand  trial  may  not  l)e  held  for  more  than  a  year.  Current  law 
specifies  only  a  reasonable  time  or  until  it  is  clear  that  there  is  no  substantial 
likelihood  that  tlie  defendant  will  regain  competency.  Legislative  definition  of 
time  limit  is  useful  and  a  year  would  appear  to  be  appropriate  for  felony  cases, 
For  a  misdemeanor,  the  time  period  should  be  considei'ably  shorter. 

The  major  defect  in  this  section  is  that  it  fails  to  deal  with  dismissal  of  charges 
of  one  found  to  be  incompetent  to  stand  trial. 

As  the  statute  of  limitations  is  tolled  when  the  prosecution  is  commenced,  an 
incompetent  defendant  can  remain  subject  to  further  prosecution  for  an  in- 
definite time.  This  is  a  fundamentally  unfair  l)urden  to  impose  on  one  who, 
through  no  fault  of  the  accused,  cannot  be  brought  to  trial. 

B.  Chapter  36(b)  also  asserts  federal  authoriry  to  commit  a  person  who  has 
lieen  found  not  guilty  (l)y  reason  of  insanity)  of  any  federal  offense  or  whose 
term  of  imprisonment  about  to  exi>ire.  Such  aiithority  does  not  exist  under  ciir- 
rent  federal  law,  nor  should  it.  Once  a  person  has  j)een  found  not  guilty — for 
any  reason — or  .served  the  prison  sentence  imposed,  the  federal  interest  expires. 

if  there  is  reason  to  believe  that  such  a  person  must  be  invohmtarily  con- 
fined, the  proper  course  is  to  refer  such  person  to  state  authorities  for  possible 
commitment  under  state  civil  connnitment  law.  By  this  method,  commitment 
will  only  be  obtained  when  both  authorities,  state  and  federal,  agree  tliat  the 
defendant  must  be  deprived  of  l\is  or  her  freedom.  This  renders  less  likely  the 
possibility  that  commitment  will  be  obtained  out  of  retribution,  either  by  the 
federal  ]>rosecutor.v  who  has  been  "defeated"  l».v  a  plea  of  insanity,  or  by  prison 
authorities  who  seek  additional  punishment  for  an  unruly  inmate  whose  term 
Is  about  to  expire.  The  checks  and  balances  built  into  the  present  system  should 
be  preserved. 

The  S.  1347  bill  changes  the  commitment  standard  from  preponderance  of  the 
evidence  to  "clear  and  convincing" — a  significant  and  welcome  change  but  one 
which  In  no  way  mitigates  the  overreaching  of  federal  authority.  Other  pro- 
cedural changes  are  necessary  if  the.se  sections  are  to  be  retained  against  our 
recommendations.  This  chapter  should  be  compared  in  its  entirety  with  H.R. 
12."()4  which  in  nimierous  ways  better  protects  the  defendant's  right  to  a  fair 
hearing  before  the  loss  of  his  liberty,  e.g.,  compo.sltion  of  the  examining  panel 
of  psychiatrists,  video-taping  of  evaluative  staff  conferences,  and  frequency  of 
reports  from  the  hospital  staff  of  the  committing  authority. 

X.     CHAPTEE    37 SUBCHAPTER    B — EVIDENCE 

A.  Admifisihility  of  confessions 

Section  3713  Is  an  attempt,  derived  from  existing  law  enacted  as  part  of  the 
1968  omnibus  anti-crime  bill,  to  undercut  the  Miranda  decision  providing  su.s- 
pects  certain  rights  when  subjected  to  custodial  interrogations  b.v  law  enforce- 


"•  We  understand  that  Professor  Heathcote  Wales  of  Georgetown  University  Law  Center 
will  be  invited  to  testify  on  Chapter  36(b),  Professor  Wales  has  served  as  an  advisor  to  the 
A'OLU  fin  rhis  subject  and  plriyed  a  key  role  in  (Iraftini:  Chapter  ;-!fi(b)  of  H.K.  12')()4  "tlie 
i»4th.  Congress   (now  H.R,  2311)  which  we  commend  to  this  Committee  for  comparison. 


9074 

ment  officials.  Section  3713(C),  provides  that  the  presence  of  absence  of  any 
of  the  factors  enumerated  is  not  conclusive  as  to  voluntariness  of  the  confes- 
sion. Among  the  factors,  which  are  not  to  be  conclusive,  is  ''whether  the  person 
was  advised  or  linew  that  he  was  not  required  to  make  a  statement  and  that 
the  statement  could  be  used  against  him."  Allowing  judges  and  juries  to  find 
a  confession  admissible  even  if  this  requirement  has  not  been  met  is  incon- 
sistent with  a  defendant's  right  to  be  so  advised  in  custodial  interrogations  and 
the  ACLU  opposes  it. 

B.  Admissihilitp  of  evidence  in  se^xtenclng  proceedings 

The  ACLU  opposes  Section  3714,  which  would  allow  illegally  obtained  con- 
fessions and  fruits  of  illegal  searches  to  be  considered  in  sentencng.  The  section 
provides  that  "any  relevant  information  concerning  the  history,  characteristics- 
and  conduct  of  a  person  *  *  *  regardless  of  the  admissibility  of  the  informatioa 
under  the  Federal  Rules  of  Evidence"  would  be  permitted. 

XI.    MISCELLANEOUS   PROVISIONS 

A.  Revealing  private  information  submitted  for  a  Oovernment  purpose 

§  1525  prohibits  a  present  or  former  public  servant  from  disclosing  information 
submitted  to  the  government  by  a  private  citizen  in  connection  with  an  applica- 
tion for  a  license  or  benefit  or  to  comply  with  a  legal  duty,  where  such  disclosure 
would  violate  a  specific  duty  imposed  on  the  official  by  statute,  regulation,  rule  or 
order. 

This  section  is  properly  aimed  at  assuming  the  reliability  of  private  informa- 
tion submitted  to  regulatory  and  other  government  agencies  by  assuring  that  the 
confidentiality  of  such  records  will  be  maintained. 

We  submit  however,  that  this  section  as  drafted  could  be  used  to  insulate 
documentary  evidence  of  official  corruption  or  other  wrongdoing  from  .scrutiny 
and  airing  by  Congress,  the  press,  and  the  general  public.  To  obviate  this  danger, 
we  suggest  that  the  Committee  Report  make  it  clear  that  the  section  does  not 
cover  internally  generated  government  documents  or  documents  obtainable  under 
the  Freedom  of  Information  Act  or  discoverable  under  the  Federal  Rules  of  Civil 
Procedure. 

In  addition,  the  legislative  history  should  reflect  the  fact  that  Congress  intends 
this  section  neither  to  restrict  its  own  access  to  information  nor  to  dilute  the 
obligation  of  public  servants  to  come  forward  with  evidence  of  wrougduiug 
(codified  in  §1311  or  elsewhere). 

B.  "News  reporters'  defense  to  theft  offenses 

§  1733(b)  creates  a  defense  for  receiving  stolen  property  where  the  property 
was  received  with  intent  to  report  the  matter  to  a  law  enforcement  officer  or 
the  owner  of  the  property.  §  1739(C)  bars  prosecution  for  theft  of  intangible 
government  property  where  the  defendant  obtained  the  property  by  non-criminal 
means  and  used  it  solely  for  disseminating  it  to  the  public  without  deriving' 
anything  of  value  therefrom. 

Tlie  ACLU  strongly  endorses  the  policies  expressed  in  the  affirmative  defense  of 
§  17.''.3(b)  and  the  bar  to  prosecution  of  §  17.30(C).  We  are  concerned,  however, 
that  §  1739(C)  as  currently  written  will  not  protect  a  news  reiwrter  who  uses 
intangible  government  property  as  the  basis  for  an  investigative  report  for 
which  he  is  paid  his  usual  salary.  It  is  not  in  the  public  interest  for  investigative 
reporters  to  be  cut  off  from  their  usual  sources  of  income  while  pursuing  their 
profes.sion ;  and  we  assume  that  such  was  not  the  intent  of  the  bill's  drafters. 

We  suggest  therefore,  that  §  17.39(C)  (2)  be  amended  to  read:  "*  *  *  the 
defendant  obtained  or  used  the  property  for  the  purpose  of  disseminating  it  to 
the  public,  and  not  for  the  primary  purpose  of  deriving  anything  of  value.  *  *  *"^ 

Thank  you  for  the  opi>ortunity  of  api>earing  before  the  Subcommittee. 

Mr.  SiiATTCTCK.  Therp  are  two  pnrts  to  our  testimony.  First  I  would 
like  to  present  an  overview  of  the  bill.  S.  1437,  and  point  out  some  ways 
in  whifli  it  is  an  improvement  over  prior  bills  and  other  ways  in  which 
we  continue  to  .see  problems  in  it. 

Tlien  Ms.  Crisman  of  the  ACLU  national  prison  project  will  focus 
on  the  issues  which  many  of  the  other  witnesses  this  morning,  and  in 


9075 

previous  hearings,  have  focused  on,  which  is  the  sentencing  structure  of 
S.  1437. 

We  all  know  that  the  opportunity  to  codify  the  criminal  laws  is  a 
rare  opportunity  indeed.  I  suppose  that  most  people  would  agree  that 
<it  is  also  a  rare  opportunity  to  improve  those  laws. 

That  is  the  spirit  in  which  we  at  the  ACLU  have  reviewed  S.  1437. 

We  recognize  that  the  bill  is  an  improvement  over  S.  1  and  earlier 
bills  which  we  strongly  opposed  and  felt  should  not  be  enacted  under 
.any  circumstances.  But  we  also  recognize  that  S.  1437  poses  dangers  to 
civil  liberties,  some  of  which  are  not  found  in  existing  law  at  all. 

Before  I  review  the  details  of  the  bill,  let  me  summarize  the  prin- 
■ciples  that  we  have  tried  to  follow  in  reaching  our  conclusions. 

The  first  principle  is  the  one  that  Professor  Dershowitz  alluded  to, 
and  that  is  that  where  there  is  no  victim,  there  should  be  no  crime.  I 
think  there  are  at  least  two  very  compelling  social  reasons  for  this. 

First,  the  society  should  not  be  in  the  business  of  telling  people  what 
is  harmful  to  them.  It  should  not  be  in  the  business  of  legislating 
morality  in  the  criminal  law.  That  is  certainly  true  when  it  comes  to 
locking  people  up  or  otherwise  penalizing  them  under  the  criminal 
code,  even  if  certain  warnings  to  people  can  be  given  that  things  may 
he  harmful  to  them. 

The  second  reason  is  that  it  is  an  incredible  waste  of  judicial  and 
law  enforcement  resources  to  focus  on  victimless  crimes  when  there  are 
so  many  crimes  with  victims  that  go  unpunished.  One  very  dramatic 
example  of  this  is  the  fact  that  in  the  last  few  years  there  have  been 
the  same  number  of  arrests  nationwide  for  marihuana  offenses  as  for 
all  other  major  crimes  of  violence  combined. 

In  fact,  speaking  to  this  question  of  wasted  resources,  there  is  every 
reason  to  believe  that  we  actually  create  crime  by  stigmatizing  people 
with  criminal  records  so  that  they  cannot  get  employment  and  they 
become  social  and  economic  outcasts  and  in  some  instances  will  then 
have  to  turn  to  crime.  This  is  a  result  of  criminal  laws  which  penalize 
those  who  are  engaged  in  what  we  broadly  categorize  as  victimless 
■crimes. 

This  point  has  been  made  again  and  again  in  the  Presidential  Crime 
Commission  reports.  I  will  not  dwell  on  it  here. 

So,  we  believe  that  an  enlightened  criminal  code  should  eliminate 
victimless  crimes  and  focus  on  while-collar  crimes  and  crimes  of 
violence. 

Our  second  principle  is  that  the  criminal  law  should  not  undermine 
crucial  constitutional  rights,  such  as  free  speech,  due  process  of  law, 
the  right  of  privacy,  the  fourth  amendment,  and  the  whole  range  of 
protections  in  the  Bill  of  Rights. 

From  our  point  of  view,  as  I  am  sure  you  are  aware,  Mr.  Chairman, 
there  is  no  room  for  compromise  on  the  question  of  undermining  con- 
stitutional rights  in  the  enactment  of  a  criminal  code. 

In  the  first  amendment  area,  for  example,  it  is  essential  that  the 
criminal  law  stay  clear  of  speech  and  thought  and  association  and  focus 
on  conduct  and  not  on  behavior  that  is  protected,  even  if  that  behavior 
is  controversial  or  might  possibly  be  leading  toward  crime. 

There  is  a  whole  range  of  offenses  which  must  be  carefully  drafted 
an  this  area.  These  are  the  so-called  inchoate  offenses,  such  as  con- 


9076 

spiracy  and  solicitation,  whioli  is  a  new  ofFonse  in  S.  1487.  as  well  as 
obscenity  in  the  area  that  Professor  Dershowitz  was  touching  on,  and 
the  laws  regulating  demonstrations  and  assembly. 

There  are  many  provisions  in  S.  1487  which  come  very  close  to  pro- 
tected speech,  and  we  have  set  forth  in  the  prepared  statement  ways  in 
which  those  provisions  must  be  amended  in  order  to  avoid  trampling 
on  that  speech. 

There  are  other  areas.  There  are  the  areas  affecting  the  press,  for 
example,  which  I  will  get  into  in  a  moment,  and  laws  intended  to  pro- 
tect the  national  security,  or  national  defense. 

These  all  come  very  close  to  protected  speech,  and  unless  extremelv, 
carefully  drafted — we  would  submit,  more  carefully  than  is  presently 
the  case  in  S.  1437 — will  have  a  serious  impact  on  first  amendment 
rights. 

The  same  thing,  of  course,  is  true  of  investigative  authority  whirh 
intrudes  on  privacy,  or  can  intrude  on  privacy,  such  as  wiretapping^ 
search  procedures,  and  the  administi-ation  of  the  criminal  justice  sys- 
tem and  the  evidentiary  rules  which  can  also  touch  very  closely  on 
constitutional  rights,  and  must  be  very  carefully  drafted. 

Tn  sum,  T  would  say  in  no  area  should  we  sacrifice  constitutionnl 
rights  to  criminal  law,  which  is  not  to  say  that  laws  cannot  be  narrowly 
drafted,  that  is,  with  care  and  attention.  We  think  the  task  can  be 
accomplished. 

Our  third  principle  involves  the  fairness  of  the  sentencing  system. 
Tn  this  ai'ea,  my  collea.qrue.  Ms.  Crismpu.  will  presf^nt  to  vou  our  testi- 
mony and  our  view  of  the  sentencing  structure  of  S.  1487,  after  I  have 
concluded  with  an  overview  of  the  bill. 

We  have  examined  the  bill  under  these  general  principles.  As  you 
might  suspect,  we  have  been  rigorous  in  our  review  and  have  not  hesi- 
tated to  identify  problems.  We  have  already  identified  manv  of  these 
problems  to  your  staff  in  the  drafting  stages  of  the  bill.  We  will  set 
them  in  the  record  in  the  prepared  testimonv  which  T  have  submitted. 

Based  upon  our  review,  our  general  conclusion  is  that  S.  1487  does 
indeed  represent  an  improvement  over  S.  1,  but  in  key  respects  as  now 
drafted,  it  fails  to  seize  the  opportunity  for  significant  reform  of  the 
criminal  law,  and  it  contains  a  substantial  number  of  provisions  which 
threaten  constitutional  rights. 

Before  T  summarize  these  sections,  let  me  review  quickly  the  bill's 
nn'ior  civil  liberties  improvements  over  S.  1. 

First,  and  now  importantly  to  us  is  the  elimination  of  the  official 
secrets  section  and  the  Nuremburg  defense  for  (rovernment  officials. 
The  repeal  of  the  Smith  Act  is  also  important.  This  penalizes  ad- 
vocacy of  the  overthrow  of  the  Government  and,  of  course,  is  right  in 
the  midrlle  of  this  fwew  of  criminal  law  inti-udintr  upon  constitutionnl 
rights.  The  repeal  of  the  Logan  Act  which  ])rohibits  ])ri\ate  conunutii- 
cation  to  a  foreign  government  is.  of  course.  im]>oi-ta7it,  Tt  avos  this 
law,  passed  way  back  in  1700.  which  the  Government  attempted  to  use 
airainst  T'^^.S.  citizens  who  coutacted  and  visited  North  Vietnam  during 
the  war  there  in  an  attempt  to  achieve  peace. 

The  expansion  of  the  Civil  Eights  Act  of  lOOcS  to  make  it  a  criminal 
offense  to  discriminate  on  the  basis  of  sex  and  strencftheu  the  law  to 
permit  prosecution  of  anv  person  who  deprives  another  by  intimida- 
tion of  federally  protected  civil  rights  is  also  important. 


9077 

There  is  also  the  return  to  tlie  constitutional  requirements  of  proof 
of  treason  and  the  improvement  of  the  definition  of  rape  by  making 
it  sex  neutral  and  clarifyino-  tlie  type  of  force  required  and  eliminat- 
in_:^  the  necessity  for  corroborating  the  victim's  testimony  and  elimi- 
nation of  the  crime  of  disorderly  conduct,  proposed  for  the  first  time 
in  S.  1,  and  finally,  the  repeal  of  the  speech  related  crime  of  impairing 
military  effectiveness  b}^  false  statement. 

These  ai-e  improvements  over  S,  1.  We  recognize  them  as  such.  But 
these  improvements  are  balanced  and  i)i  many  respects  OA-er-shadowed 
by  a  large  number  of  sections  in  the  bill  which  would  have  a  negative 
impact  on  civil  liberties.  In  my  prepared  statement  I  have  analyzed 
these  sections  in  detail.  Let  me  summarize  the  areas  in  which  they 
occur  and  brief  them  for  you  here. 

First,  there  are  the  so-called  inchoate  offenses,  contempt  conspiracy, 
complicity,  and  the  new  crime  of  solicitation,  all  of  which,  as  drafted, 
reach  beyond  specific  criminal  conduct.  As  drafted,  they  reflect  many 
of  the  constitutional  difficulties  of  inchoate  offenses. 

Because  the  focus  of  these  offenses  is  on  precriminal  associations 
and  relationships,  on  thinking  and  on  speech,  they  are  dangerously 
vague  and  overbroad.  There  are  ways  in  which  this  bill  can  be  im- 
proved to  eliminate  the  overreaching  of  these  inchoate  offenses.  We 
would  commend  to  you,  Mr.  Chairman,  the  suggestions  that  we  have 
made  in  our  prepared  statement. 

The  second  area  involves  the  national  defense.  Here  the  bill  con- 
tains a  number  of  offenses  which  cut  severely  into  j^olitical  activity 
and  the  right  of  assembly. 

For  example,  the  impairment  of  military  effectiveness  section,  as 
drafted,  would  probably  have  permitted  the  arrest  and  prosecution 
of  antiwar  demonstrators  in  many  situations  during  the  great  national 
controversy  over  the  Vietnam  war.  We  know  that  is  not  the  intent 
of  the  section,  and  we  trust  that  is  not  the  way  it  would  be  used.  But 
an  over-zealous  prosecutor  could  certainly  read  the  impairment  of 
military  effectiveness  section  in  that  manner.  We  have  again  suggested 
ways  in  which  that  could  be  improved. 

A  third  and  related  area  is  the  series  of  sections  involving  inter- 
ference with  government  processes.  Here  again,  the  right  of  political 
assembly  and  speech  is  restricted  by,  for  example,  broadly  defining 
the  crime  of  obstructuring  a  Government  official  in  the  performance 
of  his  duty.  Or,  the  attempt  to  influence  a  judicial  proceeding,  whicli 
has  been  improved  over  S.  1,  but  requires  further  amendment  so  that 
it  does  not  impinge  on  First  Amendment  rights,  and  the  new  crime 
of  failing  to  obey  a  public  safety  order,  which  again,  is  a  crime  we 
do  not  find  in  existing  law. 

In  another  area  we  are  concerned  that  S.  1437  will  perpetuate  some 
of  the  dangers  of  political  surveillance  and  political  investigations  by, 
for  example,  reenacting  the  use  immunity  standard  of  the  grand  jury 
investigations.  The  grand  jury  was  one  of  the  principal  elements  in 
the  abuse  of  the  Justice  Department  under  Attorney  General  INIitchell 
when  the  grand  jury  was  used  to  round  up  and  question  large  num- 
bers of  people  who  were  forced,  under  a  use  immunity  standard,  to  give 
their  testimony. 

The  bill  also  creates  a  new  crime  of  making  a  false  oral  statement 
to  any  law  enforcement  official,  and  I  think  for  the  same  reasons  that 


9078 

Professor  Dersliowitz  has  identified,  we  liave  serious  problems  with 
that.  As  he  said,  it  is  not  generally  the  perception  of  American  peo- 
ple that  oral  statements  will  get  them  involved  in  criminal  violations. 
Beyond  that  we  think  this  section  would  invite  a  swearino;  contest 
between  the  police  and  dissenters  or  others  in  contact  with  the  police 
over  whether  or  not  some  statement  was,  in  fact,  made  by  the  person 
charged. 

A  fifth  area  in  which  the  bill  threatens  civil  liberties  involves  con- 
stitutional safeguards  in  tlie  administration  of  criminal  justice.  In 
several  respects,  those  are  undermined  by  S.  1437.  For  example,  there 
is  the  provision  permitting  a  court  to  find  that  a  confession  was  vol- 
untary even  if  the  defendant  did  not  receive  Miranda  warnings  before 
making  a  confession.  Another  provision  permits  the  use  of  illegally 
obtained  evidence  in  sentencing  proceedings. 

In  the  area  of  obscenity  regulation,  we  are  disappointed  that  S.  1437 
follows  the  trend  of  the  Burger  court  towards  removing  Federal  prc^ 
tections  of  constitutional  rights  by  mandating  community  rather  than 
national  standards  in  defining  obscenity  and  by  codifying  the  Supreme 
Court  decision  in  Miller  v.  United  States. 

This  means  that  a  defendant  charged  with  disseminating  obscene 
materials  under  Federal  law  could-  be  prosecuted  in  any  district  in 
the  country  whore  those  materials  are  found  under  the  venue  provi- 
sions of  this  bill,  and  the  standard  to  be  applied  against  him  would 
bo  the  local  one,  even  if  lie  liad  nevoi-  sot  foot  in  that  district.  As 
Professor  Dersliowitz  pointed  out,  this  could  result  from  the  mere 
fortuities  of  the  mail  system. 

Another  area  in  which  we  are  concerned  about  the  reach  of  S.  1437 
involves  offenses  which  cut  into  freedom  of  the  press.  Again,  we  trust 
that  this  is  not  the  intent  of  the  bill,  but  as  drafted,  there  are  sev- 
eral dangers.  For  example,  there  is  nothing  to  indicate  that  the  crime 
of  obstructing  a  Govenimont  function  by  fraud,  which  is  found  in  the 
bill,  would  not  be  applied  against  a  person  who  publislics  a  Govern- 
ment document  obtained  outside  the  Freedom  of  Information  Act. 

There  is  no  reason  for  us  to  believe  that  this  is  the  intent  of  that 
section.  But  there  is,  by  the  same  token,  no  evidence  or  no  indication 
tliat  there  is  a  defense  for  a  journalist  who  publishes  a  Government 
document  obtained  without  resorting  to  the  Freedom  of  Information 
Act. 

We  have  a  similar  question  alioiit  the  ofTense  of  tampering  with 
the  Government  record.  Publishing  a  record  should  not  be  construed 
as  tampering,  but  again  it  might  be  under  this  section  where  there  are 
no  affirmative  journalist  offenses  inserted.  We  understand  the  com- 
mittee is  considering  this  problem  and  hopefully  there  will  be  im- 
provements here. 

Finally,  in  the  extremely  difficult  area  of  the  disposition  of  incom- 
petent offenders,  we  have  proposed  several  amendments.  "We  recognize 
that  the  snbjoct  is  complicated.  We  urge  the  committee  to  turn  to  the 
large  number  of  experts  in  this  field,  particularly  Professor  Ileathcote 
Wales  of  Georgetown  University,  who  has  boon  very  helpful  to  us 
in  formulating  our  position,  and  whom,  we  understand,  will  be  ap- 
pearing before  the  committee. 


9079 

Although  the  chapter  on  the  disposition  of  incompetent  offenders  is 
an  improvement  over  existing  hiw  in  some  respects,  we  feel  that  in 
another  respect,  it  improperly  expands  Federal  authority  to  commit 
a  person  who  is  found  not  guilty  by  reason  of  insanity. 

To  avoid  the  prejudice  of  having  the  same  authority  commit  a 
person  who  has  been  found  not  guilty  for  any  reason,  the  commit- 
ment proceedings,  we  believe,  should  take  place  in  State  rather  than 
in  Federal  court. 

Obviously,  there  is  a  great  deal  more  in  my  statement  than  I  cov- 
ered in  this  summary  of  its  highlights.  I  would  hope,  Mr,  Chairman, 
that  the  specific  proposals  we  have  made,  which  I  will  not  go  through 
here,  will  be  seriously  considered  by  the  committee  so  that  the  bill 
can  become  a  gain  rather  than  a  loss  for  civil  liberties. 

I  would  like  to  turn  to  Ms.  Crisman  now  who  will  focus  for  you 
our  thoughts  on  the  sentencing  structure.  Before  she  testifies,  let  me 
point  out  that  the  ACLU  national  prison  project  has  had  a  great  deal 
of  experience  in  the  area  of  sentencing  and  incarceration  and  parole. 
Her  testimony  will  reflect  this  experience. 

Senator  Kennedy,  Ms.  Crisman,  we  are  glad  to  have  you  here.  You 
will  have  to  excuse  me  for  a  moment,  I  do  not  want  to  be  a  name 
dropper,  but  I  have  a  meeting  with  the  President  at  12:45  on  airline 
deregulation. 

So,  we  will  take  that  testimony  and  come  back  at  2  :15  and  hear 
our  final  witness,  Benjamin  Ward.  I  have  gone  over  your  testimony. 
You  are  very  close  to  the  approach  we  are  taking. 

At  that  time  we  will  have  about  40  minutes.  So,  would  you  like  to 
proceed,  or  you  can  come  back  at  that  time. 

Ms.  Crisman.  I  can  proceed.  I  can  highlig'ht  my  testimony.  Also, 
if  there  are  questions,  I  will  be  happy  to  take  them. 

Senator  Kennedy.  I  must  leave. 

Please  proceed. 

Ms,  Crisman.  My  name  is  Nancy  Crisman  and  I  am  a  staff  attorney 
with  the  national  prison  project  of  the  American  Civil  Liberties  Union 
Foundation  in  Washington,  D,C.  I  would  like  to  thank  the  subcom- 
mittee for  inviting  me  to  testify.  Through  litigation  and  public  educa- 
tion, the  national  prison  project  seeks  to  protect  and  strengthen  pris- 
oners' rights,  to  improve  conditions  in  the  Nation's  prisons  and  to 
develop  rational,  less  costly,  more  humane  and  more  effective  alterna- 
tives to  incarceration.  We  are  primarily  a  litigation  project  and  it  is 
from  the  lessons  we  have  learned  in  that  arena  that  I  speak  today. 

Any  analysis  of  the  sentencing  proposals  now  pending  before  tliis 
subcommittee  must  begin  with  an  examination  of  the  ]-)roblems  caused 
by  the  existing  statutoiy^  framework.  At  present,  offenders  are  sen- 
tenced to  prison  for  an  indeterminate  length  of  time;  neither  the 
offender,  nor  the  court,  nor  the  public  has  any  idea  or  any  control 
over  how' long  the  offender  will  actually  stay  in  prison.  Individual 
judges  exercise  wide,  virtually  unfettered  discretion  in  determining 
who  should  go  to  prison  and  how  long  a  sentence  should  be.  Offenders 
are  not  accorded  even  the  most  rudimentary  due  process  when  they 
are  sentenced.  The  U.S.  Parole  Commission  decides  when  a  prisoner  is 
ready  to  be  released,  a  decision  which  most  experts  agree  cannot  be 
•and  has  not  been  made  in  any  statistically  fair  way. 

92-463—77 — —33 


9080 

The  results  of  this  system  have  been  disastrous.  Incarceration  has 
been  OTerused  as  a  primary  sanction  and  virtually  all  of  our  prisons 
are  overcrowded.  There  is  a  vast  disparity  in  sentences  in  violation  of 
all  notions  of  justice  and  fundamental  fairness  and  which  breeds  hos- 
tility, distrust  and  disrespect  for  the  entire  criminal  justice  system.^ 

We  commend  the  drafters  of  S.  1437  for  taking  the  initial  steps  to 
remedy  the  problems  of  the  present  sentencing  structure.  We  are  par- 
ticularly pleased  that  you  have  included  a  Federal  Sentencing  Com- 
mission, sentencing  guidelines,  reasons  for  sentences,  and  appellate 
review  of  sentences  in  the  bill.  However,  the  bill  falls  far  short  of  solv- 
ing the  critical  problems  of  sentencing  reform  and  the  present  half- 
hearted attempt  at  reform  may  create  as  many  problems  as  it  solves. 
Our  concerns  are  as  follows : 

ALTERNATIVES 

Any  attempt  at  sentencing  reform  must  emphasize  the  use  of  al- 
ternatives to  incarceration ;  S.  1437  does  not.  We  overuse  incarceration 
as  a  sanction  in  this  country.  We  send  a  greater  percentage  of  the  men 
and  women  convicted  of  crimes  to  prison  than  any  nation  in  Western 
Europe.^  There  is  now  wide  agreement  among  experts  that  over  50  per- 
cent of  the  people  presently  incarcerated  could  be  released  to  tlie 
community  without  increasing  the  chances  that  they  would  recidivate 
and  without  endangering  the  communitv.^^  In  one  of  our  recent  cases, 
Pugh  V.  Locke,  406  F.  Supp.  318  (M.D.  Ala.  197C),  the  Honorable 
Frank  ?>!.  Johnson,  Jr.,  Chief  Judge  of  the  U.S.  District  Court  for  tlie 
Middle  District  of  Alabama,  declared  the  entire  Alabama  prison  sys- 
tem unconstitutional.  As  part  of  the  court's  order,  and  to  remedy  the 
unconstitutionality,  a  team  of  experts  reevaluated  every  prisoner  in 
the  Alabama  prison  s3-stem  and  concluded  that  approximately  40 
percent  of  those  incarcerated  could  immediately  or  shortly  be  i)laced 
in  the  community. 

In  addition,  the  destructive  and  dehumanizing  effect  of  overcrowded 
institutions  on  the  people  incarcerated  in  them  is  becoming  more 
widely  recognized."*  Prisoners  are  forced  to  spend  almost  all  of  their 


'  Since  tlie  ronimittee  has  already  heard  from  some  of  the  most  outstanding  experts 
in  this  Held.  I  will  not  reiterate  the  docnmenration  for  these  prohlems  hnt  refer  the  com- 
mittee to  the  followinfr;  Fogel,  "•  *  *  We  Are  Living  Proof  •  *  •"  :  A  Justice  Model  for 
Porrections.  Cincinnati:  W.  H.  Anderson  Co.:  107.")  :  Frankel.  "Criminal  Sentences:  Law 
Without  Order,"  Tlill  and  Wang,  1073;  von  ITirsch,  "Dolnsr  Justice:  Tlie  Choice  of  Punish- 
ments," (Xew  York:  Hill  and  Wang.  15170);  Morris,  "The  Fntnre  of  Imprisonment" 
(rnivcrsity  of  Chicago.  1!)74)  ;  O'Donnell,  Chiirgin,  Curtis,  "Toward  a  Just  and  Effective 
Sontciuing  System."  Prnegcr.  1077  :  Dcrshowitz.  "I,et  the  Punishment  Fit  the  Crime" 
N'.Y.  Times  Magazine  (107"!)  ;  Dershowitz.  A.  R.  "Indeterminate  Sentencing"  Fnlversity 
of  TVnnsylvania  Law  Review  23  (Fehruary  1974):  207-3:^0:  Frankel.  "The  Sentencing 
Morass  and  a  Suggestion  for  Reform."  Criminal  Law  Bulletin  3  (July-August  1907)  : 
3Gr)-383  :  Harris.  "Disnuisition  <>n  the  Need  for  a  New  Model  for  Crliiiinal  Sentencing 
Systems,"  77  West  Vlrgini;i  li.  Rev.  203  nn7f))  ;  Illinois  Law  Enforcement  Commission. 
Illinois  Justice  Alodel.  Chicago,  197');  Twentieth  Century  Fund.  Task  Force  on  Criminal 
Sentencing,   Fair  and   Certain   I'unishment    (New  York:  McGraw-Hill,   1976). 

2L.E.A.A.,   "Sonrcehonk   of   Criminal   Justice   Statistics."    (1975). 

MJoldfarh.  .\ftcr  Conviction.  New  Yovl<  :  Simons  and  Schuster  (1073):  Mitford.  Kind 
niid  T'sual  Punishnumt.  New  York:  Alfred  A.  Knopf  (1973):  Morris,  sripra :  National 
Cornell  on  Crime  and  Delinquency.  "Policy  Statement :  The  Non-Dangerous  Offender  Should 
Not  Bo  Inii)risoned."  19  f'riuie  and  Delii\quency  4-49.  4."iO  (1973)  :  Struggle  for  Justice;  A 
Report  on  Crime  ;ind  Dellnquencv  In  America.  iMorganroth,  Chairman,  New  I'ork  :  Hill  and 
Want    (1971). 

*Fogel.  niiprn  :  CiofTuinn.  Asylums.  Douhleday  (1901)  ;  Morris,  nupra  :  Wilkins.  Evaluation 
of  Penal  Resources.  Random  House  (1909)  ;  Coleman.  "Psychiatry  in  Prisons:  Treatment 
or  Punishment."  11  Psychiatric  Opinion.  June  1974  :  Berecochea.  "The  Cause.  Cure,  and 
Control  of  Crime,  a  Critique  of  the  Indeterminate  Sentence  and  Prison/Parole  Systems." 
August  1972;  Cummings  and  Mon.ahan.  "Social  Policy  Implications  of  the  Inability  to 
Predict  Violence."  31  Journal  of  Social  Issues.  153  (Nov.  2.  1975)  ;  Report  of  the  Com- 
mittee for  the  Study  of  Incarceration,  Doing  Justice,  Chairman  Charles  Goodell  (1976). 


9081 

time  idle,  with  litle  or  no  privacy,  subject  to  unbearable  noise,  in  an 
atmosphere  of  hostility  and  in  constant  fear  of  assault.  Institutional 
emphasis  on  impersonal  regimentation  and  control  is  increased.  Ten- 
sion and  violence  skyrocket.  In  the  short  run,  wide  scale  violence  or 
rioting  is  inevitable.  Over  the  longer  team,  prisonei-s  are  physically 
and  psychologically  debilitated,  their  progress  toward  rehabilitation 
destroyed  and  their  chance  of  reentering  society  successfully  is 
reduced. 

In  the  same  Alabama  case  mentioned  above,  after  hearing  evidence 
en  almost  every  aspect  of  the  entire  State  prison  system,  as  well  as 
extensive  expert  testimony,  Judge  Johnson  found  as  a  matter  of  fact 
that  Alabama's  prisons  necessarily  and  inevitably  made  people  worse. 
It  is  no  wonder  that  national  statistics  reflect  that  a  large  percentage 
of  those  in  prison  will  commit  a  new  crime  upon  release  and  that  most 
correctional  experts  now  acknowledge  that  we  do  not  know  how  to 
rehabilitate.^ 

The  excessive  use  of  incarceration  in  closed  institutions  in  light  of 
this  data,  is  antithetical  to  the  interests  of  society  as  a  whole.  It  not 
only  fails  to  protect  society  from  crime  and  brutalizes  all  who  are  sub- 
jected to  these  conditions,  but  it  actually  increases  the  likelihood  that 
those  who  enter  the  criminal  justice  system  for  the  first  time  will  re- 
turn time  and  time  again. 

To  alleviate  this  problem  a  sentencing  statute  must  contain  a  pre- 
sumption in  favor  of  the  use  of  alternatives  to  incarceration  for  all 
offenders  except  where  surveillance  in  the  community  has  already 
failed  or  where  the  offender's  recorded  criminal  behavior  clearly  dem- 
onstrates that  protection  of  society  cannot  be  afforded  in  any  other 
way. 

Senate  bill  1437  would  permit  sentencing  alternatives  to  be  used,  but 
does  not  require  them  or  even  encourage  them  (§§  2101,  2102,  2202). 
The  bill  should  provide  for  a  range  of  alternatives,  such  as  fines,  resti- 
tution, forfeiture,  intermittent  incarceration,  community  supervision 
and  cojnmunity  service,  and  require  the  sentencing  authority  to  con- 
sider each  of  these  alternatives  before  imposing  a  sentence  of  impris- 
onment. Senate  bill  1437  provides,  as  alternatives  to  imprisonment, 
only  fines  and  probation  (§§  2101,  2202).  It  allows  forfeiture  notice  to 
victims  and  restitution  to  be  used  only  "in  addition  to"  rather  than  in 
place  of  fines,  probation  or  prison  (§§  2004,  2005,  2006). 

We  would  urge  this  subcommittee  to  adopt  the  provisions  of  Senate 
bill  204  on  this  issue.  Senate  bill  204  creates  a  presumption  in  favor  of 
the  use  of  alternatives  to  incarceration  except  in  certain  specified  in- 
stances (§§  8,  9).  It  provides  for  a  range  of  alternatives  which  can  be 
imposed  instead  of  incarceration. 

SENTENCING    RATTONALB 

Any  sentencing  reform  must  set  forth  a  coherent  rationale  for  sen- 
tencing. It  should  eliminate  standards  which  have  been  proven  ineffec- 
tive and  allow  only  criteria  related  to  the  seriousness  of  the  offense  to 
be  used  when  setting  sentences. 


1  (Joffiiian.  supra;  Kaufman.  Prisons  :  The  .Tiulses  Dilemma  (1973)  ;  Morris,  fiuprn  ;  Roth- 
mnn,  "Behavior  Modification  in  Total  Institutions."  5  Hastings  Center  Report  17  (February 
1D75)  :  Rnthman.  "Decarrerating:  Prisoners  and  Patients."  The  Civil  Liberties  Review 
(Fall  lt>73K  Washington  Post.  Interview  with  Norman  Carlson,  Director,  Federal  Bureau 
of  Prisons,  Washington  Post,  Apr.  13,  1975  ;  see  note  2,  supra. 


9082 

Several  sections  of  S.  1437  permit  sentences  to  be  imposed  for  tlie 
purpose  of  providing  the  oflfender  with  "needed  educational  or  voca- 
tional training,  medical  care  or  other  correctional  treatment"  (§§  101, 
2003,  2102,  2202,  2302).  The  same  criteria  may  be  used  to  enhance  the 
length  of  incarceration  (§  2302).  Other  sections  allow  the  Sentencing 
Commission  and  Parole  Commission  to  consider  a  defendant's  educa- 
tion, vocational  skills,  mental,  emotional  and  physical  condition,  em- 
ployment record  and  family  ties,  when  determining  sentencing  ranges 
and  the  date  of  release  from  .prison  (§§  994,  3822,  3831).  Another  pro- 
vision, would  make  release  from  prison  contingent  on  a  finding  that 
there  is  "no  undue  risk"  that  the  offender  will  commit  anotlier  crime 
or  fail  to  conform  to  certain  conditions  of  parole  (§  3831). 

These  criteria  are  totall}^  unacceptable  from  both  a  correctional 
and  a  civil  libertarian  point  of  view.  Current  criminal  justice  data 
indicates  that  we  do  not  know  how  to  rehabilitate,  or  how  to  determine 
when  a  person  lias  been  rehabilitated.  Almost  every  expert,  including 
the  Director  of  the  Bureau  of  Prisons,  agrees.^ 

The  facts  show  that  first,  there  is  no  proven  correlation  between 
participation  in  any  prison  program  and  lower  recidivism  rates.- 
Second,  authorities  agree  that  therapy  or  programs  which  are  forced 
on  an  individual  by  the  threat  of  the  indeterminate  sentence  cannot  be 
successful.^  Third,  parole  boards  and  otlier  professionals  making  de- 
terminations as  to  when  people  can  be  released  from  institutions  can- 
not predict  with  any  accuracy  who  Avill  or  will  not  connnit  another 
crime  and  that  decisions  based  upon  these  predictions  are  wrong  so 
frequently  as  to  be  considered  completely  arbitrary.^ 

Obviously,  it  is  illogical  and  unjust  to  put  someone  in  prison  to  do- 
something  to  them  that  we  do  not  knovr  how  to  do — reha])ilitate. 
Equally,  it  is  illogical  and  unjust  to  make  determinations  as  to  how 
long  a  person  must  remain  inside  a  prison  based  upon  a  determination 
of  rehabilitation  when  we  do  not  know  how  to  make  that  decision  in 


1  See  note  5,  .tupra. 

2  Olaser.  "The  EfFoctivenpRS  nt  a  Prison  and  Parolp  System"  (1064):  Moris,  supra: 
Wiikins,  supra :  Robinson  and  Smitli,  "The  Effectiveness  of  Correctional  Projrranis."  17 
"Crime  and  Delinnnency"  67  (1071)  ;  Steele.  A  Model  for  the  Imprisonment  of  Repetitively 
Violent  Criminals."  Center  for  "Studies  in  Criminal  Justice."  University  of  Cliica.sro  Law 
School  (1074)  ;  Lipton,  Martinson,  Willis,  "The  Effectiveness  of  Correctional  Treatment" 
(1075)  ;  Martinson.  "What  Works"  .S.")  Pub.  Int.  (1074). 

''Bandura.  "The  Ethics  and  Social  Purposes  of  Behavior  Modification"  (1074>  :  Mattick. 
"Criminal,  .Tustice  and  Society,"  Short  (ed.)  (1070)  :  Morris,  supra;  Ayllon.  17  "Arizona 
Law  Review"  12  (10753:  Ba/.elon,  (Chief  .Tudp;e.  U.S.  Ct.  of  Appeals,  for  the  District 
of  CoUiinhia).  "Institutionalization.  Deinstitutionalization  and  the  Adversary  Process," 
75  "Columbia  Law  Review"  S07  (.Tune  1075)  :  Meister,  "A  Visit  to  Patuxent,  'Participation 
Is  Voluntary  .  .  .' "  5  "IlastlnRs  Center  Report"  37  (Eebruary  1075);  Opton,  .Tr., 
"Psychiatric  Violence  Apalnst  Prisoners:  When  Therapy  Is  Punishment,"  45  Miss.  L..T. 
605"  (1074)  ;  Wiikins,  "Putting  Treatment  on  Trial,"  5  "Hasting:s  Center  Report"  35 
(February   1075). 

*  Morris,  mipin  ;  von  TTirsch.  siiprn  :  Cumminfrs  and  Monahan.  f<»pra  :  Dershowitz.  "The 
Psychiatrist's  Power  in  Civil  Commitment."  "Psychology  Today."  February  1060  :  Diamond, 
"Psyclilatric  Predictioii  of  Daiifrerousness."  123  University  of  Pennsylvania  L.K.  430  ;  Ennis 
and  Litwnk,  "Psychiatry  and,  the  Presumption  of  Expertise."  62  Cal.  Lnw  Review  603 
(May  1074)  :  Hunt  and  Wiley.  "Operation  Baxtrom  After  One  Year."  124  "American 
.Tournal  of  Psychiatry"  074  (1068)  ;  Kozol.  Boucher  and  Garofnlo.  "The  DiaKUOsis  and 
Treatment  of  bnnj:erousness."  IS  Crime  and  Dolinquency  371  (10721  :  McGarry.  "Ma«sa- 
cliusetts'  Oper.'ition  Baxtrom,"  Massachoisetts  .Tournal  of  Mental  Health,  sprin?  1074  ; 
Rubin.  "Prediction  of  DauRerousness  in  Mentall.v  11]  Criminals."  27  Arch  General  Psy- 
chiatry 307  (1072)  :  Stojidman.  "i^ome  Evidence  on  the  Inadecpiacy  of  the  Concept  and 
Deteriiiination  of  Danjierousness  in  Law  and  Psychiatry."  .Tournal  of  Psycliiatry  and  the 
Law.  p.  400.  Winter  1073  ;  von  Tlirsi'h.  "Prodictlon  of  Criminal  Coiuluct  and  Preventive  Con- 
finement of  Convicted  Persons."  21  Buffalo  L.  Rev.  717  (10721  :  Wenk  and  Robinson.  "Can 
Violence  Be  Predicted."  IS  Crime  and  Delinquency  303  (1072)  ;  Project,  "Parole  Release 
Decisionmaking  and  the  Sentencing  Process."  81  Yale  L.J.  SIO  (1073)  :  Report  of  the 
American  Psychiatric  Association  Task  Force  on  Clinical  Aspects  of  Violent  Individuals 
(1074). 


9083 

any  objective  way.  Tlie  result  of  using  these  criteria  can  only  create 
greater  disparity  and  unfairness  than  already  exist  under  the  current 
system. 

Tlio  "rehabilitation"  criteria  also  present  a  serious  threat  to  civil 
liberties.  Obviously,  the  use  of  criteria  which  are  inherently  arbitrary 
and  capricious  to  determine  whether  a  person  should  go  to  prison  or 
how  long  that  person  should  stay  in  prison,  raises  serious  due  process 
problems.  Moreover,  using  criteria  like  education,  vocational  skills, 
employment  records,  family  and  community  ties  to  determine  the 
freedom  of  offenders,  a  large  percentage  of  whom  are  poor,  underedu- 
cated  and  minorities,  is  grossly  discriminatory  and  a  violation  of  the 
1st,  5th,  9th,  and  14th  amendments  to  the  U.S.  Constitution.  Finally, 
permitting  "prior  criminal  activity  not  resulting  in  convictions"  to 
be  used  as  a  basis  for  sentencing  decisions  totallv  undennines  the 
notion  of  a  presumption  of  innocence  which  is  fundamental  to  our 
criminal  justice  system  and  protected  by  the  5th  and  11th  amendments 
to  the  Constitution. 

This  is  not  to  say  that  we  must  abandon  rehabilitation  efforts  in 
prisons,  only  that  the  state  of  the  art  is  such  that  no  one  can  justly  be 
sent  to  prison  or  kept  in  prison  for  the  purpose  of  rehabilitation.  Pro- 
grams in  prisons  should  be  encouraged.  In  order  to  be  successful,  par- 
ticipation in  the  programs  should  be  voluntaiy  and  not  tied  to  release. 

It  is  our  firm  belief  that  the  only  fair  rationale  for  sentencing  is  what 
has  been  termed  "just  deserts."  ^  The  criteria  for  sentencing  should  be 
based  on  the  seriousness  of  the  individual's  offense  rather  than  on  his 
or  her  need  for  rehabilitation  or  on  the  likelihood  of  recidivism. 

Some  of  the  criteria  in  the  bill  clearly  do  relate  to  the  seriousness 
of  the  offense  and  can  be  measured  with  some  degree  of  objectivity.^ 
For  example,  "the  nature  and  degree  of  harm  caused  by  the  offense," 
the  offender's  "role  in  the  offense,"  "prior  convictions"  and  "prior  sen- 
tences" (§994).  Senate  bill  204  is  limited  to  only  "just  deserts"  cri- 
teria. We  urge  the  subcommittee  to  similarly  limit  S.  1437. 

FIXED    SENTENCES 

In  order  to  limit  judicial  discretion  and  eliminate  disparity  in 
sentences,  reform  of  our  sentencing  structure  ought  to  establish  a 
scheme  for  fixed  or  determinate  sentences  which  grant  the  sentencing 
judge  carefully  defined  power  to  modify  a  standard  sentence  only 
in  cases  involving  certain  specified  aggravating  or  mitigating 
circumstances. 

Senate  bill  1437  will  not  accomplish  these  goals  for  two  reasons: 
First,  S.  1437  calls  for  the  Sentencing  Commission  to  establish  a 
sentencing  range  for  each  category  of  defendant  and  each  category 
of  crime  (§§994,  2301(b)).  Depending  on  what  that  range  is,  this 
proposal  could  result  in  a  wide  variance  in  sentences.  INIoreover,  S. 


1  Von  Hirsch,  fiupra. 

2  Some  of  the  other  criteria  in  S.  14.'?7  for  detei-minins:  sentences  bear  no  relation  what- 
fioever  to  anv  legitimate  interest  of  the  criminal  justice  system.  For  example:  (1)  the 
community  view  of  the  gravity  of  the  offense;  (2)  the  public  concern  generated  by  the 
offense;  (3)  the  current  incidence  of  the  offense  in  the  community;  (4)  the  degree  of 
dependence  upon  criminal  activity  for  a  livelihood  (§994).  Each  of  these  criteria  is 
totallv  irrelevant  to  any  objective  determination  of  just  punishment,  is  highly  prejudicial 
to  defendants,  and  in  all  likelihood  will  Increase  disparity  in  sentences. 


9084 

1437  alloTTS  the  judge  to  sentence  outside  the  guidelines  (§  3836).  Al- 
though such  a  sentence  is  appealable,  it  will  still  allow  for  a  significant 
•timount  of  disparity. 

Several  experts  who  have  studied  these  problems  recommend  a  sys- 
tem of  presumptive  sentences.^  Under  that  system,  for  each  gradation 
■of  seriousness  of  criminal  behavior,  a  definite  penalty —  the  ''presump- 
tive sentence" — would  be  set.  Individuals  convicted  of  crimes  of  that 
degree  of  seriousness  would  receive  the  presumptive  sentence,  unless 
there  were  special,  carefully  defined  circumstances  of  aggravation 
or  mitigation.  For  example,  a  second  serious  offense  would  be  con- 
sidered an  aggravating  circumstance,  requiring  a  more  severe  sentence 
than  the  presumptive  sentence.  Senate  bill  204  sets  out  a  presumptive 
sentencing  proposal  and  I  urge  that  this  provision  of  S.  204  be  adopted. 

The  second  reason  S.  1437  will  not  eliminate  sentence  disparities  is 
that  it  does  not  eliminate  the  parole  process.  While  the  guidelines  and 
criteria  established  by  the  bill  and  the  Commission  may  narrow  a 
judge's  sentencng  discretion,  the  amount  of  time  a  person  Avill  actually 
serve  will  continue  to  be  determined  by  a  separate  entity — the  Parole 
Commission. 

We  join  with  the  Attorney  General,  the  Director  of  the  Bureau  of 
Prisons,  and  many  other  experts  who  recommend  tliat  ]5arole  l)e  abol- 
ished. However,  we  caution  that  if  parole  is  abolished,  any  sentences 
established  pursuant  to  a  new  sentencing  bill  must  be  short!  Under 
our  present  system,  a  person  is  incarcerated  for  only  a  fraction  of  his 
or  her  maximum  sentence.  Under  the  Parole  Reorganization  Act  even 
prisoners  with  life  sentences  are  elio-ible  for  ]^arole  after  no  more  tlian 
10  years  (18  U.S.C.  4205) .  In  light  of  the  debilitative  effects  of  prisons, 
sentences  under  the  new  definite  sentencing  scheme  should  be  no  longer 
and  profcra))]y  should  be  shorter  than  the  time  which  is  actually 
served  under  our  present  system.  Again,  only  S.  204  seems  to  have 
been  drafted  with  full  aAvareness  of  these  factors.  It  provides  for  a 
presumptive  sentencing  scheme  and  short  sentences  and  we  recom- 
mend tliat  tlie  subcommittee  ado])t  its  pi'ovisions. 

If  i^arole  is  maintained  or  pliased  out  of  existence  instead  of 
abolished,  there  is  one  provision  of  S.  1437  which  must  be  eliminated. 
Section  2301  (c)  allows  a  judge  to  make  a  prisoner  parole  ineligible  for 
up  to  nine-tenths  of  his  or  her  soitence.  In  oiii'  opinion,  tliis  is  one  of 
the  most  egregious  provisions  in  llie  entii-e  bill.  If  onncled.  tliis  pro- 
vision could  result  in  shockingly  harsh  sentences,  on  a  scale  far  worse 
than  anything  we  know  today  under  our  present  system.  Moreover, 
this  draconian  provision  is  contrary  to  all  current  correctional  thought 
which,  I  indicated  earlier,  favors  short  sentences. 

SEXTENCE   REDUCTIONS 

If  some  sort  of  definite  sentencing  scheme  is  adopted,  and  if  ])arole 
is  eliminated,  two  types  of  correctional  programs  assume  increased 
importance  and  should  be  supported  in  the  bill — (1)  a  program  pro- 
viding prisoners  with  good  time  credits  for  discipline  free  behavior 
and  (2)  a  program  which  pennits  the  prisoner  greater  access  to  the 
community.  We  agree  with  the  Director  of  the  Bureau  of  Prisons  that 

i^Frankel,  supra j  Morris,  supra;  von  Hlrsch,  supra. 


9085 

offenders,  particularly  prisoners  serving  long  sentences,  must  be  given 
some  ''light  at  the  end  of  the  tunnel."  ^  Under  our  present  system,  good 
time  credits  normally  reduce  a  prisoner's  sentence  by  one-third.  In 
addition,  prison  administrators  find  good  time  a  useful  tool  for  en- 
couraging good  behavior.  The  problem  with  the  system  as  it  now  exists 
is  that  the  granting  and  denying  of  good  time  is,  to  a  large  extent,  dis- 
cretionary and  is  often  abused. 

We  suggest  the  bill  be  amended  to  include  a  system  whereby  a 
prisoner  can  earn  a  specified  amount  of  good  time  for  every  day  of 
good  behavior.  The  good  time  should  be  vested  and  not  subject  to  re- 
moval. A  prisoner  may  be  subject  to  losing  prospective  good  time  for 
a  disciplinary  infraction  but  no  more  than  15  days.  Any  serious  in- 
traprison  infraction  should  be  handled  by  a  court  of  law,  not  by  taking 
good  time  as  a  sanction.^ 

Senate  bill  1437  also  allows  release  from  prison  for  a  number  of 
reasons,  including  establishing  family  ties,  participation  in  training 
and  educational  programs  and  work,  §  3822,  A  number  of  studies  have 
shown  that  furlough  programs  can  be  highly  effective  as  a  correctional 
tool  as  well  as  safe  for  the  community.^  They  help  prisoners  maintain 
important  community  ties,  give  them  an  opportunity  to  participate 
in  educational  and  vocational  programs  which  are  not  available  inside 
prisons  and  provide  prisoners  with  an  opportunity  to  work,  learn 
skills,  and  earn  money.  Furlough  programs  have  been  particularly  use- 
ful for  helping  offenders  going  through  the  difficult  transition  period 
from  prison  to  the  community. 

One  concern  of  the  people  who  oppose  abolishing  parole  is  that  there 
will  be  no  after  care  for  offenders  leaving  prison.  Obviously,  many  of 
these  same  services  can  be  provided  to  prisoners  through  the  furlough 
system.  We  therefore  urge  the  subcommittee  to  make  the  furlough 
program  as  effective  as  possible.  Specifically,  we  suggest  that  §  3822(a) 
should  be  amended  to  allow  the  30-dav  furlough  to  be  extended.  Often 
the  prisoner  who  is  nearing  release  would  like  to  participate  m  a  ]ob 
training  program  or  educational  opportunity  which  will  take  longer 
than  30  clays.  We  also  believe  that  §  3822(c)  (2)  must  be  eliminated. 
This  section  proA^des  that  a  prisoner  can  be  furloughed  to  a  job  only 
in  trades  in  which  there  is  not  a  surplus  of  available  labor  in  the  com- 
munity. With  our  current  level  of  unemployment,  this  provision  would 
virtually  preclude  prisoners  from  obtaining  jobs.  The  ability  of  an 
offender  to  find  employment  upon  his  or  her  release  has  been  shown 
to  be  directly  related  to  his  or  her  ability  to  lead  a  crime-free  life. 
Therefore,  unnecessary  barriers  to  the  employment  of  offenders  should 
be  removed. 


1  statement  of  Norman  Carlson.  Director,  Federal  Bureau  of  Prisons  before  the  Senate 
Judiciary  Committee  on  Criminal  Laws  and  Procedures,  June  8,  1977. 

-The  bill  also  provides  mechanisms  for  earl.v  termination  of  probation,  parole,  and 
prison  on  the  recommendation  of  the  controlling  authority  of  §§  2104(c),  38'34(f),  2302(c)). 
We  have  no  ob.iectlons  to  these  provisions.  Hovs-ever,  we  recommend  that  some  sort  of 
mechanism  be  added  so  that  the  probationer,  parolee,  or  prisoner  can  initiate  a  request 
for  reduction. 

3  Markley,  "Furlough  Programs  and  Conjugal  Visiting  in  Adult  Correctional  Institutions" 
Federal  probation  March,  1973  ;  Serrlll,  "Prison  Furloughs  in  America"  Corrections  Maga- 
zine Vol.  1,  No.  6,  August  1975 ;  Leclair,An  analysis  of  recidivism  rates  among  residents 
released  from  Massachusetts  Correctional  Institutions,  Massachusetts  Department  of 
Correction,  October,  1976 ;  Rudolf  and  Esselstyn.  "Evaluating  Work  Furlough",  Federal 
probation  June,  1973 ;  "A  Review  of  D.C.  Department  of  Corrections  Furlough  Program, 
History  and  Performance",  review,  Dec.  31,  1974. 


9086 


APPEALS 


The  provision  of  S.  1437  wliich  permits  tlie  appeal  of  sentences  is  a 
significant  step  in  eliminating  the  disparities  and  inequities  ^vhich  are 
now  the  bane  of  our  sentencing  system  (§  3725).  However,  under  tliis 
section  appeals  may  be  taken  only  from  sentences  which  are  outside 
the  guidelines.  Anj-  attempt  to  minimize  disparity  in  sentences  must 
permit  appeals  from  all  sentences.  Sentences  within  the  guidelines 
could  also  be  too  severe  or  too  lenient.  Any  defendant  should  have  the 
opportunity  to  challenge  the  application  of  the  sentencing  standards 
to  his  or  her  particular  case  as  well  as  the  validity  of  the  sentencing 
standards  themselves. 

Limits  on  the  appellate  procedure  were  apparently  drafted  in  order 
to  prevent  the  courts  from  being  flooded  with  appeals.  However,  this 
is  a  highly  unlikely  result.  Any  nonmeritorious  appeals  can  be  handled 
summarily  by  the  traditional  appellate  court  doctrines.  Senate  bill  204 
permits  appeals  from  all  sentences  and  we  believe  its  provisions  should 
be  adopted  (§13). 

We  also  believe  that  the  section  of  S.  1437  which  permits  the  Gov- 
ernment to  appeal  sentences  which  are  too  lenient  is  highly  question- 
able from  both  correctional  and  constitutional  standpoints.  As  I  indi- 
cated above,  most  criminologists  agree  that  we  overincarcerate.  In 
our  law  and  order  society  there  is  a  tendency  to  give  long  sentences 
regardless  of  the  fact  that  such  sentences  are  probably  not  necessary 
to  protect  society  and  reg^ardless  of  the  fact  that  such  sentences  may 
actually  debilitate  the  prisoner.  From  a  correctional  standpoint  it  is 
not  a  good  idea  to  give  the  Government  an  additional  mechanism  to 
enhance  sentences. 

More  importantly,  we  feel  that  this  provision,  which  allows  the 
Government  a  second  chance  at  giving  a  defendant  a  more  severe  or 
longer  sentence  violates  the  spirit  of  the  double  jeopardy  clause  and 
raises  serious  questions  of  its  constitutionality. 

SENTENCING    COMMISSION 

_  There  are  several  problems  with  the  structure  of  the  new  Commis- 
sion which  we  urge  the  sulx>ommittee  to  change.  Senate  bill  1437  and 
S.  181  provide  that  the  Judicial  Conference  of  the  United  States 
should  select  Commission  members  and  that  the  Connnission  itself 
should  be  j^art  of  the  judicial  branch  (§  991).  It  is  our  position  that 
sentencing  is  not  the  concern  of  judges  alone.  Sentencing  is  an  integral 
part  of  the  entire  criminal  justice  system.  The  appointing  authority 
for  the  Commission  should  ])e  one  whose  interest  is  broad  enough  to 
take  all  of  the  variables  into  account.  AVe  join  with  several  others 'from 
whom  you  have  already  heard  to  suggest  that  the  President,  with  the 
advice  and  consent  of  the  Senate,  should  appoint  the  Connnission. 
Senate  bill  204  already  provides  for  this  tvpe  of  ap]K)intment  (§  4). 

Considering  the  bieadtli  and  difficulty  of  the  task  the  Commission 
must  accomplish,  we  also  think  the  membership  of  the  Connnission 
should  be  as  varied  and  accomplished  as  possible.  Neither  S.  1437  nor 
S.  204  address  this  problem.  However,  S.  181  provides  that  memlxr- 
ship  of  the  Commission  should  not  be  limited  to  judges  but  should 


9087 

include  practicing  attorneys,  criminologists,  prison  and  parole  author- 
ities (§3802).  This  provision  should  be  adopted.  The  Commission 
shoukf  also  include  cxoffenders  and  prisoners  in  its  membership. 

Finally,  we  believe  that  the  bill  contains  adequate  review  of  Com- 
mission decisions.  Congress  has  traditionally  set  Federal  sentences. 
Although  we  believe  that  the  complexity  and  scope  of  the  presently 
proposed  sentencing  revision  is  much  too  complex  and  time  consuming 
to  bo  performed  on  the  floor  of  Congress,  we  believe  it  is  important 
that  Congress  maintain  the  ultimate  veto  power  over  the  results  of  the 
Commission's  work.  Section  994(g)  makes  the  sentencing  standards 
promulgated  by  the  Commission  subject  to  congressional  disapproval. 
This  seems  to  be  a  satisfactory^  balance  of  interests. 

ADMINISTRATIVE   PROCEDURE   ACT   AND   ACCESS   TO   INFORMATION 

The  ACLU  is  particularly  disturbed  that  S.  1437  would  exempt 
the  Bureau  of  Prisons  and  the  Parole  Commission  from  the  Adminis- 
trative Procedure  Act  and  its  subchapters,  the  Freedom  of  Informa- 
tion Act  and  the  Privacy  Act  (§§  3825,  3837  respectively).  Under  cur- 
rent law,  both  agencies  are  subject  to  all  three  acts  except  the  Parole 
Board  is  exempted  from  the  adjudication  sections  of  the  APA  (18 
U.S.C.  §4218). 

The  Administrative  Procedure  Act  is  intended  to  insure  fairness 
and  consideration  of  important  administrative  determinations,  to 
make  public  information  about  Government  decisions  available  and 
to  prevent  unwarranted  invasions  of  personal  privacy.  It  is  even  more 
important  that  these  protections  be  afforded  to  prisoners  because  the 
agencies,  to  which  they  are  subject,  control  every  aspect  of  their  daily 
lives,  as  well  as  their  ultimate  freedom. 

Previously,  the  Bureau  of  Pidsons  and  the  Parole  Commission  at- 
tempted to  avoid  their  responsibilities  under  these  acts  by  claiming 
that  they  were  not  agencies.  After  protracted  litigation,  several  courts 
have  held  that  the  two  organizations  are  subject  to  the  acts.^  The 
courts  found  that  the  rules  and  practices  of  these  two  agencies  have 
such  a  staggering  impact  on  the  life  of  a  prisoner  and  his  or  her  family 
that  they  are  entitled  to  the  protections  afforded  by  these  acts.  The 
courts  also  found  that  the  general  public  as  well  has  an  interest  in  the 
administration  of  these  agencies  and  that  the  statutes  should  be  fol- 
lowed. These  hard  fought  battles  should  not  be  reversed  by  this 
legislation. 

Questions  about  the  availability  of  information  are  raised  by 
several  other  sections  of  the  bill  as  well.  Sections  2002  (b)  and  (c), 
3725(c),  3832(a),  and  3833(c)  concern  presentence,  preparole,  and 
other  sentencing  materials.  These  sections  provide  for  the  gathering 
and  use  of  these  nifiterials  at  every  level  of  decisionmaking.  They 
require  that  the  materials  be  made  aA^ailable  to  the  Government,  the 
courts,  and  to  prison,  probation,  and  parole  authorities.  However,  they 
do  not  ]3rovide  that  the  materials  should  be  made  available  to  the  in- 
dividual. Each  of  these  sections  should  be  amended  to  require  that  all 

iJtamer  v.  fiasnhe.  552  F.  2d  R95  (D.C.  Cir.  1075)  ;  Picl-iis  v.  U.S.  Board  of  Parole,  507 
F.  2d  1107  (D.C.  Cir.  1974)  ;  Hrynko  v.  Crawford,  402  F.  Supp.  108-3  (E.D.  Pa.  1975)  ; 
Pflilndelphia  Neicspnpers,  Inc.  v.  U.S.  Department  of  Justice,  405  F.  Snpp  789  (E.D  Pa. 
1975)  ;  National  Prison  Project  v.  Sigler,  390  F.  Supp.  789  (D.D.C  1975). 


9088 

of  these  materials  should  be  made  available  to  the  defendant  and  to 
his  or  her  counsel  subject  to  any  previously  existing  statutory 
restrictions. 

PROCEDUKAL   FAIRNESS 

Several  sections  of  the  bill  fail  to  meet  minimum  requirements  of 
procedural  due  process  and  should,  be  amended.  First,  the  bill  permits 
the  conditions  and  length  of  an  offender's  probation  or  j^arolc  (if  it 
continues  to  exist)  to  be  modified,  bat  it  provides  no  procedures  for 
a  pi-isoner  to  participate  in  or  state  his  or  her  reasons  for  objecting 
to  the  decision.  Fundamental  fairness  requires  that  an  offender  should, 
at  a  minimum,  have  the  opportunity  to  have  a  hearing,  present 
evidence,  and  be  represented  bv  counsel  before  such  a  decision  can  be 
made— sections  2103(c),  2104(d),  3834(g). 

Second,  the  bill  is  vague  as  to  "uhat  due  process  procedures  are  to 
be  accorded  to  a  probationer  whose  probation  is  being  revoked — 
section  2105.  "\'VTien  he  or  she  is  taken  into  custody,  section  3806,  a  bail 
hearing  should  be  provided.  "When  he  or  she  is  subject  to  revocation, 
the  offender  should  be  entitled  to  a  hearing,  the  opportunity  to  present 
evidence,  and  to  be  represented  by  counsel. 

The  procedures  for  revocation  of  parole  are  equally  lacking  in 
due  process,  section  3835.  Where  a  person's  freedom  is  concerned 
full  due  process  should  be  accorded.  The  bill  should  be  amended  as 
follows:  (1)  An  offender  token  into  custody  should  be  given  an  oppor- 
tunity for  a  bail  hearing  since  he  or  she  can  be  held  in  custody  well 
over  60  days  before  the  decision  on  revocation  is  made,  section 
3835(c);  (2)  The  parolee  should  be  provided  with  warnings  and 
counsel  at  the  preliminary  hearing  stage,  section  3835(b)  ;  (3)  Hear- 
say testimony  should  not  be  permitted,  section  3835(d),  For  similar 
reasons  we  object  to  section  2803  which  provides  for  a  contingent 
parole  term  and  allows  a  person  to  be  sent  to  jail  for  up  to  90  days 
without  having  committed  a  crime  and  without  clue  process. 

CONDmONS  OF  PROBATIOlSr  AND  PAROLE 

Several  of  the  conditions  to  which  the  bill  permits  a  probationer  or 
parolee  to  be  subjected  are  violative  of  the  Constitution  and  should 
be  eliminated.  Specifically,  sections  2103(b)(7)  and  3834(c)  provide 
that  a  parolee  may  be  ordered  to  "refrain  from  frequenting  specified 
kinds  of  places  or  from  associating  uimecessarily  with  specified  per- 
sons." This  provision  infringes  upon  the  basic  constitutional  right  to 
freedom  of  association.  Section  2103(b)(3)  as  it  is  referred  to  in 
section  3834  allows  a  probationer  or  parolee  to  be  ordered  "to  refrain 
from  posessing  a  firearm,  destnictive  device,  or  other  dangerous 
weapon."  It  is  our  opinion  that  "destructive  device"  is  unnecessarily 
vague,  subject  to  abuse  and  therefore  a  violation  of  the  Constitution. 

CONCLUSION 

In  conclusion,  I  commend  the  subcommittee  for  t<aking  the  im- 
portant initial  steps  toward  sentencing  refoiTn.  However,  the  bill  as  it 
is  presently  drafted  fails  to  solve  many  of  the  most  fundamental  prob- 


9089 

lems  which  have  motivated  the  call  for  reform.  I  urge  this  subcom- 
mittee to  make  the  necessaiy  amenduients,  or  in  the  alternative,  to 
adopt  S.  204. 

Mr.  Feinberg.  Senator  Kennedy  did  want  two  or  three  questions 
asked.  I  would  like  to  ask  them  of  you  and  your  response  will  be  part 
of  the  record. 

The  first  is  this.  There  is  the  recommendation  that  there  be  presump- 
tion in  favor  of  probation.  How  do  you  justify  that  in  light  of  an 
approach  taken  in  S.  1437  that  there  should  be  no  presumption  either 
way  and  that  the  Sentencing  Commission,  in  promulgating  its  guide- 
lines, shall  decide  appropriate  sentences  in  appropriate  cases  without 
regard  to  any  presumption  either  in  favor  of  probation  or  in  favor  of 
imprisonment  ? 

Ms.  Ceisman.  In  fact,  the  Commission,  when  setting  its  guidelines, 
is  going  to  come  up  with  a  set  of  criteria  under  which  we  can  assess 
the  seriousness  of  crimes.  I  assume  that  applying  those  criteria,  is, 
in  fact,  going  to  establish  presumptions. 

In  other  words,  there  are  clearly  some  crimes  that  are  less  heinous 
than  others. 

Mr.  Feixberg.  Should  not  the  Commission  do  that  ? 

Ms.  Crisman.  Yes,  but  we  are  simply  suggesting  that  the  bill  itself 
ought  to  give  some  guidance  to  the  Commission  based  on  what  we 
currently  know  about  prisons  and  prisoners. 

Current  studies  of  sentencing  schemes,  as  the}'  are  applied  through- 
out tliis  country,  show  us  that  we  are  grossly  over-incarcerating. 
Virtually  99  percent  of  our  prisons  are  OA'ercrowded,  Federal  prisons, 
as  well  as  almost  every  State  prison  system.  There  are  experts  who 
have  analyzed  those  populations  and  detennined  that  almost  50  per- 
cent of  those  populations  can  be  reduced  and  eliminated  and  can  be 
put  out  in  the  community  safely.  We  are  paying  huge  amounts  of 
money  to  incarcerate  those  people.  We  are  incarcerating  them  in  pri- 
sons whif^h  are,  in  fact,  debilitating  them,  as  Judge  Johnson  found  in 
Puqh  V.  Loche. 

Interestingly  enough,  part  of  his  order  in  that  case  was  to  send  in 
experts  to  analyze  i\\&  population.  They  determined  that  40  percent 
of  the  prisoners  could  be,  safely  put  out  on  the  streets.  They  are  in 
the  process  of  doing  that  now.  That  is  the  only  way  that  the  Alabama 
prison  system  is  going  to  continue. 

You  are  hearing  people  like  the  Parole  Commissioner  tell  you  that 
one  of  the  functions  of  the  current  parole  board  is  to  take  people  out 
of  prisons,  that  is,  to  operate  at  the  other  end  of  the  system  and  reduce 
disparity  by  reducing  overcrowding  in  our  systems. 

We  are  suggesting  to  you  that  if  the  Commission  is  abolished,  you 
will  have  to  have  a  presumption  right  in  that  bill  that  is  going  to  do 
something  about  the  overcrowded  status  of  our  prisons,  that  is  a  pre- 
sumption in  favor  of  alternatives. 

Mr.  Fetnberg.  Let  me  ask  you  one  other  question  which  has  been  on 
Senator  Kennedy's  mind,  and  a  lot  of  other  people's  minds  as  well. 

Wliat  about  the  argument  that  has  been  made  in  recent  weeks  that 
perhaps  this  bill  and  the  statement  of  the  ACLU  goes  too  much  the 
other  way  in  the  sentencing  area. 


9090 

The  American  Civil  Liberties  Union,  by  coming  out  for  the  abolin 
tion  of  the  Parole  Board,  and  by  stating  very  clearly  that  rehabilita- 
tion should  not  be  a  function  of  imprisonment,  or  the  pui^pose  of  im^ 
prisonment,  theii  what  about  the  argument  that  some  people  are 
making? 

I  am  talking  about  Professor  Vorenl>erg  at  the  Harv-ard  Law 
School,  for  example.  The  argument  is  that  we  are  all  too  quick  to  push 
this  new  approach  and  that  perhaps  rehabilitation  should  be  kept  in 
the  bill  the  way  it  is  in  the  bill,  that  is,  to  the  extent  that  the  Commis- 
sion finds  rehabilitation  applicable  in  the  next  few  years  and  that 
there  is  a  concern  that  we  mav  be  over-reacting  the  other  wav  to  what 
all  would  agree  would  be  unacceptable  situations  today. 

You  are  not  the  first  witness  who  has  said  this,  but  I  think  what  runs 
through  the  concerns  of  people  like  Professor  Yorenberg,  is  the 
fear  that  we  do  not  know  enough  about  all  of  this.  The  ACLU, 
or  anybody  else,  does  not  really  know  enough  about  this.  It  could  l^  a 
fad.  We  are  throwing  out  the  parole  boards  and  rehabilitation  is  out. 
It  is  strange  that  everyone  is  saying  that. 

How  do  you  react  to  a  statement  like  that  ?  He  is  saving : 

Hey,  wait  a  minute.  Let  us  leave  rehabilitation  in  to  the  extent  that  it  might 
be  found  to  be  applicable.  Let  us  gradually  phase  out  the  Parole  Board,  but  let 
us  not  willy-uilly  abolish  parole,  because  in  another  3  years  or  4  years  or  5  years 
there  may  be  another  approach  to  sentencing  that  we  have  not  even  begun  to  deal 
with  here  today. 

How  do  you  react  to  that  ? 

Ms.  Crisman.  First,  any  law  you  draft  can  subsequently  be  amended. 
I  think  that  you  are  well  aware  that  the  proposed  bills  call  for  the 
setting  up  of  a  commission  which  is  going  to  be  packed  full  of  experts 
who  are  going  to  continue  to  nnalyze  the  data  as  it  comes  in. 

I  assume  tliat  as  science  develops  and  as  our  research  develops,  and 
as  we  find  out  what  works  and  does  not  work,  we  will  modify  our 
legislation. 

Our  major  point  is  this.  There  is  ever\'  indication  right  now  that 
rehabilitation  does  not  work.  It  is  an  incredible  abuse  of  discretion  to 
pretend  to  send  someone  to  pnson  to  do  something  that  we  do  not 
know  how  to  do. 

Mr.  Fetxberg.  T  agree. 

Ms.  Crismax.  It  is  equally  abusive  to  use  this  term  "rehabilitation" 
to  determine  the  length  of  time  a  person  would  spend  in  prison.  There 
are  innumerable  studies  which  I  have  cited  in  my  written  testimony 
which  indicate  that  any  kind  of  decisionmaking  board,  when  they  look 
at  any  institutionalized  population  and  say,  "Tliis  guy  is  cured  and 
this  guy  is  not  cured  and  we  are  goiiig  to  let  him  out  and  not  let  the 
other  one  out,"  is  simply  guessing.  They  have  no  idea  of  what  they  are 
doing  and  their  judgments  have  l)eon  proven  inaccurate  u])  to  Tf)  per- 
cent. It  is  simply  not  a  de(>ision  that  we  know  how  to  make  and  should 
not  be  included  in  a  sentencing  guideline. 

We  are  not  saying  that  we  should  lock  criminals  away  in  ware- 
houses forever.  There  have  got  to  be  progi-ams  inside  prisons.  Prison 
programs  could  be  a  lot  better  than  they  are  today.  If  we  reduced  the 
population  inside  prisons  we  would  have  more  resources  to  spend  on 
that  population.  Then  we  might  accomplish  more. 

Mr.  Fetnberg.  A  technical  question :  Would  you  bo  satisfied  with 
carrying  forward  current  law  concerning  application  of  the  Adminis- 


9091 

trative  Procedures  Act  to  the  Bureau  of  Prisons  and  tlie  Parole 
Commission  ? 

Ms.  Ckisman.  Yes,  we  would.  We  have  litigated  several  cases  on 
that.  That  is  the  reason  we  liave  taken  this  position.  We  do  not  want 
our  cases  reversed  by  legislation. 

Mr.  Feinberg.  As  Senator  Kennedy  stated,  we  will  pick  up  with  our 
last  witness  at  2 :15. 

The  committee  will  stand  in  recess  until  that  time. 

AFTERNOON    SESSION 

Senator  Kennedy.  The  subcommittee  will  come  to  order. 

We  want  to  welcome  Benjamin  Ward,  who  is  the  commissioner  of 
the  Department  of  Correctional  Services  in  the  State  of  New  York. 
Probably  no  State  has  more  difficulty  or  complex  problems  than  the 
State  of  New  York  in  dealing  with  the  whole  system  of  criminal 
justice. 

We  know  that  Benjamin  Ward  made  a  very  special  effort  to  be 
with  us.  He  came  overnight  from  Florida  to  join  us.  It  has  been  a  long 
night  and  day  for  him.  I  apologize  to  him  for  the  delay,  but  look  for- 
ward to  your  testimony. 

STATEMENT  OF  BENJAMIN  WARD,  COMMISSIONER,  DEPARTMENT 
OF  CORRECTIONAL  SERVICES,  STATE  OF  NEW  YORK 

Mr.  AVard.  Thank  you  very  much,  Mr.  Chairman.  I  thank  you  for 
the  opportunity  to  testify  on  S.  1437. 

Just  by  way  of  background,  since  I  am  a  State  correctional  com- 
missioner, I  thought  I  might  talk  a  moment  about  New  York  State. 

We  are  probably  the  third  largest  correctional  system  in  the  State 
systems.  We  have  some  18,300  prisoners  and  over  16,000  parolees  and 
over  11,000  employees  in  the  correctional  system,  6,000  of  whom  are 
correctional  officers. 

Field  parole  services  are  under  my  jurisdiction  and  mitil  the  last 
few  years  the  parole  board  as  well  was  under  the  direction  of  the  com- 
missioner of  corrections  and  now  it  is  split  out  as  a  separate  entity. 

AVhile  I  have  been  involved  in  criminal  justice  for  more  than  30 
yeare,  I  currently  am  involved  in  one  aspect  of  criminal  justice — 
corrections.  My  concern  today  is  the  sentencing  portion  and  the  parole 
portion  of  the  bill  S.  1437. 

I  am  particularly  pleased  to  be  here  today  because  I  am  a  black 
State  commissioner  of  corrections,  and  to  my  knowledge  I  am  the  only 
black  State  commissioner  of  corrections  in  this  country  at  this  time, 
although  your  State  [Massachusetts]  at  one  time  did  have  a  black 
commissioner.  That  ought  not  to  be  important,  but  in  this  country^ 
unfortunately,  it  is  important. 

I  know  how  difficult  it  is  for  you  as  well  as  State  legislators  to  deal 
with  the  problems  of  rising  crime  without  appearing  to  do  things  that 
have  racial  overtones,  particularly  where  so  many  of  the  Nation's 
prison  inmates  are  black,  brown,  or  red.  I  know  it  is  difficult  to  advo- 
cate change,  particularly  when  that  change  admits  failure  of  a  long- 
cherished  scheme  of  sentencing  and  correctional  theory  that  well- 
intentioned  men  clesigned  to  help  the  offender  without  iuuidue 
harassment  and  punishment. 


9092 

If  my  voice  and  some  notoriety  can  make  your  task  easier,  then  I 
am  happy  to  be  with  you  today. 

Increasino:ly,  the  fundamental  precepts  of  corrections  are  being 
subjected  to  intense  scrutiny. 

By  the  way,  I  would  like  to  ask  that  my  full  statement  be  included 
in  tlie  record. 

Senator  Kenxedy.  It  will  be  included  as  if  read. 

[The  material  follows :] 

The  Indeteeminate  Sentence:  A  Commentary 

(By  Commissioner  Benjamin  Ward,  New  York  State  Department  of  Correctional 

Services ) 

Increasingly  the  fundamental  precepts  of  corrections  are  being  subjected  to 
intense  scrutiny. 

Since  corrections  is  a  part  of  the  criminal  justice  system,  should  it  not  operate 
imder  the  basic  principles  of  justice? 

Is  it  sufficient  to  state  that  since  corrections  is  in  the  business  of  rehabilita- 
tion, the  question  of  a  justice  base  has  no  proper  meaning  in  the  discipline  of 
corrections? 

Many  factors  have  led  to  the  reexamination  of  the  basic  precepts  of  correc- 
tions :  the  civil  rights  movement  of  the  1960"s ;  the  Viet  Nam  War :  the  erosion 
of  the  judicial  "hands-off"  policy  toward  corrections;  the  advent  of  Watergate: 
and,  most  importantly,  the  decades  of  the  failure  of  corrections  to  achieve  the 
rehabilitation  of  offenders. 

The  rehabilitation  of  offenders  as  a  proper  goal  of  corrections  was  not  open 
to  question  for  almost  a  hundred  years  following  the  Declaration  of  Principles 
of  the  National  Prison  Congress  of  October  1879  at  Cincinnati,  Ohio.^ 

The  indeterminate  sentence  was  the  vehicle  through  which  the  new  penology 
would  be  implanted." 

In  the  decade  of  the  the  seventies,  the  indeterminate  sentence  has  come  under 
especially  severe  attack. 

In  the  Nineteenth  Century,  Americans,  armed  with  a  new  conscience,  with  the 
humanitarian  and  rational  ideals  of  the  Enlightenment,  and  with  the  "can-do" 
spirit  of  a  young  nation,  faced  the  problem  of  what  to  do  with  its  deviant  mem- 
bers, the  criminals  and  the  mentally  ill.  They  responded  by  constructing  asylums 
and  prisons.  Mental  hospitals  and  prisons  were  developed  at  approximately  the 
same  time  in  America  and  their  purposes,  construction,  organization,  and  methods 
significantly  influenced  each  otlier.^ 

Although  it  was  never  fully  practiced,  corrections  borrowed  from  the  medical 
model.*  Keception,  classification,  rehabilitation,  and  parole  were  the  analogues 
of  admission,  diagnosis,  treatment,  and  discharge  to  out-patient  status. 

Despite  the  absence  of  objective  physiological  conditions,  "criminality''  was 
inferred  from  criminal  acts,  and  the  offender  was  seen  as  the  victim  of  a  treat- 
able malady.'"'  Treatment,  commonly  called  rehabilitation,  required  the  develop- 
ment of  an  individualized  treatment  plan.  Corrections  became  offender-oriented 
and  punishment  would  henceforth  fit  the  criminal  rather  than  the  crime. 


'  rvivif]  Foffol.  ".  .  .  ire  Are  the  Living  Proof  .  .  .":  The  Justice  Model  for  Corrections 
(Cincinnati :  Tlie  W.  H.  Anderson  Company,  197."),  p.  ."2. 

-Ibid.,   p.    :?2. 

•■'  See  Davifl  .T.  Rothmnn.  The  Discovery  of  the  Asylum':  Flocinl  Order  in  the  Nc7r  Repiihlic 
(Boston:  I.ittlo,  Brown  and  Company)  1071.  Also  soe  ITarry  E.  Allon  and  Clifford  E. 
Simonsen,  Corrections  in  America:  An  Introduction  (Bovt^rly  lUlls  :  Glonoo  Press,  1075) 
p.  .■544. 

*  "Tlie  Indeterminate  sentence  has  always  heen  justified  hy  analof^y  to  other  forms  of 
Indeterminate  confinement,  sticli  as  commitment  of  the  TiiciitaHy  ill.  Cesare  Lomhroso  directly 
analogized  indeterminate  imiirisonment  of  tlie  'horn  criminal'  to  confinement  of  the  insane." 
-Man  M.  Dershowitz.  "Background  Paper,"  Fair  and  Certain  l^iinishtneTit'  Report  of  the 
Tiecnticth  Century  Fund  Task  Force  on  Criminal  Sentencing  (Now  York:  McGraw-Hill. 
107fi),  p.  08. 

"Cf.  Robert  W.  Balch,  "The  Medical  Model  of  Delinquency:  Theoretical,  Practical,  and 
Ethical  Implications,"  Crime  and  Delinquency  (Vol.  21,  No.  2,  April  1975),  p.  117. 

With  regard  to  the  lack  of  physical  manifestations  of  criminality,  it  will  be  recalled 
that  the  litth  Century  penologist  Cesare  Lomhroso  attemnted  to  establish  the  existence  of 
objective  physiulogical  couditiuns  or  atigmata  of  criminality. 


9093 

The  prison  sentence,  now  seen  as  a  temporal  framework  within  which  to  work 
a  cure,  acquired  some  of  the  flexibility  of  medicine  where  confinement  to  a 
hospital  for  an  arbitrary  "flat-time"  was  clearly  absurd.*  The  power  to  set  the 
prison  term  was  transferred  from  the  legislative  and  judicial  to  the  correctional 
administratoi'S  of  the  executive  branch. 

In  1847,  S.  J.  May,  a  leading  prison  reformer,  stated  the  argument  as  follows : 
"You  ask  me  for  how  long  a  time  he  should  be  sentenced  to  such  confinement? 
Obviously,  it  seems  to  me,  until  the  evil  disposition  is  removed  from  his  heart ; 
until  his  disqualification  to  go  at  large  no  longer  exists ;  that  is,  until  he  is  a 
reformed  man.  How  long  this  may  be,  no  human  sagacity  certainly  may  pre- 
determine. I  have  therefore  for  many  years  been  of  the  opinion  that  no  discretion 
should  be  conferred  on  our  judges  in  regard  to  the  length  of  a  convict's  confine- 
ment ;  that  no  term  of  the  time  should  be  affixed  to  any  sentence  of  the  court. 
The  ofCender  should  be  adjudged  to  undergo  the  duress  and  discipline  of 
the  prison-house,  not  for  weeks,  months,  or  years,  but  until  that  end  for  which 
alone  he  should  be  put  there  is  accomplished ;  that  is,  until  reformation  has 
evidently  been  affected." ' 

A  resolution  to  replace  "peremptory"  sentences,  "measured  by  mere  lapse  of 
time."  with  "those  of  indeterminate  duration.  .  .limited  only  by  satisfactory  proof 
of  reformation"  was  unanimously  adopted  at  the  1870  National  Prison  Congress.* 
The  resolution  stated  that  "with  men  of  ability  and  experience  at  the  head  of 
our  penal  establishments,  holding  their  ofiices  during  good  behavior,  we  believe 
that  it  will  be  little,  if  at  all,  more  difficult  to  judge  correctly  as  to  the  moral 
cure  of  a  criminal,  than  it  is  of  the  mental  cure  of  a  lunatic."  * 

As  an  enlightened  means  to  secure  public  protection  both  through  the  reforma- 
tion of  the  offender  and  his  incapacitation  for  so  long  as  he  was  considered 
dangerous,  the  principle  of  the  indeterminate  sentence  was  widely  adopted.  Al- 
though the  "pure,"  totally  open-ended  indeterminate  sentence  of  one  day  to  life 
was  rarely  authorized  in  law  and  more  rarely  imposed  ,every  state  of  the  union 
had  some  measure  of  indeterminacy  by  the  1970's.^''  Suddenly,  we  are  witnessing 
the  beginning  of  a  retreat. 

The  indeterminate  sentence  can  be  described  as  a  noble  experiment  that  has 
failed.  After  decades  of  experience,  there  is  still  no  evidence  in  support  of  the 
hypothesis  that  criminals  are  sick,  that  we  can  treat  them,  or  that  we  can  deter- 
mine the  moment  of  cure."  Stripped  of  its  theoretical  basis,  the  indeterminate 
sentence  serves  only  to  increase  the  length  and  disparity  of  sentences,  and  is  a 
cause  of  frustration  for  inmates  and  administrators.  It  imdermines  the  ends  of 
criiuinal  justice  by  obscuring  the  nexus  or  link  between  crime  and  punishment 
and  by  enabling  unjust  discretionary  treatment  of  offenders. 

The  indetex-minate  sentence  often  amounts  to  indefinite  preventive  detention.^^ 
In  most  jurisdictions,  "the  principal  consideration  in  the  decision  to  grant  or 
deny  parole  is  the  probability  that  the  inmate  will  violate  the  criminal  law  if 
he  is  released."  ^  Aside  from  the  ethical  question  of  whether  punishment  to 
prevent  uncommitted  crimes  is  a  right  of  the  State,  predictive  techniques  are 
not  sufficiently  advanced  to  allow  the  releasing  authority  to  make  this  decision 
with  acceptable  accuracy.  Research  indicates  that  in  order  to  detain  the  truly 
dangerous,  a  great  many  non-dangerous  persons  must  also  be  detained." 


«  Ihid..   p.    12S. 

■^  Dershowltz,  op.  cit.  (note  4),  pp.  90-91. 

8  From  the  Congress  of  Co}~rections  Proceedlvgs.  quoted  In  Jessica  Mitford,  Kind  and 
Usual  Punishment  (New  York  :  Alfred  A.  Knopf,  1973),  p.  80. 

9  Mitford,  ibid.,  pp.  80-81. 

w  .T.  Foster,  M.  Kannensohn,  J.  White,  T.  Henderson.  S.  Werner,  J.  Weber,  and  W. 
Howard.  Definite  Sentencing-  An  Examination  of  Proposals  in  Four  States  (Lexington 
Kentucky:  The  Council  of  State  Governments.  1976),  p.  .5.  ' 

"  Cf.  Marvin  E.  Frankel,  Criminal  Sentences'  Law  Without  Order  (New  York  •  Hill  and 
Wang,  1972),  pp.  89-91. 

12  ".  .  .  the  concept  of  preventive  detention  has  for  a  centurv  been  the  raison  d'etre  for 
a  system  of  indeterminate  sentencing.  Any  prisoner  denied  leniency  by  a  judge  or  parole 
board  is  likely  to  be  imprisoned  under  a  policy  of  preventive  detention  .  for  what  is 
probably  the  majority,  confinement  is  the  result  of  a  decision  that  the  prisoner  is  not  yet 
safe  enough  to  release."  American  Friends  Service  Committee,  Struggle  for  Justice-  A 
Report  on  Crime  and  Punishment  in  America  (New  York  :  Hill  and  Wang   1971)    p   76 

13  Robert  O.   Dawson,  Sentencing-   The  Decision  as  to  Type,  Length,''and  Conditions  of 


of  Punishments,  Report  of  the  Committee  for  the  Study  of  Incarceration  (New  York-  Hill 
and  Wang,  1976),  and  Norval  Morris.  The  Future  of  Imprisonment  (Chicago-  The' Uni- 
versity of  Chicago  Press,  1974),  p.  34  and  pp.  66-73.  ' 


9094 

•  Professor  Hans  Toch  presents  the  argument  succinctly:  "Followup  studies  of 
parolees  across  tlie  country  tell  us  .  .  .  that  one  percent  of  parolees  formerly 
imprisoned  for  homicide  commit  a  new  murder,  and  one  percent  of  paroled  rapists 
rape  again  ...  it  is  true  that  one  could  prevent  some  murders  and  rapes  by  refus- 
ing to  parole  all  men  convicted  of  such  offenses.  But  as  a  consequence  of  this 
strategy,  99  persons  would  have  been  erroneously  detained  ...  to  neutralize  one 
individual  who  would  repeat  his  offense."  ^ 

Any  offender-oriented  sentencing  system  requires  that  a  great  deal  of  discretion 
be  allocated  to  the  sentencing  authorities.  While  I  feel  that  a  system  with  no  room 
for  discretion  would  be  appropriate  only  in  a  world  peopled  by  robots,  we  must 
recognize  that  unbridled  discretion  is  certain  to  result  in  sentencing  disparity 
and  other  abuses. 

Discretion  is  supposed  to  make  allowances  for  differences  in  attitudes,  circum- 
stances, and  potential  of  offenders ;  in  practice,  however,  it  may  reflect  the  atti- 
tudes, circumstancse,  and  prejudices  of  criminal  justice  practitioners,  be  they 
policemen,  judges,  wardens,  case-workers,  or  parole  commissioners.  In  an  experi- 
ment conducted  at  the  University  of  California  at  Los  Angeles,  a  sample  of 
students  with  clean  driving  records  placed  Black  Panther  bumper  stickers  on 
their  automobiles.  "The  experiment  had  to  be  terminated  after  several  weeks 
because  the  $1,000  fund  that  had  been  set  aside  to  pay  fines  had  been  exhausted 
by  the  immediate  rash  of  tickets  received  by  the  students." '" 

Judge  Marvin  E.  Frankel  has  said  that  sentences  are  "not  so  much  in  terms  of 
defendants,  but  mainly  in  terms  of  the  wide  spectrums  of  character,  bias,  neurosis, 
and  daily  vagary  encountered  among  occupants  of  the  trial  bench."  " 

The  discretion  of  parole  boards  are  in  a  sense  lawless  because  most  are  not 
regulated  by  specific  rules,  criteria  or  guidelines.  Decisions  are  generally  not 
appealable,  and  even  if  they  were,  appeal  of  a  decision  based  on  broad  criteria 
of  none  at  all  is  meaningless. 

Tlie  danger  of  abuse  increases  when  discretion,  in  the  name  of  individualized 
treatment,  is  conferred  on  bureaucratic  agencies.  As  Caleb  Foote  noted  in  his 
study  of  parole  in  California,  there  is  a  tendency  to  compromise  among  a  variety 
of  conflicting  interests  including,  in  addition  to  the  needs  of  the  offender,  "politi- 
cal pressure  .  .  .  cooperation  with  law  enforcement  and  jirosecution  .  .  .  the 
management  interests  of  correctional  bureaucracy  .  .  .  the  pulse  of  seetliing  un- 
rest in  inmate  pq  )ulations  .  .  .  widely  divergent  views  (of  colleagues)  .  .  . 
budget  priorities  (and)  administrative  polices.  .  .  ."  ^* 

Even  where  discretion  is  not  abused,  it  will  be  perceived  as  arbitrary  and  dis- 
criminatory, with  equally  troublesome  consequences  for  correction  ofiicials. 

Although  the  indeterminate  sentence  was  intended  to  promote  the  rehabilita- 
tive ideal.,  a  number  of  oltservers  feel  that,  because  it  is  jierceived  as  unfair  in 
its  implementation,  it  mitigates  against  the  achievement  of  respect  for  the 
law,'*  and  becau.'ie  release  is  in  theory  based  on  rehabilitation,  it  encourages 
insincere  program  participation,  thereby  diluting  the  quality  and  effe<'tiveness 
of  the  i>rograms.  I'risons  become  theaters,  inmates  are  the  actors  and  parole 
boards,  the  critics.^ 

While  i-ehaiiilitation.  the  cornerstone  of  the  indeterminate  sentence,  has  not 
generally  been  achieved,  there  has  been  an  increase  in  the  length  of  the  sentences. 
Although  existing  evidence  is  inconclusive,  it  is  probable  that  tlie  indeterminate 
sentence  has  produced  an  increase  in  the  average  time  actually  served,'^  and 
many  offenders  serve  more  time  (though  some  serve  less)  than  they  would  have 
under  a  defhiite  sentence  structure.  Of  greater  concern  should  be  the  fact  that 
the  additional  time  seived  is  often  for  reascms  unrelated  to  the  offense  for 
which  the  inmate  was  incarcerated  (e.g.,  predicted  dangerousness,  failure  to 
participate  in  institutional  programs,  or  political  pressures  on  the  releasing 
authority). 


Allans  Tocli,   I'uJirc,  PriHonx.  and  the  J'rohlcm  of  Violence   (Washington,  U.S.  Govern- 
mont   PriiitiiifT   Ollioo.    IDTTl.    p.    ifj. 

'"•  Aiiipriciiii  Friends  St-rvicp  Coininlttee,  op.  cit.  (note  12)    n   l.'iO 

"Praiikol.  op.  cit  fnoto  11  ».  p.  LM. 

'Tited   In    von    Ilirsfh.    op.   cif.    (note   14).   p.    ,30. 

'"Cf.   Morris:   ".  .  .  there  is  ;it  present  snclt  a  jirrv.-idinE:  sensp  vltliin  prison  of  the  in- 
.1nstl<'e  of  sentencing  that  any  reliabilitative  efforts  behind  tlie  walls  are  seriously  inhibited" 
{op.  cit.,  note  14,  p.  .)0).  ' 

■"  Fotrel.  OIL  cit..  (note  1).  p.  201. 

-iSoe  Koirel.  op.  cit.    (note  1).  pp.   194-10.-;  Dershowitz.  op.  cif.    (note  4),  pp.  12'>-1'>.3- 
14)!'T'48     '"'"  '"■''  C""""'""^'  «"•  «''■'•.   <»ote  12),  p.  So;  and  Morris,  op.  cit.  (note 


9095 

The  iudeterminate  sentence  tends  to  sever  the  link  of  nexus  between  crime 
and  imnishment,  and  in  so  doing  undermines  the  entire  justice  system.  By  dif- 
fusing responsibility  for  sentence  length,  reference  by  any  of  the  participants 
(offender,  victim,  law-enforcement,  judiciary,  paroling  authority*  or  the  public 
to  the  reasons  for  punishment  is  difficult.  Indeed,  the  differing  perspectives  of 
the  judge  (retrospective)  and  the  parole  board  (prospective)  dictate  that  there 
be  more  than  one  reason,  with  the  perception  that  tliere  is  no  reason.  Tailoring 
of  the  punishment  to  the  offender  rather  than  the  offense  breaks  the  link.  Any  de- 
terrent effect,  special  or  general,  of  the  sentence  is  weakened  as  punishment  is 
terminated  or  continued  ft»r  what  the  offender  is  rather  than  for  what  he  has 
done.'-  Even  the  retributive  effect  is  dissiijated.  These  unfortuiuite  effects  are 
magnified  as  the  decision  concerning  the  length  of  the  sentence  is  further  re- 
moved in  time  from  the  commission  of  the  offense. 

In  addition  to  the  theoretical  difficulties  of  the  indeterminate  sentence,  it 
creates  practical  management  problems.  Administrators,  as  well  as  inmates,  are 
aggrieved  by  the  uncertainty  of  the  time  to  V)e  servetl.  When  the  correctional 
agency  can  only  guess  at  the  inmate's  release  date,  the  development  of  a  realistic 
program  plan  "is  difficult.  There  is  no  point  in  enrolling  an  inmate  in  a  treat- 
ment program  if,  after  completion,  the  effect  will  wear  off  with  years  of  con- 
tinued imprisonment.  Alternately,  it  is  a  waste  of  resources  to  enroll  an  inmate 
in  a  program  if  he  will  be  released  prior  to  completion. 

But  fhe  chief  management  problem  is  that  the  indeterminate  sentence  is  a 
source  of  inmate  discontent.  The  uncertainty  of  tlie  release  date  may  be  a  punish- 
ment in  itself."^ 

Interestingly,  Zebulon  R.  Brockway,  one  of  the  pioneer  advocates  of  the  in- 
determinate sentence,  recognized  this  but  felt  that  it  was  beneficial.  "The  indeter- 
minateness  of  tlie  sentence,"  he  said,  "breeds  discontent,  breeds  purposefulnesSr 
and  prompts  to  a  new  exertion.  Captivity,  always  irksome,  is  now  increasingly 
so,  because  of  the  duty  and  responsibility  of  .shortening  it  and  of  modifying  any 
undesirable  present  condition  of  it  devolves  upon  the  prisoner  himself,  and  again, 
by  the  active  exactions  of  the  standards  and  criterion  to  which  he  must  attain."  -* 

Modern  observers  agree  that  uncertainty  renders  captivity  more  irksome,  but 
do  not  agree  that  this  is  desirable.  Whatever  contribution  the  torture  of  suspense 
may  make  to  prison  discipline,  it  is  more  than  offset  by  its  creation  of  inmate 
frustration  and  aggression.^^  After  the  1971  riot  at  Attica,  where  43  men  died  in 
the  retaking  of  the  prison,  the  McKay  Commission  reported  that  "the  operation 
of  the  parole  system  was  a  primary  source  of  tension  and  bitterness  within  the 
•walls."  -*  My  experience  in  speaking  with  prisoners  at  Attica  and  other  New  York 
State  correctional  facilities  indicates  that  this  is  still  true. 

As  a  result  of  perceived  inequities  in  the  nation's  sentencing  policies,  recent 
years  have  witnessed  an  emerging  call  for  a  nan-owing  of  discretion  and  dis- 
parity. In  1962,  the  American  Law  Institute  developed  a  Model  Penal  Code.  The 
Code's  most  significant  achievement  for  corrections  was  the  development  of  stat- 
utory criteria  for  sentencing  decisions.^^ 


23  Federal  Judge  Constance  Baker  Motley  observes  that  "punishment  is  an  effective 
device  for  altering  conduct  only  if  it  is  applied  fairly  and  as  a  direct  sanction  against  the 
conduct  which  is  sought  to  be  punished  ...  By  punishing  the  defendant  for  what  he  is 
rather  than  what  he  has  done,  some  sentences  loosen  what  may  already  be  a  fragile  tie 
lietween  the  defendant  and  society."  Constance  Balder  Motley.  ''Criminal  Law  :  'Law  and 
Order'  and  the  Criminal  Justice  System."  in  Telford  Taylor,  Constance  Baker  Motelv.  and 
James  K.  Feibleman,  Perspectives  on  Justice  (Evanston  :  Northwestern  University  Press, 
lOTSS),  pp.  69-70. 

^  "The  growing  evidence  of  prisoner  sentiment  .  .  .  indicate  that  the  inmate  experiences 
as  cruel  and  degrading  the  command  that  he  remain  in  custody  for  some  uncertain  period, 
while  his  keepers  study  him.  grade  him  in  secret,  and  decide"  if  and  wlien  he  may  be  let 
go  .  .  .  The  uncertainly  of  the  indeterminate  sentence  is  experienced  as  a  steadily"  galling 
affliction."  Frankel,  op.  cit.  (note  11),  pp.  96-97. 

-"Cited  in  Mitford,  op.  rit.  (note  S),  pp.  81-82. 

-5  Cf.  Foster,  et  al-  "Bitterness  over  unequal  sentence  lengths  as  well  as  tensions  and 
frustrations  arising  from  the  uncertainties  and  irrationalities  of  the  parole  process  are 
cited  by  correctional  administrators,  as  well  as  prisoners,  as  a  major  contributor  to  violence 
within  correctional  institutions.  Overcrowding,  lack  of  adequate  medical  services,  or  poor 
food  are  secondary  sources  of  prisoner  grievances  compared  to  the  resentment  engendered 
by  the  indefinite  sentence.  The  cited  violence  was  not  limited  to  organized  or  spontaneous 
prison  riots  against  correctional  authorities  ;  individual,  random  acts  of  violence  against 
prison  guards  .".nd  other  prisoners  have  been  the  more  prevalent  expression  of  frustration 
and  outrnge."  Foster  et  al,  op.  cit.  Cnote  10).  p.  10. 

^^ Attica:  The  Official  Report  of  the  New  York  State  Special  Commi.'niion  on  Attim  (Npw 
\ork:  Bantam  Books,  1972),  p.  93.  The  report  also  concluded  that  "the  existing  procedure 
aierely  confirms  to  inmates  .  .  .  that  the  system  is  indeed  capricious  and  demeaning"  (p   98) 
.«f  ^"^'""'"'^  Advisory  Commission  on  Criminal  Justice  Standards  and  Goals,  Corrections 

Washington  :  United  States  Government  Printing  Office,  1973),  p.  549. 

92-465 — 77 34 


9096 

In  1969,  the  American  Bar  Association  expanded  on  the  Model  Penal  Code  along 
traditional  indeterminate  lines.  While  proposing  generally  low  maximum  sen- 
tences and  limiting  judicial  discretion  (with  a  provision  for  appellate  review 
of  sentences),  the  principle  of  indeterminacy  was  expressly  preserved.-'* 

In  1973,  the  National  Advisory  Commission  on  Criminal  Justice  Standards 
and  Goals  issued  its  report  on  corrections.  Again,  judicial  discretion  was  limited 
by  relatively  low  maximums  and  strict  guidelines  for  deviating  from  sentencing 
iiorms.  Strict  definitions,  for  example,  of  persistent  felony  offenders,  professional 
criminals,  and  dangerous  offenders  were  developed.'* 

All  three  models  substantially  circumscribe  the  discretion  of  judges  and  parole 
boards.  However,  inasmuch  as  indeterminacy  is  retained,  each  model  continues 
uncertainty  and  diminishes  the  essential  crime-punishment  link. 

In  the  past  few  years,  a  variety  of  proposals  for  the  elimination  or  reduction 
of  indeterminacy  have  been  published.  They  go  by  a  variety  of  names — the  Justice 
Model,  the  Just  Deserts  Model,  Presumptive  Sentencing — but  they  are  substan- 
tially consistent  in  their  aims  and  strategies. 

The  Quakers,  more  than  anyone  else,  were  responsible  for  the  development  of 
the  American  correctional  system.  It  would  be  ironic — were  it  not  that  the 
Quakers  have  never  forsaken  their  interest  in  offenders — that  the  American 
Friends  Service  Committee  attacked  the  prison  system  in  an  influential  mono- 
graph entitled  Struggle  for  Justice  (1971).  The  monograph  focused  on  the  inap- 
propriate application  of  a  medical  model,  the  dangers  of  unfettered  discretion, 
and  recommended  the  aliolition  of  the  indeterminate  sentence.  Punishment  should 
"fit  the  crime"  and  should  be  the  least  restrictive  of  alternatives.  Rehabilitative 
services  were  to  be  made  available  on  a  truly  voluntary  basic  since  participation 
is  no  longer  to  be  a  consideration  in  the  determination  to  release."'' 

In  1972.  Federal  Judge  Marvin  E.  Frankel  published  Criminal  Sentences:  Law 
Without  Order.  .Judge  Frankel's  central  theme  is  that  the  sentencing  and  release 
functions,  exercised  in  an  atmosphere  of  invisibility  and  unchecked  by  rule,  are 
intolerably  disparate.  Judge  Frankel  calls  for  subjecting  tlie  discretion  of  judges 
and  parole  boards  to  clear  checks.  While  the  indeterminate  sentence  may  in  some 
cases  be  proper,  it  "has  produced  more  cruelty  and  injustice  than  the  benefits  its 
supporters  envisage,"  ^  and  is  "usually  evil  and  unwarranted."  ^  The  "presump- 
tion ought  always  to  be  in  favor  of  a  definite  sentence,  known  and  justified  on  the 
day  of  sentencing  (and  probably  much  shorter  than  our  sentences  tend  to  run). 
There  should  be  a  burden  of  justifying  an  indeterminate  sentence  in  any  par- 
ticular case — a  burden  to  be  satisfied  only  by  concrete  reasons  and  a  concrete 
program  for  the  defendant  in  that  case."  '"^ 

In  197.S,  in  a  lecture  at  the  Northwestern  University  School  of  T.aw.  another 
Federal  Judge,  the  Hon.  Constance  Baker  Motley,  reiterated  that  the  practice 
of  sentencing  and  release  decisions  are  without  law  and  order.  She  proposes  fixed 
sentences  for  purposes  of  punishment  and  deterrence  without  reference  to  re- 
habilitaion.^* 

In  1974,  Norval  Slorris  in  The  Future  of  Tniprisonment  recommended  that 
punishment  be  based  on  "de.sert,"  a  concept  similar  to  but  not  synonymous  with 
retribution,  which  links  crime  and  punishment  and  limits  the  allocation  and 
severity  of  piniishment."°  While  rehabilitation  is  not  a  purpose  of  the  prison 
sanction,  services  should  be  offered:  the  enijihasis  is  changed  from  "coerced 
cure"  to  "facilitated  change."^"  While  "predicted  dangerousness"  is  not  to  be 
considered  in  the  decision  to  imprison  for  in  the  decision  to  release),  "graduated 
testing  of  increased  increments  of  freedom  must  be  substituted  for  parole  predic- 
tions of  suitbility  for  release."  ^^ 


-"'  Compnrntivp.  Atmh/sis  of  the  Standards  and  Goals  of  the  National  Advisort/  Commission 
on  Criminal  Justicp  Standards  and  Goals  with  Standards  for  Criminal  Justice  of  the 
American  Bar  ANxociation  (Sooond  Printing,  .Time  1074).  pi).  ,''.80-470. 

2»  National  Advisory  Coniniisslou,  op.  cit.,  (note  27),  Chapter  5,  "Sentencing,"  i>p.  141- 
19*^. 

'"' Anipricnn  Frionda  Rprviro  Committee,  op.  cit.  (note  12). 

■^  Frnnkpl,  op.  cit.  (note  11).  p  .88. 

'■- Ihitf  ,  ],.  f)fl. 

"''  Ihid..    \).   !)S. 

««I\Iotley.  op.  cit.  (note  22).  pp.  06  07. 

■■"  Morris,  op.  cit.  (note  14),  pp.  73-76. 

™  Thid..   pp.   13-20. 

^  n>id..  pp.  41-4.^,  Milton  Rector,  acrordinjr  to  David  Fopel.  sngsests  a  similar  technique: 
the  periodic  mandatory  release  of  prisoners  with  assessments  of  liow  tlie  prisoner  fares 
on  those  fiirlonshs  as  determination  of  readlness-for-release  decisions."  Fogel,  op.  cit. 
(note  1),  note  on  p.  241.  '^ 


9097 

David  Fogel's  well-known  proposal  that  corrections  be  based  on  a  due  process 
or  "justice"  model  was  published  iu  1975.  In  the  pursuit  of  justice,  Fogel  ad- 
vocates a  return  to  totally  "flat  time"  sentences  for  different  classes  of  felonies. 
Sentence  may  be  reduced  through  good  time,  earned  at  the  rate  of  a  day-for-a-day 
and  vested.  Parole  boards  would  be  abolished.  Legislatively  fixed  sentences  for 
each  offense  category  would  be  reduced  or  increased  by  the  court,  within  pre- 
determined limits  and  under  specified  circumstances  indicating  aggravation  or 
mitigation.^ 

Two  committee  reports  came  out  in  1976.  Although  the  Report  of  the  Committee 
for  the  Study  of  Incarceration,  written  by  Andrew  von  Hirsch,  is  popularly  called 
the  "Commensurate  Deserts"  model,  and  the  Twentieth  Century  Fund  Task 
Force  on  Criminal  Sentencing  calls  its  proposal  "Presumptive  Sentencing,"  they 
are  very  similar  in  aim  and  substance.  Imposition  of  the  criminal  is  justified, 
and  limited,  on  the  grounds  that  the  specific  criminal  act,  coupled  with  the 
interests  of  the  public  at  large,  merits  punishment.  Desert  is  posited  as  a  require- 
ment of  justice. 

Each  model  recommends  that  conviction  for  a  particular  crime  "presumes" 
a  given  sentence.  Variation  from  the  presumptive,  legislatively  fixed  sentence, 
may  be  made  on  the  basis  of  prior  convictions  and  specified  aggravating  or  miti- 
gating standards.™ 

Just  deserts,  the  justice  model,  and  presumptive  sentencing  severely  curtail 
judicial  and  administrative  discretion,  make  the  punishment  fit  the  crime,  and 
generally  admit  good  time  in  the  interests  of  prison  discipline. 

Maine  adopted  definite  sentencing  effective  Mai-ch  1,  1976.  Indiana  has  legis- 
latively passed  and  California  has  enacted  determinate  sentencing.  Bills  are 
l>ending  in  Alaska,  Colorado,  Connecticut,  Illinois,  Ohio  and  Washington.  In 
Florida,  South  Dakota,  and  Virginia,  legislative  commissions  are  studying  fixed 
prison  terms.^".  United  States  Senators  Hart  and  Javits  recently  proposed  ( United 
States  Senate  Bill  S.  204)  that  the  Federal  criminal  justice  system  adopt  a  pre- 
sumptive sentencing  model.  Senator  Edw^ard  Kennedy  and  Senator  John  L. 
McClellan  have  a  similar  bill  (United  States  Senate  Bill  1437) . 

While  it  is  diflicult  to  summarize,  the  new  models  generally  establish  crime 
categories  to  each  of  which  a  scale  of  terms  is  attached.  Most  of  the  models 
assume  a  fixed  sentence  at  a  particular  point  on  the  scale,  and  specify  the  circum- 
stances (such  as  prior  convictions  or  use  of  a  weapon)  under  which  the  sentence 
may  be  set  at  a  higher  or  lower  point  within  the  range.  In  each  model,  sentences 
are  subject  to  reduction  through  the  application  of  good  time  credits. 

According  to  David  Fogel,  "an  important  chorus  ...  is  developing,  seeking  a 
sensible  sentencing  scheme."  *^  The  American  Law  Institute's  Model  Penal  Code; 
the  National  Council  on  Crime  and  Delinquency's  Model  Sentencing  Act;  the 
American  Bar  Association's  Standards  Relating  to  Sentencing  Alternatives  and 
Procedures ;  the  National  Advisory  Commission  on  Criminal  Justice  Standards 
and  Goals'  Report  on  Corrections;  the  President's  Commission  on  Law  Enforce- 
ment and  Administration  of  Justice ;  the  New  York  State  Citizens'  Inquiry  on 
Parole  and  Criminal  Justice ;  the  Committee  for  the  Study  of  Incarceration ;  and 
the  Group  for  the  Advancement  of  Corrections  represent  an  emergent  consensus 
that  sentencing  criteria  should  be  statutorily  required ;  that  sentences  should  be 
based  upon  classification  of  offenders  into  risk  categories ;  that  sentences  should 
be  more  definite ;  that  they  should  be  reviewable ;  that  they  should  be  shorter ; 
and  that  they  should  be  imiwsed  only  when  a  satisfactory  community-based 
alternative  is  not  practicable.^ 

With  respect  to  sentencing  policy,  correction  is  coming  into  full  circle. 

Correctional  administrators  tend  to  look  warily  at  flat  time  sentencing  propos- 
als. They  fear  that  sentences  will  be  unnecessarily  severe  ;  that  prison  populations. 


Ks  Fogel.  op.  cif.  (note  1),  pp.  245-260. 

5®  von  Hirsch.  op.  cit.  (note  14)  ;  Twentieth  Century  Fund,  Fair  and  Certain  Punishment- 
Beport  of  the  Ttvcntieth  Century  Fund  Task  Force  on  Criminal  Sentencing  (New  York  : 
McGraw-Hill.  1976).  Whereas  the  other  "flat  time"  proposals  discusser!  eliminate  the 
paroling  authority,  the  Twentieth  Century  Fund  grants  it  a  limited  power  to  reduce  a 
sentence  "within  a  previously  fixed  range  and  on  the  hasis  of  relevant  information  .  .  .  that 
was  not  available  to  the  sentencing  judge  ...  to  facilitate  the  prisoner's  transition  to  the 
outside  community  or  because  of  compelling  medical  needs"   (p.  22). 

*o  Michael  S.  Serrill,  "California  Turns  to  Fixed  Sentences,"  Corrections  Magazine  (Vol. 
II.  No.  6.  Dec.  1076).  p.  56. 

^1  Fogel,  op.  cit.  (note  1),  p.  241. 

*2  IMd.,  pp.  241-244. 


9098 

already  at  the  breaking  point,  will  increase  ;  and  that,  because  the  indeterminate 
sentence  is  based  on  the  rehabilitative  ideal,  the  death  of  the  one  will  mean 
the  death  of  the  other. 

Determinate  certainly  need  not  mean  longer.  Comparative  lengths  will  depend 
on  the  existing  practices  and  models  adopted  by  individual  jurisdictions.  Cali- 
fornia's flat  sentences  will  be  base  on  the  average  time  served  over  the  last  six 
years." 

A  recent  LEAA  funded  study  concluded  that,  excluding  enhanced  terms,  "the- 
lengths  of  sentences  .  .  .  contrary  to  the  popular  presumption,  are  on  the  whole 
either  shorter  or  similar  to  the  average  time  served  luider  the  indefinite  sentence- 
in  California,  Illinois,  and  Minnesota  .  .  ."." 

Whether  prison  populations  will  increase  is  also  a  matter  for  si>eculation ; 
average  time  served  is  only  one  of  many  factors  affecting  the  prison  census. 

It  is  understandable  that  correctional  administrators  fear  that  the  aban- 
donment of  the  concept  of  indeterminancy  threatens  programs.  Indeed  before  sup- 
porting the  bill,  the  California  Department  of  Corrections  sought  and  received' 
assurances  that  there  would  be  no  cut-backs  in  funds  for  programs  which  will 
be  voluntary.*^ 

While  rehabilitation  is  necessary  to  the  indeterminate  sentence,  the  indeter- 
minate sentence  is  certainly  not  necessary  to  the  pursuit  of  rehabilitation.** 

Offenders  must  be  given  the  opportunity  to  acquire  some  of  the  skills  for 
successful  living  in  a  technological  society. 

The  indeterminate  sentence  should  be  abolished  because  it  is  an  unjust  basis 
for  sentencing;  and  because,  being  perceived  as  unjust  and  discriminatory,  it 
mitigates  against  rehabilitation.  The  indeterminate  sentence  should  be  abolished 
because  it  breeds  unnecessary  frustration  in  the  prison  setting.  Finally,  the 
indeterminate  sentence  should  be  abolished  because  it  undermines  justice  by 
breaking  the  link  between  crime  and  punishment. 

In  its  place,  I  suggest  the  presumptive  sentencing  model.  Presumptive  sen- 
tencing eliminates  uncertainty  and  reduces  discretionary  disparity  while  avoid- 
ing the  danger  of  inflexible  rigidity.  The  punishment  is  commensurate  with  and 
clearly  a  consequence  of  the  criminal  act.  A  primary  source  of  bitterness,  frus- 
tration, anxiety,  and  cynicism  is  removed.  Criminal  justice,  operating  in  a 
visible  theater,  becomes  known  and  knowable  in  advance. 

Mr.  Ward.  ISIany  factors  have  led  to  the  reexamination  of  tlie  basic 
precepts  of  corrections:  The  civil  riirhts  movement  of  the  1960's;  the 
Vietnam  war;  the  erosion  of  the  judicial  hands-off  policy  toward 
corrections;  the  advent  of  Watergate;  and,  most  importantly,  tlie 
decades  of  the  failure  of  corrections  to  acliieve  the  reliabilitation  of 
offenders. 

The  rehabilitation  of  otfenders  as  a  proper  jjoal  of  corrections  was 
not  open  to  question  for  almost  100  years  following:  the  declaration 
of  principles  of  the  National  Prison  Congress  of  October  1870  at 
Cincinnati,  Ohio. 

The  indeterminate  sentence  was  the  vehicle  through  which  the  new 
penology  would  be  implemented. 

In  the  decade  of  the  seventies,  the  indeterminate  sentence  has  come 
under  especially  severe  attack. 

In  the  nineteenth  century,  Americans,  armed  with  a  new  conscience, 
with  the  humanitarian  and  rational  ideals  of  the  enlightenment,  and 
with  the  can-do  spirit  of  a  young  Nation,  faced  the  problejn  of  what 
to  do  with  its  deviant  members,  the  criminals  and  the  mentally'  ilL 


*■>  Sorrill.  op.  rit.  (note  40),  p  ..').". 

<'  Foster  rf  ah,  op.  rit.  (note  10).  p.  21. 

*''  Sorrill,  op.  at.  (note  40),  p.  V>n. 

•"•It  is  siiKuestod  .Thove  tlint  rclntinsr  rolo.Tse  to  profrress  In  roli.ibilit-ntive  proffr.TTn<;  may 
fllliife  the  finality  of  partirip.ntion  in  prf>£rraniR.  Professor  Tofh  siipjresfs  tlmt  flefinite  s^eii- 
tcnces  may  in  fact  l)e  a  spur  to  relinbillta tion  :  'T.nt  a  sliort  sentence  is  a  challenge  for 
trentprs  (o  do  flie  liest  tliey  can  In  tlie  time  tiiey  iiave.  It  may  even  enhance  their  wcrlc. 
FreiTl  recdmmends  flxinp  terminal  dates  for  complacent  patients,  and  he  notes  that  this: 
often  inspires  .serious  efforts  to  change."  Toch,  op.  cit.  (note  15),  p.  119. 


9099 

They  responded  by  constructing  asylums  and  prisons.  Mental  lios- 
l^itals  and  prisons  were  developed  at  approximately  the  same  time  in 
America  and  their  purposes,  construction,  organization,  and  methods 
significantly  influenced  each  other. 

Although  it  was  never  full}'  practiced,  corrections  borrowed  from 
the  medical  model.  Keception,  classification,  rehabilitation,  and  parole 
were  the  analogs  of  admission,  diagnosis,  treatment,  and  discharge 
to  out-patient  status. 

Despite  the  absence  of  objective  physiological  conditions,  criminal- 
ity was  inferred  from  criminal  acts,  and  the  offender  was  seen  as  the 
victim  of  a  treatable  malady.  Treatment,  commonly  called  rehabili- 
tation, required  the  development  of  an  individualized  treatment  plan. 
Corrections  became  offender-oriented  and  punishment  would  hence- 
forth fit  the  criminal  rather  than  the  crime. 

The  prison  sentence,  now  seen  as  a  temporal  framework  within 
which  to  work  a  cure,  acquired  some  of  the  flexibility  of  medicine 
where  confinement  to  a  hospital  for  an  arbitrary  flat  time  was  clearly 
absurd.  The  power  to  set  the  prison  term  was  transferred  from  the 
legislative  and  judicial  to  the  correctional  administrators  of  the 
executive  branch. 

A  resolution  to  replace  peremptory  sentences,  measured  by  mere 
lapse  of  time,  with  those  of  indeterminate  duration,  limited  only  by 
satisfactory  proof  of  reformation,  was  unanimously  adopted  at  the 
1870  National  Prison  Congress.  The  resolution  stated  that 

With  men  of  ability  and  experience  at  the  head  of  our  penal  establishments, 
holding  their  oflficers  during  good  behavior,  we  believe  that  it  will  be  little,  if  at 
all,  more  difficult  to  judge  correctly  as  to  the  moral  cure  of  a  criminal,  than 
it  is  of  the  mental  cure  of  a  lunatic. 

As  an  enlightened  means  to  secure  public  protection  both  through 
the  i-eformation  of  the  offender  and  his  incapacitation  for  so  long  as 
he  was  considered  dangerous,  the  principle  of  the  indeterminate  sen- 
tence was  widely  adopted.  Although  the  pure,  totally  open-ended  in- 
determine  sentence  of  1  day  to  life  was  rarely  authorized  in  law  and 
more  rarely  imposed,  every  State  of  the  Union  had  some  measure  of 
indeterminacy  by  the  1970s.  Suddenly,  we  are  witnessing  the  begin- 
ning of  a  retreat. 

Tlie  indeterminate  sentence  can  be  described  as  a  noble  experiment 
that  has  failed.  After  decades  of  experience,  there  is  still  no  evidence 
in  support  of  the  hypothesis  that  criminals  are  sick,  that  we  can  treat 
them,  or  that  we  can  determine  the  moment  of  cure.  Stripped  of  its 
theoretical  basis,  the  indeterminate  sentence  serves  only  to  increase  the 
length  and  disparity  of  sentences,  and  is  a  cause  of  frustration  for 
inmates  and  administrators.  It  undermines  the  ends  of  criminal  jus- 
tice by  obscuring  the  nexus  or  link  between  crime  and  punishment  and 
by  enabling  unjust  discretionary  treatment  of  offenders. 

The  indeterminate  sentence  often  amounts  to  indefinite  preven- 
tive detention.  In  most  jurisdictions,  the  principal  consideration  in 
the  decision  to  grant  or  deny  parole  is  the  probability  that  the  inmate 
will  violate  the  criminal  law  if  he  is  released.  Aside  from  the  ethical 
question  of  whether  punishment  to  prevent  uncommitted  crimes  is  a 
right  of  the  State,  predictive  techniques  are  not  sufficiently  advanced 
to  allow  the  releasing  authority  to  make  this  decision  with  acceptable 
accuracy. 


9100 

Any  offender-oriented  sentencing  system  requires  that  a  great  deal 
of  discretion  be  allocated  to  the  sentencing  authorities.  While  I  feel 
that  a  system  with  no  room  for  discretion  Avould  be  appropriate  only 
in  AYorld  peopled  b}"  robots,  we  must  recognize  that  unbridled  dis- 
cretion is  certain  to  result  in  sentencing  disparity  and  other  abuses. 

Discretion  is  supposed  to  make  allowances  for  differences  in  atti- 
tudes, circumstances,  and  potential  of  offenders;  in  practice,  however, 
it  ma^'  reflect  the  attitudes,  circumstances,  and  prejudices  of  criminal 
justice  practitionei-s,  be  the}'  policemen,  judges,  wardens,  caseworkers, 
or  parole  commissioners. 

Judge  Marvin  E.  Frankel  has  said  that  sentences  are  "not  so  nnich 
in  terms  of  defendants,  but  mainly  in  terms  of  the  wide  spectrum  of 
character,  bias,  neurosis,  and  daily  vagary-  encountered  among  oc- 
cupants of  the  trial  bench.-' 

The  discretion  of  parole  boards  is  in  a  sense  lawless  because  most  are 
not  regulated  by  specific  rules,  criterias.  or  guidelines.  Decisions  are 
generally  not  appealable,  and,  even  if  they  were,  appeal  of  a  decision 
based  on  broad  criteria  or  none  at  all  is  meaningless. 

The  danger  of  abuse  increases  when  discretion,  in  the  name  of  in- 
dividualized treatment,  is  conferred  on  bureaucratic  agencies. 

There  is  a  tendency  to  compromise  among  a  variety  of  conflicting 
interests  including,  in  addition  to  the  needs  of  the  offender,  political 
pressure,  cooperation  with  law  enforcement  and  prosecution,  the 
management  interests  of  correctional  bureaucracy,  the  pulse  of  seeth- 
ing unrest  in  inmate  populations,  widely  divergent  views  of  colleagues, 
budget  priorities,  and  administrative  policies. 

Even  where  discretion  is  not  abused,  it  will  be  x^erceived  as  arbi- 
trary and  discriminatory  with  equally  troublesome  consequences  for 
corrections  officials. 

Although  the  indeterminate  sentence  was  i]itended  to  promote  the 
rehabilitative  ideal,  a  number  of  observers  feel  that,  because  it  is  per- 
ceived as  unfair  in  its  implementation,  it  mitigates  acainst  tlie  achifve- 
ment  of  respect  for  the  law,  and,  because  release  is  in  theorv  based  on 
rehabilitation,  it  encourages  iiisincere  ]n-ogram  })articii>ation.  tlier'^by 
diluting  the  quality  and  effectiveness  of  the  programs.  Prisons  become 
theaters,  inmates  are  the  actors,  and  parole  boards  are  the  critics. 

While  rehaliilitation,  the  cornerstone  of  the  indetermine  sentence 
has  not  generally  been  achieved,  there  has  l)een  an  increase  in  the 
average  time  actually  served,  and  many  otTenders  serve  more  than — 
though  some  serve  less — than  they  would  have  under  a  definite  sen- 
tence structure.  Of  greater  concern  should  be  the  fact  that  the  addi- 
tional time  served  is  often  for  reasons  unrelated  to  the  offense  for 
which  the  inmate  was  incarcerated — for  example,  predicted  dangpr- 
ousness,  failure  to  participate  in  institutional  programs,  or  political 
pressures  on  the  releasing  authority. 

The  indeterminate  sentence  tends  to  sever  tlie  link  or  nexus  be- 
tween crime  and  punishment,  and  in  so  doing  undermines  the  entire 
criminal  justice  system.  By  diffusing  responsibility  for  sentence  length, 
reference  by  any  of  the  participants — offender,  victim,  law-enforce- 
ment, judiciary,  paroling  authority — or  the  public  to  the  reasons  for 
punishment  is  difficult.  Indeed,  the  differing  perspectiveness  of  the 
judge — retrospective — and    the    parole    board — prospective — dictate 


9101 

that  there  be  more  than  one  reason,  with  the  perception  that  there  is 
no  reason. 

Tailoring  of  the  punishment  to  the  offender  rather  than  the  offense 
breaks  the  link.  Any  deterrent  effect,  special  or  general,  of  the  sen- 
tence is  wealvened  as  punishment  is  terminated  or  continued  for  what 
the  offender  is  rather  than  for  what  he  has  done.  Even  the  retributive 
effect  is  dissipated. 

These  unfortunate  effects  are  magnified  as  the  decision  concerning 
the  length  of  the  sentence  is  further  removed  in  time  from  the  com- 
mission of  the  offense. 

In  addition  to  the  theoretical  difficulties  of  the  indeterminate  sen- 
tence, it  creates  practical  management  problems.  Administrators  as 
w^ell  as  inmates  are  aggrieved  by  the  uncertainty  of  the  time  to  be 
served.  When  the  correctional  agency  can  only  guess  at  the  inmate's 
release  date,  the  development  of  a  realistic  program  plan  is  dilficuh. 
There  is  no  point  in  enrolling  an  inmate  in  a  treatment  program  if,. 
after  completion,  the  effect  will  wear  off  with  years  of  continued  im- 
prisonment. Alternately,  it  is  a  waste  of  resources  to  enroll  an  inmate 
in  a  program  if  he  will  be  released  prior  to  completion. 

But  the  chief  management  problem  is  that  the  indeterminate  sen- 
tence is  a  source  of  inmate  discontent.  The  uncertainty  of  the  release 
date  may  be  a  punishment  in  itself. 

Whatever  contribution  the  torture  of  suspense  may  take  to  prison 
discipline,  it  is  more  than  offset  by  its  creation  of  inmate  frustration 
and  aggression.  After  the  1971  riot  at  Attica,  where  43  man  died  in 
the  retaking  of  the  prison,  the  McKay  Commission  reported  that  "the 
operation  of  the  parole  system  was  a  primary  source  of  tension  and 
bitterness  within  the  walls."  My  experience  in  speaking  with  prison- 
ers at  Attica  and  other  New  York  State  correctional  facilities  indi- 
cates that  this  is  still  true. 

As  a  result  of  perceived  inequities  in  the  Nation's  sentencing  poli- 
cies, several  new  models  have  been  proposed  in  recent  years.  Most  of 
the  new  models  recommend  that  conviction  for  a  particular  crime 
"presumes"  a  given  sentence.  Variation  from  the  presumptive,  legis- 
latively fixed  sentence,  may  be  made  on  the  basis  of  prior  convictions 
and  specified  aggravating  or  mitigating  standards. 

Just  deserts,  the  justice  model,  and  presumptive  sentencing  sev- 
erely curtail  judicial  and  administrative  discretion,  make  the  punish- 
ment fit  the  crime,  and  generall}^  admit  good  time  in  the  interests  of 
prison  discipline. 

Maine  adopted  definite  sentencing  effective  March  1976.  Indiana  has 
legislatively  passed  and  California  has  enacted  determinate  sentenc- 
ing. Billls  are  pending  in  Alaska,  Colorado,  Connecticut,  Illinois,  Ohio, 
and  Washington.  In  Florida,  South  Dakota,  and  Virginia,  legislative 
commissions  are  studying  fixed  prison  terms. 

While  it  is  difficult  to  summarize,  the  new  models  generally  estab- 
lish crime  categories  to  each  of  which  a  scale  of  terms  is  attached.  INIost 
of  the  models  assume  a  fixed  sentence  at  a  particular  point  on  the 
scale,  and  specify  the  circumstances — such  as  prior  convictions  or  use 
of  a  weapon — under  which  the  sentence  may  be  set  at  a  higher  or 
lower  point  within  the  range.  In  each  model,  sentences  are  subject  to 
reduction  through  the  application  of  good  time  credits. 


9102 

An  important  cliorns  is  developins:.  seekinor  a  sensible  sentencing 
scheme.  The  American  Law  Institute's  Model  Penal  Code;  the  Na- 
tional Council  on  Crime  and  Delinquency's  INIodel  Sentencing:  Act;  the 
American  Bar  Association's  Standards  Relatincr  to  Sentencinir  Alter- 
natives and  Procedures;  the  National  Advisory  Commission  on  Crimi- 
nal Justice  Standards  and  Goals'  Report  on  Corrections;  the 
President's  Commission  on  Law  Enforcement  and  Administration  of 
Justices:  the  New  York  State  Citizens'  Inquiry  on  Parole  and  Crimi- 
nal Justice;  the  Committee  for  the  Study  of  Incarceration;  and  the 
Group  for  the  Advancement  of  Corrections  represent  an  emerofent 
consensus  that  sentencing  criteria  shoidd  be  statutorily  required;  that 
sentences  should  be  based  upon  classification  of  offenders  into  risk 
categories ;  tliat  sentences  should  be  more  definite ;  that  they  should  be 
reviewable;  that  they  should  be  shorter;  and  that  they  should  be  im- 
posed only  when  a  satisfactory  community-based  alternative  is  not 
practicable. 

With  respect  to  sentencing  policy,  corrections  is  coming  full  circle. 

Correctional  administrators  tend  to  look  warily  at  flat  time  sentenc- 
ing proposals.  They  fear  that  sentences  will  be  unnecessarily  severe; 
that  prison  populations,  already  at  the  breaking  point,  will  increase; 
and  tliat,  because  the  indeterminate  sentence  is  based  on  the  rehabilita- 
tive ideal,  the  death  of  the  one  will  mean  the  death  of  the  other. 

"Determinate"  certainly  need  not  mean  longer.  Comparative  lengths 
^ill  depend  on  the  existing  practices  and  models  adopted  by  individual 
jurisdictions.  California's  flat  sentence  will  be  based  on  the  average 
time  served  over  the  last  6  years. 

A  recent  LEAA  funded  study  concluded  that,  excluding  enhanced 
terms,  "the  lengths  of  sentences  *  *  *  contrarv  to  the  popular  pre- 
sumption, are  on  the  whole  either  shorter  or  similar  to  the  average  time 
served  under  tlie  indefinite  sentence  in  California,  Illinois,  and 
Minnesota." 

Whether  prison  populations  will  increase  is  also  a  matter  for  specu- 
lation. Average  time  served  is  only  one  of  many  factors  affecting  the 
I'>rison  census. 

It  is  understandable  tliat  correctional  administrators  fear  that  the 
abandonment  of  the  concent  of  indeterminacy  threatens  programs.  In- 
deed, before  supporting  the  bill,  the  California  Department  of  Cor- 
rection sought  and  received  assurances  that  there  would  be  not  cut- 
backs in  funds  for  programs  which  will  be  voluntary. 

While  rehabilitation  is  necessary  to  the  indeterminate  sentence,  the 
indelerminnte  sentence  is  certainly  not  necessary  to  the  pursuit  of  reha- 
bilitation. Offenders  must  be  triven  the  opportunity  to  acquire  some 
of  the  skills  for  successful  livinof  in  a  technological  society. 

The  indeterminate  sentence  should  be  abolished  because  it  is  an  un- 
lust  liasis  for  sentencing;  and  because,  beincr  perceived  as  mijust  and 
discriminatorv.  it  mitigates  nofainst  rehabilitation.  The  indeterminate 
sentence  should  be  abolished  because  it  bi-eeds  unnecessary  frustration 
in  the  prison  setting.  Finally,  the  indeterminate  sentence  should  be 
abolished  because  it  undermines  justice  by  breaking  the  link  between 
crime  and  pimishment. 

In  its  place.  I  sug'^^est  a  more  determinate  sentencing  model.  Deter- 
minate sentencing  eliminates  uncertainty  and  reduces  discretionary 


9103 

disparity  while  avoiding  the  danger  of  inflexible  rigidity.  The  punish- 
ment is  commensurate  with  and  clearly  a  consequence  of  the  criminal 
act.  A  primary  source  of  bitierness,  frustration,  anxiety,  and  cynicism 
is  removed.  Criminal  justice,  operating  in  a  visible  theater,  becomes 
known  and  laiowable  in  advance. 

The  McClellan-Kennedy  bill,  S.  1437,  recognizes  that  rehabilitation 
is  only  one  of  several  purposes  for  which  a  penal  sentence  is  imposed 
by  a  court  of  law.  S.  1437  would  require  the  sentencing  judge  to  state 
in  writing  whether  he  is  imposing  the  sentence  for  deterrence,  inca- 
pacitation for  protection  of  the  public,  retribution  as  an  insurance  of 
just  punishment,  or  rehabilitation. 

The  present  sentencing  practices  in  this  country  leave  the  partici- 
pating members  of  the  criminal  justice  system  in  a  state  of  confusion. 

Judges  frequently  sentence  for  the  purpose  of  retribution  and  this  is 
often  interpreted  by  correctional  administrators  as  a  sentence  for 
incapacitation.  Parole  boards  generally  ignore  both  of  these  purposes 
for  sentencing  and  operate  on  the  theorj^  that  the  purpose  of  all 
sentencing  is  for  rehabilitation. 

The  McClellan-Kennedy  bill  will  go  a  long  way  toward  setting  a 
standard  which  will  eliminate  this  confusion  at  the  State  level  as  well 
as  the  Federal  level. 

Parole  was  created  on  the  twin  theories  that  prisons  could  rehabili- 
tate prisoners  and  that  penal  authorities  could  predict  human  be- 
havior. Experience  has  demonstrated  the  fallibility  of  both  theories. 

The  idea  of  abolishing  parole  in  the  Nation's  next  criminal  code  may 
sound  startling,  but  the  concept  is  in  fact  eminently  sensible.  The  com- 
bination of  disparate  sentences  doled  out  for  similar  offenses  and  the 
quixotic  and  often  arbitrary  character  of  parole  dicisions  has  under- 
mined the  rationality  of  the  criminal  justice  system  and  contributed 
greatly  to  prison  tensions.  One  provision  of  the  McClellan-Kennedy 
bill  would  sharply  narrow  the  discretion  of  judges  in  sentencing.  If 
accompanied  by  the  elimination  of  parole,  an  inmate  would  serve  his 
full  sentence,  less  time  earned  for  good  behavior. 

The  result  will  be  equal  time  for  equal  crimes.  The  criminal  justice 
system  gains  by  removing  a  cause  of  bitterness  and  tension  in  our  vola- 
tile prisons,  and  by  taking  a  giant  stride  toward  fimdamental  fairness. 

Just  in  case  I  was  not  going  to  get  any  questions,  I  thought  that  I 
would  answer  one  that  you  asked  of  an  earlier  witness  this  morning. 
I  think  your  question  was  this :  Why  shouldn't  the  defendant  know 
before  what  his  sentence  will  be  and  whether  he  will  be  released  if  he 
behaves  himself  in  the  correctional  setting? 

I  do  not  know  why  he  should  not  know  that.  I  am  hard  pressed  to 
understand  how  anyone  can  defend  a  system  that  says  burglar  A  goes 
to  prison  and  in  my  State  he  will  not  see  a  parole  board  for  10  months. 
At  the  end  of  that  10  months  he  will  sit  down  with  three  parole  board 
members  who  will  then  determine  what  his  sentence  will  be.  Burglar 
B,  from  another  part  of  the  State  will  come  in  with  the  same  kind  of 
crime  and  a  similar  type  of  background  and  see  a  different  set  of 
parole  commissioners  and  receive  an  entirely  different  sentence. 

Senator  Kennedy.  Let  me  ask  you :  As  I  understand  the  argument, 
they  say  that  you  need  parole  to  be  sure  of  eliminating  disparity.  They 
say  that  a  small  group  of  people,  the  parole  board,  could  assure  a 


9104 

greater  degree  of  certainty,  and  therefore  justice,  as  it  applies  to  the 
individual.  They  feel  it  is  valuable  and  worthwhile. 

How  do  you  answer  that  ? 

i\Ir.  Ward.  I  disagree  with  that  on  several  grounds.  To  begin  with, 
I  think  the  sentencing  judge  has  more  information  available  to  him 
at  the  time  of  sentencing  than  a  parole  board  has,  even  in  a  State  like 
mine  where  they  see  them  10  months  later. 

If  you  look  at  the  folders  or  the  records  of  any  of  the  inmates  who 
are  coming  before  that  parole  board  then  you  will  see  the  presentence 
report  in  which  most  of  the  information  is  contained.  If  you  are  in  a 
system  that  is  heavily  programmed,  as  my  State  is  and  many  other 
States  are,  the  man  quickly  learns  that  the  way  to  please  the  parole 
board  is  to  become  involved  in  programs.  Therefore,  he  quickly  be- 
comes involved  in  programing  to  favorably  impress  the  parole  board. 

Therefore,  what  good,  really,  is  that  10  months  in  a  controlled  en- 
vironment in  which  he  has  already  begun  to  play  the  game  so  that  he 
can  favorably  impress  that  small  board  ? 

If  you  want  to  argue  that  600  judges  will  have  more  disparity  than 
12  parole  commissioners,  then  certainly  we  cannot  argue  with  that. 
However,  I  think  that  one  of  the  most  important  decisions,  one  of  the 
most  important  roles,  that  judges  have  in  this  country — particularly 
in  large  metropolitan  districts  like  mine,  where  plea  bargaining  is 
the  name  for  more  than  9  out  of  10  defendants — is  sentencing.  To  take 
that  judicial  responsibility  and  legislative  responsibility  and  shift  it 
to  the  parole  board,  I  think  is  a  mistake. 

Senator  Kennedy.  How  do  you  deal  with  plea  bargaining?  Should 
we  be  speaking  of  guidelines  as  well  in  that  area?  Does  plea  bargain- 
ing have  a  legitimate  place  ?  If  it  does  have  a  legitimate  place  in  so- 
ciety, how  do  you  try  and  deal  with  it  in  a  way  that  is  going  to 
eliminate  disparity? 

Mr.  Ward.  Well,  I  think  plea  bargaining  is  greatly  misunderstood 
by  the  public.  If  for  no  other  reason,  the  public  ought  to  be  informed 
as  to  what  is  involved  in  it.  I  cannot  find  a  sensible  argmnent  for  ad- 
ministrative plea  bargaining.  That  is  the  kind  of  plea  bargaining  that 
serves  only  the  purpose  of  clearing  the  calendar.  The  people  have  a 
case  that  should  be  ready  to  go  to  trial  and  the  only  thing  tliat  is  stop- 
ping tliem  from  going  to  trial  is  a  ci'owded  calendar,  so  you  adminis- 
tratively plea  bargain  and  get  rid  of  the  case. 

There  really  is  no  excuse  for  1  hat.  as  I  think  Senator  Hruska  stated. 
That  ought  not  to  be  a  reason  for  not  giving  a  man  his  day  in  court 

I  think  there  were  other  cases  in  which  plea  bargaining  may  ho  ap- 
propriate^— l)articularly  in  those  jurisdictions  where  police  ofiicials  set 
the  crime.  They  charge  the  robbery  when  prosecutors  would  admit  that 
this  is  grand  larcency.  In  those  jurisdictions  where  prosecutors  over- 
indict  and  indict  for  grand  larceny  when  tliey  clearly  know  that  this 
really  would  fall  within  tlic  petty  larceny  area,  then  yoii  have  those 
t:ases. 

In  those  cases  there  is  room  for  plea  bargaining  because  clearly  there 
IS  just  no  point  in  going  forward  with  it.  In  your  State,  the  man  who 
goes  over  the  line  maybe  unkuowinjr  with  a  gini  in  his  possession 
and  may  unknowingly"  find  himself  facing  a  year.  That  ought  to  be 
plea  bargained  out. 


9105 

Senator  Kennedy.  Do  tou  think  many  of  the  abuses  of  plea  bar- 
gainino;  could  be  remedied  by  having  it  done  in  an  open  forum  or  an 
open  session  with  everything  on  the  record  ? 

jMr.  Ward.  I  really  think  so.  I  don't  know  of  anyone  supportmg  plea 
bargaining  as  it  goes  on  in  so  many  of  our  jurisdictions.  It  just  hap- 
pens. I  don't  know  of  anybody  defending  that  system  that  makes  be- 
lieve that  a  judge  is  not  a  partv  to  it. 

Senator  Kennedy.  Would  that  move  us  a  long  way  down  the  road, 

do  you  think,  in  terms  of  a  more  fair  and  equitable 

Mr.  Ward.  I  think  it  would  put  more  equity  into  the  plea  bargaining 
and  get  rid  of  some  of  the  disparity  that  goes  on  in  the  plea  bargaining 
area^My  lawyer,  if  I  could  afford *^the  right  one,  would  be  able  to  get  a 
better  deal  for  me  than  the  person  who  is  a  street  mugger  or  the  com- 
mon house  burglar  who  is  trying  to  support  a  drug  habit.  He's  got  legal 
aid,  and  he  gets  in  with  a  fellow  who  has  got  50  or  60  cases,  and  his 
plea  bargaining  is  not  going  very  far. 

Senator  Kennedy.  There  are  those  who  say  that  we  should  not 
really  get  involved  in  terms  of  recodification  until  we  deal  with  the 
social  causes  of  crime.  What  is  your  reaction  to  that? 

Mr.  Ward.  I  disagree  strongly.  That  seems  to  m.e  to  be  the  old 
excuse  for  doing  nothing  because  we  can't  do  everything.  Surely  we 
ought  to  be  dealing  with  the  root  cause  of  the  crime.  Certainly  there 
are  high  unemployment  rates  and  many  social  factors  that  perhaps 
people  could  argue  lead  to  crime.  However,  there  is  a  great  injustice 
going  on  within  the  criminal  justice  sj^stem. 

Surely,  within  the  criminal  justice  system  there  ought  to — it  ought 
to  be  the  ])lace  where  justice  ought  to  prevail.  Poor  people,  black  people 
in  particular,  and  minorities  in  general  in  this  country,  since  they  tend 
to  be  the  poor,  become  the  victims  of  this  system  that  tends  to  be  based 
upon  rehabilitation. 

With  our  great  concern  for  these  people,  we  put  them  in  prison  for 
their  own  good  under  this  system.  We  put  them  in  there  because  they 
need  rehabilitation.  We  let' some  people  whose  fathers  and  mothers 
have  millions  of  dollars  go  off  on  5  or  6  years  of  probation  because 
obviously  they  do  not  need  rehabilitation. 

The  system  operates  against  the  poor.  It  operates  against  the 
minorities.  The  fact  that  we  cannot  straighten  out  our  system  in  this 
country  to  provide  employment  for  everyone  and  equal  opportunity  for 
everyone  ought  not  to  be  tolerated  as  an  excuse  to  do  nothing  about  an 
area  where  we  can  do  something. 

Senator  Kennedy.  I  think  you  have  answered  the  second  point  that 
I  was  going  to  bring  up,  and  that  is  that,  as  Professor  Dershowitz  in- 
dicated, under  the  present  system  we  do  discriminate  against  the  black 
a,nd  the  poor  and  the  other  minorities. 

Mr.  Ward.  Absolutely,  Senator.  You  would  only  have  to  look  at  any 
State  in  this  country  to  get  rid  of  the  myth  that  minorities,  and  blacks 
in  particular,  are  not  involved  in  criminal  justice.  They  are  greatly 
involved.  They  just  happen  to  be  on  the  other  side  of  those  bars  and  on 
the  inside  of  those  walls.  That  is  where  they  are  involved.  It  is  the 
majority  population  that  is  putting  them  in  there.  In  the  name  of  re- 
habilitation we  are  imprisoning  minorities  for  their  own  good  so  that 
"we  can  help  them. 


9106 

I  think  that  what  we  are  doing — if  you  take  a  look  at  any  one  of  our 
prison  systems  you  would  be  hard  pressed  to  come  to  the  conclusion 
that  prisons  help  anyone  except  you  and  me  and  my  mother  and  my 
sister.  They  feel  better  when  that  rapist  and  that  burglar  and  that 
robber  get  punished.  That  is  what  they  think  should  happen  to  him. 

Somehow  or  other  we  have  gotten  mixed  up  in  this  society  and  come 
to  the  conclusion  that  it  is  wrong  to  say  "punish  the  person  who  breaks 
the  law  or  violates  our  codes."  It  is  not  wrong  to  do  that.  There  is  an 
expectation  that  that  will  happen.  Don't  put  him  on  the  stocks  and 
whip  him  or  put  him  in  a  chair  and  shoot  electricity  through  him  or 
some  of  these  kind  of  Draconian  solutions.  However,  there  is  absolutely 
notliing  wrong  with  separating  him  from  society  for  reasonably  siiorl: 
periods  of  time  under  relativeh'  humane  conditions  of  confinement.  It 
is  about  time  we  got  back  to  taking  a  good,  firm  look  at  that  and  admit 
that  all  criminals  are  not  sick.  Even  those  that  are  sick  we  do  not  have 
a  cure  for.  We  really  do  not  know  when  the  cure  has  taken  place. 

What  we  do  know  is  that  perhaps  there  is  some  deterrent  effect  to 
prisons.  Certainly  tliere  is  some  incapacitation  effect  to  it. 

Senator  Kennedy.  What  can  we  do  to  help  New  York  and  the  other 
State  iurisdictions?  I  don't  know  whether  there  are  any  others  like 
New  York,  but  what  can  we  do  ? 

Mr.  Ward,  Well,  I  started  to  say  "send  money."  However,  aside  from 
that,  I  think  that  the  reason  I  am  here  and  the  reason  I  expressed  the 
willingTiess  to  be  here  is  that  I  think  there  is  so  much  confusion  in  Xew 
York,  as  well  as  around  this  country,  on  this  whole  issue  of  indeter- 
minacy and  the  whole  question  of  rehabilitation.  We  need  some  guid- 
ance from  the  Federal  level  in  the  direction  that  corrections  ought  to 
go — maybe  not  for  the  next  100  years,  but  certainly  after  100  years  of  a 
model  that  has  not  worked,  and  which  no  one  is  defending  today. 

I  tliink  that  this  bill  goes  a  long  way  toward  giving  that  direction. 

Seiiator  Kennedy.  I  would  just  like  to  hnmmer  home  one  final  point. 
This  is  repeating  a  previous  question,  but  I  think  it  is  im]")oi'tanf.  The 
question  is:  If  3'ou  have  the  minimums  and  maximums  within  a  guide- 
line, there  have  been  those  who  say  we  ought  to  have  it  very  narrow  for 
every  crime.  For  every  crime  we  ought  to  have  jnst  one  flat  time.  We 
have  tried  to  have  a  very  narrow  range  of  flexibility.  It  might  be  6  to 
8  years — ^but  we  have  to  try  and  define  it. 

Do  you  think  that  that  kind  of  protection  which  we  have  included  in 
the  sentencing  provisions  is  sufficient  to  meet  the  kind  of  extenuating 
circumstances  which  may  arise? 

Mr.  Ward.  Yes,  Senatoi'.  T  can't  stress  it  too  strongly.  T  think  Pro- 
fessor Dershowitz  was  absolutely  correct.  There  are  no  typical 
offenders,  but  when  you  look  at  a  large  agirregate  of  offenders  tliere 
does  seem  to  be  a  kind  of  typical  offender.  It  is  no  one  person,  but  one 
that  you  can  put  together. 

Cei-tainly.  you  can  design  a  i-ange  of  sentences  that  take  into  con- 
sideration the  extenuating  circumstances.  The  person  who  slioidd  2:et 
less  and  the  person  who  should  !"-et  moi-e  could  be  inrlnded  in  that 
range.  If  that  is  not  sufficient,  this  bill  gives  enough.  Wliat  this  bill 
does  is  to  allow  increases  in  sentences  or  decreases  in  sentences  to  be 
written  on  the  record  with  reasons  given  for  why  it  is  done.  I  think 
that  gives  enough  flexibility  to  the  statute  to  encompass  these  unusual 
cases  without  going  into  a  straight  indeterminate  sentence. 


9107 

Senator  Kexneot.  Just  briefly,  and  finally,  do  you  think  this  bill 
is  anti-civil-libertarian,  in  terms  of  tryino^  to  address  this  particular 
issue  in  the  way  that  we  have  approached  it  ? 

Mr,  "VVaed.  Not  at  all.  That  is  one  of  the  main  reasons  that  I  am 
here.  It  is  not  at  all  anti-civil-libei-tarian  in  my  regard.  I  would  sug- 
gest that  if  there  were  some  way  that  you  could  get  into  a  prison  and 
speak  to  the  prisoners  you  would  find  that  they  would  agree  with 
what  I  say. 

The  most  discouraging  thing  and  the  most  uncivil  thing  is  to  not 
know  when  you  are  going  to  get  out  of  prison.  Prisoners  are  ready  to 
accept  some  measure  of  deprivation  of  liberty  for  what  they  have 
done.  However,  they  are  not  willing  to  accept  open-ended  punishment. 
There  should  be  an  end  to  the  concept  of  "'treatment  until  cured."  We 
do  not  laiow  when  the  cure  takes  place. 

Senator  Kennedy.  That  was  excellent  testimony. 

iSIr.  Ward.  Thank  3- ou. 

Senator  Kennedy.  It  was  very,  veiy  helpful.  We  are  going  to  be 
^working  with  you. 

The  subcommittee  stands  in  recess. 

[Whereupon,  at  3:10  p.m.,  the  subcommittee  stood  in  recess.] 


CRI3IINAL  CODE  REFORM  ACT  OF  1977 


TUESDAY,  JUNE  21,  1977 

U.S.  Senate, 
Subcommittee  on  Criminal  Laws 

AND    PkOCEDURES    OF   THE 

Committee  on  the  Judiciary, 

Washington^  D.C. 

The  subcommittee  met,  pursuant  to  recess,  at  9  :o3  a.m..  in  room 
2228,  Dirksen  Senate  Office  Building,  Senator  Strom  Thurmond 
(acting  chairman  of  the  subcommittee)  presiding. 

Present :  Senators  Kennedy  and  Thurmond. 

Staff  present:  Paul  C.  Summitt,  chief  counsel;  D.  Eric  Hultman, 
minority  counsel ;  Paul  H.  Robinson,  counsel ;  Kenneth  Feinberg, 
counsel  to  Senator  Kennedy;  and  Mabel  A.  Downey,  chief  clerk. 

Senator  Thurmond.  The  subcommittee  will  come  to  order. 

Our  first  witness  this  morning  is  Prof.  Thomas  I.  Emerson,  Yale 
School  of  Law,  on  behalf  of  the  National  Committee  Against  Repres- 
sive Legislation. 

Mr.  JEmerson,  since  we  have  a  lot  of  witnesses  today,  I  would  sug- 
gest that  your  entire  prepared  statement  be  included  in  the  record, 
and  then  you  may  summarize  if  you  are  agreeable  to  that. 

STATEMENT  OF  PROF.  THOMAS  I.  EMERSON,  YALE  SCHOOL  OF  LAW, 
ON  BEHALF  OF  THE  NATIONAL  COMMITTEE  AGAINST  REPRESSIVE 
LEGISLATION 

Mr.  Emerson.  Yes ;  that  is  agi-eeable. 

I  should  say  that  the  statement  has  the  approval  not  only  of  myself, 
but  of  Prof.  Vern  Countryman  of  the  Harvard  Law  School  as  well 
as  Prof.  Carole  Goldberg  of  the  law  school  at  the  University  of  Cali- 
fornia at  Los  Angeles. 

[The  material  follows :] 

Pkepaeed  Statement  of  Thomas  I.  Emerson,  Lines  Professob  of  Law, 

Emeritus 

S.  1437,  introduced  in  tlie  Senate  jointly  by  Senator  McClellan  and  Senator 
Kennedy,  represents  the  latest  proposal  for  codification  and  revision  of  the 
Federal  criminal  laws.  The  bill  is  the  result  of  a  compromise,  reached  after  long 
negotiations,  between  Senator  McClellan  and  Senator  Kennedy.  It  is  a  revision 
of  S.  1,  the  notorious  bill  that  was  smothered  in  the  Senate  in  1976  as  a  result 
of  widespread  popular  opposition. 

S.  1437  is  a  substantial  improvement  over  S.  1,  as  will  be  noted  below.  Never- 
theless, S.  1437  retains  a  large  number  of  provisions  which,  individually  and  in 
totality,  are  gravely  detrimental  to  the  American  system  of  individual  rights. 

(9109) 


9110 

We  must  therefore  oppose  it.  We  continue  to  support  revision  and  codification 
of  tlie  Federal  Criminal  Code.  But  we  do  not  believe  that  such  reform  should  be 
achieved  at  the  price  of  sacrificing  our  civil  liberties. 

The  many  features  of  S.  1437  which  are  repressive  on  their  face  or  in  potential 
application  can  be  grouped  under  the  following  categories : 

(1)  The  inchoate  offenses — attempt,  conspiracy,  and  the  new  crime  of  solicita- 
tion— are  dangerously  vague  and  overbroad,  and  have  enormous  possibilities  for 
oppressive  use. 

(2)  While  dropping  the  original  provisions  of  S.  1  dealing  with  the  publication 
of  national  defense  and  classified  information,  S.  1437  does  not  eliminate  the 
dangers  of  establishing  an  official  secrets  act  as  part  of  our  law,  thereby  im- 
posing unprecedented  restrictions  upon  freedom  of  speech  and  of  the  press. 

(3)  A  series  of  provisions  attempting  to  protect  the  executive  branch  of  gov- 
ernment from  the  impact  of  political  opposition — including  the  new  crimes  of 
obstructing  government  functions  by  fi-aud  and  by  physical  interference — would 
seriously  hamper  many  forms  of  political  expression. 

(4)  The  sections  attempting  to  protect  the  .iudicial  process — including  provi- 
sions against  "improperly"  impairing  the  administration  of  justice  and  "resist- 
ing" a  court  order — could  be  usetl  to  limit  drastically  legitimate  activities 
directed  against  judicial  proceedings  deemed   to   be  unfair  or  oppressive. 

(.5)  The  attempt  to  shield  military  and  defense  operations  from  political  op- 
rosition^including  the  offenses  of  impairing  military  effectiveness  and  of  ob- 
structing military  recruitment — go  substantially  beyond  what  is  necessary  or 
proper  in  a  democratic  society  which  treasures  the  principle  of  civilian  control 
over  the  military. 

(6)  Provisions  affecting  the  right  of  assembly  and  demonstration — particu- 
larly the  new  crime  of  failing  to  obey  a  public  safety  order — could  be  used  ro 
curtail  seriously  the  most  effective  form  of  political  expression  available  to 
those  without  access  to  the  mass  media. 

(7)  The  dangers  inherent  in  political  investigations  and  political  surveillance 
are  enlarged  by  several  provisions,  particularly  the  reenactment  of  use  immunity, 
available  in  grand  jury  proceedings,  and  the  creation  of  the  crime  of  making 
a  false  statement  to  any  enforcement  oflScial. 

(5)  Safeguards  in  the  administration  of  criminal  justice  are  reduced  by,  sev- 
eral provisions,  including  one  which  would  undermine  the  requirement  of  Miranda 
warnings  in  police  interrogation,  and  one  sanctioning  the  use  of  illegally  obtained 
evidence  in  sentencing  proceedings. 

(9)  The  extortion  and  blacl<mail  sections,  a.s  well  as  other  provisions,  bring 
a  wide  range  of  legitimate  labor  union  activities  under  Federal  control. 

(10)  Tile  trend  of  the  Burger  Court  toward  removing  Federal  protections 
against  infringement  of  individual  rights  is  encouraged  and  accentuated  by 
expressly  mandating  the  use  of  community,  rather  than  national,  standards  in 
obscenity  ca.ses. 

(11)  Reform  of  the  penalty  and  sentencing  procedures  is  undercut  by  provid- 
ing mandatory  .sentences  for  some  offen.ses  and  by  delegating  the  task  of  achiev- 
ing uniformity  in  sentencing  to  a  Sentencing  Commission  to  be  appointed  at  a 
later  date. 

(12)  Probation  and  parole  reforms  do  not  conform  to  the  progressive  proposals 
made  by  tlie  Brown  Commission. 

There  are  iniiirovements  in  S.  1437  as  compared  with  S.  1.  S.  1-437  omits  the 
sections  which  wonld  have  created  an  official  secrets  act  and  allowed  government 
officials  the  Nurenborg  defense;  it  deletes  the  provision  nullifying  the  insanity 
defense:  it  removes  tho  definition  which  wonld  have  authorized  the  police  to 
engnge  in  virtually  unrestricted  entrapment:  and  it  contains  a  hundred  or  more 
similar  omissions  and  modifications  of  some  of  the  reactionary  provisions  of  S.  1, 
The  new  bill  al'^o  contains  some  important  gains  over  existing  law,  including 
the  repeal  of  the  Smith  Act:  a  more  effective  version  of  tlie  laws  i)rohil)iting 
interference  with  political  and  civil  rights:  a  more  sensitive  rape  statute:  .some 
improvement  in  the  wiretap  law;  and  decriminalization  of  the  possession  of 
small  amonnts  of  marijuana.  As  a  systematic  codification  of  the  existing  jumbled 
statutes  S.  1437  has  some  deficiencies,  but  it  does  make  significant  progress  in 
removing  inconsistencies,  ambiguities  and  obsolescences  from  our  Federal  Crim- 
inal Code. 


9111 

These  advantages  over  S.  1,  however,  cannot  be  grounds  for  supporting  S.  1437 
so  h)ng  as  so  many  objectionable  provisions  remain.  It  is  unlilcely  that  the  bill 
can  be  successfully  amended.  Omnibus  legislation  of  this  nature  is  subject  to 
very  limited  change  in  the  course  of  the  legislative  process.  The  difficulties  of 
securing  amendments  are  accentuated  in  this  case  because  Senator  Kennedy,  the 
chief  liberal  sponsor  of  the  bill,  is  committed  to  support  the  whole  bill  and  is  not 
in  a  position  to  advocate  or  acquiese  in  large-scale  amendments.  Hence  the  only 
satisfactory  procedure  is  to  start  the  legislative  process  with  an  acceptable  bill. 
We  believe  the  Kastenmeier  bill,  introduced  in  the  House  last  year  as  H.R. 
12504,  and  in  the  present  session  by  Representative  Cohen  as  H.R.  2311,  can 
serve  this  function.  We  therefore  urge  that  H.R.  2311,  rather  than  S.  1437,  be 
used  as  the  instrument  for  considering  Federal  Criminal  Code  reform. 

A  more  detailed  analysis  of  the  principal  provisions  of  S.  1437  that  conflict  with 
our  system  of  individual  rights  is  set  forth  below.  Before  proceeding  to  that 
analysis,  however,  one  general  point  should  be  emphasized.  Virtually  all  criminal 
offenses  require  that  an  intent  to  commit  the  crime  be  shown,  and  in  some  in- 
stances, a  particular  kind  of  intent  must  be  demonstrated.  Moreover,  the  drafters 
of  a  provision  may  be  concentrating  on  a  specific  form  of  conduct  and  may  not 
mean  to  cover  other  forms  of  activity  within  their  prohibition.  The  actual  impact 
of  a  proposed  provision,  however,  cannot  be  judged  on  the  assumption  that  prose- 
cutors or  juries  will  make  refined  distinctions  about  the  mental  state  of  the 
accused,  especially  an  unpopular  accused,  or  that  courts  will  limit  the  scope  of  a 
provision  to  the  primary  focus  of  the  original  authors.  Nor  is  it  safe  to  pass  laws 
on  the  theory  that  only  wi.se  and  benevolent  government  ofl3cials  will  be  the  ones 
to  enforce  them.  If  we  are  to  preserve  our  system  of  individual  rights  a  far  more 
demanding  standard  must  be  applied. 

1.   INCHOATE    CRIMES 

Attempt,  conspiracy,  complicity  and  solicitation  are  all  inchoate  crimes.  They 
punish,  by  criminal  penalty,  not  the  actual  conduct  which  constitutes  the  social 
evil  but  conduct  prior  to  the  occurrence  of  the  evil  or  conduct  by  persons  on  the 
periphery  who  did  not  themselves  actually  participate  in  the  crime.  Traditionally 
inchoate  crimes  have  been  used  as  dragnet  devices  to  permit  the  government  to 
extend  the  scope  of  its  control  over  wrongful  activity.  Moreover,  the  procedures 
for  proof  and  trial  of  these  offenses  are  likely  to  be  inherently  unfair.  Not  only 
are  the  rules  of  evidence  relaxed,  in  order  to  allow  easier  proof  of  states  of 
mind,  but  the  linking  of  those  at  the  center  of  the  offense  with  tho.se  on  the 
boundaries  inevitably  creates  a  built-in  prejudice  against  the  latter. 

Inchoate  crimes  may  have  some  justification  in  dealing  with  organized  crime, 
drug  offenses,  or  the  anti-trust  laws.  But  they  pose  serious  dangers  for  offenses 
occurring  in  the  course  of  political  opposition  to  the  government.  They  can  be  used 
to  prosecute  or  harass  many  individuals  who  participate  in  group  political 
activity  by  making  everyone  associated  with  the  group  liable  for  the  offenses  of 
a  few  militant  members,  or  for  the  conduct  of  an  agent  provocateur.  They  have, 
in  short,  an  extreme  chilling  effect  upon  legitimate  political  expression. 

The  inchoate  crimes  incorporated  in  S.  1437  are  sweeping  in  their  impact. 
Section  1001  (Criminal  Attempt)  provides  that  a  person  is  guilty  of  an  offense  if 
"he  intentionally  engages  in  conduct  that,  in  fact,  amounts  to  more  than  mere 
preparation  for  the  commission  of  the  crime,  and  that  indicates  his  intent  that 
the  crime  be  completed."  This  would  mean  that  a  person  who  planned  with  others 
to  picket  a  courthouse  (a  Federal  crime  under  Section  1328)  and  then  walked  in 
the  direction  of  the  courthouse  would  be  guilty  of  an  offense  even  though  he  or 
she  never  reached  the  courthouse  or  picketed  there.  There  is  no  reason  for  the 
government  to  have  the  power  to  make  such  conduct  criminal  so  far  in  advance  of 
the  event. 

Section  1002  (Criminal  Conspiracy)  makes  it  an  offense  if  an  individual  "agrees 
with  one  or  more  persons  to  engage  in  conduct,  the  performance  of  which  would 
constitute  a  crime  or  crimes,  and  he  or  one  of  such  persons  in  fact  engages  in 
any  conduct  with  intent  to  effect  any  objective  of  the  agreement."  Like  the  tradi- 
tional conspiracy  statute,  all  that  is  really  required  to  constitute  the  crime  is  an 
expression  of  agreement  to  commit  the  offen.se ;  after  that  any  conduct  by  any 
party  to  the  agreement  which  the  jury  finds  was  intended  to  effectuate  any  ob- 
jective of  the  agreement  completes  the  proof  necessary.  Under  this  provision  any 
person  present  at  a  meeting  where  it  was  agreed  to  block  construction  of  an  iuter- 
92-465 — 77 35 


9112 

state  highway  through  a  part  (a  Federal  crime  under  Section  1302)  would  lie 
guilty  of  criminal  conspiracy  even  though  he  or  she  never  participated  in  the 
demonstration. 

Section  401  (Liability  of  an  Accomplice)  establishes  a  general  offense  of  com- 
plicity. This  makes  a  person  "criminally  liable  for  an  offense  based  upon  the 
c*onduct  of  another  person  'if  he  knowingly  aids  or  abets  the  commission  of  tlie 
offense  by  the  other  person."  The  term  "abet"  is  defined  in  Section  111  to  in- 
clude, not  only  "procure"  or  "command",  but  "counsel"  or  "induce."  Thus  a 
I)erson  who  advises  another  person  not  to  tell  the  whole  tnith  wlien  an  FBI 
agent  calls  at  the  door  (a  Federal  crime  under  Section  134.3)  would  be  cruiUy  of 
a  crime.  So  would  a  person  who  advised  a  young  man  to  avoid  the  draft  by 
emigrating  to  Canada  (a  Federal  crime  under  Section  1114). 

Most  dangerous  of  all  is  Section  1003  (Criminal  Solicitation  1.  This  section 
creates  a  new  Federal  crime,  the  crime  of  "criminal  solicitation"  :  "A  jxM-son 
is  guilty  of  an  offense  if,  with  intent  that  another  person  engage  in  conduct 
constituting  a  crime,  and,  in  fact,  under  circumstances  strongly  corroborative 
of  that  intent,  he  commands,  entreats,  induces,  or  otherwise  endeavors  to  per- 
suade such  other  pei-son  to  engage  in  such  conduct."  By  the  terms  of  this  all- 
embracing  provision  any  discussion  of  political  tactics  which  might  involve 
commission  of  a  Federal  offense,  such  as  "obstructing  a  government  function  by 
fraud"   (Sec.  1301).  could  be  the  basis  of  a  crimuial  prosecution. 

It  is  true  that  S.  1437,  recognizing  the  danger  of  these  catch-all  crimes,  exempts 
from  their  coverage  an  attempt,  con.spiracy  or  solicitation  to  commit  the  crimes 
of  obstructing  military  recruitment,  inciting  or  aiding  mutiny  or  insubordina- 
tion in  the  armed  forces,  and  leading  a  riot  (Sec.  10U4(b)).  (It  a!.so  exemjits 
anti-trust  violations).  Rut  this  palliative  has  little  meaning.  The  crime  of  com- 
plicity is  not  inclndetl.  And  many  other  criminal  offenses  which  may  be  in- 
volved when  political  activity  takes  place,  such  as  those  mentitmed  above,  are  ncit 
exempted. 

The  fact  is  that,  in  attempting  to  codify  and  thereby  generalize  the  inchoate 
offenses.  S.  1437  has  gone  far  beyond  what  is  necessary  to  maintain  the  integrity 
of  the  democratic  process  against  illegal  conduct  and  has  cut  deeply  into  funda- 
mental political  rights.  The  inchoate  crimes  in  Federal  law  should  be  limited 
to  a  few  specified  offenses. 

2.    OFFICIAL    SECRETS 

S.  1437  has  dropped  the  provision  of  S.  1  which  would  have  establishefl  an 
official  secrets  act.  that  is,  would  have  made  the  jiublication  or  dissemination 
of  classified  or  national  defense  informaticm  by  anyone^  at  any  time  a  criminal 
offense.  Instead  S.  1437  reen.acts  Sections  793.  794  (a).  (b»  and  (c).  and  798 
of  Title  18  of  the  present  Code,  and  Sections  4(b)  and  4(el  of  the  Subversive 
Activities  Control  Act  of  19.50.  This  modification  of  S.  1  leaves  existing  law  in 
effect.  But  it  does  not  eliminate  serious  dangers  to  freedom  of  speech  and  the 
press  that  exist  in  the  present  state  of  the  law.  (hi  the  contrary  it  accentuates 
those  dangers.  The  threat  to  freedom  of  expression  is  evident  from  the  following 
facts : 

(1)  Much  of  the  legislation  left  in  effect  goes  far  beyond  the  needs  of  a  proper 
espionage  law.  It  is  in  fact  the  product  of  the  hysteria  and  repression  of  the 
McCarthy  i)erir)d.  This  is  true  of  Sectitni  4(b)  and  4(c)  of  Ihe  Subversive  Ac- 
tivities Control  Act  of  19r)0  (originally  flie  Mundt-Nixon  bill),  and  Section  705. 
which  was  Section  18  of  the  same  legislation.  Most  of  tbc  Subversive  .\ctivities 
Control  Act  has  been  declared  unconstitutional  by  (he  Supreme  Court,  and  the 
Subver.sive  Activities  Control  Board  is  now  defunct.  The  remaiiiimr  i)rovisions 
of  that  infamous  law  ought  not  to  remain  on  the  books  in  any  reform  of  the 
Criminal  Code. 

(2)  The  government  has  consistently  claime<l,  in  the  Fllsbcrg  case  and  else- 
where, that  the  present  statutes  should  be  interpreted  as  imixising  an  odicial 
.secrets  act.  In  fact  the  Department  of  .lustice  took  the  iMtsilion  that  the  provisions 
includetl  in  S.  1  did  not  change  the  existing  law.  Under  these  circumstances  it 
would  be  a  disaster  not  to  repudiate  the  government's  interpretation  of  the 
provisions  left  in  operation  by  S.  1437. 

(3)  llie  impact  of  an  oflicial  secrets  act  could  be  obtained  under  S.  1437, 
anart  from  tbe  csi)ionage  provisions,  as  a  result  of  Section  1.301  tObstrufting  a 
Covernment  Function  by  Fraud).  It  could  easily  be  asserted,  under  this  section. 
that  obtaining  or  publishing  classified,  defense,  or  other  information  without 


9113 

the  government's  consent  impairs  a  government  function  tlirough  fraud.  That 
this  clanger  is  real  is  evidenced  by  the  fact  that  in  the  Ellsberg  prosecution  one 
of  tlie  charges  brouglit  by  the  government  was  that  p]llsberg  and  Russo  had 
violated  IS  U.S.C.  §  371  by  conspiracy  "to  defraud  the  government."  The  pres- 
ence of  Section  1301  in  S.  1437  is  virtually  equivalent  to  retaining  the  original 
official  secrets  provision  of  S.  1. 

(4)  Other  provisions  of  >S.  1437  might  also  be  construed  to  restrict  the  pub- 
lication or  dissemination  of  material  the  government  wishes  to  keep  secret. 
These  include  Sections  1731  (Theft),  1732  (Trafficking  iu  .Stolen  Proiierty),  and 
1733  (Receiving  Stolen  Property)  ;  Section  1525  (Revealing  Private  Informa- 
tion Submitted  for  a  Government  Purpose)  ;  and  Section  1524  (Intercepting 
Corresix>ndence) . 

The  only  way  to  avoid  the  likelihood  of  serious  repression  is  to  limit  criminal 
prosecution  for  the  dissemination  of  government  secrets  to  a  simple  and 
straightforward  espionage  provision,  such  as  that  proposed  in  the  Kastenmeier 
bill  (See.  1121  and  1122  of  H.R.  2311). 

3.    POLITICAL   OPPOSITION   TH,\T  INTERFERES   AVITH   GOVERNMENT   OPERATIONS 

One  of  the  principal  objectives  of  the  original  S.l  was  to  enact  legislation 
which  would,  in  numerous  ways,  shield  government  functions  and  government 
operations  from  the  impact  of  political  opposition  such  as  that  expressed  in  the 
civil  rights  movement  and  the  peace  movement  of  the  l'J(JOs  and  early  1970's.  A 
substantial  residue  of  these  provisions  remain  in  S.  1437. 

Section  1111  (Sabotage)  makes  it  a  crime  to  damage,  tamper  with,  contaminate, 
or  defectively  make  or  repair  "'any  property  used  in,  or  particularly  suited  for 
use  in,  the  national  defense"  that  is  owned  by  or  being  produced  for  the  United 
States ;  "any  facility  that  is  engaged  in  whole  or  in  part"  for  the  United  States  in 
"furnishing  defense  materials  or  services"  or  "producing  raw  materials  necessary 
to  the  support  of  a  national  defense  production  or  mobilization  program"  ;  and 
"any  public  facility,"  defined  as  "a  facility  designed  for  use.  or  iised,  as  a  means 
of  national  defense"  or  "a  facility  of  a  police,  fire,  or  public  health  agency"  (Sec. 
111).  Ihe  offense  must  be  committed  "with  intent  to  impair,  interfere  with,  or 
obstruct  the  ability  of  the  United  States  or  an  associate  nation  to  prepare  for  or 
engage  in  war  or  defense  activities"  ;  but  this  is  hardly  a  limitation,  as  such  an 
intent  tould  be  found  by  a  prosecutor  or  jury  in  almost  any  case  of  damage  to 
government  or  defense  property  that  was  not  accidental.  Moreover,  Section  1112, 
discussed  below,  eliminates  even  this  requirement  of  intent. 

A  statute  directed  against  sabotage  is  necessary.  But  Section  1111  goes  much 
too  far.  It  would  apply  to  damage  to  most  government  property,  all  police  and 
tire  facilities,  and  an  enormous  sector  of  American  industry.  It  would  be  appli- 
cable to  any  political  assembly  or  demonstration  where  incidental  damage  to 
property  or  obstruction  of  a  facility  resulted.  It  would  also  be  applicable  to 
many  labor  disputes,  where  damage  to  property  is  not  unusual,  and  perhaps  to 
other  labor  activities  such  as  boycotts.  Thei-e  is  no  reason  why  traditional  State 
and  local  laws  against  destruction  of  property  are  not  adequate  to  deal  with 
most  of  the  problem.  Federal  laws  against  sabotage  should  be  confined  to  mili- 
tary in-operty  or  services. 

Section  1301  (Obstructing  a  Government  Function  by  Fraud)  introduces  a  new 
crime.  A  person  is  guilty  of  this  offense  if  he  "intentionally  obstructs  or  impairs 
a  governmental  function  by  defrauding  the  government  in  any  manner."  There 
seems  to  be  no  logic  or  limit  to  the  scope  of  this  crime.  A  person  could  commit 
it  by  givinrr  a  postman  the  wrong  directions  to  a  house.  A  businessman  would 
lie  guilty  if  he  engaged  in  some  deception  in  fulfilling  a  government  contract.  Or 
a  politir-al  activist  might  be  in  violation  if  he  used  a  trick  to  avoid  surveillance 
by  an  FBI  agent.  On  a  more  sinister  level  Section  1301,  as  noted  above,  could 
perform  the  function  of  an  official  secrets  act.  There  is  no  justification  for  any 
su"h  amorphous  crime. 

Section  1302  (Obstructing  a  Government  Function  by  Physical  Interference) 
also  prov)o«es  a  new  crime.  This  offense  is  committed  by  a  person  if,  "by  means 
of  pliysical  interference  or  obstacle,  he  intentionally  obstructs  or  impairs  a 
government  function"  involving  "the  performance  by  a  federal  public  servant 
of  an  official  diity,"  or  "the  exercise  of  a  right,  or  the  performance  of  a  duty" 
bv  anv  one  under  a  court  order  or  judgment.  The  only  defense  is  if  the  govern- 
ment function  was  "unlawful"  and  "conducted  by  a  public  servant  who  was  not 


91U 

acting  in  good  faith."  There  are  no  other  limitations.  Any  physical  interference 
or  obstacle,  impairing  nnit  government  function,  under  auji  circumstances,  is  the 
basis  fi)r  up  to  a  year  in  prison.  A  demonstration  that  partially  blocks  a  post 
office,  a  refusal  to  open  the  door  to  a  marshal  serving  a  subpoena,  contimiation 
of  picketing  after  a  patently  invalid  injunction  issued  by  a  jud;re  "acting  in  good 
labor  union  activities.  A  provision  of  this  sort  should  be  .strictly  limited  to  specific 
faith,"  all  would  be  subject  to  criminal  prosecution.  So  might  numerous  forms  of 
areas,  su"h  as  interference  with  the  mails  or  with  gMvernment  inspection. 

Two  other  provisions  give  over-protection  to  government  operations  and  under- 
protection  to  political  di.ssent.  Section  1334  (Obstructing  a  Proceeding  by  Dis- 
orderly Conduct)  makes  it  an  offense  if  a  person  obstructs  or  impairs  an  official 
t)r(needing  "by  means  of  unreasonable  noise,"  by  means  of  violent  or  tumultous 
behavior  m-  disturbance,  or  "by  similar  means."  Section  135S  (Retaliating  Against 
a  Public  Servant)  punishes  a  person  who  "improperly  subjects  another  person 
to  economic  loss  or  injury  to  his  business  or  profession  .  .  .  because  of  an  official 
action  taken  ...  or  because  of  the  status  of  a  per.son  as  a  public  servant."  Both 
of  these  provisions  are  excessively  vague  and  overbroad  and  Section  13o4  imjioses 
ab>-'urd!.v  high  penalties  for  the  nature  of  the  offense.  ^loreover.  like  the  other 
provisions  discussed  above,  they  would  only  be  applied  on  a  highly  selective 
ba^is.  against  unpopular  or  minority  groups. 

4.    POLITICAL   OPPOSITION    TO    JUDICIAL   PROCEEDIJTGS 

S.  1437  also  inherits  a  group  of  provisions  from  the  original  S.  1  that  attempted 
to  curtail  political  opposition  directed  against  actions  of  the  judicinry.  Section 
1323  (Tampering  with  a  Witness  or  an  Informant),  after  including  the  usual 
provisions  against  using  force,  threat,  intimidation  or  deception  to  influence  a 
judicial  or  other  official  proceeding,  goes  on  to  make  it  also  an  offense  to  do 
"any  other  act  uith  intent  to  influence  improperly,  or  obstruct  or  impair,"  the 
administration  of  an.v  law  or  the  exercise  of  a  legislative  power  of  inquiry.  This 
provision  could  readily  be  used  to  suppress  or  inhibit  many  forms  of  legitimate 
opposition  to  judicial,  administrative  or  legislative  proceedings.  The  word  "im- 
properly" has  no  clear  meaning,  hut  obviously  includes  more  than  illegal  conduct : 
the  word  "impair,"  which  is  not  even  qualified  by  the  term  "improperly,"  could 
include  any  kind  of  effective  olijection  to  an  official  proceeding.  Thus  organizing 
a  demonstration  to  protest  the  conduct  of  a  political  case,  or  to  oppose  a  legi.s- 
lative  committee  like  the  House  Un-American  Activities  Committee,  would  fall 
within  the  ban  of  the  statute. 

Section  1328  (Demonstrating  to  Influence  a  .Tudicial  Proceeding)  prohibits 
picketing,  parading,  displaying  a  sign,  using  a  sound  amplifying  device,  or  other- 
wise demonstrating  within  200  feet  of  a  Federal  courthouse,  while  ant/  judicial 
proceeding  is  in  progress,  or  at  any  time  within  200  feet  of  a  building  occupied  by 
a  judicial  official.  The  section  is  entirely  too  broad:  the  judicinj\v  does  not  need, 
and  should  not  have,  that  kind  of  isolation  from  public  opinion.  Judicial  pro- 
ceedings, like  all  government  activity,  ought  not  to  be  immune  from  public 
criticism  or  influence.  At  most,  a  judicial  proceeding  needs  protection  only  from 
violence  or  physical  intinu'dation.  Tlie  provision  should  be  so  linnt(>d. 

Section  1331  (Criminal  Contempt)  makes  it  an  offense  not  only  to  diso])ey  but 
to  "resist"  a  court  order.  ^Moreover,  the  fact  that  the  court  order  is  "clearly 
invalid"  is  no  defense  for  refusal  to  obey  so  long  as  there  has  been  a  reasonable 
opportunity  to  obtain  court  review  or  a  stay  of  the  order,  even  though  such  ap- 
peal did  not  result  in  relief.  The  same  language  is  repented  in  Section  133.") 
(Disobeying  a  Judicial  Order),  where  a  higlu^r  penalty  is  applicable.  The  term 
"resist"  could  include  any  form  of  opposition  to  a  court  order  and  is  sul\iect  to 
serious  abuse.  The  refusal  to  allow  a  defense  that  the  court  order  is  "clearly 
invalid"  puts  every  person  at  the  mercy  of  every  judge.  If.  for  ex.imple.  a  judge 
issued  a  gag  order  against  a  newspaper,  enjoining  publication  of  information 
about  a  pending  trial,  even  thougli  the  order  was  "clearly  invalid,"  the  newspaper 
could  not  publish  the  material  but  would  have  to  await  the  outcome  of  a  long 
appellate  ju-ocess.  By  the  time  the  right  to  be  free  from  censorship  had  been  es- 
tablished, the  material  would  long  since  have  lost  its  value  as  news. 

Judicial  proceedings  deserve  their  share  of  protection.  But  the  provisions  of  S. 
1437  go  far  beyond  the  necessary  limits  and  impair  important  rights  of  free 
expression. 


9115 

5.    OPPOSITION    TO    WAR    OR    DEFENSE 

The  crucial  test  of  a  system  of  freedom  of  expression  is  whether  it  can  operate 
effectively  under  the  pressures  of  war  or  defense  preparations.  We  have  seen  in 
the  Viet  kam  War  how  iraiwrtant  it  is  that  the  channels  of  political  discourse  be 
kept  open  during  a  period  of  hostilities.  The  provisions  of  -S.  1437  dealing  with 
this  problem  unfortunately  do  not  afford  the  protections  to  political  opposition 
that  we  have  learned  by  past  experience  are  essential  in  a  democratic  society. 

Section  1115  (Obstructing  Military  Recruitment  or  Induction)  makes  it  an 
offense  if  a  person,  in  time  of  war  and  with  intent  to  interfere,  "creates  a  physi- 
cal interference  or  obstacle  to  the  recruitment,  conscription,  or  induction"  of 
persons  into  the  armed  forces,  or  "incites  others"  to  evade  military  service.  The' 
term  "war"  includes  not  only  a  declared  war  but  a  situation  in  which  the  armed 
forces  are  engaged  in  hostilities  (Sec.  111).  The  term  "incites"  means  "to  urge 
other  persons  to  engage  imminently  in  conduct  in  circumstances  nnder  which  there 
is  a  substantial  likelihood  of  imminently  causing  such  conduct."  (Sec.  111). 
Picketing  in  front  of  an  induction  center  could  be  held  illegal  under  this  section. 
Likewise  conduct  such  as  signing  the  "Call  to  Resist  Illegitimate  Authority"  (to 
which  over  300  prominent  people  attached  their  names  during  the  Viet  Nam 
War),  the  urging  of  young  men  to  turn  in  or  burn  their  draft  cards,  and  counsel- 
ing a  conscientious  objector  not  to  register  for  the  draft,  would  all  fall  within  the 
prohibition.  Effective  expression  of  opposition  to  a  war  deemed  unjust  could  thus 
be  suppressed. 

Section  1116  (Inciting  or  Aiding  Mutiny,  Insubordination,  or  Desertion)  makes 
it  an  offense  if  a  person  "incites"  members  of  the  armed  force  to  engage  in  mu- 
tiny, insubordination,  refusal  of  duty  or  desertion  or  "aids  or  abets"  the  com- 
mission of  mutiny  or  desertion.  "Incites"  is  defined  as  above,  and  "abets" 
includes  "counsels"  (Sec.  111).  Here  again  the  criminal  net  is  spread  too  indis- 
criminately. The  provision  would  extend  to  a  forcefully  written  article  or  pamph- 
let opposing  the  war  or  objecting  to  conditions  in  a  military  installation,  so  long 
as  such  material  might  reach  the  hands  of  members  of  the  armed  forces.  In  short, 
the  provision  would  tend  to  isolate  military  operations  fi'om  civilian  criticism. 

Finally,  Section  1112  (Impairing  Military  Effectiveness)  makes  it  an  offense 
for  any  person  to  engage  in  sabotage  (as  set  forth  in  Section  1111,  noted  above), 
whether  or  not  such  person  has  the  intent  to  interfere  with  the  ability  of  the 
I'nited  States  to  prepare  for  or  engage  in  war  or  defense  activities,  but  merely 
if  the  person  acted  "in  reckless  disregard  of  the  risk"  that  his  conduct  would 
do  so.  Thus  the  section  makes  it  a  Federal  offense  to  engage  in  virtually  any 
conduct  that  damages  facilities  connected  in  any  way  with  defense,  including 
police,  fire  and  health  agencies,  without  regard  to  the  purpose  which  motivated 
the  conduct. 

6.    ASSEMBLIES   AND   DEMONSTRATIONS 

Assemblies,  demonstrations,  picketing,  leafleting,  and  canvassing  constitute 
the  "poor  person's  media,"  a  way  for  those  who  do  not  have  access  to  the  mass 
media  to  reach  their  fellow  citizens.  We  have  seen  in  the  civil  rights  movement, 
the  peace  movement,  the  women's  liberation  movement,  and  in  other  areas  what 
a  vital  role  these  activties  can  ]ilay  in  a  changing  society.  Poltical  expression  of 
this  sort  is  frequently  unsettling  and  sometimes,  through  the  actions  of  ex- 
tremists, agents  provocateur,  or  otherwise  ends  up  in  turbulence  or  violence.  A 
healthy  society  must  find  a  way  to  protect  itself  against  violence  or  intimida- 
tion, without  throttling  legitimate  political  expression.  In  general.  State  and 
local  lav,'s  of  long  standing  are  entirely  capable  of  doing  this.  Federal  inter- 
vention is  normally  superfluous,  tends  to  he  discriminatory  in  applicatiiui.  and 
much  too  far. 

It  has  already  been  noted  that  the  provisions  of  S.  14.37  which  attempt  to 
protect  Federal  government  operations  against  interference  from  political  op- 
jios^ition  seriously  curtail  the  right  of  citizens  to  assemble  and  demonsfrate.  In 
addition.  S.  1437  in  Section  ISOl  (Failing  to  Obey  a  Public  Safety  Order) 
creates  a  wholly  new  Federal  offense.  This  section  makes  it  unlawful  if  any 
person  "disobeys  an  order  of  a  public  servant  to  move,  disperse,  or  refrain  from 
specified  activity  in  a  particular  place",  where  the  order  is  issued  in  response 
to  a  fire,  flood,  riot,  "or  other  condition  that  creates  a  risk  of  serious  injury 
to  a  person  or  serious  damage  to  property"  and  is,  in  fact,  "lawful  and  reason- 


9116 

ably  designed"  to  accomplish  the  end.  This  provision  put  in  the  hand  of  any 
Federal  employee  the  authority  to  disperse  a  gathering,  to  forbid  picketing  or 
paradin.:?,  to  require  citizens  to  refiain  from  leafieting  or  canvassing,  whenever 
in  his  judgment  there  is  a  risk  of  injury  to  person  or  property.  The  impact  of 
granting  such  autocratic  power  to  petty  government  officials  does  not  need  to  be 
elaborated.  Moreover,  the  authority  is  conferred  not  (nily  with  resi)ect  to  spe- 
cific Federal  areas,  such  as  a  Federal  l)uilding,  but  anywhere  in  the  United 
States.  There  is  no  possible  justification  for  such  an  extension  of  Federal 
authority. 

The  Federal  Riot  Act  provisions  of  S.  1437  contain  the  same  defects.  They 
impinge  too  far  on  legitimate  political  expression,  including  labor  activity,  and 
they  needlessly  extend  Federal  power  into  local  affairs,  ir^ection  1831  (Leading 
a  Riot)  states  that  a  person  is  guilty  of  an  offense  not  only  if  he  causes  a  riot, 
or  leads,  give  commands  or  directions  in  furtherance  of  a  riot,  but  also  if  he 
"incites  participation"  in  a  riot  taking  place  or  during  a  riot  he  "urges  partici- 
pation" in  the  riot.  As  noted  above,  the  term  "incite"  includes  urging  a  person  to 
engage  imminently  in  conduct,  which  brings  the  application  of  the  government 
pruhibition  at  a  stage  when  only  expression  is  involved.  Fse  of  the  term  "urges" 
carries  government  controls  even  further  back  into  the  speech  process.  The 
result  is  that  expression  is  punished  even  though  there  is  no  immediate  danger 
that  it  will  have  any  effect  upon  the  riot.  The  area  of  government  power  is  thus 
expanded  far  beyond  the  core  toward  the  i^eriphery  of  the  problem,  with  an  ob- 
vious impact  upon  freedom  of  expression. 

Section  1831  Federal  jurisdiction  over  riots  to  any  situation  involving  the 
movement  of  a  i>erson  across  State  lines,  and  Section  1833  (Engaging  in  a 
Riot),  which  punishes  persons  who  actually  participate  in  a  riot,  extends  to 
any  riot  which  "obstructs  a  federal  government  function".  A  "riot"  is  a  public 
disturbance  that  involves  ten  or  more  persons.  Thus  the  vast  weight  of  the 
Federal  criminal  law  can  be  brought  to  every  nook  and  cranny  in  the  land, 
regardless  of  the  magnitude  of  the  event. 

7.    POLITICAL   IXVESTIGATIONS    AKD    SURVEILLANCE 

Recent  disclosure  of  abuses  by  the  intelligence  community  has  alerted  us  to 
the  dangers  emanating  from  law  enforcement  agencies  and  officials  who  have 
not  kept  within  strict  bounds.  S.  1437  does  little  or  nothing  to  maintain  those 
boundaries.  On  the  contrary,  some  provisions  gi-eatly  expand  the  powers  of 
enforcement  agencies  to  Interfere  with  legitimate  iM>litical  activties. 

The  most  glaring  instance  of  this  is  Section  1343  (^Making  a  False  Statement). 
This  section  provides  that  a  person  is  guilty  of  an  offense  if,  "in  a  government 
matter"  he  makes  "a  material  oral  statement  that  is  false"  to  a  person  he  knows 
is  "a  law  enforcement  officer"  or  "a  person  assigned  investigative  responsibility" 
by  a  statute  or  regulation,  or  by  the  head  of  a  government  agency.  Although 
there  is  some  authority  to  the  contrary,  it  has  been  assumed  that  under  present 
law  a  person  was  guilty  of  a  criminal  offense  for  making  a  false  oral  statement 
only  if  the  statement  was  made  under  oath  before  a  government  official  author- 
ized to  administer  oaths,  in  a  context  of  the  safeguards  available  in  a  judicial 
or  (luasi-judicial  proceeding.  This  new  provision  would  give  enormous  power  to 
FHf  agents.  Internal  Revenue  investigators,  custom  officials,  and  every  other 
Federal  employee  engaged  in  law  enforcement.  Any  statement  made  to  such  a 
government  agent,  deemed  by  him  to  be  false  or  later  found  to  be  false,  would 
subject  the  citizen  to  the  risk  of  Federal  prosecution.  In  that  prosecution  the 
outcome  would  d('i>end  upon  the  citizen's  word  against  the  official's  word.  No 
prior  warning,  no  presence  of  counsel,  no  other  safeguard  would  be  afforded. 
It  is  unthinkable  that  police  officials  should  wield  such  power  in  a  democratic 
state. 

Much  concern  has  been  expressed  recently  over  the  use  of  the  grand  jury, 
not  to  protect  the  citizen  from  unwarranted  i)rosecution,  but  to  give  prosecuting 
attorneys  what  is  in  effect  subpoena  power  for  criminal  investigative  purposes. 
This  development  has  been  facilitated  by  the  authority  to  grant  a  witness  before 
a  grand  jury  "use  immunity".  Tliat  is,  the  witness  must  forego  his  right  under 
the  Fifth  Aniendment  to  invoke  the  privilege  against  self-incrimination,  and  in 
return  is  promised  that  the  evidence  he  gives  may  not  be  used  against  him. 
But  the  witness  may  still  he  prosecuted  for  an  offense  about  which  he  testifies, 
if  other  evidence  is  available.  Section  3111  (Compulsion  of  Testimony  Generally) 


9117 

reaffirms  this  procedure.  "Use  immunity"  not  only  deprives  a  citizen  of  an  ex- 
press constitutional  safeguard — the  right  to  remain  silent — but  places  him  in 
grave  risk  of  being  prosecuted  for  an  offense  he  has  been  forced  by  the  govern- 
ment to  divulge.  Section  3111  is  a  serious  encroachment  upon  a  fundamental 
right. 

The  wiretap  and  bugging  provisions  of  S.  1437  (Sees.  3101-3108)  make  some 
improvements  in  the  present  law  as  set  forth  in  the  Omnibus  Crime  Control  and 
Safe  Streets  Act  of  1968.  They  reduce  the  number  of  crimes  in  the  investigation 
of  which  electronic  surveillance  may  be  employed,  and  remove  the  provision  dis- 
claiming intention  to  interfere  with  any  "inherent"  power  the  President  may 
have  to  use  electronic  surveillance  without  regard  to  constitutional  or  statutory 
limitations.  But  S.  1437  otherwise  leaves  the  authority  to  wiretap  and  bug  intact. 
Experience  since  1968  has  shown  that  these  powers  are  of  little  use  in  law 
enforcement  and,  since  they  infringe  so  patently  upon  the  right  of  privacy,  they 
should  be  abandoned  altogether. 

Section  1521  (Eavesdropping),  prohibiting  interception  of  a  "private  oral 
communication  by  means  of  an  eavesdropping  device",  does  not  apply  where  one 
party  consents.  The  consent  of  all  parties  should  be  required. 

It  also  should  be  noted  that  several  other  provisions  of  S.  1437,  mentioned 
above,  particularly  Section  1301  (Obstructing  a  Government  Function  by  Fraud), 
add  greatly  to  the  investigating  powers  of  government  officials  and  seriously 
threaten  individual  rights. 

8.    ADMINISTRATION  OF  CRIMINAL  JUSTICE 

Some  provisions  of  S.  1437  which  adversely  affect  the  fairness  of  criminal  law 
administration,  including  use  immunity,  wiretapping,  and  bugging,  have  already 
been  mentioned.  Another  unwarranted  abridgement  of  the  rights  of  an  accused 
is  found  in  Section  3713  (Admissibility  of  Confessions)  which  provides  that  the 
test  of  whether  a  confession  is  admissible  in  evidence  at  a  trial  is,  not  whether 
Miranda  warnings  have  been  given,  but  simply  whether  it  "is  made  voluntarily". 
Section  3714  (Admissibility  of  Evidence  in  Sentencing  Procedures)  allows  the 
u.se  of  any  "relevant  information"  in  sentencing  proceedings  even  though  it  was 
obtained  illegally,  thereby  encouraging  police  practices  which  violate  constitu- 
tional and  other  legal  rights.  Section  3725  (Review  of  a  Sentence)  allows  the 
government  to  appeal  the  length  of  a  sentence  under  certain  circumstances, 
a  right  which  may  jeopardize  the  defendant's  freedom  to  appeal  his  or  her 
conviction. 

None  of  these  provisions  seem  compelled  by  the  need  of  effective  law 
enforcement. 

9.    LABOR  ACTI\1TIES 

A  number  of  sections  of  S.  1437  which  could  seriously  hamper  legitimate  labor 
activities  have  already  been  mentioned.  The  overbroad  provisions  of  the  sabotage 
law  (Sec.  1111),  the  new  crime  of  obstructing  a  government  function  by 
physical  interference  (Sec.  1302),  and  the  proscription  against  "resisting"  a 
court  injunction  (Sec.  1331).  all  pose  great  danger  for  labor  unions.  Two  other 
provisions  are  of  paramount  concern  to  labor.  There  are  Section  1722  (Extor- 
tion) and  Section  1723  (Blackmail). 

Section  1722  pi-ovides  that  a  person  is  guilty  of  an  offense  "if  he  obtains  prop- 
erty of  another  ...  by  threatening  or  placing  another  person  in  fear  that  any 
person  will  be  subjected  to  bodily  injury  or  kidnapping  or  that  any  property 
will  be  damaged."  Section  1723  defines  blackmail  as  including,  among  other 
things,  obtaining  the  property  of  another  "by  threatening  or  placing  another 
person  in  fear  that  any  person  will  .  .  .  improperly  subject  any  person  to  eco- 
nomic loss  or  injury  to  his  business  or  profession."  Obviously  these  provisions 
on  their  face  can  be  applied  to  a  broad  range  of  labor  union  activities.  Any  strike 
involving  violence  would  clearly  violate  both  sections.  Moreover.  qHite  apart  from 
violence,  labor  unions  seeking  higher  wages  and  more  favorable  working  condi- 
tions frequently  "threaten"  an  employer  or  "place  him  in  fear"  that  his  "prop- 
erty will  be  damaged"  by  a  strike.  In  fact  these  are  the  very  purposes  of  a  strike. 
Similarly  labor  unions  attempt  to  obtain  property  from  an  employer,  in  the  form 
of  higher  wages,  by  threatening  him  with  "economic  loss  or  injury"  unless  he 
consents  to  a  new  contract;  whether  the  conduct  is  "improper"  or  not  may  de- 
pend on  the  court's  attitude.  Hence  labor  unions  are  placed  in  a  very  vulnerable 


9118 

position  by  S.  1437.  far  \Yorse  than  at  tlie  present  time  \vhen  activity  occurring 
in  the  course  of  a  legitimate  hibor  dispute  has  been  held  not  to  be  covered  by  the 
analogous  provisions  of  the  Hobbs  Act. 

Section  1722  does  recognize  the  threat  to  hilior  union  activities  inherent  in 
that  provision.  It  provides  that  it  is  an  afhrmative  defense,  to  be  proved  by  the 
defendant,  that  "the  threatened  or  feared  injury  or  damage  was  minor  and  was 
incidental  to  peaceful  picketing  or  other  concerted  activity  in  the  course  of  a 
bona  fide  labor  dispute."  This  affords  totally  inadequate  protection.  Violence  in 
labor  disputes,  whether  instigated  by  union  members  or  provoked  by  the  em- 
ployer, is  frequently  not  "minor"  or  "incidental"  to  "concerted  activity."  More- 
over, the  provision  puts  the  government  in  the  position  of  determining  whether 
a  labor  dispute  is  "bona  fide"  or  not.  a  dangerous  power.  Furthermore,  no  ex- 
ception for  labor  union  activity  is  contained  in  Section  1723. 

The  fact  is  that  Sections  1722  and  1723  Avould  put  the  Federal  government 
in  the  business  of  intervening  in  the  conduct  of  labor  disputes  on  a  massive  scale. 
No  such  Federal  intrusion  union  activities  is  necessary  or  justilied. 

1  0.  WITHDRAWAL  OF  FEDERAL  PKOTECTION  TO  INDIVIDUAL  EIGHTS 

One  of  the  major  concerns  in  the  area  of  civil  liberties  today  is  the  tendency 
of  the  Supreme  Court  to  withdraw  Federal  protection,  both  procedural  and 
substantive,  against  State  and  local  infringements  upon  individuals  rights. 
S.  1487  does  nothing  to  halt  this  development.  And  in  at  least  one  important 
respect  it  encourages  and  promotes  it. 

Section  1842  (Disseminating  Obscene  Material)  prohibits  the  commercial  dis- 
semination of  "obscene  material",  which  is  defined  in  part  as  material  that 
"appeals  predominantly  to  prurient  interest  of  *  *  *  tlie  average  person,  apply- 
ing contemporary  community  standards".  The  result  of  substituting  local  stand- 
ards for  national  standards  in  ol)scenity  cases  is  that  every  publisher  and  dis- 
triiaiter  is  liable  to  criminal  prosecution  in  every  city  and  town  which  wishes 
to  impose  more  strict  standards  than  prevail  nationally.  A  innnber  of  such 
prosecutions  have  already  taken  place.  In  the  end  the  kind  of  material  that  the 
vast  majority  of  people  in  the  United  States  are  allowed  to  read,  or  see  in 
films,  is  determined  by  the  strictest  view  of  what  "appeals  to  the  prurient 
interest." 

It  is  true  that  tlie  Supreme  Court,  by  divided  vote,  has  accepted  the  "com- 
munity standards"  test,  at  least  for  the  time  being.  But  it  is  clear  from  pending 
cases  that  the  Supreme  Court  has  not  yet  fully  resolved  the  issue,  and  the 
I)resent  majority  may  back  away  in  whole  or  in  part.  At  any  rate,  it  is  most 
unfortunate  at  this  stage  in  the  controversy  t(»  h;ive  Federal  legislation  wliich 
enacts  into  permanent  law  this  highly  restrictive  doctrine  of  "commuuily 
standards." 

1 1 .  PENALTIES  AND  SENTENCING 

The  penalty  and  sentencing  provisions  of  S.  1437  (Part  III),  while  .in  im- 
provement over  S.  1.  fall  considerably  short  of  the  recommendations  made  by 
the  P.rown  Commission  : 

(^)  The  penalties  imposed,  although  not  as  draconian  as  those  incorporated  in 
S.  1,  nevertheless  remain  mufh  too  high,  substantially  more  severe  than  the 
Brown  Commission  projiosals.  Moreover,  mandatory  sentences  are  required  in 
two  are.ns. — trafllcking  in  nn  opiate  (Sec.  1811),  and  using  a  weapon  in  the 
course  of  a  frinie  (Sec.  1823). 

(2)  S.  1437.  unlike  the  report  of  the  Brown  Commission,  does  not  seriously 
aiipronch  the  problem  of  reconsidering  the  goals  of  our  criminal  justice  system, 
or  reforming  the  sentencing  structure.  On  the  contrary  it  dele;:ates  the  whole 
mnttor  to  a  Ignited  States  Sentencing  Conimis'^ion.  to  be  ;ii)p"inted  by  the 
Judicial  Conference  of  the  T'nited  States.  It  is  the  Connnission,  not  our  repre- 
sentatives in  Congress,  which  is  to  establish  the  guidelines  for  sentencimr.  These 
guidelines  are  to  be  reported  to  Consrress,  })ut  they  become  effective  unless  both 
Hon«!PS  of  Congress  decide  otherwise  within  ISO  days.  There  is  no  way  of 
knowing  what  tlio  propo.sed  Commission  would  do  or  wlmt  the  nature  of  its 
guidelines  would  be. 

''3)  The  Brown  Commission  proposed  n  method  of  ajipellate  review  of  sentences 
in  order  to  acliicve  uniformity,  rationality  nnd  fairness.  S.  1437  largely  abandons 
these  proposals.  It  allows  appellate  review  only  in  felony  cases  and  only  if  the 
sentence  is  more  severe  thiin   the   Sentencing  Conunis.sion's  guidelines.   Where 


9119 

the  guidelines  allow  the  maximum  sentence,  which  are  the  more  significant 
cases,  there  is  iu  effect  no  review.  Moreover,  as  noted  above,  the  government  is 
empowered  to  appeal  felony  sentences  that  are  lower  than  the  guidelines 
suggest. 

One  of  the  major  purposes  of  the  effort  to  codify  the  Federal  criminal  law 
has  always  been  to  modernize  and  reform  the  penalty  and  sentencing  structure. 
S.  1437  fails  to  accomplish  this. 

12.    PROBATION    AND   PABOLE 

S.  1437  also  fails  to  measure  up  to  the  recommendations  of  the  Brown  Com- 
mission in  its  provisions  dealing  with  probation  and  parole.  For  example,  under 
the  Brown  Commission  proposals  a  .judge  could  require  that  a  sentence  be 
served  up  to  one  third  of  the  time  before  the  person  sentenced  was  eligible 
for  parole :  under  S.  1437  the  judge  may  bar  parole  up  to  nine-tenths  of  the 
sentence  (Sec.  2301).  The  difference  is  that,  if  the  sentence  is  30  years,  a  de- 
fendant would  be  eligible  for  parole  in  10  years  under  the  Brown  Commission 
recommendation ;  under  S.  1437  he  would  not  be  eligible  for  27  years. 

CONCLUSION 

Reform  of  the  Federal  Criminal  Code  is  a  worthwhile  project.  That  reform 
is  not,  however,  inconsistent  with  maintaining  our  system  of  individual  rights. 
On  the  contrary  one  cannot  be  done  successfully  without  the  other.  S.  1  was 
designed  to  impose  a  Watergate-type  straitjacket  upon  the  people  of  this  coun- 
try. S.  1437  retains  too  many  of  those  provisions  to  be  acceptable.  They  are  still 
framed  with  an  eye  toward  affording  the  government  apparatus  meticulous  pro- 
tection against  every  ix)ssible  form  of  inconvenience,  while  forgetting  the 
needs  of  a  healthy  and  dynamic  citizenry.  There  is  no  reason  why  codification  of 
the  Federal  criminal  law  cannot  be  accomplished  in  a  manner  that  strengthens, 
rather  than  undermines,  democratic  institutions  in  America. 

Mr.  Emerson.  My  testimony  is  concerned  with  the  impact  of  the 
proposed  Federal  Criminal  Code  on  the  system  of  individual  rights  in 
the  United  States.  I  am  particularly  concerned  with  the  results  it  has 
with  respect  to  the  power  of  the  ordinarj^  citizen  to  oppose  the  policies 
of  the  government  that  is  in  power. 

I  think  that  S.  14:37  is  a  substantial  improvement  over  S.  1,  but  I 
still  believe  that  it  retains  a  large  number  of  provisions  which  indi- 
vidually and  in  totality  are  greatly  detrimental  to  the  American  sys- 
tem of  individual  rights. 

The  National  Committee  Against  Repressive  Legislation  therefore 
opposes  the  bill.  We  continue  to  support  revision  and  codification  of 
the  Federal  Criminal  Code.  We  do  not  believe  that  such  reform  should 
be  achieved  at  the  price  of  sacrificing  civil  liberties. 

Let  me  address  myself  to  some  of  the  provisions  as  examples  of  the 
problems  which  I  have  in  mind. 

First  of  all,  let  me  address  myself  to  the  inchoate  crimes — attempt, 
conspiracy,  solicitation,  and  I  would  add  to  that  the  crime  of  com- 
plicity. The  purpose  of  these  criminal  offenses,  of  course,  is  to  allow 
the  Government  to  punish  conduct  that  goes  beyond  the  actual  physi- 
cal conduct  of  committing  the  crime.  It  allows  the  Government  to 
punish  activities  of  persons  who  are  associated  in  some  way  or  on  the 
]:>oriphery  of  what  happens. 

These  offenses  are  useful  for  law  enforcement  purposes  with  re- 
spect to  some  aspects  of  crime — for  instance,  organized  crime  and 
probably  the  antitrust  laws.  Wlien  you  apply  these  general  inchoate 
offenses  in  the  field  of  political  expression,  however,  it  is  likely  to  have 
a  very  dampening  effect  on  freedom  of  expression. 


9120 

First  of  all,  the  inchoate  crimes  necessarily  deal  \\-ith  conduct  before 
the  crime  is  committed  and  tlierefore  in  the  speech  area.  They,  there- 
fore, have  a  direct  im]:)act  on  speech. 

They  also  deal  with  the  risht  of  association,  which  is  a  basic  ri<iht 
in  terms  of  political  opposition,  because  they  bring  within  the  scope 
of  the  Criminal  Code  many  people  who  are  on  the  edges.  Therefore, 
they  have  a  very  hamj^ering  effect  on  persons  who  want  to  associate 
with  other  persons  but  feel  they  may  be  liable  for  the  actions  of  ex- 
tremists in  their  group. 

Third,  inchoate  crimes  by  their  very  nature,  since  they  apply  so 
much  across-the-board,  are  administered  on  a  selective  basis.  There- 
fore, they  are  directed  against  unpo])ular  causes. 

If  one  looks  at  these  crimes  as  applied  in  the  civil  liberties  field,  one 
can  see  the  potential  impact.  The  crime  of  conspiracy,  for  instance, 
would  mean  that  anyone  who  joined  an  association  that  considered 
plans,  say,  to  lie  down  in  front  of  Indldozers  that  wei-e  about  to  jnit 
an  interstate  highway  through  a  park,  even  though  the  person  took 
no  ]Dart  in  the  action,  would  be  guilty  of  a  Federal  criminal  offense. 

Consider  the  crime  of  solicitation,  which  is  a  totally  new  crime  in 
the  books  as  far  as  tlie  Federal  Code  is  concerned.  Under  that  provi- 
sion anyone  who  talked  with  another  person  about  civil  disobedience 
and  urged  a  peison  to  live  up  to  liis  principles  and  engage  in  civil 
disobedience  woidd  be  guilty  of  a  Federal  ofl'ense. 

Stated  as  the}"  are  in  such  broad  language,  these  offenses  are  a  ^■ery 
grave  threat  to  civil  liberties.  They  should  be  confined  to  very  specific 
areas,  not  generalized  across  the  whole  field.  In  my  view  the  crime 
of  solicitation  should  be  eliminated  entirely. 

A  second  area  with  which  I  am  particularly  concerned  is  the  area 
of  official  secrets.  The  original  provisions  of  S.  1  were,  of  course,  elimi- 
naied,  leaving  in  effect  the  present  provisions  of  the  espionage  laws. 

']'he  fact  is  that  the  Department  of  Justice  has  consistently  said 
lliat  the  existing  espiona<re  laws  do  im]K)se  what  amounts  to  an  official 
fecrets  act.  In  the  ElUherg  case  the  prosecution  Avas  based  on  that 
assumption,  altlioujih  the  issue  never  came  to  a  decision.  Assistant 
Attoi'nev  Genei'al  Thornbero;  consistently  repeated  that  the  provisions 
of  S.  1  did  not  change  exi-tino-  law.  So  we  have  here  a  situation  whore 
the  Government  is  claiming  that  existing  law  does  constitute  an  offi- 
cial secrets  act  which  would  impose  criminal  penalties  on  dissemina- 
tion of  any  information  that  the  (Tovernment  wanted  to  keep  secret. 
Tl'ei-efore,  to  leave  the  law  in  that  sihiation  is  almost  as  bad  as  Wm' 
ori.crinpl  provisions  of  S.  1  which  were  taken  out. 

In  addition  to  that,  section  18(11  of  S.  14-5T.  obstructing  a  govennnent 
funr-tion  by  fraud,  might  be  utilized  as  an  official  se^^i'i'ts  act.  The  fact 
is  that  in  the  hlJ.^herg  case  one  of  tlie  charges  of  the  indictment,  in 
addition  to  those  under  the  espionage  laws,  was  a  violation  of  section 
?)7l  of  the  Criminal  Code  for  c()ns]ni'acv  on  the  |)art  of  Ellsberg  and 
Ru-^so  to  defraud  th(>  Ciovenunent.  If  the  (Jovennnent  had  succeeded 
in  that  chai-ge.  it  would  liave  estal)Iis]ied  that  obtaining  information 
the  Government  wants  to  keep  secret  is  defrauding  the  Govermnent. 
Of  course,  a  newspaper  reporter  who  c(^1lalK)rated  oi-  obtained  that  in- 
formation coidd  be  cliajged  with  conspiracy  or  with  obstructuring  a 
government  function  1)V  fraud. 


9121 

Section  1310  thus  seems  to  me  to  brino-  back  into  S.  1437  the  Avoi-st 
proA'isions  of  S.  1  witli  respect  to  chissified  and  national  defense 
information. 

Similarly,  the  theft  and  re\ealino-  information  provisions  cotdd  be 
inter})reted  with  the  same  results.  It  seems  to  mo  that  the  on]\-  solution 
to  this  is  to  take  the  provisions  in  the  Kastenmeier  bill  with  respect  to 
espionage  and  make  them  the  sole  provisions  that  apply  to  the  dis- 
closure of /government  information. 

Third.  1  wish  to  call  the  subcommittee's  attention  to  the  provisions 
that  (leal  Avith  political  opposition  that  interferes  with  government 
operations.  The  pro])lem  here  is  that  a  great  deal  of  political  expression 
is  not  carried  on  in  an  abstract,  essentially  polite  sort  of  way. 

If  one  were  to  look  at  the  social  movements  that  have  marked  tlie 
progress  of  our  natioii  over  the  years,  one  would  see  that  there  is  a 
certain  amount  of  turbulence,  disturbance,  interference  with  govern- 
ment activities,  and  so  foi-th.  That  is  true  of  the  labor  movement.  That 
is  true  of  the  women's  sutlrage  movement.  It  is  true  of  the  civil  rights 
movement,  the  peace  movement,  and  the  women's  liberation  movement. 
All  of  those  social  movements  involved  activities  that  interfered  with 
th(^  Govermnent. 

What  this  bill  does  is  atten)])t  to  eliminate  all  inconveniences  and 
amioyances,  in  effect,  that  the  Government  might  face  from  that  sort 
of  political  opposition. 

The  provisions  of  section  1111,  the  sabatoge  provisions,  apply  most 
across-the-boai'd  to  almost  all  activity  of  American  industry  and  make 
it  a  Federal  crime  to  interfere.  Of  course,  you  have  to  have  intent  to 
interfere  with  a  government  function,  but  that  is  very  easy  for  a 
prosecutor  or  a  jury  to  tind. 

Most  important  of  all,  section  1301,  wliich  T  just  mentioned,  ol)struf't- 
ing  a  government  function  by  fraud,  opens  up  the  possiliility  of  mak- 
ing it  a  Federal  criminal  offense  to  engage  in  many  kinds  of  activities 
that  are  the  inevitable  outcome  of  political  opposition. 

Even  worse,  section  1302.  obstructing  a  government  function  by 
physical  interference,  is  a  totally  new  provision.  It  W'Ould  mean  that 
anything  tliat  in  some  physical  way  interfered  with  a  Federal  Gov- 
ei'ument  function  could  be  a  Federal  criminal  offense.  Thus  a  demon- 
stration in  which  a  lot  of  people  gathered  together  outside  a  post  office 
would  interfere  with  access  to  the  post  office  or  would  interfere  with 
traffic  in  front  of  the  post  office.  It  would  be  a  pliysical  interference 
with  a  Federal  function. 

There  is  almost  no  end  to  what  could  be  involved  there.  ^lon^ever, 
that  proivsion  could  be  used,  of  course,  in  a  highly  selective  way  to 
prosecute  certain  people  the  Government  found  objectionable. 

Senator  Thurmond.  INIr.  Emerson,  we  have  a  long  list  of  witnesses 
here  so  we  are  going  to  have  to  confine  each  witness,  in  addition  to 
putting  his  statement  in  the  record,  to  not  over  15  minutes.  I  thought 
I  should  mention  that  sijice  your  time  will  soon  be  over.  In  the  event 
you  have  something  special  you  w^ant  to  bring  up  before  your  time  is 
up,  I  hope  you  will  bring  it  to  the  subcommittee's  attention. 

Mr.  Emersox.  I  will  hasten  along.  Senator. 

Another  series  of  provisions  I  want  to  mention  deal  with  assemblies 
and  demonstrations,  which  is  related  to  Avhat  I  just  said.  This  may 


9122 

bo  tlio  ovAy  method  of  political  exprossion  that  is  a\ailable  to  persons 
who  do  not  have  access  to  the  mass  media. 

Section  1861,  failing  to  obey  a  public  safety  order,  and  section  1831, 
leading  a  riot,  both  could  be  used  to  seriously  hamper  the  right  of 
demonstration,  which,  as  we  have  seen,  in  the  civil  rights  movement 
and  peace  movement  has  been  a  matter  of  extreme  importance. 

Similarly,  I  would  call  the  subcommittee's  attention  to  political 
investigations.  I  would  })articularly  call  the  attention  of  the  subcom- 
mittee to  section  1343,  makino-  a  false  statement,  which  is  essentiallv 
a  new  criminal  offense.  This  provision  gives  any  law  enforcement  of- 
ficer or  any  police  oflicer  an  extraordinary  power  over  the  investiga- 
tion of  anything  in  which  a  person  might  be  involved. 

Similarly,  many  provisions  affect  labor  adveisely. 

In  conclusion,  let  me  say  that  the  difficulties  I  find  are  partly  due 
to  the  fact  that  the  draftsmen  have  attempted  to  generalize  or  write 
general  crimes  of  conspiracy,  solicitation,  obstruction  of  Government 
by  fraud,  and  so  forth.  They  have  simply  cut  across  the  board  in  a 
very  inhibitory  way. 

Second,  they  have,  as  I  said,  attempted  to  protect  Government  op- 
erations against  every  possible  source  of  inconvenience  and  to,  in  effect, 
isolate  the  Government  from  the  people  that  the  Governjnent  is  su])- 
posed  to  serve.  The  pi'ovisions  seem  to  be  written  by  persons  who  went 
into  a  back  room  and  tried  to  think  up  every  possiljle  kind  of  inter- 
ference or  annoyance  or  opposition  that  might  arise  and  then  put 
some  provision  in  the  bill  to  make  that  a  Federal  criminal  offense. 

It  seems  to  me  that  it  is  about  time  that  someone  wrote  a  code  from 
the  point  of  view  of  the  people  who  are  on  the  receiving  end,  not  from 
the  point  of  view  of  the  people  who  are  in  the  Government  who  have 
plenty  of  power  to  handle  their  affairs  as  it  is.  The  citizens  who  are 
trying  to  have  an  impact  on  Government  are  the  ones  that  ought  to 
be  considered  in  this  code,  not  the  Government  officials. 

While  a  Federal  Criminal  Code  is  certainly  a  worthwhile  project, 
tliat  reform  is  not  inconsistent  with  maintaining  our  system  of  in- 
dividual rights.  On  the  contrary,  one  cannot  be  done  successfully  with- 
out the  other. 

S.  1  was  designed  to  impose  a  Watergate-type  strait  jacket  on  the 
people  of  this  country.  S.  1437  retains  too  many  of  those  provisions 
to  be  acceptable. 

There  is  no  reason  why  codification  of  the  Federal  criminal  law 
cannot  be  accomplished  in  a  manner  that  strengthens,  rather  than 
UTiflermines,  democratic  institutions,  in  America. 

Thank  you. 

Senator  Thurmond.  We  are  glad  to  have  you  with  us.  Professor 
Emerson.  We  thank  a^ou  for  your  presence  and  the  contribution  you 
made  to  this  hearing. 

Our  next  witness  is  Ms.  Marilyn  Kay  Harris,  coordinator  on  behalf 
of  Xational  Moratorium  on  Prison  Construction.  Washington.  D.C. 

Ms.  Harris,  would  you  like  to  have  your  entire  statement  placed  in 
the  record? 

INls.  IIaiihts.  Yes;  I  would. 

Senator  Tiiurmoxd.  A^'ithout  objection,  that  will  be  done.  You  will 
have  not  to  exceed  15  minutes  to  say  anything  in  addition  to  that 
statement  which  vou  mav  wish  to  sav. 


9123 

STATEMENT  OF  MARILYN  KAY  HAKRIS,  COORDINATOR  ON  BEHALF 
OF  NATIONAL  MORATORIUM  ON  PRISON  CONSTRUCTION,  WASH- 
INGTON, D.C. 

Ms.  Harris.  Thank  you  very  much. 

I  would  also  like  to  ask  permission  to  extend  my  remarks  concern- 
ing some  specific  revisions  of  the  bill.  We  would  like  to  provide  this 
in  addition  to  what  I  will  say  orally  today. 

Senator  Thurmond.  Without  objection,  that  will  be  done.  You  may 
submit  it  to  us. 

Ms.  Harris.  Thank  you. 

[The  material  follows :] 

Prepared  Statement — National  Moratorium  on  Prison  Construction 

The  National  Moratorium  on  Prison  Construction  is  pleased  to  submit  this 
written  statement  for  the  record  to  further  elaborate  on  points  raised  in  our 
oral  testimony  and  to  direct  attention  to  specific  sections  of  the  bill  with  which 
we  are  concerned.  As  stated  in  our  testimony,  the  National  Moratorium  on  Prison 
Construction  (NMPC)  has  scrutinized  S.  1437  in  terms  of  its  potential  impact 
on  the  nature  and  extent  of  incarceration  of  federal  offenders  and  found  the 
bill  seriously  deficient.  In  undertaking  comprehensive  sentencing  reform,  the 
Congress  should  authorize  and  encourage  a  wide  range  of  sanctions.  More  imagi- 
nation and  effort  should  be  devoted  to  developing  a  hierarchy  of  sanctions  rang- 
ing from  less  severe  to  more  severe.  The  criminal  code  should  expressly  favor 
sanctions  of  lesser  severity  and  explicitly  disfavor  incarceration. 

Society  has  an  interest  in  minimizing  incarceration  because  it  is  drastic,  costly, 
and  productive  of  alienation,  and  because  there  are  alternative  means  for  pro- 
moting and  protecting  societal  values.  Any  criminal  sanction  involves  various 
degrees  of  impairment  of  an  offender's  freedom.  Residence  restrictions,  curfews, 
supervision,  community  service,  even  money  damages,  diminish  personal  liberty 
and  involve  elements  of  control  and  manipulation.  The  point  is  that  the  criminal 
code  should  try  to  minimize  these  elements  both  for  the  offender's  sake  and  for 
the  sake  of  the  larger  society.  The  code  should  prefer  those  measures  which 
are  most  consistent  with  and  conducive  to,  individual  freedom  and  dignity. 

It  is  vital  that  the  Congress  recognize  that  imprisonment  as  we  know  "it  is 
cruel,  and  although  all  too  usual,  does  not  comport  with  evolving  standards  of 
decency.  Prisons  as  we  know  them  are  antithetical  to  dignity  and  humanity.  They 
destroy  the  human  spirit,  brutalize,   and  negatively  socialize. 

It  is  difficult  to  understand  how  the  typical  prison  or  jail  thrives  in  modern 
America.  American  penal  facilities  seem  clearly  anachronistic — clearly  out  of 
some  earlier,  less  civilized,  less  enlightened,  less  humane  time.  As  Dr.  Karl 
Menuinger  has  recorded  his  impression  of  prisons,  "An  atmosphere  of  monotony, 
futility,  hate,  loneliness,  and  sexual  frustration  pervades  the  dark  dungeons 
and  cold  hangers  like  a  miasma,  while  time  grinds  out  weary  months  and  years." 

A  recent  book  based  on  a  long-term  research  study  in  an  Ohio  Training  school 
for  boys  documents  in  a  painfully  clear  fashion  how  such  an  institution  socializes 
young  people  to  values  exactly  counter  to  those  we  would  wish.  The  institution 
described  and  all  to  many  of  our  other  institutions  holding  juveniles  and  adults 
are  institutions  of  terror,  violence,  and  victimization.  Individuals  sent  there  by 
society  must  choose  whether  to  victimize  others  or  be  victimized  or  suffer  some 
of  both.  Such  institutions  breed  violence  and  disrespect  for  human  life.  Tliey 
subvert  rather  than  serve  societal  interests.  ( See  Juvenile  Victimization :  Tlie 
Institutional  Paradox,  by  Bartollas,  Miller,  and  Dinitz) 

Construction  of  newer,  more  modern  prisons,  but  prisons  based  on  the  same 
bankrupt  concepts  as  the  old,  is  not  an  answer  to  our  prison  problems.  Witness 
the  federal  prison  system  which  is  spending  the  taxpayers'  money  for  new  prisons 
for  youthful  offenders  in  locations  like  Lake  Placid,  New  York;  Bastrop.  Texas; 
and  Talladega,  Alabama.  These  new  prisons  will  open  with  a  guarantee  that 
meaningful  contact  with  family  and  friends  will  not  be  possible  for  the  prisoners. 
Designed  to  hold  .'')00  persons  for  "economies  of  scale",  the  new  prisons  will  share 
the  many  defects  inherent  to  such  a  scale,  no  matter  how  well  they  are  managed. 


9124 

The  very  concept  of  cagiug  large  numbers  of  persons  in  penal  institutions  must 
give  way  to  better  means  of  responding  to  criminal  acts. 

Federal  Judge  James  Doyle  has  been  much  quoted  in  saying,  "I  am  convineed 
that  the  institution  of  prison  probably  must  end.  In  many  respects  it  is  as  in- 
tolerable within  the  United  States  as  was  the  institution  of  slavery,  equally 
brutalizing  to  all  involved,  equally  toxic  to  the  social  system,  equally  subversive 
of  the  brotherhood  of  man,  even  more  costly  by  some  standards,  and  probably 
less  rational."  {Morales  v.  Schmidt,  340  F.  Supp.  544,  548-9  (.W.D.  Wis.  lU72j, 
rev'd  4<J4  F.  2d  (7th  Cir.  1974).) 

The  conclusions  reached  by  Judge  Doyle  and  the  facts  that  underlie  them  are 
by  no  means  secret.  It  has  recently  been  out  of  favor  to  discuss  humanity, 
decency,  and  acceptability  of  criminal  sanctions.  The  cry  has  been  for  getting 
'"criminals  off  the  streets"  and  keeping  them  locked  up  longer.  However,  recent 
polls  show  fear  of  crime  no  longer  increasing.  The  pendulum  of  public  opinion 
seems  tu  be  coming  back  toward  a  more  reasonable,  moderate  position  and  as 
unemployment  declines,  crime  and  fear  should  decrease  even  more.  (Both  crime 
and  prison  admissions  are  highly  correlated  with  unemployment  rates.)  Now 
is  the  time  for  Congress  to  lead  the  country  in  an  unprecedented  move  away 
from  conventional  confinement. 

As  imiiortant  steps  in  establishing  new  directions,  a  number  of  fundamental 
changes  in  S.  1437  are  i-equired.  I'erhaps  most  fundamentally,  the  bill  fails  to 
declare  a  coherent  philosophy  to  guide  development  of  sentencing  policy. 

NEED  FOR  CLEAR  STATEMENT  OF  PURPOSE 

There  are  deep  and  continuing  conflicts  about  the  proper  philosophy  upon 
which  sentencing  and  dispositional  decisions  should  rest.  In  the  past,  legislators 
have  tended  to  leave  the  important  issue  of  what  philosophical  base  should  be 
used  for  .sentencing  decisions  to  the  discretion  of  criminal  justice  personnel. 
Recodification  of  the  federal  criminal  code  provides  an  opportunity  to  establish 
and  declare  national  public  policy  and  purpose  iu  regard  to  criminal  sanctions, 
Tliis  opportunity  is  about  to  be  missed. 

S.  1437  evidences  a  belief  that  the  criminal  code  can  be  all  things  to  all  persons 
or  reflects  that  no  one  has  been  able  to  decide  or  agree  on  what  purpose  is  to 
predominate  in  criminal  sentencing  or  which  purpose  is  to  govern  on  a  specific 
occasion.  The  statement  of  sentencing  purpose  lists  all  of  the  commonly  proposed 
purposes — deterrence,  protection  of  the  public,  punishment,  and  correction  or 
rehabilitation.  Retention  of  such  a  blanket  statement  of  allowable  purposes  in 
effect  means  that  the  legislature  has  refused  to  decide  what  should  be  accom- 
plished. How  is  an  individual  judge,  or  the  proposed  sentencing  commission,  to 
liahmce  these  complex  and  perhaps  conflicting  puriwses  in  making  individual 
dispositions  or  establishing  sentencing  ranges?  How  do  the  various  sentencing  al- 
ternatives, sentence  lengths,  sentencing  factors,  or  offender  categories  relate  to 
these  purposes? 

In  considering  an  appropriate  sanction  for  a  given  crime,  how  is  the  decision 
to  l)e  made  among  the  sentencing  options?  If  incarceration  is  chosen,  how  long 
should  the  term  be?  If  a  line  is  selected  as  the  appropriate  sanction,  how  much 
should  it  be?  Clearly,  the  answer  to  these  and  many  other  questions  will  vary 
depending  on  whether  the  goal  is  to  make  an  example  of  this  offender  as  a 
deterrent  to  others,  to  protect  the  public  from  this  offender,  to  promote  this 
offender's  rehal»ilitation,  to  "make  the  victim  whole"  by  ordering  restitution, 
or  to  serve  some  other  puriiose. 

S.  1437  provides  virtually  no  guidance  on  how  a  choice  should  be  made  among 
all  of  the  allowable  purposes.  It  specifies  that  the  sanction,  and  perhaps  the 
purpose,  may  vary  dep<'nding  on  the  absence  or  existence  of  a  number  of  sub- 
sidiary factors  related  to  the  offender  and  the  offense,  but  it  does  not  specify  in 
what  direction.  There  is  no  indication  of  an  order  of  importance  among  the  fac- 
tors to  be  considered  nor  any  indication  of  how  they  should  be  weighted  against 
one  another.  Does  the  bill  intend  that  "physical  condition,  including  drug  de- 
pendence", would  result  in  a  harsher  sentence  or  a  more  lenient  one?  Does  it 
envision  prior  unemployment  as  grounds  for  confinements  as  evidence  of  risk 
of  future  criminality  or  grounds  for  imposing  ]>robation  with  assistance  in  find- 
ing employment? 

Since  the  bill  would  codify  virtually  all  popular  purposes  of  sentencing  as 
allowable,  it  is  not  clear  that  the  Commission  would  have  the  authority  to  dis- 


9125 

allow  any  of  them.  The  Congress  should  either  address  these  vital  issues  directly 
or  dt'U'sjate  them  completely.  It  would  be  better  to  say  nothing  at  all  as  to  purpose 
or  characteristics  of  the  ottense  or  the  oftender  and  simply  delegate  the  entire 
job  to  the  Commission  than  to  provide  a  laundry  list  of  vague  and  questionable 
factors  that  must  be  considered.  Defendants  should  not  be  penalized  in  sentence 
severity  or  length  based  on  such  factors  as  education,  vocational  sliills,  previous 
employment,  community  ties,  already  punished  criminal  activity  or  alleged  crim- 
inal activity.  Many  of  the  other  factors,  such  as  community  attitudes,  current 
incidence  of  the  offense,  likely  effect  on  commission  of  the  offense  by  others  are 
also  inapproriate  matters  for  the  Commission  or  a  judge  to  consider.  The 
inclusion  of  such  factors  in  such  numbers  is  simply  reflective  of  the  failure  of 
the  bill  to  come  to  terms  with  what  it  is  designed  to  accomplish. 

The  legislative  branch  bears  the  responsibility  for  developing  a  coherent  public 
liolicy  to  govern  the  criminal  sanctioning  process.  This  is  a  difficult  and  contro- 
versial process,  but  far  from  an  impossible  one.  Some  existing  alternative  bills, 
such  as  S.  204.  the  Hart-Javits  Bill,  go  a  lot  farther  toward  fulfilling  this  impor- 
tant legislative  role  than  S.  1437.  There  are  a  few  specific  concerns  which  the 
National  Moratorium  on  Prison  Construction  wishes  to  address. 

AUTHORIZED  SENTENCES 

As  indicated  above,  NMPC  regards  Section  2001,  concerning  Authorized  Sen- 
tences, to  be  too  narrow.  The  only  sentences  authorized  are  probation,  fines,  and 
imprisonment.  Other  sanctions,  such  as  day  fines,  community  service  orders, 
cui-fews,  restitution  orders,  and  other  penalties  should  be  authorized  as  sen- 
tences. Some  of  these  punishments  are  included  in  the  bill  as  possible  conditions 
of  probation  or  as  additions  to  other  sentences.  They  should  be  sentencing  options 
in  themselves. 

Also  as  indicated  above,  the  sentencing  options  delineated  should  reflect  an 
order  of  preference  for  their  use,  from  least  drastic  to  most  drastic.  For  example. 
Section  3502  which  concerns  release  pending  trial,  specifies  that  a  i^erson  charged 
with  an  offense  shall  be  released  pending  judicial  proceedings  unless  a  specific 
finding  is  made.  The  section  furtiier  specifies  that  if  an  individual  is  not  released 
on  his  or  her  own  recognizance,  the  first  of  a  list  of  factors,  which  is  ranked  from 
less  to  more  severe,  that  will  assure  the  appearance  of  the  person  for  trial  is  to 
be  imposed.  A  similar  approach  should  be  taken  in  regard  to  imposing  .'-entence 
following  conviction.  In  addition  and  as  stated  above,  a  sentence  to  incarcera- 
tion should  be  explicitly  disfavored  generally.  Incarceration  should  be  prohibited 
for  most  offenses — certainly  for  misdemeanors  and  infractions.  Conversely,  pro- 
bation should  not  be  prohibited  for  any  offense  as  Section  2101  would  do.  In  the 
December  19TG  issue  of  Judicature,  Senator  Kennedy  states  in  an  article  that 
he  "suspects''  that  sentences  of  imprisonment  would  be  reserved  for  the  more 
serious  crimes.  The  matter  of  offenses  for  which  an  offender  may  .sufl'er  depriva- 
ti(m  of  liberty  should  not  be  a  matter  of  speculation.  NMPC  joins  the  other 
witnesses,  including  Judge  Lasker.  Mr.  von  Hirsch.  and  the  National  Prison 
Project,  who  recommended  that  a  pi-esumption  against  incarceration  be  written 
into  the  bill. 

PROBATION 

As  stated  above,  and  consistent  with  revising  the  bill  to  disfavor  use  of  incar- 
ceration, probation  should  not  be  precluded  as  a  sentence  for  any  offense  or 
offense  class.  Thus  section  2101  should  be  revised  to  read  that  any  persons  found 
guilty  of  an  offense  may  be  sentenced  to  a  term  of  probation. 

As  regards  allowable  conditions  of  probation,  NMPC  believes  revision  of  the 
list  of  conditions  allowed  shonld  be  done  in  connection  with  refinement  of  the 
purposes  to  be  served  in  sentencing.  For  example,  some  of  the  conditions  might 
make  sense  for  rehabilitative  purposes,  but  not  for  purposes  of  deterrence  or 
punishment.  If  rehabilitation  were  rejected  as  an  allowable  basis  for  sentence 
selection,  such  conditions  should  be  deleted. 

NMPC  endorses  inclusion  in  the  bill  of  punishments  heretofore  used  rarely 
including  restitution  payments,  residence  at  a  community  facility,  and  work  in 
community  ser\'ice,  but  would  favor  making  these  punishments  discrete  .sentences 
which  need  not  be  tied  to  probation. 

.Just  as  no  offenses  should  preclude  probation,  there  .should  be  no  minimum 
probation  terms  set  by  law  nor  any  dtirational  restrictions  on  early  termination 
of  probation.  If  as  NMPC  and  others  have  urged,  the  sentencing  provisions  of  the 


9126 

criminal  code  were  based  on  a  preference  for  use  of  the  least  drastic  suitable 
alternative,  no  restrictions  on  the  implementation  of  this  principle  should  be 
allowed  in  the  law. 

The  notion  that  a  term  of  probation  may  be  extended  at  any  time  prior  to  ex- 
piration if  less  than  the  authorized  term  was  originally  imposed  is  contrary  to 
the  need  to  malce  criminal  penalties  definite,  an  espoused  olijective  of  sentencing; 
reform.  Reductions  of  term  or  early  termination  are  a  form  of  mercy  or  forgive- 
ness or  of  responding  to  new  information  and  are  desirable  in  that  they  reduce 
the  exercise  of  state  power  over  individuals.  Provisions  allowing  extension  of  a 
sentence  once  set  remove  the  individual's  assurance  that  the  punishment  will  lie 
over  when  promised.  As  in  Mr.  Lowenstein's  analysis  of  June  27.  1977.  regard- 
ing appeal  of  a  sentence  by  the  government,  possible  extension  of  a  sentence  late 
in  a  term  constitutes  double  jeopardy  and  cruel  policy.  All  such  provisions  which 
allow  enhancing  a  sentence  in  length  or  severity  once  impo.sed  should  be  deleted. 

IMPRISOKMENT 

As  previously  stressed.  S.  1437  now  authorizes  excessively  long  periods  of 
confinement  for  excessively  broad  categories  of  offenders.  By  eliminating  good 
time,  adding  contingent  parole  terms,  and  allowing  terms  of  parole  ineligibility, 
yet  authorizing  lojig  periods  of  incarceration,  the  bill  would  help  inflate  the 
already  excessively  large  federal  pri.son  population.  Such  v.n  impact  would  be 
highly  luidesirable  economically  and  socially.  The  authorized  terms  of  imi)rison- 
ment  should  be  substantially  lower  and  the  set  of  offenses  for  which  incarcera- 
tion is  allowable  should  be  limited.  Furthermore,  the  bill  should  specifically  pro- 
hibit extra-added,  but  illegal,  punishments  conunon  to  the  typical  prison. 

Mr.  O'Donnell  urged  a  fifty  percent  reduction  in  maximum  sentence  lengths. 
.Tudge  Frankel  endorsed  a  general  lowering  of  sentences  as  did  the  National 
Prison  Project  and  Mr.  von  Hir.sch.  The  Director  of  the  Bureau  of  Prisons.  Mr. 
Carlson  stated  that.  "By  increasing  the  certainty  of  the  punishment  rather  thai! 
its  length  or  severity.  I  believe  we  can  be  more  effective  in  deterring  crime."  Mr. 
Dershowitz  postulated  that  for  every  increase  in  severity  of  sentence  there  is  a 
corresponding  decrease  in  certainty. 

The  National  Advisory  rommission  on  Criminal  Justice  Standards  and  Goals 
and  S.  204,  the  Ilart-.Tavits  bill,  both  call  for  an  authnrizcd  niaxinuim  sentence 
of  five  years  for  most  offenders,  but  even  that  is  too  Inng  althnugh  clearly  pref- 
erable to  the  terms  in  the  existing  bill.  The  statute  should  incorporate  a  pre- 
sumption against  incarceration  and  limit  use  to  a  very  small  numlier  of  serious 
offenses.  Consistent  with  the  philosophy  of  utilizing  the  least  drastic  suitable 
alternative,  incarceration  for  a  minimum  term  should  not  be  required  by  law. 
Similarly,  if  parole  is  to  be  retained,  periods  of  parole  ineligibility  should  not  be 
allowed.  Furthermore,  if  parole  is  retained,  the  total  length  and  severity  of 
puni'-hnient  should  not  be  increased  by  contingent  terms  of  imprisonment. 

NMPC  endorses  three  separate  reconnnondalions  made  by  .Tudge  Tjoflat.  The 
first  recomiiKMidalion  would  i)reserve  the  court's  option  to  jnoscribe  a  sentence 
of  unconditional  discharge.  The  second  recommendation  would  give  the  court 
authority  to  set  aside  convictions  of  successful  jirobationers  upon  their  termina- 
tion (as  is  presently  provided  for  liy  the  Youth  Corrections  Act")  and  also  the 
convictions  of  offenders  not  originally  .sentenced  to  either  imi>risonment  or  pro- 
bation two  years  from  the  date  of  conviction.  The  third  reconunendatlon  ^^  ould 
delete  the  phrase  "for  extraordinary  and  compelling  reasons''  from  Section 
2302(c),  which  gives  authority  to  the  court  to  reduce  the  original  term  of  im- 
prisoinnent  or  jiarole  ineliiribility  to  tim(>  already  served  on  the  motion  of  the  Di- 
rector of  the  Burea\i  of  Prisons. 

As  regards  the  type  of  prison  facility  or  the  i)lace  of  imprisonment,  the  bill 
should  be  modified  to  allow  and  encourage  execution  of  the  dei>rivation  of  liberty 
in  facilities  other  than  conventional  prisons  and  jails.  The  i)rovisions  of  S.  1437 
that  address  juveniles  authb(n-ize  the  Bureau  of  Prisons  to  designate  as  the 
place  of  ofiifial  d<'tentioii  a  suitable  public  or  iirivate  agency  or  foster  home 
(Section  .S003).  The  bill  also  authorizes  the  Director  of  the  Bureau  of  P"isons  to 
contract  with  a  i>ubllc  or  private  agency  or  foster  home  for  the  custody,  care. 
subsistence,  education,  and  training  of  juveniles.  The  Bureau  of  Pris.ins  should 
be  similarly  authorized  and  encouraged  to  enter  into  a  wide  variety  of  arrange- 
ments, including  contracting  with  private  and  public  agencies  and  individuals, 


9127 

for  the  housing,  care,  custody,  and  supervision  of  adult  orfenders.  At  present, 
when  the  Bureau  of  Prisons  experiences  temporary  population  increase,-;,  insti- 
tutional overcrowding  tends  to  result.  The  bill  should  make  clear  that  most  of- 
fenders in  the  federal  system  do  not  require  confinement  in  an  institution  with  a 
high  level  of  security  and  that  development  of  alternative  arran.L'ements  is  pref- 
erable to  overcrowding  in  federal  facilities  or  continued  use  of  inhumane  facili- 
ties. The  requirement  in  the  bill  that  the  Bureau  of  Prisons  shall  commit  a 
juvenile  to  a  home  or  agency  near  his  home  community  if  possible  should  also 
be  applied  to  adult  offenders. 

Sections  of  the  bill  that  address  juveniles  also  specify  that  a  juvenile  who  has 
been  committed  shall  be  provided  with  adequate  food,  heat,  light,  sanitary 
facilities,  bedding,  clothing,  recreation,  counseling,  education,  training,  and 
medical  care,  including  any  necessary  psychiatric,  psychological,  or  other  care 
or  treatment  (Sections  3602  and  3(j03).  Similar  specitications  of  requirements  and 
minimum  standards  should  be  incorporated  in  the  bill  to  apply  to  adult-. 

EXCLUSION    OF    AGENCIES    FROM    APA    AND    FOIA 

Sections  3825  and  3837  would  exempt  the  Bureau  of  Prisons  and  the  Parole 
Commission  from  the  Administrative  Procedures  Act,  the  Freedom  of  Informa- 
tion Act,  and  the  Privacy  Act.  NMPC  finds  that  there  is  no  justification  for 
such  exclusions  other  than  historical  tendencies  to  keep  the  affairs  of  these  agen- 
cies out  of  the  sunlight  of  public  scrutiny  and  input.  The  profoimd  effects  that 
these  two  agencies  have  on  the  lives  of  prisoners  warrant  access  of  prisoners 
to  the  information  and  processes  that  these  laws  concern.  The  decision  made  by 
the  Bureau  of  Prisons  and  the  Parole  Commission  are  also  a  major  concern  of 
organizations  like  the  National  Moratorium  on  Prison  Construction  and  the  Na- 
tional Prison  Project  and  such  organizations  should  not  be  cut  off  from  the  proc- 
esses by  which  they  are  made  nor  be  unable  to  learn  what  the  decisions  are. 

PAKOLE 

NMPC  favors  in  principle  the  abolition  of  parole,  but  believes  that  parole 
abolition  should  not  be  attempted  in  isolation  from  other  major  criminal  justice 
system  changes.  In  the  context  of  the  bill  as  it  now  stands,  elimination  of  parole 
would  simiJly  serve  to  further  increase  terms  of  incarceration  and  insure  that 
disparities  would  not  be  corrected.  However,  we  believe  that  the  parole  system 
is  fatally  flawed  conceptually,  based  as  it  is  on  prediction  of  future  individual 
conduct.  Parole  has  often  served  to  increase,  rather  than  decrease,  arbitrary 
and  inequitable  treatment  of  prisoners.  Thus,  a  few  recommendatio'is  regarding 
parole  are  offered  here  assuming  that  parole  will  not  be  immediately  aboliwlied, 
although  such  patching  will  not  overcome  some  of  the  major  flaws  of  the  parole 
system. 

Under  present  law,  one  of  the  primary  methods  of  insuring  against  unreas- 
onably harsh  sentences  is  by  the  limitation  in  Title  18  Section  4202(b),  which 
prohibits  a  judge  from  imposing  a  minimum  sentence  establishing  parole  ehgi- 
bility  at  greater  than  one-third  of  the  statutory  maximum.  The  proposed  bill 
would  virtually  eliminate  this  prohibition  by  allowing  a  judge  to  impose  parole 
ineligibilit.v  for  up  to  nine-tenths  of  the  statutory  maximum,  subject  only  to 
the  as  yet  non-existent  guidelines  of  the  proposed  sentencing  commission.  Given 
the  excessively  long  prison  terms  authorized  in  the  bill,  sur-h  terms  of  parole 
ineligibility  should  not  be  allowed.  Cei'tainly  such  terms  should  not  exceed  the 
current  one-third  limitation  unless  sentence  lengths  are  drastically  reduced. 

As  regards  the  criteria  for  release  on  parole,  some  modifications  are  in  order. 
Sections  3831(c)  (2)  and  (3),  should  be  eliminated.  Subsection  (c)(2),  "there 
is  no  undue  risk  that  he  will  fail  to  conform  to  such  conditions  of  parole  as 
would  be  warranted  under  the  circumstances."  requires  prediction  of  individual 
conduct  and  is  therefore  unreliable  and  unfair.  Subsection  (c)(3),  "his  release 
at  that  time,  in  light  of  his  conduct  at  the  institution,  would  not  have  a  sub- 
stantially adverse  effect  on  institutional  discipline,"  would  punish  an  individual 
for  the  presumed  effects  such  punishment  would  have  on  other  persons  and  is 
hence  unfair  even  if  it  could  be  accurately  assessed.  Criteria  for  release  on 
parole  should  be  designed  to  serve  the  objectives  of  reducing  disparity,  reducing 
undue  harshness  or  deprivation,  and  promoting  equity,  consistent  with  the 
objectives  of  the  sentence  imposed.  Section  3831  should  be  revised  in  this  light. 

92-465—77 36 


9128 

The  authorized  parole  terms  offer  the  potential  for  imdue  extension  of  state 
control  over  individuals  lives.  Under  sections  2303  and  3834,  a  prisoner  could 
be  subject  to  a  period  of  up  to  live  years  on  parole,  regai-dless  of  the  fact  that 
she  or  he  had  already  served  a  complete  term  in  prison.  Terms  in  excess  of 
three  years  would  serve  little  purpose  and  would  be  unnecessarily  restrictive. 
In  line  with  the  general  orientation  of  NMPCs  recommendations,  even  shorter 
terms  of  parole  should  be  preferred. 

APPELLATE    REVIEW     OF    SENTENCES 

XMPC  applauds  S.  143T's  inclusion  of  appellate  review  of  sentences  falling 
outside  the  guidelines  provided  by  the  sentencing  commission.  However,  ne 
consider  it  essential  to  the  ends  of  justice  to  provide  for  appellate  review  of 
sentences  within  the  guidelines,  and  also  for  affording  review  of  challenges 
made  as  to  the  validity  of  the  sentencing  guidelines.  XMPC  concurs  with  Judge 
Lasker  that  the  as  yet  non-existent  guidelines  will  not  be  so  perfect  as  to 
eliminate  any  need  for  appellate  review.  Judge  Fraukel,  Mr.  O'Donnell.  and 
the  National  Prison  Project  all  urged  availability  of  appellate  review  within 
the  guidelines  and  XMPC  concurs. 

As  stated  above,  NMPC  is  opposed  to  the  provision  allowing  the  government 
to  appeal  for  the  purpose  of  urging  more  severe  sentences  due  to  the  chilling 
effect  on  prisoner  appeals  and  the  constitutional  prohibition  of  double  jeopardy. 

SENTENCING    COMMISSION 

NMPC  supports  the  establishment  of  a  sentencing  commission  and  concurs 
with  those  witnesses,  including  Senators  Hart  and  Javits,  Judge  Lasker,  Dean 
Gottfredson,  Mr.  von  Hirsch,  Mr.  Dershowitz,  and  the  National  Prison  Project, 
who  have  supported  Presidential  appointment  of  the  meml>ers,  with  the  advice 
and  consent  of  the  Senate.  The  members  of  the  commission  should  include 
pei-sons  fiom  inside  and  outside  of  tlie  crimhial  justice  system  including  ex- 
offenders.  Representation  from  diverse  ethnic  backgrounds  and  from  both  sexes 
should  be  required.  The  concerns  with  which  the  commission  will  be  dealing 
are  relevant  to,  and  their  implementation  wiil  effect,  all  sectors  of  the  public 
and  the  criminal  justice  system,  making  a  broad  range  of  backgrounds  and 
perspectives  desirable  on  the  commission. 

A  sentencing  commission  offers  a  means  to  refine,  implement,  monitor,  and 
evaluate  legislatively  created  sentencing  criteria.  Given  legislative  failure  to 
develop  clear  statements  of  sentencing  purpose  and  means  of  accomplishment, 
a  sentencing  commission  offer  an  alternative  means  of  carrying  out  these  func- 
tions if  not  excessively  constrained  by  law.  As  stated  aliove,  NMPC  finds  many 
of  the  "factors'  listed  as  allowable  for  inclusion  in  the  commission's  develoi)- 
ment  of  categories  of  offenses  or  offenders  to  be  vague  or  undesirable  and 
recommends  their  deletion. 

Finally.  NMPC  finds  the  importance  and  consequences  of  the  guidelines  to 
be  supplied  by  the  sentencing  commission  of  such  magnitude  that  we  reconnnend 
that  botli  houses  of  Congi-ess  be  required  to  approve  tliem  before  they  are  put 
into  use. 

Ms.  Harkis.  My  name  is  Kay  Harris.  I  am  very  pleased  to  appear 
here  today  on  behalf  of  the  Xatioiial  Moratorium  on  Prison  Constrne- 
tion.  Avhicli  is  a  project  of  tlie  TTnitarian  Universalist  Service  Commit- 
tee and  tlie  Xational  Council  on  Crime  and  Delinquency. 

The  National  Moratorium  on  Prison  Construction  was  established 
in  February  of  1975  to  work  toward  achievement  of  a  halt  to  construc- 
tion of  new  penal  facilities  and  jails  in  this  countrv.  Such  a  niora- 
toiium  on  prison  and  jail  construction  would  allow  time  and  a  tech- 
ni(iue  for  forciiiu  an  unprecedented  analysis  and  critique  of  our  entire 
criininal  justice  ])rocess  as  well  as  time  to  develop  and  implement  a 
variety  of  alternative  pi-ojrrams.  procedui-es.  policies,  aiul  pliilosophies. 

The  national  moratorium  olHce  cooi)erates  with  individuals  and 
.ai-oups  throufrhout  the  country  wlio  are  interested  in  stoppincr  the 
proliferation  of  prisons. 


9129 

There  is  one  major  concern  that  I  would  like  to  address  before  this 
subcommittee  today.  It  is  a  concern  that  lias  been  raised  repeatedly 
before  the  subcommittee,  but  it  is  of  such  fundamental  importance  that 
we  l)clieve  that  we  must  add  our  xoices  to  the  chorus. 

The  National  Moratorium  on  Prison  Construction  urges  that  S.  1437 
be  revised  to  drastically  limit  the  use  of  incarceration  as  a  criminal 
sanction. 

Professor  Dershowitz  testified  yesterday  to  the  effect  that  if  Crimi- 
nal Code  reform  resulted  in  construction  of  more  prisons,  it  would 
be  a  failure.  The  National  Moratorium  on  Prison  Construction  would 
assei-t  that  unless  com])i-elieiisive  Crimiiud  (lode  i-eform  sio-niticantly 
reduces  use  of  conventional  imprisonment  in  this  country,  it  will  be  a 
failure. 

Senator  Thurmond.  ^lay  1  interrupt  you  for  a  minute  ? 

AVe  have  just  put  your  stateinent  in  the  record.  I  thought  you  might 
want  to  emphasize  certain  points  or  bring  out  something  that  is  not 
in  your  statement.  Otherwise  there  is  a  duplication  in  the  record. 

Ms.  Hakris.  ok. 

I  would  like  to  emphasize  one  point.  We  feel  very  strongly  that  this 
country  needs  to  move  awa}'  from  its  practice  now  of  caging  many 
tliousauds  of  people  in  massive  congregate  institutions  where  those 
people  are  deprived  of  a  number  of  riglits  in  addition  to  the  depriva- 
tion of  libert3^  They  are  put  in  fear  of  their  lives.  They  live  in  constant 
fear  for  their  personal  safety.  They  are  deprived  of  the  opportunity  to 
associate  meaningfully  with  friends  and  relatives.  They  are  deprived 
of  many  opportunities  (o  lead  or  to  engage  in  activities  that  they 
choose  to  engage  in. 

We  believe  this  coimti-y  must  stop  the  ])]'actice  of  not  only  depriving 
people  of  liberty,  but  also  adding  many  other  punishments  to  the 
deprivation  of  liberty  as  a  sanction. 

Senator  Thurmond.  May  I  ask  you  a  question  here  ? 

Ms.  Harris.  Certainly. 

Senator  Thurmond.  As  I  understand  your  testimony,  you  are  op- 
posed to  sending  people  to  prison ;  is  that  correct  ?  What  do  you  have 
in  mind  ? 

Ms.  Harris.  What  we  are  opposing  is  the  confinement  of  people  in 
the  modern  American  prison  as  we  know  it  today. 

Senator  Thurmond.  What  do  you  suggest  as  an  alternative  to  send- 
ing people  to  prison? 

Ms.  Harris.  We  suggest  as  a  major  first  step  avc  should  turn  away 
from  use  of  confinement  by  using  a  broad  range  of  alternatives  in- 
volving such  things  as  fines,  curfews,  restrictions,  community  service 
orders,  restitution,  and  a  wdiole  range  of  penalties  that  are  punitive 
but  not  so  drastic  as  the  deprivation  of  liberty  in  a  massive  institution 
with  hundreds  of  other  people  far  from  famil}^  and  friends. 

Wo  think  that  the  idea  that  incarceration  protects  the  public  is,  in 
fact,  a  myth.  There  are  no  good  reasons  to  continue  to  incarcerate 
people  in  the  manner  that  w^e  do.  AVe  do  it  because  we  are  so  accus- 
tomed to  doing  it.  AA^e  believe  as  Americans  we  have  the  spirit  and 
opportunity  to  develop  more  humane,  more  sensible  kinds  of  alterna- 
tives. 


9130 

When  I  Fay  tlm.t  it  is  a  mytli  tliat  iiu'nrcciution  protocts  the  ]iub- 
lic,  if  yon  look  at  common  estimates  of  what  liappens  to  100  majoi- 
crimes — felonies — yon  Avill  see  tliat  of  100  major  crimes  tliat  are 
committed  only  r»0  are  reported  to  the  police.  For  the  50  crimes  re- 
ported to  the  police,  approximately  12  people  are  arrested.  Of  tliose 
12  people,  6  are  convicted;  ont  of  those  6.  ahout  IV2  go  to  prison. 

In  fact,  LEAA's  victimization  snrv(\vs  indicate  that  an  even  smaller 
percentage  of  crimes  are  reported  to  the  police,  so  probably  the  per- 
centage of  cT'imes  that  end  in  imprisonment  is  even  lower  than  1.5 
percent.  Yet  at  the  same  time  we  have  in  oui-  midst  at  any  sriven  time 
a  nnmber  of  people  who  will  someday  commit  a  violent  act.  In  any 
practical  sense  these  people  are  nndetectable.  Also,  in  a  constitutional 
sense  they  are  nndetectable  or  nnpredictabli',  Onr  inability  to  predict 
human  behavior,  especially  something  snch  as  a  violent  act.  has  been 
well  documented  by  a  nnmb'er  of  authorities,  some  of  whom  have 
testified  before  this  subcommittee. 

For  example,  there  was  a  recent  study  done  in  Columbus,  Ohio,  by 
the  Academy  for  Contemporary  Problems.  The  study  was  designed  to 
look  at  the  idea  that  incapacitation  in  penal  institutions  protects 
society. 

They  were  interested  in  the  serious  crimes  of  homicide,  rape,  rob- 
bery, and  aggravated  assault.  They  were  interested  in  how  many  of 
those  crimes  could  be  prevented  by  a  policy  that  would  involve  in- 
carceratinof  evervl^odv  convicted  of  the  felonv  for  a  flat  term  of  5  vears. 
losing  statistical  means,  which  has  some  definite  limitations,  they 
found  that  out  of  all  those  violent  crimes  that  I  listed  which  were 
connnitted  in  1  year  in  that  given  county,  only  about  4  percent  of  those 
could  have  been  prevented  if  all  felons  who  liad  been,  convicted  of 
felonies  in  the  previous  5  years  had  been  incarcerated  for  a  flat  term 
of  5  years.  They  concluded  from  the  study  that  more  cells  for  more 
criminal  will  not  reduce  crimes  enouirh  for  the  community  to  notice  a 
change. 

In  fact,  auothei"  author,  Gilbert  Canter,  whom  I  would  like  to 
quote  has  said : 

If  our  entire  criminal  juRtioe  apiiaratus  were  simply  closed  down,  there  wnnld 
I'e  no  incre.'ise  jiiid  there  would  iirolinhly  lie  a  decrease  in  tlie  anumnt  of  hehavior 
that  is  now  labeled  criminal. 

"We  are  indeed  saying  that  incarceration  as  we  know  it  is  not  neces- 
sary. In  fact,  there  is  quite  a  Int  of  evidence  that  incarceration  bi'c^Mls 
violence  in  our  society.  When  you  consider  \\\c  cost  of  incarceration 
today,  that  is  anothei-  factor. 

The  Congressional  liudget  Oflice  has  recenlly  reported  that  the  cost 
of  maintaining  a  Federal  priscmer  for  1  year  in  one  of  our  new 
Federal  institutions  is  over  $17.(^00,  This  is  on  top  of  the  co'^t  of  con- 
structing one  ])i'i<on  bed,  whi(^h  is  7iow  about  $+'),000,  in  the  Federal 
system. 

If  this  Criminal  Code  reform  does  not  do  something  to  move  away 
from  use  of  incarceration,  if  it  does  not  specify  a  pi-efeimce  against 
incai'ceration — a  vei'v  strong  ])r(d'erence — if  it  does  not  deciw  and  speak 
out  against  the  unauthorized,  un  justifiable  and  l)rutal  accounterments 
of  incarceration  in  this  country  today,  it  will  have  a  negative  impact. 

There  is  one  other  pai-ticular  point  I  want  to  make.  One  of  the  pri- 
mary activities  of  the  National  Afoi-atorium  on  Prison  Construction 


9131 

has  boon  working  to  stop  the  proliferation  of  the  Federal  prison  sys- 
tem. Every  year  since  at  least  19G1)  the  Federal  Bureau  of  Prisons  has 
come  to  the  Congress  and  asked  for  more  Federal  funds  for  construc- 
tion of  new  prisons  and  jails. 

Every  year  the  National  Moratorium  on  Pi-ison  Construction  joins 
other  witnesses  before  the  Appropriations  Committees  opposing  this 
expansion  of  the  Federal  prison  system  and  opposing  the  addition  of 
moi-e  and  more  Federal  prison  beds.  Each  year  the  Appropriations 
Committees  tell  us  that  we  really  are  before  the  wrong  committees. 
They  tell  us  vv^e  need  to  be  addressing  the  committees  which  establish 
the  criminal  laws  and  develop  the  criminal  sanctions  in  this  country. 

Despite  such  reluctance  to  interfere  with  the  jurisdiction  of  other 
conunittees,  the  Appropriations  Committees  on  both  sides  of  the  Con- 
gress have  expressed  strong  dissatisfaction  with  the  continued  demand 
for  more  Federal  prison  beds.  Last  year  the  Senate  Appropriations 
Committee  stated  that  the  current  range  of  alternatives  to  incarcera- 
tion is  clearly  unsatisfactory.  They  directed  the  Justice  Department 
in  the  strongest  possible  terms  to  pursue  development  of  additional 
alternative  sanctions. 

This  year  the  House  Appropriations  Committee,  has  disapproved 
funds  requested  by  the  Bureau  of  Prisons  for  planning  and  site 
acquisition  of  tv.-o  new  Federal  prisons  on  the  grounds  that  the  facili- 
ties have  not  been  well  justified  and  on  the  grounds  that  the  prison 
officials  should  be  pursuing  more  fully  alternative  means  of  housing 
offenders. 

We  feel  very  strongly  that  this  subconnnittee  needs  to  reassess  the 
impact  that  this  bill  might  have  on  prison  populations.  Incarceration 
should  be  reserved  for  the  most  serious  of  offenses,  as  it  is  the  most 
serious  sanction  we  have  other  than  execution.  Where  we  do  resort 
to  deprivation  of  liberty  as  a  sanction,  it  should  not  be  carried  out  in 
what  we  have  come  to  know  as  the  typical  modern  American  prison. 

With  the  recent  emphasis  by  President  Carter  on  human  rights, 
the  spotlight  of  the  world  will  surely  fall  on  America's  prisons  and 
jails.  Given  the  fact  that  we  have  the  highest  incarceration  rate  in  the 
industrialized  nations — in  fact,  among  reporting  nations  that  we  know 
of — and  given  the  fact  that  there  is  such  a  disproportionate  share  of 
racial  minorities  behind  our  bars,  there  is  jnuch  that  we  should  not 
want  to  come  into  world  view.  We  Avould  not  stand  up  very  well. 

Let  us  acknowledge  the  inhumanities  that  exist  in  our  present  system 
and  move  affirmatively  toward  their  prompt  elimination. 

Thank  you. 

Senator  Tiiur^iond.  We  are  pleased  to  have  you  here.  Thank  you 
for  your  thoughts. 

Our  next  witness  is  Mr.  John  Cleary.  I  believe  he  has  Mr.  Roger 
Lowenstein  with  him.  They  are  here  on  behalf  of  the  National  Legal 
Aid  &  Defenders  Association. 

If  it  is  agreeable,  Mr.  Cleary,  we  will  ])ut  your  entire  statement 
in  the  record.  Then  we  will  give  you  15  minutes  to  say  anything  in 
addition  to  that.  During  the  15  minutes  you  may  explain  anything 
about  3^our  statement  or  bring  up  new  points  not  alread}^  in  your 
prepared  statement. 

[The  material  follows :] 


9132 

Pkepaked  Statement  of  John  J.  Cleary,  Executive  Director,  Federal  Defend- 
ers OF  San  Diego,  Inc.,  the  Federal  COiMMu.vixY  Defender  Organization  for 
the  Southern  District  ok  California  ox  Behalf  of  the  National  Legal 
Aid  '&  Defender  Association 

I.  introduction 

A  compromise  lias  been  made  to  remove  some  defects  of  S.  1  (94th  Cong. 
1st  Sess.)  which  has  not  only  reduced  the  size  of  the  proposed  revision  ol"  the 
Federal  Criminal  Code  (title  IS)  but  has  also  allayed  public  criticism.  This 
reduced  version  still  needs  further  study  and  review  so  as  to  provide  a  better 
integration  and  comparison  with  existing  Federal  practice.  Although  as  a  Fed- 
eral defender  I  tind  many  aspects  of  S.  14.'^>7  repugnant  to  the  concept  of  limited 
federal  police  jurisdiction  (i.e.  the  expansion  of  Federal  jurisdiction,  the  crea- 
tion of  new  offenses  (solicitation  etc.).  and  the  redefinition  of  offenses  to  broaden 
the  scope  of  criminal  statutes),  the  most  dangerous  provisions  deal  with  Federal 
sentencing. 

Existing  Federal  laws  on  sentencing  need  substantial  revision  and  reform  to 
eliminate  arbitrary  action  and  unduly  long-term  confinement,  but  the  sentencing 
provisions  of  S.  1487  are  wore  than  existing  law.  S.  1437,  in  the  guise  of  reform, 
exercises  present  protection  for  the  convicted  defendant. 

S.  1  and  S.  1437  have  been  drafted  with  a  clearly  prosecutorial  slant,  and  it  is 
obvious  that  the  judiciary  has  but  little  involvement  in  the  drafting  of  such  leg- 
islation. Chief  Justice  Burger  has  very  validly  criticized  the  action  of  Congress 
in  adopting  legislation  without  considering  its  "impact"  (tn  the  judiciary.  This 
wholesale  revision  and  expansion  of  Federal  criminal  law  will  deluge  the  Federal 
courts  with  new  criminal  cases  and  increased  litigation,  and  yet  there  has  been 
little  and  late  response  in  Congress  to  the  needs  of  the  judiciary  for  more  judges. 
It  is  anomalistic  that  in  our  Federal  criminal  justice  .system  we  will  spend  $2 
billion  for  the  Federal  investigative  and  enforcement  agencies  to  prosecute 
criminal  laws  in  the  Federal  courts,  but  provide  less  than  .$400  million  (one-lifth  ) 
for  the  total  operation  of  the  Federal  judiciary  that  must  consider  civil  as  well 
as  criminal  litigation. 

Criminal  litigation  is  tolerably  proce.ssed  with  the  aid  of  such  dubious  fea- 
tures as  "plea  bargaining,"  uikI  the  use  of  Draconian  penalties,  presumptive 
mandatory  minimum  sentences,  and  high  possibility  of  parole  ineligibility, 
coupled  with  limited  flexibility  of  the  district  judge  at  sentencing  creates  an 
awesome  response.  The  observer  has  the  feeling  that  the  new  increased  penalty 
provisions  were  designed  to  use  long-term  confinement  as  a  threat  to  avoid  the 
possibility  of  litigation,  so  that  tlie  average  American  faced  with  a  Federal  accu- 
sation would  sacrifice  his  fundamental  right  of  his  "day  in  court"  to  avoid  threat- 
ened long-term  confinement.  Ironically,  the  "upping"'  and  crystallizing  of  the 
jienalties  may  not  induce  guilty  pleas  liut  increase  trials.  The  person  faced  with 
a  relatively  certain  penalty  will  have  nothing  to  lose  by  jiresenting  the  case  to  a 
jury.  litigation  will  proliferate  under  this  system,  and  yet  the  prosectitor  still 
maintains  the  ability  to  niiuiipulate  this  .system  by  the  nature  of  charge  that  be 
tiles  so  as  to  have  absolutely  unfettered  discretion  at  sentencing.  Again,  the 
ii'ony  of  the  system  is  to  restrict  the  disci'etion  of  the  judge  but  to  provide  the 
jiotential  for  serious  abuse  on  the  iiart  of  the  iirosecutor.  It  is  self-evid«Mit  that 
those  practicing  on  the  behalf  of  persons  charged  with  crime  have  had  little  in- 
)"ut,  and  although  a  few  may  be  given  a  limited  op])ortunity  at  this  late  date  in 
these  liearings,  the  very  drafting  should  have  in<-lu(led  the  input  of  the  defense 
bar. 

Federal  courts  have  resorted  to  flic  piinciple  of  lenity  favoring  the  imposition 
of  a  les.ser  penalty  in  c(mstruing  penal  statutes.  To  the  contrary  S.  1437  is  con- 
finement oriented.  Arbitrary  abuses  in  the  imyxisition  of  penal  .servitude  shouUl 
be  I'emoved  but  not  in  a  manner  that  would  jireclude  the  trial  judge  from  indi- 
vidna'i'/lii'.'  the  sentence  to  fif  flie  ofl'cnse  and  the  offcrder. 

In  an  effort  to  .sav(>  fbis  leuislatio-i  n  rather  novel  I'lid  ai^jarenlly  reforsn 
(^oncent  of  n  Sentencing  Commission  (P  2S  U.S.C  1)01')  is  added.  This  Sentenc- 
ing Commission  without  any  specific  standards  is  to  establish  guidelines  for 
sentencing  to  iniiwisonnKMit.  ineligibility  for  parole,  and  other  di'-iiiosilions  of 
ofTendt'rs.  The  concept  had  flie  suiMioit  of  those  seeking  to  reduce  the  harshness 


1  "P"  plnoed  in  front  of  n  T'.S.P.  citation  rofors  to  a  propos.Tl  in  S.  14.S7.  Otherwi.«p.  siuh 
rofprpncpR  are  to  cxistln;:  Fpflpr.il  Ian-. 


9133 

to  au  alternate  concept  espousing  the  otlier  extreme.  The  provisions  of  S.  1437 
do  not  abolish  the  Parole  Commission,  which  uses  a  set  of  similar  guidelines 
pursuant  to  Congressional  authority,  but  creates  a  competing  agency  without 
insuring  that  a  new  one  would  have  any  better  chance  of  success  than  the  Parole 
Commission.  The  creation  of  the  new  agency  (Sentencing  Commission)  in  addi- 
tion to  the  old  agency  (Parole  Commission)  both  without  specific  congressional 
guideUnes  almost  predicts  failure. 

Congress  has  made  revisions  in  recent  years  of  various  parts  of  the  lederal 
criminal  code,  but  S.  14-37  has  the  effect  of  obviating  this  recent  congressional 
action.  Much  of  it  is  in  the  form  of  a  "word  massage"  by  the  artistic  hand  of 
those  interested  in  increasing  the  opportunities  for  prosecution  or  in  achieving 
greater  opportunities  for  confinement.  Last  year  the  Parole  Commission  and 
Reorganization  Act  of  1976  was  enacted,  but  now  a  new  concept  is  introduced 
without  a  fair  evaluation  of  legislation  only  one  year  old.  In  1974  there  was  a 
revision  of  the  Federal  Juvenile  Delinquency  Act,  and  instead  of  S.  1487  adopting 
the  law  less  than  3  years  old.  there  is  again  a  clear  effort  to  dilute  and  eliminate 
many  of  the  ameliorative  and  reform  provisions  contained  in  that  legishition. 
Our  only  expungement  law  for  first  offenders  (21  U.S.C.  844)  has  also  been  modi- 
fied with  slight  word  changes  so  as  to  denigrate  the  rights  of  the  individual. 
The  work  of  the  Congress  in  recent  years  should  not  be  so  easily  discounted. 

S.  1437  is  too  much  too  soon.  Although  the  effort  to  reduce  its  bulk  has  been 
achieved,  the  magnitude  of  this  proposed  legislation  staggers  understanding  and 
comprehension  which  is  necessary  to  provide  adequate  feedback  on  these  revolu- 
tionary legislative  proposals.  It  is  strongly  urged  that  legislation  be  redrafted  to 
focus  on  some  particular  aspect  of  the  Federal  criminal  justice  system  (i.e. 
sentencing,  jurisdiction),  and  after  careful  study  and  evaluation  from  those 
practicing  regularly  in  the  field,  that  legislation  be  considered  by  this  Congress. 

II.  GENERAL  PURPOSE    (P   18  U.S.C.   101) 

S.  1437  provides  in  section  101(b)  general  standards  for  prescribing  sanctions, 
but  neither  in  this  section  nor  in  the  later  sections  dealing  with  sentencing  is 
there  any  orientation  concerning  the  predisposition  toward  the  use  of  confine- 
ment. It  is  urged  that  section  101  be  amended  to  include  the  following  principles : 

1.  The  sentence  imposed  in  each  case  should  call  for  the  minimum  amount  of 
custody  or  confinement  which  is  consistent  with  the  protection  of  the  public,  the 
gravity  of  the  offense,  and  the  rehabilitative  needs  of  the  defendant." 

2.  A  sentence  not  involving  confinement  is  to  be  preferred  to  a  sentence  involv- 
ing partial  or  total  confinement  in  the  absence  of  affirmative  reasons  to  the 
contrary.'' 

III.  IMPRISONMENT 

Our  prisons  are  often  placed  where  a  life  of  crime  is  encouraged  rather  than 
deterred.  The  prison  should  be  the  last  resort.  Although  it  may  be  necessary 
for  those  who  cannot  otherwise  be  restrained,  the  use  should  be  limited  rather 
than  expanded.  Efforts  at  prison  reform  and  the  opportunities  for  rehabilitation 
and  vocational  training  should  be  increased,  but  today  there  is  an  attitude  com- 
mon among  prison  authorities,  including  the  Bureau  of  Prisons,  that  they  are 
little  more  than  warehouses.  Ultimately,  the  people  serving  in  those  institutions 
return  to  our  community  and  are  often  embittered  by  the  experience.  The  needs 
of  society  would  be  best  served  by  a  general  orientation  in  any  federal  criminal 
code  to  avoid  confinement  unless  necessary. 

Existing  laws  provide  statutory  maximums  that  are  ameliorated  by  the  actual 
sentences  imposed  by  judges  in  the  reasonable  exercise  of  their  discretion.  Some- 
times that  discretion  is  abused.  Long-term  confinement  (more  than  3  years)  is 
reserved  for  the  minority  of  serious  offenders,  and  it  must  be  remembered  that  in 
the  Federal  criminal  justice  system  we  are  faced  with  the  Federal  criminal  de- 
fendant who  is  only  rarely  charged  with  those  common  law  offenses  that  give 
rise  to  more  serious  offenses  prosecuted  -udthin  State  court  (i.e.  murder,  robbery, 
burglary).  Even  then  the  sentences  meted  out  by  American  courts  have  been 
known  to  be  excessive.  Prof.  Daniel  J.  Meador,  now  Special  Assistant  Attorney 
General,  prepared  a  report  in  3965  entitled  "The  Review  of  Criminal  Sentences 
in  England."  In  that  report  he  offers  this  commentary  on  American  sentencing 
practices : 


-  AB.\   standards   relating  to  sentencing  alternatives  and  procedures,   standard  2.2. 
3I))id.   standard   2.3(c). 


9134 

•'Another  point  to  be  noted  is  that  criminal  sanctions  are  imposed  less  heavy- 
liatuledly  in  England  than  in  the  United  States.  Observation  suggests  that  English 
judges  give  probation  or  a  fine  in  cases  where  imprisonment  would  be  imposed 
in  America.  English  prison  sentences  are  shorter.  A  3-year  term  is  considered 
substantial,  and  7  or  S  years  a  very  long  term.  The  30  year  sentences  given  in 
tbe  train  robbery  case  are  almost  unheard  of."  "ABA  Standards  Relating  to 
Api)ellate  Review  of  Sentences,''  appendix  C  97-98  (approved  draft  1968). 

This  disproportionate  affinity  for  long-term  confinement  should  be  abated. 
The  "ABA  Standards  Relating  to  Sentencing  Alternatives  and  Procedures,"  stand- 
ard 2.1(d)  provides:  "For  most  offenses,  on  the  other  hand,  the  maximum  au- 
thorized prison  term  ought  not  to  exceed  10  years  except  in  unusual  cases  and 
normally  should  not  exceed  5  years." 

Since  the  Federal  jurisdiction  is  a  limited  one,  it  might  gain  guidance  from 
the  largest  state  in  formulating  new  statutes  for  sentencing.  Elective  Julv  1. 
1977,  California  lias  completely  revised  its  sentencing  scheme.  Except  in  capital 
cases,  the  maximum  range  of  a  sentence  is  5,  6  or  7  years  with  the  possibility  of 
enhancements  up  to  3  years  and  the  possibility  of  consecutive  sentences.*  The 
California  Judicial  Council  on  May  13,  1977  promulgated  sentencing  rules  to 
implement  this  new  Uniform  Determinate  Sentencing  Act  of  197G.  Cal.  Stats. 
1976.  CH  1139.  This  system  too  has  a  tack-on  parole  provision  of  not  more  than 
three  years.  The  length  of  confinement  is  substantially  less  for  a  jurisdiction  that 
has  to  deal  with  the  common  occurring  criminal  offenses  which  would  more  often 
involve  violence  or  other  danger  to  society  than  the  type  of  offenses  that  are 
ordinarily  the  fare  of  federal  courts.  A  range  of  sentences  under  California  law 
that  will  take  effect  within  a  month  are  far  less  than  the  zones  outlined  in  S.  1437. 

Under  existing  law  the  judge  at  sentencing  can  grant  probation  or  impose  a 
sentence  of  confinement  which  is  tailored  to  the  circum.stances  of  the  offen.se  giv- 
ing credit  to  the  extenuation  or  mitigation  presented  by  the  defendant.  The 
abuses  from  the  system  come  from  the  imposition  of  disproportionate  or  long- 
term  confinement  not  justified  by  the  circumstances  surrounding  the  offen.se  or 
tlie  background  of  the  individual.  The  existing  ameliorative  procedure  for  this 
is  our  Parole  Commission,  even  though  it  does  have  a  history  of  malfunctioning. 
The  defendant  facing  a  criminal  charge  must  be  advised  of  the  maximum  penalty. 
That  is  a  question  asked  of  the  defendant  at  the  time  the  plea  of  guilty  is  taken 
(rule  11.  Federal  rules  of  criminal  procedure).  When  a  lawyer  advises  a  client, 
be  would  be  remiss  in  his  profe.ssional  respon.sibilities  if  he  did  not  state  the  maxi- 
mum, and  although  counsel  may  miscalculate  in  his  professional  estimate  the 
actual  sentence  impose^l  by  the  judge,  his  responsiliility  is  to  make  clear  that 
which  is  the  outside  limit  for  confinement.  The  maximum  penalty,  therefore,  can 
provide  some  reasonable  degree  of  certainty.  Hopefully,  it  is  not  used  in  most 
instances.  Under  existing  law,  defense  counsel  states  the  statutory  maximum,  but 
into  it  he  must  also  consider  two  essential  factors  :  reduction  for  good  time  credit, 
as  well  as  parole  eligibility.  The  first  is  a  "top";  the  second  is  a  minimum.  On  a 
L'O-year  sentence,  a  prisoner  would  only  h:ive  to  serve  13  years,  1  month,  and  there 
is  a  possibility  that  the  prisoner  could  accpiire  "earne<l  good  time"  which  would 
make  the  sentence  served  approximately  11  years  or  less.  A  20-year  sentence 
under  existing  law  might  i-esult  in  service  of  less  time  than  on  a  12-year  sentence 
(cla.ss  C  felony)  under  S.  1437. 

F.ail-jumping  might  serve  to  point  out  the  disparity.  If  a  person  is  charged  with 
bail-jumping  on  a  class  A-D  felonv,  ho  is  subiect  to  6-.vears  confinement.  (P  18 
U.S.C.  2301(b)  (4) ).  He  has  an  add-on  parole  term  of  one  to  2  vears  (P  IS  II.S.C. 
3S34(b)  (3))  and  a  contingent  term  of  confinement  of  90  days  (P  IS  U.S.C.  2303 
(b)  (D).  Tender  a  i>ail-junip  offense  under  S.  1437.  the  defendant  has  tbe  inaxi- 
nnun  term  of  confinement  of  (!  years  90  days  i)lus  a  total  exposure  to  confinement 
and  parole  to  a  maximum  of  eight  years  90  days.  TTnder  existing  law.  the  5-.vear 
offen.se  for  bail-jumping  (IS  T'.S.C.  3150),  with  good  time  deduction,  has  a  man- 
datory relea.se  (IS  V.^.C.  416.3.  416^4)  after  3  years  S  months  service  of  his  .sen- 
tence with  a  maximum  i)arole  period  at  tliat  release  of  10  months.  Tender  exist- 
ing law.  tbe  totiil  exposure  to  conlinement  is  3  ye;irs  S  months  with  an  overall 
exposure  to  confinement  and  parole  of  4^/4  years.  The  difference  between  existing 
law  and  the  proposed  law  is  startling. 


*  I'nliko  S.  14,37,  California  preserved  goo.l  fiino  reiliicllnns  with  those  rodnred  terms  of 
eonniii'inrnt. 


9135 

IV.     PAROLE    INELIGIBILITY 

Under  existing  law,  the  trial  judge  may  designate  a  period  of  up  to  one-third 
of  the  total  sentence  as  a  period  of  parole  ineligibility.  18  U.S.C.  4205(b)  (1).  On 
a  sentence  of  (5  mouths  to  1  year,  the  judge  may  designate  one-third  of  the  sen- 
tence as  time  for  release  on  parole  but  need  not  do  so.  18  U.S.C.  4205(f).  A  per- 
son serving  a  sentence  of  1  year  and  1  day  is  eligible  for  release  on  parole  after 
serving  4  months  (18  U.S.C.  4205(a) ),  and  if  the  judge  imposes  sentence  under 
18  U.S.C.  4205(b)  (2)  the  person  is  eligible  for  parole  at  any  time.  S.  1437  inor- 
dinately favors  a  concept  of  parole  ineligibility.  The  Parole  Commission  has  not 
been  abolished,  but  now  the  trial  judge  has  the  discretion  to  discount  their  po- 
tential undue  generosity  in  releasing  a  meritorious  prisoner  by  determining  at 
sentencing  that  such  future  conduct  will  not  in  any  way  accelerate  release  from 
confinement.  Under  S.  1437  the  prisoner  must  first  serve  6  months  before  he  is 
eligible  for  parole  (P  IS  U.S.C.  3831(a) ),  and  the  district  court  may  impose  the 
term  of  parole  ineligibility  up  to  90  percent  of  the  total  term  of  confinement  (P 
18  U.S.C.  2301(c) ).  After  the  120-day  period  has  expired  for  a  motion  to  reduce 
(rule  35,  Federal  rules  of  criminal  procedure),  only  the  Bureau  of  Prisons  may 
suggest  the  removal  of  a  term  of  parole  ineligibility.  (P  18  U.S.C.  2302(c)  (1)  ) . 

V.    PAROLE 

Existing  federal  law  provides  for  parole  as  an  integral  part  of  the  overall  sen- 
tence. If  a  prisoner  is  sentenced  to  10  years  confinement  and  released  after  4 
years,  he  has  a  6-year  parole  period.  The  recent  revisions  of  our  parole  system 
permit  early  termination  at  any  time,  a  file  review  by  the  Parole  Commission 
after  2  years,  and  a  presumptive  termination  of  parole  after  5  years  which,  unless 
terminated  must  give  the  parolee  an  adversary  hearing  with  counsel  to  determine 
the  reasons  for  extension  of  parole.  (IS  U.S.C.  4211).  Under  S.  1437  pai-ole  is  an 
add-on  feature  to  the  term  of  confinement,  which  extends  out  the  overall  period 
of  federal  control  and  supervision.  Even  though  the  prisoner  may  have  served 
his  sentence,  during  the  period  of  parole  there  is  a  provision  for  contingent  con- 
finement up  to  90  da.vs  which  will  serve  as  a  punitive  sanction  in  the  event  of 
some  misstep  on  parole  even  though  the  total  term  of  confinement  has  been  served. 
If  the  individual  has  been  required  to  serve  every  day  of  his  sentence  to  confine- 
ment, then  the  sentence  should  be  terminated.  This  type  of  parole  after  com- 
plete service  of  confinemeiit  is  nota  legitimate  governmental  control,  and  this 
type  of  parole  provision  only  further  strengthens  the  consideration  that  service 
of  every  day  of  confinement  will  literally  be  possible  under  S.  1437. 

VI.     SENTENCING    COMMISSION 

The  duties  of  the  Sentencing  Commission  include  the  formulation  of  guide- 
lines for  sentencing  and  parole  (P  28  U.S.C.  994),  but  only  the  most  general 
guidelines  are  used  to  suggest  what  standards  should  be  achieved.  The  Parole 
Commission  and  Reorganization  Act  of  1976  provide  authority  to  promulgate 
rules  and  guidelines  for  parole  (18  U.S.C.  4203(a)(1)),  but  the  u.se  of  the 
Salient  Factor  Score  and  the  guidelines  on  sentencing  ranges  leave  much  to  be 
desired.  The  fact  that  the  person  might  have  used  an  automobile  in  his  offense 
(i.e.  in  bribery)  would  reduce  his  Salient  Factor  Score,  and  the  arbiti'ariness 
of  the  sentencing  ranges  has  also  generated  much  criticism.  Although  it  has 
been  suggested  that  the  Sentencing  Commission  will  devise  specific  sentencing 
ranges,  there  is  nothing  in  the  proposed  legislation  for  the  duties  of  the  Sen- 
tencing Commission  that  would  preclude  them  from  coming  up  with  the  very 
same  standards  now  used  by  the  Parole  Commission.  If  the  Parole  Commission 
was  functioning  properly,  the  Sentencing  Commission  would  not  be  necessary. 
S.  1437  does  not  even  have  the  governmental  efficiency/integrity  to  establish  one 
or  other  as  the  agency,  and  it  is  somewhat  ineflicient  and  impractical  to  expect 
a  separate  federal  agency  to  follow  guidelines  promulgated  by  another  in  its 
daily  work,  especially  where  those  guidelines  might  have  conflicted  with  prior 
practices  of  that  agency.  The  principles  sought  in  the  reform  of  sentencing 
could  now  be  achieved  by  an  enlightened  and  renovated  Parole  Commission. 

Congress  should  establish  sentence  ranges  if  they  are  to  be  used.  California 
has  set  the  example  of  one  procedure,  but  it  would  be  doubtful  that  the  Cali- 
fornia legislature  could  be  induced  to  transfer  their  responsibility  of  setting 


9136 

some  sentencing  guidelines  by  leaving  the  specific  range  of  sentences  up  to  the 
Sentencing  Commission  (i.e.  Jnrlicial  Council  of  California  to  promulgate  rules 
which  only  general  maximum  ranges).  Whether  or  not  such  delegation  of  legis- 
lative powers  is  constitutional,  it  is  improper  without  some  specific  standards 
to  avoid  the  situation  that  has  developed  with  the  Parole  Commission. 

One  of  the  examples  Senator  Kennedy  has  suggested  that  might  be  used  by 
the  Sentencing  Commission  dealt  with  the  offense  of  bribery.  A  government 
officer  holding  the  position  of  high  public  trust  who  solicits  and/or  receives 
something  of  value  knowing  its  illegal  purpose  but  enters  into  no  specific  agree- 
ment with  the  briber  about  how  the  payment  will  be  earned  is  to  receive  2  to  3 
years,  but  if  he  had  a  particular  agreed  upon  action  as  part  of  the  bribe  then 
the  sentence  would  be  3  to  4  years.  Who  determines  the  actual  basis  for  the 
sentencing  range — the  jury  or  the  judge?  As  a  defense  lawyer,  I  feel  that  the 
precedent  is  such  that  it  would  require  the  jury,  the  trier  of  fact,  to  determine 
the  specific  allegations  that  might  be  considered  at  sentencing.  Instead  of  the 
general  issue  of  guilt,  the  jury  will  now  have  to  find  the  specific  degree  of  involve- 
ment. If  the  jury  did  not  consider  that  factual  controversy,  then  the  present 
sentencing  scheme  would  have  to  be  substantially  expanded  to  include  due 
pi-ocess  guarantee  so  that  the  actual  determination  may  be  made  openly  and 
fairly. 

The  Sentencing  Commission  would  undermine  judicial  integrity  and  responsi- 
Itility.  Sensitive  to  the  import  of  his  decision,  the  judge  must  tailor  the  sentence 
to  fit  the  offender  and  the  offense.  Although  the  giiidelines  will  permit  deviation, 
deviations  could  be  appealed.  The  judge  recognizing  promulgation  of  guidelines 
from  upon  high  would  take  the  easy  course  by  merely  accepting  a  range  pro- 
vided by  the  guidelines.  Now  the  judge  must  flccept  responsibility  for  the  sen- 
tence, but  the  use  of  guidelines  would  permit  "the  passing  of  the  buck."  Those 
judges  who  might  be  the  "offenders''  would  still  be  able  to  "end-run"  the  guide- 
lines, and  even  with  appellate  review  it  will  be  diflticult  to  reverse  their  deter- 
mination based  upon  a  face-to-face  confrontation  with  the  defendant. 

The  Sentencing  Commission  and  S.  1437  do  not  eliminate  Rule  35,  Federal 
Rules  of  Criminal  Procedure,  which  provides  for  a  motion  to  reduce  sentence 
120  days  after  the  original  sentence  is  imposed  with  the  period  tolled  during 
an  appeal.  Especially  where  there  is  an  appeal  and  the  defendant  confined,  the 
district  court  often  gains  an  advantage  from  an  institution  report  on  the  progress 
of  the  defendant  in  prison.  The  judge  has  the  second  meaningful  chance  to 
evaluate  his  sentence.  The  potential  of  Rule  35  should  be  expanded  to  provide 
later  reevaluation  in  light  of  actual  performance,  but  the  Sentencing  Commission 
with  its  "freeze-dried"  sentencing  guidelines  effective  at  the  time  of  sentencing 
are  the  T)roduct  of  pure  prognostication  giving  little  advantage  to  hindsight 
review. 

The  Sentencing  Commission  not  only  duplicates  the  work  of  the  Parole  Com- 
mission but  does  inefl!iciently  that  which  could  be  more  readily  handled  by  the 
Court  of  Appeals.  A  defendant  may  now  appeal  his  conviction,  and  if  he  files 
a  motion  to  reduce,  he  may  appeal  the  denial  of  the  motion  to  reduce  for  sen- 
tence. Although  the  apj)ellate  review  of  a  motion  to  reduce  sentence  is  extremely 
limited,  the  vehicle  is  there.  If  a  conviction  were  reviewed,  it  would  add  little 
to  inclndp  tiie  sentence  imi)osed  by  the  judge.  If  the  sentence  were  reviewed,  the 
circuit  would  have  insight  into  the  range  of  sentences  and  the  performance  of 
the  district  judses.  and  the  circuits  would  be  better  able  to  ameliorate  arbitrari- 
ness in  sentencing  in  those  rare  cases.  Furtlier,  the  arbitrariness  occurs  in  the 
excessive  cases,  not  in  the  case  where  the  defendant  receives  a  light  sentence. 

The  Seiiteucinir  Commission  in  fftrniulating  its  guidelines  will  eonsider  tlie 
l-ackeround  of  tlie  defendant  (P  2S  r.S.(\  '.t!).">(h))  which  would  include'  tlie  de- 
fendant's criminal  history.  The  offense  should  be  the  key  in  imposing  punish- 
ment f confinement),  and  tlie  backsround  on  the  individual  should  onlv  be  used 
(o  j'lleviate.  not  agiiravate  the  sentence.  The  background  of  tlie  in(livi<lnnl  is 
iiiU'ortant  in  determininsr  tlie  grant  of  proliation  as  an  altenintive  to  confine- 
ment ( continement).  :ii'd  the  background  on  tlie  iedividnal  siienld  o'^lv  be  used 
tence  of  confinement.  In  acliieving  some  uniformity  in  sent-nces.  the  offerse 
sluMild  br>  tlie  "polar  star"  for  tlie  duration  of  coiifinenHMit.  However,  the  pro- 
)insed  legislation  (S.  l-t.'lT)  is  extremely  ambiiruoiis  and  iicrinits  new  standards 
rainrin;?:  from  those  now  used  by  the  Parole  Commission  to  those  suggested  by 
the  LEAA  Denver  Project  which  allowed  some  type  of  cross-reference  or  point 


9137 

system  to  allow  mechanical  computation  of  the  actual  sentence.  Even  the 
guidelines  permit  variation,  and  that  is  only  due  recognition  to  the  inherent 
discretion  a  judge  must  have.  If  discretion  is  allowed,  what  ohjective  factors 
or  criteria  are  to  be  used  by  the  sentencing  judge?  If  the  LEAA  Denver  Project 
is  to  be  used,  then  it  should  be  spelled  out  in  the  statute.  If  the  Parole  Commis- 
sion guidelines  are  propei',  then  the  statute  should  so  state. 

For  the  Sentencing  Commission  guidelines  to  have  any  elTect,  the  judge  will 
have  to  state  more  than  his  reasons  at  the  time  of  sentencing  (P  18  U.S.C. 
2003(b) ).  He  will  have  to  state  the  factual  considerations  placing  the  defendant 
in  a  particular  category.  There  is  no  provision  for  a  statement  of  these  requi- 
site factual  tindlngs,  and  they  are  highly  important  in  light  of  the  fact  that  any 
type  of  evidence  may  be  considered  at  sentencing  (Federal  Rules  of  Evidence 
1101(d)  ;  P  18  U.S.C.  3714)  ). 

The  guidelines  proposed  by  the  Sentencing  Commission  would  be  national 
guidelines,  but  such  guidelines  discount  regional  and  other  variances.  The  fed- 
eral jurisdiction  is  a  limited  one.  and  it  dues  not  have  the  day-to-day  criminal 
justice  experience  of  a  state.  Although  I  am  not  suggesting  "local  community 
standards,"  I  think  that  sentencing  patterns  geared  to  a  region  such  as  the  size 
of  a  Circuit  would  be  more  appropriate.  The  type  of  federal  offenses  might  vary 
with  the  region,  and  guidelines  might  be  more  accurate  along  those  lines. 

The  purpose  of  the  Sentencing  Commission  is  to  limit  the  broad  discretion 
of  the  trial  judge,  but  what  limitations  are  placed  upon  the  unbridled  discretion 
of  the  prosecutor?  May  a  prosecutor,  by  his  form  of  charging  or  factual  allega- 
tions, limit  the  range  of  sentencing  by  the  district  judge?  The  district  judge 
now  may  consider  any  evidence  at  sentencing,  and  will  the  district  judge  be 
able  to  go  beyond  the  actual  charge  and  characterize  the  offense  so  as  to  lit 
within  the  guidelines?  For  example,  the  oflfense  originally  charged  was  a  4-6 
year  offense  Tinder  the  guidelines,  but  the  offense  to  which  the  plea  of  guilty  is 
under  permits  probation  or  a  sentence  of  up  to  2  years.  Would  the  trial  judge 
still  be  aide  to  impose  the  4-(3  year  sentence  even  though  there  has  been  no  for- 
mal finding  of  that  degree  of  criminal  liability.  It  would  be  suspected  that  if 
the  prosecution  and  defense  counsel  agreed  either  upon  a  particular  character- 
ization, the  trial  judge  would  most  likely  accpiiesce.  If  so.  the  whole  working 
of  the  Sentencing  Commission  could  be  aA^oided.  This  would  give  the  prosecutor 
a  povA-erful  tool  to  induce  guilty  pleas  to  offenses  of  lessor  liabilities  to  avoid 
the  more  serious  liabilities  set  forth  in  a  sentencing  schedule.  If  district  judges 
did  not  permit  this  tyyte  of  device,  the  only  alternative  would  be  increased 
jury  trials  on  the  issue  of  criminal  liability  to  avoid  the  foregonng  sentence 
predicted  by  the  guidelines  of  the  Sentencing  Commission. 

The  Sentencing  Commission  will  have  a  difficult  time  taking  into  consideration 
different  districts  charging  practices.  In  one  district  a  charge  of  iK)ssession  of 
20  kilos  of  marijuana  may  rate  a  misdemeanor  with  reasonable  expectation  of 
probation,  but  in  another  district  would  be  treated  as  a  felony,  (21  U.S.C.  841 
{a)(l))  with  reasonable  exiiectation  of  a  penitentiary  sentence.  The  Sentenc- 
ing Commission  will  have  a  difficult  time  comparing  these  two  because  of  the 
disposition — one  a  misdemeanor,  and  the  other  a  felony.  The  resolution  of  this 
by  guidelines  would  seem  to  be  impossible. 

VII.    SENTENCING    OF    PROBATION 

Under  existing  law,  probation  is  an  alternative  to  a  sentence  of  confinement, 
but  under  S.  1437  it  is  referred  to  as  a  form  of  sentence.  Under  existing  law,  if 
the  defendant  is  .sentenced  to  a  sentence  of  more  than  (i  months,  the  court  may 
recpiire  that  the  defendant  spend  up  to  6  months  in  a  jail-type  institution  and 
suspend  the  execution  of  the  remainder  of  confinement  and  place  the  defendant 
en  probation.  This  provision  would  require  characterization  of  the  offense  at 
the  time  of  sentencing  so  that  the  defendant  would  be  aware  of  the  maximum 
he  was  facing  if  there  was  a  later  violation  of  probation.  Under  S.  1437  the  0 
month  condition  of  confinement  is  available  for  a  sentence  of  probation,  but  the 
defendant  would  not  become  aware  of  the  maximum  until  the  time  of  final 
.sentencing  after  a  possible  revocation  of  probation.  The  danger  with  this  pro- 
cedure is  that  the  misconduct  giving  rise  to  the  probation  revocation  might  in- 
fluence the  court  in  determining  the  nature  of  the  sentence  of  confinement  for 
the  original  charge.   Mandatory  supervision  and  probation  should  not  be   re- 


913S 

quired  (P  IS  U.S.C.  3801).  The  qualification  for  a  probation  officer  slioiild  in- 
cliule  at  least  a  colle£,'e  deuree  in  a  social  science  (P  18  U.S.C.  3802 K  and  it 
does  not  seem  ajipropriate  tliat  federal  statute  slionld  authorize  a  probation 
officer  to  carry  a  firearm  fP  18  U.S.C.  3010).  One  of  the  most  serioiis  deficiencies 
of  S.  1437  is  its  failnre  to  jrive  some  preferred  statns  to  probation  as  an  alter- 
native to  confinement. 

VIII.    FFDERAL    YOUTH    CORRECTION    ACT 

In  1950,  Congress  initiated  an  experiment  for  yonthfnl  offenders  \A-hich  focnsed 
on  "treatment  and  supervision"  rather  tlian  imprisonment.  (18  U.S.C.  r)026).  See 
also  Dorszinifiki  v.  United  ^fatea.  41S  U.S.  424  (1974)  ).  This  sentencing  alterna- 
tive is  available  for  youthful  offenders  nj)  to  20  years  of  age.  (18  U.S.C.  500G(e). 
4216).  Although  the  Bureau  of  Prisons  has  not  responded  well  to  the  treatment 
for  youthful  offenders  ( they  have  been  placed  in  penitentiaries  and  treated  as 
regular  adult  prisoners),  the  purpf)se  of  the  legislation  should  be  continued  and 
not  abandoned.  The  principal  asset  of  this  legislation  is  a  provision  for  a  cer- 
tificate to  set  aside  conviction  upon  completion  of  the  expiration  of  the  sentence 
or  completion  of  probation.  (IS  U.S.C.  r>021).  Althougli  the  ramifications  of 
the  certificate  have  not  been  legally  clarified,  its  beneficial  effect  has  been 
compared  to  being  better  than  a  pardon.  (Tutum  v.  United  States.  310  F.  2 
8r)4  (D.C.  Cir.  1902)).  No  equivalent  remedy  is  found  in  S.  1437.  The  failure 
to  make  any  distinction  from  those  under  the  age  of  IS  up  to  age  20  for  a  felony 
offense,  which  exists  only  as  an  option,  is  a  serious  deficiency. 

IX.    FEDERAL    JUVENILE    HELINQUENCY   ACT 

In  September  1974  Congress  passed  a  comprehensive  revision  of  the  federal 
criminal  law  relating  to  juveniles,  persons  under  the  age  of  18  years  at  the  time 
of  the  offense.  Federal  jurisdiction  was  ordinarily  evoked  only  if  tlie  state  could 
not  assume  jurisdiction,  and  this  new  law  emphasized  lack  of  restraint  prior  to 
adjudication  and  treatment  if  the  juvenile  was  adjudicated  delinquent. 

A  line  by  line  comparison  of  S.  1437  against  existing  law  will  point  out  Ihe 
efforts  to  modify  the  recently  enacted  legislation  for  juveniles.  For  example, 
jurisdiction  will  be  assumed  over  juveniles  for  Class  A,  B,  and  C  felonies  but 
now  only  occurs  only  after  a  hearing  (P  18  U.S.C.  3601:  18  U.S.C.  5032).  An 
existing  mandatoi-y  duty  is  to  notify  juvenile's  parent,  guardian,  or  custodian 
if  he  is  taken  into  custody  is  now  modified  that  the  government  shall  "make 
reasonable  efforts"  to  notify  such  persons.  (P  18  U.S.C.  3002 (a)  ).  If  the  juvenile 
wishes  to  be  treated  as  an  adult  which  is  bis  existing  right,  he  may  be  treated 
as  an  adult  under  S.  1437  only  if  he  waives  the  defense  of  immaturity.  If  the  juve- 
nile was  too  young  to  be  criminally  responsible,  he  should  not  be  forced  to  be 
treated  as  juvenile  and  denied  the  possible  right  to  trial  by  jury.  T'nder  existing 
law,  the  detained  juvenile  cannot  be  confined  in  an  institution  where  he  has 
regular  contact  with  adult  prisoners  (18  U.S.C.  5035).  but  this  is  reduced  to  an 
"insofar  as  possible"  coiidition  under  S.  1437  (P  18  U.S.C.  3002(b)  ).  A  careful 
wor<l-by-word  review  of  the  I'roposed  Federal  Juvenile  Delinquency  Act  will 
reveal  many  variations  from  the  recently  promulgated  law  thiit  inured  to  the 
advantage  and  convenience  of  the  Attorn.ey  (Jeneral.  If  Congress  has  spoken  so 
recently  on  the  issue  of  juvenile  delimpiency  and  S.  1437  is  a  neutral  compilation 
of  the  law,  these  changes  should  l)e  carefully  scrutinized  and  weighed.  They  are 
not  restricted  to  the  laws  relating  to  juveniles  but  permeate  the  entire  i)roposecl 
federal  criminal  code.  TJiese  slight  word  modifications  that  exist  throughout  the 
entire  legislation  are  grouTids  enough  that  the  n)atter  should  be  piit  over  for 
.several  years  to  provide  adequate  review  of  the  impact  of  existing  legislation  and 
the  needs  or  reasons  for  these  changes.  The  careful  reading  of  the  entire  S.  1437 
will  clearly  demonstrat"  a  prosecutorial  bias  that  should  not  he  tolerated  under 
the  guise  oif  some  type  of  "neutral"  eodificatifui. 

X.    PRESUMPTIVE    MINIMUM     MANDATORY    SENTENCING 

After  a  long  and  tortuous  history,  Congress  finally  abandoned  the  minimum 
mandatory  sentencing  that  grew  up  under  our  old  narcotics  laws  witli  the  adop- 
tion of  the  Comprehensive  Drug  Abuse  Control  Act  of  1970.  Prior  to  1  May  1971.  if 
a  person  possessed  a  drug  (i.e.  heroin,  cocaine,  marijuana)  they  could  be  charged 


9139 

either  with  an  unlawful  importation  count  (21  U.S.C.  174  or  21  U.S.C.  176(a)) 
or  with  a  tax  count  (21  U..S.€.  4705(a)  or  4744(a)  ).  With  the  provisions  of  old 
20  U.S.C.  7237(d)  a  person  convicted  under  21  U.S.C.  174  or  176(a)  would  be 
ineligihle  for  probation  and  parole.  The  alternative  charging  counts  available 
to  the  prosecutor  permitted  gross  discrimination,  for  if  the  defendant  did  not 
accept  the  "deal"  of  the  prosecutor  to  a  "soft  count,"  he  would  be  prosecuted 
with  the  '"hard  count"  with  tlie  minimum  mandatory  of  5  years  imprisonment, 
'i'he  plea  to  the  "soft  (tax)  count"  had  no  minimum  mandatory  sentence,  and  the 
defendant  was  eligible  for  probation.  The  defendant  would  surrender  his  day  in 
court  to  litigate  criminal  liability,  because  if  there  was  a  cliance  that  he  lost, 
the  penalty  was  too  great.  Under  existing  laws,  the  maximum  penalties  avail- 
able are  severe.  Federal  judges  are  strict  and  stern  in  punishing  serious  drug  of- 
fenders, but  for  tlie  weak  addict  involved  in  a  criminal  case,  an  adjustment  is 
possi))le. 

S.  1437  in  response  to  the  opposition  of  many  including  the  American  Bar  As- 
sociation'  changes  a  manadlory  minimum  for  trafiicking  in  an  opiate  (P  18 
U.8.C.  1811)  and  use  of  a  weapon  in  a  crime  (P  18  U.S.C.  1823)  to  a  presumptive 
minimum  mandatory  of  a  term  of  two  years  and  a  parole  eligibility  of  not  less 
than  two  years  with  such  sentence  to  run  consecutive.  However,  S.  1437  grants 
an  exception  to  the  imposition  of  the  mandatory  minimum  sentence  if  the  court 
expressly  finds  at  the  time  of  the  oifense  that  the  defendant  was  less  than  18 
years  old  :  the  defendant's  mental  capacity  was  significantly  impaired,  although 
the  impairment  was  not  sufficient  to  constitute  a  defense  of  the  prosecution ;  the 
defendant  was  under  unusual  and  substantial  duress  although  not  such  duress 
that  would  constitute  the  defense  of  prosecution ;  or  the  defendant  was  an  ac- 
complice and  the  conduct  constituting  the  offense  was  principally  the  conduct  of 
another  person  and  the  defendant's  participation  was  relatively  minor.  This  ex- 
ceptional language  is  not  luiique  for  it  tracks  the  very  language  used  to  permit  a 
jury  to  avoid  the  imposition  of  the  death  penalty  for  aircraft  piracy.  49  U.'S.C. 
1473(6).  In  a  sense,  the  comparison  of  a  death  penalty  with  the  minimum  man- 
datory is  appropriate,  for  both  should  not  be  part  of  any  reasonable  sentencing 
scheme.  Trial  judges  do  adhere  to  the  law,  and  it  is  possible  in  meritworthy 
cases  (i.e.  a  20-year-old  first  offender)  the  judge  would  be  forced  by  virtue  of 
the  statutory  guidance  to  impose  a  two-year  minimum  mandatory  and  two-year 
parole  iueligibiilty  which  would  insure  confinement  for  a  period  of  two  years.  A 
minimum  mandatory  should  be  avoided  both  directly  (S.  1)  and  indirectly  (S. 
1437). 

XI.    EXPUNGEMENT 

The  only  federal  statute  that  recognizes  and  authorizes  deferred  sentencing 
and  expungement  of  criminal  records  is  21  U.S.C.  844,  adopted  in  1970,  which  is 
part  of  the  federal  provisions  prohibiting  possession  of  a  controlled  substance.  No 
other  federal  law  permits  expungement.  Under  21  U.S.C.  844(h)(1)  after  a 
guilty  plea  or  a  trial,  the  court  may  defer  further  proceedings  without  entering 
a  judgment  of  guilty.  If  the  person  obtains  a  dismissal  and  was  "not  over  21 
years  of  age  at  the  time  of  the  offense,"  the  record  may  be  formally  expunged. 
(21U..S.C.  M4(b)(2)). 

The  corresponding  provision  in  S.  1437  (P  18  U.S.C.  3807)  does  not  use  the 
language  of  deferring  proceedings  but  refers  to  the  withholding  of  the  entry  of 
the  judgment  of  conviction.  Implicit  is  a  finding  of  guilty  which  is  not  the  in- 
tent of  21  U.S.'C.  844(b)  (1).  The  expungement  provisions  are  restricted  to  per- 
sons who  are  "less  than  21  years  of  age  at  the  time  of  the  offense."  The  advan- 
tages of  deferred  sentencing  and  expungement  are  unfortunately  limited  under 
present  law  to  drug  offenses,  and  any  meritworthy  revision  would  consider  the 
expansion  of  this  to  other  misdemeanor  offenses  especially  those  involving  youth- 
ful offenders.  S.  1437,  in  its  traditional  nature,  with  a  prosecutorial  gloss,  de- 
fines nnd  restricts  the  language  of  recently  adopted  legislation  by  Congress  so  as 
to  restrict  its  import.  This  action  is  symptomatic  of  the  total  revision  which 
should  cast  in  doubt  those  sectons  that  cannot  be  so  carefully  scruinized  against 
existing  law. 


SABA  standards  relating  to  sentencing  alternatives  and  procedures,  standard  3.2(a) 
which  states  :  "Because  there  are  so  many  factors  in  an  individual  case  which  cannot  be 
predicted  in  advance,  it  is  unsound  for  tlie  legislature  to  require  that  the  court  impose  a 
minimum  period  of  imprisonment  which  must  be  served  before  an  offender  becomes  eligible 
for  parole  or  for  the  legislature  to  prescribe  such  a  minimum  term  itself.  It  is  likewisp 
unsound  for  the  legislature  to  condition  parole  eligibility  upon  service  of  a  specified  portion 
of  the  maximum  term." 


9140 

XII.    THE    APPELLATE    REVIEW    OF    SENTENCES 

Under  existing  law,  there  is  no  practical  federal  review  of  a  sentence.  "If  there 
is  one  rule  in  the  federal  criminal  i)ractice  which  is  linnly  established,  it  is  that 
the  appellate  court  has  no  control  over  a  sentence  which  is  within  the  limits  al- 
lowed by  a  statute."  (lureni  v.  Initcd  States  40  F.2d  83H.  340  (Sth  C'ir.  1930). 
Cited  with  approval  in  Dorszynskl  v.  United  States,  418  U.S.  424,  440  (1074). 
In  some  rare  cases,  the  federal  reviewing  courts  have  granted  some  partial  re- 
lief in  extreme  cases.  However,  the  exceptions  prove  the  general  rule  that  there 
is  no  practical  review  of  a  federal  sentence. 

Appellate  review  of  a  sentence  is  available  under  S.  1437  (P  18  U.S.C.  372.'), 
and  this  concept  of  appellate  review  of  sentences  is  integrated  with  the  guidelines 
established  by  the  Sentencing  Commission.  Now  there  would  be  three  reviewing 
authorities  of  a  sentence :  the  Parole  Conunission,  the  Sentencing  CommLssion. 
and  now  the  Court  of  Appeals.  Appeals  are  allowed  only  if  the  sentence  would 
be  outside  of  the  guidelines  and  was  "clearly  unreasonable."  The  test  shnnld 
be  "reasonableness"  if  one  is  seeking  to  establish  a  form  of  justice,  for  with 
such  a  high  standard  as  "clearly  unreasonable"  it  would  be  difficult  for  any 
court  as  a  matter  of  law  to  overide  the  factual  considerations  that  would  be 
primarily  within  the  evaluation  of  the  district  court.  Also,  the  fact  that  the 
sentence"  of  confinement,  and  even  a  short  sentence  that  might  not  fall  outside 
of  the  guidelines  where  clearly  probaticm  was  expectetl.  should  be  rev;«^nva)4e. 
An  important  discrepancy  and  inconsistency  is  the  fact  that  under  Section 
3725  a  defendant  who  receives  a  six  month  sentence  of  imprisonment  for  a 
felony  might  have  appellate  review,  but  a  defendant  who  receives  a  year  con- 
finement before  the  Magistrate  on  a  misdemeanor  would  have  no  appellate 
review.  The  existence  of  an  appeal  by  the  government  for  a  sentence  is  totally 
inconsistent  with  the  sjnrit  of  the  principles  underlining  the  Former  Jeopardy 
Clause  of  the  Fifth  Amendment  and  the  professional  responsibility  of  the  prose- 
cutor to  defer  to  the  court  at  the  time  of  sentencing  rather  than  being  an 
advocate  for  "stiff  sentences."*  It  is  a  radical  departure  to  expand  the  jiower 
of  the  government  to  appeal  to  include  the  self-initiating  right  to  appeal  the 
sentence  if  it  is  lower  than  the  Sentencing  Commission  guidelines. 

Appellate  review  of  federal  sentences  is  necessary.  The  judges  resist  it,  and 
the  prosecutors  claim  that  if  it  exists  they  wish  to  have  a  similar  opjKirtunity. 
It  is  interesting  to  note  that  the  experience  in  England  dating  to  1900  did  per- 
mit the  defendant  an  appeal  of  sentence,  and  when  the  defendant  did  so  the 
appellate  court  had  the  right  to  increase  the  sentence  on  appeal.  Obviously,  this 
is  much  less  than  the  situation  that  the  government  has  the  right  of  appealling 
lenient  sentences.  The  00-year  experience  in  England  resulted  in  the  statutory 
modltication  to  deny  to  the  reviewing  court  that  considered  the  sentence  of 
the  defendant,  the  iM)wer  to  increase  the  sentence.  This  experience  should  serve 
as  a  valuable  lesson  for  us.  See  Report  of  then-I'rofessor  Daniel  J.  Meador.  ABA 
Standards  Uelating  to  Appellate  Review  of  Sentence,  Apjiendix  C  (Api)roved 
Draft  1908).  The  risht  of  appeal  to  the  defendant  would  obviate  the  claim  of 
the  existing  disparity  in  sentences.  As  mentioned  above,  it  would  be  best 
handled  by  the  Court  of  Ajijjeal  which  already  has  existing  a}ti)aratus  to  handle 
it.  The  right  of  appeal  should  extend  to  any  term  of  confinement,  whether  im- 
posed by  the  district  court  or  the  Magistrate,  but  the  appeal  from  the  Magis- 
trnte  could  be  fashioned  to  the  district  court. 

The  Judicial  Conference  of  the  I'nited  States,  through  its  api)ropriate  com- 
mittee, is  now  considering  a  proposed  Rule  3.".1.  Federal  Rules  of  Criminal 
Procedure.  The  judges  do  not  seek  appellate  review  of  sentencing.  l)ut  they 
recognize  the  neccessity  of  it  and  ultimately  the  fact  that  the  merit  of  such 
review  will  ultimately  ))e  a  fact.  Since  tiie  judiciary,  albeit  reluctantly,  is  in- 
volved in  such  a  proposal,  it  would  be  a(lvisat)le  to  await  the  outcome  of  that 
judicial  action,  if  it  is  not  luireasonably  dehiyed,  prior  to  fornudating  guidelines 
for  ai)pellate  review  of  federal  criminal  sentences. 

XIII.    MISCELLANEOUS   PROVISIONS 

S.  14.37  provides  for  substantially  increa.sed  fines,  expanded  forfeiture  pro- 
ceedings, and  new  techniques  snch  as  notice  to  the  victim.  Some  of  these  pro- 

« -Mi.V  standards  rpl.Ttlns  to  t)ip  Prosecution  Function,  standard  fi.l  (b)  states:  "Wlicre 
spntonre  Is  fixed  liy  tlie  judge  without  jury  participation,  the  prosecutor  ordinarily  should 
not  make  any  specific  recommondatlon  as  to  the  appropriate  sentence,  unless  his  recom- 
mendation Is  requested  by  the  court  or  he  has  agreed  to  make  a  recommendation  as  a  result 
of  plea  discussions." 


9141 

visions  are  overly  broad  and  need  to  be  limited.  Some  are  desijmed  for  merit- 
worthy  purposes,  but  they  might  be  subject  to  serious  abuse  unless  legislative 
amendments  are  made.  All  of  these  provisions,  as  well  as  many  other  provisions 
of  S.  1437  need  additional  review  and  study,  and  let  us  hoi^e  that  sufficient  time 
will  be  allowed  to  permit  a  careful  review  of  all  the  sentencing  provisions  of 
S.  1437  which  could  have  a  decided  impact  on  federal  criminal  practice. 

XIV.    CONCLUSION 

In  1971  the  National  Commission  on  Reform  of  Federal  Criminal  Laws 
(Brown  Commission)  filed  its  final  report.  Although  that  proposed  revision  in- 
troduced innovative  concepts,  to  a  substantial  degree  it  tracked  the  existing 
federal  criminal  practice  at  the  same  serving  as  a  comprehensive  codification. 

S.  1  (1975)  was  a  substantial  reconstruction  of  that  first  attempt,  but  it 
offered  so  much  that  its  size  and  bulk  defied  analyses  by  even  those  regularly 
practicing  in  the  field.  S.  1437,  the  "son  of  S.  1,"  has  removed  those  provisions 
which  were  subject  to  the  greatest  public  notoriety.  Those  provisions,  although 
deserving  of  careful  review,  overshadowed  the  serious  neglect  on  other  important 
passages  of  this  legislation.  One  of  the  most  important  aspects  of  the  legisla- 
tion was  the  provision  that  would  radicalize  existing  sentencing  practices.  S. 
1437  offered  modifications  to  the  original  sentencing  proposals  of  S.  1,  but  when 
S.  1437  is  compared  to  existing  law,  clearly  existing  law  is  to  be  preferred.  To 
choose  the  continuation  of  existing  federal  sentencing  practices,  which  defects 
have  been  publicized,  should  seriously  indicate  the  inherent  weaknesses  in  S. 
1437.  There  is  a  superficial  appeal  to  a  concept  of  liberal  reform  to  provide  some 
aura  of  "certainty"  at  sentencing,  but  in  the  process  discretion  of  the  impartial 
judge,  which  in  a  few  cases  has  been  abused  but  in  more  cases  has  offset  the 
abuses  of  unbridled  prosecutorial  discretion,  has  now  been  limited  and  handi- 
cappeil.  No  comparable  provision  is  offered  for  control  of  prosecutorial  abuse  in 
the  charging  process.  lielief  from  long-term  and  protracted  incarceration,  one  of 
the  most  serious  aspects  of  American  criminal  penology,  is  not  addressed.  The 
opportunity  to  evaluate  a  substantial  experiment  in  sentencing  in  California  is 
discounted  in  a  mad  rush  to  pass  S.  1437  during  this  Congress.  Although  Con- 
gress must  give  reasonable  attention  to  those  that  must  enforce  the  federal  law, 
defense  should  be  provided  an  opportunity,  more  than  a  pro  forma  appear- 
ance in  a  hearing  on  a  bill  that  might  be  already  "cast  in  concrete."  to  participate 
in  the  formulation  of  such  a  comprehensive  overhaul  of  the  federal  criminal 
Inws.  Failure  to  do  so  will  only  wreak  havoc,  for  a  bad  law  generates  needless 
litigation  and  will  produce  mountainous  remedial  legislation  occupying  the  time 
of  one  already  over-taxed  Congress.  In  Ranger  School,  I  learned  the  principle  of 
the  Five  "P's"  (Prior  Planning  (or  preparation)  Prevents  Poor  Performance). 
S.  1437  is  a  clear  violation  of  that  fundamental  principle,  and  it  should  be  sent 
back  to  the  drawingboards. 

STATEMENT  OF  JOHN  J.  CLEAEY,  EXECUTIVE  DIEECTOE,  EEDEEAL 
DEFENDEES  OP  SAN  DIEGO,  INC.,  ON  BEHALF  OF  THE  NATIONAL 
LEGAL  AID  &  DEFENDEE  ASSOCIATION 

Mr.  Clear Y.  Thank  you  very  much,  Senator. 

I  am  Jolm  Cleary,  on  behalf  of  the  National  Legal  Aid  &  Defender 
Association. 

I  would  point  out  also  that  the  California  Attorneys  for  Criminal 
Justice  have  endorsed  the  position  we  have  taken  pertaining  to  S.  1437. 
Further,  they  would  like  the  right  to  submit  a  supplemental  statement. 

Since  in  the  short  time  I  have  had  to  prepare  this  statement  I  have 
focused  on  sentencing,  I  would  also  reserve  the  right  on  behalf  of  the 
National  Legal  Aid  &  Defender  Association  to  file  a  supplemental 
statement,  if  that  is  permissible. 

Senator  TiiirRMONn.  Without  objection,  that  will  be  received. 

Mr.  Cleary.  At  this  time  I  would  just  like  to  discuss  one  of  my 
major  concerns.  It  is  that  S.  1437,  the  son  of  S.  1,  has  not  really  eveV 
considered  in  the  formulation  and  drafting  the  role  of  the  defense 


9142 

attorney.  This  is  not  to  show  some  type  of  undue  consideration  for  a 
defense  lawyer,  but  those  persons  who  may  come  through  the  judicial 
system  should  have  a  voice. 

The  role  that  we  have  as  Federal  defenders — and  Mr.  Roger  Lowen- 
stein,  the  Federal  public  defender  from  New  Jersey,  and  myself,  the 
Federal  defender  from  San  Diego — is  to  offer  some  substantial  expe- 
rience in  dealing  with  the  criminal  justice  machinery. 

Unfortunately,  S.  1437,  designed  to  achieve  what  I  would  call 
relative  certainty,  has  caused  serious  deficiencies.  Compared  against 
existing  Federal  criminal  law,  S.  1437  is  worse. 

The  problem  has  been  that  the  drafting  of  this  legislation  from  its 
onset  has  been  the  work  of  the  prosecutors — for  the  prosecutors,  by  the 
prosecutors,  and  of  the  prosecutors. 

A  recent  example  is  section  3835(b).  Under  existing  law,  section 
4214  of  title  1<S,  you  are  entitled  to  counsel  at  a  preliminary  hearing 
on  revocation  of  parole.  That  has  been  eliminated. 

If  you  look  at  the  Juvenile  Delinquency  Act  established  by  this 
Congress  in  1974,  less  than  3  years  later  substantial  reservation  and 
dilution  exists.  The  wasting  away  of  the  rights  of  the  juvenile  is  pres- 
ent in  this  substitute  form. 

We  have  also,  for  example,  in  the  only  Federal  expungement  statute 
a  further  erosion  of  the  rights  of  the  individual. 

Confinement  is  the  order  of  the  day.  S.  1437  oozes  confinement. 
Its  whole  attitude  is  to  put  joeople  in  jail. 

We  like  to  think  that  the  ABA  articulates  a  simple  premise  of 
penology:  that  is.  the  least  confinement  necessary  should  be  the  ori- 
entation. The  avoidance  of  confinen^.ent  might  not  be  appropriate  in 
every  case,  but  it  should  be  the  general  orientation.  The  ABA  stand- 
ards on  sentencing,  2.2  and  2.3,  articulate  these  points.  Is  that  any- 
where stated  in  section  101  or  the  sentencing  provision  of  S.  1437? 
Certainly  not. 

Imprisomnent  in  S.  1437  is  for  ever  and  ever.  We  have  the  ABA 
standard  which  talks  about  10  years  in  abnormal  cases  being  the  top 
and  5  in  the  ordinary  case.  This  starts  off  with  class  A,  life  imprison- 
ment ;  class  B,  25  years ;  and  then  it  goes  down  to  12,  6,  and  3. 

It  is  hard  to  bring  home  the  difference  in  existing  law,  but  I  would 
like  to  use  as  an  example  bailjuinping — 18  U.S.C.  3150  is  the  present 
bailjumping  statute. 

Under  S.  1437,  bailjumping  has  for  a  class  A  through  D  felony 
a  6-year  confinement  provision.  Add  to  that  the  tack-on  parole  of  1  to 
2  years,  and  that  would  give  you  8  years  with  the  tack-on  contingent 
period  of  incarceration  of  90  days.  That  is  8  years  and  90  days  of 
exposure  to  confinement  and  Federal  parole.  That  is  6  years  and  90 
days  of  confinement. 

Under  existing  law,  the  maxiimun  for  bailjumping  is  5  years.  Given 
a  person's  mandatory  release  date,  which  is  3  years  and  8  months, 
the  maxinuun  period  of  incarceration  would  be  3  years  and  8  months 
followed  by  a  10-month  parole.  You  have  to  compare  3  years  and  8 
months  confinement  against  C  years  and  90  days  in  this  new  reform 
that  "lessens." 

Class  D  offenses  are  the  substitute  for  existing  5-year  offenses,  a 
conunon  penalty,  but  this  code  has  an  overwhelming  tendency  to 


9143 

double  confinement  over  existing  law.  The  trend  of  socking  it  to  people 
permeates  this  piece  of  legislation. 

Parole  ineligibility,  by  which  the  sentencing  judge  now  can  only 
give  up  to  one-third  under  4205(b)  (1),  under  this  parole  ineligibility 
up  to  90  percent  of  the  sentence.  Instead  of  thinking  in  terms  of  being 
eligible  for  parole — existing  law — the  converse  is  true. 

tinder  existing  law,  if  you  get  a  year  and  a  day  sentence,  you  are 
eligible  for  release  at  any  time,  even  though  many  of  us  know  that 
to  be  illusory.  You  might  get  out  in  4  or  5  months  and  you  will  cer- 
tainly get  out  by  9  months.  Under  this,  you  cannot  get  out,  once  you 
go  in,  for  a  period  of  6  months. 

The  Sentencing  Commission  is  a  nice  exercise,  I  think,  in  futility. 
If  you  can  consider  what  the  Parole  Commission  has  accomplished, 
you  might  find  much  criticism.  However,  I  think  what  you  have  to 
compare  is  what  the  Parole  Commission  has  been  authorized  by  this 
Congress  to  do. 

Under  4203(a)  (1)  they  can  set  up  guidelines  for  prison  sentences. 
That  same  general  authority  is  given  to  the  Sentencing  Commission 
but  there  are  no  further  guidelines. 

I  think  a  very  easy  and  warranted  charge  is  that  this  delegation  to 
a  sentencing  commission  would  be  unconstitutional.  The  theory  is  that 
by  giving  this  authority  to  the  Sentencing  Commission  they  will  come 
up  with  reasonable  zones.  With  that  concept  there  is  tlie  portent  for 
fantastic  litigation. 

Once  guidelines  are  established,  the  Sentencing  Commission  will 
create  a  de  facto  form  of  minimum  mandatory  sentences.  It  will  allow 
what  I  think  is  the  one  thing  that  is  not  addressed  adequately  in  this 
bill.  The  bill  attempts  to  impede  and  restrict  judicial  discretion.  What 
about  the  prosecutorial  discretion  ? 

We  now  have  a  new  code  that  adds  on  literally  hundreds  of  charges 
not  otlierwise  existing. 

Before  this,  a  bank  robber  could  only  face  one  charge,  18  U.S.C. 
2113  (a)  and  (d).  Now  he  could  face  criminal  entry,  use  of  a  gun,  and 
robbery — three  counts.  Of  course,  the  provision  is  that  you  cannot  go 
more  than  double  the  sentence,  more  than  24  years  straight  time,  under 
S.  1437. 

This  is  a  mockery.  This  has  no  regulation  of  the  prosecution.  Of 
course,  given  the  tone  of  its  drafters,  I  doubt  that  it  would  have  such 
limitations. 

The  problem  is  what  is  the  effect  of  this  type  of  certainty  in  sen- 
tencing. Chief  Justice  Burger  asks  us  to  consider  the  impact  of  legis- 
lation upon  the  courts.  The  impact  would  be,  given  a  certain  sentence, 
the  prosecutors  may  think  that  you  would  deal  out  to  a  lesser  sentence, 
which  is  common  every  day,  although  j^ou  will  avoid  your  day  in 
court,  and  sacrifice  your  opportunity  to  have  your  innocence  estab- 
lishecl  or  the  guilt  not  proven  to  avoid  penalty  that  will  be  controlled 
by  the  prosecutor.  That  is  coercive  plea  bargaining. 

How^  do  you  control  this  variation  in  the  prosecution  ?  In  one  district, 
20  kilos  of  marihuana  might  be  a  misdemeanor  with  probation  while 
in  another  district  it  might  be  a  felony  with  a  jail  term.  How  do  you 
regulate  that? 

The  presumptive  minimum  mandatory  sentences  are  absolutely  ter- 
rible. I  think  the  example  there  is  that  the  only  exceptions — and  it  is 

92-463 — 77 37 


9144 

ironic — are  the  same  exceptions  as  to  the  death  penalt3\  Death  penal- 
ties and.  minimum  mandatory  sentences  should  be  treated  in  the  same 
fashion. 

I  would  have  liked  to  have  said  a  Y\tt]e  bit  about  appellate  review 
of  sentences.  This  is  a  mockery  for  it  provides  prosecutorial  review. 

With  the  remaining;  time,  I  would  like  to  have  Mr.  Rocrer  Lowen- 
stein  speak  to  sentencing  and  any  other  portions  of  the  bill  on  which 
he  cares  to  comment. 

STATEMENT  OF  ROGER  LOWENSTEIN,  ON  BEHALF  OF  NATIONAL 
LEGAL  AID  &  DEFENDER  ASSOCIATION 

Mr.  LowENSTEiN.  I  am  the  Federal  public  defender  in  New  Jersey. 
Our  office  represents  people  in  Federal  court  who  are  charged  with 
Federal  crimes  and  who  are  too  poor  to  afford  an  attorney.  It  is  a 
very  tough  job.  It  is  probably  as  difficult  as  being  in  Congress.  It  is 
very  hard. 

One  of  the  hard  things,  I  imagine,  about  being  an  elected  official  is 
that  crime  as  a  problem  in  our  society  gets  put  at  the  doorstep  of  our 
elected  leaders.  What  do  we  do  about  crime?  What  do  we  do  about 
people  who  cannot  leave  their  homes  because  they  are  afraid  and  are 
worried  about  being  attacked  ? 

The  problem  with  S.  1437  and  with  Federal  approaches  is  that  we 
are  a  very  limited  jurisdiction.  The  Federal  system  does  not  begin 
to  incorporate  all  the  crime  and  all  the  criminal  offenses.  In  fact, 
more  than  90  percent  of  crimes  are  handled  in  State  courts,  as  they 
should  be. 

The  crime  that  scares  us,  the  stranger-to-stranger  violence,  that  is 
mostly  State  crime. 

What  do  you  do  when  constituents  write  you  hundreds  and  hundreds 
of  letters  saying,  "What  are  you  doing  about  crime?''  In  fact,  all  that 
Congress  can  do  is  really  approach  crime  in  the  Federal  system,  which 
is  a  very  small  percentage  of  all  crime. 

The  general  reaction  hns  been,  unfortunately,  to  take  tliat  small  area 
of  Federal  law  which  is  largely  nonviolent  and  to  overcriminalize 
that.  T  guess  this  was  partly  a  reaction  to  tlie  depression  era  and  the 
worry  about  spreading  interstate  crime. 

We  have  now  on  the  books  a  tremendous  disparity  of  Federal  of- 
fenses, most  of  Avhich  are  overl}-  punished  and,  therefore,  greatly  in 
need  of  some  codification. 

Codification  is  a  jx'^od  idea.  It  is  something  that  has  never  been  done 
in  a  good  way.  So  tlie  general  effort  is  to  be  applauded. 

However,  if  the  codification  results  in  continuing  the  overcriminal- 
ized,  heavy  sentences  for  crimes  which  do  not  really  deserve  that  kind 
of  heavy  attention,  then  the  codification  effort  will  not  be  successful. 
When  Chief  Justice  Burger  talks  about  sentencing  disparities,  I 
think  he  means  not  only  disparities  from  one  Federal  judge  to  another 
Federal  judge,  but  I  think  he  also  worries  about  disparities  between 
State  courts  and  Federal  courts. 

The  very  same  kind  of  offense,  an  armed  robbery,  if  it  is  in  a  bank, 
miglit  very  well  result  in  a  20-  to  25-year  sentence  in  Federal  court 
and  8  to  10  in  a  State  court.  These  are  disparities  which  have  to  be 
resolved. 


9145 

One  of  the  real  good  provisions  in  S.  1437  is  section  205  "which  sug- 
gests that  in  concurrent  jurisdiction  where  a  crime  could  be  handled 
either  in  State  court  or  in  Federal  court,  it  might  very  well  be  the 
best  idea  to  prefer  State  prosecution  in  all  but  certain  particular 
Federal  kinds  of  crimes. 

Federal  courts  have  limited  jurisdiction.  I  think  that  it  would  be 
worthwhile  to  analyze  where  Federal  prosecutors'  priorities  are  and 
carve  out  those  particular  kinds  of  special  Federal  cases,  focus  on 
those,  and  really  let  the  States  handle  the  bulk  of  the  criminal  prose- 
cutions and  spend  a  lot  of  time  getting  more  money  to  State  prose- 
cutors so  that  they  can  do  the  job. 

The  problem  I  have  with  the  sentencing  part  of  the  legislation  is 
this.  I  am  absolutely  in  favor  of  appellate  review  of  sentence.  We  have 
it  in  New  Jersey. 

In  the  State  courts,  which  are  far  more  crowded  than  the  Federal 
courts,  every  sentence,  if  the  defendant  wishes,  may  be  appealed.  The 
appellate  judges  have  handled  it  expeditiously.  It  has  been  no  burden. 
I  think  in  the  Federal  system  it  would  work  extremely  well. 

Instead  of  appellate  review  of  sentencing,  in  S.  1437  we  have  a 
Commission,  which  worries  me  greatly.  I  worry  that  the  Commission 
is  going  to  set  guidelines  which  will  result  in  extremely  harsh  penal- 
ties. Once  again,  I  feel  that  the  penalties  are  far  too  harsh  at  the 
moment. 

I  would  like  to  suggest  that  there  is  one  real  problem  with  the 
appeals  by  the  Government  of  the  sentence.  I  am  submitting  a  legal 
memorandum  on  that  issue  to  the  committee  and  I  ask  that  it  be  in- 
corporated in  the  record.  I  will  not  go  into  it. 

\\nien  the  Government  is  allowed  to  appeal  a  sentence,  what  occurs 
to  me  is  that  at  the  point  where  plea  bargains,  if  any,  are  discussed, 
that  is  one  more  hammer  used  by  the  Government  to  obtain  a  favorable 
plea  from  the  defendant. 

For  instance,  they  might  say,  "You  plead  guilty  here  or  else  we  are 
going  to  appeal  your  sentence  if  it  is  too  lenient;  if  you  plead  guilty, 
we  promise  we  will  not  appeal." 

It  is  a  kind  of  tool  that  may  be  abused  in  the  prosecutorial  process. 
I  worry  about  that. 

I  further  worry  in  the  presentence  investigations,  which  are  now 
opened  up  in  S.  1437  to  all  evidence  regardless  how  lawfully  obtained, 
people  are  going  to  be  subjected  to  harsh  sentences  not  for  the  crime 
they  committed,  but  for  rumors  and  allegations  of  other  crimes  which 
have  no  real  business  being  in  a  presentence  report. 

I  appreciate  the  opportunity  of  being  here  and  representing  the 
National  Legal  Aid  &  Defender  Association. 

Senator  Thurmond.  Thank  you  very  much.  We  thank  you  for  your 
appearance  here  and  your  contribution  to  this  hearing.  Your  statement 
will  be  printed  in  the  record. 

[The  statement  follows :] 

Prepared  Statement  of  Roger  A.  Lowenstein,  Federal  Public  Defender  for 
THE  District  of  New  Jersey  on  Behalf  of  National  Legal  Aid  &  Defender 
Association 

I  thank  this  Subcommittee  for  the  opportunity  to  share  my  views  on  some 
aspects  of  S.  1437,  representing  the  National  Legal  Aid  and  Defender  Associa- 


9146 

tion.  Ours  is  the  only  national  organization  of  public  defenders,  and  among  our 
membership  are  hundreds  of  defense  attorneys  who  practice  regularly  in  the 
federal  courts.  S.  1437,  if  enacted  into  law,  will  become  the  major  working 
document  for  those  attorneys  who  practice  regularly  in  the  federal  courts. 

It  is  our  iiosition  generally  that  federal  criminal  statutes  are  overcriminal- 
ized.  Sentences  are  far  too  long,  giving  rise  to  widespread  sentencing  dispari- 
ties. There  are  far  too  few  misdemeanors  which  would  allow  lesser  offenders 
to  have  their  cases  disposed  of  in  magistrate's  courts.  Too  many  unsubstantial 
prosecutions  are  disposed  of  by  means  of  a  felony  prosecution  in  district  court. 
S.  1437  does  not  go  nearly  far  enough  in  reducing  maximum  penalties  and  pro- 
viding for  lesser-included  offenses  which  may  be  disposed  of  in  magistrate's 
courts. 

Little  mention  has  been  made  of  §  205  of  the  bill.  That  section  would  permit 
federal  prosecutoi's  to  refer  the  bulk  of  routine  cases  to  state  courts,  where  there 
is  concurrent  jurisdiction.  This  would  be  a  commendable  technique  for  reduc- 
ing the  disparities  in  sentencing  between  state  and  federal  offenses,  as  well  as 
removing  the  routine  case  from  federal  court  dockets.  Federal  courts  are  spe- 
cialty courts  by  virtue  of  our  Constitution.  The  bulk  of  crime  and  therefore  the 
bulk  of  law  enforcement  is  on  the  State  level.  Unfortunately,  the  public  outrage 
on  the  crime  problem  demands  action  from  our  federal  legislature.  The  wisest 
response  to  the  public  outcry  would  be  to  provide  more  adequate  funds  for 
state  law  enforcement  efforts.  An  unwise  response  would  be  to  continue  the 
overcriminalization  of  federal  offenses. 

With  regard  to  sentencing,  we  recommend  specific  statutory  provision  for 
appellate  review  of  sentencing  in  all  cases,  but  limited  to  the  ability  of  the 
Court  of  Appeals  to  reduce  a  sentence  upon  appeal  by  the  defendant.  In  the 
State  Court  system  in  New  Jersey,  the  judge's  discretion  in  imposing  sentenc- 
ing is  merely  one  more  issue  to  by  determined  by  the  appellate  court.  For  quite 
a  number  of  years  the  state  appellate  courts  carefully  developed  a  "common 
law"  of  sentencing  and  have  succeeded  in  eliminating  gross  disparities  statewide. 

A  similar  system  would  work  well  in  the  federal  system,  if  each  circuit  would 
gradually  develop  its  own  careful  standards  in  reviewing  district  court  sentenc- 
ing determinations.  The  proposed  Sentencing  Commission  in  S.  1437  does  not 
provide  an  adequate  appeal,  and  there  are  strong  indications  that  defendants 
would  suffer  from  even  longer  sentences  under  tlie  now  system.  The  Parole 
Commission  has  been  severely  criticized  for  keeping  extreme  numbers  of  non- 
violent defendants  in  ))rison  long  after  the  Bureau  of  I'risons  and  the  sentencing 
judges  indicate  the  incarceration  should  be  terminated.  The  Parole  Commission 
justifies  its  decisions  upon  "guidelines"  which  would  be  identical  to  the  pro- 
posed Sentencing  Commission's  guidelines.  An  overly  cautious  judge  nn'ght  defer 
automatically  to  harsh  guidelines  rather  than  mitigate  the  sentence  and  risk 
reversal  on  appeal. 

At  a  minimum,  if  there  are  to  be  sentencing  guidelines,  they  should  com- 
pletely replace  the  parole  system  which  should  be  eliminated.  Any  move  in  the 
direction  of  increased  certainty  would  be  appreciated  by  our  clients  who  are 
too  often  confused  and  disappointed  by  the  current  system. 

With  regard  to  the  government's  right  of  appeal  in  proposed  §  3725  of  the 
bill,  I  attach  a  memorandum  of  law  which  raises  grave  constitutional  questions 
concerning  that  "right."  The  government  should  not  be  permitted  to  have  one 
additional  weapon  in  coercing  guilty  jileas  from  definidaiits  who  may  liave  de- 
fenses to  the  crime  charged.  A  criminal  trial  is  not  an  even  contest.  Introduc- 
ing the  notion  of  symmetry  into  the  criminal  justice  process  is  misleading  and 
unfair.  The  defendant  should  be  altle  to  challenge  the  abuse  of  discretion  by  a 
judge.  Notions  of  double  jeojiardy  prev(>nt  the  government  from  having  an  equal 
right  to  re-litigate  a  case  against  a  particular  defendant. 

We  appreciate  tlie  o))portunitv  to  provide  tliis  information  to  the  Subcom- 
mittee and  to  participate  in  this  important  work. 

MF.MORANDUM   OP   LAW   CONCERNING   SECTION    3725    OF   S.    1437 

Section  3725  of  proposed  bill  S.  1437  presents  grave  questions  of  constitutional 
considerations  and  public  policy.  Specifically.  §3725  (b),  (c),  and  (e)  provide 
for  review  in  the  court  of  appeals  of  a  final  sentence  imposed  for  a  felony  if 
the  sentence  includes  a  fine  or  a  term  of  imprisonment  lower  than  the  mini- 
mum established  in  guidelines  issued  by  the  Sentencing  Commission.  If  the 
court  of  appeals  determines  that  the  sentence  is  "clearly  unreasonable"  and 


9147 

too  low,  it  may  remand  the  case  for  imposition  of  a  greater  sentence  or  for 
furtiier  sentencing  procedures,  or  impose  a  greater  sentence. 

The  most  serious  defect  in  this  provision  is  that  the  defendant  whose  case  is 
appealed  by  the  government  is  exposed  to  double  jeopardy  in  violation  of  rights 
guaranteed  by  the  Fifth  Amendment  of  the  Constitution  of  the  United  States. 
That  guarantee  protects  against  a  second  prosecution  for  the  same  offense  after 
acquittal,  a  second  prosecution  for  the  same  offense  after  conviction,  and  mul- 
tiple punishment  for  the  same  offense.  North  Carolina  v.  Pearce,  395  U.S.  711, 
717  (19(J8).  The  right  of  the  government  to  seek  an  enlarged  sentence  on  its 
own  appeal  has  never  been  litigated.  However,  the  Supreme  Court  has  held 
that  a  second  punishment  proposed  on  the  same  facts  for  the  same  statutory 
offense  violates  the  prohibition  against  double  jeopardy.  Ex  parte  Lange,  18 
Wall.  103  (1873).  Also,  in  United  States  v.  Ben::,  282  U.S.  304  (1931),  the  Court 
noted  that  a  court  action  to  increase  the  punishment  of  one  serving  a  criminal 
sentence  is  illegal.  Although  under  the  appeal  provisions  of  S.  1437  a  defend- 
ant could  receive  an  increased  sentence  before  actually  beginning  to  serve  the 
one  imposed,  the  same  prohibitions  against  double  jeopardy  apply.  "The  pro- 
hibition is  not  against  being  twice  punished,  but  against  being  twice  put  in 
jeopardy."  United  States  v.  Bell,  163  U.S.  622,  669  (1896). 

Once  a  specific  sentence  has  been  imposed  upon  a  defendant,  he  has  been  in 
jeopardv  as  to  the  possible  greater  sentence.  He  risks  the  maximum  permissi- 
ble punishment  when  first  tried.  That  risk  having  been  faced  once  need  not 
be  faced  again.  North  Carolina  v.  Pearce,  supra  at  746,  Douglas  concurring. 
In  Green  v.  United  States,  3."5  U.S.  184  (1954),  the  Court  held  that  a  defend- 
ant who  had  appealed  a  conviction  of  second-degree  murder  could  not  be  con- 
victed upon  appeal  and  retrial  for  first-degree  murder  because  of  double  jeopardy. 
The  Court  found  an  "implicit  acquital"  of  the  higher  charge.  Justice  Harlan, 
in  his  opinion,  in  North  Carolina  v.  Pearce,  supra  at  746,  states  that  this  con- 
cept applies  equally  to  the  imposition  of  a  greater  sentence.  Since  the  defend- 
ant's offense  had  been  found  to  be  of  a  certain  limited  degree  of  "badness"  or 
gravity  only,  only  a  certain  limited  punishment  was  merited.  Imposition  of  a 
greater  sentence  would  thus  be  constitutionally  prohibited. 

The  specific  holding  of  Pearce  is  not  to  the  contrary.  The  Court  held  that  an 
increased  sentence  could  be  imposed  at  retrial  after  an  appeal  by  the  defend- 
ant when  based  upon  objective  information  concerning  identifiable  conduct  on 
the  part  of  the  defendant  occurring  after  the  time  of  the  original  sentencing 
proceeding.  This  narrow  scope  for  tJie  permissible  imposition  of  a  greater  sen- 
tence does  not  apply  to  the  provisions  of  S.  1437.  First,  the  government's  appeal 
under  §  3725(b)  would  presumably  be  based  not  on  the  defendant's  conduct 
occurring  after  the  original  sentencing,  but  on  an  opinion  that  the  sentence 
below  the  suggested  guidelines  was  too  low.  Second,  the  majority  in  Pearce 
based  its  holding  on  the  rationale  that  where  a  first  conviction  has  been  suc- 
cessfully set  aside  at  a  defendant's  behest,  the  conviction  has  been  wholly  nulli- 
fied and  the  "slate  wiped  clean."  Supra  at  721.  This  clearly  does  not  apply  to 
a  government  appeal  of  a  sentence  under  §  3725.  In  this  instance,  the  first  con- 
viction still  stands,  so  the  defendant  is  exposed  to  double  jeopardy.  Further, 
the  appeal  is  not  at  a  defendant's  behest,  but  at  the  government's. 

Some  cases  have  advanced  the  theory  that  a  defendant  taking  an  appeal 
waives  his  constitutional  protection  against  double  jeopardy.  Waiver  represents 
some  form  of  knowing  and  intelligent  relinquishment  of  a  right.  This  waiver 
concept  cannot  apply  to  a  defendant  who  helplessly  stands  by  while  the  govern- 
ment appeals  his  sentence.  Such  a  defendant  has  patently  not  "assumed  the 
risk"  of  an  appeal. 

That  the  Double  Jeopardy  Clause  proscribes  the  imposition  of  a  harsher  sen- 
tence upon  resentencin<r  where  there  has  been  either  a  new  trial  nor  n  conviction 
was  affirmed  in  United  States  v.  Durlin,  .542  F.  2d  486  (8th  Cir.  1076).  In  that 
case  the  defendnnt  soTight  to  vacate  a  sentence  on  the  ground  that  a  subsequently 
reversed  conviction  for  an  unrelated  offense  had  bepn  taken  into  account  in  its 
imposition.  He  received  a  srenter  senten-^e  noon  rpsenten<"'ns'.  The  Cmirt  found 
that  since  Durbin  had  neither  souirht  nor  ncnnired  a  nullification  of  his  convic- 
tion, the  ban  against  double  jpopardv  prohibited  imnositinn  of  an  incre.ised 
sentence.  Pearce  was  specifically  distinguished  in  that  "the  guarantee  against 
double  jenpnrdv  does  not  restrict  the  lensth  of  the  sentence  upon  reconviction:' 
UnHcd  States  v.  Durhin.  surirn  at  488  (em'^hasis  added").  A  defendant  therefor^ 
may  not  receive  an  enlarged  sentence  based  on  the  originol  conviction  as  would 
be  the  case  with  government  appeals  of  sentencing  under  §  3725. 


9148 

In  addition  to  constitutional  problems  with  §  3725,  several  questions  of  public 
policy  must  be  carefully  examined  as  well.  First,  defendants  may  be  forced  to 
engage  in  plea  bargaining  with  prosecutors  who  promise  not  to  take  an  appeal 
as  one  of  the  bases  of  tlie  bargain.  It  is  true  that  there  is  a  societal  interest  in 
efficient  criminal  administration  in  having  guilty  defendant  plead  guilty,  thus 
avoiding  unnecessary  trials.  However,  it  is  detrimental  to  society  to  have  innocent 
defendants  plead  guilty  because  they  fear  the  government  will  api>eal  their  sen- 
tences if  they  refuse  to  engage  in  plea  bargaining.  A  conviction  founded  on  an 
involuntary  guilty  plea  is  constitutionally  void,  and  coercion,  whether  physical 
or  mental,  vitiates  voluntariness.  Machihroda  v.  United  States,  368  U.S.  4S7 
(1962). 

The  Supreme  Court  in  Pcarce  clearly  stated  that  due  process  requires  that 
vindictiveness  against  a  defendant  for  having  successfully  attacked  his  first  con- 
viction must  play  no  p;^rt  in  the  sentence  he  receives  after  a  new  trial,  (at  725). 
Accordingly,  vindictiveness  must  play  no  part  in  the  government's  appealing  a 
defendant's  sentence  because  the  defendant  had  declined  to  cooperate  in  plea 
bargaining. 

Similarly,  the  danger  exists  that  the  defendant  who  has  the  right  under 
§372."i(a)  to  appeal  a  sentence  which  is  above  the  suggested  guidelines  will  be 
the  victim  of  a  retaliatory  appeal  by  the  government  (in  the  event  of  imposi- 
tion of  a  sentence  which  is  lower  than  the  guidelines),  unless  he  previously  has 
promised  not  to  appeal.  The  defendant  would  thus  be  denied  a  free  and  independ- 
ent assessment  of  the  choice  of  whether  to  appeal  or  not. 

Finally,  proponents  of  the  government's  right  to  appeal  may  argue  that 
society's  interest  in  avoiding  too  lenient  sentences  and  great  disparities  in  sen- 
tencing justifies  the  provision.  As  to  the  first,  the  societal  interest  must  yield, 
as  compelled  by  the  Double  Jeopardy  Clause.  North  Carolina  v.  Pcarce,  supra 
at  750,  Justice  Harlan's  opinion.  As  to  the  second,  uniformity  of  .sentencing  is 
not  necessarily  a  desirable  goal  in  all  cases.  The  prevalent  modern  i)hiloj^ophy  of 
penology  is  that  the  punishment  .should  fit  the  offender  and  not  merely  the  crime. 
Williams  v.  New  York,  337  U.S.  241  (1949).  A  judge  may  well  determine  that  the 
circumstances  of  a  particular  offense  and  an  individual  offender  warrant  a  sen- 
tence below  that  of  the  guidelines.  The  Supreme  Court  in  Dorfiznski  v.  United 
States.  418  U.S.  -^24  (1974),  noted  the  traditional  powers  and  unfettered  sentenc- 
ing discretion  of  a  federal  district  judge. 

In  conclusion,  considerations  of  both  a  constitutional  and  public  policy  nature 
require  that  the  government  not  be  ))ermitted  to  appeal  .sentences  which  are  be- 
low the  suggested  guidelines.  Defendants  must  not  be  coerced,  even  sulitly.  into 
plea  bargaining  or  giving  up  their  rights  to  appeal.  Further,  having  once  faced 
the  jeopardy  of  a  higher  sentence,  the  Double  Jeopardy  Clause  protects  them  from 
being  exposed  again  to  the  risk  of  a  harsher  sentence.  "For  of  what  avail  is  the 
constitutional  protection  against  more  than  one  trial  if  there  can  be  any  number 
of  sentences  pronounced  on  the  same  verdict'?"  Ex  parte  Lange,  supra  at  173. 

Sonator  Tiiukmoxd.  Our  next  witness  is  Mr.  Jack  Landnn,  on  behalf 
of  the  Reporters  Committee  on  Freedom  of  the  Press,  Washinirton, 
D.C. 

Mr.  Landaii,  we  will  put  your  entire  statement  in  the  record,  if  that 
is  ajirceable.  Then  we  v.'ill  <rive  you  up  to  15  minutes,  if  you  want  that 
mucli  time,  to  comment  on  the  statement  or  make  any  additional  points 
you  care  to  make. 

[The  material  follows :] 

Prkpared  Statement  of  tiii:  Reporters  Committee  for  Freedom  of  the  Press 

Mr.  Chairman  and  members  of  the  subcommittee,  on  behalf  of  the  Reporters 
Committee,  we  should  like  to  thank  you  for  this  opportunity  to  express  our  views 
on  the  new  S-1. 

As  you  may  remember.  The  Reporters  Committee  testified  before  this  Sub- 
committee in  1973  on  the  1973  versions  of  S-1  and  S-1400,  and  in  1975  on  the 
1975  version  of  S-1. 

In  our  previous  appearances,  we  strongly  disapproved  of  a  number  of  provi- 
sions which  we  thought  would  have  undermined  the  First  Amendment  rights 
of  the  press  to  report  and  the  public  to  receive  information  about  the  govern- 
ment. 


9149 

Subsequent  to  that  testimony,  Senators  McClellan  and  Kennedy  and  their 
staffs  reworked  the  bill.  The  result  is  that  a  few  of  our  suggestions— and  the 
suggestions  of  other  press  groups—have  been  heeded,  mainly  with  the  elimina- 
tion of  the  espionage  sections.  We,  of  course,  appreciate  that  effort. 

But  unfortunately,  the  bill  today  remains  what  it  was  in  1973.  The  New  S-1 
is  an  Otiieial  Secrets  Act  which  would  give  the  government  wide-ranging  new 
criminal  powers  to  severely  restrict  First  Amendment  rights  of  the  press  to 
report — and  the  public  to  receive — the  news. 

Here  we  are,  five  years  after  Watergate  and  the  Pentagon  Papers,  with  a  bill 
making  a  frontal  assault  on  the  First  Amendment  by  giving  the  Justice  Depart- 
ment and  the  courts  new  or  expanded  criminal  authority  to  jail  news  reporters 
and  news  organization  executives — 

( 1 )  For  "improperly"  criticizing  government  officials. 

(2)  For  publishing  news  in  violation  of  illegally  issued  "gag  orders." 

(3)  For  protecting  confidential  news  sources  in  violation  of  illegally  issued 
disclosure  orders. 

(4)  For  publishing  "stolen"'  government  reports  without  government  permis- 
sion, regardless  of  content ; 

(5)  For  possession  of  original  government  memos  without  permission,  regard- 
less of  content. 

The  bill  also  makes  it  a  crime  for  government  employees  to  leak  to  the  press 
any  "private"  information  which  the  government  has  from  oil,  auto,  drug  and 
defense  contracting  firms  and  other  nongovernment  organizations. 

We  would  have  hoped  that  Congress  would  have  proposed  a  bill  which  main- 
tains the  status-quo  or  would  offer  more  protection  for  press  coverage  of  govern- 
mental affairs.  But  the  New  S-1  tightens  the  legal  noose  around  the  flow  of  gov- 
ernment news  to  the  public  by  authorizing  jail  sentences  and  fines  for  collecting 
and  publishing  information  about  the  government. 

It  retains  the  same  basic  philosophy  and  most  of  the  same  provisions  of  1973 
and  1975  versions  of  S-1  (and  S-1400),  except  for  the  espionage  act  provisions. 

This  Official  Secrets  Act  philosophy — conceived  mainly  by  the  Nixon  Adminis- 
tration— was  and  is  that  government  should  have  the  power  to  protect  itself 
from  public  criticism  and  embarrassment  by  having  criminal  conviction  powers 
to  intimidate  and  harass  the  press  into  silence ;  and,  if  the  press  refuses  to  be 
intimidated,  then  to  send  reporters  and  editors  to  jail. 

The  liberal  and  conservative  supporters  of  this  bill  argue  that  the  Justice 
Department  will  never  use  the  provisions  of  this  bill  against  the  press. 

We  are,  they  say,  in  a  "new  era" — "an  era  of  good  feelings."  Therefore,  despite 
the  plain  language  of  the  bill — authorizing  criminal  prosecution  and  jail  against 
the  press  for  reporting  news  to  the  public — we  are  asked  to  believe  that  the  recent 
uni)leasantnesses  between  press  and  the  government  will  never  happen  again. 

We,  most  respectfully,  dissent  for  five  reasons  : 

First :  We  were  told  when  we  first  appeared  here  in  1974  to  oppose  S-1  and 
S-1400  that  wo  were  being  too  protective  of  the  First  Amendment  when  we 
classified  this  bill  as  an  "Official  Secrets  Act." 

We  were  told,  in  1976,  again  that  we  were  wrong.  We  think  time  and  events 
justified  our  past  criticism  and  will  justify  this  criticism. 

Second :  We  are  in  an  era  of  good  feelings  between  the  press  and  the  govern- 
ment at  the  national  level — at  least  much  better  than  it  was. 

But  the  moods  of  politicians  change  quickly  and  dramatically.  We  are  trying  to 
assure  that  the  public  will  be  protected  in  its  rights  to  know  the  news,  regardless 
of  whether  the  administration  is  friendly  or  hostile. 

Suppose  the  situation  changes  and  prosecutions  do  ensue?  What  are  we  to  tell 
the  public  "Yes  ...  we  knew  this  could  happen.  Yes,  we  saw  the  danger.  We're 
sorry.  W^e  closed  our  eyes  to  the  First  Amendment?" 

Third :  This  is  supposed  to  be  reform  of  the  criminal  law  to  and  I  quote  .  .  . 
"take  recognition  of  the  problems  that  have  arisen"  recently. 

There  are  new  provisions  for  the  protection  of  convicted  criminals,  for  example, 
in  the  sentencing  area. 

But  what  about  the  free  flow  of  news  to  the  public?  We  find  no  new  protections 
there.  What  v/e  find  is  a  net  of  new  laws  and  of  changes  in  old  laws  tightening  the 
legal  noose  around  the  press. 

Fourth :  This  w^ill  be  a  model  for  the  states  and  will  encourage  similar  official 
secrets  acts  to  be  passed  by  state  legislatures. 


9150 

Fifth  :  Certainly,  when  the  major  news  organizations  are  faced  with  these  pro- 
visions— if  they  are — they  will  spend  thousands  of  dollars  (millions  if  they  have 
to)  to  keep  their  reporters  and  editors  out  of  jail. 

But  the  small  weekly  or  daily,  the  independent  radio  station,  the  aggressive 
individual  reporter  and  freelance  writer  do  not  have  the  resources  to  hire  legal 
help,  especially  when  you  remember  it  may  cost  as  much  as  $35,000  to  fight  a 
subpoena. 

This  bill  gives  a  federal  prosecutor  the  clear  power  to  threaten  these  reporters 
with  jail — and  if  they  read  the  law,  they  might  well  conclude  that  they  have  no 
defenses  available.  They  may  stop  publishing  or  they  may  give  the  government 
back  the  report  without  publishing  it  or  they  may  disclose  their  news  sources. 

The  First  Amendment  and  the  federal  law  is  not  only  for  the  rich  and  influ- 
ential who  can  defend  themselves,  if  need  be.  It  is  also  to  protect  the  small  news 
organization  and  individual  reporter  and  editor  who  can't  defend  himself  very 
well.  Given  the  already  unlimited  legal  and  law  enforcement  resources  of  the  fed- 
eral government,  this  bill  would  now  add  the  additional  powers  to  harass  and 
intimidate  the  news  organization  and  news  persons  of  modest  financial  resources 
with  the  threat  of  bankruptcy  if  they  attempt  to  fight  back. 

For  all  these  reasons,  as  more  fully  explained  in  the  following  section-by-section 
analysis,*  we  urge  this  Subcommittee  to  decline  to  approve  the  Ofiicial  Secrets  Act 

I.     CRIMINAL    SEDITION 

Criticizing  a  public  servant  (section  1358). 

It  would  be  a  crime  for  a  news  organization  or  news  reporter  to  publish  a  news 
repoi't  or  editorial  which  "improperly  attacks"  a  government  employee,  causing 
him  any  financial  damage,  such  as  suspension,  reassignment  or  job  termination. 
Maximum  penalty  :  One  year  in  jail  and/or  $100,000  fine. 

1.  This  provision  is  entirely  new  to  the  federal  criminal  code.  It  is  a  criminal 
libel  and  sedition  law  and  was  specifically  designed  to  protect  government  officials 
from  "improper"  criticism  even  for  "illegal"  acts. 

The  bill  achieves  this  result  by  making  it  a  crime  for  any  "person" — including 
a  news  reporter  or  news  organization — to  take  any  action  which  "impropertly 
subjects"  any  government  employee  or  private  citizen  "to  economic  loss  or  injury 
to  his  business  or  his  profession  .  .  .  because  of  an  ofiicial  action  performed  by  a 
pul)lic  servant  or  because  of  the  status  of  a  person  as  a  public  servant." 

This  means  that  a  newspaper  or  new  organization  which  "improperly"  criticize.^ 
government  officials  can  be  prosecuted  on  a  showing  that  the  person  criticized  was 
damaged  in  his  "business  or  profession." 

The  language  of  this  bill  is  similar  to  the  Alien  and  Sedition  Act  of  179S.  which 
said  it  .shall  be  a  crime  : 

"[Ilf  any  person  shall  .  .  .  publish  .  .  .  any  false,  scandalous  and  malicious  writ- 
ings against  the  government  of  the  United  States  . .  .  with  intent  to  defame  .  . .  the 
government ...  or  to  bring  them  .  . .  into  contempt  or  disrepute." 

In  fact,  in  the  Alien  and  Sedition  Act,  the  government,  in  order  to  jail  one  of  its 
critics,  had  to  prove  that  the  publication  was  "false,  scandalous  and  malicious." 
In  the  New  S.  1  version,  all  the  government  need  prove  is  that  the  criticism  wa.s 
made  "improperly." 

The  Congress,  it  apix-ars,  is  not  alone  in  wanting  to  resurrect  criminal  sedition. 
The  Supreme  Court  of  Virginia  has  just  upheld  the  constitutionality  of  a  law  used 
to  convict  the  Norfolk  Virginian-Pilot  for  reporting  that  a  local  judge  was  under 
investigation  for  allegedly  improper  behavior.^ 

Thus,  this  new  S.  1  provision  gives  the  federal  government  the  authority  for 
the  grossest  type  of  c<^nsorship  aimed  at  the  press. 

2.  Congressional  snpjtorters  of  this  legislation  nrgne  that  this  provision  was 
intended  to  protoct  irovernment  employees  from  retaliatory  actions  by  business 
firms  and  others  critical  of  the  irovernment  employee's  conduct. 

We  answer  that  the  bill  already  has  n  provision  punishing  a  person  who  "uses 


•Tlir>  T?pnortf>rs  Conirnlttoo  wlshr's  to  tlnnk  riinr'os  Sonnot,  of  Qorir^p  WflpMnefon  T^ni- 
rorwttT  I.nw  Ppntrr.  fnr  bts  lifln  In  .Tinlvv.lnsr  tills  hill  nnd  nromrlns'  «^iin  wrlttnn  t^iflmony. 
Tlio  ronimlttoo  wonlfl  nl'^o  Hko  to  thnnU-  AIIti  ,A(11or  of  fJporiro  Wnslilnf ton  T'nivor«ltv 
Tj-iw  Co-ntor.  nnd  Kovin  .Minn,  of  'ho  T'nivors'tv  of  rjillfornia  at  Los  An?filPR  L.tw  School, 
for  thoir  Invnl'inblo  lioln  in  tlio  nroflnct'on  of  this  tostlinony. 
provisions  which  still  infpf^t  this  hill. 

1  T,niifin,n>l-  rntintnntir-nfiiui.t  v.  Coin mon irrnlth  of  Vlrpiiiia,  Record  No.  TfiO.'nG  (V.n.  Sup. 
Ct..  dpcldpd  M.nrrh  4,  1077). 


9151 

force,    threat,    intimidation,    or    deception    with    intent   to   influence    a    public 
servant."  ^ 

3.  To  understand  the  scope  of  this  provision  against  the  press  one  need  only 
refer  to  the  legislation  history  which  states,  that  the  action  in  "retaliation  is 
unjustified  against  a  public  servant,  irrespective  of  the  legality  of  the  public 
servant's  acts." ' 

That  is  to  say,  a  publisher  who  "improperly"  decided  to  engage  in  "retaliation" 
editorially  against  a  government  oflicial  for  his  illegal  acts  could  be  convicted  and 
jailed  for  one  year  if  he  succeeds  in  getting  the  public  oflicial  flred. 

Under  Neiv  York  Times  Co.  v.  SiUlwati*  and  Gertz  v.  Robert  Welch,  Inc.,^  the 
government  oflicial  can  sue  for  libel  if  he  can  prove  that  the  statements  were  false 
and  reckless. 

This  bill  would  send  an  editorial  writer  or  publisher  to  jail  even  if  the  state- 
ment is  truthful. 

The  example  given  in  the  legislative  history  speaks  for  itself.  This  criminal  pro- 
vision "would  reach,  for  example,  the  case  of  an  employee  of  the  Civil  Rights 
Division  of  the  Department  of  Justice  who  is  attacked  ('by  non-physical  acts') 
because  of  his  employment  in  such  agency." 

"Tliis  is  intended  to  reach  non-physical  acts  such  as  effecting  the  discharge  or 
transfer  of  a  person  from  his  employment".* 

4.  It  is  the  position  of  our  Committee  that  the  First  Amendment  guarantees 
to  the  public  and  the  press  the  right  to  criticize  government  officials  as  often  and 
as  abrasively  as  they  wish,  calling  for  dismissal  or  resignation  or  whatever  other 
action  the  citizen  thinks  is  warranted.  That  is  the  essence  of  a  free  society. 
"Retaliation"  by  words  against  government  officials  is  every  citizen's  right.  Who 
is  to  decide  whether  the  criticism  is  "improper" — a  jury?  The  government  official? 
The  Congress?  We  urge  this  Subcommittee  to  eliminate  this  criminal  sedition 
provision  designed  to  protect  the  government  from  being  "improperly"  criticized. 

II.    PRIOR   RESTRAINTS    OX    PUBLICATION    OF    NEWS 

Violations  of  illegal  gag  orders  {sections  1331  and  1335). 

This  bill  would  make  it  a  crime  for  a  news  person  or  news  organization  to  pub- 
lish a  news  article  or  editorial  in  violation  of  a  court  order  later  declared  void. 
Maximum  penalty  :  For  a  news  person,  six  months  in  jail  and  $100,000  fine  (more 
at  the  judge's  discretion  for  ignoring  this  illegal  order)  and  for  a  news  organiza- 
tion, a  $500,000  fine  (more  at  the  judge's  discretion).  This  would  be  a  new  law. 

1.  This  bill  permits  the  fining  and  imprisonment  of  news  persons  or  new  organi- 
zations who  violate  prior  restraint  orders  illegally  issued  by  judges.  Two  separate 
criminal  contempt  sections  can  be  used. 

The  bill  achieves  this  result  by  making  it  a  crime  for  any  "person" — including  a 
news  person  or  news  organization — to  "disobey  (s)  .  .  .  a(n)  ...  order  ...  or  com- 
mand of  a  court,"  even  if  that  order  is  subsequently  declared  void  (Section  1331)  ; 
and  makes  it  an  additional  crime  for  any  "person"  to  disobey (s)  a  temporary — 
or  final  order"  of  a  court,  even  if  the  order  is  subsequently  declared  void  (Section 
1335). 

The  bill  offers  a  purported  defense  to  the  press  :  the  news  organization  or  news 
person  must  be  able  to  obtain  a  decision  that  the  order  is  not  only  void,  but  is  also 
"clearly  invalid"  ;  and  that  the  news  organization  or  news  person  must  show  there 
was  no  "reasonable  opportunity"  to  appeal. 

There  is  no  question  that  the  contempt  provision  is  aimed  at  the  press.  As 
Senator  Kennedy  said  when  he  joined  Senator  McClellan  in  introducing  this  bill, 
"New  defenses  are  added  to  protect  the  press  from  'gag  orders'  ".'' 

2.  It  is  our  position  that  this  provision,  if  passed,  will  violate  the  First  Amend- 
ment, offer  less  protection  than  current  law.  and  will  encourage  federal  judges 
all  over  the  country  to  issue  gag  orders  and  therefore  to  decide  what  the  public 
will  read. 

We  are  facing  a  plague  of  g:ag  orders  issued,  by  both  federal  and  state  judges 
barring  the  press  from  publishing  court  news — either  by  ordering  the  press  not 


2.9re  S.  1437.  Oath  Cong..  Ist  Sess.  5  1357.  Mav  2.  1977. 

3  Criminal  Justice  Reform  Act  of  1975,  S.  Rep.  No.  94-00,  94th  Cong.,  1st  Sess.   (1975), 
p.   447. 

*Neir  York  Time/^  Co.  v.  fiuUfrnn.  370.  U.S.  254  ri964). 

^  Gprf-  V.  Rohn-t  Welch,  Inc.,  41 S  U.S.  323  (1974). 

•  ffunra.  note  '3.  p.  447. 

T123  Cong.  Rec.  S.  6S40  (daily  ed.  May  2,  1977)    (remarks  of  Sen.  Kennedy). 


9152 

to  publish  or  by  censoring  public  proceedings,  public  records  and  public  figures 
involved  in  civil  and  criminal  cases. 

Here  are  some  of  the  gag  order  cases  pending  in  state  or  federal  courts  in  the 
last  six  months : 

Massachusetts :  Judge  stops  Cape  Cod  Times  from  reporting  about  a  case  filed 
by  a  bank  against  the  State  Banking  Commission  by  sealing  the  complaint  and 
ail  other  papers,  including  docket  entries  of  the  case.* 

New  York  :  Judge  orders  New  York  Times  not  to  publish  prior  criminal  history 
of  a  defendant.® 

New  Jersey  :  Judge  orders  New  Brunsimck  Home  News  and  Trenton  Times  not 
to  publish  report  of  open  court  proceedings.^* 

Pennsylvania:  Judge  stops  Philadelphia  Inquirer  from  attending  pretrial  pro- 
ceedings in  criminal  trial  of  Tony  Boyle."^ 

Maryland :  Judge  stops  Washington  Post  from  reporting  on  Mandel  trial  by 
sealing  all  papers  filed  in  the  case." 

Virginia  :  Judge  stops  Richmond  News  Leader  from  reporting  on  Kepone  chem- 
ical contamination  case  by  sealing  all  papers  filed  in  the  case.^* 

North  Carolina  :  Judge  stops  Raleigh  Netcs  and  Observer  from  reporting  on  the 
killing  of  fugitive  by  sealing  coroner's  autopsy  report.^* 

South  Carolina :  Judge  stops  South  Carolina  media  from  reporting  on  public 
corruption  case  by  prohibiting  all  persons  in  the  trial  from  "mingling  with  or 
being  in  the  proximity  of"  reporters  in  the  courthouse.^" 

Florida  :  Judge  issues  order  to  show  cause  why  Neiv  York  Times,  its  editor. 
A.  M.  Rosenthal,  and  reporter  Seymour  Hersh  should  not  be  held  in  contempt  for 
publishing  a  grand  jury  report  about  the  Internal  Revenue  Service." 

Florida  :  Judge  stops  Jacksonville  Times  from  reporting  about  illegal  drug  case 
by  holding  secret  proceedings." 

Ohio :  Judge  orders  Dayton  Journal  not  to  publish  report  of  open  court  pro- 
ceedings in  murder  case." 

Ohio :  Judge  stops  Akron  Beacon  Journal  from  reporting  on  murder  case  by 
sealing  all  pretrial  proceedings." 

Illinois :  Judge  orders  Rockford  Gazette  not  to  publish  editorials  critical  of 
local  court  system." 

District  of  Columbia  :  Judge  stops  Washington  news  media  from  reporting  on 
baby  selling  case  by  sealing  formal  criminal  complaint.*^ 

Kentucky :  Judge  stops  Louisville  Courier-Journal  from  reporting  on  criminal 
sewage  contamination  case  by  sealing  formal  criminal  complaint." 

Oklahoma:  Judge  orders  Daily  Oklahoman  and  other  Oklahoma  City  news 
media  not  to  publish  report  about  open  court  proceedings  involving  a  .iuvenile.** 

Washincrton  :  Judge  stops  news  media  from  reporting  on  murder  case  by  order- 
ing the  defendant  not  to  talk  to  the  press.** 


^  Cane  Cod  Times  v.  Artnenls  Court,  et  al..  No.  715  (Supreme  Judicial  Court  of  Massa- 
olinsptts.  fllpfl  May  11.  1977). 

»  New  York  Tlmps.  .Tannarv  20,  1977,  p.  A-1. 

w.<?«f7fc  of  New  Jersey  v.  Allen,  et  al,  No.  A-59/60  (N.J.  Supreme  Court,  filed  April  22, 
ir577V 

nphtlndolphla  Tnqnlrer.  Mav  8.  1077,  p.  R-Q. 

"  Tn  re  Waslilncrton  Post  Co..  Nos.  7fi-lfi0.5,  7G-169S,  76-1699,  76-1711  (4th  Clr.  1976). 

i-iRIohinoiul  Times  niKpnteh.  Auenst  .S,  1976.  p.  1. 

^*  Neirn  find  OhKrrver  PuMixhina  Co.  V.  f^mifh.  No.  7nsr474PM-r-M-M-lSr  (North 
<^.iroHnn  Court  of  Apnonlp.  dismissed  a^  moot.  .T.nnnarv  4.  1977,  after  tlie  eajr  ordf»r  was 
vae.nted  In  fitnfr  v.  Conleij,  No.  76  CRS6166f),  Superior  Court,  Ninth  Judicial  District, 
Deremher  21,  1976). 

^^- F^nrirtu  of  Prnfeasionnl  Jourvnh'nt/i  v.  ^fartin.  No.  77-1 0.?^  (4th  Clr.  May  17.  1077), 
sfnu  drnied.  —  TT.R.  — .    (order  of  Miv  22.   1077.  Prpnnr^Mand  AfTslinll.  .T.T.,  dissentlntr). 

win  TO  nipclosnrp  of  Ornnd  .Tiirv  r{er.ort,  No.  7.'i-A  (Mia)  (U.S.D.C,  S.D.  Fla.,  Orders 
of  Dononihor  S.  1070  and  .T.nnu.nrv  10,  1077). 

■^Tnitpd  F!tnfr<^  v.  fJi^'ifh.  et  nJ..  No.  77-14-Cr-.T-T  (r.S.D.C  M.D.  Fla..  Orders  of 
.Tnminrv  2«5  1077  and  February  9,  1977).  See  also,  Florida  Tlme.«;-TTnlon,  .January  25, 
1977.  n.  B^R. 

"Sta+o  px  rel.  Bavton  Neirspapers  v.  PhilUps.  40  Ohio  St.  2d  4.'')7.  ."^.'1  N.E.  2d  129 
(Ohio   1076). 

"  "tate  ex  rel.  Penenn  Jour>inJ  v.  Kninrnd.  4C,  Oliio  St.  2d  349.  548  N.K.  2d  60.5  (Ohio 
197fi^. 

'■"  for, riff  V  PorVfnrd  \r"-sit)r!'iri-<).  Tne  ,  n*-  m1..  No.  7G-204  (.\pn.  Ct.  of  Illinois.  2d 
.T"rtlp'nl  nis^^rlct,  anr^enl  rlorkptpd  M^rph  .4.  1076). 

^  Dnp  V.    nisher.  Civ.   No.   10007-76    (DC.   Sun.   Ct.    (^e^ldpd  Vpvpmhpr  ."^O.   10761. 

M  T'vUrd  S!tnte9  v.  Dinflr'-.  No.  77-nfi.-S(M-01-T,  (P.R.D.C.  W.D.  Kentucky,  filed  June  1, 
1077  V   ^pfl  nlf)0.  TiOiHsviiin  rnur'er-Tonrnnl.  .Tune  S.  1977. 

^  Ollnhnwn  Puhli.ih'vo  Co.  v.  Distr^rf  Court.  No.  "00^2  (Oklahoma  Sun.  Ct..  decided 
Optnbpr  10.   107(1>.  rer'd.  —  TT.R.  — .  4.5  T\R.Ty  W..  .'^r.OO   (TT.S.  March  7.  1877). 

'«  l^tnfe  nf  Wanliington  y.  Wanroin,  No.  20876  (Spokane  County  Superior  Court,  Order  of 
May  ir?,  1977). 


9153 

3.  We  believe,  in  general,  that  the  principles  of  the  First  Amendment  never 
authorize  any  agency  of  the  federal  or  state  governments  to  issue  a  prior  restraint 
on  the  pubUcation  of  news  unless— as  the  New  York  Times  and  Washington  Post 
argued  in  the  Pentagon  Papers  case  "  the  government  can  prove  "clear  and  pres- 
ent danger  to  the  national  security  of  the  United  States." 

Following  this  principle,  it  is  our  position  with  reference  to  this  bill,  that  it 
can  never  be  a  federal  crime  for  a  news  person,  or  news  organization,  acting  in 
good  faith  under  the  First  Amendment,  to  publish  news  in  violation  of  a  court 
order— except  for  the  "clear  and  present  danger"  situation. 

At  an  absolute  minimum,  it  can  be  no  federal  crime  to  publish  in  violation  of 
an  illegal  gag  order. 

Therefore,  we  oppose  these  new  criminal  contempt  provisions  because  they  do 
authorize  the  jailing  or  fining  of  news  reporters  and  news  organizations  who 
ignore  an  illegal  "gag  order"  and  publish. 

4.  Congressional  supporters  of  this  legislation  argue  that  current  law  now 
permits  the  criminal  conviction  of  a  news  organization  for  violating  a  prior 
restraint  order  subsequently  declared  void.  We  disagree. 

While  it  is  conceivable  that  this  might  be  the  law  at  some  future  time — 
especially  if  this  bill  is  passed — no  news  organization  or  news  reporter  we  know 
of  has  ever  been  held  in  criminal  or  civil  contempt  on  appeal  for  violating  a 
prior  restraint  order,  except  for  one  case  in  the  Fifth  Circuit. 

That  case  was  United  States  v.  Dickinson,^"  in  which  two  news  reporters  from 
The  Baton  Rouge  Morning  Advocate  and  States  Times,  who  were  sitting  in  court, 
were  ordered  not  to  publish  information  elicited  during  the  open  court  proceeding. 
The  reporters  ignored  the  order,  published  their  articles,  were  convicted  of 
criminal  contempt  and  fined. 

The  United  States  Court  of  Appeals  ruled  the  order  was  invalid.  But  relying 
on  the  doctrine  of  Walker  v.  Birmingham,^  the  Court  of  Appeals  also  ruled  that 
the  news  reporters  should  have  obeyed  the  order,  suppressed  the  new  article, 
and  appealed — for  however  long  that  migth  have  taken. 

The  Supreme  Court  declined  to  review  the  Dickinson  case,  an  action  which 
indicates  neither  approval  nor  disapproval  of  the  Fifth  Circuit  decision. 

No  other  Court  of  Appeals  so  far  has  followed  Dickinson.  Two  State  Supreme 
Courts — the  Supreme  Court  of  Washington  ^  and  the  Supreme  Court  of  Arkan- 
sas ^ — have  ruled  the  other  way  and  have  voided  criminal  contempts  against 
news  reporters  who  violated  illegally  issued  prior  restraint  orders. 

The  Nebraska  Supreme  Court  in  Nebraska  Press  Association  v.  Stuart  *°  in- 
dicated that  it  did  not  believe  that  the  press  was  required  to  pay  any  atten- 
tion to  an  illegal  prior  restraint  order,  even  when,  as  in  Dickinson,  reporters 
were  present  in  the  courtroom  when  the  order  was  issued.  The  United  States 
Supreme  Court  took  note  of  the  problem,  but  did  not  offer  any  guidance.'^ 

The  only  other  case  we  know  about  involves  the  Rockford,  Illinois,  Gazette, 
which  was  ordered  not  to  publish  any  editorials  criticizing  the  local  court  sys- 
tem. The  newspaper  ignored  the  order  and  was  held  in  criminal  contempt.  The 
order  was  subsequently  declared  invalid.  The  criminal  contempt  conviction  is 
now  pending  before  the  Illinois  Court  of  Appeals.'^ 

Therefore,  we  believe  that  this  provision,  authorizing  criminal  contempt  for 
violation  of  an  invalid  gag  order,  is  clearly  not  the  law  today,  with  only  one 
conviction  in  47  years  from  one  Court  of  Appeals,  and  with  two  recent  state 
supreme  court  decisions  in  opposition. 

5.  Congressional  supporters  also  argue  that  this  bill  offers  "new  defenses" 
against  gag  orders  because  the  news  reporter  or  news  organization  can  escape 
jail  by  obtaining  a  ruling  that  the  illegal  order  was  also  "clearly  invalid",  and 
that  there  was  not  a  "reasonable  opportunity"  to  appeal. 

We  disagree.  A  criminal  law,  the  Supreme  Court  has  said,  must  be  specific 
enough  so  that  a  person  subject  to  its  jurisdiction  has  a  reasonable  opportunity 


25  Brief  for  petitioner,  Neic  York  Times  v.  United  States.  403  U.vS.  713  (1971). 

^^  United  States  v.  Dickinson,  465  F.  2d  496  (5th  Cir.  1972),  aff'd  en  banc  476  F.  2d 
37'3.  cert,  denied  414  U.S.  979  (1973). 

^''Walker  v.  Citv  of  Birminrjham,  388  U..=!.  307  (1967). 

28  State  ex  rel  Superior  Court  v.  Sperry,  79  Wash.  2d  69,  483  P.  2d  608,  cert,  denied  404 
U.S.  939   (1971). 

20  Wood  V.  Goodson,  253  Ark,  196,  485  S.W.  2d  213  (1972). 

^"Nebraska  Pre>^s  Association  v.  Stuart,  194  Neb.  783.  795  :  236  N.W.  2d  794,  802  (1975). 

^Nebraska  Press  Association  v.  Stuart,  96  S.  Ct.  2791,  2806,  n.  9  (1976). 

3'  Supra,  note  20. 


9154 

to  evaluate  whether  he  will  bo  convicted ;  or  as  this  bill  itself  states,  he  must  be 
given  adequate  "notice  of  conduct"  which  will  send  him  to  jail " 

For  a  wire  service,  on  deadUne  every  minute  all  over  the  world,  or  for  a 
radio  or  television  station,  one  minute  may  be  "reasonable"  from  a  reporter's 
or  editor's  point  of  view,  but  a  judge  may  disagree.  For  a  newspaper  with  a  daily 
press  run,  it  might  be  decided  that  20  hours  is  reasonable.  And  for  a  monthly 
magazine,  it  might  be  a  month.^' 

The  injunction  against  the  New  York  Times  in  the  Pentagon  Papers  case  lasted 
18  days.  The  injunction  against  the  Nebraska  press  in  Nebraska  Press  Associa- 
tion V.  Stuart  lasted  3V.  months,  while  Justice  Blackmun  indicated  that  30  days 
might  be  acceptable.  The  injunction  against  the  Oklahoma  City  media  in  Okla- 
homa Publishing  Co  v.  District  Court  lasted  five  months  before  the  Supreme 
Court  reversed  it.  And  last  week,  the  Supreme  Court  said  that  prior  restraint 
orders  must  be  given  an  "immediate"  appeal,  citing  Justice  Blackmun. 

We  think  it  is  intolerable  that  a  news  person  and  news  organization,  in  order 
to  exercise  constitutional  right  to  publish  in  violation  of  an  illegal  order,  are  to 
be  subjected  to  the  discretionary  decision  of  some  judge  or  some  jury  as  to 
v,-hether  there  was  "reasonable"  time  to  appeal. 

The  second  requirement,  which  the  news  organization  must  show,  is  equally 
unconscionable.  A  newspaper  cannot  require  an  appeals  court  to  rule  that  an 
order  is  "clearly  invalid".  This  means  that  the  newspaper  is  at  the  mercy  of  an 
appeals  court  in  deciphering  whether  a  ruling  of  invalidity  is  also  "clearly 
invalid." 

6.  The  Supreme  Court  said  in  Nebraska  Press  Association — an  opinion  with- 
out di.ssent — that  there  is  a  "presumption  against  prior  restraint"  ^"  on  the  pub- 
lication of  news.  There  is  no  substance  to  a  constitutional  presumption  when  a 
reporter  may  be  jailed  for  violating  a  court  order  which  is  not  only  presump- 
tively invalid,  but  also  is  declared  to  be  totally  invalid.  But  that  is  the  result 
this  provision  authorizes. 

The  bill  imposes  a  chilling  effect  on  tlie  free  exercise  of  the  First  Amendment 
rights  by  the  requirement  that  every  publisher  and  reporter  must  taice  a  cal- 
culated risk  of  imprisonment  by  gambling  on  whether  an  illegal  prior  restraint 
order  is  also  "clearly  invalid"'  and  whether  he  also  has  a  "reasonable  time"  to 
appeal  or  seek  a  stay  before  going  to  press. 

When  the  order  is  issued,  the  press  has  two  choices.  It  can  obey  the  order  and 
appeal,  or  it  can  ignore  the  order  and  publish.  If  it  publishes,  and  the  order  is 
declared  void,  no  punishment  can  attach.  But  this  bill  would  have  two  pernicious 
results :  first,  it  would  force  a  newspaper  to  appeal  an  illegal  order  and  submit 
itself  to  the  jurisdiction  of  the  courts  if  there  was  "reasonable"  time.  Second, 
by  giving  the  federal  courts  a  new  prior  restraint  weapon  against  the  press,  it 
would  encourage  federal  judges  to  issue  these  orders.  Certainly,  by  expanding 
the  existing  power  to  issue  gag  orders.  Congress  would  appear  to  be  both  approv- 
ing of  the.se  gag  orders  and  suggesting  that  the  gag  order  power  be  exercised. 

III.    DISCLOSURE  OF  CONFIDENTIAL  NEWS  SOURCES 

Contempt  (section  1331). 

The  bill  would  make  it  a  crime  for  a  news  reporter  to  refuse  to  obey  an  illegal 
court  order  requiring  the  disclosure  of  confidential  news  sources  by  testimony 
or  by  revealing  notes  and  out-takes.  Maximum  penalty :  6  months  in  jail  and/or 
unlimited  fine. 

1.  The  bill's  criminal  contempt  section  authorizes  fines  and  imprisonment  for 
violating  an  illegal  court  order  calling  for  tlie  production  of  confidential  news 
sources,  because  it  would  be  a  crime  to  "disoby(s)  .  .  .  a(n)  ...  order  .  .  . 
or  conunand  of  a  court,"  even  if  the  order  is  declared  void. 

The  contempt  section  has  the  same  almost  useless  defense  for  the  press  as 
the  prior  restraint-contempt  section.  In  order  to  escape  jail  for  disobeying  the 

■■^'Orni/tjed  v.  Citi/  of  liocUford,  408  U.S.  104.  ]()S  (1972).  See  also  S.  14.37  provisions 
supra  note  2.  §  101(a). 

■•"  In  tlie  field  of  libel  law,  the  Siiprem  Court  has  indicated  that  First  Amendment 
Standards  may  vary,  based  on  the  degree  of  news  ()r;ianization's  need  to  dlsse;ninate  the 
news  rapidly.  See  Associated  Press  v.  Walker  and  Curtis  Publishing  Co.  v.  Butts.  3SS 
U.S.   130,  l.")7-9    (1967). 

^'- Supra,  note  31,  p.  2802. 


9155 

illcoal  order  to  disclose  confidential  sources,  the  reporter  must  convince  a  court 
tlia't  tlie  order  was  not  only  void,  but  was  also  "clearly  invalid,"  and  that  there 
was  not  a  "reasonable"  time  to  appeal. 

This  means  that  if  reporters  who  broke  stories  such  as  Watergate,  the  Huston 
Plan,  the  Korean  gifts  scandal,  the  CIA  mail  openings,  etc.,  were  ordered  to 
disclose  their  confidential  news  sources  and  their  notes,  and  then  refused,  and 
the  order  was  subsequently  declared  illegal,  they  would  still  go  to  jail  unless 
they  could  also  convince  a  court  that  the  illegal  order  was  "clearly  invalid,"  and 
there  was  time  to  appeal. 

2.  We  are  at  something  of  a  loss  to  suggest  a  situation  where  a  reporter  held 
in  contempt  would  have  a  reasonable  time  to  appeal,  because  the  refusal  to  tes- 
tify is  always  contemporaneous  with  the  contempt  order. 

Perhaps  what  is  meant  by  this  section  is  that  the  reporter  is  required  to 
litigate  the  subpoena  heforc  he  is  asked  any  questions,  or  that  he  is  required 
to  make  a  motion  for  a  stay  of  the  illegal  order  prwr  to  being  held  in  contempt. 
This  would  create  an  absurd  requirement — that  a  person  must  arrange  for 
an  appeal  of  an  order  before  there  is  an  order. 

We  have  discussed  earlier  the  problems  associated  with  obtaining  a  ruling 
that  an  illegal  order  is  also  clearly  invalid. 

3.  The  contempt  section  is  equally  applicable  to  a  court  order  to  turn  over 
notes  obtained  in  interviews  with  confidential  sources,  or  "out-takes"  of  news 
film  which  would  lead  to  identification  of  such  confidential  sources.  Orders  for 
the  proauction  of  newsgathering  materials,  as  well  as  for  the  compulsion  of 
testimony  can  also  be  punished  under  Section  1.333,  Refusing  to  Testify  or  to 
Produce  Information,  which  will  be  discussed  below. 

4.  The  section  raises  an  even  moi-e  fundamental  question.  News  reporters 
and  news  organizations  are  not  agents  of  the  government.  They  obtain  informa- 
tion for  dissemination  to  the  public. 

Unlike  other  persons  who  raise  privileges — such  as  attorneys — the  reporter 
generally  has  no  direct  interest  in  the  news  source.  He  does  not  get  paid  to 
protect  the  legal  or  financial  interests  of  a  client.  He  gives  the  assertion  of 
confidientiality  in  order  to  bring  news  to  the  public  about  governnient  crime  or 
other  matters  of  public  interest. 

Without  the  promise,  the  public  would  be  severely  damaged  because  it  would 
be  deprived  of  the  information.  What  Congress  would,  in  effect,  be  doing  by  re- 
taining criminal  contempt  for  a  good-faith  refusal  to  produce  information  is  to 
punish  the  public  for  reading  the  news  as  much  as  punishing  the  reporter  for 
collecting  it.  Confidential  sources,  fearing  discharge  or  prosecution,  would  not 
inform  the  public  about  crime.  Reporters,  fearing  jail,  would  not  give  the  promise 
and  most  likely  would  not  obtain  the  story. 

5.  In  Iiiihhr  v.  Pachfinan  ^^  and  Ziveibon  ^'^  v.  Mitchell  respectively,  the  Supreme 
Court  and  the  U.S.  Court  of  Appeals  both  said  that  there  can  be  no  federal 
liability  for  government  officials  who  violate  the  laws  and  the  Constitution  of 
the  United  States  if  their  illegal  behavior  was  a  good  faith  assertion  of  what  they 
thought  were  their  rights,  as  law  enforcement  ofiicers,  to  protect  the  public 
welfare. 

We  suggest  giving  the  same  protection  to  the  public's  right  to  know  the  news. 
Why  should  two  reporters  in  Baton  Rouge  be  convicted  for  properly  informing 
the  public  about  current  news  if  federal  and  state  ofiicials  are  immune  when  in 
good  faith  they  violated  the  law? 

6.  Supporters  of  this  legislation  argue  that  current  law  in  the  federal  courts 
provides  that  mere  silence  under  a  good-faith  constitutional  claim  of  privilege 
justifies  a  criminal  conviction. 

We  can  find  but  one  ca.se  in  the  federal  courts  where  a  news  reporter  was 
held  in  criminal  contempt  for  a  good-faith  assertion  of  a  First  Amendment 
privilege,  and  in  that  case,  at  least,  the  order  was  upheld.^  We  can  find  no  case 
in  the  federal  courts  where  a  news  reporter  was  held  in  criminal  contempt  for 
violating  an  illegal  disclosure  order.  In  fact,  we  know  of  only  one  Supreme  Court 
decision  where  any  citizen  was  held  in  criminal  contempt  for  a  good-faith 
assertion  of  a  constitutional  privilege.^* 


^  Imhler  v.  Parlitman,  424  TT.S.  408.  96  S.  Ct.  9S4  (1976). 
^~  Zweibon  v.  Mitchell,  516  F.  2cl  594  (B.C.  Cir.  1975). 

^^  Garland  v.  Torre,  259  F.  2d  545  (2d  Cir.  1958),  cert,  denied  —  U.S.  —    79  S    Ct    237 
(1958).  See  also  Application  of  Cepeda,  233  F.  Supp.  465  (S.D.N.Y.  1965). 
^0  Shillitani  v.  United  States,  384  U.S.  364  (1966). 


9156 

7.  Despite  the  complete  lack  of  authority  for  this  new  S-1  approach,  there  is 
one  institution  which  lielieves  that  reporters  should  be  held  in  criminal  contempt 
and  jailed  for  refusing  to  disclose  confidential  news  sources.  It  is  the  Department 
of  Justice. 

The  Justice  Department  is  currently  attempting  to  jail  for  six  months  on 
criminal  contempt  charges  two  reporters  from  the  Charleston,  West  Virginia 
Gazette,  who  have  refused  to  disclose  news  sources  pursuant  to  an  order  of  the 
U.S.  District  Court  in  a  case  involving  a  dispute  between  coal  operators  and  the 
United  Mine  Workers.*^ 

The  coal  dispute  has  long  since  been  resolved.  Even  if  the  reporters  were  to 
testify  now,  there  are  no  proceedings  in  which  their  testimony  could  be  used. 
But  the  Justice  Department,  relying  on  the  Shillitani  case,  wishes  to  send  these 
reporters  to  jail  for  six  months  to  punish  them  for  the  exercise  of  their  First 
Amendment  privilege  not  to  disclose  the  information. 

8.  This  bill  would  condone  such  efforts  by  the  Justice  Department  to  criminally 
punish  news  reporters  for  their  silence — completely  misconceiving  the  difference 
between  criminal  and  civil  contempt. 

Criminal  contempt,  going  all  the  way  back  to  the  Gompcrs  case,  *^  is  a  penalty 
for  disrupting  judicial  proceedings  or  for  intentionally  affronting  the  dignity  of 
a  court.  It  is  meant  as  a  punishment. 

Civil  contempt  is  an  effort  by  the  court  to  obtain  compliance  with  its  orders. 
It  seeks  a  remedy — such  as  the  disclosure  of  information. 

9.  We  believe  that  a  news  reporter  has  an  absolute  right  under  the  Constitution 
to  refuse  in  good  faith  to  disclose  confidential  and  other  unpublished  information 
obtained  during  the  course  of  newsgathering,  except,  perhaps,  if  the  government 
can  show  that  the  refusal  would  result  in  a  "clear  and  present  danger"  to  the 
national  security  of  the  United  States,  and  was  intended  to  harm  the  United 
States  or  to  help  a  foreign  power. 

Much  as  we  oppose  it,  Caldwell  does  give  the  courts  some  powers  to  hold  a  news 
reporter  in  civil  contempt  for  refusing  to  obey  a  valid  disclosure  order.*^' 

If  courts  are  interested  in  oMaining  the  information — rather  than  interested  in 
punishing  the  reporter — we  find  it  an  unconscionable  assault  on  First  Amendment 
values  to  jail  a  reporter  for  up  to  six  months  because  he  asserted  his  good-faith 
privilege  and  lost. 

Refusing  to  testify  or  produce  information  (section  1333). 

The  bill  would  make  it  a  crime  for  a  news  reporter  or  news  organization  to 
unsuccessfully  challenge  an  order  issued  by  a  court,  a  legislative  proceeding  or 
an  agency,  seeking  testimony  or  unpublished  notes  or  film  identifying  confidential 
news  sources.  Maximum  penalty  :  3  years  and/or  $500,000  fine. 

1.  The  bill  makes  it  a  crime  for  a  reporter  to  "refuse(s)  to  answer  a  quesfion" 
or  to  "produce  a  record"  about  confidential  news  sources  when  asked  to  do  so  by 
the  "presiding  oflScer"  of  a  congressional  proceeding,  a  federal  judge,  or  an  execu- 
tive branch  "hearing  examiner,  administrative  law  judge,  .  .  .  notary."  or  any 
other  oflicer  conducting  an  official  proceeding  before  a  "government  branch  or 
agency." 

Here,  again,  we  have  a  provision  which  subjects  a  news  person  to  imprisonment 
for  the  unsuccessful  good-faith  assertion  of  a  First  Amendment  privilege  to 
protect  confidential  news  sources. 

2.  Unlike  the  erinunal  contempt  provision,  the  reporter  does  not  go  to  jail 
under  Section  1333  if  the  disclosure  order  is  illegal,  since  this  section  states  that 
a  reporter  may  plead  tliat  he  should  be  "legally  privileged"  to  maintain  his  silence 
under  the  First  Amendment. 

Yet,  if  the  reporter  asserts  his  First  Amendment  privilege,  he  may  be  indicted, 
tried  and  convicted  for  refusing  to  testify  or  produce  informal  ion.  If  an  appeals 
court  then  ruled  that  his  claim  of  privilege  could  not  prevail,  the  reporter  could 
volunteer  to  provide  the  information  that  had  been  sought. 

But  the  reporter's  decision  to  test  his  claim  of  privilege  in  the  courts,  and  wait 
until  the  issue  is  resolved  by  the  courts  of  appeal,  would  do  nothing  to  mitigate 
liis  jail  term.  Under  this  section,  if  the  reporter  de<'ides  to  testify  on  the  day  after 
.in  appeals  court  finds  his  claim  of  "legal  privilege"  invalid,  he  could  provide  the 
information  and  still  serve  a  three-year  sentence,  based  on  his  conviction  for 
his  earlier  refusal  to  testify. 


<"  Soi^  Thiitcd  f^tates  v.  Steelhamtner,  .'>.'?{)  F.  2d  37."?  (4th  Cir.  1976). 
*i  Compers  v.  Buck's  Store  njid  Rnttrje  Co.,  221  U.S  418  (1911) 
*-  Branzhurg  v.  Hayes,  408  U.S.  GGo  (1072). 


9157 

3.  We  suggest  that  the  civil  contempt  power  described  in  Caldwell — allowing 
the  courts  to  imprison  the  reporter  until  they  obtain  the  information  they  seek— 
is  more  than  sufficient  as  a  means  of  obtaining  this  confidential  information  from 
news  persons.  A  criminal  statute  is  unnecessary. 

Hindering  laio  enforcement  ( section  1331 ) . 

This  bill  would  make  it  a  crime  for  a  news  reporter  or  news  organization  to 
refuse  to  give  information,  notes  or  news  film  out-takes  to  law  enforcement  offi- 
cials, grand  juries  or  courts,  if  the  information  involved  confidential  sources  who 
were  known  to  have  committed  a  crime  or  to  be  criminal  suspects.  The  bill 
specifically  prohibits  the  news  reporter  or  organization  from  raising  any  first 
amendment  privilege.  Maximum  penalty  :  6  years  and/or  $500,000  fine. 

1.  The  bill  achieves  this  result  by  making  it  a  crime  if  a  news  reporter  or  news 
organization  "delays,  or  prevents,  the  discovery,  apprehension,  prosecution,  con- 
viction, or  punishment  of"  a  confidential  or  named  news  source,  if  the  reporter 
or  news  organization  knows  that  the  news  source  "has  committed  a  crime,  or  is 
charged  with  or  being  sought  for  a  crime." 

Among  the  acts  which  the  bill  specifies  is  "concealing  ...  a  record"  of  the  inter- 
view which  would  help  "the  discovery  ...  (or)  prosecution"  of  the  news  source. 

The  bill  further  provides  that  "it  is  not  a  defense  to  a  prosecution  under  this 
section  that  the  "record"  of  the  interview  "would  have  been  legally  privileged" 
under  the  First  Amendment. 

This  means  that  a  reporter  or  news  organization  executive  will  go  to  jail  if 
he  "conceals"  a  reporter's  notebook  or  news  film  involving  a  confidential  source 
who  has  admitted  a  crime  or  a  named  news  source  wanted  or  being  tried  for  a 
crime. 

This  provision  would  also  apply  to  television  "out-takes"  or  other  news  film  of 
violent  political  demonstrations,  for  example,  if  law  enforcement  authorities 
thought  they  could  apprehend  the  persons  by  identifying  them  through  the  film. 

2.  This  section  authorizes  almost  unlimited  "fishing  expeditions"  by  law  en- 
forcement officers  and  courts  into  the  files  of  news  reporters  and  broadcast  and 
print  news  organizations.  There  is  virtually  no  major  crime  which  occurs  any 
place  in  the  nation  which  is  not  intensively  covered  by  local  press  organizations. 
Frequently  it  will  be  the  press,  through  confidential  news  sources,  who  uncover 
the  stories. 

To  give  you  some  recent  examples  : 

The  Providence  newspapers,  based  on  confidential  news  sources,  reported  that 
city  officials  were  tampering  with  odometers  on  city  vehicles  in  order  to  defraud 
the  city  in  relation  to  auto  mileage  repayments. 

A  Washington  television  station  recently  reported  that  illegal  drugs  were 
being  sold  in  the  District  Building. 

CBS  Reports  recently  disclosed  after  an  extensive  investigation  that  anti- 
Castro  Cubans  from  Florida  were  planting  bombs  both  here  and  abroad. 

A  newspaper  in  North  Carolina  reported  that  police  were  receiving  illegal 
kickbacks  from  towing  operators. 

Reports  of  these  crimes — most  notably  white-collar  crime  and  official  corrup- 
tion—generally come  from  confidential  news  sources  who  admit  to  the  crimes 
or  who  know  others  who  commit  crimes.  The  bill  would  give  government  authori- 
ties carte  blanche  to  raid  the  files  of  the  news  media,  shortcut  their  own  inves- 
tigative efforts,  and  annex  news  persons  as  government  investigators. 

.3.  To  compound  this  unrestricted  search  and  seizure  power  against  news  orga- 
nization files,  notes  and  film,  the  news  organization  is  helpless  to  protest  because 
Congress  has  told  the  federal  courts  to  ignore  a  First  Amendment  claim  that  the 
information  is  "legally  privileged,"  and  the  reporter  or  news  editor  can  be  sent 
to  jail. 

4.  Furthermore,  the  bill  prohibits  the  act  of  "concealing  .  .  .  (the)  identity" 
of  a  person  who  is  known  to  have  committed  a  crime  or  to  be  imder  suspicion. 
This  section  could  be  used  against  the  news  person  who  declines  to  tell  an 
F.B.I,  agent  the  name  of  a  suspect  whom  the  reporter  had  interviewed.  Again, 
the  First  Amendment  privilege  is  specifically  rejected  by  this  section. 

Supporters  of  the  legislation  say  that  the  1975  committee  report  makes  clear 
that  this  provision  does  not  apply  to  news  reporters  who,  in  the  course  of  their 
work,  interview  persons  on  a  confidential  basis.  They  say  that  the  committee 
reoprt  limits  the  offense  to  "affirmative  acts"  of  the  defendant,  and  that  a  re- 
porter who  answers  the  government  agent's  questions  with  silence  cannot  be 
prosecuted. 


9158 

Our  reading  of  the  act  is  somewhat  different.  Confidential  news  sources  who 
disclose  their  own  crimes  or  the  crimes  of  others  ask  for  confidentiality  precisely 
because  they  fear  "apprehension,  prosecution,  conviction  or  punishment." 

The  news'  reporter  generally  agrees  to  keep  th  news  source's  identity  a  secret 
as  the  price  the  public  must  pay  in  order  to  be  informed  of  crimes.  It  does  not 
tak  any  stretch  of  the  imagination  to  assume  that  a  prosecutor  would  say  that 
the  news  reporter  and  the  source  entered  into  a  conspiracy  to  conceal  the  source's 
identity  in  order  to  "'delay  (s)  or  prevent  (s)  the  discovery,  apprehension,  prosecu- 
tion, conviction  or  punishment"  of  the  news  source. 

As  we  have  said,  it  is  our  position  that  a  news  organization  or  news  reporter 
can  never  be  convicted  of  a  crime  for  refusing,  under  a  good-faith  assertion  of 
the  First  Amendment,  to  provide  the  government  with  the  identity  of  confidential 
news  sources  or  other  unpublished  information. 

5.  While  the  other  efforts  in  this  bill  to  obtain  confidential  information  from 
news  persons  (i.e.,  contempt,  and  refusing  to  testify  or  produce  information) 
at  least  require  an  appearance  before  a  court,  this  provision  imposes  an  afl5rma- 
tive  duty  on  the  press  to  cooperate  with  law  enforcement  officials. 

It  is  our  belief  that  news  organizations  and  news  reporters  collect  news  to 
disseminate  it  to  the  public.  They  do  not  act  as  agents  for  the  courts,  for  the 
police,  for  the  defendant,  or  for  prosecutors  and  plaintiffs. 

These  sections,  authorizing  criminal  penalties  for  good-faith  attempts  to  pro- 
tect confidential  news  sources  will,  we  think,  encourage  judges  to  issue  even 
more  subpoenas  to  the  press. 

The  situation  here  is  as  threatening  as  with  gag  orders.  Subpoenas,  which 
were  once  limited  to  disputes  between  the  Justice  Departn^ent  and  the  news 
media,  are  being  obtained  by  state  prosecutors  and  even  civil  litigants  all  over 
the  country. 

We  know  of  a  total  of  about  400  subpoenas  to  news  reporters  and  news  orga- 
nizations for  confidential  and  other  luapublished  information  between  1070  and 
1977.  Of  these,  about  300  came  from  the  Justice  Department,  and  about  100  from 
the  .states. 

We  know  of  21  reporters  who  have  been  held  in  contempt  of  court,  and  14  of 
these  reporters  were  jailed.  We  don't  know  how  many  reporters  disclosed  infor- 
mation rather  than  become  entangled  in  long  and  expensive  litigation.'*'' 

The  New  S.  1,  by  giving  the  government  some  new  powers  and  expanding  some 
old  powers,  can  only  serve  to  encourage  more  federal  and  state  judges  to  seek 
to  force  reporters  to  disclose  their  sources. 

IV.  GOVERNMENT  OFFICIAL  SECRETS  ACT  CRIMES  AGAINST  THE  PRESS  FOR  RECEIVING  OR 

PUBLISHING  GOVERNMENT  INFORMATION 

Piiblifshinff  "Stolen"  Government  reports  {section  1733). 

The  bill  would  make  it  a  crime  for  a  news  reporter  or  news  organization  to 
publish  a  "Stolen"  Government  report  if  the  reporter  or  news  organization  de- 
rived any  profit  from  the  publication  of  the  report.  Maximum  iH'naltv :  3  vears 
in  jail  and/or  .$r)00,000  fine. 

1.  This  new  provision  is  tlie  classic  Official  Secrets  Act.  The  bill  acliievos  this 
result  by  making  it  a  crime  for  any  person,  including  a  news  organization  or 
news  reporter,  to  "receive"  or  "possess"  any  "stolen"  government  "property"  if 
the  news  reporter  or  organization  dissemintates  it  to  the  public  for  profit. 

2.  Supporters  of  the  l)ill  maintain  that,  cognizant  of  the  press'  i)robloms  with 
this  section  in  the  1973  and  1975  versions  of  S.  1.  the  drafters  purport  to  protect 
the  press  in  the  new  S.  1  ]>y  stating  that  intangible  property  owned  by  the  Gov- 
ernment is  not  covered. 

We  find  it  hard  to  believe  that  42  volumes  of  the  Pentagon  Papers  were 
"intangible,"  and  we  would  remind  the  Subcommittee  th;it  the  Justice  Depart- 
ment argued  privately  that  it  was  possible  to  prosecute  The  Neio  York  Times 
and  its  reporter  Neil  Sheehan  for  having  possessed  the  Pentagon  Papers ;  and 
that,  in  fact,  Dr.  lOlI.sberg  was  prosecuted  for,  among  other  things,  criminal 
conversion  of  government  property  under  the  current  law. 

Leslie  Whitten,  an  associate  of  Jack  Anderson,  was  arrested  for  possessing 
stolon  government  projjerty — rri)orts  and  memos  taken  from  the  P.ureau  of  In- 
dian Affairs.  Arthur  Burns,  chairman  of  the  Federal  Reserve  Board,  claimed  that 

"  See  Pross  Censorship  N<>wsletter,  Complied  and  distributed  by  the  Reporters  Com- 
mittee for  Freedom  of  the  Press,  Nos.  1-10. 


9159 

an  employee  of  the  Federal  Reserve  had  illegally  given  to  Consumer  Reports  a 
Federal  Reserve  report  on  consumer  interest  rates  ut  various  banks. 

Was  the  Huston  Plan  "intangible"?  Was  the  AVhite  House  Enemies  List  "in- 
tangible"? AVas  the  CIA  report  obtained  by  Mr.  Schorr  "intangible"?  We  saw 
Mr.  Schorr  standing  on  television,  holding  something  in  his  hand,  and  it  was  not 
intangible. 

3.  Next,  the  congressional  supporters  of  the  bill  suggest  that  the  press  is 
exempted  because  it  would  be  a  defense  that  the  reporter  "obtained  or  used  the 
property  solely  for  the  purpose  of  disseminating  it  to  the  public,  and  did  not 
derive  anything  of  value  from  obtaining,  using  or  disseminating  it." 

Clearly,  this  bill  authorizes  prosecution  against  the  free-lance  reporter,  writer 
or  author  who  publishes  an  article  based  on  a  stolen  government  report  in  a 
magazine  and  receives  in  return  "anything  of  value,"  such  as  money ;  or,  pub- 
lishes the  report  in  a  book  and  receives  royalties. 

In  addition,  regularly  employed  news  reporters  are  paid  salaries  and,  despite 
their  modesty,  we  consider  them  "something  of  value,"  given  in  return  for  such 
journalistic  enterprise  as  obtaining  reports  which  the  government  does  not  want 
published. 

News  organizations,  which  publish  these  reports,  obtain  money  for  their  news- 
papers, magazines  and  air  time.  If  the  report  is  on  an  extremely  Important  topic, 
they  may  put  it  on  their  syndicates  for  regular  subscribers,  who  give  something 
"of  value,"  or  they  may  syndicate  it  specially. 

In  short,  one  would  have  to  search  far  and  wide  to  find  a  situation  where 
a  news  reporter,  news  organization  or  free-lance  writer  disseminated  a  govern- 
ment report  to  the  public  free  of  charge. 

Therefore,  this  defense  is  quite  useless. 

4.  Furthermore,  by  specifically  singling  out  the  press  as  one  of  the  institutions 
to  be  covered  by  this  nev*^  provision.  Congress,  by  implication,  is  authorizing  its 
use  against  the  press. 

5.  It  is  our  belief  that  government  information  belongs  to  the  people.  If  the 
Congress  wishes  to  be  true  to  the  whole  concept  of  the  First  Amendment — that 
the  people  have  a  right  to  know  what  their  government  is  doing — then  it  can 
never  be  a  crime  in  a  free  society  for  a  news  persons  or  news  organization  to 
possess  and  publish  a  government  report  without  the  permission  of  the  govern- 
ment, unless  the  government  can  show  that  the  information  contained  in  the 
report  is  a  "clear  and  present  danger"  to  the  national  security  of  the  United 
States,  and  was  obtained  or  published  with  intent  to  harm  the  United  States 
or  to  aid  a  foreign  power. 

If  the  document  is  an  original,  the  government  should  make  a  demand  for  its 
return,  and  the  news  organization  should  be  given  a  reasonable  period  of  time 
to  copy  it  and  return  it. 

If  the  document  is  a  copy — which  is  also  considered  to  be  "property"  of  the 
government — one  supposes  that  the  government  could  make  a  claim  for  the  value 
of  the  photocopy  paper. 

In  short,  this  provision,  allegedly  showing  such  solicitude  for  the  press,  is 
almost  as  bad  as  its  predecessor  in  S.  1.  It  is  an  Official  Secrets  Act  because  it 
punishes  the  possession  of  government  information  regardless  of  content. 

Illegal  possession  of  any  original  Government  memorandum  {section  1344). 

This  bill  would  make  it  a  crime  for  a  news  reporter  or  news  organization 
to  possess  any  original  Government  memorandum  or  document.  Maximum  pen- 
alty :  3  years  in  prison  and/or  $500,000  fine. 

1.  This  is  an  Official  Secrets  Act  provision  because  it  penalizes  the  possession 
of  government  reports,  regardless  of  content. 

The  bill  achieves  this  result  by  making  it  a  crime  if  anyone,  including  a  news 
reporter  or  news  organization,  "impairs  the  .  .  .  availability  of  a  government 
record  .  .  .  document,  or  other  object  .  .  .  kept  by  a  government  for  information 
or  record  purposes  .  .  ." 

This  means,  quite  clearly,  that  reporters  could  be  convicted  if  their  mere 
possession  of  a  government  record — as  it  must — "impairs  the  .  .  .  availability" 
of  the  government  report  to  the  government. 

2.  Once  again,  our  position  is  that  it  can  never  be  a  crime  for  a  news  orga- 
nization or  a  news  person  to  receive  or  possess  government  information  with 
the  intention  of  disseminating  it  to  the  public,  except  for  national  security  rea- 
sons mentioned  above. 

92-465 — 77 38 


9160 

3.  Supporters  of  the  bill  appear  to  concede  that  tins  criminal  provision  covers 
the  possession  of  an  original  memorandum  or  report,  even  if  the  government  has 
copies  of  it. 

The  supporters  argue  that  its  application  to  the  press,  in  this  day  of  the  Xerox 
machine,  is  merely  hypothetical  because  copies  of  original  documents  are  not 
covered. 

"We  would  suggest,  at  least,  that  the  plain  wording  of  the  statute  does  cover 
photocopies  of  original  documents  possessed  by  the  press.  The  bill  defines  a 
government  "record"'  as  being  "a  record,  document,  or  other  object  .  .  .  kept  by 
a  government  for  information  or  record  purposes  ...  or  required  to  be  kept 
pursuant  to  a  statute,  or  a  regulation,  rule,  or  order  . . ." 

It  would  not  be  unreasonable  to  assume  that  a  prosecutor  could  claim  tliat  a 
photocopy  of  an  original  was  being  "kept  .  .  .  for  information  or  record  purposes" 
and  that  its  mere  possession  by  the  press  impaired  its  "availability"  to 
government. 

If,  in  fact,  the  Congress  does  not  intend  this  section  to  cover  either  originals  or 
copies  of  government  records  obtained  by  the  press  with  the  intention  of  dis- 
seminating them  to  the  public,  it  might  be  helpful  to  simply  say  so. 

Obstructing  the  Government's  purported  information  control  function   (section 
1301). 
The  bill  would  make  it  a  crime  for  a  news  reporter  or  news  organization  to 
publish  any   Government  information  without  permission.   Maximum  penalty : 
6  years  in  jail  and/or  $500,000  fine. 

1.  To  explain  the  application  of  this  Official  Secrets  Act  provision  against 
the  press,  it  is  necessary  to  go  back  to  the  Department  of  Justice's  prosecution  of 
Dr.  Ellsberg.  Dr.  Ellsberg  was  indicted  on  a  charge  that  he  did  "defraud  the 
United  States  .  .  .  by  .  .  .  obstructing  (the)  lawful  government  function  of  con- 
trolling the  dissemination  of  .  .  .  government . .  .  reports."  " 

This  was  a  new  and  novel  use  of  the  fraud  section  to  punish  a  citizen  for 
the  dissemination,  without  permission,  ot  government  information,  regardless 
of  its  content. 

The  new  bill  perpetuates  this  new  "information  crime''  theory  of  the  Ellsberg 
prosecution. 

This  means  that,  under  the  theory  of  the  Ellsberg  indictment,  as  interpreted  by 
the  Justice  Department,  a  newspaper  or  news  organization  which  published  any 
government  information  without  permission — from  the  Enemies  List  to  a  con- 
fidential H.E.W.  or  H.U.D.  report — could  be  prosecuted  for  defrauding  the 
government  of  its  "lawful  government  function  of  controlling  the  dissemination 
of  government  reports." 

2.  There  is  no  specific  reference  to  the  Ellsberg  prosecution  problem  in  the 
legislative  history — despite  the  fact  that  our  committee  has  brought  it  to  tlie 
attention  of  this  Subcommittee  twice  before.  But  congressional  supporters  of 
this  bill  argue  privately  that  everyone  realizes  that  the  Justice  Department  was 
wrong  when  it  indicted  Dr.  Ellsberg. 

They  say  to  us  "Don't  worry,  it  won't  happen  again,"  and  we  say  to  you — 
we  agree;  let's  make  sure  it  doesn't  happen  again  and  make  it  an  absolute  de- 
fense that  this  provision  shall  not  apply  to  news  persons  or  news  organizations 
who  obtain  government  reports  without  permission  with  the  intention  of  dis- 
seminating them  to  the  public. 

That  is  what  the  First  Amendment  requires. 

V.  OTHER  GOVERNMENT  CENSORSHIP  PROVISIONS 

Government  employees  cannot  leak  "Private"  information  to  the  press  {.section 
1525). 

It  would  be  a  crime  for  a  past  or  present  Government  employee  to  tell  the 
press  about  Government  or  non-Government  crime  or  other  news  based  on 
"Private"  information  submitted  to  the  Government  in  confidence.  Maximum 
penalty  :  One  year  in  jail  and/or  $100,000  fine. 

1.  The  hill  achieves  this  result  by  making  it  a  crime  for  a  "present  ...  or 
former  public  servant"  to  "disclose (s)  information  ...  to  which  ...  he  has  or 
had  access  ...  in  his  capacity  as  a  public  servant"  if  tlie  information  is  not 
supposed  to  be  released  under  any  "statute  .  .  .  regulation,  rule,  or  order  .  .  ." 


<'  Thiiled  states  v.  EUsbcrQ,  Grand  Jury  Indictment  No.  —  CD  (U.S.D.C,  CD.  Ca.  March 
1971),  p.  1. 


9161 

As  you  know,  every  agency  in  the  government  has  a  network  of  regulations, 
rules  and  orders  requiring  its  information  to  be  kept  confidential — from  the 
much-abused  classificatiou  systems  in  the  Departments  of  Defense  and  State  to 
the  hundreds  of  regulations  covering  domestic  agencies,  such  as  the  Depart- 
ments of  Health,  Education  and  Welfare,  the  Equal  Employment  Opportunity 
Commission,  the  Federal  Trade  Commission  and  the  Department  of  Labor. 

Under  this  bill,  any  time  a  government  employee  leaks  to  the  press  any  in- 
formation "provided  to  the  government  by"  car  makers,  drug  companies,  hous- 
ing contractors,  defense  contractors,  hospitals,  etc.,  in  confidence,  he  can  be 
criminally  prosecuted  and  jailed  for  one  year. 

2.  Supporters  of  the  legislation  argue  that  much  of  the  information  covered 
in  this  new  provision  is  already  covered  under  current  law.  We  would  agree 
that  current  law,  in  an  effort  to  protect  trade  secrets,  patents  and  competitive 
financial  information,  does  impose  a  crazy  patchwork  of  criminally  enforceable 
silence  on  government  employees. 

In  view  of  Watergate,  the  C.I.A.  and  F.B.I,  scandals,  the  disclosures  about 
the  Immigration  and  Naturalization  Service,  payoffs  to  foreign  and  domestic 
officials  by  contractors,  the  Medicaid  scandals  and  the  welfare  scandals,  etc., 
the  Congress  ought  to  encourage  federal  employees  to  step  forward  with  informa- 
tion indicating  crime,  mismanagement,  and  deception  in  the  operation  of 
government. 

3.  It  has  been  suggested  that  a  government  employee  cannot  be  convicted  under 
this  section  if  the  information  he  releases  to  the  press  could  be  released 
under  the  Freedom  of  Information  Act.  But  the  Freedom  of  Information  Act — 
and  the  interpretations  of  its  exemptions — are  confusing  at  best. 

Furthermore,  much  of  the  information  involved  in  recent  investigative  report- 
ing efforts — such  as  the  C.I.A.  mail  openings,  the  F.B.I,  break-ins,  the  poor 
ratings  of  some  major  banks,  etc. — would  clearly  have  been  kept  secret  under 
the  Freedom  of  Information  Act  and  punished  under  this  section. 

4.  It  is  our  position  that,  except  for  some  narrow  categories  of  information 
such  as  trade  secrets,  patents  and  atomic  energy  information,  a  government 
employee,  as  a  citizen,  should  be  free  to  give  to  the  press  government  informa- 
tion even  if  it  is  in  violation  of  departmental  regulations. 

The  government  has  been  very  successful  in  keeping  secret  99  percent  of  the 
information  it  wants  to  keep  secret.  It  has  at  its  disposal  the  ability  to  fire  or 
re-assign  employees  who  break  its  regulations,  as  witnessed  by  the  case  of  the 
Defense  Department  employee  who  informed  the  press  about  cost  overruns 
and  found  himself  virtually  jobless. 

Government  employees  have  reputations  to  protect  and  mortagages  to  pay 
and  we  think  firing  remains  an  effective  gag.  Except  for  information  which  is 
a  "clear  and  present  danger  to  the  national  security",  we  think  that  any  govern- 
ment employee  who,  as  a  good  citizen,  wishes  to  disclose  government  crime 
and  mismanagement,  should  not  be  sent  to  jail  for  his  efforts. 

5.  It  would  be  our  position  that,  at  a  minimum,  a  government  employee 
prosecuted  under  this  act  could  not  be  convicted  if  the  government  information 
he  disclosed  raised  a  reasonable  presumption  that  there  was  a  violation  of  the 
Constitution,  laws,  regulations,  or  stated  public  policy  of  the  government  and 
if  the  information  was  disclosed  in  order  to  be  disseminated  to  the  public. 

The  only  exception  should  be  for  information  which  is  a  clear  and  present 
danger  to  the  national  security  of  the  United  States,  and  was  released  with  the 
intent  to  help  a  foreign  power  or  harm  the  United  States. 

We  oppose  making  it  a  crime  to  release  the  official  secrets  which  any  govern- 
ment agency  says  it  ought  to  have  by  its  own  self-serving  rules  and  regulations. 

Sealing  conviction  records  (section  3807) 

The  Federal  courts  are  authorized  to  permanently  seal  public  arrest,  indict- 
ment records  of  first-offenders  under  21  years  of  age  convicted  of  possessing 
heroin  and  other  drugs,  if  they  are  placed  on  probation. 

This  section  of  the  bill  is  part  of  the  overall  reform  for  probation  involving 
drug  offenders.  It  already  exists  in  current  federal  law.  We  oppose  this  section 
because  we  believe  that  the  criminal  justice  system  must  remain  open  and 
publicly   accountable. 

The  only  way  for  it  to  remain  publicly  accountable  is  for  its  key  documents — 
arrest,  indictment  and  conviction  records — to  be  permanently  available  for  any 
member  of  the  public  or  the  press  to  inspect. 


9162 

We  recognize  that  frequently  innocent  persons  find  their  reputations  damaged 
because  they  are  improperly  arrested,  indicted  and  tried,  and  are  then  acquitted. 
Occasionally,  innocent  persons  are  convicted.  Frequently,  innocent  third-party 
witnesses  suffer  embarrassment  and  humiliation  as  the  result  of  being  involved 
in  criminal  proceedings. 

Unfortunate  as  this  may  be  in  individual  cases,  this  is  the  price  we  must  pay 
under  our  criminal  justice  system.  But  this  provision  does  not  attempt  to  pro- 
tect the  innocent.  It  seals  the  records  of  a  person  "found  guilty"  of  drug  possession. 

We  see  this  provision  as  a  dangerous  first  step  to  sealing  information  about 
the  courts  and  the  administration  of  justice,  and  we  oppose  it. 

STATEMENT  OF  JACK  C.  LANDAU,  ON  BEHALF  OF  BEPORTERS  COM- 
MITTEE ON  FREEDOM  OF  THE  PRESS,  ACCOMPANIED  BY  CHARLES 
SENNET,  GEORGE  WASHINGTON  UNIVERSITY  LAW  CENTER 

Mr.  Landau.  Senator.  I  would  like  permission  for  Mr.  Charles  Sen- 
net, from  George  Washington  University  Law  Center,  who  helped  us 
with  this  testimony,  to  sit  at  the  witness  table  with  me,  please. 

Senator  Thurmond.  That  will  be  fine.  We  are  glad  to  have  you  with 
us,  Mr.  Sennet. 

Mr.  Landau.  My  name  is  Jack  C.  Landau.  I  am  a  director  of  the  Re- 
porters Committee  and  a  reporter  for  the  Newhouse  papers  and  an 
attorney. 

As  I  said  previously,  this  is  Mr.  Sennet,  who  is  a  law  student  who 
works  with  us. 

On  behalf  of  the  Reporters  Committee,  we  would  like  to  thank  you 
for  this  opportunity  to  testify.  Senator. 

As  you  may  remember,  the  Reporters  Committee  testified  in  1973 
on  the  1973  version  of  S.  1  and  S.  1400  and  again  we  testified  in  1975 
on  the  1975  version  of  S.  1. 

In  our  previous  appearances  here  before  this  subcommittee,  we 
strongly  disapproved  of  a  number  of  provisions  which  we  thought,  if 
passed,  would  have  undermined  the  first  amendment  riirhts  of  the 
press  to  report  and  the  public  to  receive  news  about  the  Government. 

Subsequent  to  that  testimony  in  1975,  Senators  McClellan  and 
Kennedy  and  their  staffs  worked  very  hard  on  the  bill.  The  result  is 
that  a  few  of  our  suggestions — and  the  suggestions  of  other  press 
groups — have  been  heeded,  mainly  with  the  elimination  of  the  espi- 
onage sections.  We,  of  course,  very  much  appreciate  that  effort. 

But,  unfortunately,  from  our  point  of  view,  the  bill  today  remains 
basically  what  it  was  in  1973.  The  new  S.  1  is  an  official  secrets  act 
which  would  give  the  Government  wide-ranging  new  criminal  ])owers 
to  sevcrly  restrict  first  amendment  rights  of  the  press  and  the  public. 

Here  we  are  5  years  after  Watergate  and  6  years  after  the  Pentagon 
papers  with  a  bill  making  a  frontal  assault  on  the  first  amendment  by 
giving  the  Justice  Department  and  the  courts  the  authoi-ity  to  jail 
news  reporters  and  news  organization  executives  for  improperly  criti- 
cizing Government  officials;  for  publishing  news  in  violation  of  ille- 
gally issued  irag  orders;  for  protecting  confidential  news  sources  in 
violation  of  illegally  issued  disclosure  orders;  for  publishing  stolen 


9163 

Government  reports  without  Government  permission,  regardless  of 
content;  and  for  possession  of  original  Government  memos  without 
permission,  regardless  of  content. 

The  bill  also  makes  it  a  crime  for  Government  employees  to  leak  to 
the  press  any  "private"  information  which  the  Government  has  from 
oil,  auto,  drug,  and  defense  cointracting  firms  and  other  nongovern- 
mental organizations. 

We  would  have  hoped  that,  especially  in  view  of  the  controversy  in 
the  previous  bill,  the  Congress  would  have  proposed  a  bill  which  at 
least  maintains  the  status  quo  or  would  have  offered  more  protection 
for  press  coverage  of  governmental  affairs.  But  the  new  S.  1  tightens 
the  legal  noose  around  the  flow  of  Government  news  to  the  public  by 
authorizing  jail  sentences  and  fines  for  collecting  and  publishing  in- 
formation about  the  Government. 

It  retains  the  same  basic  philosophy  and  most  of  the  same  provisions 
of  1973  and  1975  versions  except  for  the  espionage  classification 
violations. 

This  official  secrets  act  philosophy — conceived  mainly  by  the  Nixon 
administration — was  then  and,  unfortunately,  still  is  in  this  bill  that 
Government  should  have  the  power  to  protect  itself  from  public  criti- 
cism and  embarrassment  by  having  criminal  conviction  powers  to 
intimidate  and  harass  the  press  into  silence ;  and,  if  the  press  refuses 
to  be  intimidated,  then  to  send  reports  and  editors  to  jail. 

The  liberal  and  conservative  supporters  of  this  bill  argue  that  the 
Justice  Department  will  never  use  the  provisions  of  this  bill  against  the 
press. 

We  are,  they  say.  in  a  "new  era" — "an  era  of  good  feelings."  There- 
fore, despite  the  plain  language  of  the  bill — authorizing  criminal  pros- 
ecution and  jail  against  the  press  for  reporting  news  to  the  public — 
we  are  asked  to  believe  that  the  recent  unpleasantnesses  between  press 
and  the  Government  will  never  happen  again. 

We  most  respectfully  dissent  for  a  number  of  reasons,  and  I  will 
just  touch  on  a  few,  Senator  Thurmond. 

First  we  were  told  we  were  wrong  in  1973.  We  were  told  we  were 
being  too  protective  of  the  first  amendment.  Again,  in  1975  we  were 
told  we  were  wrong  and  being  too  protective.  I  think  time  and  circum- 
stance justify  the  testimony  in  1973  and  the  testimony  in  1975. 1  would 
hope  that  time  eventually,  perhaps  with  more  study  by  the  subcom- 
mittee, might  justify  the  criticisms  we  make  today. 

Second,  while  it  is  true  that  we  are  in  a  better  atmosphere  today  than 
we  were  3  years  ago,  we  have  to  remember  that  the  moods  of  politicians 
change  quickly  and  dramatically. 

I  think  that  our  job  in  terms  of  analyzing  the  reasonable  use  of  this 
bill  should  the  circumstances  change  again  is  to  insure  that  the  public 
will  be  protected  under  its  right  to  know  the  news,  regardless  of 
whether  the  administration  is  friendly  or  hostile. 

Third,  and  I  think  this  would  be  most  important  for  the  subcorn- 
mittee,  this  is  a  model  law.  It  is  goino;  to  be  a  model  to  the  States.  It  is 
the  first  major  reorganization  in  170  years.  The  States  are  going  to 
look  at  the  provisions  in  this  bill,  especially  the  provisions  which  are 
designed  at  least  to  be  used  against  the  press  because  of  the  legislative 


9164 

history  or  which  can  clearlj'  be  used  against  the  press.  I  fear  we  will 
face  many  State  official  secrets  acts,  relying  on  the  wisdom  of  Congress 
in  having  passed  this  bill. 

Last,  for  the  major  news  organizations,  when  faced  with  some  of 
the  threats  that  this  bill  authorizes.  I  think  if  history  is  any  guide  they 
have  the  adequate  legal  resources  to  fight  these  types  of  criminal  pros- 
ecutions. However,  I  do  not  think  we  should  design  a  law  which  per- 
haps is  going  to  eventually  result  in  an  acquittal  only  because  a  news 
organization  has  thousands  or  millions  of  dollars  to  spend  on  legal 
defense.  I  think  we  should  have  a  law  that  is  clear  enough  and  in  areas 
of  doubt  errs  on  the  side  of  the  first  amendment  rather  than  erring 
against  it. 

We  have  done  an  analysis  of  about  10  sections  of  this  bill,  which  I 
will  skip  over  very  briefly.  Because  of  the  time  limitation,  I  will  not 
have  much  time  to  go  into  any  analysis. 

I  would  be  happy  to  answer  any  questions  in  the  middle  of  this  if 
you  would  like  to  stop  me. 

We  do  have  some  footnotes  in  the  back  for  you. 

One  provision  which  I  think  warrants  an  enormous  amount  of 
worry  is  section  1858  which  says  that  it  shall  be  a  crime  to  improperly 
take  any  action  which  results  in  professional  or  financial  damage  to 
a  Government  employee  or  official  as  the  result  of  his  status  or  action. 

This  is  a  new  provision.  It  is  a  criminal  sedition  law.  It  penalizes 
criminally  "improper"  criticism  which  results  in  damage  or  "improper 
retaliation."  as  it  is  worded  in  the  heading  of  the  bill. 

I  think  that  it  is  very  clear  that  a  newspaper  and  news  orp^anization 
which  some  jury  thinks  "improperly"  took  an  action  with  damage  to 
Government  employees  professionally  could  be  prosecuted  under  this 
bill. 

For  your  study  we  nuoted  the  provision  of  the  Alien  and  Sedition 
Act  of  1798,  which  made  it  a  crime  to  publish  any  false,  scandalous,  and 
malicious  writings  ncrainst  the  Government,  At  least  they  had  to  prove 
it  was  false,  scandalous,  and  malicious.  Here  they  only  have  to  prove 
it  is  improper. 

We  Avould  op7-)Ose  tho  section.  T  think  the  lejrislative  his<"ory  gives  a 
marvelous  example.  The  example  they  use  is  this  provision  would 
reach,  for  example,  the  case  of  an  employee  of  the  Civil  Kifrhts  Division 
of  the  Henartment  of  Justice  who  is  attacked  by  nonphysical  acts 
beranse  of  his  employment  in  such  agency. 

This  provision  is  intended  to  reach  nonphysical  acts.  This  provision 
is  intended  to  reach  words.  Tt  is  intended  to  eorid  people  to  jail  for  criti- 
cizinn-the  Government.  Tt  is  a  sedition  provision. 

Senator  TiTFT^Aroxn.  Would  vou  enumerate  the  nroyisions  in  the 
bill  which  vou  feel  affect  fi-eedom  of  the  press  which  impose  more 
onerous  burdens  than  now  exist  under  current  law  ? 

Mr.  TjAxdatt.  This  doe<5  not  exist  in  current  laAv. 

Sonator  Titfratond.  T  thought  you  mi.iht  point  them  out  without 
elaboratinor. 

Mr.  TvANnATT.  Thic  does  not  exi'^t  in  current  law.  There  is  a  provision 
m  current  law  which  was  desi^^ned  to  protect  Government  employees 
from  physical  intimidation  and  that  type  of  thin"- — obstruftino-  fhem 
from  porforminof  their  Government  services.  There  is  nothininf  that  T 
knnw  of  in  current  law  which  extends  it. 


9165 

I  believe  the  committee  report  says  that  this  is  an  expansion  of  it. 

As  I  understand  it,  this  was  designed  to  protect  Government  officials 
from  lobbyists,  say,  circulating  petitions  against  them  and  trying  to 
get  them  fired. 

I  think  it  would  be  our  position  that  anybody,  including  the  lobby- 
ist, has  the  right  to  stand  on  a  street  corner  and  scream  his  head  off 
about  anything  a  Government  officer  does.  That  is  the  essence  of  a  free 
society — letting  him  talk. 

Senator  Thurmond.  Where  is  the  section  that  prevents  that  ? 

Mr.  Landau.  Which  section  prevents  that? 

Senator  Thurmond.  Which  section  in  the  bill  would  prevent  a  lobby- 
ist from  doing  that  ? 

Mr.  Landau.  I  believe  that  this  section  was  intended  to  stop  an  act 
or  make  illegal  an  act  damaging  a  Government  official  in  his  employ- 
ment. If  you  intend  to  get  him  fired  or  intend  to  cause  him  damage,  it 
would  seem  to  me  that  that  would  be  perfectly  proper. 

Senator  Thurmond.  On  page  81  of  the  bill 

Mr.  I;Andau.  Yes ;  80  and  81. 

Senator  Thurmond  [continuing].  It  says,  "Improper  subjection  of 
other  persons  to  economic  loss  or  injury  to  his  business  or  profession." 
Is  that  the  section  to  which  you  refer  ? 

Mr.  Landau.  That  is  right.  Yes. 

Senator  Thurmond.  What  do  you  suggest  we  change— "improper" 
to  "willfully"? 

Mr.  Landau.  I  think  it  can  be  willful,  Senator.  I  think  a  newspaper 
or  a  private  business  organization  can  stand  out  on  the  street  corner 
and  say,  "We  want  John  Jones  fired  because  he  banned  our  product. 
We  want  him  out  of  Government."  I  think  that  you  have  the  right  to 
willfully  criticize  a  Government  official  for  his  acts.  That  is  the  price 
you  pay. 

There  is  one  other  thing  that  is  rather  curioiis  in  the  committee 
report.  It  says  it  also  applies  to  improper  criticism  of  an  illegal  act 
by  a  Government  official.  It  says  it  does  not  make  any  difference 
whether  the  act  is  legal  or  illegal. 

Senator  Thurmond.  What  page  is  that  on  ? 

Mr.  Landau.  That  is  page  448  of  the  1975  committee  print  report. 

Senator  Thurmond.  What  page  of  the  bill  is  that  ? 

Mr.  Landau.  It  is  an  interpretation  of  the  bill  in  the  1975  committee 
report,  it  says : 

The  committee  considers  that  retaliation  is  unjustified  against  a  public  servant 
irrespective  of  the  legality  of  the  public  servant's  acts  that  may  have  prompted  the 
retaliation. 

Senator  Thurmond.  On  that  point  would  you  draw  a  line  between 
violent  and  nonviolent  acts  ? 

Mr.  Landau.  Yes.  sir.  In  the  committee  report  it  says  it  extends  to 
nonphysical  acts.  That  is  precisely  what  it  says.  I  do  not  know  any 
nonphysical  act  except  talking  or  publishing. 

Mr.  Summttt.  I  just  wanted  you  to  distinguish  between  subpara- 
graphs (a)  (1)  and  (2). 

Mr.  Landau.  Subparagraph  (a)  (1)  is  the  recodification  of  the 
existing  statute,  which  basically  was  passed  in  the  1930's  to  protect  the 
revenue  officers. 


9166 

Senator  Thurmoxd.  There  would  be  no  objection  to  (a)  (1),  would 
there? 

Mr.  Landau.  No,  sir. 

Senator  Thurmond.  What  you  object  to,  as  I  understand  it,  is 
(a)  (2) ;  is  that  correct  ? 

Mr.  Landau.  Yes,  sir. 

Senator  Thurmond.  "Improperly  subjects  another  person  to  eco- 
nomic loss  or  injury  to  his  business  or  profession  because  of  an  official 
action  taken  or  a  le^al  duty  performed  by  a  public  servant  because  of 
his  status  as  a  public  servant." 

Do  you  suggest  rewriting  that  or  just  to  eliminate  it  entirely  ? 

Mr.  Landau.  I  certainly  think  if  the  committee  has  some  particular 
type  of  behavior  in  mind  that  it  wants  to  try  to  protect  against  that 
will  not  restrict  the  free  dissemination  of  ideas  by  people  who  want 
to  criticize  the  Government,  perhaps  the  staff  could  work  something 
like  that  out. 

I  understand  what  the  intent  is.  It  is  just  like  so  many  other  provi- 
sions of  this  bill.  What  they  have  done  is  thrown  out  the  baby  with  the 
bath  water. 

Senator  Thurmond.  Do  you  have  any  suggestions  for  rewriting? 

Mr.  Landau.  We  might  be  happy  to  submit  something  to  you  after 
the  hearing. 

Senator  Thurmond.  All  right.  You  may  proceed. 

Mr.  Landau.  The  second  section  that  we  feel  rather  strongly  about 
is  botli  sections  1331  and  1335,  which  basically  would  su])jcct  a  news 
organization  to  a  criminal  conviction  for  violating  a  prior  restraint 
order  that  was  void. 

What  has  been  done  in  this  provision,  as  your  staff  knows,  is  to 
enshrine  the  Dichmson  case  into  Federal  law.'  We  feel  very  strongly 
that  we  have  two  State  sujDreme  courts  which  say  that  if  a  news  or- 
ganization violates  an  illegal  order  that  no  penalty  can  attach.  We 
have  no  Supreme  Court  decision  saying  that  in  the  area  of  just  pure 
speech.  We  Ivave  one  fifth  circuit  decision  which  says  that  and  it 
was  cert,  denied.  You  can  read  that.  I  suppose,  one  way  or  the  other. 

Certainly  there  is  notliing  in  current  law  that  we  can  see  that  clearly 
authorizes  the  criminal  convicition  of  a  news  person  or  a  news  organi- 
zation for  violnting  :in  illegal  prior  restraining  order.  That  is  precisely 
what  this  would  do.  It  was  intended  to  do  that. 

There  was  a  statement  in  the  most  recent  legislative  history  that  this 
was  desio-ned  as  a  new  protection  for  the  press.  Since  I  think  that  the 
law  at  this  point  is  either  against  this  point  of  view  completely  or 
certainly  not  clear,  what  the  bill  does  is  in  effect  have  Congress  tel'ling 
the  Federal  court,  one,  issue  gag  orders  and,  two,  throw  them  in  jail 
even  if  the  gag  orders  are  illegal. 

Mr.  SuMMiTT.  Isn't  this  a  codification  of  a  U.S.  Supremo  Court 
decision? 

Mr.  Landau.  There  are  some  who  think  that  TIague  v.  the  CIO  and 
Walker  v.  Binnivgham  have  applied  this  doctrine,  or  have  extended 
this  doctrine  out  to  the  area  of  prior  restraint  of  pure  speech. 

In  the  WfTlker  case,  as  you  Iciiow.  what  the  State  w;is  seeking  to 
enjoin  was  not  Eev.  Martin  Luther  King  and  Sl.nttlewoi-tli  talking 
about  civil  rights,  but  they  were  seeking  to  enjoin  their  parade.  They 


9167 

were  seeking  to  enjoin  physical  acts.  They  were  not  seeking  to  enjoin 
words. 

I  think  we  have  a  very  strong  constitutional  presumption  against 
prior  restraints  to  begin  with.  The  Neio  York  Times  and  Washington 
Post,  I  think  joined  by  almost  everyone  else  in  the  press,  have  argued 
that  you  cannot  issue  a  prior  restraint  in  any  area  unless  there  is  a 
showing  that  it  is  a  clear  and  present  danger  to  the  national  security 
of  the  United  States. 

This  bill  is  considerably  worse.  This  bill  would  authorize  prior  re- 
straints in  any  area  and  jail  even  if  you  are  right. 

Mr.  SuMMiTT.  Would  you  be  satisfied  if  we  took  it  out? 

Mr.  Landau.  Yes;  if  you  mean  the  entire  contempt  section,  as  it 
applies  to  publication,  I  think  we  would  be. 

The  next  section  poses  a  double  problem. 

Senator  Thurmond.  Does  your  statement  contain  all  that  you  are 
talking  about  now  or  is  what  you  are  saying  in  addition  to  what  is 
contained  in  your  statement? 

Mr.  Landau.  What  we  tried  to  do.  Senator,  was  to  take  up  in  the 
statement  the  explanations  that  were  given  by  the  staff  members  so 
that  we  could  give  people  reading  the  statement  the  answer. 

Senator  Thurmond.  Does  the  statement  raise  all  of  the  points  you 
have  raised  here  ? 

Mr.  Landau.  In  that  section,  yes,  sir. 

Senator  Thurmond.  There  is  no  use  in  duplicating  what  is  already 
in  your  statement.  Your  statement  is  going  to  be  studied  very  care- 
fully. If  you  have  any  additional  points,  we  want  to  hear  those. 

Mr.  Landau.  The  one  suggestion  that  was  made  at  a  meeting  at- 
tended by  some  of  the  staff  members  which  was  more  or  less  convened 
on  an  ad  hoc  basis  by  some  members  of  the  press  was  this.  Perhaps 
rather  than  rewrite  it,  rather  than  rewriting  these  sections  section-by- 
section,  it  might  be  possible  to  simply  draft  some  type  of  general 
defense  for  the  dissemination  of  news  and  ideas.  I  do  not  know  if  that 
is  possible.  It  was  the  suggestion  that  many  people  at  the  meeting 
thought  might  solve  the  problem  of  having  to  go  through  every  section 
and  say,  "Well,  let's  take  this  word  out  and  remove  that  word.  Let's 
put  this  defense  in." 

I  do  not  know  if  it  is  possible,  but  if  somebody  could  come  up  with 
a  fonnula  that  would  protect  both  the  collection  of  news  and  the 
publication  of  news  as  the  first  amendment  intended  it,  I  think  it 
might  be  an  easier  drafting  job  than  opposing  it  on  a  section-by-section 
basis. 

In  addition  to  the  criminal  sedition  problems,  this  thing  basicailly 
falls  down  into  three  categories.  One  involves  prior  restraint.  Two 
involves  what  we  think  is  new  authority  to  throw  reporters  in  jail  for 
refusing  to  expose  confidential  sources  even  if  the  order  itself  was 
illegal.  The  third  involves  the  flow  of  information  from  the 
government. 

Senator  Thurmond.  I  believe  your  time  is  about  up.  Do  you  think 
you  have  covered  everything  that  you  had  in  mind? 

Mr.  Landau.  I  think  we  have  in  the  statement,  sir.  Thank  you. 

Senator  Thurmond.  Thank  you  very  much.  We  appreciate  your 
presence.  Thank  you  for  the  contribution  you  made  to  this  hearing. 

We  will  stand  in  recess  until  11 :30  a.m. 

[A  letter  from  Arthur  B.  Hanson  follows :] 


9168 

Law  Offices  of  Hanson,  O'Brien,  Birney  and  Butler, 

Washington,  D.C.,  June  21,  1977. 
Hon.  John  L.  McCj.ellan, 
U.S.  Senate,  Committee  on  the  Judiciary, 
Washington,  D.C. 

Dear  Senator:  I  was  unable  to  attend  the  hearings  on  S.  1437  when  Jack 
Landau,  appearing  for  the  Reporters  Committee,  delivered  what  to  me  was  an 
intemperate,  unjustified  attack  on  the  pending  legislation. 

I  want  you  to  know  that  this  attack  is  in  no  way  supported  by  the  Ameri- 
can Newspaper  Publishers  Association  nor  by  me  as  its  General  Counsel.  It 
is  my  belief,  from  a  professional  point  of  view,  that  the  efforts  made  by  you, 
Senator  Kennedy  and  your  staffs  and  the  staff  of  the  Justice  Department  to 
clarify  and  remove  legitimate  press  objections  to  the  proposed  revisions  of  the 
Federal  Criminal  Code  has  been  a  good  faith,  outstanding  effort. 

We  all  know  the  difficulties  faced  in  this  matter.  It  is  the  American  News- 
paper Publishers  Association's  continuing  intention,  subject  to  yours  and  Sena- 
tor Kennedy's  desires,  to  continue  to  try  to  bring  light  to  bear  on  matters  of 
legitimate  concern  affecting  the  press. 

There  is  no  way  that  we  can  prevent  things  such  as  today's  happening.  It 
is  our  view,  however,  that  reasoning  people  will  be  led  to  further  support  your's 
find  Senator  Kennedy's  efforts  rather  than  be  driven  away  by  this  move  which 
is  little  short  of  incredulous. 

With  my  sincere  best  wishes. 
Faithfully  yours, 

Arthur  B.  Hanson, 
General  Counsel,  American  Newspaper  Publishers  Association. 

[Recess  taken.] 

Senator  Kennedy  [acting  chairman].  The  subcommittee  will  come 
to  order. 

Our  next  witness  is  Rev,  Virginia  INIackey.  chairperson.  National 
Interreligious  Task  Force  on  Criminal  Justice. 

STATEMENT  OF  EEV.  VIRGINIA  MACKEY,  CHAIRPERSON,  NA- 
TIONAL  INTERRELIGIOUS  TASK  FORCE  ON  CRIMINAL  JUSTICE, 
JSAO  AND  NATIONAL  COUNCIL  OF  CHURCHES 

Reverend  Mackey.  Senator  and  members  of  the  staflf.  I  am  happy 
to  be  here  to  testify  on  this  legislation. 

Hopefully,  in  this  Congress  consensus  will  be  achieved  on  a  fa.ir 
and  comprehensive  Criminal  Code  revision.  Members  of  Congress 
wisely  heeded  public  opposition  to  S.  1  and  hnve  drafted  a  vastly 
improved  bill.  But  preliminary  review  of  S.  1437  and  the  testimony 
already  offered  to  this  committee  indicates  that  the  present  draft  is 
not  yet  viable. 

The  task  of  this  committee — indeed,  of  all  of  us — is  of  overwhelm- 
ing maG:nitude.  We  commend  this  committee  for  holding  open  hear- 
ings. We  commend  you.  Senator  Kennedy,  for  encourngins:  dialog 
leading  to  continued  improvement  in  light  of  critical  questions  such 
as  those  you  outlined  in  remarks  at  the  opening  of  the  hearings  on 
Juno  7. 

Senator  Kennedy,  you  asked  if  S.  1437  should  be  tiinfhtened  in  the 
area  of  the  finst  amendment  so  that  sections  l.S.Tl  dealing  with  riot; 
1302.  obstructing  a  Government  function;  and  1328,  demonstrating 
to  influence  a  judicial  proceeding,  do  not  inhibit  free  speech  and  as- 
sembly. Our  answer  is  a  resounding  yes.  it  must  be  ticrhtened. 

Sections  3101-3108  on  wiretapping,  1843  on  obscenity.  3111-3115 
on  imminiitv,  3014  and  3713  on  evidence  and  confessions,  1331  on  con- 


9169 

tempt  are  some  of  the  additional  sections  which  are  unnecessarily 
repressive  and  undermine  constitutional  guarantees  to  rights  of  as- 
sembly, due  process,  press,  privacy,  and  speech. 

Senator  Kennedy.  You  do  not  question  that  the  troublesome  issues 
included  in  this  legislation  are  current  law,  and  that  other  sections 
are  an  improvement  of  current  law ;  is  that  correct  ? 

Reverend  Mackey.  The  questions  we  raise  are  in  regard  to  specific 
language  in  those  sections. 

Senator  Kennedy.  But  you  do  not  question  that  what  we  have  in 
these  areas  in  either  recodification  of  current  law  or  an  improvement 
of  current  law,  is  that  correct? 

Reverend  Mackey.  I  would  have  to  pass  on  that.  I  would  have  to 
discuss  each  specific  section  in  order  to  answer  that  question.  W^"  ^^^ 
still  very  much  concerned  about  some  of  the  sections  of  this  bill. 

Senator  Kennedy.  I  am,  too.  But  we  are  talking  about  what  can 
be  done  in  these  areas.  In  the  areas  that  you  have  mentioned  here, 
there  has  been  some  improvement  in  most  of  them.  Obviously  bal- 
ances must  be  struck.  They  do  not  always  represent  what  I  personally 
would  like  to  see,  but  I  think  it  is  a  question  of  what  you  are  going 
to  achieve. 

Reverend  Mackey.  That  is  true. 

Senator  Kennedy.  The  Warren  court  made  a  decision  on  use  im- 
munity. What  reasonable  position  can  you  expect  from  tlie  Judiciary 
Committee  in  that  area  with  the  national  representation  we  face 
here  ?  Do  you  really  expect  to  get  something  that  might  be  what  you 
want  or  what  I  might  want?  We  are  dealing  with  the  reality  of  the 
situation  here. 

Reverend  Mackey.  I  think  there  are  constitutional  scholars  \yho 
still  believe  that  the  language  as  it  is  now  drafted  violates  constitu- 
tional standards  and  so  there  is  still  debate.  We  would  like  to  see 
this  committee  structure  it  as  tightly  as  possible  within  constitutional 
guidelines. 

The  Interreligious  Task  Force  joins  with  those  who  have  analyzed 
those  sections  and  find  them  completely  unacceptable  in  their  present 
form.  We  also  reiterate  the  contention  that  there  is  no  reason  why 
codification  of  the  Federal  criminal  law  cannot  be  accomplished  in  a 
manner  that  strengthens,  rather  than  undermines,  democratic  insti- 
tutions in  America. 

Senator  Kennedy,  you  have  asked  whether  comprehensive  reform  is 
feasible.  Our  answer  is  that  it  is  both  necessary  and  feasible.  We 
vigorously  disagree  with  former  Governor  Edmund  Brown  who  calls 
for  the  passage  of  the  bill  in  its  present  form  as  tlie  only  possible 
consensus  which  can  be  achieved  and  w^ho  calls  for  initiation  of  the 
amendment  process  in  separate  bills  "addressing  themselves  to  nar- 
row, specific  controversial  problems."  We  believe  that  such  an  ap- 
proach would  ]ierpetuate  the  very  hodgepodge  which  the  present 
legislation  is  designed  to  charge. 

The  section  on  sentencing  is  one  of  the  most  critical  and  one  of  the 
most  promising  of  the  present  revision.  It  does  not  resolve  the  cur- 
rent widespread  debate  about  the  purpose  and  mode  of  sanctions,  but 
develops  an  interim  strategy  in  order  to  offer,  according  to  Judge 
Marvin  Frankel  in  his  testimony  of  June  8,  a  compromise  between 


9170 

"the  unacceptable  regime  of  unfettered  judicial  discretion  v,-hich  J^•e 
have  now,  and  the  opposite  extreme  of  rigid,  mandatory  sentences,, 
which  many  have  been  driven  to  propose." 

Unfettered  discretion  and  rigid  mandatory  sentences  are  the  anti- 
podes of  the  debate  but  there  are  emerging  areas  of  agreement  which 
should  inform  the  sentencing  provisions  of  S.  1437. 

First,  the  discretionary  powers  of  judges  should  be  maintained  but 
limited  as  a  means  of  controlling  disparity.  S.  1437  takes  this  course — 
in  the  interim  by  narrowing  somewhat  the  range  and  scaling  down 
slightly  the  maximum  terms  of  most  categories  of  offenses ;  and  in  the 
long  range,  by  establishing  a  Sentencing  Commission  which  will  estab- 
lish guidelines  for  determinate  sentencing. 

We  recommend  two  changes.  First,  we  recommend  that  maximum 
sentences  be  scaled  down  drastically.  The  criminal  justice  system,  as 
the  agent  of  intervention,  should  intervene  in  the  life  of  an  individual 
only  for  socially  useful  purposes  and  for  very  short  periods  of  time. 

The  1973  "Report  of  the  National  Advisory  Commission  on  Stand- 
ards and  Goals,"  page  145,  Corrections  Volume,  concludes  that : 

Longr  periods  of  isolation  from  society  as  an  answer  to  increased  crime  may 
be  self-defeating  *  *  *.  The  fact  remains  that  if  society  had  to  bear  the  burden 
of  showing  tliat  increased  restrictions  on  liberty  deter  crime,  it  would  imdoubt- 
edly  fail.  In  a  free  society,  long  prison  sentences  cannot  be  justified  on  the  basis 
of  speculation  concerning  deterrence,  particularly  where  the  detrimental  effects 
of  imprisonment  for  the  individual  offender  are  known  and  demonstrable. 

The  second  change  we  would  recommend  is  that  the  mandatory 
imprisonment  provisions  for  class  A  felonies,  trafficking  in  an  opiate 
and  for  use  of  a  weapon  in  the  course  of  a  crime,  be  eliminated.  We 
oppose  all  forms  of  mandatory  sentences  as  unworkable  and  insist 
that  discretion  belongs  properly  with  the  judiciary. 

When  you  try  to  impose  mandatory  sentences,  what  happens  is 
that,  rather  than  discretion  being  lodged  with  the  judiciary,  it  is  used 
by  the  prosecutor  or  by  the  law  enforcement  porsounel. 

Our  experience  in  New  Yoik  State  with  mandatory  drug  laws  would 
bear  that  out. 

Senator  Kennedy.  We  are  talking  about  a  2-year  minimum,  not  a 
10-year  minimum  as  you  have  in  New  York,  or  oven  life  imprisonment 
in  New  York.  We  are  talking  about  a  2-year  minimum  for  trafficking 
in  hoavy  drugs  and  use  of  a  weapon  in  a  crime,  with  exceptions  written 
in.  We  have  a  list  of  exceptions,  such  as  age,  duress — all  kinds  of  ex- 
ceptions. And  there  is  only  a  2-year  minimum. 

Reverend  Mackey.  We  believe  that  the  judiciary  should  have  dis- 
cretion not  to  use  imprisonment  in  every  instance  of  imposing  a 
sentence. 

Senator  Kennedy.  Are  you  familiar  with  the  fact  that  the  Second 
Circu't  in  a  hynothetical  case  involving  the  same  fact  situation,  gave 
from  3  years  to  20  years  ? 

Reverend  M.\gkey.  Yes;  T  am  aware  of  the  pro1)lem  of  disparity. 

Senator  Kennedy.  That  was  in  one  circuit  with  the  exact  same  fact 
sitnntion. 

Wh,'it  v;e  are  talking  about  here  is  trafficking  in  narcotics  with  the 
possibility  nf  mitigating  circumstances. 

Reverend  Mackey.  We  are  unalterably  opposed  to  mandatory 
sentences. 

Senator  Kennedy,  You  mav  continue. 


9171 

Reverend  Mackey.  We  oppose  the  death  penalty  on  principle  and 
could  not  support  a  bill  which  contained  it. 

A  second  general  area  of  agreement  is  that  judicial  sentences  should 
be  subject  to  review.  S,  1437  provides  for  appellate  review  if  a  sen- 
tence exceeds  the  mininnnn  or  niaxinumi  guidelines.  We  recommend 
that  the  right  of  review  for  the  defendant  not  be  limited.  We  believe 
a  sentence  could  be  improper  even  though  it  w\as  within  the  guidelines. 
We  urge  this  committee  to  further  question  the  advisability  of  prosecu- 
torial review  because  it  would  seem  to  place  the  defendant  in  double 
jeopardy. 

A  third  general  area  of  agreement  is  that  guidlines  should  require 
a  judge  to  sentence  on  the  basis  of  the  least  drastic  alternative.  S.  1437 
enumerates  several  sentencing  options  but  it  has  no  explicit  presump- 
tion against  imprisonment. 

Section  2003(b),  which  requires  a  statement  of  reasons  for  imposing 
a  sentence,  should  be  revised  to  include  the  procedure  a  judge  must 
follow  in  determining  the  least  drastic  alternative. 

Again,  we  refer  you  to  Standard  5.2  of  the  Corrections  Volume, 
"National  Advisory  Commission  on  Criminal  Justice  Standards  and 
Goals;"  to  the  proposed  rule  of  the  Second  Circuit  Court  of  Appeals, 
Committee  on  Sentencing  Procedures,  II,  Dannaz,  1976;  and  to  the 
Yale  Study,  "Toward  a  Just  and  Effective  Sentencing  System: 
Agenda  for  Legislative  Reform,"  June  1977. 

S.  1437  takes  cognizance  of  another  area  of  agreement  that,  if  in- 
carceration is  ordered,  length  of  sentence  should  be  determined  by  the 
judiciary  rather  than  the  Parole  Commission.  We  recommend  that 
abolition  of  parole  be  made  more  explicit  on  the  basis  of  our  concur- 
rence with  Professor  O-Connell's  contention  in  his  testimony  of  June  8, 
1977,  that  the  parole  process  should  not  be  administratively  abolished 
by  the  Sentencing  Commission.,  It  is  Congress  that  should  set  the  lead 
time  at  which  the  Parole  Commission  would  be  phased  out  as  the  Sen- 
tencing Commission's  provisions  for  determinate  sentences  are 
adopted. 

If  parole  determinants  are  abolished  and  early  release  set  at  nine- 
tenths  of  sentence,  it  is  all  the  more  imperative  that  maximAmi  terms 
be  drastically  reduced. 

S.  1437  should  be  structured  to  avoid  the  pitfall  of  longer  average 
times  served  associated  with  the  determinate  sentence  schedules  pro- 
posed or  adopted  to  date.  Also,  if  parole  is  abolished,  the  post  release 
services  now  provided  should  be  available  to  releasees  without  coercive 
supervision. 

Finally,  in  regard  to  the  proposed  Federal  Sentencing  Commission, 
our  preference  for  the  composition  would  combine  the  best  features  of 
S.  1437  and  S.  204,  Senators  Hart  and  Javits.  The  appointments  should 
not  be  made  from  the  Judicial  Conference  exclusively.  We  recommend 
that  the  appointments  be  made  on  a  tripartite  basis  and  that  there  be 
nine  members,  at  least  one  of  whom  is  a  former  prisoner. 

In  addition  to  the  perspectives  of  the  Judiciary  and  the  Parole  Com- 
mission, it  is  important  to  have  those  of  the  private  sector  and  of 
affected  persons. 

Too  many  of  our  criminal  justice  standards  and  goals  are  developed 
in  isolation  from  the  testimiony  of  thoso  most  affected.  Too  many  of 
our  standards  and  goals  are  based  on  misconceptions  about  the  nature 
of  crime. 


9172 

We  commend  S.  1437  for  rcducinf^  at  the  Federal  level  some  of  the 
disparity  of  treatment  between  so-called  white  collar  crime  and  that 
of  street  crime.  But  the  fact  remains  that  poor  and  minority  persons 
are  most  often  victimized  as  well  as  being  those  most  often  sentenced 
to  prison. 

David  L.  Bazelon,  chief  judge  of  the  U.S.  Court  of  Appeals,  District 
of  Columbia  Circuit,  cautions  us  against  simplistic  solutions  to  that 
type  of  crime,  New  York  Times,  February  15, 1977. 

He  reminds  us  that  we  convict  and  demand  "tougher  sentences''  for 
the  street  oii'ender,  yet : 

Street  crime  has  no  nostrums  apart  from  profound  social  reforms,  which  are 
generally  expensive,  inefiicient.  and  unpopular  ...  It  is  always  easy  to  concede 
the  inevitability  of  social  injustice  and  find  the  serenity  to  accept  it.  The  far 
harder  task  is  to  feel  its  intolerability  and  seek  tlie  strength  to  cliange  it. 

America  needs  to  search  for  new  paradigms  for  conflict  prevention, 
intervention,  and  resolution.  Fortunately,  the  religious  community  is 
beginning  to  respond  to  Roscoe  Pound's  challenge — lecture  at  Harvard 
Law  School,  1925 — to  "give  serious  attention  and  show  the  way  to 
more  coherent  and  ethical  ways  of  dealing  with  crime." 

L.  Harold  DeWolf,  retired  dean  of  Wesley  Seminary  and  a  member 
of  our  Interreligious  Task  Force,  is  one  v.-lio  is  building  bridges  be- 
tween Judeo-Christian  ethics  and  criminal  law.  It  is  his  premise  that : 

Criminal  justice,  properly  understood,  is  the  defense  of  a  community  in  which 
people  are  able  to  pursue  their  various  legitimate  interests.  Wh<ni  the  existing 
community  is  disrupted  by  crime,  it  is  the  task  of  criminal  justice  to  restore  its 
unity  in  such  a  way  as  to  strengthen  it  against  further  disruption.  Cumberland 
Law  Review,  volume  7  :393,  1977. 

In  that  definition,  justice  is  not  repressive  but  is  the  standard  by 
wdtich  wholeness  is  attained  and  maintained  in  communities.  We  wish 
to  continue  exploration  by  the  public  and  private  sectors  of  our  Nation 
into  the  concepts  of  social  defense  and  restoration  as  the  bases  upon 
which  to  build  future  criminal  codes. 

In  the  meantime,  we  pledge  our  efforts  to  the  members  of  this  com- 
mittee so  long  as  you  are  committed  to  developing  an  eminently  fair 
and  constitutional  code. 

Thank  you. 

Senator  Kexxf.dy.  T  want  to  thank  you  very  much.  I  think  it  is 
mai'velous  that  the  Inteneligious  Task  Force  is  working  in  this  area. 
It  is  very,  very  helpful  to  us.  I  think  there  are  very  profound  moral 
implications  as  well  as  legal  implications  regarding  this  legislation. 
I  welcome  the  nttcTition  and  the  interest  which  you  have  made  here. 
I  want  to  thank  you  very  much.  We  hope  you  will  keep  in  touch  with 
us  and  give  us  your  views  as  the  legislative  process  moves  ahead.  We 
are  very  grateful  to  you. 

Our  next  witness  is  Ms.  Susan  Kokinda  of  the  U.S.  Labor  Party. 

STATEMENT  OF  SUSAN  KOKINDA,  U.S.  LABOR  PARTY 

Ms.  KoKTNDA.  Thank  you,  Mr.  Chairman. 

I  have  a  prepared  statement  wh.ich  I  would  like  to  have  submitted 
for  the  record.  I  would  like  to  elaborate  on  what  I  feel  are  the  critical 
points. 


9173 

Senator  Kennedy.  We  \Yill  have  it  included  in  the  record  in  its 
entirety. 
Ms.  KoKiNDA.  Thank  you. 
[The  material  follows :] 

Testimony  of  the  U.S.  Labor  Party  Representative 

Mr.  Chairman  and  members  of  the  Senate  Judiciary  Committee;  the  U.S.  Labor 
Party  views  S.B.  1437,  the  proposed  revision  of  the  federal  criminal  code  as  in- 
competent, dangerous  and  subversive  to  the  Republican  principles  of  law  elabo- 
rated at  the  founding  of  this  nation.  As  a  result  of  a  total  mislocation  of  the 
problem  of  crime  and  the  proper  function  of  law  in  society,  the  American  people 
have  been  presented  in  the  past  two  years  with  a  Hobbesian  choice  as  (he  legisla- 
tive outcome  of  the  eleven-year  project  to  overhaul  the  nation's  criminal  code :  a 
direct  police-state  by  1978  (the  old  S-1)  or  Kennedy's  new^  version,  which  will 
bring  the  U.S.  to  the  same  end,  but  narcoticized  (quite  literally)  by  Orwellian 
provisions  for  so-called  equality  and  individual  liberty. 

MISLOCATION    OF    THE    PROBLEM 

Laws  exist  to  inform  the  willful  impulses  of  a  society  and  its  individual  mem- 
bers to  absorb  the  outlooks  and  methods,  and  to  take  the  actions  which  correspond 
to  the  society's  general  interest.  There  is  no  way  to  reform  the  federal  criminal 
code  without  applying  a  definition,  at  least  implicitly,  of  the  society's  general  will 
and  interest,  coincident  with  defining  penalties  for  crimes  against  that  national 
interest.  As  we  demonstrateed  for  you  in  the  Law  Enforcement  Reform  Act  of 
1976,  it  is  precisely  the  lack  of  a  compelling  definition  of  the  national  interest  and 
the  political  failure  to  win  the  population  to  such  a  definition  which  is  the  chief 
cause  for  epidemics  of  crime  such  as  the  one  this  nation  is  experiencing. 

Deterrance,  with  "equality"  of  treatment — the  motivating  point  for  this  bill's 
mandatory  sentencing  provisions  and  the  recent  resurrection  of  capital  punish- 
ment— is  a  mockery  of  law  well  demonstrated  in  the  Gary  Gilmore  case  where  the 
criminal,  a  confessed  murderer,  was  eagerly  accepted  as  an  anti-hero  by  a  de- 
graded U.S.  population. 

In  fighting  the  war  against  Britain  and  in  winning  the  population  of  the 
colonies  to  tiie  Constitution,  the  Federalists  faced  similar  outbreaks  of  crime  and 
heteronomy  fed  by  the  Tories'  ideology  of  direct  democracy  and  populism,  and 
ideology  embraced  by  the  Carter  Administration  today.  They  did  not  turn,  as  the 
conservatives  on  this  committee  have,  to  a  hoard  of  law  professors,  miseducated 
social  scientists,  and  criminologists  who  ply  their  trade  on  the  "insolubility  of  the 
crime  problem."  They  did  not  turn  to  the  ignorant  legal  codifiers  who  spin  laws  on 
top  of  each  other  into  infinity  with  no  relationship  to  the  problems  they  are 
addressing.  Nor  did  they  rush  away  from  defining  policies  and  programs  which 
would  properly  subsume  the  problem  of  crime  as  this  committee  has  done  with 
eleven  years  of  misinformed  debate  in  which  the  public  good  was  defined,  crime 
by  crime,  by  the  number  of  years  of  punishment  attached  to  each. 

Instead,  the  Founding  Fathers  developed  a  rigorous  definition  of  the  national 
interest :  industrial  growth  and  development,  scientific  progress  under  a  Repub- 
lican and  federal  system.  They  launched  a  massive  political  organizing  campaign 
aimed  at  raising  the  general  intellectual  level  of  the  population  to  allow  for 
assimilation  of  the  advanced  conceptions  on  which  that  definition  of  the  national 
interest  was  based.  Such  a  program  would  allow  for  the  proper  situation  and 
definition  of  a  criminal  justice  system,  through  the  individual's  compelling  mora) 
experience  of  his  freedom,  his  capacity  to  create  new  lawful  orders  within  th« 
necessities  posed  by  society,  to  mediate  the  progress  of  society,  and  his  related 
capacity  to  distinguish  between  good  and  evil. 

IMMEDIATE    POLICY    IMPLICATIONS    OF    THE    KENNEDY    PROPOSAL 

Our  detailed  analysis  of  this  bill  is  being  submitted  for  the  record.  Here,  we 
want  to  touch  briefly  on  Chapters  13  and  14  and  on  the  organized  crime  section  to 
demonstrate  the  bill's  incorporation  of  the  methods  of  the  Institute  for  Policy 
Studies  and  Ralph  Nader  into  national  law.  These  provisions  codify  legal  pro- 
cedures which  will  institute  a  permanent  Watergate  against  any  and  all  political 
opposition  to  the  Carter  Administration's  programs.  Since  the  function  of  the 


9174 

original  Watergate  operation  conducted  by  New  York  banking  interests  was  the 
destruction  of  the  population's  belief  in  its  national  institutions,  these  chapters 
militate  against  the  government's  ability  to  appropriately  define  the  national 
interest.  They  therefore  insure  continued  government  by  the  Rockefeller  financial 
interests. 

Since  Watergate,  radical  chic  lawmakers  have  proved  their  worthiness  to  lower 
Manhattan  by  demonstrating  how  the  invention  of  new  crimes,  reform  and  regu- 
lation of  the  lives  of  public  officials,  trial  by  the  press — all  sanctimoniously  und^er 
taken  on  behalf  of  the  American  little  man  against  complexity  and  bigness — can 
effectively  destroy  political  opposition  without  resort  to  more  tedious  methods. 

The  drive  against  organized  crime  was  and  is  the  primary  vehicle  for  destroy- 
ing this  nation's  trade  unions,  particularly  the  Teamsters.  The  official  corruption 
sections  now  incorporated  into  law  produced  the  lawless  Federal  Election  Com- 
mission and  a  cowering  Congress  eager  to  separate  itself  from  such  "special 
interest  groups"  as  its  own  constituencies.  The  Offenses  Involving  Government 
Processes  Section  with  its  perjury  and  false  swearing  provisions  replicates  the 
legal  system  which  emerged  in  post-1933  Nazi  Germany.  This  Nazi  legal  system 
emphasized  crimes  of  ommission  to  regulate  both  the  population  and  industry. 
Finally,  the  corporate  accountability  and  white  collar  crime  provisions  echo  the 
Rockefeller-sponsored  Naderite  drive  to  strangle  American  industry. 

If  the  Congress  buys  the  Carter  energy  and  economic  programs  rather  than 
insisting  that  the  United  States  join  the  rest  of  the  world  in  founding  a  new  world 
economic  order,  these  sections  of  the  Kennedy  Bill  will  be  utilized  ruthlessly  by 
the  Justice  Department  in  oi>erations  to  soften  the  U.S.  population  for  austerity. 
However,  the  severe  economic  looting  policies  dictated  by  the  drive  to  pay  the  New 
York  banking  debt  will  quickly  require  a  shift  into  the  direct  police-state  methods, 
of  the  type  set  forth  in  the  original  S-1. 

THE    KENNEDY   BILL   DEFINES    A    SOCIAL-CONTACT 
CONTRARY   TO   REPUBLIC    LEGAL   PRINCIPLES 

The  amoral  theorists  who  have  devoted  themselves  to  the  Kennedy  proposal — 
precisely  because  the  bill  is  being  discussed  apolitically  and  without  regard  to  a 
coherent  definition  of  the  national  interest — have  developed  an  Animal  Farm 
model  of  the  criminal  justice  system  where  the  sovereign  powers  and  laws  of  this 
nation  are  degraded  to  the  functions  of  low-grade  management  experts. 

This  nation  has  enacted  and  upheld  laws  against  drug  use — including  mari- 
juana—and other  "victimless"  crimes  precisely  because  it  depends  on  the  creative 
labor  power  of  its  population  for  its  continued  existence.  To  the  legal  manage- 
ment expert,  pro.secution  costs  too  much  and  is  not  efficient — besides  the  preroga- 
tive of  an  individual  to  destroy  his  or  her  mind  is  a  private  interest  and  not  one 
which  should  concern  the  state.  The  state  is  simply  the  collection  i>oint  for  all 
these  private  individuals  and  contracts  its  services  to  tliem.  It  is  only  a  short  step 
from  this  notion  of  law  to  the  point  where  the  state  will  itself  provide  the  wares 
for  its  citizen  drug  users  in  order  to  turn  a  better  and  quicker  profit.  In  fact,  this 
has  l)een  proposed  by  Dr.  Peter  Bourne's  endorsement  of  heroin  and  cocaine 
legalization. 

Similarly  there  is  a  whole  new  class  of  citizens  to  be  managed  by  the  federal 
legal  system,  the  so-called  victims  of  crime.  Since  there  is  no  real  approach  to 
ridding  the  nation  of  crime  we  can  assume  their  numbers  will  double  and  triple 
and  all  of  tbem  must  be  compensated  for  this  policy  failure. 

Finally,  the  legal  managers  have  had  to  develop  efficient  and  "equal"  means  for 
dealing  with  its  regular  customers.  Now  they  grade  crimes  according  to  their 
assumed  social  value  and  mete  out  penalties  without  the  need  for  human  interven- 
tion. The  U.S.  Labor  Party  takes  note  of  the  efficiency  of  the  metliod  but  asks 
what  reason  liave  you  given  your  i)ro])erly  processed  and  iiunisliod  felon  forgoing 
through  the  arduous  educational  process  of  actually  becoming  a  human  being,  of 
defining  liimself  as  a  member  of  society? 

The  problem  with  all  social  contracts  as  our  Founding  Fathers  noted  in  reject- 
ing such  a  scheme  for  the  U.S.  Constitution  is  that  tliey  i)f)stulate  a  continuous 
war  between  tlie  interests  of  the  individual  and  liis  society,  tlio  antithesis  of 
Repuldican  national  policies.  If  the  Congress  does  not  take  cognizance  of  tlie 
federalist  approacli  to  situating  tlie  criminal  justice  system,  if  it  continues  on  its 
present  social  contract  course  at  the  whims  of  the  New  York  Banks,  the  associ- 
ated social  and  moral  breakdown  will  quickly  overcharge  Mr.  Kennedy's  system 
of   efficient   management — leading   directly   to   a    U.S.   police   state. 


9175 

]\Is.  KoKiNDA.  The  discussion  which  has  taken  place  so  far  on  the 
question  of  Criminal  Code  reform  severely  mislocates  the  real  ques- 
tion of  crime  facing  this  country.  Instead  what  has  taken  place  is  the 
classic  left-right  tug  of  war  around  two  sides  of  the  same  coin 
essentially. 

On  the  left  side  one  has  those  who  favor  more  rehabilitation  and  less 
punishment.  On  the  right  side  one  has  those  who  favor  more  punish- 
ment, perhaps,  and  less  rehabilitation. 

Both  are  missing  the  critical  issue,  which  is  the  outbreak  of  crime 
and  lieteronomy  in  a  society  whose  clearly  defined  national  aoals  and 
national  interests  are  now  lacking.  That  is  the  critical  question  of  an 
outbreak  of  crime  and  heteronomy  in  society. 

What  has  to  be  grappled  with  is  that  there  are  essentially  two  ap- 
proaches to  the  question  of  crime  and  the  relationship  of  the  individual 
to  society. 

The  first  approach,  the  approach  embodied  in  the  founding  of  this 
country  and  in  the  notion  of  a  republic,  is  that  of  the  ability  of  a  nation 
to  define  its  national  interests  and  to  define  what  is  a  crime  against  the 
national  interest  and  the  individuals  engaged  in  propagating  that  na- 
tional interest. 

Our  country  was  founded  on  a  very  clear  perception  of  national 
interest — that  of  industrial,  technological,  and  scientific  progress  in 
opposition  to  those  British  financier  forces  who  were  attempting  to 
keep  this  country  in  a  state  of  enforced  backwardness,  an  agricultural 
backwater  open  for  British  looting. 

It  is  with  that  kind  of  definition  of  national  intercvst  that  one  can 
then  locate  the  definition  of  a  crime  against  society. 

Take  the  example  of  decriminalization  of  marihuana  and  other 
drugs.  The  use  of  marihuana  and  other  drags  absolutely  must  Iw  con- 
sidered a  crime  against  society.  What  is  the  most  important  precious 
resource  of  a  society?  The  ability  of  the  human  mind  to  make  creative 
contributions  to  the  further  advancement  of  the  technological  and 
industrial  progress  of  that 

Senator  Kennedy.  You  are  against  decriminalization,  is  that 
correct  ? 

Ms.  KoKTNDxi.  Absolutely. 

Senator  Kennedy.  Do  you  thinlv  we  ought  to  do  the  same  thing  for 
liquor? 

Ms.  KoKiNDA.  No;  because  the  medical  evidence  for  liquor  is  not 
the  same  as  the  medical  evidence  for  marihuana. 

Senator  Kennedy.  Please  submit  that. 

Ms.  KoKiNDA.  We  certainly  will. 

Senator  Kennedy.  We  have  evidence  quite  to  the  contrary. 

jSIs.  Kokinda.  That  is  true.  I  am  quite  aware  of  some  of  that  evi- 
dence, but  I  think  it  is  scientifically  incompetent,  unfortunately. 

I  will  refer  as  oui"  evidence  our  testimony  on  the  nomination  of  Dr. 
Peter  Bourne  around  the  question  of  decriminalization  of  marihuana. 

Senator  Kennedy.  I  am  familiar  with  that. 

Ms.  Kokinda.  In  the  body  of  that  testimony  we  discussed  the  sci- 
entific evidence,  much  of  which  has  been  downplayed  or  underplayed 
in  the  press.  That  scientific  evidence  is  actually  quite  profound. 

I  will  be  more  than  happy  to  submit  that. 

92-465 — 77 39 


9176 

The  specific  question  with  reo^arcl  to  marihuana  is  tliis.  The  scien- 
tific e\'idence  indicates — evidence  which  is  not  very  well  known  but  is 
extremely  competent,  and  actually  well  known  in  international 
circles 

Senator  Kexxedy.  I  have  more  than  just  a  pnssinc:  interest  because, 
I  am  also  chairman  of  the  Health  Committee.  We  have  spent  a  irreat 
deal  of  time  in  all  of  these  areas  trying  to  review  the  health  implica- 
tions of  these  issues.  That  is  why  I  am  interested  in  terms  of  your 
testimony  that  you  do  not  think  that  the  continuing  use  of  alcohol  has 
as  serious  healtli  implications  as  marihuana  has. 

Ms.  KoKTNDA.  Indeed,  I  would  not  want  to  say  that  it  has  no  serious 
health  implications.  However,  the  impact  of  marihuana  on  the  creative 
capability  of  the  mind 

Senator  Kennedy.  Do  you  think  we  ought  to  stiffen  the  penalties 
for  it? 

Ms.  KoKiNDA.  T  would  not  want  to  specifically  make  a  suggestion 
one  way  or  the  other  on  that,  but  it  definitely  should  not  be  decrimi- 
nalized. 

The  individual  in  society  must  not  be  given  license  to  destroy  his 
own  mind.  That  is  the  basic  resource  of  our  country. 

Senator  Kennedy.  Do  you  think  we  ought  to  leave  that  up  to  the 
Federal  Government? 

]\Is.  KoKiNDA.  Absolutely. 

Senator  Kennedy.  We  should  not  leave  tliat  up  to  tlie  States  or 

Ms.  Koktnda.  We  do  have  a  Federal  system,  the  States  have  a  role. 

Senator  Kennedy.  We  also  have  a  State  system. 

Ms.  KoKiNDA.  It  is  necessary  for  the  States  to  play  their  proper 
role  in  that  question. 

Senator  Kennedy.  You  do  not  think  they  ought  to  he  able  to  make 
a  decision  on  that ;  is  that  correct? 

Ms.  Kokinda.  The  States  absolutely  should  make  some  decisions. 
The  States,  in  fact,  in  the  past  6  months  have  taken,  we  feel,  very 
important  steps  toward  defeating  decriminalization  in  a  nuuiber  of 
placets  where  we  have  played  a  critical  role  in  briuging  forward  the 
medical  evidence  which  in  general  has  not  been  brought  forward. 

It  is  not  simply  a  question  of  some  individual's  right  one  way  or 
the  other.  It  is  a  question  of  what  is  thi?  basic  resources  of  a  huinan 
society.  It  is  that  creative  potential  of  the  mind.  Tlie  medical  evidence 
is  incontrovertible  that  extended  use  of  nuirihuana  destroys  precisely 
those 

Senator  Kennedy.  Do  you  think  there  are  more  people  hooked  on 
alcohol  or  marihuana  in  this  society. 

Ms.  Kokinda.  Pardon? 

Senator  Kennedy.  Are  there  more  people  hooked  on  alcohol  or 
marihuana? 

jNIs.  Kokinda.  I  would  inuigine  there  are  probably  more  people 
hooked  on  alcohol.  The  question  is  which  is  more  destructive  to  the 
human  mind. 

Senator  Kennedy.  What  is  tlie  third  biggest  killer  and  the  most 
costly  disease  today  in  terms  of  our  society  ? 

]Ms.  Kokinda.  I  don't  know. 

Senator  Kennedy.  It  is  alcoholism. 


9177 

Ms.  KoKiNDA.  The  question  again  is  the  question  of  the  most  critical 
resource.  That  is  the  question  of  the  human  mind. 

Senator  Kennedy.  Alcoholism — what  does  that  do  to  the  human 
mind  ? 

Ms.  KoKiNDA.  It  does  not  have  the  effect  on  the  higher  order  func- 
tions of  the  mind  which  marihuana  does.  That  is  some  of  the  medical 
evidence  which  we  and  others  have  brought  forward  in  recent  hearings. 

I  think  it  is  perhaps  necessary  to  move  on  from  this  point  since  this 
should  not  be  a  debate  around  marihuana. 

Senator  Kennedy.  Fine. 

IVls.  KoKiNDA.  The  point  I  am  trying  to  make  here  is  the  question 
about  national  interest  and  how  one  defines  national  interest  and  the 
activities  of  the  individual  in  that  context.  That  is  the  approach  we 
feel  is  embodied  in  the  Constitution  and  form  of  republican  govern- 
ment which  this  country  has. 

There  is  a  second  notion.  This  is  a  notion  which  I  think  this  legis- 
lation, unfortunately,  embodies.  That  is  the  notion  in  which  the  indi- 
vidual stands  in  conflict  with  his  society.  It  is  a  social  contract  notion, 
an  Animal  Farm  notion.  It  is  a  notion  in  which  one  keeps  the  indi- 
vidual in  check  by  a  certain  amount  of  punishment — pain  and  plea- 
sure, if  you  will.  It  keeps  him  in  check  through  the  codification  of  a 
series  of  punishments  which  suppress  these  anarchic  or  heteronomic 
motions. 

The  question  with  this  social  contract  notion  and  what  is  embodied 
in  this  is  that  it  completely  ignores  the  notion  of  national  interest,  and 
mobilizing  a  population  around  a  clearly  defined  national  interest. 

Let  me  compare  the  way  this  legislation  goes  at  the  question  of  an 
outbreak  of  heteronomy  with  the  way  our  Founding  Fathers  dealt  with 
precisely  the  same  question. 

The  ability  to  mobilize  the  American  population,  faced  with  a  simi- 
lar crisis,  say,  in  the  ITSO's  or  the  iTOCs 

Senator  Kennedy.  Will  you  define  heteronomy  as  you  are  using  it, 
please  ? 

Ms.  KoKiNDA.  It  is  a  more  precise  form  of  the  word  "anarchy"  es- 
sentially. It  is  the  individual  acting  without  any  notion  of  a  larger 
interest  or  a  larger  whole.  I  guess  antomism  would  be  a  corollary  or 
anarchy,  but  heteronomy  is  a  more  philosophical  use  of  the  term,  I 
think. 

What  occurred  in  tlie  1780's  and  1790's  in  this  country  on  a  number 
of  occasions  was  an  outbreak  of  heteronomy — anarchy  in  a  number 
of  places.  Take,  for  example,  the  Shays  Rebellion  in  New  England. 
Essentially  there  were  outbreaks  of  looting  and  outbreaks  of  lawless- 
ness  

Senator  Kennedy.  You  do  not  think  there  was  justification  for  the 
Shays  Eebellion?  You  do  not  think  there  was  some  merit  to  that? 

Ms.  KoKiNDA.  Tliat  is  precisely  the  point.  How  do  you  deal  with 
the  Shays  Rebellion?  Do  you  round  up  the  entire  population  of  New 
England  and  put  it  either  through  rehabilitation  or  punishment  or  do 
you  go  to  the  root  cause  of  that  in  terms  of  the  economic  basis? 

Precisely  what  the  Founding  Fathers  did  was  carry  out  a  political 
education  or  a  political  organizing  drive  around  whal  the  solution  to 
the  Shays  Rebellion  was,  wliich  was  the  establishment  of  the  Constitu- 


9178 

tion,  a  Federal  system,  the  enhancement  of  the  notion  of  republic  ■svith 
this  very  clear  notion  of  what  the  economic  interests  of  the  country 
were  in  terms  of  advancing  economic  development. 

That  is  the  critical  question  we  are  facing.  AVe  are  facing  exactly 
the  same  question  now.  We  are  seeing  increasing  outbreaks  of  crimi- 
nal activity  on  the  part  of  the  American  population.  The  question  is 
why.  This  country  has  been  in  a  state  of  economic  decay  starting 
basicallv  from  1958  with  the  recession  but  most  clearlv  within  the 
past  5  or  6  years. 

That  economic  decay  is  most  eminent  on  an  international  scale  riglit 
now.  Senator  Javits  last  week  warned  of  a  full  scale  outbreak  of 
international  depression  based  on  the  collapse  of  the  international 
monetary  system. 

The  (juestion  is  does  one  simply  tiy  to  check  the  outbreak  of  crimi- 
nal activity  on  the  part  of  a  population  or  does  one  go  to  the  root 
cause  of  what  the  problem  is.  That  is  precisely'  the  question  which  has 
to  be  grappled  with  by  Congress.  Anything  else  is  rearrangnig  tlie 
deck  chairs  on  the  Titanic.  In  fact,  it  is  much  worse.  It  is  punching 
big  holes  in  the  hull  of  the  Titanic. 

Senator  Kexxedy,  How  do  you  explain  the  reduction  in  unemploy- 
ment and  the  general  stabilitv  of  the  economv  in  the  lOGO's  and  yet 
the  growth  of  crime  ? 

Ms.  KoKixDA.  Although  there  was  a  certain  nominal  reduction  in 
unemployment,  if  you  actually  look  at  the  com]>osition  of  the  woi-k 
force,  you  will  find  a  very  real  reduction  in  skilled  and  semi^lcilled 
labor  in  this  country  and  an  increasing  influx  into  paper-pushing  or 
labor-intensive  kinds  of  jobs.  This  correlated  with  the  decrease  in  the 
actual  capital  base  of  this  country  starting  with  the  1958  depi'ession. 

The  critical  question  facing,  say.  youth  in  tlie  early  19fi0*s  or  a 
member  of  the  black  population  is  did  he  see  an  expandin.'cr  work  force 
where  he  could  enter  the  ranks  of  the  skilled  and  semislvillod,  ITo  did 
not.  lie  saw  j^erhaps  paper-pnshing  jobs  or  un})rodu('tive  lalior- 
intensive  jobs.  That  is  the  root  cause  of  the  outbreak  of  disallection, 
both  in  the  black  population  and  in  the  youth  population  in  this 
country. 

"What  this  country  needs  at  this  moment  is  a  fundamental  return  to 
what  was  called  "the  American  sy-^tem"  in  the  lS20's,  aiv.l  eai'lier 
actually.  That  would  include  the  princi])les  of  Alexander  Tlamilton, 
Washington,  and  most  emphatically  Fi-anklin  and  carried  forward  by 
such  individuals  as  Henry  Clay. 

It  is  a  vei'v  simple  notion— the  establishment  of  a  national  bank 
which  allows  for  the  social  surplus  of  the  Xation  to  be  constantly 
directed  into  those  areas  which  would  yield  the  greatest  scientific  and 
industrial  development  and  insuring  that  the  industrial  interests  of 
the  Xation  are  constantly  the  interests  whicli  are  in  the  foi-e^roTit. 
Unless  we  insure  that.  Ave  have  the  situation  we  face  todav  (ami  face(l 
in  the  1830's)  where  financier  and  monetarist  interests,  who  will  make 
profit  on  a  piece  of  paper  at  the  expense  of  industrial  growth  if 
necessary,  will  dominate  our  national  economy. 

That  is  the  first  question  that  has  to  be  dealt  with.  How  are  we 
going  to  reestablish  the  American  system  of  industrial  growth  in  this 
country  in  opposition  to  what  President  Carter  is  representing,  in 


9179 

opposition  to  what  the  financial  forces  such  as  the  trihxteral  commission 
beliind  him  represent? 

Unless  we  do  that,  we  are  .e:oing  to  see  increasing  outbreaks  of 
heteronomy,  of  criminal  activity,  and  of  anarchy.  The  only  way  to 
cope  with  it  is  going  to  be  increasing  the  hue  and  cry  in  the  population 
for  more  punitive  punishment  or  an  increasing  prison  system,  in  very 
simple  terms. 

That  is  the  dilemma  facing  this  Congress.  The  legislation  cur- 
rently before  this  subcommittee  and  the  Congress  in  no  way  grapples 
witli  that  question.  In  fact,  in  a  number  of  detailed  sections  of  my 
printed  testimony  it  makes  the  situation  substantially  worse. 

Senator  Kexxedy.  Why  shouldn't  you  try  to  do  both? 

Ms.  KoKiNDA.  One  can  only  be  seen  as  a  subset  of  the  other.  We  are 
not  doing  tlie  first.  Plow  can  we  deal  with  the  criminal  question  if  we 
are  not  dealing  with  the  basic  economic  problems  facing  the  country? 
You  cannot.  Indeed,  Carter's  energy  program  makes  our  economic 
problems  worse.  Again,  you  are  rearranging  the  deck  chairs  on  the 
7'ifanlc. 

Senator  Kenxeoy.  Thank  you  very  much. 

]\[s.  KoKT,xDA.  Thank  you. 

Senator  Kex'xedy.  Our  final  witness  is  Ms.  Marian  Agiiew. 

STATEMENT   OF  MARIAN  AGNEW,   ACCOMPANIED  BY 

JULIAN   C.    HOLMES 

Ms.  Agxew.  jMr.  Chairman,  I  have  with  me  my  colleague,  Mr.  Julian 
Holmes. 

We  have  submitted  a  statement  for  the  record.  I  would  ask  that 
sections  of  both  House  and  Senate  Labor  Committee  reports  cited  at 
the  end  of  our  statement  be  included  in  the  record  as  well — those  sec- 
tions which  refer  to  grand  juries. 

Senator  Kexxedy.  Your  prepared  stateanent  will  be  included  in  the 
record  in  its  entirety. 

[The  material  follows :] 

Prepared  Statement  of  Marian  K.  Agnew,  Jtjlian  C.  Holmes,  and  Arlyn  E. 

Unzicker 

This  testimony  was  prepared  followins:  several  years  of  effort  to  bring  certain 
violations  of  local  and  Federal  laws  committed  by  local  and  Federal  officials 
to  the  attention  of  appropriate  authorities/ 

We  learned  an  important  lesson  from  this  experience  :  That  Federal  prosecutors 
do  not  hesitate  to  intimidate  and  threaten  persons  who  attempt  to  provide  infor- 
mation on  white  collar  crime  to  grand  juries  in  the  Washington  metropolitan 
area. 

Section  1.326  of  S.  1437  deals  with  the  subject  of  improper  approaches  to  juries. 
Section  1326  will  replace  Section  1504  of  Title  18  which  today  specifically  permits 
persons  to  seek  hearings  before  grand  juries.  The  right  to  request  an  audience 
before  a  a:rand  jury  is  not  guaranteed  or  even  suggested  by  the  language  of 
Section  1326:  "A  person  is  guilty  of  an  offense  if  he  communicates  in  any  way 
with  a  juror  . , .  with  intent  to  infiuence  improperly  the  official  action  of  the  juror." 


1  (a)  Hearings  before  the  Subcommittee  on  Labor  of  the  Committee  on  Labor  and  Public 
Welfare.  United  States  Senate,  93d  Congress,  2d  Session,  on  a  Review  of  the  Occupational 
Safety  and  Health  Act  of  1970.  July  22,  30  and  31,  August  1'3  and  14,  1974. 

(b)  Hearings  before  the  Select  Subcommittee  on  Labor  of  the  Committee  on  Educatiop 
and  Labor,  House  of  Representatives,  O.^d  Congress,  2d  Session,  on  An  Act  to  Assure 
Safe  and  Healthful  Working  Conditions  for  Working  Men  and  Women  .  .  .  September  17. 
1974. 


9180 

It  is  argued  that  the  word  "improperly"  somehow  establishes  the  propriety  of 
a  "proper"  approach  to  a  grand  jury.  But  unless  the  right  to  request  an  audience 
is  guaranteed,  such  a  request  can  be  considered  a  criminal  offense  by  prosecutors 
who  over  the  years  have  assumed  responsibility  for  directing,  controlling,  and 
restricting  the  daily  })usines,s  of  grand  juries.  When  white  collar  crime  is  at  is.sue, 
one  best  remember  that  prosecutors  sometime  serve  at  the  pleasure  of  the 
corruptors. 

Our  experience  with  prosecutors  around  Washington  suggests  that  a  rewriting 
of  Title  IS  Section  1504  should  : 

1.  Reiterate  the  traditional  right  of  citizens  to  bring  knowledge  of  wrongdoing 
to  a  grand  jury. 

2.  I'rovide  criminal  penalties  for  anyone  who  interferes  with  iiersons  who,  at 
the  request  of  a  grand  jury,  are  assisting  that  jury. 

The  present  law  provides  only  one  of  these  vital  protections.  Section  1326  of 
S.  1437  provides  neither. 

It  is  our  belief  that  persons  concerned  about  wrongdoing  in  government  have 
little  or  no  hope  for  relief  unless  a  grand  jury  of  peers  can  be  apprised  of  such 
wrongdoing.  It  is  our  experience  that  prosecutors  often  protect  themselves  and 
their  political  colleagues  from  investigation,  by  preventing  grand  juries  from 
receiving  information  about  high  level  crime.  Under  S.  1437,  this  oppressive  prac- 
tice would  be  encouraged  by  weakening  the  current  law. 

Thus  we  believe  S.  1437  must  be  strengthened  by  including  the  provisions  noted 
above. 

Ms.  AcrXEw.  We  would  like  to  thank  you  for  the  oj^portiinity  to  ap- 
pear today. 

This  testimony  was  prepared  followino;  several  years  of  our  efforts 
to  brino;  certain  violations  of  local  and  Federal  laws  committed  by  local 
and  Federal  officials  to  the  attention  of  appropriate  authorities. 

Mr.  Holmes,  Mr.  Unzicker  and  I  took  to  o-rand  juries  facts  which 
we  felt  shoidd  be  of  major  concern  to  the  Justice  Department  and  U.S. 
attorneys.  We  learned  a  very  important  lesson  from  this  experience. 
Federal  prosecutors  will  not  hesitate  to  intimidate  and  threaten  persons 
who  attempt  to  provide  information  on  white  collar  crime  to  grand 
juries  in  the  Washinfrton  area. 

I  have  been  threatened  by  a  U.S.  attorney  for  bringing  to  the  grand 
jury  information  requested  by  that  grand  jury. 

This  testimony  addresses  a  prol)lem  of  which  you  have  seen  pri- 
marily the  other  sidc' — the  abuse  of  prosecutorial  power. 

We  not  only  experienced  that  but  an  even  greater  problem :  acts  of 
omission  on  the  part  of  the  prosecutors  when  we  brouglit  substantive 
issues  whicli  we  felt  should  be  discussed  before  the  grand  jury  to  them. 

Section  l.'>:26  of  S.  l-loT  is  a  recoditication  of  section  1504  of  18  U.S.C. 
Section  1504  of  title  18  specifies  that  "Xothing  in  this  section  shall 
be  const riied  to  prohibit  the  communication  of  a  request  to  appear 
before  the  grand  jurv."  Tliis  particular  section  is  sup]>oi-ted  by 
Uoiited  jState.'^  v.  Smy'fh,  104  P".  Supp.  i283  (N.D.  Cal.  S.D.  li)52), 
which  has  been  followed  consi.stently  in  tlie  courts  and  is  cited  in  the 
U.S.  Code  Annotated  in  conjunction  with  section  1504. 

Compare  tliis  wordiug  to  tluit  in  section  1*^20  of  the  new  S.  1  which 
uses  the  word  ""impi-operly"  to  describe  the  notion  that  the  prosecutor 
will  have  to  evaluate  whether  issues  and  facts  conununicated  to  the 
grand  jury  Avill  l)e  legal.  There  are  several  places  in  S.  1437  where  this 
word  *'iinpro[)er''  is  used.  It  allows  the  prosecutor  a  vague  standard  to 
accept  or  reject  infoimation.  Our  position  is  that  a  vague  standard 
cannot  be  used  to  make  the  decision  as  to  the  legality  or  illegality  of  a 
comnumication.  We  feel  that  this  word  "improper"  is  not  specific 
enough. 


9181 

■  The  Sencate  Committee  Keport  (1976)  also  says  on  page  363  that  in 
addition  to  requests  to  grand  juries  for  appearances  "only  such  other 
'clearly  proper'  comminiications  as  those  involving  the  court,  attor- 
neys and  others  who  counsel  jurors  as  to  their  functions  and  duties" 
would  not  violate  section  1326.  Therefore  the  vague  word  "improper" 
has  been  further  diffused  into  a  "not  clearly  proper"  standard.  We 
are  most  uncertain  as  to  the  intent  of  the  authors  of  this  ambiguous 
language.  It  is  likely  that  our  communication  with  the  Federal  grand 
jury  would  have  violated  this  standard  if  the  prosecutor  had  chosen 
to  rnteri>ret  it  according  to  the  text  of  the  committee  report. 

As  no  culpability  is  set  forth  in  this  section,  the  applicable  culpabil- 
ity level  for  "improper"  conduct  is  "knowing,"  an  awareness  that  the 
offender  was  connnunicating.  Furthermore,  even  though  the  purpose 
of  the  communication  contains  the  element  of  intent,  that  "particular 
motive  or  reason  behind  the  defendant's  intent  to  influence  improperly 
need  not  be  shown."  Senate  Committee  Keport,  at  363  (1976).  Here  the 
word  "improper"  circumvents  logical  reasoning  to  provide  no  require- 
ment for  a  reasonable  evaluation  as  to  whether  the  information  com- 
municated was  given  in  the  time-honored  grand  jury  tradition  of 
public  remedy  or  was,  in  fact,  a  clearly  defined  illegal  act.  The  dis- 
tinction is  obvious.  Therefore,  the  prosecutor  is  not  required  to  con- 
sider whether  the  communication  is  a  good  faith  effort  by  citizens  to 
give  helpful  information  or  an  attempt  to  wrongfully  influence.  Com- 
munication, per  se,  without  the  sanction  of  the  prosecutor  or  court  in 
all  cases  will  violate  section  1326  of  the  new^  S.  1 — a  Class  A  misde- 
meanor which  could  sentence  a  law-abiding  citizen  to  up  to  1  year  in 
prison. 

We  must  also  object  strenuously  to  the  exclusion  of  the  precedent 
set  by  United  States  v.  Smythj  Id.  from  the  Senate  committee  report. 
Cited  in  the  U.S.C.A.  §  1504,  in  pertinent  part  the  Court  held  that : 

The  purpose  of  18  U.S.C.A.  §  1504  was  to  prevent  anyone  from  attempting  to 
bring  pressure  upon  or  intimidate  a  grand  juror  by  a  written  communication 
with  that  intent.  But  that  section  does  not  prohibit  a  grand  juror  from  receiving 
a  communication,  written  or  oral.  The  grand  jury  could  indict  anyone  for  a 
violation  of  that  section  if  the  rerpiisite  elements  were  present.  But  not  if  they 
solicited  a  communication  or  indicated  a  willingness  to  receive  one;  then  the 
requisite  intent  would  not  be  present  and  there  would  be  no  crime.  Id.  at  209 
[emphasis  added]. 

This  omission  is  a  clear  indication  that  the  committee  wanted  to 
eliminate  the  standard  of  intent  and  to  reverse  a  sound  public  policy 
which  has  served  the  public  well.  Evidently  the  committee  chose  to 
substitute  for  that  policy  a  vague  and  ambiguous  standard  which  could 
be  interpreted  to  thwart  the  efforts  of  well-intentioned  citizens  to 
bring  matters  involving  white-collar  crime  to  the  attention  of  the 
juries  and  to  have  them  prosecuted  and  imprisoned  for  trying  to  do 
so.  We  claim  that  this  section  of  §  1326  must  be  changed  and  the  appli- 
cable sections  of  §  1504  including  the  pertinent  annotations  relating  to 
Smyth  must  be  retained  in  the  U.S.  Code, 

Senator  Kexnedt.  Under  what  now  exists  there  is  the  language 
"nothing  in  this  section  shall  be  construed  to  prohibit  *  *  *" 

JVIs.  Agnew.  That  is  correct. 

Senator  Kenxedt.  If  we  put  that  in,  in  terms  of  the  bill,  are  you 
satisfied  with  that? 


9182 

Ms.  AoxEW.  Sir,  that  handles  one  of  the  problems  that  nnist  be 
addressed. 

Senator  Kexxedt.  I  will  make  every  eft'oit  to  put  that  in.  I  think  it 
should  be. 

Ms.  Agxew.  Thank  you,  Senator.  That  is  excellent. 

Our  other  request  is  to  provide  criminal  penalties  for  anyone  who 
interferes  with  persons  who  at  the  request  of  a  grand  jury  are  assisting 
that  grand  jury. 

These  two  provisions  will  substantial! 3^  strengthen  section  1826 
which  as  now  written  would  effectively  prohibit  private  citizens  from 
bringing  to  the  grand  jury  the  kinds  of  issues  which  have  traditionally 
been  the  purview  of  the  citizen's  jury. 

Senator  Kexxedy.  I  agree  with  what  your  thrust  is,  but  the  other 
side  of  the  argument  is  the  improper  influencing  of  grand  juries. 
That  is  the  balance. 

There  are  people,  particularly  in  the  area  of  organized  crime,  who 
will  contact  all  of  the  members  of  the  grand  jury  in  order  to  influence 
them  adversely. 

These  are  the  balances  obviously.  We  are  trying  to  deal  with  it. 

I  would  be  interested  in  how  j^ou  would  provide  protection  against 
that  kind  of  thing. 

INIs.  Agxew.  I  think  you  have  to  deal  with  that  on  the  grounds  of 
intent,  particularly  with  people  who  have  been  targeted  by  grand 
juries.  However,  people  have  that  right  to  be  heard. 

I  think  that  you  can  very  easily  lean  too  far  on  one  side.  Tlireats  by 
prosecutors  have  been  made  to  both  ]\rr.  Holmes  and  to  myself.  We  are 
not  speaking  of  something  in  the  abstract ;  this  was  personal. 

There  is  another  provision  of  the  new  S.  1  wliich  must  be  revised. 
Tills  is  section  1858  which  attain  uses  the  word  "improper.'' 

Page  447  of  the  committee  repoit  interprets  this  particular  sec- 
tion by  defining  "improper"  criticism  of  an  illep-al  act  by  a  Govern- 
ment official  as  a  Federal  crime  if  it  does  the  official  some  economic 
harm. 

One  of  the  things  that  we  did  was  request  the  resiirnation  of  certain 
Labor  Department  officials  as  a  result  of  not  investigatinnf  a  very  seri- 
ous crime.  We  could  have  been  indicted  under  section  18r)8  at  that  time 
had  S.  1487  been  law  in  its  present  state.  Tf  harm  hnd  consisted  of  eco- 
nomic loss  or  injury  to  an  official,  the  offense  would  have  been  grnded 
as  a  class  A  misdemeanor — up  to  1  vear  in  prison — committee  report, 
p.  448. 

Senator  Tvexxedt.  "\^^y  do  you  think  so? 

]\Is.  Agxew.  Because  we  came  befoi-e  the  irrand  jury.  We  requested 
the  resijrnation  of  a  Labor  Department  official.  We  would  haA^e  caused 
him  economic  loss  and  injury  by  depriving  him  of  his  job.  We  criti- 
cized him. 

"WHiether  that  criticism  was  "improper"  would  have  been  the  prose- 
cutor's own  determination. 

Senator  Kexxedy.  T  do  not  see  how  that  would  haA'e  been  considered 
improper.  Tliat  is  going  to  l)e  a  factual  nuestion  to  1-ie  doeided.  is  it  not? 

]\rs.  Agxew.  Senator,  the  current  prevailing  political  atmosphere  in 
this  country  is  for  reform  of  our  Federal  statutes.  We  hope  never 
again  to  have  the  corrupt  and  regressive  situation  th.at  Ave  have  had 
under  the  past  administration.  Howevei-,  unless  the  institutions  of  our 


9183 

Federal  justice  system  are  reformed  so  that  it  will  be  impossible  for 
that  kind  of  regressive  situation  to  occur,  I  fear  that  it  is  possible. 
It  may  not  be  probable  but  it  is  possible. 

I  would  hope  that  any  recodification  of  the  United  States  Code 
would  preclude  to  the  ultimate  extent  any  recurrence  of  those  kinds  of 
events.  We  do  not  want  a  United  States  Code  that  is  worse  than  that 
which  got  us  into  the  problems  that  we  have  had  heretofore.  We  have 
got  to  have  a  U.S.  Criminal  Code  that  is  far  more  protective  of  the 
right  of  private  citizens  to  go  before  grand  juries — that  traditional 
right  which  dates  back  to  the  origins  of  our  criminal  justice  system— 
to'enable  citizens  to  have  some  effective  remedy  for  injury  from  white 
collar  crime.  That  is  due  process. 

We  want  a  Justice  Department  that  functions  in  the  interest  of  jus- 
tice, not  injustice. 

I  would  like  to  give  the  rest  of  my  time  to  Mr.  Holmes. 

STATEMENT  OF  JULIAN  C.  HOLMES 

]\Ir.  Holmes.  I  think  ]Ms.  Agnew  has  presented  our  position.  I  would 
however,  like  to  comment,  Senator  Kennedy,  on  the  question  of 
balance. 

Senator  Kennedy.  You  see,  the  language  in  the  statute  says  a  person 
is  guilty  of  an  offense  if  he  communicates  in  a  way  with  a  juror  or  a 
member  of  the  juror's  immediate  family  with  the  intent  to  influence 
"improperly"  the  official  action  of  the  juror. 

It  is  incredible  to  me,  although  you  might  find  a  U.S.  attorney 
who  would  say  that  just  bringing  information  to  a  grand  juror's  at- 
tention falls  within  that  particular  definition.  You  may  find  a  US. 
attorney  who  interprets  it  that  way.  They  can  interpret  any  provision 
illegally,  I  suppose. 

I  agree  with  your  point  and  I  think  it  is  well  taken.  I  will  be  glad 
to  have  our  people  draft  language  regarding  how  you  can  deal  with 
that,  but  we  will  not  be  able  to  deal  with  a  situation  where  a  U.S. 
attorney  runs  amuck.  I  think  your  point  is  well  taken  and  legitimate. 

JNIr.  Holmes.  Yes,  Senator,  we  think  what  j'ou  have  suggested  would 
be  a  perfectly  suitable  way  to  work  out  a  l)ig  part  of  this  problem. 

In  answer  to  your  particular  question  about  balance,  our  answer  is 
yes,  we  were  threatened  with  criminal  prosecution  by  a  U.S.  attorney 
who  interpreted  the  law  exactly  this  way  which  you  have  found  to  be 
surprising.  This  is  what  prompted  us  to  think  about  this  matter 
further. 

Perhaps  our  situation  has  been  unique  in  that  citizens  are  not  ap- 
pearing before  grand  juries  bringing  information  about  wrongdoing 
in  government  everywhere.  However,  both  in  the  local  communities 
here  in  Washington  and  on  Federal  issues  I  have  had  considerable 
experience  with  grand  juries  because  I  have  found  that  grand  juries 
seem  to  be  at  times  the  only  way  that  a  person  has  any  possibility  of 
an  action  against  a  corrupt  act  of  a  governing  official.  If  he  does  not 
bring  it  before  a  jury  of  peers,  he  may  not  succeed  in  finding  an  ear 
to  listen  to  the  problem. 

It  has  been  my  personal  experience — and  I  think  it  has  been  Ms. 
Agnew's  experience — that  prosecutors  are  very  likely — more  likely 
than  not — to  interpret  as  "improper"  such  an  approach  as  we  have 
made  to  grand  juries. 


9184 

I  have  written  evidence  to  submit.  I  will  briefly  describe  one  inci- 
dent which  is  not  atypical. 

Senator  Kennedy.  Just  give  it  briefly.  We  would  be  glad  to  have  it 
for  the  record. 

]Mr.  Holmes.  In  the  summer  of  1973  we  submitted  some  informa- 
tion to  a  grand  jury,  which  jury  invited  us  to  testify  before  it.  That 
jury  asked  us  to  bring  more  detailed  information  on  the  crimes  which 
we  said  we  suspected  existed,  which  information  we  immediately  pre- 
pared and  tried  to  submit  to  that  jury. 

To  make  a  long  story  short,  we  were  personally  threatened  with  a 
possible  violation  of  title  18,  section  1504  by  the  prosecutor  over  here 
in  Alexandria,  in  the  Eastern  District  of  Virginia. 

We  have  a  letter  among  other  exhibits  in  this  file,  from  Senior 
Judge  Walter  Hoffmann  suggesting  that  there  could  be  a  problem 
with  our  submission  of  evidence  even  with  the  protection  which  is 
written  into  the  present  law. 

Our  evidence,  though,  was  apparently  interesting  enough  and  sub- 
stantial enough  that  the  judge  requested  that  the  prosecutor  schedule 
us  to  appear  again  before  that  grand  jury.  That  is  what  it  took.  It 
took  a  threat  to  me.  It  took  a  threat  to  my  colleague,  Arlyn  Unzicker. 
It  took  a  threat  to  Ms.  Agnew,  but  we  persisted.  We  ignored  those 
threats. 

These  threats  are  sometimes  more  the  rule  than  the  exception.  Our 
experience  is  that  there  does  need  to  be  a  balance,  but  there  also  needs 
to  be  a  balance  to  protect  the  public  from  prosecutors  who  exercise 
oppressive  power  right  now  under  the  present  law,  Avhich  is,  I  think, 
a  little  better  than  the  new  version  of  S.  1.  That  balance  is  certainly 
needed. 

Senator  Kennedy.  We  will  make  sure  that  these  other  provisions 
are  considered. 

The  committee  itself  is  considering  grand  jury  reform.  There  may 
be  some  opportunity  in  that  legislative  undertaking  to  carry  this  to 
a  conclusion. 

Would  you  submit  that  and  we  will  make  the  relevant  parts  of  it 
part  of  the  record.  We  will  include  the  entire  story  as  part  of  the 
files  of  the  subconunittee. 

Mr.  Holmes.  Would  you  like  me  to  note  what  the  documents  are? 

Senator  Kennedy.  Sure. 

Mr.  HoL:\rEs.  One  is  a  letter  of  July  29.  1973,  to  the  foreman  of 
the  U.S.  Federal  grand  jury  from  the  three  of  us.  The  second  is  a  letter 
from 

Senator  Kennedy.  Arc  they  all  identified  or  will  you  identify  them 
and  we  will  make  them  a  part  of  our  complete  file. 

When  you  submit  them,  just  give  us  an  explanation  and  then  we 
will  make  them  a  part  of  the  file. 

'Mv.  IIoL:\rES.  Yes,  I  will. 

Senator  Kennedy.  OK.  Fine. 

Thank  you  very  much. 

The  record  will  be  open  until  July  15. 

The  subcommittee  stands  in  adjournment. 

[Whoreuiion.  at  12:15  p.m.,  the  su1)committee  adjourned.] 

[^Material  supplied  by  last  witness  follows:] 


9185 

Letter  of  Transmittal 

The  set  of  documents  which  follows  is  submitted  by  Marian  K.  Agnew, 
Arlyn  E.  Unzicker,  and  Julian  C.  Holmes  to  illustrate  a  coverup  by  Federal 
prosecutors  and  the  U.S.  Department  of  Justice  of  violations  of  law  by  the  U.S. 
Department  of  Labor  and  other  Federal  and  state  officials.  These  exhibits  outline 
the  course  of  our  efforts  to  secure  grand  jury  action  on  these  matters. 

Between  July  of  1973  and  June  of  197-5,  we  presented  indictable  evidence  to 
local  and  Federal  grand  juries.  For  having  done  so,  each  of  us  was  threatened 
by  Federal  prosecutors  with  criminal  prosecution. 

Although  a  Federal  grand  jury  in  Alexandria.  Va.,  asked  U.S.  Attorney  Gen- 
eral Edward  Levi  for  a  special  prosecutor  to  investigate  "possible  coverup  by 
local  and  Federal  officials",  Dr.  Levi  never  granted  the  request.  Thus,  the  efforts 
of  the  Justice  Department  and  its  prosecutors  to  quash  any  meaningful  inquiry — 
were  ultimately  successful. 

Marian  K.  Agnew, 
Julian  C.  Holmes, 

iiBLYN     E.     UnzICKEK, 

Enclosures. 

INDEX    OF    DOCUMENTS 

1.  Hearings  on  OSHA  Act  of  1970  Before  the  Select  Committee  on  Labor  of 
the  House  Committee  on  Education  and  Labor,  93d  Cong.,  2d  Sess.  515-516 
(1974)  (Testimony  of  Arlyn  E.  Unzicker).  (Discussion  or  problem  with  prosecu- 
tors and  grand  jury  procedures.) 

2.  Id.  at  687-690  (Testimony  of  Juhan  C.  Holmes) . 

3.  Unzicker  et  al.,  letter  to  Foreman,  U.S.  Federal  Grand  Jury,  Xorfolk, 
Virginia,  November  11,  1973.  (This  letter  details  problems  with  the  U.S.  At- 
torneys in  the  Eastern  District  of  Virginia  and  his  obstruction  of  justice  with 
regard  to  grand  jury  business.) 

4.  Agnew  et  al.,  letter  to  Hon.  Sam  Ervin,  November  11,  1973.  (Names  parties 
benefitting  from  obstruction  of  justice  by  the  U.S.  Attorney  in  the  Eastern 
District  of  Virginia.) 

5.  Plon.  Walter  E.  Hoffman,  letter  to  Marian  K.  Agnew,  November  20.  1973. 
(Letter  notes  that  attempt  to  provide  information  to  grand  jury  about  obstruc- 
tion of  justice  by  the  U.S.  Attorney  could  be  a  crime.) 

6.  Jim  Walls,  Skyline — Jury  Renews  Inquiry,  The  Globe,  June  6,  1974.  (Arti- 
cle reports  that  Federal  Grand  Jury  in  Norfolk  asks  for  investigation  by 
reluctant  prosecutor.) 

7.  Ben  A.  Franklin,  $50,000  Awarded  in  Building  Collapse,  The  New  York 
Times,  January  14,  1975. 

S.  Marie  C.  Caber,  letter  to  Hon.  Edward  Levi,  May  7,  1975.  (This  was  a 
request  by  the  Acting  Foreman  of  the  Alexandria,  Virginia  Federal  grand  jury 
for  the  Attorney  General  of  the  United  States  to  provide  a  special  prosecutor  to 
investigate  charges  of  violations  of  Federal  laws  by  local  and  Federal  officials. 
This  letter  was  prepared  following  testimony  before  the  jury  on  May  7,  1975 
by  Julian  C.  Holmes.) 

9.  Steve  Bates,  Justice  Tells  Juries  No  Probe  Needed,  The  Globe,  October  9, 
1975.  (Details  Justice  Department  actions  to  head  off  grand  jury  probe  with 
a  special  prosecutor.) 

Statement  of  Arlyn  E.  Unzicker,  Annandale,  Va.,  and  Julian  C.  Holmes, 
Friendly,  Md.,  Accompanied  by  David  A.  Sutherland,  Esq.,  Alexandria,  Va.'^ 

Mr.  Unzicker.  We  have  presented  this  to  a  U.S.  grand  jury,  and  presented  it  to 
the  Justice  Department.  Mr.  Chairman,  in  your  opening  remarks,  we  can  give 
you  a  historic  perspective  and  documentation  of  the  run-around  we  have  had  with 
the  Justice  Department,  with  the  Watergate  Prosecutor,  with  the  FBI  and  with 
the  U.S.  attorney  in  Virginia. 

Mr.  Gaydos.  Well,  what  was  the  responsibility  of  the  grand  jury?  Was  that  a 
county  grand  jury? 


1  Excerpts  from'  hearing  on  Occupational  Safety  Hazards  Act  of  1070  before  the  Select 
Subcommittee  on  Labor  of  the  Committee  on  Education  and  Laboi*,  House  of  Representa- 
tives, 83d  Congress,  2d  Sess.,  1974. 


9186 

Mr.  Unzickek.  That  was  a  U.S.  grand  jury. 

Mr.  Gaydos.  United  States. 

Mr.  Unzicker.  We  understand  from  the  U.S.  attorney,  David  Hopl^ins.  acting 
U.S.  attorney,  now,  that  the  grand  jury  decided  not  to  return  a  bill  of  indictment 
on  the  criminal  charges  that  we  brought,  which  are  contained  in  our  report  called 
The  Bailey's  Crossroads  Cover-Up  and  the  Law,  which  I  want  to  make  part  of  the 
record. 

It  is  my  presentation  prepared  for  the  Federal  grand  jury  and  the  Oflace  of  the 
Special  Watergate  Prosecutor. 

Mr.  Gaydos.  You  state  that  you  personally  testified? 

Mr.  Unzicker.  Yes.  sir.  We  have  testified.  We  have  in  September  of  1973,  in 
December  of  1973,  and  on  June  5, 1974. 

Mr.  Gaydos.  Let  me  ask  you,  I  know  you  comprehend  and  understand  that  a 
grand  jury  is  composed  of  citizens  like  you  and  I. 

Mr.  Unzicker.  Yes,  sir. 

Mr.  Gaydos.  And  is  that  grand  jury  still  sitting,  do  you  know? 

Mr.  Unzicker.  That  grand  jury  is  not  sitting. 

Mr.  Gaydos.  Have  you  made  any  attempt  to  contact  any  of  the  members  of  that 
grand  jury  at  all  to  find  out  what  went  on? 

Mr.  Unzicker.  Mr.  Chairman,  when  we  indicated  to  the  U.S.  attorney.  Brian  P. 
Gettings.  earlier  that  we  charged  him  in  a  conference  that  he  wasn't  doing  any- 
thing and  that  we  planned  to  go  to  that  grand  jury  and  asked  for  the  members,  he 
said,  "Mr.  Unzicker  and  Mr.  Holmes,  I  don't  like  to  do  this,  but  I  want  to  caution 
you  that  under  title  18  you  are  not  permitted  to  communicate  with  a  grand  jury," 

Mr.  Gaydos.  After  it  finished  sitting? 

Mr.  Unzicker.  Yes,  sir. 

Mrs.  Agnew.  No.  no  :  this  was  while  it  was  sitting,  after  he  testified. 

Mr.  Unzicker.  After  September  1973,  after  we  testified. 

Mr.  Gaydos.  I  am  talking  about  after  the  grand  jury  made  its  decisions.  I  am 
asking  you,  have  you  contacted  the  grand  jury  as  to  why  when  you  made  your 
presentation  they  saw  fit  not  to  recommend  to  the  U.S.  attorney  to  prosecute? 
That  is  the  only  question. 

Mr.  Unzicker.  All  right,  that  is  the  question. 

Mr.  Gaydos.  I  am  not  asking  you  for  a  specific  response  if  you  haven't  done  it. 

^Ir.  T^nzicker.  No  ;  we  haven't  done  it. 

Mr.  Gaydos.  Proceed.  I  didn't  want  to  interrupt  you  because  I  will  sidetrack 
you.  Excuse  me.  You  may  proceed. 

Mr.  Unzicker.  All  right.  I  am  just  going  to  say  that  we  have  received,  well, 
the  runaround  from  the  U.S.  attorney's  oflSce  in  this  matter.  Mrs.  Agnew  will 
testify  that  when  she  got — tried  to  get  the  list  of  the  grand  jurors,  the  U.S.  at- 
torney down  in  Norfolk  was  cooperative  and  was  willing  to  give  this  list  and  then 
later  on  he  called  back  and  .said,  '"T  cannot  permit  you  to  have  that  list." 

So  getting  the  names  of  the  grand  jurors  is  a  problem,  isn't  it,  ^Ir.  Chairman? 

Mr.  Gaydos.  Well,  I  wasn't  there.  I  wouldn't  know:  but  if  you  are  posing  the 
question  generally  and  if  I  may  respond  on  belialf  of  that  nebulous  person  you 
are  talking  to,  I  might  agree  with  you  and  say  "yes,"  but  T  don't  know. 

It  is  public;  I  am  advised  by  counsel  it  is  public  and  can  l)e  available,  and  if 
you  have  time  you  stop  in  and  see  us  after  you  testify  and  we  will  .show  you  how 
to  get  the  names. 

Mr.  Unzicner.  Well,  we  will  proceed  in  that  direction.  We  have  bad  a  number 
of  things.  We  have  had  this  Richmond  ai)peal  as  to  trying  to  pin  the  responsibil- 
ity on  who  is  responsible  for  the  construction  work,  for  one,  for  construction  work, 
and  .so  forth. 

Now.  in  our  prepared  statement  we  would  like  to  say  that  our  story  is  about 
one  of  the  worst  construction  disasters  in  the  T'nited  Sitates.  It  is  the  story  of 
how  governmental  venality  has  deprived  the  pul)lie  of  the  protection  of  our  Na- 
tion's safety  laws  and  how  public  officials  cover  up  for  influential  developers  who 
break  them. 

Mr.  Holmes.  Mr.  Chairman,  the  statement  which  is  sort  of  a  summary  of  what 

we  found  out  that  OSTI.V  has  done  in  the  past  is  the  prepared  statement  which 

we  submitted  to  the  committee,  and  we  can  complete  reading  that  statement,  at 

your  pleasure,  or  we  could  summarize  what  is  in  that  statement  with  a  quick 

.sumjuary  of  what  OSHA  is  not  doing  today. 


9187 

Mr  Gatdos.  I  would  appreciate  it  if  you  would  summarize  it  because  I  am 
more  impressed  with  summaries.  I  think  a  man  is  more  persuasive  in  summariz- 
ing rather  than  reading  a  statement.  I  would  appreciate  your  proceeding  in  that 

way,  if  you  don't  mind.  ,  .,  .   ,  .         ^        v.     ..  u       i    ^ 

Mr  Holmes.  All  right.  Some  of  the  facts  I  think  are  in  order  about  how  bad 
the  coverup  was.  The  average  strength  of  the  vertical  columns  in  the  lower  six 
floors  of  building  A-4  were  below  specification.  Both  construction  cranes  were 
erected  improperly.  Mazes  of  cracks  radiate  through  the  floors  around  most 
columns  on  all  24  floors. 

The  collapse  has  been  blamed  on  workman  error,  that  a  workman  on  the  day 
of  the  collapse  pulled  supports  from  under  freshly  poured  concrete  on  the  top 
floor.  Both  the  Labor  Department  report  and  the  county's  report  ignore  the  fact 
that  the  building  is  rotten  from  top  to  bottom,  riddled  with  bad  concrete  and 
bad  steel  work  and  missing  steel  work.  This  is  the  high-rise  building. 

The  Labor  Department  found  in  its  report  no  bad  steel  work,  no  missing  steel, 
no  bad  cracks,  and  no  concrete  that  could  be  the  cause  of  the  collapses.  The 
Labor  Department  issued  no  citations  to  the  builder.  It  failed  to  cite  the  con- 
struction subcontractor  for  the  crane  violations,  the  lateral-bracing  violations 
and  the  out-of-plumb  shoring  violations. 

The  outrages  of  outrages,  though,  is  what  is  going  on  now.  On  May  9  of  this 
year  the  Smith  Co.,  working  in  close  cooperation  with  the  county  officials,  an- 
nounced a  plan  to  patch  up  the  remaining  standing  portion  of  A-4  with  a  system 
of  steel  splints  and  subfloor  I-beams.  Expansion  bolts  were  to  be  used  to  attach 
the  splints  to  the  vteak  concrete  columns. 

What  is  going  to  happen  V  The  county  says  it  has  issued  a  building  permit  to 
rebuild  the  building  and  the  garage. 

What  is  being  done  by  the  Labor  Department  today?  It  is  continuing  to  violate 
at  Bailey's  Crossroads  the  most  fundamental  provisions  of  the  11)70  OSHA  Act. 
It  has  failed  to  halt  construction  activities  until  the  workers  are  provided  with, 
a  safe  place  to  work. 

It  was  the  intent  of  this  Congress  in  passing  the  act  to  assure  safe  and  health- 
ful working  conditions  for  working  men  and  women.  In  stark  contrast  to  this 
worthy  purpose,  the  Labor  Department  has  frustrated  the  right  of  citizens  to 
equal  protection  under  the  law,  has  endangered  the  life  and  health  of  workers 
on  tomorrow's  jobs  by  failing  to  enforce  safety  regulations  today,  and  has  in 
fact  discouraged  OSHA  Act  compliance  by  employers  who  trust  that  the  Labor 
Department  will  not  enforce  the  law. 

The  ultimate  insult  is  that  the  Labor  Department  has  even  failed  to  implement 
the  procedures  spelled  out  in  its  own  compliance  manual. 

Tou  asked  us  questions  which  relate  to  the  motivations  of  oflicials,  perhaps 
as  to  why  these  things  happen,  and  we  feel  that  it  is  unfortunate  for  the  tax- 
payer that  there  does  not  seem  to  be  an  eftectlA-e  prohibition  against  making 
flnancial  campaign  contributions  to  persons  who  do  business  with  the  U.S. 
Government. 

The  authors,  us,  do  not  understand  why  the  U.S.  law,  title  18,611  of  the 
United  States  Code,  prohibiting  political  contributions  by  Government  contrac- 
tors, should  not  have  applied  to  the  Smith  partnerships. 

Their  Presidential  campaign  contributions  were  made  while  the  Department 
was  leasing  to  the  Government  buildings  such  as  executive  offices  of  the 
President. 

The  fact  that  the  law  has  not  been  applied  in  this  case,  in  Bailey's  Cross- 
roads, or  in  the  case  of  these  contributions,  excuse  me,  places  the  Labor  Depart- 
ment in  the  very  uncomfortable  position  of  having  to  decide  how  to  be  fair  to  a 
loyal  supporter  or  contributor,  and  who  at  the  same  time  is  a  prominent  Govern- 
ment landlord. 

We  don't  know  whether  the  contributions  were  a  factor  considered  by  public 
officials  who  engineered  the  Bailey's  Crossroads  coverup.  The  important  fact  is 
that  by  their  actions  local  government  and  Labor  Department  officials  did  co- 
operate to  protect  the  general  class  of  builders,  developers,  building  inspectors, 
and  construction  companies  which  stand  to  benefit  from  less  than  vigorous  en- 
forcement of  worker  safety  laws. 

If  the  reason  this  was  done  is  not  determined,  it  will  happen  again  and  again, 
.iust  as  it  has  in  the  past.  More  people  will  be  maimed  and  killed,  and  Govern- 
ment oflBcials  will  continue  to  ignore  the  law  with  impunity. 


9188 

We  feel  there  is  a  difference  between  the  Labor  Department  coveriip  at 
Bailey's  Crossroads  and  the  administration  coverup  of  the  ITT-Hartford  inci- 
dent, the  IRS  coverup  of  President  Nixon's  tax  returns,  the  coverup  of  the 
Watergate  burglary,  the  covervip  of  the  CREEP  campaign  contributions,  the 
wheat  deal,  the  milk  deal,  the  Justice  Department  foot-dragging  in  the  Fitzgerald 
affaii',  and  the  commission  and  coverup  of  the  burglary  of  Dr.  Fielding's  office. 

There  is  a  difference :  At  Bailey's  Crossroads,  14  men  were  killed ;  46  were 
injured,  some  for  life. 

Concerning  the  general  subject  which  I  will  try  to  clear  up  in  a  couple  of 
sentences  of  our  work  with  the  grand  .jury  in  Norfolk  on  the  Bailey's  Cross- 
roads collapse,  it  is  our  feeling,  and  all  three  of  us  have  testified  before  that 
grand  jury  and  tried  to  worlv  closely  with  the  Federal  prosecutor,  that  the  Fed- 
eral prosecutor  did  not  want  anything  to  do  with  any  indictments  arising  out 
of  the  Bailey's  Crossroads  controversy. 

We  found  the  grand  jury  to  be  what  I  considered  a  fair  cross-section  of  the 
public  that  I  have  known  in  my  lifetime ;  they  were  most  interested  in  the  sub- 
ject matter,  and  indicated  to  us,  in  our  many  hours  before  them,  that  they  thought 
something  should  be  done.  The  prosecutor  indicated  just  the  opposite  at  almost 
every  step  of  the  way.  And  now  the  grand  jury  has  been  sent  home  and  we 
tire  in  limbo  concerning  what  to  do. 

It  has  been  dropped,  in  spite  of  tlie  fact  that  we  have  been  given  indications 
that  we  would  be  brought  back  to  testify,  if  we  wished,  next  moutth. 

To  summarize  the  problems  at  Bailey's  Crossroads  and  OSHA's  participation, 
the  photographs  which  we  will  present,  that  I  took  myself,  I  think  show,  I 
tliink  they  document,  three  simple  problems. 

The  photographs  of  the  high-rise  building  show  how  part  of  the  high-rise 
structure  was  brought  down  on  top  of  a  rubble  pile  in  which  men  still  lay  buried. 

The  photographs  of  the  garage,  which  are  most  of  the  photographs  w^hich  I 
liave,  show  very  clearly  the  inadequate  design  of  this  garage  to  protect  workers 
fi'om  ))eing  killed — which  they  were.  It  shows  b.ow  a  total  floor  slid  down  over 
the  columns  that  were  supposed  to  support  it.  It  shows  the  lack  of  bonding  between 
concrete  and  what  few  reenforcing  bars  were  there. 

Many  photographs  show  very  clearly  the  reenforcing  bars  sticking  out,  com- 
pletely stripped,  hardly  any  little  bits  of  concrete  sticking  to  them. 

And  the  other  photographs  which  I  have,  two  or  three,  show  the  nature  of  the 
bowstring  construction  in  the  garage.  It  shows  the  ends  of  the  cable  sticking 
out  of  their  tubes  that  are  tightened  up  to  put  compression  sidewise  on  the  floors. 

And  I  think  these  photographs  will  give  the  committee  a  good  handle  on  the 
l)hy.«;ical  problem  that  was  there,  both  in  design  and  with  the  construction  prac- 
tices used  at  Bailey's  Crossroads.  The  photographs  simply  show  that  there  wasn't 
enough  support  around  in  that  structure  to  prevent  a  tragedy,  and  I  think  the 
photographs  will  help  this  committee  to  come  to  a  conclusion  that  the  sole  cause 
of  tills  collapse,  which  a.s  given  by  OSITA  and  the  county  officials  involved  was 
workmen  error,  is  not  a  proper  conclusion  ;  tliat  tlu>  cause  of  the  collapse  was  a 
building  riddled  wnth  problems,  and  which  still  is  riddled  with  problems,  as  the 
rei)ort  we  have  submitted  by  Law  Engineering  Testing  Co.  shows. 

OSIIA  deliberately  ignored  a  major  part  of  the  disaster,  the  garage.  OSIIA 
failed  to  cite  the  l)uilder  for  anything.  OSIIA  failed  to  cite  violations  in  the  build- 
ing that  their  own  technical  report  on  Building  A-4  documented. 

All  kinds  of  things  which  could  have  very  wi>ll  caused  or  contributed  to  the 
Iniildlng  collapse.  OSHA  did  not  study  the  structure  of  the  building.  It  did  not 
find  the  bad  concrete,  the  bad  steel  work,  the  missing  steel,  the  cracks  in  the  floor. 

Today,  OSIIA  is  still  falling  in  its  duty.  Work  is  going  on  over  <in  building  A-4, 
ti  l)uilding  riddled  with  all  these  prol)lems:  the  building  is  being  rebuilt,  and 
Oi^IlA  did  not  even  exercise  its  opportunity  to  appear  before  the  county  when  the 
county  held  a  meeting,  a  public  meeting  on  the  rebuilding  of  this  building,  to  send 
a  representative,  and  OSHA  knew  about  it.  And  that  is  part  of  our  file,  the  notice 
given  to  OSIIA  of  that  meeting  and  the  response  OSIIA  gave  to  us. 

And  OSHA  has  not  done  anything  to  stop  the  work  on  the  garage  to  rebuild  it, 
whicli  the  county  says  they  have  issued  a  permit  for. 

Thank  you. 

IMr.  (Jaydos.  I  wish  to  thank  you  for  some  very  impressive  and  courageous 
testimony. 


9189 

MacLean,  Va.,  November  11,  1973. 
Foreman,  U.S.  Federal  Chand  Jury, 
U.S.  District  Court, 
Norfolk,  Va. 

Dear  Sir:  On  September  12  we  appeared  before  the  Norfolk  Grand  Jury  and 
delivered  over  3  hours  of  testimony  on  matters  pertaining  to  the  collapse  of 
two  buildings  at  Bailey's  Crossroads  in  Fairfax  County,  Va. 

During  our  testimony,  U.S.  Attorney  Brian  P.  Gettings  announced  that  the 
decision  had  been  made  to  proceed  with  an  inquiry  into  the  matter,  and  it  was 
agreed  that  we  would  provide  to  the  Jury  our  personal  tiles  of  documentation 
and  any  other  material  that  would  aid  in  establishing  violations,  or  probable 
cause  for  violations  of  Federal  statutes. 

Six  days  later  we  had  prepared  chronological  files  of  documentation.  We  had 
developed  a  witness  list  with  subject  matter  that  we  felt  should  be  discussed 
with  witnesses  under  oath.  We  reiterated  a  number  of  possible  crimes  that  the 
Jury  might  pursue,  and  we  provided  a  list  of  new  citations  that  updated  to  Sep- 
tember 18  our  formal  Report  to  the  Grand  Jury  of  July  25,  1973. 

On  September  18,  we  hand  delivered  this  material  to  U.S.  Attorney  Brian  B. 
Gettings  and  Assistant  U.S.  Attorney  David  H.  Hopkins.  A  letter  summarizing 
the  material  was  addressed  to  the  Grand  Jury,  and  we  asked  that  it  be  delivered. 

On  October  23,  two  of  us  (Unzicker  and  Holmes)  met  again  (at  our  request) 
with  Mr.  Gettings  and  Air.  Hopkins.  We  have  found  to  our  dismay  that : 

(1)  No  documents  had  been  acquired  from  the  U.S.  Department  of  Labor  file 
as  Mr.  Gettings  had  assured  us  would  be  done  promptly. 

(2)  No  meaningful  inquiries  had  been  made. 

(3)  Our  letter  of  September  17  addressed  to  the  Grand  Jury  had  not  been 
delivered. 

(4)  Since  September  12,  no  jury  had  been  called  into  session  in  the  Bailey's 
Crossroads  matter. 

(5)  December  would  be  the  first  occasion  on  which  Mr.  Gettings  would  bring  the 
Bailey's  Crossroads  matter  before  the  Jury. 

In  addition  we  informed  Mr.  Gettings  that : 

(6)  Important  evidence  that  we  had  twice  urged  him  to  acquire  was  being 
destroyed  and,  his  delay  was  seriously  compromising  the  Grand  Jury's  case. 

(7)  We  would  mail  immediately  our  letter  of  September  17  to  the  Grand 
Jury  in  Norfolk  if  Mr.  Gettings  woirid  provide  the  addresses  of  the  Jurors. 

Mr.  Gettings  informed  us  that  it  would  be  a  Federal  Crime  (Title  18  USC  Sec 
1504)  to  mail  the  information  requested  by  the  Jury  to  the  Jury.  Our  request 
for  the  mailing  addresses  for  the  Jurors  has  brought  a  threat  from  Mr.  Gettings' 
office  to  bring  criminal  charges  against  us. 

The  Annotated  United  States  Code  makes  it  quite  clear  that  our  requests 
are  legitimate,  and  that  furthermore  it  is  unlawful  to  obstruct  the  flow  of  in- 
formation requested  of  us  by  the  Jury.  (Title  18  USC  Sec  1503,  1504;  U.S.  v. 
Smythe,  D.C.  Cal  1952,  104  F  Supp  283) 

We  attach  hereto  our  letter  to  the  Jury  dated  September  17,  and  we  request 
to  appear  under  oath  before  the  Gi'and  Jury  to  inform  the  Jury  of: 

(9)  Recent  actions  and  inactions  by  the  olfice  of  the  U.S.  Attorney  that  preju- 
dice the  Grand  Jury  investigation  of  Bailey's  Crossroads. 

(10)  Recently  discovered  actions  of  the  U.S.  Department  of  Labor  to  cover 
up  culpability  at  Bailey's  Crossroads. 

(11)  Evidence  being  destroyed  because  of  inaction  by  the  U.S.  Attorney. 

(12)  The  need  for  a  prompt  request  from  the  Grand  Jury  to  the  U.S.  Attorney 
General  to  assign  a  special  prosecutor  to  the  case  for  the  purpose  of: 

(a)  Implementing  tlie  investigation  started  by  the  Grand  Jury  on  September  l2. 

(b)  Bringing  a  halt  to  the  destruction  of  evidence. 

(c)  Determining  whether  the  conduct  of  the  U.S.  Attorney  in  the  Bailey's 
Crossroads  case  constitutes  an  obstruction  of  justice  under  Title  18  USC  Sees. 
1503  and  1505. 

We  trust  that  this  information  is  useful,  and  we  wish  to  cooperate  in  any 
way  possible  to  expedite  the  investigation  of  the  Bailey's  Crossroads  disaster. 
Very  truly  yours, 

Arlyn  E.  Unzicker. 
Marian  K.  Agnew. 
Julian  C.  Holmes. 


9190 

MacLean.  Va.,  November  11,  1913. 

Hon.  Sam  ER^^N, 

Chairman,  Select  Committee  on  Presidential  Campaign  Activities,  Dirksen  Sen- 
ate Office  Building,  Washington,  D.C. 
Dear  Se:xator  Ervin  :  On  March  2.  1973  at  the  Skyline  Towers  construction  site 
at  Bailey's  Crossroads  in  Fairfax  Cnnnty.  Ya..  a  24-story  vertical  section  of  a 
hish-rise  condominium  apartment  huiklins  collapsed.  Simultaneously,  a  separate 
2.3  acre,  two-story  concrete  parking  garage  disintegrated.  Over  a  period  of  2 
weeks.  14  bodies  of  construction  workers  were  found  in  the  rubble. 

Public  officials  have  produced  no  meaningful  explanation  for  the  separate  col- 
lapse of  the  parking  garage  where  flexible  steel  cables  replaced  the  more  familiar 
self-reinforcing  steel  rods  and  where  faulty  concrete  was  used.  Many  men  who 
died  were  found  in  the  garage. 

Our  report  on  the  disaster  (attached)  documents  a  coverup  by  local  and  Fed- 
eral public  servants  of  gross  negligence  that  caused  the  collapse  of  the  two  sepa- 
rate buildings.  We  summarize  in  this  letter  recent  participation  in  the  Bailey's 
Crossroads  coverup  by  both  the  U.S.  Department  of  Labor  and  the  Department 
of  Justice. 

Among  those  to  benefit  from  the  coverup  are  the  concrete  constructiiui  indus- 
try;  a  $35,000  contributor  to  the  Committee  to  Reelect  the  Presidenr :  and  a  now 
prominent  subsidiary  of  IT&T.  the  Hartford  Accident  and  Indemniry  Company 
which  insured  both  the  negligent  local  officials  and  the  concrete  contractor. 

It  has  now  become  clear  that  the  Department  of  Labor  "investigation"  into  the 
double  disaster  was  directed  at  only  one  of  the  two  buildings  that  collap.sed.  The 
reports  on  tests  of  the  post-collapse  concrete  are  being  withheld  from  the  public 
by  the  Department  of  Labor,  so  that  there  is  no  way  to  ascertain  why  one  investi- 
gation was  called  of¥.  We  do  know  that  the  uninvestigated  garage  building  used 
bad  concrete  and  was  constructed  with  insufficient  reinforcing  steel  to  provide 
worker  safety.  To  have  investigated  and  reported  on  this  collapse  would  have 
resulted  in  the  condemnation  of  an  unsafe  construction  practice. 

On  September  12.  we  presented  over  3  hours  of  testimony  on  Bailey's  CrosS' 
roads  to  the  Federal  Grand  Jury  in  Norfolk,  Va.  The  Jury  indicated  a  strong 
desire  to  pursue  the  matter  of  the  coverup  by  Federal  officials  and  asked  us  to 
provide  the  Jury  with  documetation  and  other  material  that  would  aid  in  estab- 
lishing violations  of  Federal  statutes.  We  promptly  provided  this  information,  but 
U.S.  Attorney  Brian  P.  Gettings  has  failed  to  deliver  our  mail  to  the  Jury,  stat- 
ing that  it  would  be  a  violation  of  the  law  to  do  so. 

Mr.  Gettings  response  to  our  offer  to  mail  the  information  ourselves  to  each 
Grand  Jurors  was  that  such  an  action  would  constitute  a  Federal  Crime  under 
Title  18  use  Sec.  1504.  The  annotated  Code  cites  specifically  a  Federal  Court 
decision  that  flatly  contradict-^  Mr.  Gettings  interpretation  of  the  Code.  (U.S.  v. 
Smythe,  D.C.  Cal.  1052. 104  F  Supp  2S3) 

Our  request  for  the  mailing  addresses  of  the  Grand  Jurors  has  been  answered 
by  the  office  of  the  T^.S.  Attorney  with  a  threat  of  criminal  court  action  against 
us  if  we  persist  in  our  efforts  to  mail  to  the  Grand  Jury  the  information  it  re- 
quested. In  our  opinion.  Title  18  USC  Sees.  1503  and  1505  bear  strongly  on  this 
obstruction  of  justice  by  the  office  of  the  U.S.  Attorney. 

The  building  industry  is  a  heaAT  contributor  to  political  campaigns,  and  it  is 
very  important  to  this  special  interest  group  that  the  U.S.  Government  not  reveal 
the  truth  about  construction  practices  at  Bailey's  Crossroads.  The  Committee 
may  wish  to  in(iuire  whether  the  IT&T— Hartford  intrigues  and  tlie  ,$.35,000  cam- 
paign contribution  from  the  Bailey's  Crossroads  luiilders  to  the  CRP  provided  an 
incentive  for  U.S.  Attorney  Gettings'  stallins  of  the  inquiry  requested  on  Septem- 
ber 12  by  the  Federal  Grand  Jury  and  calling  off  the  investigation  promised  on 
March  3  by  Secretary  Peter  Brennan  after  consultation  with  President  Nixon. 
The  Committee  may  well  ask  whether  the  relationship  of  Secretary  Brennan 
to  the  Bailey's  Crossroads  coverup  is  similar  to  that  of  of  John  :\Iitcli('ll  to  bigli 
level  influence  peddling.  We  hope  the  Committee  will  find  th(>  cucIoscmI  material 
useful  in  clearing  the  way  for  a  full  investigation  of  this  scandal  in  which  the 
lives  of  14  men  were  lost  and  in  which  much  Federal  tax  money  has  been  .spent 
to  protect  the  guilty  and  in  which  the  U.S.  Justice  Department  has  aided  mate- 
rially the  coverup  of  facts  in  this  record  disaster. 
Sincerely, 

Marian  K.  Agnew. 
Arlyn    E.    Unzicker. 
Julian  C.  Holmes. 


9191 

U.S.  District  Court, 
Eastern  District  of  Virginia, 
Norfolk,  To.,  November  20,  1973. 
Ms.  Marian  K.  Agnew, 
MacLcan,  Va. 

Dear  Ms.  Agnew  :  Your  certified  letter,  return  receipt  requested,  addressed  to 
"Foreman.  U.S.  Federal  Grand  Jury.  United  States  District  Court.  U.S.  Post 
Office  Building.  Norfolk.  Va.,"  was  received  by  the  Clerk  of  this  Court  and,  pur- 
suant to  my  instructions,  he  delivered  the  letter  to  me  as  I  assumed  (and  he 
assumed)  that  it  was  a  communication  from  some  member  of  the  family  of  the 
former  Vice  President  of  the  United  States.  As  you  may  know,  I  presided  over  the 
trial  of  Spiro  T.  Apiew  which  was  concluded  on  October  10,  1973. 

I  opened  the  letter  in  question  and  have  noted  its  contents.  It  appears  clear 
that  the  signers  of  the  letter  do  have  a  right  to  appear  before  the  grand  jury  and 
I  am  instructing  the  U.S.  Attorney,  Mr.  Gettings.  to  whom  a  copy  of  this  letter  is 
being  sent,  to  arrange  for  your  appearance  at  the  grand  jury  session  to  be  held 
in  Norfolk  beginning  Der-ember  10,  1973.  However,  unless  the  U.S.  Attorney  be- 
lieves that  your  presence  is  necessary  for  the  purpose  of  testifying  in  conjunc- 
tion with  a  case  which  he  has  authorized  continued  prosecution,  the  signers  of 
the  letter  will  have  to  pay  their  own  expenses  in  coming  to  Norfolk  and  returning 
to  their  residences. 

Except  for  the  fact  that  your  request  to  appear  before  the  grand  jury  is  proper, 
I  have  concluded  not  to  deliver  your  letter  to  the  foreman  of  the  grand  jury  as 
it  may  well  be  a  violation  of  18  U.S.C.  §  1504,  in  which  event  I  would  be  a  party 
to  such  a  violation.  If,  however,  you  and  your  co-signers  are  desirous  of  ex- 
pressly violating  the  law.  the  U.S.  Attorney  may  Avish  to  present  your  letter  to 
the  foreman  of  the  grand  jury  at  the  appropriate  time. 

Any  request  for  the  appointment  of  a  special  prosecutor  should  be  directed  to 
the  Attorney  General  of  the  United  States. 

I  note  that  you  also  sent  a  copy  of  your  letter  to  Senator  Ervin.  I  do  not  know 
what  status  he  has  in  the  matter  and.  for  that  reason,  am  not  sending  him  a  copy 
of  this  letter.  You  are,  of  course,  at  liberty  to  forward  a  copy  of  my  letter  to 
Senator  Ervin. 

However,  I  suggest  that  you  refrain  from  attempting  to  write  to  any  member  of 
the  grand  jury. 

Very  truly  yours, 

Walter  E.  Hoffman,  Z7.>Sf.  District  Judge. 

P.S.— I  do  not  have  the  addresses  of  the  other  signers  of  the  letter.  Extra 
copies  are  enclosed  for  distribution  to  them. 


[From  the  Arlington  Globe,  June  6,  1974] 
Skyline — Jury  Renews  Inquiry 

(By  Jim  Walls) 

A  U.S.  grand  jury  in  Norfolk  has  ordered  a  90-day  investigation  into  allega- 
tions surrounding  the  collapse  of  two  buildings  last  year  at  Bailey's  Crossroads, 
according  to  a  citizen  group  which  appeared  before  the  grand  jury  Wednesday. 
"U.S.  Attorney  David  Hopkins  has  informed  us  thnt  we  ]irese'ited  a  clear  o^^t 
case  of  a  violation  of  federal  criminal  law,  and  that  he  is  initiating  an  FBI 
inquiry  into  the  question  of  whether  a  District  of  Columbia  or  Virginia  grand 
jury  should  have  geographical  jurisdiction."  said  a  statement  relerised  Wednes- 
day afternoon  by  the  citizen  group,  which  includes  Marian  K.  Agnew,  David 
Sutherland  and  Arlyn  Unzicker  of  Fairfax  County  and  Julian  Holmes  of  Prince 
Georges'  County.  Md. 

The  citizens  would  not  indicate  the  nature  of  the  alleged  \iolation.  Hopkins 
would  neither  confirm  nor  deny  the  statement  attributed  to  him. 

The  citizen  group  last  week  released  a  iwrtion  of  their  prepared  testimony, 
which  alleges  tliat  federal  and  local  investigations  covered  up  important  infor- 
mation regarding  the  disaster. 

The  atmosphere  of  the  press  conference,  held  Friday  in  Washington,  was  in 
marked  contrast  to  a  similar  meeting  last  July  30.  Reporters  asked  few  questions 
and  chatted  with  the  activists  afterward.  Last  year,  when  the  group  first  ofllcially 
made  their  coverup  charge,  much  of  the  questioning  was  openly  hostile. 

92-465 — 77 ^40 


9192 

The  group  has  been  intervie\Ying  workmen  and  public  officials  and  analyzing 
documents  pertaining  to  the  Skyline  Center  collapse  since  March  2  of  last  year, 
when  an  SO-foot  portion  of  a  24-story  apartment  building  collapsed  during  con- 
struction. A  2.5-acre  parlcing  garage  adjacent  to  the  high-rise  collapsed  simul- 
taneously. The  disaster  killed  14  construction  workers  and  injured  40  others. 

"By  their  actions,  local  government  and  Labor  Department  officials  did  co- 
operate to  protect  the  general  class  of  builders,  developers,  building  inspectors 
and  construction  companies  wliich  stands  to  benefit  from  less  than  vigorous  en- 
forcement of  worker  safety  laws."  the  prepared  statement  said.  "If  the  reason 
this  was  done  is  not  determined,  then  it  will  happen  again  and  again  and  again." 

The  group  charged  tliat  Fairfax  County,  through  its  paid  consultant  Ingvar 
Schousboe,  and  the  federal  Occupational  Safety  and  Health  Administration — 
OSHA — limited  their  investigations  to  the  collapse  of  the  high-rise,  and  ignored 
the  parking  garage. 

Schousboe  has  maintained  that  the  garage  collapsed  under  the  impact  of 
debris  falling  from  the  high-rise  next  to  it.  Schousboe  said  in  a  sworn  deposition 
that  he  limited  his  investigation  to  the  high-rise,  according  to  the  citizen  group. 

OSHA  has  had  no  official  comment  on  the  collapse  of  the  garage.  The  report 
of  the  National  Bureau  of  Standards,  which  i>erformed  technical  work  for 
OSHA  said  that  "consideration  of  (the  garage's)  failure  was  beyond  the  scope  of 
this  report." 

The  citizens  maintain  that  the  garage,  built  with  post-tensioned  concrete, 
might  not  have  collapsed  completely  if  it  had  been  built  with  conventional 
reinforced  concrete.  Four  workers  died  in  the  garage  area. 

The  group  noted  that  the  OSHA  inve.stigation  uncovered  .seven  violations  of 
federal  safet.v  standards  at  the  Skyline  site.  However,  onl.v  three  citations  were 
filed  bv  OSHA,  and  onl.v  against  the  concrete  subcontractors.  Miller  and  Long 
of  Virginia  Inc.  OSHA"s  failure  to  issue  all  the  citations,  and  failure  to  charge 
the  project's  owner-builder,  the  Charles  E.  Smith  Building  Corp.,  is  a  violation 
of  the  1970  act  creating  OSHA,  according  to  the  group. 

The  group  also  charged  that  OSHA  "covered  up  and  kept  from  the  pu)>lic 
the  knowledge  of  the  characteristic  dangers  from  easil.v  triggered,  total  collapse 
of  post-tensioned  concrete  construction."  The  group  asked  the  grand  jury  to 
determine  if  that  is  an  indictable  offense. 

The  Fairfax  County  investigation,  the  activists  alleged,  "concentrated  on  the 
premature  removal  of  shoring  to  the  exclusion  of  other  pos.sible  causes  of  col- 
lapse." They  also  charged  that  Schousboe's  re])ort  "goes  beyond  the  i)oint  of 
simple  coverup  of  material  fact."  Citing  Schousboe's  statement  that  concrete  com- 
pi-ession  tests  during  construction  showed  no  sub-standard  concrete  in  the  area 
of  the  collap.se,  the  group  said  that  "over  half  of  the  concrete  samples  tested 
on  the  second  level  of  the  garage  failed  to  attain  minimum  strength,"  according  to 
the  same  concrete  tests. 

The  activists  also  noted  that  officials  of  the  Smith  Corp.  contributed  "sub.stan- 
tial"  amounts  to  the  Committee  to  Re-Elect  tlie  President  in  1972.  Information 
obtained  by  Common  Cause  from  the  Committee  to  Re-Elect  showed  that  Charles 
and  Robert  Smith  contributed  some  $35,000  in  the  final  days  before  mandatory 
disclosure  came  into  effect. 

However,  I'rcsidential  secretary  Rosemary  Woods  has  disclosed  a  "secret 
donors  list"  which  reveals  that  Smith  Corp.  officials  contributed  .$55,500  to  the 
re-election  effort.  The  dischisure  came  in  March  in  the  trial  of  former  Cabinet 
members  .Tolin  Mitchell  and  Maurice  Stans. 

The  group  noted  that  Smith  par|-nerships  collect  about  $12-million  annually 
in  rental  income  for  offices  lea.sed  to  the  federal  government.  The  f(xleral  grand 
jury  was  a.sked  to  determine  if  the  contributions  are  in  violation  of  a  campaign 
statute  prohibiting  political  contributions  from  anyone  "entering  into  any  con- 
tract Willi  the  I'liited  States  .  .  .  for  the  rendition  of  personal  services  or  furnish- 
ing ai.'.v  material.  su])plies  or  equipment  to  tlie  Cnited   States." 

In  a  related  development,  the  Fairfax  County  Board  of  Supervisors  rejected 
a  motion  to  ask  the  state  lic<>nsing  Imard  to  review  the  license  of  the  Smith  Corp. 
The  motion  was  made  l)y  Annandale  Supervisor  Audrey  Moore  whose  only  sup- 
ix)rt  fi>r  the  action  came  from  Centreville  Supervisor  Martha  Pennino. 

(^j>ponents  of  the  measiire  said  that  tlie  county  should  wait  until  it  has  received 
a  comprehensive  report  on  a  Smith  proposal  to  re))uild  the  collapsed  structures. 

iSmith's  license  in  the  District  of  Columbia  was  revoked  last  Sept.  10.  for  "hav- 
ing failed  and-or  refused  to  file  annual  reports  and  pay  all  fees  due"  in  1972 
and  1973. 


0193 

[From  the  New  York  Times,  Tuesday,  Jauary  14,  1975] 
$500,000  Awarded  in  Building  Collapse 
(By  Ben  A.  Franklin,  Special  to  the  New  York  Times) 

Alexandria,  Va.,  Jan.  12— A  Federal  jury  here  has  awarded  a  .$500,000  judg- 
ment to  a  worker  who  was  disabled  in  a  1973  apartment  building  collapse  in 
which  14  workers  were  killed  and  34  were  injured. 

The  negligence  judgment  was  returned  in  United  States  District  Court  on 
Thursday  against  the  architects  and  consulting  structural  engineers  on  the  Sky- 
line Flaza  project  in  nearby  Bailey's  Crossroads. 

Tlie  judgment  went  to  Joseph  Bergen,  a  30-year-old  former  elevator  installer. 
It  opened  the  way  for  scores  of  similar  suits,  asldng  million  of  dollars  more  in 
worker  damage  claims  not  covered  by  workmen's  compensation. 

At  least  20  more  plaintiffs  involved  in  the  1973  construction  disaster  were 
described  by  a  lawyer  in  the  case  as  "getting  their  papers  ready"  to  sue. 

The  defendants  ordered  to  pay  the  $500,000  are  the  architectural  firm  of 
"Weihe,  Black  &  Jeffries  and  the  consulting  engineers,  Heinzman,  Clifton  & 
Kendro,  both  of  Washington,  D.C. 

A  "frightening"  decision 

A  spokesman  for  the  American  Institute  of  Architects  described  the  judgment 
as  "frightening"  and  said  it  raised  "large,  new  questions  about  the  professional 
liability"  of  architects. 

Experts  in  the  tield  said  that  if  the  award  is  upheld  on  appeal  it  could  en- 
courage reform  of  state  workmen's  compensation  laws.  Such  laws,  which  vary 
widely  from  state  to  state,  generally  limit  benefits  to  the  dead  and  injured  in 
on-the-job  accidents  to  low  weekly  or  monthly  payments,  while  sliielding  em- 
ployers from  any  further  liability  to  damage  suits. 

Mr.  Bergen  suffered  arm  fractures,  a  slaiU  fracture  and  lung  injuries  at  the 
bottom  of  an  unfinished  elevator  sliaft  when  the  central  third  of  the  building, 
one  of  four  at  the  Skyline  Flaza  project,  crashed  down  on  March  2,  1973,  as  the 
concrete  forms  were  being  removed  on  the  top  floors. 

He  had  been  receiving  Virginia's  maximum  workmen's  compensation  benefit 
for  a  100  per  cent  disability,  $100  a  week.  The  payments  were  suspended  last 
month,  according  to  Lawrence  J.  Fascal.  Mr.  Bergen's  lawyer,  pending  a  medical 
reassessment  of  Mr.  Bergen's  asserted  inability  to  work  since  his  injury- 

The  judgment  served  to  revive  a  citizens'  investigation  aimed  at  fixing  respon- 
sibility for  the  collapse  and  for  an  alleged  "cover-up"'  of  culpability. 

PROBLEMS    WITH    INQUIRY 

Half  a  dozen  private  citizens  in  Fairfax  County,  Va.,  who  have  failed  so  far 
to  enlist  much  oflicial  interest  in  their  iS-month  eft'ort — said  that  they  were  more 
determined  than  ever  to  force  government  authorities  to  fix  the  ultimate  blame 
for  the  collapse. 

Arlyn  E.  Unzicker,  a  civilian  physicist  with  the  Navy  who  has  been  the  group's 
chief  spokesman,  said  that  despite  nearly  two  years  of  investigatory  efforts  he 
and  other  critics  of  what  he  has  called  "the  Bailey's  Crossroads  cover-up"  have 
failed  to  obtain  indictments  or  •'meaningful  action"  from  two  Federal  gi-aud 
juries,  the  Federal  Bureau  of  Investigation,  the  United  States  Labor  Depart- 
ment, a  Congressional  connnittee,  or  from  state  or  county  prosecutors. 

"We  think  we  may  get  somewhere  now,"  Mr.  Unzicker  said  in  an  interview 
after  the  judgment  was  returned.  "This  decision  holds,  as  we  have  held  all 
along,  that  it  was  the  faulty  design  and  supervision  of  the  Skvline  Flaza  building 
by  the  engineers  and  architects  that  brought  on  the  collapse.  An  awful  lot  of 
other,  corner-cutting  building  has  been  going  on  around  the  country  that  should 
be  looked  at  too." 

The  suit  was  the  second  filed  by  Mr.  Bergen  in  the  case.  His  original  suit 
was  against  an  array  of  the  project's  architects,  engineers  and  contractors,  as 
well  as  the  owners,  the  Charles  E.  Smith  Company  of  Washington. 

Judge  Albert  V.  Bryan,  in  whose  court  Thursday's  judgment  was  made,  dis- 
missed the  original  suit  a  year  ago.  He  acted  then  under  a  standard  provision  of 
workmen's  compensation  laws  that  forecloses  damage  suits  by  injured  workers 


9194 

against  companies  that  have  made  payroll  contributions  to  state  workmen's  com- 
pensation funds. 

The  theory  of  these  laws  is  that  such  employers  are  covered  by  compensation 
benefits,  in  place  of  the  right  to  sue  for  damages. 

Judge  Bryan  ruled,  however — and  he  was  subsequently  uphold  on  appeal — 
that  the  Skyline  Plaza  architects  and  engineers  could  not  automatically  escape 
vulnerability  to  Mr.  Bergen's  suit  and  could  be  held  liable  for  proved  negligence 
in  the  design  and  engineering  supervision  of  the  building. 

In  the  four-day  trial  that  ended  on  Thursday,  the  judge  instructed  the  jury 
to  decide  whetlier  the  architects  and  engineers  had  been  negligent.  The  jury 
held  that  they  were.  Lawyers  for  the  two  lirms  said  that  they  would  appeal. 


U.S.  District  Court, 
Eastern  District  of  Virginia, 

Alexandria,  May  7,  1975. 
Hon.  Edward  H.  Levi. 

U.S.  Attorney  General,  Department  of  Justice, 
Washington,  D.C. 

Sir  :  The  Federal  Grand  Jury  apiiearing  before  this  Court  requests  that  a  Spe- 
cial Prosecutor  be  appointed  based  on  testimony  heard  on  May  7.  1975. 

The  purpose  of  this  appointment  is  to  investigate  alleged  illegal  activities  in- 
volving possible  cover-ups  by  local  and  Federal  officials  centered  around  the  col- 
lapse of  the  Skyline  Towers  Buildings  at  Baileys  Crossroads,  Virginia. 
Yours  very  truly, 

Marie  C.  Caber,  Acting  Foreman. 


[From  the  Northern  Virginia  Glohe,  October  9,  1975] 
Justice  Tells  Juries  No  Skyline  Prober  Needed 

(By  Steve  Bates) 

Two  Alexandria-based  federal  grand  juries  have  been  told  by  at  least  one  U.S. 
Justice  Department  attorney  that  a  special  Skyline  prosecutor  should  not  be 
appointed  because  the  sijecial  Watergate  grand  jury  is  the  appropriate  body  to 
probe  allegations  surrounding  the  1973  high-rise  collapse. 

But  according  to  court  documents  and  correspondence,  the  Watergate  grand 
jui'y  went  out  of  existence  a  month  before  one  of  the  two  Alexandria  juries  was 
briefed  by  Justice,  the  Watergate  jury  did  not  have  time  to  adequately  consider 
citizen  allegations  about  Skyline,  and  that  jury  was  empowered  to  deal  only  with 
the  political  contributions  aspects  of  two  local  citizens'  charges. 

Citizen  activists  Aryln  Unzieker  of  Annandale  and  .Julian  llolmos  of  Friendly. 
Md.  have  asked  a  number  of  federal  and  state  grand  juries  to  probe  the  reasons 
for  the  1973  P.nilcys  Crossroads  high-rise  collapse  that  killed  over  a  dozen  men. 

They  have  also  presented  allegations  of  a  local  and  federal  cover-up  of  the  rea- 
son for  the  collajjse,  illegal  political  campaign  contributions  made  by  the  three 
princii)le  officers  of  the  Skyline  construction  firms,  and  federal  cover-up  of  the 
contributions  violations. 

In  response  to  Holmes'  testimony  on  these  matters  on  May  7.  197.".  the  regular 
grand  jury  sitting  in  the  Alexandria  federal  courthouse  formally  asked  U.S. 
Attorney  General  Edward  H.  Levi  to  appoint  a  special  prosecutor  in  the  case. 

The  jury  wrote  Levi  on  May  7,  "The  i)urposp  of  this  a]ii)ointm('nt  (a  special 
prosecutor)  is  to  investigate  alleged  illegal  activitie.']!  involving  possible  cover- 
ups  by  local  and  federal  officials  centered  around  the  collapse  of  the  Skyline 
Towers  Buildings  at  Baileys  Crossroads.  Virginia." 

Two  weeks  ago  Justice  released  a  copy  of  the  grand  jury's  letter  to  The  Globe, 
which  had  fded  a  Freedom  of  Information  Act  request  and  successfully  appealed 
a  preliminary  refusal  of  that  request. 

According  to  .Justice  press  spokesman  .John  Riisscll,  the  department  had  re- 
sponded verbally  to  the  jury's  letter  by  sending  "someone  to  testify  to  the  first 
(Alexandria)  grand  jury." 

Russell  said  he  understands  that  grand  jury  was  "satisfied"  by  tlie  testimony, 
and  tliat  when  a  subsequent  regidar  Alexandria  grand  jury  expressed  an  interest 
in  the  case,  Justice  told  the  new  jury  of  the  previous  jurys  apparent  reaction. 


9195 

Russell  declined  to  elaborate  further  on  Justice  testimony  at  the  grand  jury. 

In  response  to  Holmes'  offer  to  testify  before  the  current  Alexandria  grand 
jury,  that  jury's  foreman  wrote  Holmes  on  Sept.  5  that  an  unnamed  Justice  at- 
torney advised  the  jury  that  "the  Attorney  General  has  submitted  the  transcript 
of  your  prior  testimony  before  the  previous  (Alexandria)  grand  jury  to  the 
special  AVatergate  grand  jury." 

"As  far  as  the  current  grand  jury  is  concerned,"  the  Alexandria  foreman  con- 
tinued, "the  matter  is  in  the  proper  hands,  and  we  do  not  think  it  proper  or  neces- 
sary for  you  to  appear  before  us." 

The  Watergate  grand  jury  went  out  of  existence  on  July  3  and  was  empowered 
only  to  pursue  specific  allegations  of  criminal  conduct  in  the  Watergate  affair 
and  related  political  contributions. 

Outgoing  Watergate  Special  Prosecutor  Henry  Ruth  acknowledged  in  an  Aug. 
29  letter  to  Rep.  Marjorie  S.  Holt  of  Maryland,  Holmes'  representative  in  Con- 
gress, that  the  Watergate  grand  jury  heard  testimony  from  Holmes  and  Unzicker 
•on  political  gifts  by  Skyline  officers  Charles  E.  Smith,  Robert  Smith  and  Robert 
Ki>god. 

Ruth  wrote  Holt  in  response  to  inquires  from  Holmes,  "The  grand  jury  fully 
considered  this  matter  and  .  .  .  did  not  return  any  indictments." 

But  according  to  a  May  9  letter  from  the  foreman  of  the  Watergate  grand  jury 
to  Holmes,  in  which  he  and  Unzicker  were  invited  to  testify  on  the  contributions, 
the  allegations  raised  "are  very  serious  and  may  require  many  months  of  investi- 
gations before  a  decision  concerning  'probable  cause'  could  be  made." 

"Therefore,"  tlie  Watergate  foreman  concluded,  "we  are  uncertain  whether  we 
<?an  reach  a  conclusion  during  tlie  remainder  of  our  term." 

The  jury  did  not  meet  many  times  between  Holmes'  and  Unzickers'  June  12 
testimony  to  them  and  their  July  3  expiration.  During  that  time  its  main  order 
of  business  was  Watergate-related  allegations,  requiring  two  jury  members  to 
travel  to  the  west  coast  to  take  testimony  from  former  President  Richard  Nixon. 

Holmes  said  he  has  written  the  current  Alexandria  grand  jury  that  it  was 
"apparently"  given  false  information  about  the  duration  and  scope  of  Watergate 
grand  jury's  probe  of  Skyline.  He  said  he  is  asking  the  new  Alexandria  jury  to 
talve  sworn  testimony  from  him  and  certain  "self-serving  Justice  Department 
personnel"  regarding  discrepancies  in  the  case. 

Alexandria  ILS.  Attorney  William  Cummings.  court  administration  personnel 
and  clerks  office  personnel  have  not  returned  a  reporter's  calls  on  Skyline 
matters. 

Legal  observers  say  the  current  Alexandria  grand  jury  or  a  federal  judge  can 
appoint  a  special  prosecutor  for  Skyline,  although  funding  and  logistical  prob- 
lems would  have  to  be  overcome. 

Says  Holmes,  if  the  current  Alexandria  grand  jury  again  declines  to  pursue 
the  matter,  he  will  "go  elsewhere  with  tlie  information  if  necessary." 


APPEXDIX 

U.S.  Department  of  Justice  JIemokandum 

To :  Ronald  L.  Gainer  Office  for  Improvements  in  the  Administration  of  Justice. 
From  :  John  M.  Beal,  Office  for  Improvements  in  the  Administration  of  .Justice. 
Subject :   The   Impact   on   the  Federal  Courts   of  Enactment  of  the  Proposed 
Criminal  Code. 

February  10,  1977. 
This  memorandum  examines  the  impact  that  enactment  of  the  proposed  recodi- 
fication of  the  federal  criminal  law  may  lie  expected  to  have  on  the  courts  and 
the  judiciary.  Section  A  discusses  tlie  potential  problems  that  could  result  from 
enactment  of  the  Code.  Section  B  examines  the  experiences  of  the  courts  in  several 
states  where  codification  of  tlie  criminal  law  has  recently  taken  place. 

A.    IMPiACT    OF    THE    CODE    ON    THE    FEDERAL    JUDICIARY 

(1)  Will  the  proposed  Code  increase  the  federal  district  courts  caseload? 

The  proposed  Code  should  not  increase  the  number  of  criminal  cases  in  the 
federal  district  courts.  The  number  of  cases  filed  is  a  function  of  the  investiga- 
tive and  prosecutorial  decisions  made  by  federal  investigators  and  Department  of 
Justice  attorneys.  Whether  the  present  law  or  the  proposed  code  is  in  effect 


9196 

should  not  aflfect  the  number  of  eases  brought.  Likewise,  the  number  of  appeals 
filed  is  not  likely  to  be  markedly  affected  by  the  enactment  of  the  recodification. 
A  defendant  who  wishes  to  appeal  a  findine:  of  guilty  following  a  trial  can  almost 
invariably  locate  issues  to  raise.  This  would  not  change  under  the  new  code.  Xor 
is  there  a  sound  basis  for  expecting  the  number  of  appeals  following  pleas  of 
guilty  to  increase  consequent  to  recodification.  These  suppositions  are  supported 
by  the  experience  of  states  that  have  codified  their  criminal  law,  as  described  in 
Section  B.  below. 

(2)  Will  the  proposed  Code  increase  the  federal  court  workload? 

(i)  Long  Term  Effect.  In  the  long  term  the  proposed  Code  will  lessen  the  work 
per  criminal  case  of  the  federal  courts.  This  will  be  the  result  of  simplification 
of  the  law  and  elimination  of  some  present  procedures. 

There  is  simplification  of  both  general  terminology  and  definitions  of  offenses. 
For  example,  the  present  federal  criminal  law  contains  .some  79  culpability  terms 
that  are  undefined.  In  each  case  the  burden  is  placed  upon  the  courts  to  define 
these  terms  and  their  meanings  within  each  statute.  Under  the  new  code  there 
would  be  only  four  carefully  defined  terms. 

With  respect  to  definitions  of  offenses,  federal  law  contains  some  70  theft 
offenses :  80  forgery,  counterfeiting,  and  related  offenses ;  .50  sections  covering 
perjury  or  false  statements  :  and  approximately  70  arson  and  property  destruction 
offenses.  In  the  proposed  code  all  270  of  these  offenses  would  be  covered  in  fourteen 
sections. 

In  addition  to  simplification,  consistency  of  terminology  is  maintained 
throughout  the  proposed  revision.  The  result  of  this  increased  simplicity,  clarity, 
and  con.sistency  will  be  that  both  trial  and  appellate  courts  will  have  less  work 
in  interpreting  the  law  than  at  the  present  time.  ThL*!  ^^ill  apply  to  such  matters 
as  selection  of  .lury  instructions,  determination  of  the  statute  most  applicable 
to  particular  conduct,  and  determination  of  whether  particular  conduct  is  en- 
compassed by  a  given  statute. 

Other  aspects  of  the  proposed  Code  will  eliminate  several  types  of  cases  and 
procedures.  Particularly,  the  decriminalization  of  the  po.'^session  of  small  amounts 
of  marijuana  will  eliminate  one  category  of  cases,  the  obviation  of  the  need  to 
prove  jurisdiction  to  the  jury  will  save  trial  time  in  litigated  criminal  cases, 
and  the  provision  for  limited  appellate  review  of  sentences  is  expected  to  reduce 
the  number  of  post  trial.  api>ellate.  and  collateral  attacks  on  convictions  which 
are,  in  fact,  usually  indirect  efl'orts  to  obtain  sentence  review. 

(ii )  Short  Term  Effect.  It  is  recognized  that  the  adoption  of  the  proposed  Code 
would  result,  after  the  effective  date,  in  the  necessity  for  the  courts  to  provide 
interpretations  of  terminology  used  and  oft'enses  created.  However,  many  aspects 
of  the  Code  and  its  supporting  material  will  minimize  the  extent  of  such  inter- 
pretive work.  Moreover,  the  .savings  in  time  that  the  Code  will  otherwise  bring, 
even  immediately  upon  its  enactment,  will  substantially  offset  any  interpretive 
burden.  Specifically,  there  is,  first  of  all.  great  consistency  and  repetition  of 
terminology  throughout  the  proposed  Code.  Coiise(iu('ntly.  relatively  few  terms 
will  require  interin-etation,  and  the  initial  interpretation  of  a  term  in  one  con- 
text will  facilitate,  or  even  eliminate  the  need  for  sub.sequent  interpretation 
elsewhere  in  the  Code. 

Secondly,  much  of  the  language  of  the  Code  is  copied  directly  from  current 
law.  It  has.  therefore,  already  been  interpreted.  For  example,  the  substanc(>  of 
the  drug  offense  i)rovisions  of  the  proi)oso{l  Code  are  taken  directly  and  exactl.v 
from  existing  law.  except  that  ])ossession  of  small  amounts  of  marijuana  is 
decriminalized  federall.v,  and  distril)ution  of  controlled  substances  is  subsumed 
in  the  pos.session  sections,  thereby  eliminating  the  need  to  i)roA'e  intent  to  dis- 
tribute or  sell.  Thus,  existing  interpretations  of  controlled  suh.stances  law  would 
apply  to  tlie  j)roi)()sed  (Vt(l(>,  some  cases  would  be  eliminated,  and  a  difiicuit  issue 
presented  in  many  current  cases  would  cease  to  ari.se.  The  significance  of  the 
continuity  in  this  area  is  evident  from  the  fact  that  in  fiscal  197.").  of  4.1X7 
criminal  cases  filed  in  the  U.S.  Court  of  Appeals,  1,322  were  for  narcotics 
offenses. 

Third,  the  Congress  has  been  preparing  a  extraordinarily  careful  and  exten- 
sive legislative  history  for  the  projjoswl  Code,  drafted  In  large  part  b.v  experienced 
ai)i)ellate  attorneys.  Congressional  intent  is  set  forth  explicitly  and  in  great  de- 
tail, even  to  the  extent  of  citing  particular  ca.ses  which  the  Congress  intends 
should  continue  to  be  controlling. 


9197 

Finally,  with  the  exi>ected  two  year  delay  between  enactment  and  effectuation, 
there  will  be  ample  time  for  preparation  to  minimize  the  burden  of  the  Code  on 
the  Courts.  This  will  provide  full  opportunity  for  the  drafting  and  approval  of 
standard  jury  instructions;  for  familiarization  and  training  of  judges,  prose- 
cutors, and  defense  attorneys;  and  for  preparation  by  the  Department  of  Justice 
before  the  effective  date  of  full  briefs  on  all  the  major  points  of  law  in  the  Code 
that  differ  from  current  law.  This  last  activity  has  already  begun. 

In  short,  the  proposed  Code  will  bring  great  long  term  benefits  and,  with 
proper  preparation,  will  impose  minimal  short  term  burdens  on  the  courts.  These 
expectations  are  supported  by  an  examination  of  the  experience  of  several  states 
that  have  recently  codified  their  criminal  law. 

B.    STATE    EXPERIENCE 

An  examination  of  the  experiences  of  several  states  that  recently  codified  their 
criminal  law  indicates  that  the  courts  of  those  states  had  Uttle  increase  in 
workload  because  of  the  codification.  Of  course,  almost  all  trial  and  appellate 
courts  have  been  experiencing  increasing  caseloads  during  the  past  decade.  But 
it  appears  that  codification  has  not  been  a  contributing  factor  to  the  generally 
constant  increases. 

(1)  Nciv  York. — Codification  of  the  criminal  law  was  effective  in  New  York 
in  September,  1967.  Volume  300  of  the  New  York  Supplement  contains  reports  of 
212  criminal  cases  in  trial  and  first  level  appellate  courts  reported  during  1969, 
almost  all  of  which  came  under  the  new  code.  Only  13  of  the  212  cases  involved 
interpretations  of  the  new  code.  Excluding  one  case  with  an  eleven  page  opinion 
and  another  which  ran  eight  pages,  the  cases  involving  code  interpretations 
averaged  less  than  two  pages.  The  other  appeals,  involving  issues  such  as  search 
and  seizure,  confessions,  and  sutficiency  of  the  evidence,  were  resolved  under  the 
new  code  just  as  the.v  would  have  been  under  the  old  law.  The  new  code  thus 
does  not  appear  to  have  significantly  increased  the  workload  of  New  York  state 
judges. 

The  foregoing  conclusion  was  supported  by  Judge  Richard  Eartlett,  Chief 
Administrative  Judge  of  the  New  York  Trial  Courts,  and  Judge  Harold  Stevens, 
Chief  Judge  of  the  First  Department  of  the  Appellate  Division  of  the  New  York 
Supreme  Court.  Judge  Bartlett  said  that  while  some  construction  of  new  language 
was  necessary,  the  volume  of  cases  did  not  increase  and  the  code  had  a  minimal 
overall  impact  on  the  workload  of  the  courts.  He  said  he  was  confident  that  this 
is  the  opinion  of  New  York  judges  generally.  Judge  Stevens  echoed  this  opinion, 
stating  that  in  his  opinion  the  effectuation  of  the  code  did  not  measurably 
affect  the  workload  of  the  courts. 

Another  perspective  on  the  effect  of  the  code  has  been  provided  by  the  district 
attorney  for  Schnectedy  County,  who,  in  a  law  review  article,  evaluated  the  effect 
of  codification  after  two  years  of  experience.  He  concluded  that  the  codification 
led  to  more  efficient  administration  of  justice  and  improved  enforcement  of  the 
law.  He  attributed  these  improvements  to  a  simplification  of  the  law  and  a  great 
increase  in  its  internal  coherence  and  consistency.  This  made  it  easier  for  police 
officers,  prosecutors,  judges,  and  jurors  to  understand  the  law,  and,  tlierel)y,  to 
more  effectively  and  efficiently  fulfill  their  respective  responsibilities.  (H.  Levine, 
"The  New  York  Penal  Law :  A  Prosecutor's  Evaluation,"  18  Buffalo  L.  Rev.  269, 
1969). 

In  sum,  the  evidence  of  the  New  York  experience  with  codification  indicates 
that  it  did  not  noticeably  add  to  the  burden  of  the  courts. 

(2)  Georgia. — Codification  in  Georgia  was  effective  July  1,  1969.  An  inquiry 
into  the  effect  of  codification  on  the  workload  of  the  courts  reveals  that  there 
has  been  no  appreciable  impact.  The  number  of  criminal  cases  filed  with  the 
Georgia  Court  of  Appeals  during  the  codification  period  is  presented  in  Table  1. 


TABLE  1.- 

-GEORGIA  COURT  OF  APPEALS 

FILINGS 

Year 

1968 

1969 

1970 

1971 

1972 

1973 

1974 

1975 

All  cases 

Criminal  cases 

842 

130 

826 
143 

877 

142 

951 
208 

931 
248 

1,137 
346 

1,152 
348 

1,547 
520 

9198 

From  Table  1  it  can  he  seen  that  the  number  of  criminal  cases  filed  with  the 
Court  of  Appeals  has  been  increasing  rapidly  but  relatively  constantly  since  1970. 
This  suggests  that  the  codification  did  not  result  in  a  sharp,  temporary  increase  in 
work  as  a  consequence  of  questions  of  interpretation  created  by  the  new  code. 

This  conclusion  is  buttressed  by  an  examination  of  all  the  criminal  cases  re- 
ported in  Volume  124  of  the  Georgia  Appellate  Reporter,  which  covers  approxi- 
mately half  of  the  cases  decided  by  the  Georgia  Court  of  Appeals  in  1971.  There 
were  76  criminal  cases.  Of  those  only  14  involved  questions  of  interpretation  of 
the  new  code,  although  almost  all  of  the  76  cases  involved  incidents  that  took 
place  after  the  effective  date  of  the  new  code.  Xor  do  the  cases  presenting  ques- 
tions of  interpretation  appear  to  present  more  involved  problems.  Excluding  one 
unusual  case  with  a  23  page  opinion,  the  13  cases  presenting  new  code  questions 
had  opinions  averaging  2.6  pages,  while  all  75  cases  averaged  2.3  pages. 

The  Chief  Judge  of  the  Courts  of  Appeals,  John  Sammons  Bell,  who  has  occu- 
pied that  position  since  prior  to  the  effectuation  of  the  code,  was  asked  in  a  tele- 
phone conversation  about  the  impact  of  the  codification  on  the  courts.  He  said 
that  he  believes  that  the  codification  actually  made  the  resolution  of  legal  matters 
easier.  He  said  that  there  were  some  interpretive  questions  presented  concerning 
the  codified  law,  but  no  more  than  had  regularly  been  the  ca.se  under  the  prior 
law. 

Thus,  from  case  reports  and  judicial  opinion,  it  appears  that  in  Georgia  the 
1969  codification  did  not  place  a  significant  burden  upon  the  courts. 

(3)  Ohio. — The  Ohio  codification  was  effective  January  1,  1974.  The  impact  of 
the  codification  on  the  workload  of  the  Ohio  courts  does  not  appear  to  have  been 
substantial. 

The  criminal  caseload  of  the  Ohio  felony  trial  courts  and  the  Ohio  Supreme 
Court  appear  to  have  been  affected  very  little  by  the  effectuation  of  the  new  Code. 
Table  2  shows  the  post  indictment  felony  terminations  in  the  criminal  trial  courts 
in  Ohio  and  the  criminal  filings  in  the  Ohio  Supreme  Court  (excluding  a  small 
number  of  original  actions). 

TABLE  2.— OHIO  CRIMINAL  CASES 

1973  1974  1975  1976 

Common  Pleas  Court  post  indictment  felony  terminations.  25,833  28,220  31,230  (') 

Ohio  Supreme  Court  motions  for  leave  to  appeal  in 
criminal  cases: 

Filed 330  306  378  465 

Granted _.. 19  22  15  20 

>  Unavailable. 

The  figures  in  Table  2  suggest  that  the  Ohio  Supreme  Court  filings  reflect 
the  constant  increase  in  felony  cases  in  the  trial  courts.  The  relatively  constant 
nniulier  of  motions  for  leave  to  appeal  granted  by  the  Supreme  Court  after 
codification  indicates  that  there  was  not  a  great  upsurge  in  unresolved  issues 
created  by  the  new  Code. 

An  examination  of  the  criminal  cases  reported  in  volumes  45  of  the  Ohio  State 
Rejiorts  (2d)  and  4.">  of  the  Ohio  Ajtpellate  Reports  (2d)  reveals  that  th(>  new 
code  had  a  very  limited  impact  on  (lie  woi-kload  of  tlie  courts.  Tlie  Ohio  State 
Reports  volume,  coTitaining  tlie  decisions  announced  by  the  Ohio  Supreme  Court 
in  .January  through  March  1976,  contains  eight  crimiiiiil  cases.  Only  three  of 
the  eight  involve  interpretations  of  the  new  code,  with  one  of  the  three  being  a 
siieedy  trial  fiuestion.  The  three  cases  involving  the  new  code  averaged  eight 
pages  apiece,  while  all  eiglit  cases  averaged  6.5  pages. 

The  Ohio  Appellate  Reports  volume  contains  all  the  reported  decisions  of  the 
Ohio  Courts  of  Appeals  from  January  through  June,  1976.  There  are  25  criminal 
ca^es.  witli  .seven  involving  the  new  code  and  two  of  the  seven  i>resenting  only 
s])eedy  trial  r^uestions.  The  cases  involving  the  uvw  code  average  6.1  pages,  while 
all  25  criniinai  cases  average  5.1  pages.  These  figures  are  particularly  significant 
because  in  Ohio,  appellate  cases  are  generally  reported  otily  when  new-  or  imi)or- 
tant  questions  of  l;iw  are  decided.  Thus,  during  the  period  covered  by  volume 
45  of  the  Appellate  Reports  many  additional  appellate  court  cases  were  decided 
but  did  not  involve  interpretative  or  other  significant  issues  and  were  not 
reported. 

It  appears  from  the  filings  and  reported  cases  that  in  Ohio  codification  did 
not  significantly  increase  the  workload  of  the  court.s. 


9199 

(4)  Oilier  States^. — Less  extensive  information  has  been  obtained  from  four 
other  states  which  recently  codified  their  criminal  law. 

(i)  Kansas. — Codification  was  effective  in  1970.  The  number  of  criminal  filings 
in  the  state  Supreme  Court  each  year  continued  to  increase  at  the  same  rate 
after  codification  as  it  had  before,  as  Figure  1  s^hows.  The  Supreme  Court  is  the 
only  appellate  court  in  Kansas,  there  being  no  intermediate  appellate  tribunal. 

Figure  1. — Criminal  cases  filed  annually  in  the  Kansas  Supreme  Court. 


TOO  L 
Csfss 

50  L 


mi-     lis; 


(ii)  //fltran.— Codification  was  effective  in  1973.  As  table  3  shows,  the  rate  of 
criminal  filings  has  grown  at  a  steady  rate  since  before  codificatiou.  As  in  Kansas, 
there  is  no  intermediate  appellate  coiirt  in  Havraii. 


TABLE  4.- 

-HAWAII  SUPREME  COURT  CRIMINAL  CASE  FILINGS 

Year 

1972                  1973                  1974 

1975 

1976 

Number  of  cases 

28                     41                     69, 

78 

9 

(iii)  /ZZmof^.— Codification  was  effected  between  1961  and  1963.  Tlie  conse- 
quence of  codification  was  discussed  with  retired  Illinois  Supreme  Court  Justice 
Walter  Schaefer  and  sitting  .Justice  Robert  Underwood,  both  on  the  Court  at 
the  time  of  codification.  They  both  said  that  while  questions  of  interpretation 
did  arise,  neither  those  questions  nor  any  other  aspects  of  tlie  codification  had  a 
significant  impact  on  the  appellate  workload.  .Justice  Schaefer  added  that  the 
Illinois  Supreme  Court  promulgated  certain  rules  of  criminal  and  appellate  pro- 
cedure to  ease  the  transition  to  the  new  code. 


C.    CONCLUSION 


The  fundamental  purpose  of  the  proposed  recodification  of  the  federal  criminal 
law  is  to  significantly  enhance  the  quality  of  federal  criminal  justice.  As  with  any 
major  development  in  the  law.  a  degree  of  adjustment  must  be  made  at  the  time 
of  transition.  With  the  recodification,  however,  the  availal.le  evidence  indicates 
that  the  burden  of  adjustment  on  tlie  federal  courts  will  be  minimal. 


9200 

The  Code  has  been  carefully  drafted  to  avoid  litigation  on  questions  of  inter- 
pretation, there  will  be  ample  time  for  full  preparation  for  the  transition,  and 
the  experience  of  the  Staites  with  criminal  law  codification  is  that  the  burdens 
placed  upon  the  courts  by  codification  are  not  substantial. 

The  permanent  benefits  that  will  lie  brought  l)y  the  new  Code,  both  to  the 
public  aiid  all  segments  of  the  criminal  justice  system,  including  the  courts,  are 
tuideniably  great.  The  possible  short  term  burdens  are  thus  not  such  as  to  war- 
rant delay  in  the  enactment  of  this  important  reform. 


Sentencing  Reform  :  The  Probable  Effects  on  the  Federal  Criminal  Justice 
System  of  Abolishing  Indeterminate  Sentences  and  Parole  in  the  Context 
of  a   Sentencing   Guidelines   System 

(By  Karen  Skrivseth,  OfBce  for  Improvements  in  the  Administration  of  Justice, 

United  States  Department  of  Justice) 

I,  introduction 

There  are  under  consideration  in  the  Congress  and  in  the  Department  of  Jus- 
tice a  number  of  proposals  to  reform  sentencing  practices  in  the  federal  criminal 
justice  system.^  A  common  feature  of  the  pending  proposals  is  that  each  would 
replace  the  existing  discretionary  and  indeterminate"  sentencing  scheme  with  a 
guidelines  sentencing  system.  While  these  proposals  differ  in  detail,  they  all 
reflect  a  growing  concern  that  the  rehabilitation  model — the  theoretical  basis  for 
indeterminate  sentencing — is  unsatisfactory  from  a  sociological  point  of  view, 
that  it  produces  unwarranted  disparities  in  sentencing,  and  that,  in  fact,  it  is  no 
longer  used  as  the  sole  or  even  primary  basis  for  determining  the  appropriate 
type  and  length  of  sentences. 

In  broad  terms,  the  current  sentencing  system  operates  at  two  stages.  First, 
the  judge  determines  whether  a  convicted  defendant  should  lie  .■sentenced  to  a  term 
of  imprisonment,  and,  if  so,  imposes  the  maximum  term  to  be  served  ;  later,  the 
Parole  Commission  fixes  the  actual  amount  of  time  to  be  served.  Briefly  stated, 
the  rationale  for  this  approach  is  that  it  permits  and  encoin-ages  rehabilitation 
of  an  offender  by  tailoring  the  length  of  his  sentence  to  his  individual  needs  and 
progress  while  institutionalized.  In  recent  years,  however,  a  growing  number 
of  studies  have  undermined  the  rationale  for  individualized,  indeterminate  sen- 
tencing by  demonstrating  that  it  is  impossible  to  determine  when  or  whether 
rehabilitation  has  occurred,  if  indeed  it  can  be  induced  at  all.^  For  this  reason, 
and  because  indeterminate  sentencing  is  seen  as  resulting  in  iniwarranted  dis- 
parity in  sentences,  it  has  been  proposed  that  fixed  or  determinate  terms  be  set 
by  the  judge  at  the  time  of  sentencing  pursuant  to  guidelines  that  reflect  the 
characteristics  of  the  offense  and  of  the  otTender.  Although  the  guidelines  sen- 
tencing proposals  now  being  considered  would  not  exi)licit.v  alter  the  existing 
parole  release  system,  they  obviously  raise  the  question  whether  that  system  is 
tlie  best  means  of  setting  a  release  date.* 

This  paper  reviews  the  existing  indeterminate  sentencing  system,  discusses 
the  major  proposals  for  a  guidelines  sentencing  system  and  examines  the  prob- 
able effects  of  abolishing  the  parole  system  in  the  context  of  a  guidelines  system. 


1  See,  e.g.,  the  sentencing  provisions  contained  in  the  proposed  Federal  Crlnjinal  Code. 
S.  14.H7,  introdncod  in  the  Sonnte  by  Scn.'itors  Meriollan  and  Kennedy  on  May  '2.  I!t77.  and 
H.li.  (iSf)!),  iiitniduccil  in  the  House  of  Kei)reseutatives  liy  Congressman  Kodino  on  May  3, 
1077.  See  also  note  42  infrti. 

-As  used  in  this  [taper,  an  "indeterminate"  sentence  means  a  sentence  to  Iniprisoninent 
whicli  sets  tlie  uitiicr  limit  of  tlie  term  tlie  sentenced  dot"endant  may  liave  to  serve,  witli  tlie 
sentenced  defendant's  actual  release  date  to  he  controlled  by  factors  taking  phice  after 
tlie  sentence  is  imposed.  A  "determinate"  sentence,  l)y  contrast,  means  !i  sentence  to  im- 
prisonment wlilcli  sets  the  exact  term  tiie  sentenced  defendant  actually  will  have  to  serve. 

=<  See  I'latner,  The  Rchahilitntion  of  I'linishmcut,  44  The  rublie  Interest  104  (l!l7(i): 
Morris,  The  Future  of  Iiiii)ri/<ontnv>it,  pp.  l.")-18  (1074)  ;  Wilson,  ThinUinq  About  Crime, 
I)p.  170-172  (l!»7r))  ;  Frankel,  Vriminnl  Sentences:  Law  Without  Order,  pp.  SO-  102  (1073)  ; 
von  Ilirseh,  The  Aims  of  Jmi)rixonment,  71  Current  History  1   (,Tuly/.\ugust  107C). 

*  .V  number  of  recent  publications  suggest  that  iiarole  in  its  present  form  !)<>  abolished 
in  the  context  of  a  determinate  sentencing  system.  See,  e.g..  O'Donnell,  Churgin,  and  Curtis, 
Touiird  a  .luxt  and  Effect  ire  Sentencing  Si/ntcin:  Af/enda  for  LefiisUitire  Ncforin.  pj).  08-71 
(1077)  ;  .Joint  Committee  on  the  Legal  Status  of  Prisoners.  American  Bar  Association.  The 
Ije.qnl  Status  of  Prinonerx,  §  0.1,  14  Am.  Crim.  L.  Kev.  5S0  (1077)  :  von  Hirsch,  Dnino 
Justice:  The  Choice  of  Punishments,  p.  IS  (1076)  ;  Xeier,  Crime  and  runislimcnt:  A  Radi- 
cal Solution,  pp.  197-98  (1976). 


9201 

It  concludes  that  all  of  the  ueces^sary  functions  now  performed  by  the  parole 
system  could  adequately  be  replaced  under  a  guidelines  sentencing  system  and 
that  additional  advantages  to  the  criminal  justice  system  would  result  if  the 
parole  system  were  abolished. 

II.    THE    EXISTING    FEDERAL    SENTENCING    SYSTEM 

A.  GcncTallif. — The  sentencing  provisions  in  current  federal  law  were  originally 
enacted  on  the  basis  of  the  theory  that  a  convicted  person  could  be  "rehabilitated" 
if  he  were  "treated"  for  the  conditions  that  led  him  to  engage  in  criminal  activity, 
and  that  his  sentence  should  )ie  indeterminate  in  length  in  order  that  the  prison 
system  could  provide  a  corrections  program  tailored  to  his  individual  needs." 
As  a  result,  the  ultimate  disposition  of  a  convicted  offender  is  determined  by  two 
factors,  the  sentence  initially  imposed  by  the  judge  and  the  subsequent  working 
of  the  parole  system. 

It  is  up  to  the  sentencing  judge  to  decide  whether  the  defendant  should  be 
placed  on  probation  or  given  a  term  of  imprisonment.  If  imprisonment  seems  war- 
Tanted,  it  is  also  the  prerogative  of  the  sentencing  judge  to  set  the  maximum 
amount  of  time  to  be  served  before  the  prisoner  my  be  released,  and,  if  the  judge 
wishes,  he  may  further  specify  a  part  of  the  term  of  imprisonment  as  the  minimum 
amount  of  time  to  be  served  before  the  prisoner  becomes  eligible  for  parole.  The 
amount  of  time  actually  served  by  the  prisoner,  however,  is  determined  by  the 
Parole  Commission.  Theoretically,  this  determination  should  be  made  on  the  basis 
of  his  progress  toward  "rehabilitation."  but  in  practice  it  is  made  today  almost 
exclusively  for  the  purpose  of  mitigating  unwarranted  disparities  in  sentences 
actually  served. 

B.  Unicarranted  Disparities  in  Sentencing — The  Role  of  the  Parole  Commis- 
sion.— Unwarranted  disparities  iu  sentencing  occur  when  different  sentences  are 
imposed  on  defendants  who  are  similarly  situated  and  who  committed  the  same 
offenses  under  like  conditions.  Such  disparities  occur  chiefly  because  of  the  com- 
plexity of  the  sentencing  provisions  iu  current  law  and  because  of  the  absence  of 
guidance  to  sentencing  judges.  Under  current  law,  the  sentencing  judge  deter- 
mines whether  or  not  to  impose  a  term  of  imprisonment  solely  on  the  basis  of  his 
own,  usually  unarticulated,  theory  of  sentencing.*^  He  might  decide,  for  example, 
that  a  person  convicted  of  a  major  business  fraud  would  not  benefit  from  incarcer- 
ation and  sentence  him  to  probation  instead,  while  concluding  that  a  relatively 
uneducated  defendant  convicted  of  a  minor  theft  should  be  imprisoned  so  that  he 
could  be  "rehabilitated"  through  job  training  and  educational  programs.  More- 
over, even  when  a  term  of  imprisonment  seems  warranted,  the  statutes  generally 
specify  only  a  maximum  term  of  imprisonment,  giving  the  judge  no  guidance  as 
to  the  sentence  that  should  actually  be  set  in  a  particular  case.  As  a  result,  dis- 
parities occur  not  only  between  sentences  imposed  by  judges  of  the  same  eourt,'^ 
but  also  between  sentences  imposed  in  different  district  courts.^ 

The  fact  that  judicial  discretion  in  sentencing  is  limited  by  statutes  prescribing 
maximum  penalties  does  little  to  reduce  sentencing  disparities  since  there  are 
often  a  number  of  different  penal  statutes  under  which  a  defendant  may  be  prose- 
cuted for  a  particular  criminal  act,  and  there  are  in  any  criminal  case  a  number 
of  different  sentencing  statutes  that  the  judge  might  use  in  imposing  sentence, 
each  of  which  may  have  a  different  impact  on  the  length  of  time  a  defendant 
will  actually  spend  in  prison.  To  begin  with,  current  federal  criminal  law  con- 
tains numerous  examples  of  inconsistent  maximum  sentences  applicable  to  sub- 


5  See  von  Hirsch,  Doing  Justice:  The  choice  of  Punishments,  pp.  9-10   (1976). 

*  See  Frankel.  Criminal  Sentences:  Law  Without  Order,  p.  21  (1973). 

"Partridge  and  EldridRe,  The  Second  Circuit  Sentencing  Studu:  A  Report  to  the  Judges 
of  the  Second  Circuit,  Federal  Judicial  Center,  August  1974.  Other  studies  showing  signifi- 
cant discrepancies  in  sentences  imposed  hy  judges  in  the  same  geographic  area  include: 
Eugle,  Criminal  Justice  in  the  City,  Temple  University,  1971  (unpublished  Ph.  D.  disserta- 
tion) ;  Hogarth,  Sentencing  as  a  Human  Process  (1971)  ;  and  Chiricos  and  Waldo,  "Socio- 
economic Status  and  Criminal  Sentencing :  An  Empirical  Assessment  of  a  Conflict  Proposi- 
tion," 40  Am.  Sociological  Rev.  6  (1975). 

s  Bureau  of  Prisons  discharge  files  for  fiscal  years  1974  and  197.5  show,  for  example 
that  the  average  term  of  imprisonment  Imposed  in  .3.5  cases  of  bank  robbery  in  the  Southern 
District  of  New  York  was  78.7  anonths,  while  for  10  cases  in  the  Western  District  of 
Missouri  the  average  term  imposed  was  1S1.2  months.  See  Attachment  B.  See  also  notes 
64  and  65,  tnfra,  and  accompanying  text.  Studies  that  indicate  disparities  in  sentencing 
between  different  jurisdictions  include  :  Xagel,  The  Legal  Process  from  a  Behavioral  Per- 
siiecfire:  Homewood,  Illinois  (1969)  ;  Chiricos  and  Waldo,  supra,  note  7;  Sutton  "Geo- 
graphical Variations  iu  Federal  Sentencing  Patterns,"  U.S.  Department  of  Justice.  Law 
l^nforcement  Assistance  Administration    (1977)    (unpublished  monograph). 


9202 

stantially  similar  offenses.  For  example,  there  are  more  than  seventy  theft 
offenses  under  current  law,  with  maximum  sentences  ranging  from  one  to  ten 
years."  In  addition,  a  defendant  who  receives  a  regular  adult  sentence,  where 
"the  judge  sets  only  a  maximum  term  of  imprisonment  and  njakes  no  statement 
as  to  parole  eligibility,  will  be  eligible  for  parole  after  service  of  one-third  of  his 
term  of  imprisonment.^"  The  .iudge  can,  however,  specify  under  different  provi- 
sions of  law  that  the  defendant  will  be  immediately  eligible  for  parole;^  or 
that  he  will  be  eligible  for  parole  at  a  specified  time  up  to  one-third  the  term  of 
imprisonment;^  or.  if  the  defendant  is  under  26  years  of  age  at  the  time  of 
sentencing.''^  sentence  him  under  the  terms  of  the  Youth  Corrections  Act,"  as  a 
result  of  which  he  will  be  immtnliately  eligi!»le  for  parole  l)y  operation  of  law.^° 
In  addition,  if  a  convicted  defendant  is  found  to  be  an  addict,  he  may  be  sen- 
tenced for  treatment  under  title  II  of  the  Narcotic  Addict  Kehaliilitation  Act  of 
1960.^"  with  the  result  that  he  may  serve  a  shorter  period  of  imprisonment  than 
he  would  have  had  he  not  been  addicted.  Despite  all  the  possible  types  of  sen- 
tences available  in  current  law.  however,  there  is  no  statutory  guidance  concern- 
ing wheii  a  particular  type  or  length  (if  sentence  would  be  ai)i)riii)riate.  and  tlie 
judge  is  not  required  to.  and  rarely  does,  set  forth  his  reasons  for  imposing  a 
particular  type  or  length  of  sentence. 

To  bring  some  order  out  of  this  chaotic  situation,  the  United  States  Parole 
Commission  ^'  began  in  1972  to  experiment  with  the  use  of  guidelines  to  reduce 
unwarranted  disparity  in  the  terms  of  imprisonment  imposed  by  judges  in 
substantially  similar  cases.^*  Guidelines  have  been  in  use  for  all  federal  prisoners 
eligible  for  parole  since  1973." 

The  latest  version  of  the  guidelines.^"  promulgated  after  enactment  of  the 
Parole  Commission  and  Reorganization  Act  in  1970,-^  appears  in  two  tables,  one 
that  applies  to  regular  adult  offenders  and  one  that  applies  to  convicted  defend- 
ants sentenced  pursuant  to  the  Youth  Corrections  Act  ^"  or  the  Narcotic  Addict 
Rehabilitation  .Act.""  Each  table  "^  consists  of  a  grid  that  grades  offenses  accord- 
ing to  seriousness  in  six  groups  from  "lov.-"  to  "greatest"'  seriousness  from  the 
top  to  the  !)ottom  of  the  table,  and  rar.ks  the  offender  accr'Vdin.g  to  hl'^  "itarole 
prognosis,"  (i.e.,  the  probability  of  his  success  on  parole)  from  '"very  good"  to 
••poor"  across  the  top  of  the  talile."'"'  A  defendant's  "parole  prognosis"  is  deter- 
niincd  I>y  giving  him  a  score  on  each  of  seven  "salient  factors"  relating  to  prior 
criminal  record,  drug  dependence,  and  employment  r"Cord."'' 


■'Sep.  <>.g..  IS  U.S.C.  2SS.  relating  to  false  claims  against  the  Postal  Service,  and  IS 
tl.S.C.  041.  relatinu  to  einliexzleinriit. 

^•^  IS  U.S.C.  42(K'i(nl.  If  the  sentence  to  a  term  of  iniprisoninent  is  a  sentence  to  life 
imprisonnifMil  or  a  sentence  to  a  term  of  iiniirison)nont  of  over  thirty  yonrs.  the  defendant 
wonid  he  eliprihle  for  parole  in  ten  years  if  the  .judpe  si>ecified  only  the  niaximiini  term. 
Citations  to  provisions  of  the  jiarole  laws  are  to  ^I'ctions  of  title  IS  of  the  United  States 
Code  enacted  in  I'nhlie  La^v  l)4-23o  nnless  otherwise  indicated. 

"IS  U.S.C.  420.-)  (h)  (2). 

12  IS  U.S.C.  420r)(h)  (1). 

"IS  U.S.C.   4216. 

"IS  TT.S.C.  500.-)  et  seq. 

15  18   U.S.C.   5017(a). 

1^  IS  U.S.C  4251  et.  seq.  This  is  one  of  (he  few  se-itencinj:  statutes  that  specificall.v  states 
a  pnriiose  of  sentencintr.  It  rerpiircs  a  siiecific  findintr  hy  the  court  that  tlie  convicted  de- 
fendant "is  an  addict  and  is  likely  to  be  rchahilitated  through  treatment  .  .  .".  IS  U.S.C. 
425.?  (a). 

1"  The  United  States  Parole  Commission  was  called  the  United  States  Board  of  Parole 
until  Pnhlic  lynw  !"4-2.'^.'?  became  effective.  For  convenience  the  desisrnntion  "United  States 
Parole  (^oiniiiission"  or  "Parole  Commission"  is  nseil  thi-oufrhont  this  paiier. 

"  Ilofrman  and  Gotf  frcdsoii.  PnroVmq  Policy  fluidelincH-  A  Matter  of  Equity,  June  1973 
(NCCn  Parole  Decision-Maltinjr  Pro.iect  Sunp.  Rep.  No.  f)). 

'"The  original  niirole  ciiii'dines  annear  at  ?,S  F.R.  .".1042  (1973). 

-'0  41   F.R.  ?,7Z1C,   (Scpremher  P..  1970). 

21  Public  Law  04-2.''..'',.  IS  U.S.C.  4201  et  seq. 

2-' IS  TT.S.C.  5005  et  seq. 

2'' IS  U.S.C.  4251  et  seq. 

2*  The  parole  pnidciines  appear  as  .Attachment  A-1  to  this  paper,  and  amended  salient 
factor  score  anpears  as  .\ttnchment  ,\— 2 

='?<5  r.V.U.  §  2  20i-ei.  41   r  '".  r,:-''l   fSoutember  ;;.  1970). 

21  The  list  of  "salient  factors"  was  revised  effective  April  1,  1977,  42  F.R.  12045  (Mar. 
2.  1977).  The  "salient  factors"  were  selected  after  extensive  empirical  research  concerning 
the  history  and  characteristics  of  defendants  released  from  priscm  and  the  relationship  of 
those  characteristics  to  their  relative  ability  to  remain  free  on  parole  without  violation  of 
parole  conditions.  For  discussions  of  the  development  and  revalidation  of  the  salient  factor 
score,  see  TTofTman  and  P.coK-.  Parole  Drrlsmn-Malchui:  A  Slolient  Factor  Sicorc.  T'nited 
States  Board  of  Parole  Research  Unit:  Report  Two  (April  1974)  :  and  HofTman  ani  Beck. 
Research  Note:  IValietit  Factor  S'core  Validation — A  1972  Release  Cohort,  United  States 
Board  of  Parole  Research  Unit :  Report  Eight  (July  1975).  


9203 

For  each  possible  combination  of  offense  characteristics  and  salient  factor 
scores,  the  grid  specifies  a  narrow  range  of  imprisonment  in  terms  of  months. 
In  determining  wliether  to  release  a  prisoner  on  parole,  the  Parole  Commission 
is  retjuired  to  take  into  consideration  the  term  of  imprisonment  recommended 
in  the  guidelines  for  a  person  who  has  been  convicted  of  an  offense  of  the  se- 
verity of  tliat  committed  by  the  prisoner  and  who  has  the  salient  factor  score 
applicable  to  the  prisoner.  Ihe  terms  set  forth  in  the  miidelines  are  not  manda- 
tory, however.  According  to  Parole  Commission  regulations,  "These  guidelines 
indicate  the  customary  range  of  time  to  l>e  served  before  release  for  various 
combinations  of  offense  (severity)  and  offender  (parole  prognosis)  character- 
istics'". .  .  .  [E] specially  mitigating  or  aggravating  circumstances  in  a  particu- 
lar case  may  justify  a  decision  or  a  severity  rating  different  from  that  listed  [in 
the  parole  guidelines.]""^  Currently,  84.4  percent  of  the  persons  released  on 
parole  are  released  after  being  incarcerated  for  the  period  of  time  recommended 
in  the  guidelines.  The  remaining  15.(3  percent  of  persons  who  are  released  on 
pai^ole  serve  terms  of  imprisonment  longer  or  shorter  than  those  recommended 
in  the  guidelines  because  the  Parole  Commission  determines  that  particular 
aggravating  or  mitigating  circumstances  justify  a  period  of  incarceration  dif- 
ferent from  that  recommended  in  the  guidelines."" 

Vvliile  the  paroie  guidelines  have  substantially  reduced  miwarranted  disparity 
in  the  lengths  of  terms  of  imprisonment,  it  is  impossible  for  the  Parole  Com- 
mission alone  to  eliminate  all  unwarranted  disparity  in  sentences.  For  example, 
it  enn  do  nothing  about  disparity  in  the  decisions  of  sentencing  judges  as  to 
whether  or  not  to  incarcerate  iJersons  convicted  of  particular  offenses,  even 
though  this  may  be  the  area  of  greatest  disparity.™  All  it  can  do  for  the  person 
who  should  never  have  been  sentenced  to  prison  at  all  is  release  him  on  his  date 
of  pai-cle  eligibility  ;  of  course,  it  cannot  cause  the  imprisonment  of  a  convicted 
pers(m  who  should  liave  been  sentenced  to  a  term  of  imprisonment  but  was  not.^ 
Furthermore,  the  Parole  Commission  has  no  authority  to  lengthen  the  sentence 
of  a  pers<!n  sentenced  to  prison  for  too  short  a  period  or  to  shorten  the  term  of 
imprisonment  of  a  person  ineligible  for  parole  until  after  serving  an  unreason- 
ably long  term  of  imprisonment. 

As  noted  above,  under  the  "rehabilitation"  theory  of  sentencing,  the  Parole 
Commission's  task  should  be  to  determine  when  a  prisoner  has  been  rehabili- 
tated and  can  safely  be  released.  To  make  this  determination,  it  should  concen- 
trate on  the  prisoner's  reaction  to  treatment  for  the  conditions  that  led  to  his 
offense.  As  a  practical  matter,  however.  Parole  Commission  determinations  are 
.seldom  influenced  by  a  prisoner's  progress  toward  rehabilitation.  Although  the 
Commhssion's  regulations  provide  that  "the  guidelines  are  estahlished  specifically 
for  cases  with  gijod  institutional  adjustment  and  program  progress,"  ^  the 
parole  guidelines  themselves  do  not  require  the  Commission  to  consider  any  in- 
formation that  was  unknown  at  the  time  of  sentencing  in  evaluating  a  prisoner 
fiir  puriioses  of  parole.''"  ()f  course,  if  the  prisoner's  institutional  behavior  has 
been  so  poor  that  his  forfeited  statutory  good  time  has  not  been  restored,  he  is 
automatically  ineligible  for  parole.^  Only  if  he  has  performed  exceptionally  well 


2- 2S  C.F.R.  §  2.20(b),  41  F.R.  37.322  (September  3,  1976). 

28C.F.R.  §  2.20(cl),  41  F.R.  37322  (September  3,  1976). 

-'••  Meierlioefer.  Tlic  First  Full  Year  of  J.'euioiiiilization:  A  Statistical  Summary,  U.S. 
Board  of  Parole  Research  Unit,  p.  6  (January  1976). 

'■^  X  recently  completed  study  of  the  feasibility  of  sentencing  guidelines  notes  that 
what  the  authors  call  the  "in-out"  decision  is  a  frequently  overlooked  aspect  of  sentencin" 
variation,  and  that  sentencing:  should  be  viewed  as  a  decision  involving  two  steps — first,  the 
decision  whether  to  incarcerate,  and,  .second,  the  decision  as  to  the  length  of  the  sentence 
Willcins  et  al.,  Scntencinci  Giiiflelines:  Structuring  Judicial  Discretion,  Final  Report  on  the 
Feasibiliti/  Study.  October  1976,  pp.  2-3. 

■^  Of  tlie  persons  convicted  of  federal  offenses  in  fiscal  year  1976,  46.1  percent  were 
sentenced  to  terms  of  imprisonment.  1976  Annual  Report  of  the  Director,  Administrative 
Office  of  the  United  States  Courts.  Table  D-7.  Even  among  similar  offenses  there  is  sub- 
stantial disparity  as  to  incarceration.  For  example,  in  fiscal  year  1976,  3S.6  percent  of  the 
persons  convicted  of  "larceny"  or  "theft"  were  sentenced  to  "terms  of  imprisonment,  while 
only  17..">  percent  of  those  convicted  of  "embezzlement"  were  sent  to  prison.  Id..  Table  D-5. 

^3  28  C.F.R.  §  2.20(b),  41  F.R.  37322  (September  3,  1976). 

31  Effective  April  1,  1977.  the  salient  factor  score  contained  no  Item  of  information 
not  known  at  the  time  of  sentencing.  42  F.R.  12045  (March  2.  1977).  Before  that  date, 
the  salient  factor  score  had  included  one  possible  point  for  a  prisoner  whose  parole  release 
plan  was  to  live  with  his  spouse  or  children  or  both.  41  F.R.  37.324  (September  3  1976) 
f-i  28  C.F.R,  §  2.6.  41  F.R.  37320  (September  3,  1976).  This  Is  a  rairiv  unusual  occurrence 
Of  the  pri-soners  for  whom  the  Parole  Commission  heirt  special  review  nearln^s  in  a  one- 
year  period,  11  percent  were  denied  parole  on  the  basis  of  institutional  aiscipllne  proD- 
lems,  but  not  necessarily  problems  that  led  to  forfeiture  ot  good  time. 


9204 

during:  confinement  will  his  term  of  imprisonment  be  reduced  to  a  period  shorter 
than  that  provided  by  the  guidelines/'^ 

The  Parole  Commission's  preoccupation  with  ameliorating  unwarranted  sen- 
tencing disparities  to  the  virtual  exclusion  of  considerations  of  rehabilitation  is 
not  surprising  since  it  has  become  increasingly  apparent  that  the  state  of  knowl- 
edge of  human  behavior  is  such  that  it  is  not  possible  to  determine  whether  or 
when  a  prisoner  has  been  rehabilitated.^  Moreover,  prison  authorities  them- 
selves increasingly  view  indeterminate  sentences  as  counterproductive  in  terms 
of  efforts  at  rehalnlitation  because  they  lower  prisoner  morale  and  hami>er  the 
ability  of  prisoners  to  plan  their  futures.'^ 

III.    DETERMINATE   SENTENCING   PROPOSALS 

A.  Background. — In  the  last  few  years,  increased  attention  has  been  paid  to 
the  problem  of  unwarranted  sentencing  di.siiarity.  As  previously  noted,  in  addi- 
tion to  the  growing  body  of  literature  concerning  problems  with  existing  sentenc- 
ing law,^  the  United  States  Parole  Commission  has  issued  parole  guidelines  to 
reduce  unwarranted  disparity  in  the  lengths  of  prison  terms."*  The  efforts  to 
structure  discretion  in  the  parole  decision  and  the  efforts  toward  legislative 
revision  of  substantive  federal  criminal  laws^"  led  the  Yale  Law  School  to  or- 
ganize a  Workshop  on  Parole  and  Sentencing  to  address  the  problems  of  sentenc- 
ing reform.  The  early  drafts  of  the  Workshop's  study  "  led  to  a  number  of  legi.s- 
lative  proposals  for  the  creation  of  a  Sentencing  Commission  within  the  judicial 
branch  to  promulgate  guidelines  for  use  by  sentencing  judges."  Under  these 
proposals,  guidelines  would  be  applied  at  the  outset  of  the  sentencing  process  to 
reduce  unwarranted  disparity  in  sentencing,  rather  than  leaving  the  problem  to 
the  Parole  Commission  which,  as  stated  above,  is  limited  in  its  ability  to  miti- 
gate all  of  the  disparities  created  initially. 

B.  The  Major  Proposal. — The  major  sentencing  reform  proposal  under  con- 
sideration by  the  Congress  is  contained  in  the  proposed  Criminal  Code  Reform 
Act  of  1977  as  introduced  in  the  Senate  by  Senators  McClellan  and  Kennedy 
(S.  1437)  and  in  the  House  of  Representatives  by  Congressman  Rodino  (II.R. 
6S(>9).  That  proposal  provides  for  the  creation  within  the  judicial  branch  of  a 
United  States  Sentencing  Commission,  the  members  of  which  would  be  desig- 
nated t)y  the  Judicial  Conference  of  the  United  States.'''  The  Commission  would 
liroinulgate  guidelines  recommending  narrow  ranges  of  sentences  for  defendants 
with  a  particular  history  and  characteristics  who  were  convicted  of  particular 
offense.s  under  specified  circumstances."  The  Commission  would  also  issue  policy 


33  This  occnrrpd  In  17  out  of  1,080  casps  in  which  prisoners  werp  pnroled  in  thp  north- 
oust  rpfrlon  of  tho  Parolo  Commission  in  tlip  iicriort  from  Octobpr  15)7::!  tlirouyh  Jlarch  1074. 
Hdfl'tnau  and  I)c(i<islin.  lUirrth:  Dtrisioii-Mnking:  i<tntvt tiring  Discretion,  U.S.  Board  of 
]?arole  Rpseardi  I'nit,  Rpp<irt  .">   (June  1974). 

.w  Sep  noto  '.i.  mipra.  and  accompanyintr  tpxt. 

•'"Carlson,  "Corrections  in  tlic  United  States  Today:  A  I'.alance  Has  ISeen  Struck."  i;{ 
Amer.  Crim.  L.  li.  627-."i.->  (]97f!). 

"^  See  supra  note  .3  ;  von  TTirsch,  suiira  note  4. 

•■»  Sep  Part  B  of  chapter  II  at  i)p.  2-12,  .supra. 

*«  S.  1  and  H.K.  .•?!)07  in  tlip  !t4th  Consrpss. 

'1  ( »'I)onnell.  Clinririn.  and  Cnrtis,  Toward  a  Ju-tt  and  Effective  Sentencing  Si/stem: 
Agrnda  for  Leginlatirr  Reform  (1977), 

*^  In  aildition  to  the  Sentenclntr  Commission  provisions  in  thp  compromlsp  version  of  thp 
propos<l  federal  criminal  code  in  tile  9.")tli  Con^Tess.  introduced  l)y  S(>nators  McClellan  and 
Kpnncdy  (S.  1437)  and  CoiiLTcssnian  Kndino  (H.I{.  (iSCi)).  the  followiiiLr  hills  introdnced 
in  th(>  O.'th  Coiifrress  wonld  crc.ile  a  senicncini;  j^'uidelines  sysreni  :  S.  Isl  (Senators  Kpn- 
npilv.  McClellan,  -Vhonrozk.  Bavh.  llaskcdl.  Matliia-^.  ,Slevenson.  Ilnmplirov.  and  Matsunajrn)  : 
S.  204  (Senators  Oarv  Hart  and  ,lavits)  :  U.K.  470  (Lehman)  :  U.K.  1182  (Rodino)  ; 
H.K.  2:!12  (Cohen  I  :  and  U.K.  .".•^4  (  McClory.  Butler,  and  Railshack). 

The  following  bills  introduced  in  the  94th  Conirress  provided  for  tlip  crpation  of  a 
sPiitencini,'  trnidellnes  svstem  :  S.  2()99  (Senators  Kennedv.  Ahonrezk,  Bavh.  Foiifr,  Philip  .\. 
Hart,  llrnska,  McClellan,  Tnnney):  II.R.  lin.'>,"»  ( Confrressman  Rod'hio)  :  H.R.  1.S492 
(CoTisrrpssmen  Tson^'as  and  Dodd)  :  II.R.  l.''>71()  (Conu'rossnipii  Tsonjias.  Dodd,  Mazzoll, 
I'attison,  and  Rnsso)  :  II.R.  l.'!7.'>4  (Conirressmen  Tsonji.is,  Dodd,  Cohen.  Mazzoli.  Pattison, 
and  Itiisso)  ;  U.K.  14014  (Coni;rp><smpn  Tsontras.  I)i)dd.  Bani-iis,  Bpd<>ll.  Biacgi.  Carney. 
Cohen.  Cotter,  Downev,  Kdgar.  Florio,  Cr.issley,  Hushes.  Keys.  Kdch.  Uehman.  Uloyd 
(Calif.),  .Mc< 'ollistcr.  Mafrnire.  Mnzzoli.  AIoaK'ley.  Mullolian.  Moorhead  |I'a.).  Nedzi  and 
Now-ik)  :  II.R.  1401,")  (Congressmen  Tsonir;is.  Hoild.  OttinjTPr.  I'atterson,  Pattison,  Rnsso, 
Spellman.  and  Tliorn(on)  :  and  H.R.  14S9<)  ((^onirressmen  Tsonpas,  Burke  (Calif.),  Clevo- 
l.-ind.  Hall  (111.),  Heckler  (.Mass.),  and  .Matsuna>:a ). 

"Proposed  2S  U.S.C.  091(a). 

"Proposed  28  U.S.C.  004(a)(1). 


9205 

statements  on  other  sentencing  issues  that  were  not  the  subject  of  guidelines."* 

The  proposed  legislation  specifies  for  the  first  time  the  factors  that  a  judge 
should  talce  into  consideration  in  imposing  sentence  on  a  convicted  defendant/" 
In  addition  to  considering  the  nature  and  circumstances  of  the  offense  and  the 
history  and  characteristics  of  the  offender,  the  sentencing  judge  would  be  re- 
quired to  consider  the  four  general  purposes  of  sentencing :  the  need  for  the  sen- 
tence to  deter  criminal  conduct,  to  protect  the  public  from  further  crimes  of  the 
defendant,  to  provide  just  punishment  for  the  offense,  and  to  provide  needed  cor- 
rectional treatment  for  the  defendant  in  the  most  effective  manner."  In  impos- 
ing the  sentence,  the  judge  would  also  be  required  to  consider  the  policy  state- 
ments promulgated  by  the  Sentencing  Commission.  The  judge  would  be  required 
to  state  general  reasons  for  the  sentence  imposed,  and,  if  the  sentence  was  out- 
side the  range  suggested  in  the  guidelines,  the  reason  for  imposing  a  sentence 
outside  the  guidelines.^'^ 

Appellate  review  would  be  available  for  sentences  outside  the  guidelines 
range ;  the  defendant  could  appeal  a  sentence  above  that  recommended  in  the 
guidelines,*"  while  the  government  could  appeal  a  sentence  below  tlie  guidelines 
range  if  the  Attorney  General  or  his  designee  approved  the  appeal.^"  If  the  court 
of  appeals  found  that  the  sentence  was  clearly  unreasonable,  it  would  be  required 
to  state  si>ecific  reasons  for  its  findings  and  either  remand  the  case  for  imposition 
of  an  appropriate  sentence  or  further  sentencing  proceedings,  or  resentence  the 
defendant  itself.^ 

The  sentencing  reform  proposal  set  forth  in  the  proposed  federal  criminal  code 
would  retain  the  United  States  Parole  Commission,  but  would  permit  the  sen- 
tencing judge,  after  considering  the  sentencing  guidelines,  to  impose  a  term  of 
parole  ineligibility  for  a  defendant  sentenced  to  a  term  of  imprisonment.  Such  a 
term  could  not  extend  in  any  case  into  the  last  one-tenth  of  the  term  of  imprison- 
ment imposed.^^  If  the  term  of  parole  ineligibility  was  inconsistent  with  the 
sentencing  guidelines,  the  defendant  and  the  government  would  have  the  same 
appeal  rights  as  they  would  have  with  respect  to  a  term  of  imprisonment  that 
was  inconsistent  with  the  guidelines.'^^ 

The  sentencing  provisions  of  S.  1437  and  H.R.  6869  do  not  represent  aban- 
donment of  efforts  at  rehabilitation.  Rather,  they  constitute  a  recognition  of  the 
fact  that  rehabilitation  should  no  longer  be  regarded  as  the  principal  reason 
for  giving  a  particular  defendant  a  particular  type  or  length  of  sentence. 
Rather  than  concentrating  exclusively  or  primarily  on  rehabilitation.  S.  1437 
and  H.R.  6S69  would  give  equal  recognition  to  the  four  commonly  cited  purposes 
of  sentencing :  just  punisliment ;  deterrence  of  criminal  conduct  by  others ;  in- 
capacitation of  the  criminal  for  protection  of  the  public ;  and  rehabilitation 
of  the  offender.'^  The  Sentencing  Commission  would  be  directed  to  consider  these 
purposes  in  formulating  sentencing  guidelines  for  federal  offenses,  and  in 
formulating  policy  statements  on  sentencing  in  general. '^^  The  proposed  legisla- 
tion does  not  attempt  to  give  greater  weight  to  one  purpose  than  to  another  nor  to 
define  the  extent  to  which  the  purposes  may  overlap.  It  leaves  to  the  Sentencing 
Commission  the  evaluation  of  the  extent  to  which  each  sentencing  purpose 
should  and  would  be  served  by  setting  a  particular  type  and  length  of  seu- 


<-";  Proposed  28  U.S.C.  994(a)(2). 

<«  Proposed  IS  U.S.C.  2003(a). 

4- Proposed  IS  U.iS.'C.  2003(a)(2). 

*s  Proposed  IS  U.S.C.  2003(b).  The  purposes  of  statin?  a  reason  for  a  sentence  within 
the  frnidelines  are  :  to  make  clear  to  the  defendant  and  to  the  public  the  purpose  to  be  served 
by  a  sentence,  to  provide  Ruidance  to  the  Bureau  of  Prisons  in  determining  the  appropriate 
type  of  prison  and  program  for  the  defendant :  and  to  tal^e  into  account  tliat  the  guidelines 
might  specify  a  different  sentence  for  persons  sentenced  for  the  same  offense  for  different 
purposes,  such  as  probation  for  rehabilitation  for  a  first  offense  and  incapacitation  or  deter- 
rence for  a  second  offense.  The  Bureau  of  I'risons  has  expressed  concern  that  the  statement 
of  reasons  for  a  sentence  within  the  guidelines  might  be  used  as  the  basis  of  an  appeal 
where,  for  example,  one  reason  that  the  sentence  was  imposed  was  rehabilitation  and  the 
defendant  alleges  that  he  is  not  being  rehabilitated  and  thus  should  not  be  incarcerated. 

»  Proposed  18  U.S.C.  372.T(a). 

«>  Proposed  18  U.S.C.  372.T(b). 

«  Proposed  18  U.S.C.  372.5(e). 

»=  Proposed  18  U.S.C.  2301(c). 

"Proposed  18  U.S.C.  3725  (a)  and  (b). 

f^  Proposed  18  U.S.C.  101(b).  See  Packer.  The  Limits  of  the  Criminal  Ffanction.  pp.  3n-fil  ; 
WoHinfj  Papers  of  the  National  Commistiion  on  Reform  of  Federal  Criminal  Lau-s.  Vol  I, 
pp.   3-4, 

»  Proposed  28  U.S.C.  991(b). 


9206 

tence  for  a  particular  offense.^®  For  example,  the  Sentencing  Commission  might 
conclude  that  for  many  white  collar  offenses  deterrence  and  punishment  should 
be  emphasized  rather  than  rehabilitation  or  incapacitation.  Conversely,  in  the 
cases  of  repeat  violent  offenders,  emphasis  might  be  placed  on  incapacitation. 

Tliese  proposals  leave  unanswered  one  important  question  regarding  the 
operation  of  the  new  sentencing  system :  the  role  of  the  parole  system.  The 
parole  system  was  created  to  determine  when  to  release  prisoners  who  had  been 
sentenced  to  indeterminate  prison  terms  for  rehabilitation  purposes.  Since  recog- 
nition of  rehabilitation  is  no  longer  regarded  as  an  appropriate  determinant  of 
a  prisoner's  release  date,  the  authority  of  the  Parole  Commission  is  now  used 
primarily  as  a  means  of  attempting  to  ameliorate  unwarranted  disparities  in 
sentencing,  and  of  shortening  the  average  term  of  imprisonment  served  from  the 
average  terms  imposed  by  sentencing  judges.  Under  the  proposed  sentencing 
guidelines  system,  the  problem  of  sentencing  dispai'ity  would  be  addressed  at 
the  time  of  sentencing  and  there  would  be  no  need  for  subsequent  review  by  the 
Parole  Commission.  However,  there  would  still  l)e  a  need  for  a  mechanism  for 
determining  prisoners'  release  dates.  In  addition,  means  would  have  to  be  pro- 
vided for  maintaining  institutional  discipline,  encouraging  participation  in  re- 
habilitation programs,  preventng  further  criminal  activity  by  persons  recently 
released  from  prison,  and  providing  services  to  prisoners  about  to  be  released 
or  recently  released  from  prison  to  assist  in  their  transition  to  the  community. 

These  are  functions  that  are  now  performed  in  large  part  by  the  parole  .sys- 
tem. Under  S.  1437  and  H.R.  6S69,  they  would  continue  to  be  so  performed,  even 
though  the  primary  justification  for  the  parole  system  would  no  longer  exist. 
The  question  arises,  therefore,  whether  these  functions  could  be  pei'formed  by 
other  means,  with  the  result  that  the  parole  system  could  be  abolished  entirely. 
It  would  apijear  that  this  is  a  realistic  possibility.  Determinate  sentences  could 
be  imposed,  with  the  release  date  modified  from  the  form  of  imprisonment  only 
by  vested  credit  toward  early  release  that  would  be  earned  if  the  prisoner  com- 
plied with  institutional  rules."  The  objective  of  encouraging  participation  in 
rehabilitation  programs  might,  as  Bureau  of  Prisons  experiments  already  indi- 
cate, be  attained  by  making  participation  in  such  programs  voluntary.  Tlie  use 
of  post-release  supervision  in  the  community  as  a  means  of  preventing  future 
criminal  behavior  by  persons  recently  released  from  prison  needs  to  be  re- 
examined. If  such  supervision  is  believed  desirable,  it  could  be  provided  by  the 
I'robrttion  System  even  if  the  Parole  Commission  were  abolished.  The  objec- 
tive of  providing  services  to  prisoners  in  need  of  assistance  in  making  the  transi- 
tion back  to  the  community  could  be  met  by  requiring  tliat  tlie  final  i)ort!on  of  a 
term  of  imprisonment  be  spent  in  a  minimum  security  facility.  I3uring  this 
period,  and  for  a  limited  time  thereafter,  facilities  of  the  Probation  System 
could  be  made  available  to  assist  such  prisoners  in  obtaining  employment  or 
medical  services  and  otherwise  to  facilitate  their  transition  from  prison  into 
society. 

C.  Treatment  of  Functions  of  Parole  System;  Effect  of  AhoUtion. 

1.  Sentencing  Disparity. — There  lias  been  a  growing  concern  over  the  fact  that 
many  defendants  convicted  of  violent  offenses  never  .serve  time  in  prison."^  In 
response  to  this  concern,  a  number  of  legishitive  pr(ii)f)s;)ls  liave  be«'n  put  forth 
that  would  require  the  imposition  of  mandatory  mininnim  terms  of  imprisonment 
to  be  s(n-vod  without  parole  for  a  number  of  serious  offenses.™ 


™Ono  cxcf'ption  aiiponrs  in  proposorl  2S  U.S.C.  On-Kel  ns  sot  forth  in  S.  It.'??  .nncl  TT.R. 
fisr>n.  Tlint  provision  in  olTort  oinplinsizps  incapacif ation  and  just  piinislnnont  for  oortain 
Iiprsons  witli  oxtonsivo  criminal  locnrds  or  wlio  aro  involvoil  in  criminal  activity  as  a 
means  of  livoliliood  or  as  part  of  a  major  conspir.'ic.v  l).v  rcqnirinc:  tliat  tlie  sontoncinff 
Kiiirlolincs  jiroviflo  that  most  pcr.sons  in  those  catogories  receive  a  "suhstantial  sentence 
of  imi>risonmcnt." 

"Pomnaro  IS  TT.S.C.  4101  ot.  soq. 

'"»'' Tn  fiscal  .year  1070,  only  .")4.4  percent  of  the  persons  convicted  in  the  federal  courts 
of  l)iir;rl'irv.  04.3  percent  of  the  persons  convicted  of  rajie  (inchidinK  convictions  nnder  18 
IT.S.f".  2n:i2)  and  4<).l  percent  of  the  jiersons  convicted  of  assault  Avere  sentenced  to  terms 
of  imprisonment.  ?.''7fi  Atinnnl  licport  of  the  Director,  Adiiiini/^tratire  Office  of  the  United 
Stnten  Courts.  'I'.ahle  11   .">. 

'■■"Under  a  Ford  Administration  proposed  amendment  to  S.  1.  n4th  Congress  n21  Tonsr. 
Uec.  S1:'.S27  (daily  ed.  .Inly  20.  107.5)).  a  person  convicied  of  heroin  or  momhlne  traffick- 
ing, kldnappinj,',  aircraft  hij.ackinff,  or  commitfinir  a  federal  olTcnse  with  a  fire.arm.  would 
be  sni)ject  to  a  mandatory  term  of  Imprisonment.  S.  ;U]  1  and  II. li.  i:!.')??.  04th  Con-zrcss. 
that  .Vdministrafion's  heroin  (rafiickiiiT  propds'l.  also  would  h-ivc  provided  mandatory 
minimum  sentences  for  heroin  and  mor[>hine  tr^'lhckinz.  while  .«!.  21.S0  and  IT.R.  !»022.  04th 
rontrress.  that  .Administration's  eun  c.u<trnl  nro-osal,  would  luive  provided  a  m.andatory 
minimum  sentence  for  a  first  offeuse  of  committinp:  a  federal  felony  with  a  firearm. 


9207 

While  these  proposals  would  eliminate  disparity  from  decisions  as  to  whether 
or  not  to  incarcerate  certain  rioleut  offenders  and  would  provide  minimum 
terms  of  imprisonment,  they  would  not  eliminate  all  unwarranted  sentencing 
disparity  any  more  than  does  the  existing  parole  system.*^"  In  addition,  the 
mandatory  minimum  sentence  proposals  do  not  recommend  an  appropriate  length 
of  a  term  of  imprisonment,  but  serve  only  to  specify  the  minimum  term  of 
imprisonment. 

The  proposed  sentencing  guidelines  system,  on  the  other  hand,  seeks  to  eliminate 
unwarranted  sentencing  disparity  in  all  federal  criminal  cases."^  The  guidelines 
would  provide  a  suggested  sentencing  range  for  a  particular  offense  conmiitted 
by  a  defendant  with  a  particular  history  and  characteristics.*^"  Only  if  the  judge 
believed  that  there  was  a  significant  aggravating  or  mitigating  factor  in  a 
case  should  he  impose  a  sentence  outside  the  guidelines  range,  and  such  a 
sentence  would  be  subject  to  appellate  review.  Periiaps  the  most  important  aspect 
of  the  guidelines  would  be  that  they  would  recommend  whether  a  person  con- 
victed of  a  particular  offense  and  who  had  a  certain  history  and  characteristics 
should  be  sentenced  to  imprisonment  or  to  probation,  thus  eliminating  a  major 
source  of  sentencing  disparity  under  current  law. 

The  guidelines  would  also  eliminate  disparity  between  sentencing  practices 
of  different  districts.  Recent  statistics  of  the  Administrative  Office  of  the  United 
►States  Courts  show  that,  w^hile  45.8  i>ercent  of  the  offenders  convicted  in  the 
federal  courts  are  sentenced  to  a  term  of  imprisonment,  the  percentage  of  con- 
victed defendants  who  are  sentenced  to  terms  of  imprisonment  in  different  dis- 
tricts varies  from  a  low  of  less  than  10  percent  to  a  high  of  over  75  ijercent."^ 
Even  if  allowances  are  made  for  variations  in  the  types  of  cases  brought  in 
different  districts,  the  degree  of  variation  in  whetlier  prison  terms  are  imposed 
remains  substantial.  A  comparison  of  districts  wath  criminal  caseloads  of  similar 
size  "^  shows  that :  in  one  district  with  fewer  than  500  criminal  convictions  per 
year  over  75  percent  of  the  convicted  defendants  received  prison  sentences  while 
in  another,  similar  district  only  13.6  percent  received  prison  sentences;  in 
medium  sized  districts  (those  having  500-1.000  convictions  per  year),  the  rate  of 
imprisonment  ranged  from  9.6  percent  to  70  percent ;  and  among  larger  districts 
(those  with  more  than  1.000  convictions  per  year),  the  rate  varied  between  8.3 
percent  and  67.0  percent."^ 

The  major  sentencing  reform  proposals  would  also  eliminate  the  disparity 
caused  by  the  differences  in  the  sentencing  statutes  applicable  to  regular  adult 
offenders,  youthful  offenders,  and  drug  addicts.  In  place  of  the  numerous  sentenc- 
ing statutes  now  available  there  woukV  be  a  single  sentencing  system  applicable 
to  all  persons  convicted  of  federal  offenses  but  flexible  enough  to  take  into 
account  the  age  or  addiction  or  other  characteristics  of  a  particular  offender 
as  appropriate. 


**  See  part  B  of  chapter  II,  supra. 

61  The  United  States  Parole  Commission  points  out  that  the  parole  guidelines  are  both 
promulgated  and  implemented  by  the  Parole  Commission,  while  the  Sentencing  Commission 
guidelines  would  be  implemented  by  over  450  federal  district  court  judges,  with  appellate 
review  by  the  United  States  courts  i^f  appeals.  The  Acting  Chairman  has  questioned  whetlier 
this  will  lead  to  the  desired  consistency  in  decisions  since  the  Sentencing  Commission 
would   not  play   a  direct  role  in  supervision   and  monitoring  of  the  cases.   Memorandum 


power    to    revise    the   guidelines   if   they   were   not   initiallv   succe.ssful   in    preventing  un- 
warranted  disparity. 

<i-  Attachment  D  shows  the  wide  variations  in  time  served  in  prison  by  male  bank  robbers 
who  have  similar  characteristics,  backgrounds  in  terms  of  age,  niarita'l  status,  educatiou 
and  prior  criminal  record. 

M  J976  Annual  Report  of  the  Director,  Administrative  Office  of  the  United  States  Courts, 
Table  D-7.  ' 

64  It  would  seem  that  districts  with  criminal  caseloads  of  similar  size  would  tend  to  have 
sunilar  types  of  crimes  to  deal  with  and  similar  problems  in  administering  their  criminal 
.lustice  systems.  For  example,  large  urban  districts  have  more  similar  criminal  probK-ms 
tliando  large  and  small  districts.  Therefore,  a  comparison  of  statistics  for  comparable 
districts  IS  more  meaningful  than  a  comparison  of  statistics  for  dissimilar  districts 

«s  t^upra  note  fiS  These  dllferences  result  from  many  factors.  Some  of  the  disparity  can 
be  attributed  to  differences  in  the  types  of  cases  prosecuted,  since  this  is  the  major  determi- 
nant ot  the  types  of  cases  in  which  sentences  are  imposed  bv  the  courts.  For  example  the 
h.4  percent  hgure  is  down  from  the  Southern  District  of  Georgia  which  handles  a  large 
number  of  traftic  cases. 


92-465 — 77 41 


9208 

2.  Actual  Time  Spent  in  Prixnn.  As  a  consequence  of  the  existing  parole  sys- 
tem, there  is  a  substantial  difference  between  the  average  term  of  imprisim- 
ment  imposed  for  federal  offenses  and  the  time  actually  spent  in  prison.  For 
example,  the  average  term  of  imprisonment  that  had  been  imposed  on  the  886 
adult  male  offenders  released  from  prison  during  fiscal  years  1974  and  1975 
after  serving  sentences  for  bank  robbery  was  129.56  months,  while  the  average 
time  actually  spent  in  i)rison  by  those  prisoners  was  45.46  months,  or  about  35 
percent  of  tlie  sentence  imposed."'  For  9  federal  felonies,  including  bank  rubbery, 
during  the  same  period  the  time  actually  served  ranged  from  35  to  53  percent 
of  the  terms  of  imprisonment  imposed  by  the  sentencing  judges."'  The  result  of 
the  differences  between  the  terms  of  imi)risonment  imposed  and  the  actual  time 
served  is  substantial  uncertainty  on  the  part  of  defendants  and  of  the  public  as 
to  the  effect  of  a  criminal  sentence."** 

If  the  system  of  indeterminate  systems  is  replaced  by  a  system  of  determinate 
sentences,  it  is  essential  in  order  to  prevent  further  overcrowding  of  the  prisons 
that  a  significant  increase  in  the  average  time  actually  spent  in  prison  by  per- 
sons convicted  of  federal  crimes  be  avoided.  This  should  not  be  a  problem  under 
the  sentencing  system  proposed  for  two  reasons.  First,  under  the  propo-sed  re- 
vision of  the  federal  criminal  laws  contained  in  S.  1437  and  H.R.  6869,  the  maxi- 
nuim  terms  of  imprisonment  for  federal  crimes  would  be  lower  than  those  set 
forth  in  current  law  and  in  earlier  versions  of  the  proposed  revision  of  the 
federal  criminal  code.""  Second,  because  the  Sentencing  Commission  would  be 
aware  of  the  capacity  of  the  federal  prison  system  and  because  it  would  be 
developing  its  guidelines  in  part  on  the  basis  of  current  sentencing  practices,  it 
can  be  expected  to  develop  guidelines  that  result  in  an  average  term  of  imprison- 
ment for  all  federal  convictions  generally  similar  to  the  average  term  that  now  re- 
sults from  operation  of  the  parole  guidelines.  Furthermore,  the  proposed  sentenc- 
ing revisions  make  clear  that  the  guidelines  should  be  structured  so  that  the 
longest  prison  terms  for  particular  offenses  would  be  imposed  on  serious  repeat 
offenders,  persons  deriving  a  substantial  part  of  their  livelihood  from  criminal 
activity,  and  leaders  of  racketeering  syndicates.  On  the  other  hand,  the  guide- 
lines would  be  structured  so  that  a  first  offender  would  probably  receive  no  im- 
prisonment or  only  a  short  term  of  imprisonment  unless  the  offense  were  serious 
or  committed  under  aggravating  circumstances. 

3.  Determination  of  Release  Date.  Under  current  law,  there  are  two  separate, 
parallel  determinations  made  concerning  the  release  date  for  each  prisoner. 
These  determinations  are  made  under  the  provisions  for  good  time  allowances '" 
and  for  release  on  parole.''^  While  a  potential  release  date  is  calculated  for  each 
prisoner  under  each  of  these  provisions,  the  prisoner's  release  date  is  in  fact 
generally  affected  by  only  one  of  the  two  determinations,  although  there  is  un- 
certainty in  many  cases  as  to  which  of  the  two  calculations  will  ultimately 
control  a  particular  prisoner's  release  date. 

a.  Good  Time  Allowances.  Under  the  good  time  statute,  each  prisoner  is  given 
a  deduction  from  his  sentence  of  several  days  each  month,  according  to  tlH> 
length  of  his  sentence,  if  his  "record  of  conduct  shows  that  he  has  faithfully 
observed  all  the  rules  [of  the  institution]  and  has  not  been  subjected  to  pun- 
ishment."'' If  the  prisoner  commits  an  offense  or  violates  a  rule  of  the  insti- 
tution, all  or  part  of  this  statutory  good  time  deduction  he  has  earned  up  to  the 


"«  rndPi-  the  parole  guidelines,  41  F.R.  37322  (September  3.  1976),  n  person  eonvictcni  of 
robber.v  with  a  weapon  or  a  threat  would  serve  from  2fi  to  72  months  in  prison,  depending 
upon  liis  parole  pro^jnosis.  while  a  person  otlierwise  convicted  of  bank  robl)er,v  would  serve 
from  10  to  44  mouths,  depending  on  parole  prognosis. 

«T  See  Attachnifnt  C,  Statistics  from  the  OlRce  of  Trogram  Planning.  United  States 
Bureau  of  Prisons. 

"^  In  many  cases,  the  public  views  tlie  parole  system  as  the  mechanism  that  permits  even 
the  worst  criiiilnals  to  be  released  from  prison  substantially  before  the  ends  of  their  terms 
of  imprisonment.  See,  e.g.,  "Puzzling  I'arole  Arithmetic,"  The  Washington  Star.  September 
3,  1!I70,  p.  A-2. 

""  If  the  parole  system  is  no  longer  used  as  the  means  for  determining  rdense  dates,  the 
maximum  terms  of  imprisonment  might  be  lessened  even  further  in  order  to  help  assure 
that  the  actual  time  served  by  the  average  prisoner  would  remain  fairly  close  to  the 
time  now  ser>  ed. 

-'>  IS  IT.S.C.  4ir.l  et  scq. 

■^  IS  U.S.C.  4201  ct  Keq. 

■^2  IS  T'.S.r.  4161.  In  addition  to  the  deduction  for  "good  conduct"  T's^-'Hutory  good 
time"),  a  prisoner  may  earn  "industrial  good  time"  by  employment  in  a  prison  industry  or 
c.'iinp  or  by  exceptional  perform.ance  in  connection  with  institutional  ooer-Mons.  IS  U.S.C 
4102. 


9209 

time  of  the  offense  may  be  forfeitefl."  Forfeited  or  withheld  good  time  may  be 
restored  in  whole  or  in  part  l)y  tlie  Attorney  General  "as  he  deems  proper  upon 
recommendation  of  tlie  Director  of  tlie  Bureau  of  Prisons."  " 

The  Institution  Discipline  Committee  for  each  Bureau  of  Prisons  institu- 
tion 1ms  the  responsibility  for  determining  whether  and  when  good  time  should 
be  withheld  or  forfeited  and  wliether  and  when  withheld  or  forfeited  good  time 
should  be  restored.  While  Bureau  of  Prisons  policy  requires  that  withheld 
good  time  must  be  considered  for  restoration  within  six  months  of  the  conduct 
that  was  the  basis  for  withholding  and  that  forfeited  good  time  must  be  consid- 
eretl  for  restoration  within  one  year  of  the  conduct  that  was  the  basis  of  the  for- 
feiture, the  standards  for  restoration  vary  from  institution  to  institution  be- 
cause of  differences  in  the  nature  of  inmates  and  violations.'^"  The  decisions 
of  the  Institutional  Discipline  Committee  are  subject  to  review  and  modifica- 
tion or  reversal  on  appeal  to  the  warden,  the  appropriate  regional  director,  and 
the  Office  of  General  Counsel  of  the  Bureau  of  Prisons.™ 

Federal  prisons  officials  consider  the  good  time  provisions  to  be  so  cumber- 
some that  they  avoid  using  foi'feiture  or  withholding  of  good  time  for  rules  vio- 
lations if  other  means  of  dealing  with  violations  are  available."  This  fact,  to- 
gether with  the  fact  that  good  time  remains  constantly  subject  to  forfeiture  under 
curi'ent  law,  creates  substantial  uncertainty  as  to  the  potential  effect  of  the 
withholding,  forfeiture,  or  restoration  of  good  time  on  a  prisoner's  release  date. 

b.  Parole.  At  the  same  time  as  the  Bureau  of  Prisons  is  calculating  the  po- 
tential release  dates  of  prisoners  on  the  basis  of  good  time,  the  United  States 
Parole  Commission  is  considering  whether  prisoners  whose  sentences  exceed 
one  year™  and  who  are  presently  eligible  or  will  become  eligible  for  parole 
within  30  days  ™  should  be  released  on  parole. 

Tlie  date  of  eligibility  for  parole  varies  according  to  the  statute  under  which 
the  judge  imposes  sentence.  If  the  judge  specifies  no  specific  time  for  parole 
ineligibility,  a  regular  adult  offender  is  eligible  for  parole  after  serving  one- 
third  of  his  term  of  imprisonment  (or  ten  years  of  a  sentence  of  over  thirty  years 
or  of  life  imprisonment).**"  If  the  sentence  exceeds  one  year,  the  judge  may 
either  specify  a  minimum  term  of  up  to  one-third  of  the  sentence  at  the  expira- 
tion of  which  the  prisoner  will  be  eligible  for  parole,*^  or  may  specify  that  the 
defendant  may  be  released  on  parole  at  any  time  the  Parole  Commission  "may 
determine."  ®"  A  prisoner  who  is  serving  a  sentence  of  five  years  or  longer  must 
be  released  on  parole  after  serving  two-thirds  of  that  sentence  (or  30  years 
of  a  sentence  of  45  years  or  longer  or  of  life  imprisonment)  unless  the  Com- 
mission "determines  that  he  has  seriously  or  frequently  violated  institution  rules 
and  regulations  or  that  there  is  a  reasonable  probability  that  he  will  commit 
any  Federal,  State,  or  local  crime."  *'' 

These  general  parole  eligibility  provisions  do  not  apply  to  two  classes  of 
prisoners,  those  subject  to  title  II  of  the  Narcotic  Addict  Rehabilitation  Act 
(NARA)  **  and  those  sentenced  pursuant  to  the  Federal  Youth  Corrections  x\ct.*° 
Under  title  II  of  NARA,  an  addict  convicted  of  a  non-violent  first  or  second 
offense  that  is  not  a  drug  trafficking  offense  (unless  it  was  committed  for  the 
"primary  purpose"  of  supporting  his  drug  habit)  ^^  is  "committed"  for  an  in 
determinate  sentence  not  to  exceed  ten  years.^''  A  person  committed  under  title 
II  of  NARA  may  be  released  on  parole  any  time  after  six  months  of  commit- 
ment for  treatment.®*  A  person  sentenced  under  the  Youth  Corrections  xict  is 
sentenced  to  an  indeterminate  sentence  that  may  not  exceed  four  years  of  im- 


"'•  IS  T^.S.C.  4165.  But  see  notes  114  through  117  infra,  and  accompanying  text 
■'i  IS  U.S.C.  4166. 

75  Federal   Prison  System  Policy   Statement  on  Inmate  Discipline,  No.  7400.5D,  July  7, 
1975,  p.  13. 

™/b(rf.,  at  p.  15. 

"  Interviews  bv  staff  of  Office  of  Policy  and  Planning. 

''s  IS  U.S.C.  4205(a). 

TO  IS  TT.S.C.  420S(a). 

80  18  U.S.C.  4205(a). 

8118  U.S.C.  4205(b)  a). 

82  18  U.S.C.  4205(b)(2). 

«»1S  U.S.r".  4206(d). 

8*  18  U.S.C.  4251  et  sen. 

85  IS  U.S.C.  5005  et  scq. 

88  18  U.S.C.  4251(f). 

8ns  U.S.C.  425.3(a). 

88  18  U.S.C.   4254. 


9210 

prisonment,**  but  is  immediately  eligible  for  parole.'"  If  the  court  finds  that  the 
defendant  "may  not  be  able  to  derive  maximum  benefit  from  treatment"  witliin 
that  time,  it  may  sentence  under  the  Youth  Corrections  Act  for  any  additional 
period  authorized  for  the  offense,"^  but  the  defendant  will  be  immediately  eligible 
for   parole.^'" 

When  feasible,  the  initial  parole  determination  proceeding  for  a  prisoner 
must  be  held  thirty  days  before  the  prisoners  parole  eligibility  date  or,  if  the 
prisoner  is  eligible  for  parole  immediately  upon  the  commencement  of  the  serv- 
ice of  his  sentence,  within  120  days  following  his  imprisonment."'  No  hearing 
is  required  if  the  Parole  Commission  decides  to  grant  parole  on  the  record."' 
If  parole  is  denied,  there  must  be  another  parole  determination  proceeding  within 
IS  months  for  a  person  with  a  sentence  of  more  than  one  but  less  than  seven 
years,  and  within  24  months  for  a  person  with  a  sentence  of  seven  years  or 
longer."^ 

The  Parole  Commission  is  required  to  grant  parole  pursuant  to  the  parole 
guidelines  to  any  prisoner  if  three  criteria  are  met,  unless  it  determines  that 
there  is  good  cause  for  setting  a  release  date  that  would  result  in  a  different 
length  of  time  in  prison  than  is  recommended  in  the  guidelines.  The  prisoner  must 
have  substantially  complied  with  the  rules  of  the  institution.  In  addition,  the 
Commission  must  determine,  upon  consideration  of  the  nature  and  circumstances 
of  the  offense  and  the  history  and  characteristics  of  the  offender,  that  his  release 
"would  not  depreciate  the  seriousness  of  his  offense  or  promote  disrespect  for 
the  law;  and  (2)   that  release  would  not  jeopardize  the  public  welfare.  .  .  ."  ** 

As  discussed  earlier,""  there  are  two  sets  of  parole  guidelines.  One  applies  to 
adult  offenders,  while  the  other  applies  to  prisoners  sentenced  under  the  Federal 
Youth  Corrections  Act  or  the  Narcotic  Addict  Rehabilitation  Act."*  The  two  sets 
of  guidelines  recommend  that  the  same  length  of  time  be  spent  in  prison  by 
most  persons  to  whom  either  set  of  guidelines  apply  if  the  offense  is  of  "low"  or 
'"low  moderate"  seriousness.  However,  for  more  serious  offenses,  the  parole 
guidelines  applicable  to  adult  offenders  recommend  imprisonment  for  periods 
of  2  to  25  months  longer,  depending  on  the  seriousness  of  the  offense,  than  those 
recommended  under  NARA  or  the  Youth  Corrections  Act. 

c.  Application  of  Release  Date  Calculations  to  Individual  Prisoners.  Even 
though  the  Bureau  of  Prisons  and  the  Parole  Commission  are  simultaneously 
c<mcerned  with  the  release  date  of  each  prisoner  whose  term  of  imjjrisonmeut 
exceeds  one  year,  only  one  of  these  agencies  will  actually  determine  the  release 
date  of  the  prisoner,  since  the  release  date  is  either  the  date  on  which  the  pris- 
oner's sentence  expires,  minus  good  time,  or  the  date  set  for  release  by  the  Pa- 
role Commission,  whichever  is  earlier. 

Approximately  56  percent  of  all  prisoners  released,  according  to  a  recent 
study,  are  released  at  he  expiration  of  their  sentences  less  good  time.""  Such 
prisoners  fall  into  three  groups.  The  first  group  consists  of  prisoners  who  were 
not  within  the  Jurisdiction  of  the  Pavole  Commission  becaus(>  their  terms  of  im- 
prisonment are  one  year  or  shorter;  ""  they  are  released  upon  expiration  of  their 
sentences  less  good  time.  The  second  group  contains  those  whose  terms  of  impris- 
oiunent  are  so  short  that  the  date  of  expiration  of  sentence  less  good  time  occurs 
before  the  prisoner  has  spent  as  much  time  in  prison  as  is  recommended  in  the 
parole  guidelines.  These  prisoners  are  usually  released  upon  the  expiration  of 
sentence  less  good  time  rather  than  on  parole,  although  there  may  be  a  few  in- 
stances whei'e — because  of  luiusual  mitigating  circumstances — they  are  released 
on  parole  on  a  date  that  occurs  before  they  have  been  in  prison  for  the  time  rec- 


•"•IS  U.S.C.   5017(0). 

sniS  U.S.C.  5017(a). 

»i  18  U.S.C.  5010(c). 

0=  18  TT.S.O.   5010(a). 

»'18  U.S.C.   4208(a). 

01  I  hid. 

»^-lS  U.S.C.  4208(h). 

"8  18   U.S.C.    420G(a). 

^  Soo  iiotos  20-2.3,  Kupra  and  acoompanylnR'  text. 

^2H  C.F.R.  §  2.20,  41  P.R.  37.322  (Sfiptomber  .3,  1970). 

"Tedoral  Bnre:iu  of  Pri.sons  Statistical  Report,  Fiscal  Year  1975  (U.S.  Department  of 
Justice.  W'asliiiif,'ton.  1974),  ji.  19. 

i«"  Prior  to  tlic  adoption  of  18  U.S.C.  4205(a),  tlio  Parole  Commission  Iiad  jurisdiction 
over  all  prisoners  whose  terms  exceeded  six  months.  Under  S.  1437  and  II.R.  fiSGO  the 
Parole  Commission's  jurisdiction  would  be  the  same  as  it  was  before  the  adoption  of  18 
U.S.C.   4205(a). 


9211 

ommended  in  the  suidt'lines.  Finally,  Parole  Commission  regulations  deem  a  pris- 
oner who  has  forfeited  good  time  that  has  not  been  restored  to  have  '-violated 
the  rules  of  the  instituion  to  a  serious  degree,"  "'  and,  threfore  to  be  unparole- 
ahle.  If  the  prisoner  is  eligiltle  for  parole  but  has  any  unrestored  forfeited  good 
time,  he  will  be  released  at  the  expiration  of  his  sentence  less  any  good  time  that 
he  mav  luive  accumulated."'' 

In  the  period  between  October  1,  1975  and  September  30,  1976,  43.3  percent  of 
all  regular  adult  prisoners  with  prison  sentences  exceeding  six  mouths  were  re- 
leased oil  parole.'"'  Of  these.  .Sl.8  percent  were  relea.scd  at  times  within  the  appli- 
cable parole  guidelines.  Of  the  remaining  prisoners  placed  on  parole,  11.3  percent 
were  paroled  after  serving  a  longer  time  in  prison  than  recommended  in  the 
guidelines,  and  6.8  percent  were  paroled  earlier  than  the  time  recommended  in 
the  guidelines.^'"' 

Most  prisoners  who  are  paroled  rather  than  released  at  the  expiration  of  sen- 
tence less  good  time  are  those  upon  whom  relatively  long  sentences  have  been 
imposed.  Of  prisoners  released  in  tiscal  year  1975,  the  average  time  served  by 
persons  released  ou  parole  v^as  27.8  months  (or  37.8  percent  of  their  average 
sentence),  while  the  prisoners  released  at  the  expiration  of  sentence  less  good 
time  served  an  average  of  12.6  months  (or  67.8  percent  of  their  average  sen- 
tence ) .'"' 

d.  Determination  of  Release  Date  Under  Proposals.  Whether  or  not  S.  1437 
and  H.R.  6869  are  amended  to  abolish  parole,  the  proposed  revision  of  the  federal 
criminal  code  would  result  in  a  substantial  reduction  in  the  uncertainty  regard- 
ing release  dates  now  present  under  tlie  current  system  of  indeterminate  sen- 
tences and  would  eliminate  the  current  dui)licatiou  of  mechanisms  for  setting 
release  dates.  The  goal  would  be  achieved  by  different  mechanisms,  and  pos- 
sibly with  differing  degrees  of  success  if  the  proposed  code  were  amended  to 
abolisli  parole. 

*S.  1437  and  H.  R.  6869  would  retain  the  Parole  Commission  to  determine  the 
actual  release  date,  but  would  eliminate  all  good  time  allowances,  including  those 
for  good  institutional  behavior  and  those  for  industrial  good  time.  Even  tliough 
the  proijosed  criminal  code  would  alter  the  way  in  which  the  Parole  Commission 
would  make  the  release  date  determination,  it  would  not  necessarily  result  in 
removing  all  vestiges  of  indeterminate  sentences.  The  Sentencing  Commission 
would  issue  both  the  sentencing  and  parole  guidelines."'"  Presumably,  the  sen- 
tencing guidelines  would  be  based  on  those  factors  known  at  the  time  of  sen- 
tencing that  the  Commission  believed  should  have  an  impact  on  sentences, 
while  the  parole  guidelines  would  acklress  the  question  of  the  effect  that  sub- 
seipient  occurrences  sliould  have  on  a  prisoner's  release  date.  While  the  proposed 
code  provides  that  the  term  of  parole  ineligibility  could  be  as  liigh  as  90  percent 
of  the  term  of  imprisonment,""  and  permits  the  Sentencing  Commission  to 
reconnnend  a  term  of  parole  ineligibility  for  each  set  of  offense  and  offender 
characteristics,^"*  there  is  no  reciuirement  that  the  length  of  the  recommended 
term  or  parole  ineligiltility  correspond  to  the  length  of  the  recommended 
term  of  imprisonment.  In  addition,  while  the  sentencing  judge  would  be  required 
in  imposing  a  prison  sentence  to  state  whether  the  term  includes  a  term  of  parole 
ineligibility  and  how  long  that  term  will  be,""  he  may  decide  that  the  term  of  pa- 
role ineligibility  recommended  in  a  particulai-  case  is  inappropriate.  Therefore, 
to  the  extent  tliat  the  guidelines  did  not  specify  that  a  particular  category  of 
offense  committed  by  a  particular  category  of  offender  should  result  in  a  speci- 
fied term  of  imprisonment  with  the  defendant's  being  ineligible  for  parole  for  a 


ini2S  C.F.R.  §  2.G(a),  41  F.R.  .37320  (September  .'!,  1976). 

J02  Eleven  percent  of  tlie  prisoners  who  were  schedulerl  by  the  Parole  Commission  for 
review  hearings  held  in  tlie  first  half  of  1075  were  denied  parole  because  of  "disciplinary 
Infractions."  Hoffman,  Federal  Parole  Guidelines:  Three  Years  of  Experience,  United  States 
Board  of  Parole  Research  Unit,  November  197."),  p.  J-6.  Some  of  these  Infractions  had 
resulted  in  forfeited  Rood  time.  No  information  is  available  as  to  how  many  of  these 
prisoners  were  ultimately  released  on  parole  and  how  many  served  their  full  sentence 
less  good  time. 

I"' .Meierhoef er.  Worldoad  and  Decision  Trends:  Statistical  Highlights  10/7.',-9/rG, 
United  States  Parole  Commission  Research  Unit,  Report  Thirteen,  Table  II,  p.  S  (Febru- 
arv  1977). 

^"*  Ibid..  Table  III,  p.  11. 

1"^  .S7r(f/.sf/ert;  Report,  Fiscal  Year  197.;.  U.S.  Department  of  .Justice.  Federal  Prison  Sys- 
tem, p.  22.  See  also,  IMeierhoefer,  supra,  note  103,  Table  II,  note  1,  p.  10. 

J™  Proposed  28  U.S.C.  994  (a)  and  (f). 

1'"  Proposed  18  U.S.C.  2;Wl(c). 

">«  Proposed  28  U.S.C   994(a). 

^'J'J  Proposed  18  U.S.C.  2301(c). 


9212 

high  percentage  of  the  term  of  imprisonment,  or  to  the  extent  that  a  sentencing 
jnclge  chose  to  set  a  low,  or  no.  term  of  parole  ineligibility,  a  substantial  portion  of 
the  term  of  imprisonment  would  remain  in  which  the  Parole  Commission  conkl  set 
a  release  date.  While  the  potential  for  disparity  created  by  this  situation  could  be 
alleviated  somev.hat  by  parole  guidelines,  the  result  would  still  be  to  retain  at 
Ifast  some  of  tlie  uncertainties  of  current  sentencing  practices. 

If  parole  were  abolished,  it  would  be  necessary  to  substitute  another  mechanism 
for  determining  the  release  date  of  a  i)risoner.  One  possil>le  method  would  be  to 
provide  that  the  term  of  imprisonment  imposed  by  a  judge  wouid  represent  the 
actual  time  to  be  served  in  prison,  except  that  a  prisoner  could  earn  a  small 
percentage  of  that  time,  perhaps  ten  percent,  as  credit  toward  early  release  if 
he  complied  with  the  rules  of  the  institution.  This  approach  would  eliminate  from 
the  criminal  law  the  remaining  vestiges  of  indeterminate  sentencing.  The  prisoner 
would  be  certain  of  his  release  date  from  the  outset  of  his  sentence  and  could 
easily  determine  the  effect  of  earning  credit  toward  early  release  on  the  time 
he  would  actually  have  to  spend  in  prison."" 

4.  Institutional  Behavior. — Both  the  good  time  allowance  and  parole  provisions 
in  current  law  are  designed  to  induce  institutional  discipline  by  holding  out  the 
potential  for  early  release.  However,  because  of  the  uncertainties  in  the  release 
date  caused  by  the  complexity  of  each  system  and  the  interrelationship  between 
them,  it  is  doubtful  that  institutional  behavior  is  actually  improved  by  use  of 
these  mechanisms.  In  fact,  many  corrections  officials  believe  that  the  uncertainty 
of  prison  release  dates  is  detrimental  to  prison  behavior  it  makes  it  difficult  for 
prisoners  to  plan  for  their  futures."^ 

The  administration  of  existing  laws  regarding  forfeiture  of  good  time  for 
committing  an  offense  or  violating  the  rules  of  an  instituti<in  "'  is  extremely 
complex,  with  practices  relating  to  the  restoration  of  good  time  varying  from 
institution  to  institution."^  Moreover,  it  is  doubtful  whether  the  good  time  allow- 
ances help  to  control  the  institutional  behavior  of  prisoners  other  than  those 
whose  sentences  are  so  short  that  they  are  directly  affected  by  the  provisions  and 
who  will  probably  be  released  at  the  expiration  of  sentence  less  good  time  rather 
than  being  released  on  parole. 

While  the  good  time  provisions  may  affect  somewhat  the  behavior  of  prisoners 
who  wish  to  remain  eligible  for  parole,  prison  officials  indicate  that  current  laws 
on  good  time  allowances  probably  have  little  impact  on  the  behavior  of  prisoners 
who  anticipate  tliat  they  will  be  released  on  parole.  In  the  first  place,  the  system 
for  administering  the  good  time  statutes  is  so  cumbersome  that  withholding  or 
forfeiture  of  good  time  is  used  only  for  the  most  serious  disciplinary  prol)lems. 
Prison  officials  believe  that  the  other  means  of  dealing  with  normal  disciplinary 
l>r<)l>Iems."'  such  as  withholding  of  privileges,  are  effctive  to  maintain 
discipline."^  Jloreover,  under  present  law.  any  amount  of  good  time  that  has  been 
accumulated  before  an  offense  may  be  forfeited  ""  since  there  is  no  vesting  of 
earned  good  time.  Prison  officials  indicate  that  prisoners  give  little  weight  to 
the  risk  of  forfeiting  good  time  since  they  assume  that  it  will  be  reinstated 
when  the  Institution  Discipline  Committee  considers  its  restoration."' 


""  Hut  SCO  noto  i:',!)  JHfrn. 

"1  Thp  offipial  rr<port  on  thp  .\ttlpa  riots  iiuHcatPs  that  tho  iinoprtnlnty  of  tpIpjisp  flntos 
was  n  Tii'ijor  cniisp  of  tlic  riots.  Now  York  Spocifil  rominisston  on  .\ttlra.  Attica  (1072). 
cited  in  von  Ilirsch,  Doinfj  Justice:  The  Choice  of  Punishments,  at  p.  31,  n.  11.  Intorviows 
l).v  tli<>  ftirn(.  of  rolicy  ;iii(i  I'lannlnjr  with  jirison  otlicials  ii)<ll<^'atod  tliat  prison  ofiicials 
and  prisoners  commonly  favored  determinate  sentences  with  as  little  discretion  In  sentenc- 
iiifr  MS  iM)ssilile. 

"2  ]S   T'.S.r.   41(;.^. 

1"  Under  Order  No.  7400..5D  of  the  Fed(>ral  Prison  System,  supra  note  7.T.  at  l.T  :  ".Ml  or 
parr  of  .-ui  inmate's  accumulated  good  time  may  he  forfeited.  Authority  to  restore  all  types 
of  forfeited  and  withlield  tood  time  is  deleRaled  to  tlie  Institution  discipline  Committee  of 
P'lch  institution.  l''orfeite(l  nmtd  time  must  he  considered  for  restoration  on  or  ahont  one 
(1)  year  from  the  date  of  the  offense  which  formed  the  basis  of  the  forfeiture.  Forfeited 
K<iod  time  may  be  considered  for  restoration  earlier  than  the  one  (1)  year  date  if  circum- 
stances  WMrrant." 

No  further  jjuidance  is  given  to  the  institutions  on  when  and  whether  to  restore  good 
time. 

"'  Disciplinary  measures  now  used  I)y  tlie  Bureau  of  Prisons  include  chancing  a  prisoner's 
housing  assignment  or  job,  [)lacing  liim  in  administrative  detention  or  s(>gregation,  or.  In 
extreme  cases,  assigning  a  jirisoner  to  a  more  seciir<>  facility  or  criminally  prosecuting  him 
for  the  offense. 

"'■OiHce  of  Policy  and  Planning  staff  interview  witli  Koy  (lerard,  Assistant  Director  of 
the  l''(>(leral  I'.ureau  of  Prisons. 

Ill)  K,.,j(.ial  rrison  System  Order  Xo.  7-t00.3D,  suiiiu  note  73  at  I'ii 

^"  See  note  73,  supra,  and  accompanying  text. 


9213 

The  proposed  federal  criminal  code  would  drop  the  good  time  provisions  in 
current  law  as  unnecessary  and  administratively  burdensome,  leaving  the  Parole 
Commission  to  evaluate  prison  behavior."**  As  discussed  earlier,"^  an  alternative 
to  this  approach  would  be  to  amend  the  proposed  criminal  code  to  abolish  the 
Parole  Commission  and  establish  a  simplified  version  of  the  current  good  time 
allowance  as  a  mechanism  for  effecting  institutional  discipline.  Under  this 
alternative,  if  a  prisoner  complied  with  the  rules  of  the  institution  for  a  specified 
period  of  time,  he  would  receive  a  certain  number  of  days'  credit  toward  early 
release.""  Tliat  credit  could  not  be  taken  away  from  him  at  a  later  date  nor 
could  he  earn  back  credit  toward  early  release  that  had  been  denied.  The  prisoner 
would  know  at  the  time  of  sentencing  the  maximum  period  he  would  have  to 
.serve  and  would  would  know  that  compliance  with  prison  rules  would  earn 
credit  of  a  small  percentage  of  this  period  toward  early  release.  Thus,  this 
alternative  would  provide  a  direct  connection  between  good  behavior  in  prison 
and  the  length  of  time  the  defendant  had  to  serve  in  prison  in  any  case  in  which 
the  sentence  was  six  months  or  longer. 

While  the  effects  of  this  approach  on  prison  behavior  cannot  be  predicted  with 
certainty,  prison  officials  believe  that  it  would  not  add  to  disciplinary  problems 
in  prison  and  that  it  might  even  reduce  them.  With  the  elimination  of  parole, 
good  time  would  become  more  important  since  it  would  be  the  only  mechanism 
by  which  most  prisoners  could  reduce  their  time  in  prison.  Allowing  periodic 
vesting  of  credit  toward  early  i-elease,  rather  than  permitting  any  amount  of 
good  time  earned  up  to  the  time  of  a  rules  violation  to  be  forfeited  and  permitting 
later  restoration  of  forfeited  good  time,  would  create  a  continuing  incentive  for 
the  prisoner  to  earn  credit  toward  early  release  through  compliance  with  institu- 
tional rules.'"  The  system  of  periodic  vesting  of  credit  toward  early  release  would 
also  be  less  cumbersome  to  administer  than  the  current  system  and  could  probabl.v 
be  handled  in  most  cases  as  a  routine  bookkeeping  matter  in  the  absence  of 
serious  infractions. 

5.  Participation  in  Rehabilitation  Programs.  Many  prisoners  participate  in 
vocational  training  and  rehabilitation  programs  in  the  belief  that  they  will 
receive  favorable  consideration  from  the  Parole  Commission  when  such  partici- 
pation is  called  to  its  attention.'"^  As  a  result,  many  corrections  officials  view  such 
participation  as  involuntary,  a  fact  that  they  regard  as  possibly  detrimental  to 
rehabilitation.'-^  Because  of  this  growing  concern,  the  Federal  Bureau  of  Prisons 
is  placing  increased  emphasis  on  making  all  such  programs  voluntary  '-*  in  the 
belief  that  a  prisoner  will  benefit  more  from  a  program  in  which  he  participates 


11'' Tho  National  Commission  on  Reform  of  Federal  Criminal  Laws,  in  its  draft  revision  of 
the  federal  criminal  code,  viewed  [irovisions  on  "sood  time"  as  "an  unecessary  inducement 
in  view  of  tlie  parole  possibilities."  Working  Papers,  p.  1299. 

110  s;j,,>  ii()te  ."(7  supra  and  accompanying  text. 

i-f  It  lias  been  suggested  in  the  course  of  the  Department's  review  tliat  a  prisoner  sentenced 
to  a  term  of  imprisonment  of  six  months  or  more  receive  credit  toward  early  release  of 
one  day  at  the  end  of  each  ten  days  of  imprisonment  beginning  after  the  first  six  months 
and  lipl'orc  tlio  end  of  the  first  three  years  of  his  term,  and  one  and  one-half  davs  for  each 
ten  days  heginning  after  the  first  three  years  of  his  term  if  the  Bureau  of  Prisons  deter- 
mined that  the  prisoner  had  satisfactorily  complied  with  institutional  rules  approved  hy  the 
Attorney  General  and  given  to  tlie  prisoner.  If  his  behavior  was  less  than  satisfactory,  he 
would  l)e  given  no  credit  toward  early  release  or  such  lesser  amount  of  credit  than  he 
wonUl  receive  for  satisfactory  behavior  as  the  Bureau  determined  to  be  appropriate. 

1-1  The  T'.ureau  of  Prisons  has  adopted  a  change  in  its  regulations,  effective  November  1. 
1970.  tliat  provides  for  vesting  of  industrial  good-time  (IS  U. S.C.  4162),  but  not  of 
"stntutory"  good  time  (18  V.Si.C.  4161). 

122  According  to  Genego,  Goldberger,  and  Jackson,  Parole  Release  Decisionmakinp  and 
the  Senteininf;  Process,  84  Yale  L.J.  810  at  pp.  829-.30  (1975),  this  impression  in  en- 
hanced by  the  emphasis  in  the  parole  hearings  on  discussion  with  prisoners  of  rehabilitation- 
oriented  matters  rather  than  of  the  facts  necessary  to  determine  the  appropriate  guidelines 
to  be  aiudit'd  to  the  prisoner.  A  Bureau  of  Prisons  survey  of  the  heads  of  federal  institutions 
indicated  that  4.">  percent  of  the  prison  officials  who  responded  to  the  survey  believe  that 
inmates  feel  the  Parole  Commission  gives  some  consideration  to  participation  in  programs, 
while  41  iiercent  believe  that  inmates  think  the  Parole  C'ommission  does  not  consider  par- 
ticipation in  r.rograms.  ^lemo  of  Roy  E.  Gerard.  Assistant  Director.  Correctional  Programs 
Divi-:iou  to  Executive  Staff  of  Bureau  of  Prisons,  March  7.  1977.  In  fact,  it  is  fairly  un- 
usual for  a  prisoner  to  be  released  early  because  of  an  unusual  level  of  rehabilitation.  For 
example,  in  the  period  from  October  1973  through  March  1974.  the  Parole  Commission 
made  in  one  region  4.5  decisions  below  the  guidelines,  of  whicli  17  were  for  "outstanding 
Institutional  progress"  and  H  were  for  the  reason  that  "clinical  .iudgnient  indicates  better 
risk  than  indicated  by  salient  factor  score  "  Hoffman  and  De  Gostiii.  Parole  Decision-Mak- 
inci:  f^tnirtiirhio  Diseretion,  U.S.  Board  of  Parole  Research  Unit.  p.   11    (1974). 

1--  Carlson.  "Corrections  in  the  United  States  Today  :  A  Balance  Has  Been  Struck,"  13 
Amer.  Crim.  L.R.  627-35   (1976). 

i=<  Ihid. 


9214 

voluntarily  than  from  participation  for  purposes  of  impressing  parole  officials.^-" 
Wliile  some  corrections  professionals  believe  that  prisoners  might  benelit  from 
programs  in  which  they  would  not  participate  unless  required  to  do  so/""  recent 
experience  of  the  Bureau  of  Prisons  indicates  that  substituting  voluntary  pro- 
grams for  involuntary  ones  "is  not  detrimental  to  prison  rehabilitation  in  any 
way.''"'  The  growing  belief  among  corrections  officials  and  researchers  is  that  if 
a  prisoner  knows  what  his  release  date  is,  he  will  be  more  motivated  than  he  is 
now  to  plan  ahead  and  to  participate  in  programs  that  will  enable  him  to  find 
employment  when  he  leaves  prison."* 
"  6.  Vommunity  Supervision.  Under  current  law.  persons  released  on  parole 
receive  community  supervision  by  probation  officers  until  the  expiration  of  their 
sentence  or  until  they  have  been  released  from  parole  supervision.""  In  addition, 
persons  released  after  serving  the  term  of  imprisonment  imposed  by  the  judge 
less  good-time  deductions  are  subject  to  supervision  for  the  remainder  of  their 
maximum  terms  of  imprisonment  less  180  days.""  This  supervision  is  intended  to 
serve  two  arguably  conflicting  ^'"^  purposes,  protection  of  the  comnuuiity  from 
additional  crimes  by  the  parolee  and  facilitation  of  the  parolee's  return  to  the 
community  by  assisting  him  in  obtaining  such  things  as  employment  and  medical 
services. 

Whether  parole  supervision  achieves  the  goal  of  protecting  the  community  is 
doubtful.  The  average  federal  probation  officer  sui>ervises  10  parolees  and  30 
probationers.""  As  a  result  of  this  caseload,  each  probation  officer  can  spend 
only  a  limited  amount  of  time  supervising  each  probationer  and  parolee.'*' '  In  any 
event,  studies  on  the  value  of  supervision  indicate  that  the  degree  of  supervision 
has  little  or  no  impact  on  the  recidivism  of  parolees.""* 

"Any  combination  of  visits  and  reports  keeps  pressure  on  the  parolee  to  be  law 
abiding  and  to  stay  in  touch  with  the  parole  office.  It  is  very  hard  to  say  whether 
such  supervision  really  prevents  relapses  into  crime.  A  parolee  determined  to 
make  it  does  not  need  surveillance;  a  pai-olee  determined  to  con  his  parole 
officer,  evade  him,  or  engage  in  illicit  activities  can  find  ways  to  do  so.  [Footnote 


'^'  Cixrlson.  Speech  before  the  47th  Annual  Criminal  Justice  Institute  of  the  Florida 
Council  on  Crime  and  Delinquency,  South  Orlando,  Florida.  July  7,  197G.  Mr.  Gerard  indi- 
cated in  his  memorandum  of  Marcli  7,  1977,  that  one-third  of  the  prison  orticials  who 
responiied  to  the  Bureau  of  Prisons  survey  commented  that  "tlie  voluntary,  non-coercive 
approach  to  prof;ramminj?  was  a  more  realistic  and  philosophically  sound  position  for  the 
Bureau  to  adopt." 

1-"  Interview  by  staff  of  Office  of  Policy  and  Planning  with  federal  prison  officials,  June 
1976. 

'^'  Letter  from  Norman  A.  Carlson,  Director,  Federal  I'.ureau  of  Prison.*,  to  Harr.v  A. 
Scarr,  Assistant  Director,  Office  of  Policy  and  Planning,  U.S.  Department  of  Justice, 
October   .5,   1976. 

Ill  a.  niemoranduni  outlinina:  the  results  of  a  snr\-ey  of  ofiicials.  supra  note  12."i.  Roy 
Gerard,  .Assistant  Director  of  the  Correctional  Programs  Division  of  the  Bureau  of  Prisons 
Indicated  that  62  percent  of  the  Bure.au  of  IM'isons  officials  who  responded  to  the  question- 
naire found  that  making  rehabilitation  programs  in  their  institution  voluntary  had  not 
significantly  clianged  inmate  participation,  24  percent  found  that  making  the  programs 
voluntary  had  increased  enrollment,  and  10  percent  found  tluit  it  had  decreased  enrollment. 

'-'*  See  Sentencing.  Parole  and  (Jood  Time,  a  iiosition  statement  of  th(>  Xationn!  Prison 
Project  of  the  American  Civil  Liberities  Union.  This  position  was  also  taken  by  liawrence 
Bennet,  DirtH'tor  of  Research.  Department  of  Corrections  in  Californi,-).  and  Owen  Tvennedy. 
Gerard  M.  Farkas.  .and  James  D.  Henderson,  regional  directors  of  the  Federal  Bureau 
of  Prisons,  in  telephone  interviews. 

^»  IS  U.S.C.  4210  and  4211. 

130  IS  U.S.C.  4164. 

i'"  '".X  compulsory  rela tioushii)  is  strained  enough,  but  the  tensi(Ui  is  worse  if  one  iiart,v 
is  policing  the  other,  'i'lie  strain  becomes  even  more  complex  and  unre.asonable  if  the 
supervisory  party  is  re(iuired  to  be  the  otlu^r's  primary  source  of  advice  and  help."  See 
.Stanley.  f'risoiiciN  Anioii(/  f's:  The  I'rohlrm  of  I'lirolr.  p.  ]()2  (1976). 

'•'-United  States  Probation  Service,  Administrative  Otlice  of  the  United  States  Courts, 
November  197.")  time  studv. 

'■■'•■  .According  to  the  time  study,  cited  in  note  l.'{2  above,  a  iirobation  officer  spends  an 
iiver.ige  of  ."'.O  minutes  jier  month,  or  G  hours  jier  year,  in  face-to-face  contact  with  each 
prohationer  or  parolee  he  suiiervises.  Additional  time  may  be  spent  in  telei)lione  contacts 
with  the  person  under  supervision  and  on  such  matters  as  assistance  to  the  probationer 
or   parolee   in   seeking  etii)doyinent.    See   also   .Slaiile.v.   siiprii   nole   I."'.!,   at    1 2."i- 2(!. 

'■■'Stanley,  id.,  at  1  2K  L'9.  citing  Neitherciitt  and  (iot tt"r»>dson,  •'Case  Load  Size  Vai'lation 
and  Difference  in  Prohation/P;irole  Performance"  (.Administrative  Otlice  of  the  United 
States  Courts,  Probation  Division.  197:'.)  ;  and  C.arter,  Glaser.  :ind  Nelson,  "Probation 
and  Parole  Supervision:  The  Dilemma  of  (^.iseload  Size"  (.Administrative  Office  of  the 
United  States  Courts.  Probation  Division,  I'ebrii.ary  ]97.'i).  See  also  von  Ilirsch,  Doinp 
Justice:  The  Choice  of  I'nnishmevt,  Kejiort  of  the  Committee  on  the  Study  of  Incarceration. 
)).  14,  citing  Greenherg.  "Much  ado  About  Little:  The  Correctional  Kffects  of  Corrections." 
Department  of  Sociology.  New  York  University,  June  1974  (unpublished)  ;  Lipton,  Martln- 
S(ui,  and  Wilks,  The  Effectiveness  of  Correctional  Treatment  Evaluation  Studies,  p.  119 
(197.-J). 


9215 

omitted.]  A  parolee  who  is  not  committed  either  way  may  be  induced  to  accept 
guidance  and  help."  ^"^ 

If  parole  supervision  were  abolished,  it  would  be  desirable  to  provide  an 
alternative  means  of  facilitating  prisoners'  return  to  society.  This  could  be  accom- 
plished by  establishing  a  transition  period  at  the  end  of  the  term  of  imprisonment. 
The  transition  period  could  consist  of  the  last  thirty  days  of  any  term  of 
imprisonment,  which  could  be  spent  in  an  environment— perhaps  a  halfway 
house  or  other  minimum  security  facility — that  would  give  the  prisoner  an 
opportunity  to  prepare  for  his  return  to  the  community.''"  During  this  period,  the 
Bureau  of  Prisons,  in  cooperation  with  the  United  States  Probation  System,  could 
provide  the  prisoner  with  assistance  in  locating  a  place  to  live  and  in  obtaining 
employment.  This  period  could  be  followed  by  a  period  of  90  days  during  which 
the  services  of  the  Probation  System  would  be  available  if  the  former  prisoner 
wanted  such  services.  Thus,  for  example,  if  the  former  prisoner  believed  thai 
the  Probation  System  could  help  him  find  a  job  or  obtain  necessary  medical 
services,  such  as  a  drug  treatment  program  in  the  community,  and  requested  its 
help,  it  could  assist  him.  This  approach  would  permit  probation  officers  to  assist 
persons  released  from  prison  without  supervising  their  conduct  and  would  free 
tlieir  time  for  work  with  probationers  and  those  recently  released  prisoners  who 
actually  want  assistance  from  the  Probation  System. 

There  remains  the  (luestion  of  the  manner  in  which  criminal  conduct  by 
released  prisoners  should  be  dealt  with  if  there  is  to  be  no  parole  supervision. 
I'nder  the  existing  parole  system,  parole  revocation  is  sometimes  used  as  a 
substitute  for  prosecution  of  new  offenses'"  or  to  cause  incarceration  of  a 
person  convicted  of  an  offense  while  on  parole  but  not  sentenced  to  another  term 
of  imprisonment.  If  parole  suiiervision  were  abolished,  an  offense  committed  by 
a  person  recently  releasetl  from  prison  would  be  handled  in  the  same  manner  as 
an  offense  committed  by  anyone  else.  If  the  person  were  prosecuted  and  convicted, 
the  fact  that  he  had  recently  been  released  from  prison  would  be  taken  into 
account  under  the  sentencing  guidelines  applicable  to  his  case.  However,  there 
would  be  ino  sanction  for  acts  by  a  released  prisoner  that  now  constitute  technical 
violations  of  parole  but  that  are  not  criminal.  To  meet  this  problem,  the  Parole 
Commission  has  suggested  that,  ratlier  than  aboUshing  post-release  supervision,  it 
would  be  desirable  to  provide  a  fixed  period  of  supervision  following  every  term 
of  imprisonment.'"*  If  this  suggestion  were  adopted,  careful  consideration  would 
have  to  be  given  to  the  problem  of  appropriate  sanctions  for  non-criminal  viola- 
tions. Existing  law,  which  permits  reincarceration  for  a  technical  violation  of 
parole,  is  subject  to  the  criticism  of  unfairness  since  it  permits  the  incarceration 
of  certain  persons  for  committing  acts  that  do  not  result  in  incarceration  if  com- 
mitted by  anyone  else. 

U.  Impact  on  the  Federal  Crlminol  Justice  System.  Reform  of  the  federal  law 
on  sentencing,  whether  or  not  the  parole  system  is  abolished,  will  obviously  have 
a  substantial  effect  on  several  components  of  the  federal  criminal  justice  system, 
as  well  as  on  the  system  as  a  whole.  The  following  is  a  discussion  of  the  probable 
effects  on  tlie  federal  criminal  justice  system  of  the  sentencing  reform  proposals 


I-'"'  Stiuilev,  supra  note  131,  at  101.  One  study  shows  that,  while  parole  supervision 
continues,  it  may  have  an  effect  on  the  behavior  of  a  parolee.  Lipton,  Martinson,  and  Wilks, 
The  Effectiveness  of  Correctional  Treatment  Evaluation  Studies,  p.  119  (1975).  However, 
after  supervision  is  discontinued,  there  is  apparently  no  significant  difference  In  the 
recidivism  rates  of  persons  who  had  been  subject  to  parole  supervision  and  those  who  had 
not.  Ibid,  at  150. 

i^w  The  Rureau  of  Prisons  has  suggested  that,  if  parole  is  abolished,  it  should  be  permitted 
to  determine  whether  a  transition  period  is  necessary  in  a  particular  case,  in  order  to  avoid 
putting  an  undue  burden  on  community  treatment  facilities.  A  possible  alternative  would 
be  to  require  that  there  be  a  transitional  period  for  all  prisoners  incarcerated  longer  than 
a  set  period  of  time,  perhaps  two  or  three  years,  and  permit  the  Bureau  of  Prisons  to  decide 
whether  the  transitional  period  is  needed  for  individual  persons  serving  shorter  terms  of 
imprisonment.  The  Bureau  of  Prisons  also  suggests  that  exceptions  be  made  In  the  transi- 
tion period  requirements  in  certain  situations,  such  as  when  there  is  a  detainer  outstanding 
against  a  prisoner  or  when  it  is  necessary  to  send  a  prisoner  back  to  prison  from  a  halfway 
house  for  serious  violation  of  rules. 

'■"  See  Sianley.  supra  note  l-S.S  at  107.  According  to  Parole  Commission  records,  of  the  187 
parole  revocations  in  October  and  November  1974.  116  or  62  percent  followed  new  con- 
victions, 27  or  4.4  percent  followed  a  new  arrest  without  conviction,  and  6  or  3.2  percent 
involved  i)arolees  involved  in  criminal  behavior  for  whicli  there  was  no  arrest  or  conviction. 
The  remainder  of  ihe  revocations  were  for  technical  violations.  From  May  16,  1976  (the 
effective  date  of  the  revocation  guidelines,  28  C.F.R.  S2.21),  tlirough  February  28,  1977, 
992,  or  64.5  percent,  of  the  1538  parole  revocations  were  in  cases  in  which  there  was  a  new 
conviction  or  the  Commission  found  that  there  had  been  criminal  conduct,  and  the  re- 
mainder were  for  technical  violations. 

1=*^  Memorandum  from  Curtis  A.  Crawford,  supra  note  61. 


9216 

contained  in  S.  1437  and  H.R.  6869,  and  of  abolishing  the  parole  system  in  the 
context  of  those  )>roix)i^als. 

1.  United  States  Parole  Commission.  If  tlie  sentencing  provisions  of  S.  1437 
and  H.R.  6869  are  adopted,  the  cost  of  operating  the  United  States  Parole  Com- 
mission will  probably  not  be  altered  substantially.  The  provisions  will,  how- 
ever have  a  substantial  impact  on  the  way  in  which  the  Parole  Commission  oper- 
ates. While  the  Parole  Commission  would  continue  to  have  jurisdiction  to  set 
release  dates  for  persons  sentenced  to  terms  of  imprisonment,  both  the  parole 
guidelines  and  the  law  concerning  parole  eligibility  would  be  altered. 

The  manner  of  promulgating  parole  guidelines,  as  well  as  the  content  of 
the  guidelines  themselves,  would  be  affected.  The  parole  guidelines  would  be 
promulgated  by  the  Sentencing  Commission  in  order  to  assure  that  they  would 
be  compatible  with  the  sentencing  guidelines.  As  noted  earlier,  the  parole  guide- 
lines now  in  use  take  into  account  only  factors  known  at  the  time  of  sentencing. 
Under  the  proi>osals,  sentencing  guidelines  would  be  based  on  all  factors  known 
at  the  time  of  sentencing  that  the  Sentencing  Commission  believed  to  be  relevant 
to  the  sentencing  judge  for  the  imposition  of  sentence.  This  would  leave  to  the 
parole  guidelines  the  question  of  how  factors  unknown  at  the  time  of  sentencing, 
such  as  prison  behavior,  should  affect  a  prisoner's  release  date.''° 

The  changes  in  promulgation  and  form  of  tJie  parole  guidelines  would  un- 
doul)tedly  have  a  substantial  impact  on  the  operations  of  the  Parole  Commission. 
While  the  Commission  would  no  longer  promulgate  parole  guidelines,  it  should 
participate  in  the  process  of  making  recommendations  concerning  them.  The 
changes  may  also  affect  the  research  undertaken  by  the  Parole  Commission.  The 
Commission  now  does  a  substantial  amount  of  research  during  the  process  of 
developing  and  revalidating  parole  guidelines  to  evaluate  their  effectiveness  in 
predicting  behavior  of  parolees.  Under  the  revised  code,  the  Sentencing  Commis- 
sion will  be  authorized  to  conduct  its  own  research  on  the  effectiveness  of 
different  sentencing  practices  and  related  issues.  It  .seems  likely  that,  since  the 
Parole  Commission  will  be  more  concerned  with  post-conviction  events  than  with 
matters  known  at  the  time  of  sentencing,  the  focus  of  any  continued  research  it 
might  undertake  would  shift  to  evaluation  of  the  correlation  between  prison 
behavior  and  post-release  behavior. 

Making  the  parole  laws  inapplicable  to  persons  who  committed  offen.ses  after 
the  effective  date  of  the  code  would  result  in  the  gradual  phasing  out  of  the 
Parole  Commission,  which  had  a  budget  in  fiscal  year  197(5  ot  .i^.'^.4  million,  with 
138  positions,  including  nine  Presidential  appointees.  The  Parole  Commission 
probably  would  not  go  out  of  existence  Immediately,  however:  it  would  still  be 
needed  to  deal  with  per.sons  convicted  of  offenses  committed  before  that  date."" 
Since  27  percent  of  the  prisoners  discharged  from  federal  prisons  in  fiscal  year 
1976  had  served  more  than  five  years  in  prison  and  10  jiercent  spent  more  than 
10  years  in  prison,"'  it  would  take  5  to  10  years  to  phase  out  the  parole  system. 
Since  the  average  prisoner  who  was  released  on  parole  in  a  recent  year  served 
27.8  months  in  pri.son,""  it  al.so  appears  that  the  Parole  Commission  would  need 
to  retain  its  full  complement  of  employees  for  at  lea.><t  the  first  two  .vears  after 
the  effective  date  of  a  sentencing  guidelines  system  abolishiTig  parole.  While 
normal  attrition  at  the  Parole  Commission  may  s(miewhat  reduce  the  number 
of  employees,  the  Parole  Commission  has  a  relatively  low  attrition  rate.  Most 


i-i"  Tlio  Parolf  rommlssion  lins  pnbll«hpd  for  comnioiU  tho  ontlinp  of  n  jiroposal  that 
would  chniigo  Its  hoarinjr  practtcos.  Tlip  proiiosnl  would  rponlrp  flint  a  "prpsnmptive" 
rplp.'isp  datp  for  pvpry  )irisonpr  1)P  spt  parly  In  his  tprin  of  liiiprisoiimpnt.  Iiaspd  on  tho 
factors  known  at  tlip  timp  of  spntpnolncr.  As  tlip  narolp  rplpnsp  datp  approiiolipd.  ttip 
prisoner's  Institntional  hphavior  would  Iip  rovipwpd  to  dptpnninp  whptlipr  it  niPt  tbp 
statutory  rpfiuiromont  of  substantial  conu'linncp  with  institutioiial  rulos.  If  It  did  not, 
thp  parole  reloasp  date  would   ho  reseindpd.   42  F.R.   20!).'U,  .Tmip  10.   1!t77. 

i"V\  possihle  altPrnativp  In  iduistnir  out  the  I*arole  Coninilssiou  ."raduallv  would  he 
ahollshinir  the  <"'oniniission  on  the  pfTortivp  date  of  the  podp.  rpquirinir  that  a  dpsipnatPd 
authoritv  dptpnninp  each  nrisoner's  prohahlp  release  datp  under  tliP  lafpst  naridp  cuidp- 
linps  and  dptpriiiinp  what  tliP  sentenee  of  tlip  iiri>;oner  would  hnvp  )ipen  if  he  was  sputPnepd 
purstrint  to  the  npw  spntpneinp  cuidpliiips.  and  relensini,'  the  prisoner  on  the  earlier  of  thp 
two  datps.  Whpn  the  State  of  California  enaetpd  its  rpcpiit  statute  for  d(>terniinntp 
KPntpnops.  it  reonirpd  that  thp  roininuitity  Tlehvse  Board  determine  what  encli  prisoner's 
spntenep  would  havp  hppn  if  liP  had  hepn  spnfpneed  under  the  new  provisions,  pxeppt  that  If 
that  sentenep  would  havp  bepu  shorter  than  thp  tin)e  that  the  nrisoner  would  havp  sprvpd 
iindpr  thp  indptpruiinatp  spntpncini;  law.  the  parolp  datp  eould  bp  spt  at  a  latpr  datp  if 
sneeifipd  apr.irravatinK  eireunistanees  wprp  present.  Spetion  1170.2  of  the  Cilifornia  Ppnal 
Code. 

'*'  Pata  from  inflate  information  diseharfp  filps  •  ealeulatioiis  in  Septemiipr  1070  by 
Fpdpnl  Burpau  of  Prisons  for  ronjjrpssional  Rudjrpt  OfTiep  study. 

->"■-  Sfdtixtiral  Uepott,  Fisrnl  Year  797.5.  U.S.  Department  of  .tusticp.  Federal  Prison  Sys- 
tem, p.  22. 


9217 

parole  specialists  would  have  little  difficulty  finding  other  employment  with 
the  federal  or  state  corrections  systems,  with  state  parole  boards,  or  in  other 
criminal  justice  related  fields.  In  fact,  some  of  the  employees  would  have 
knowledge  and  experience  needed  by  the  Sentencing  Commission  in  developing 
its  guidelines  and  policy  statements. 

It  should  be  noted  that  the  United  States  Parole  Commission  is  an  extremely 
costly  and  complex  meclianism  for  setting  release  dat&s  for  federal  prisoners.'*^ 
This  is  especially  true  since  many  of  the  hearings  and  review  proceedings  held 
by  the  Parole  Commission  concerning  parole  release  dates  are  probably  unneces- 
sary. Some  hearings  are  held  when  there  is  no  realistic  prospect  that  they  will 
result  in  the  setting  of  a  release  date ; '"  in  other  cases,  release  dates  could  be 
set  on  the  basis  of  the  records  and  the  guidelines  without  holding  hearings."' 

If  a  sentencing  guidelines  system  is  established,  w'hether  or  not  parole  is  abol- 
ished, the  sentencing  guidelines  will  recommend  an  appropriate  term  of  imprison- 
ment for  persons  sentenced  to  prison,  just  as  the  parole  guidelines  do  now.  How- 
ever, if  parole  is  abolished  it  is  necessary  to  Insure  that  the  new  system  ade- 
quately provide  for  those  persons  who  are  now  released  before  or  after  the 
periods  recommended  in  the  parole  guidelines.  Release  on  parole  earlier  or  later 
than  the  time  recommended  in  the  parole  guidelines  now  occurs  in  three  special 
cases.  First,  many  cases  involve  factors  that  were  known  at  the  time  of  sentenc- 
ing but  were  not  taken  into  account  to  the  extent  appropriate  by  the  judge  in 
imposing  sentence.  Second,  some  cases  involve  factors  that  would  not  be  per- 
mitted to  be  considei'ed  in  setting  the  release  date  if  the  criminal  code  were 
adopted.  Neither  of  these  first  two  groups  of  cases  would  be  affected  if  parole 
were  abolished.  The  third  group  of  cases  involves  factors  that  would  have  to  be 
taken  into  account  by  other  elements  of  the  criminal  justice  system  if  parole  were 
abolished. 

The  Parole  Commission  undertook  to  monitor  the  operation  of  parole  guide- 
lines in  one  region  for  a  six-month  period.  The  resulting  report  provides  detailed 
information  on  the  immber  of  parole  decisions  outside  the  range  recommended  in 
parole  guidelines  and  the  reasons  for  such  decisions."*'  Of  the  1.080  parole  deci- 
sions in  the  period  of  Octoher  15)73  through  March  1074  in  the  northeast  region 
of  the  Parole  Commission,  98  decisions,  or  9.1  percent,  fell  outside  the  guidelines 
for  the  reasons  shown  in  the  following  table : 


147 


Above  guidelines  (N=53)  : 

Poor  institutional  conduct ^ 17 

To  complete  specific  program 19 

Aggravating  offense  factors 8 

Clinical   judgment  indicates   poorer  risk   than  indicated  by   salient 

factor  .score 6 

Other 3 

Below  guidelines  (N=45)  : 

Outstanding  institutional  progress 1 

Credit  for  additional  time  served  in  state  custody  or  to  be  served 

(commitment  detainer) 14 

Health  or  emotional  prol)lems 7 

Clinical   judgment  indicates   better   risk   than   indicated   by   salient 

factor  score 3 

Parole  to  deportation  only 3 

Mitigating  offense  factors 1 


^^' According  to  the  Parole  Commission,  it  spent  .?2. 391.000  in  fiscal  year  1976  to  produce 
27.471  y)arole  decisions  of  all  types  at  a  cost  of  apnroximately  $12.'?. 44  per  decision.  Memo 
of  September  17.  1975.  from  Jim  Fife,  Executive  Assistant  to  the  Chairman  of  the  Parole 
Commission  to  Stephen  Finan,  Ofiice  of  Policy  and  Planning. 

^■"'i  But  see  note  1-39  supra. 

'^'■' (If  the  Darole  decisions  in  the  period  of  October  1.  1975  through  September  .30,  1976.  no 
more  than  IS.l  percent  fell  outside  the  guidelines.  Meierhoefer.  supra  note  10.3,  Table  III. 
The  Parole  Commission  includes  as  decisions  within  the  guidelines  those  decisions  that 
actually  fall  outside  the  guidelines  in  two  circumstances.  First,  the  Parole  Commission 
considers  a  release  date  to  be  within  the  guidelines  if  the  prisoner  is  released  at  the  ex- 
piration of  sentence  before  serving  the  time  in  prison  recommended  in  the  guidelines. 
Second,  if  the  release  date  is  above  the  guidelines  recommendation  onl.v  becance  the  prisoner 
is  ineligible  for  parole  on  the  date  recommended  in  the  guidelines,  the  release  date  is 
considered  to  be  within  the  guidelines. 

'<"  TToffman  and  De  Gostin.  Pnrnle  Dedsion-Makitiff:  Structuring  Discretion,  United  States 
Board  of  Parole  Research  Unit,  Re]>ort  5  (June  1974). 

"7  Hoffman  and  De  Gostin,  supra  note  146,  Table  II  at  p.  11. 


9218 

Of  these  factors  that  result  in  setting  release  dates  outside  the  recommended 
range  in  the  parole  guidelines,  several  would  be  known  at  the  time  of  sentencing 
and  could  be  taken  into  account  by  the  sentencing  judge.  These  include  ag- 
gravating or  mitigating  offense  factors,  credit  for  past  or  future  service  in  state 
custody,  clinical  judgments  indicating  a  poorer  or  better  risk  of  repeated  criminal 
behavior  than  suggested  by  the  factors  taken  into  consideration  in  the  guide- 
lines,'*' and  health  or  emotional  problems  that  justify  a  lighter  sentence  than 
might  ordinarily  be  given.  In  addition,  the  sentencing  judge  should  be  able  at 
the  sentencing  hearing  to  direct  the  Bureau  of  Prisons  to  turn  a  prisoner  over  to 
the  inunigration  officials  for  deportation  at  the  end  of  a  specified  term  of 
imprisonment. 

As  discussed  above,  some  decisions  outside  the  guidelines  would  not  occur 
under  the  proposed  determinate  sentencing  provisions.  First,  sentences  above 
the  guidelines  for  purposes  of  permitting  a  prisoner  to  complete  a  specific  pro- 
gram should  not  occur  with  determinate  sentences.  If  the  term  of  imprisonment  is 
knowji  from  the  beginning,  the  prisoner's  participation  in  institutional  programs 
can  be  planned  to  utilize  the  time  available  to  the  prisoner's  best  advantage. 
Conversely,  cases  are  rare  in  which  a  sentence  below  the  guidelines  is  warranted 
because  of  outstanding  institutional  progress.  Moreover,  if  the  stated  purpose 
of  a  sentence  is  just  punishment  or  deterrence,  rather  than  rehabilitation,  out- 
standing institutional  progress  should  not  affect  the  appropriate  length  of 
sentence. 

If  the  parole  system  is  retained,  it  can  deal  with  the  rare  cases  where  a  term 
of  imprisonment  should  be  shortened  because  of  outstanding  institutional  prog- 
ress or  liecause  the  prisoner  ))ecomes  seriously  ill.  If  the  itarole  system  were 
altolished.  such  cases  could  l)e  handled  l)y  having  the  Bureau  of  Prisons  transfer 
the  prisoner  to  an  appropriate  medical  facility  or  make  application  to  the 
sentenciiig  court  for  a  reduction  of  sentence. 

If  the  parole  system  is  retained,  as  provided  in  the  i)roposed  f-riminal  code, 
the  present  duplication  of  judicial  and  Parole  Commission  hearings  on  the 
approi»riate  length  of  sentence  will  continue.'"'  If  parole  were  abolished,  the 
.second  liearing  on  the  appropriate  term  of  imprisonment  would,  of  course,  be 
eliminated  altogether. 

The  abolition  of  parole  would  obviously  obviate  the  nee<:l  for  the  existing  com- 
plex x-eview  procedure  for  parole  decisions,  a  procedure  that,  in  fact,  has  little 
impact  on  release  dates  of  prisoners.  Under  current  law.  the  first  stage  of  review 
of  the  parole  examiners'  decisions  is  conducted  by  the  regional  coiumissioiier. 
I'here  were  3,425  appeals  to  the  regional  commissioner  between  October  1,  1974, 
and  September  30.  1975,  and  the  decision  of  the  hearing  examiner  panel  was 
affirmed  in  S0.7  percent  of  the  cases.'"'"  The  regional  appellate  hearing  involves 
only  a  single  regional  conunissioncr ;  other  regional  commissioners  become  in- 
volved in  reviewing  tlie  record  only  if  the  regional  commissioner  wishes  to  reverse 
the  decision  of  the  liearing  examiners  or  alter  the  release  date  by  more  than 
ISO  day.s.  '^'  There  is  a  final  ai)peal  to  the  National  Ai)peals  I?oard  of  any  denial 
of  an  appeal  to  the  regional  commissioner.  This  Board  costs  ■$ir>9.()(K)  jier  year"- 
and  conlirnis  tiie  decisions  at  the  regionjd  level  94.5  percent  of  the  time.'"'  Thus. 
the  total  appellate  process  results  in  a  change  in  the  release  date  of  only  531  of 
the  3,425  prisoners  who  appeal  release  decisions  per  year.'"' 

2.  Bureau  of  PrlsojiH.  It  seems  unlikely  that  the  d(>ternunate  sentencing  pro- 
posals will  have  any  ai)preciabU>  effect  <»n  the  size  of  tlie  federal  i)rison  popula- 
tion and.  therefore,  on  the  budget  of  the  Bureau  of  Prisons.  In  establishing 
sentencing  guidelines,  the  Sentencing  C(»mmission  will  be  making  judgments  as 
to  the  appropriateness  of  incarceration  for  certain  types  of  offcu.ses  and  olTenders. 
The  process  of  determining  wliich  categories  of  offenders  need  to  be  incarcerated 


""Many  of  thoso  casi's  iiro  lms(Ml  on  n  rcliiiliilitiitiim  tlicurv  of  sciitciiciiiir  (luit  iu-oIimIiIv 
woiilfl  not  Ix"  used  a.'j  the  basi.s  of  (lofi-rniininK  the  Icnfrili  of  sentence  under  the  determinate 
sentoncin;:  lirojxjsals. 

""  As  noted  aliove.  liowever.  T'arol(>  ('onuiiission  lienrincr.s  would  no  longer  ponslder  factors 
known  at  the  time  of  sentencing';  those  factors  would  l)e  considered  only  at  the  sentencing 
hc.'irinu:.  ' 

'■•"  Molerhocfer.  nupra  note  2!».  a(  1.", 

'■■•i_2S(M'M{.  §  2.2.^>  (h)  and  (c). 

''^•-Siiiira  note  It:!.  Tills  lijrni'e  does  not  iTiclude  sniiport  cost  other  than  rent  and  coni- 
munications  that  nr(>  shared  with  the  regional  and  ciMitral  office. 

■'^••'' Moicrltoofer,  mipni  note  "Jit.  at  1  .">. 

'^'  The  same  case  may  appear  in  lliesc  statistics  twice  hecause  of  the  ivossihility  tli.ir  a 
particular  release  dale  has  been  modified  at  both  the  regional  and  national  levels. 


9219 

and  wliidi  do  not  will  result  in  a  setting  of  priorities  in  the  use  of  prison  f:ieili- 
ties.  While  these  priorities  may  result  in  some  changes  in  the  makeup  of  the 
prison  population,  such  as  more  repeat  offenders  in  prison  and  fewer  first  offense 
car  thieves,  the  Sentencing  Conmiission  can  be  expected  to  take  into  account  the 
capacity  of  the  federal  prison  system  so  as  not  to  create  guidelines  that  would 
substantially  alter  the  average  term  of  imprisonment  or  the  size  of  the  prison 
population/^  However,  it  is  possible  that  sentencing  guidelines  will  alter  the 
nature  of  prison  facilities  somewhat  if,  for  example,  the  guidelines  lead  to  the 
incarceration  of  greater  numbers  of  violent  offenders  who  require  particularly 
secure  facilities;  and,  if  fewer  non-violent  first  offenders  convicted  of  minor 
offenses  were  sentenced  to  terms  of  imprisonment,  there  would  be  less  need  for 
minimum  security  facilities. 

If  parole  supervision  were  abolished,  it  is  possible  that  there  would  be  an 
increased  burden  on  conmiunity  treatment  centers  because  of  the  need  for  a 
prisoner  about  to  be  released  to  serve  the  last  part  of  his  sentence  in  an  environ- 
ment that  will  aid  his  transition  back  into  the  community.  This  burden  on  the 
community  treatment  centers  would  be  lessened  if  other  minimum  security  facili- 
ties were  used  for  some  prisoners  about  to  be  released  and  further  reduced  if  the 
requirement  for  spending  a  transition  period  in  a  minimum  security  facility 
were  applied  to  a  narrower  class  of  prisoners  or  at  the  discretion  of  the  Bureau 
of  Prisons,  as  suggested  by  the  Director  of  the  Bureau  of  Prisons.^""* 

The  simplified  procedure  that  would  result  from  using  credit  towai'd  early 
release  z-ather  than  the  parole  system  to  determine  release  dates  should  not  be  as 
costly  for  the  Bureau  of  Prisons  to  adiiiinister  as  the  existing  good-time  allow- 
ance provisions.^"^  Under  a  system  of  periodic  vesting  of  credit  toward  early 
release  for  good  behavior  and  denial  of  credit  for  bad  behavior  during  the  same 
short  period  of  time,  it  would  be  less  time  consuming  to  keep  records  than  it  is 
undt'r  the  more  complex  forfeiture  provisions  in  current  law  which  permit  the 
forfeiture  of  any  amount  of  good  time  accumulated  up  to  the  time  of  the  viola- 
tion.^^* In  addition,  since  the  simplified  procedure  would  not  permit  the  restora- 
tion of  credit  toward  early  release  that  had  been  withheld  because  a  prisoner 
had  not  complied  with  institution  regulations  for  a  ten-day  period,  the  cost  of 
periodic  review  of  the  question  whether  to  restore  withheld  or  forfeited  good 
time  would  be  avoided.  Further,  the  provisions  for  credit  toward  early  release 
would  affect  the  term  of  imprisonment  of  all  prisoners  to  whom  they  apply, 
rather  than  only  those  prisoners  who  are  released  at  the  expiration  of  sentence 
less  good  time  or  who  are  ineligible  for  parole  at  the  time  recommended  in  the 
parole  guidelines  because  they  have  forfeited  good  time  that  has  not  been  re- 
stored— fewer  than  half  the  prisoners  in   the  federal  prisons.^^" 

It  should  be  noted,  however,  that  credit  toward  early  release  could  be  withheld 
only  after  compliance  with  due  process  procedures  similar  to  those  now  required 
to  be  followed  for  the  withholding  of  good  times.^™  While  the  simpler  provisions 
may  affect  these  procedures  somewhat,  it  is  not  expected  that  there  would  be  a 
significant  cost  saving. 

3.  United  States  Prohation  System,.  S.  1437  and  H.R.  6869  would  have  very  little 
overall  impact  on  the  United  States  Probation  System.  Its  existing  functions 
would  be  expanded  only  by  a  requirement  that  the  pre-sentence  reports  it  pre- 
pares include  a  statement  of  the  guidelines  categories  of  offense  and  offender 
appUcable  to  the  defendant  and  of  any  factors  that  the  probation  oflicer  believes 
might  warrant  a  sentence  outside  the  guidelines.^"^  It  is  unlikely  that  this  require- 
ment will  have  an  appreciable  effect  on  the  workload  of  the  Probation  System. 

^^  Senator  Edward  M.  Kennedy,  in  discussing  his  sentencing  guidelines  bill,  S.  2699  94tli 
Congress,   said  : 

"It  is  likely  that  the  guidelines  would  mandate  sentences  substantially  less  than  the 
maximums  now  authorized  by  law.  But  in  terms  ot  actual  time  served  I  do  not  see  a  radical 
change.  Nor  do  I  perceive  the  possibility  of  the  guidelines  approach  increasing  prison 
populations.  I  suspect  that  sentences  of  imprisonment  would  be  reserved  for  the  more 
serious  crimes,  with  petty  offenders — too  often  the  cause  of  overcrowded  prisons — avoiding 
lengthy  prison  terms."  Kennedy,  "Criminal  Sentencing :  A  Game  of  Chance,"  60  Judicature 

1^  See  note  1.36,  supra  and  accompanying  text. 

^■'Chapter  .309  of  title  18,  United  States  Code. 

1^18  U.S.C.   4165. 

^^  See  note  103,  supra  and  accompanying  text. 

wo  See  Wolff  V.  McDonnell,  418  U.S.  .528  (1974). 

i«i  Proposed  amendment  to  Rule  11(c)(2)   of  the  Federal  Rules  of  Criminal  Procedure. 


9220 

The  abolition  of  parole  supervision  would  have  a  greater  impact  on  the  Pro- 
bation System,  although  it  would  probably  not  result  in  a  cost  saving  or  reduc- 
tion in  the  personnel  level  of  the  System.^'-  While  there  would  be  no  parole 
supervision,  the  Probation  System  would  still  need  to  provide  assistance  to 
prisoners  who  recpiest  it  during  the  transition  to  the  community.  In  addition, 
the  Probation  System  might  be  required  to  provide  assistance  requested  by  a 
prisoner  during  a  period — perhaps  ninety  days — immediately  following  his  re- 
lease. In  providing  these  services,  the  Probation  System  would  work  closely  with 
the  halfway  houses  and  other  community-based  treatment  centers.^*"  The  cost 
of  this  program  would  obviously  depend  on  the  ability  of  the  Probation  System 
to  develop  programs  that  were  viewe<l  by  the  prisoners  as  helpful.  It  seems  prob- 
able that  many  prisoners  would  seek  the  services,  particularly  assistance  in  ob- 
taining employment,  while  they  were  still  in  custody,  in  preparation  for  their 
release.  Once  they  had  been  released,  however,  there  might  be  less  incentive  to 
request  services  from  the  Probation  System  because  the  programs  would  be 
entirely  voluntary  and  the  prisoner  would  no  longer  be  under  any  form  of 
supervision. 

Even  if  the  abolition  of  pai'ole  caused  a  reduction  in  supervisory  responsibili- 
ties of  the  Probation  System  ^"^  the  overall  demands  on  the  Probation  System 
woidd  probably  not  be  reduced,  for  two  reasons.  First,  if  the  Probation  System 
did  not  have  to  supervise  parolees,  it  would  probably,  and  appropriately,  spend 
more  time  supervising  probationers.  Second,  there  is  a  growing  use  in  the  Fed- 
eral criminal  justice  system  of  pretrial  divei'sion,  which  involves  supervision  by 
probation  officers.  This  supervision  is  used  for  an  estimated  4  or  5  percent  ^^  of 
the  matters  now  referred  to  the  United  States  Attorney's  office  in  32  federal 
districts.^**  The  program  will  probably  be  used  by  over  half  the  federal  districts 
within  the  next  year  or  so. 

4.  Federal  Court  Si/stcm.  The  creation  of  the  United  States  Sentencing  Com- 
mission is  the  only  aspect  of  the  determinate  sentencing  proposal  that  will  have 
a  measurable  impact  on  the  resource  needs  of  the  federal  courts.  Howevei*,  a 
number  of  other  aspects  of  the  sentencing  proposals  will  affect  the  nature  of 
sentencing  proceedings  and  of  issues  before  the  appellate  courts. 

The  major  cost  of  the  proposals  to  the  Federal  court  system  would  probably 
be  the  cost  of  the  United  States  Sentencing  Commission  itself.  The  proix)sals  pro- 
vide for  a  nine-member  Commission.  Those  members  who  were  not  already  em- 
ployed by  the  federal  government  would  receive  compensation  at  the  equivalent 
of  the  GS-18  daily  rate,  and  all  members  would  receive  transportation  and  per 
diem  travel  expenses.  The  Connnission  would  have  a  full  time  staff  of  experts  in 
fields  related  to  corrections,  with  a  GS-]t)  staff  director.  The  Commission  would 
also  have  power,  in  connection  with  its  duty  to  promulgate  sentencing  guidelines 
and  policy  statements,  to  conduct  a  research  and  development  program. 

It  .seems  unlikely  that  the  sentencing  process  in  an  individual  case  will  have 
an  appreciably  different  cost  to  tlie  federal  court  system  under  the  proposals  than 
the  sentencing  process  under  current  law.  Rule  ."i^la)  (1)  of  tlu^  I<'ed(M-al  Rules 
of  Criminal  Procedure  now  requires  that  the  defendant  be  pei'niitted  to  make  a 
statement  in  his  own  behalf  and  that  defen.se  coun.sel  and  the  attorney  for  the 
government  also  be  permitted  to  speak  to  the  court.  Under  the  propo.sals  the 


1"^  Tho  TTnited  Statos  Prol)ation  Sy.stem  ir  fiscal  year  1975  had  a  budget  of  $10.-5  million 
and  had  .W.^  worl<year.s  allocated  to  parole  matters. 

!«■'  tTnder  current  law.  a  parolee  or  mandatory  releasee  may  be  required  as  a  condition 
of  release  to  reside  in  or  participate  in  .a  propfam  of  a  residential  community  treatment 
center.  IS  T'.S.C.  420!)(c)(]).  Tlius.  the  l'rol>ation  System  already  works  with'the  P.ureau 
of  Prisons  in  tlie  comuuuiity  treatment  centers  as  part  of  its  responsibilitv  to  supervise 
these  releasee.  1H  TT.R.C.  ZOn'}. 

'"*  A  probation  otlicer  now  si)ends  S.n  percent  of  his  time  sutiervislncr  parolees,  CStanley, 
Prinonem  Amnn<j  TIs:  The  Problem  of  Parole,  p.  12.5  (1976).  citlnp  Federal  .Tudicial  Center, 
I'rol)atioii  Time  Study  (February  20,  l!»7.'i))  Parole^^s  constitute  approximately  20  percent 
of  the  persons  supervised  by  a  probation  officer.  /.076  Annual  Report  of  the  nircctor, 
Admivistratirc  Office  of  United  Statcx  Courts,  T.ilile  10,  p.  17. 

""Testimony  of  Doris  Meissner  Ofhce  of  T'olicy  and  Planninjr,  F.S.  Dennrtment  of 
Justice,  on  Pretrial  Diversion  before  the  Subcommittee  on  Courts,  Civil  lyiberties.  and 
tlie  Administration  of  .Tustice,  House  Commit  lee  on  the  .Tudici.'iry,  Septeiuber  19.  197,5. 
Studies  are  in  [irocess  on  the  efTectiveness  of  pretrial  diversion  in  Vlie  federal  system 

'^  Tn  fiscal  year  197,5,  pretrial  diversion  was  used  in  C^  demonstration  districts  and  26 
non-demonstration  districfs,  resulting  in  pretrial  diversion  of  7S6  persons.  Letter  from 
Doris  M.  Meissner.  Chairperson.  Task  Force  on  Pretrinl  Diversion.  C  S  Departmout  of 
.Tnstlce.  to  Kileen  Bergsmann,  Division  of  Probation.  Administrative  Office  of  the  United 
States  Courts,  ,Tuly  ,S0,  1976. 


9221 

ouly  olianf;e  that  would  he  made  in  the  sentencing  hearing  would  be  a  require- 
ment that  the  judge  announce  how  the  guidelines  apply  to  the  convicted  defend- 
ant and  permit  the  defense  and  prosecution  to  comment  on  the  classification. 
Rather  than  requiring  more  time  for  the  hearing,  this  change  should  result  in 
focussing  the  hearing  on  the  characteristics  of  the  offense  and  the  offender,  the 
matters  most  important  to  the  determination  of  an  appropriate  sentence. 

The  proposals  will  undoubtedly  affect  the  decisions  of  defendants  as  to  whether 
to  plead  guilty.  If,  for  example,  a  defendant  were  charged  under  current  law 
with  an  offense  cari-ying  a  potential  maximum  term  of  imprisonment  of  ten  years, 
ne  might  be  reluctant  to  plead  guilty  to  the  charge  even  if  he  knew  (which  he 
probably  would  not)  that  the  average  time  served  in  prison  by  persons  convicted 
of  the  same  offense  was  suljstantially  shorter  than  ten  years.  If  a  sentencing 
guidelines  system  were  in  use,  however,  he  would  know  the  recommended  sentence 
tor  a  person  with  his  history  and  characteristics  who  was  convicted  of  the  same 
offense  under  similar  circumstances.  If  he  knew  that  the  evidence  against  him 
was  strong  and  believed  that  the  recommended  sentence  was  reasonable,  he  might 
be  more  inclined  to  plead  guilty  than  under  current  law.  On  the  other  hand,  if 
the  defendant  believed  the  evidence  was  not  strong,  or  if  he  thought  the  sentence 
recommended  in  the  guidelines  was  too  high,  he  might  be  more  inclined  to  go  to 
trial.^"' 

With  respect  to  appellate  review  of  sentences,  the  propo.sals  would  permit  a 
defendant  to  appeal  a  sentence — other  than  a  sentence  consistent  with  a  plea 
agreement  or  sentence  recommendation  made  pursuant  to  Rule  11(e)  of  the 
Federal  Rules  of  Criminal  Procedure — if  it  exceeded  the  maximum  applicable  to 
the  defendant  under  the  guidelines.  Appeal  by  the  government  would  be  per- 
mitted, with  the  Attorney  General's  approval,  if  the  sentence  were  lower  than 
that  recommended  in  the  guidelines."*  It  is  difficult  to  estimate  the  cost  of  per- 
mitting such  appellate  review  of  sentences.  It  can  be  assumed  that  approximately 
10  to  15  percent  of  the  sentences  will  be  outside  the  guidelines,""  as  is  now  the 
case  with  the  parole  guidelines,  but  for  a  number  of  reasons  it  seems  unlikely 
that  all  of  these  will  result  in  petitions  for  appellate  review.  First,  the  require- 
ment of  Attorney  General  approval  should  minimize  the  number  of  appeals  of 
sentences  below  the  guidelines.  It  can  be  expected  that  such  appeals  will  be 
limited  by  Department  of  Justice  policy  to  those  cases  where  the  sentence  is 
clearly  in  error  or  where  the  reason  for  setting  a  sentence  below  the  recom- 
mended guidelines  range  would  set  an  undesirable  precedent.  Second,  the  sen- 
tence may  not  vary  sufficiently  from  the  guidelines  to  warrant  an  appeal,  par- 
ticularly if  the  sentencing  judge  has  articulated  justifiable  reasons  for  going 


1""  In  order  for  the  sentencing  guidelines  system  to  achieve  its  goal  of  eliminating  or 
reducing  unwarranted  disparity  in  sentencing,  it  will  be  nr^cessary  to  as.sure  that  exercises 
of  prosecutorial  discretion  during  the  charging  and  plea  bargaining  stages  of  prosecution 
do  not  undermine  that  goal.  In  commenting  on  an  earlier  draft  of  this  paper,  the  Bureau 
of  Prisons,  the  United  States  Parole  Commission,  and  the  Director  of  Research  of  the 
Federal  Judicial  Center  all  stressed  the  importanee  of  guidelines  for  prosecutorial  discre- 
tion in  the  context  of  this  proposal. 

In  .Tanuary  1977,  the  Department  of  Justice  distributed,  to  the  United  States  Attorneys 
and  their  assistants,  draft  instructional  materials  relating  to  exercise  of  pro.secutorial 
discretion  in  plea  negotiations.  Those  materials  emphasized  the  importance  of  accepting 
a  plea  only  where  the  charge  or  charges  to  which  the  defendant  pleads  hear  a  reasonable 
relationship  to  the  nature  of  the  defendant's  criminal  conduct,  where  there  is  a  factual 
basis  for  the  charge  or  charges,  and  where  the  plea  will  allow  the  imposition  of  a  sentence 
that  is  appropriate  under  all  of  the  circumstances  of  the  case.  It  is  expected  that  a  revised 
version  of  those  materials  will  be  promulgated  well  before  the  effective  date  of  the  new  code 

16S  On  March  29.  1977.  the  Director  of  the  Administrative  Office  of  United  States  Courts 
submitted  to  the  Congress  proposed  legislation  approved  hv  the  Judicial  Conference  of  the 
United  States  to  amend  Rule  3.5  of  the  Federal  Rules  of  Criminal  Procedure  to  provide  for 
appellate  review  of  sentencing  at  the  instigation  of  either  the  defendant  or  the  government 

169  \  recent  study  on  the  feasibility  of  sentencing  guidelines  developed  guidelines  that 
were  based  on  empirical  research  into  past  sentencing  practices.  The  researchers  found 
that  knowledge  of  six  to  twelve  items  of  Information  could  he  used  to  predict  the  sentence 
a  judge  would  give  in  S.t  percent  of  the  criminal  cases  in  the  .iurisdictions  being  studied' 
The  researchers  also  concluded  that  additional  items  would  not  increase  the  accuracy  of 
their  predictions  by  a  sufficiently  great  percentage  to  Justify  the  expenditure  of  time  "and 
money  involved  in  using  the  information  in  a  guidelines  system.  Furthermore,  they  con- 
cluded that  some  departure  from  guidelines  is  inevitable : 

"Since  sentencing  deals  with  an  Infinite  variety  of  human  behavior,  it  is  impossible  to 
plan  in  advance  all  possible  circumstances  which  might  arise  which  would  justify  goln" 
outside  the  guidelines.  (If  one  could  identify  and  include  all  those  factors  in  the  guidelines" 
the  result  would  be  a  system  which  would  be  more  cumbersome  than  that  which  exists 
today!)  Wnkins  et  al.  Senteneinfj  Guidelines:  Structuring  Judicial  Discretion,  Final 
Report  of  the  Feasibility  Study  October  1976,  p.  84  (emphasis  in  original). 


9222 

outside  the  guidelines.  While  the  initial  level  of  appeals  may  be  fairly  high,  it 
will  probably  diminish  substantially  as  a  body  of  case  law  is  developed  concern- 
ing the  appropriateness  of  particular  reasons  for  sentences  outside  the  guide- 
lines.'™ Under  a  proposed  amendment  to  Rule  35  of  the  Federal  Rules  of  Criminal 
Procedure,  there  may  also  be  claims  that  inaccurate  categorization  of  the  offense 
or  offender  resulted  in  an  inappropriate  sentence,  although  the  number  of  such 
claims  will  probably  not  be  great  and  any  review  of  a  district  court  determina- 
tion would  be  discretionary. 

IV.    CONCLUSIONS 

Enactment  of  the  sentencing  provisions  of  S.  1437  and  H.R.  6869  would  enhance 
the  fairness  and  effectiveness  of  the  federal  sentencing  process  in  several  re- 
spects. First,  it  would  shift  the  focus  of  sentencing  away  from  the  single,  out- 
moded theory  of  rehabilitation  and  permit  a  more  balanced  approach  to  the  end 
product  of  the  criminal  justice  system.  Second,  it  would  provide  guidance  to 
judges  in  carrying  out  their  sentencing  responsibilities  in  a  fair  manner,  thereby 
serving  to  eliminate  unwarranted  disparity  at  the  time  of  sentencing.  Third,  it 
would  introduce  a  logical  division  of  related  functions,  giving  sentencing  judges 
the  responsibility  for  evaluating  the  effect  on  a  prisoner's  release  date  that  should 
result  from  factors  concerning  the  offense  and  offender  that  are  Ivuown  at  the 
time  of  sentencing,  leaving  to  the  Parole  Commission  the  determination  of  the 
effect  that  subsequent  events  should  have  on  the  release  date.  Fourth,  it  would 
permit  continued  refinements  in  federal  sentencing  policy  and  practices  through 
provisions  for  evaluating  the  effectiveness  of  the  sentencing  guidelines  and 
through  appellate  opinions  with  regard  to  sentences  outside  the  guidelines. 

If  parole  were  abolished  in  connection  with  these  proposals,  the  last  vestiges 
of  indeterminate  sentencing  would  be  eliminated.  The  prisoner  and  the  public 
would  know  that  an  announced  sentence  to  a  term  of  imprisonment  would  ac- 
tually represent  the  length  of  time  that  a  prisoner  would  spend  in  prison  (except 
for  a  small  period  that  might  be  subtracted  for  good  behavior).  The  abolition 
of  parole  would  also  eliminate  the  current,  costly  duplication  of  effort  involved 
in  having  both  the  sentencing  judge  and  the  Parole  Commission  evaluate  infornia- 
tion  known  at  the  time  of  sentencing,  with  possibly  inconsistent  results.  The 
Parole  Commission  has  been  attempting  to  reduce  unwarranted  disparity  in  sen- 
tencing for  a  number  of  years.  The  use  of  sentencing  guidelines  to  address  this 
problem  at  the  beginning  of  the  sentencing  process  will  make  it  possible  to  avoid 
unwarranted  disparity  in  decisions  whether  or  not  to  incarcerate  a  convicted 
defendant  and  in  decisions  as  to  release  dates  of  prisoners  who  are  similarly 
situated. 

The  abolition  of  parole  would  not  have  a  deleterious  effect  on  prison  discipline 
or  participation  in  institutional  educational  and  vocational  progranis;  in  fact, 
it  would  have  a  favorable  effect  because  of  the  certainty  of  the  release  date  and 
the  provision  of  an  incentive  to  plan  for  the  future.  Finally,  the  elimination  of 
parole  supervision  would  have  little,  if  any,  effect  on  recidivism  rates  of  re- 
leased prisoners,  but  would  permit  probation  ofl3eers  to  provide  assistance  to  re- 
leasees in  a  context  more  conducive  to  success  than  now  exist  by  virtue  of  the 
coercive  nature  of  the  parolee  probation  officer  relationship. 


i'^"  It  hfis  ovpn  bpon  sufrsestod  tliat  tlio  .ivailal)ility  of  appellate  review  of  sontenres  might 
actually  reduce  the  burden  on  the  courts  of  appeals.  Some  commentators  believe  that  manv 
groundless  appeals  and  petitions  for  hai)eas  corpus  brou?;lit  todav  probably  would  not  be 
brought  if  tiie  convicted  defendant  had  a  mechanLsm  for  challenging  his  sentence   See   eg 
Frankel,  Criminal  Sentences:  Law  Without  Order,  pp.  81-82  '        ' 


9223 

ATTACHMENT  A-1  PAROLE  GUIDELINES* 

ADULT 

[Guidelines  for  decisionmaking,  customary  total  time  served  before  release  (including  jail  time)] 


Offense  characteristics:  severity  of 
offense  behavior  (examples) 


Offender  characteristics:  parole  prognosis  (salient  factor  score) 


Very  good 
(11  to  9) 


Good  (8  to  6)     Fair  (5  to  4)       Poor  (3  to  0) 


LOW 

Marihuana    or   soft   drugs,    simple    possession   (small 

quantity,  for  own  use). 
Minor  theft  (includes  larceny  and  simple  possession 

of  stolen  property  less  than  $1,000). 
Walkaway 


6  to  10  mo....  8  to  12  mo....  10  to  14  mo...  12  to  18  mo. 


LOW  MODERATE 


Alcohol  law  violations 

Counterfeit  currency  (passing/possession  less  than  $1,000). 

Forgery/fraud  (less  than  $1,000) 

Immigration  law  violations ^___ 

Income  tax  evasion  (less  than  $10,000) 

Selective  Service  Act  violations 

Theft  from  mail  (less  than  $1,000) 


'8  to  12  mo.-.-  12  to  16  mo...  16  to  20  mo...  20  to  28  mo. 


MODERATE 


Bribery  of  public  officials 

Counterfeit    currency    (passing/possession    $1,000    to 

$19,999). 
Drugs: 

Marihuana,  possession  with  intent  to  distribute 'sale 

(less  than  $5,000). 
"Soft  drugs  possession  with  intent  to  distribute/sale" 
(less  than  $500). 

Embezzlement  (less  than  $20,000) 

Firearms  Act,  possession/purchase/sale  (single  weapon— 

not  sawed-off  shotgun  or  machinegun). 

Income  tax  evasion  ($10,000  to  $50,000) 

Interstate  transportation  of  stolen/forged  securities  (less 

than  $20,000). 

Mailing  threatening  communications 

Misprision  of  felony 

Receiving  stolen  piopelty  with  intent  to  resell  (less  than 

$20,000). 

Smuggling/transportation  of  aliens 

Theft/forgery/fraud  ($1,000  to  $19,999) 

Theft  of  motor  vehicle  (not  multiple  theft  or  for  resale)— 

HIGH 

Burglary  or  larceny  (other  than  embezzlement)  from 

bank  or  post  office. 
Counterfeit   currency   (passing/possession    $20,000    to 

$100,000). 

Counterfeiting  (manufacturing) 

Drugs: 

Marihuana,  possession  with  intent  to  distribute/sale 

($5,000  or  more). 
"Soft  drugs  possession  with  intent  to  distribute/sale" 
($500  to  $5,000). 

Embezzlement  ($20,000  to  $100,000) 

Explosives,  possession 'transportation 

Firearms     Act,     possession/purchase/sale     (sawed-off 

shotgun(s),  machinegun(s),  or  multiple  weapons). 
Interstate    transportation    of    stolen/forged    securities 

($20,000  to  $100,000). 

Mann  Act  (no  force— commercial  purposes) 

Organized  vehicle  theft 

Receiving  stolen  property  ($20,000  to  $100,000) 

Theft/forgery/fraud  ($20,000  to  $100,000) 


>12  to  16  mo...  16  to  20  mo...  20  to  24  mo...  24  to  32  mo. 


16  to  20  mo...  20  to  26  mo...  26  to  34  mo...  24  to  44  mo. 


VERY  HIGH 

Robbery  (weapon  or  threat) 

Drugs: 

"Hard  drugs  "possession  with  intent  to  distribute/sale 

(no  prior  conviction  for  sale  of  "hard  drugs)." 
"Soft  drugs"  possession  with  intent  to  distribute/sale 
(over  $5,000). 

Extortion 

Mann  Act  (force) 

Sexual  act  (force) 

See  footnotes  at  end  of  table. 

92-465 — 77 12 


'26  to  36  mo.  -  36  to  48  mo. .  48  to  60  mo. .  60  to  72  mo. 


9224 

ATTACHMENT  A-1  PAROLE  GUIDELINES'-Continued 

ADULT 

[Guidelines  for  decisionmaking,  customary  total  time  served  before  release  (including  jail  time)! 


Offender  characteristics I'parole  prognosis  (salient  factor  score) 


Offense  characteristics:  severity  of 
offense  behavior  (examples) 


Very  good 
(11  to  9) 


Good  (8  to  6)      Fair  (5  to  4)       Poor  (3  to  0) 


GREATEST 

Aggravated  felony  (e.g.  robbery,  sexual  act,  aggravated  ' 
assault)— weapon  fired  or  personal  injury. 

Aircraft  hijacking 

Drugs:  "Hard  drugs"  possession  with  intent  to  distribute/ 
sale  for  profit  (prior  conviction(s)  for  sale  of  "hard 
drugs)." 

Espionage 

Explosives  (detonation) 

Kidnaping 

Willful  homicide 


(Greater  than  above— however,  specific  ranges  are  not  given 
due  to  the  limited  number  of  cases  and  the  extreme  varia- 
tions in  severity  possible  within  the  category.) 


NOTES 

1.  These  guidelines  are  predicated  upon  good  institutional  conduct  and  program  performance. 

2.  If  an  offense  behavior  is  not  listed  above,  the  proper  category  may  be  obtained  by  comparing  the  severity  of  the 
offense  behavior  with  those  of  similar  offense  behaviors  listed. 

3.  If  an  offense  behavior  can  be  classified  under  more  than  one  category,  the  most  serious  applicable  category  istj 
be  used. 

4.  If  an  offense  behavior  involved  multiple  separata  offenses,  ths  severity  level  may  be  increased. 

5.  If  a  continuance  is  to  be  given,  allow  30  d  (1  mo)  for  release  program  provision. 

6.  "Hard  drugs"  include  heroin,  cocaine,  morphine,  or  opiate  derivatives,  and  synthetic  opiate  substitutes.  "Soft 
drugs"  include,  but  are  not  limited  to,  barbiturates,  amphetamines,  LSD,  and  hashish. 

•  28  C.F.R.  §2.20,  41  F.R.37322  (September  3,  1976). 

YOUTH  AND  NARA 
[Guidelines  for  decisionmaking,  customary  total  time  served  before  release  (including  jail  time)] 


Offense  characteristics:  severity  of 
offense  behavior  (examples) 


Offender  characteristics:  parole  prognosis  (salient  factor  score) 


Very  good 
(11  to  9) 


Good  (8  to  6)      Fair  (5  to  4)       Poor  (3  to  0) 


LOW 

Marihuana  or  soft  drugs,  simple  possession  (small  quan- 
tity, for  own  use). 

Minor  theft  (includes  larceny  and  simple  possession  of 
stolen  property  less  than  $1,0U0). 

Walkaway 

LOW  MODERATE 

Alcohol  law  violations.- 

Counterfeit  currency  (passing/possession  less  than 
$1,000). 

Forgery/fraud  (less  than  $1,000) 

Immigration  law  violations 

Income  tax  evasion  (less  than  $10,000) 

Selective  Service  Act  violations 

Theft  from  mail  (less  than  $1,000) 

MODERATE 

Bribery  of  public  officials.. 

Counterfeit    currency    (passing/possession    $1,000    to 

$19,999). 
Drugs: 

Marihuana,  possession  with  intent  to  distribute/sale 

(less  than  $5,000). 
"Soft  drugs,"  possession  With  intent  to  distribute/sale 
(less  than  $500). 

Embezzlement  (less  than  $20,000) 

Firearms  Act,  possession  purchase  sale  (single  weapon— 
not  sawed-off  shotgun  or  machinegun). 

Income  tax  evasion  ($10,000  to  $50,000) 

Interstate  transportation  of  stolen/forged  securities  (less 
than  $20,000). 

Mailing  threatening  communications 

Misprision  of  felony 

Receiving  stolen  property  with  intent  to  resell  (less  than 
$20,000). 

Smuggling/transporting  of  aliens 

Theft/forgery/traud  ($1,000  to  $19,999) 

Theft  of  motor  vehicle  (not  multiple  theft  or  for  resale).. 

See  footnotes  at  end  of  table. 


6  to  10  mo. 


8  to  12  mo. 


10  to  14  mo...  12  to  18  mo. 


i8  to  12  mo....  12  to  16  mo...  16  to  20  mo...  20  to  26  mo. 


>9  to  13  mo....  13  to  17  mo...  17  to  21  mo...  21  to  28  mo. 


9225 

YOUTH  AND  NARA— Continued 
(Guidelines  for  decisionmaking,  customary  total  time  served  before  release  (including  jail  time)] 


Offender  characteristics:  parole  prognosis  (salient  factor  score) 


Offense  characteristics:  severity  of 
offense  behavior  (examples) 


Very  good 
(11  to  9) 


Good  (8  to  6)     Fair  (5  to  4)       Poor  (3  to  0) 


HIGH 

Burglary  or  larceny  (other  than  embezzlement)  from 

bank  or  post  office. 
Counterfeit  currency   (passing   possession   $20,000   to 

$100,000). 

Counterfeiting  (manufacturing) _ 

Drugs: 

Marihuana,  possession  with  intent  to  distribute/sale 

($5,000  or  more). 
"Softdrugs,"  possession  with  intentto  distribute/sale 
($500  to  $5,000). 

Embezzlement  ($20,000  to  $100,000) 

Explosives,  possession/transportation 

Firearms  Act,  possession  purchase  sale  (sawed-off  shot- 

gun(s),  machinegun(s),  or  multiple  weapons). 
Interstate    transportation    of    stolen/forged    securities 

($20,000  to  $100,000). 

Mann  Act  (no  force— commercial  purposes) — 

Organized  vehicle  theft 

Receiving  stolen  property  ($20,000  to  $100,000) 

Theft/forgery/fraud  ($20,000  to  $100,000) 


>12  to  16  mo...  16  to  20  mo...  20  to  26  mo...  26  to  32  mo. 


VERY  HIGH 


Robbery  (weapon  or  threat) 

Drugs: 

Hard  drugs  possession  with  intent  to  distribute/sate 

(no  prior  conviction  for  sale  of  hard  drugs). 
Soft  drugs  possession  with  intent  to  distribute/sale 
(over  $5,000). 

Extortion 

Mann  Act  (force) 

Sexual  act  (force) 


20  to  27  mo...  27  to  34  mo...  34  to  41  mo...  41  to  48  mo. 


GREATEST 

Aggravated  felony  (e.g.  robbery,  sexual  act,  aggravated  ' 
assault)— weapon  fired  or  personal  injury. 

Aircraft  hijacking 

Drugs:  ''Hard  drugs"  possession  with  intent  to  distribute/ 
sale  for  profit  (prior  conviction(s)  for  sale  of  hard  drugs) 

Espionage 

Explosives  (detonation). 

Kidnaping 

Willful  homicide 


(Greater  than  above— however,  specific  ranges  are  not  given 
I  due  to  the  limited  number  of  cases  and  the  extreme  varia- 
tions in  severity  possible  within  the  category.) 


NOTES 

1.  These  guidelines  are  predicated  upon  good  institutional  conduct  and  program  performance. 

2.  If  an  offense  behavior  is  not  listed  above,  the  proper  category  may  be  obtained  by  comparing  the  severity  of  the 
offense  behavior  with  those  of  similar  offense  behaviors  listed. 

3.  If  an  offense  behavior  can  be  classified  under  more  than  one  category,  the  most  serious  applicable  category  is  to  be 
used. 

4.  If  an  offense  behavior  involved  multiple  separate  offenses,  the  severity  level  may  be  increased. 

5.  If  a  continuance  is  to  be  given,  allow  30  d  (1  mo)  for  release  program  provision. 

6.  "Hard  drugs"  include  heroin,  cocaine,  morphine,  or  opiate  derivatives,  and  synthetic  opiate  substitutes.  "Soft 
drugs"  include,  but  are  not  limited  to,  barbiturates,  anphetamines,  LSD,  and  hashish. 


9226 

ATTACHMENT  A-2 

SALIENT  FACTOR  SCORE* 

Item  A n 

Total    score D 

(No  prior  convictions  adult  or  juvenile)  =3 

One  prior  conviction =2 

Two  or  three  prior  convictions=l 

Four  or  more  prior  convictious=0 

Item  B n 

No  prior  incarcerations  (adult  or  juvenile)  =2 
One  or  two  prior  incarcerations^! 
Three  or  more  prior  incarcerations=0 

Item    C n 

Age  at  first  commitment  (adult  or  juvenile) 
(26  or  older)  =2 
(18  to  25)  =1 
(17  or  younger)  =0 

Item   D D 

Commitment  offense  did  not  involve  auto  theft  or  check  (s)  =1 
Otherwise=0 

Item    E n 

Never  had  parole  revoked  or  been  committed  for  a  new  offense  while 

on  parole,  and  not  a  probation  violator  this  time=l 
Otherwise =0 

Item    F n 

No  history  of  heroin  or  opiate  dependence=:l 
Otherwise=0 

Item    G n 

Verified  employment  (or  full-time  school  attendance)  for  a  total  of  at 

least  6  months  during  the  last  2  years  in  the  community=l 
Otherwise^O 
Total  score D 

*2S  C.F.R.  §  2.20,  42  F.R.  12045  (March  2,  1077). 


9227 


ATTACHMENT  B 

AVERAGE  SENTENCES  IMPOSED  AND  SERVED  FOR  FEDERAL  OFFENSES  COMMITTED  IN  RANDOMLY  SELECTED 

DISTRICTS 


Bank  robbery 


Securities 


District"  (number  of  judges) 


Number 
of  cases 


Alabama,  Southern  (2) 5 

Oklahoma,  Eastern  (3) 1 

Pennsylvania,  Eastern  (19) .—  50 

Texas,  Southern  (8) 10 

Virginia,  Eastern  (6), 25 

Illinois,  Northern  (12) 21 

New  York,  Southern  (27) 9 

California,  Middle  (16) 25 

Georgia,  Northern  (6) 36 

Missouri,  Western  (5) 16 

Florida,  Northern  (2)._._ 18 

Kansas  (4) 32 


Average 

sentence 

served 

(imposed  -') 

(months) 


47.8 
(176.4) 

32.0 
(120.0). 

38.4 
(92.0) 

41.0 
(104.4) 

35.6 
(139.2) 

45.3 
(94.7) 

13.2 
(30.7) 

17.7 
(31.1) 

20.0 
(41.4) 

15.8 
(31.0) 

23.4 
(48.  7) 

27.8 
(56.0) 


68  percent  1 

sentence 

range 

(months) 


Number 
of  cases 


Averag   i 

sentence 

served 

(imposed  -) 

(months) 


68  percent 

sentenc) 

range 

(monthsa 


38. 0-  57. 6 
(98.3-254.5). 
NA 


22.  4-  54.  4 
(54.0-130.0) 
21.7-  60.3 
(51.8-147.0) 
17.5-  53.7 
(92. 1-186.  3) 
19.2-  64.4 
(38.9-150.5) 
5.2-  21.2 
(8.9- 
6.9 
(10.4 
8.0 
(19.6 
6.7- 
(9.3- 
7.1- 
(23.6-73.8) 
18.  5-  37. 1 
(35.5-  74.5) 


52.5). 

28.5 

51.8). 

32.0 

63.2). 

24.9 

51.7). 

39.7 


10 
i4' 


19 


10 


33.0  . 
(72.0). 


12.3 
(39.0) 

18.8 
(44.4) 

17.2 
(62.4) 

24.7 
(46.1) 

12.2 
(23.2) 

29.2 
(50.0) 

13.0 
(33.  5) 

21.7 
(25.0) 


5.0 

(1.0 

8.7 

(23. 1 

14.8 

(64.6 

11.5 

(14.  3 

3.9 

(1.0 

10.9 

(23. 0 

6.6 

(14.5 

3.8 

(1.1 


■19.6 
-86.  4) 
28.9 
65.7) 
-21.6 
90.2) 
37.9 
-77.9) 
-20.5 
-47.3) 
-47.5 
77.0) 
-19.4 
-52.  5) 
39.6 
-49. 9) 


28.3 
(58.8) 


11.2-45.4 
(26. 8-98.  8) 


1  The  range  is  derived  from  the  standard  deviation  (not  shown).  68  percent  of  all  sentences  given  for  each  group  of 
offenders  are  within  this  range. 

-  If  a  youth  offender  is  sentenced  under  18  U.S.C.  5010(b),  the  Bureau  of  Prisons  records  the sentenceimposedasbyears* 
If  a  youth  offender  is  sentenced  under  18  U.S.C.  5010(c),  the  record  shows  the  actual  sentence  imposed. 

Source:  Bureau  of  Prisons  Statistics  on  releasees  in  fiscal  years  1974  and  1975. 


ATTACHMENT  C 
MALE  OFFENDERS  DISCHARGED  FROM  PRISON  DURING  FISCAL  YEARS  1974  AND  1975  (FEDERAL  OFFENSES) 


Crime 


Average 
sentences 

imposed 
(months) 


Bank  robbery 

Marihuana  ' 

Autotheft 

Narcotics 

Controlled  substance'. 

Securities 

Embezzlement 

Fraud 

Forgery 


129.  56 
38.84 
42.90 
56.49 
32.47 
46.30 
25.82 
30.28 
37.58 


Average 

sentence 

served 

(months) 


Percentage 

of  imposed 

sentence 

actually 

served 


45.46 
14.89 
22.00 
23.50 
14.40 
20.81 
11.80 
12.86 
19.86 


35 
38 
51 

42 
44 
45 
46 
42 
53 


Number  of 
offenders 


886 
1,001 
839 
1,396 
405 
251 
156 
340 
409 


>  The  parole  guidelines  issued  Sept.  3,  1976  (41  CFR  37316)  changed  the  rating  of  the  offenses  of  possession  of  a  small 
quantity  of  marihuana  or  "soft  drugs"  for  personal  use  from  "low  moderate"  to  "low,"  thus  changing  previous  range  of 
sentences  within  the  guidelines  of  8  to  25  months  to  a  new  range  of  6  to  18  monihs,  depending  upon  thesalient  factor  score 
of  the  particular  prisoner. 

Source:  Office  of  Program  Planning,  U.S.  Bureau  of  Prisons. 


9228 


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9229 

TJjS.  Senate, 
Committee  on  the  Judiciary, 
Subcommittee  on  Criminal  Laws  and  Procedures, 

Washington,  D.C.,  June  23,  1977. 
Hon.  Griffin  B.  Bell, 
Attorney  General  of  the  United  States, 
Department  of  Justice,  Washington,  D.C. 

Dear  General  Bell  :  Enclosed  is  a  copy  of  the  statement  of  the  American 
Civil  Liberties  Union  and  The  Reporters'  Committee  for  Freedom  of  the  Press 
submitted  in  hearings  before  the  Subcommittee  on  Criminal  Laws  and  Proce- 
dures on  S.  1437,  the  "Criminal  Code  Reform  Act  of  1977". 

It  would  be  most  helpful  to  the  Committee  to  have  for  the  record  your  com- 
ments with  respect  to  the  issues  raised  in  these  statements.  Since  the  record 
will  be  closed  July  15,  1977,  I  would  appreciate  your  observations  before  that 
date. 

With  kindest  regards,  I  am 
Sincerely  yours, 

John  L.  McClellan. 


Office  of  the  Attorney  General, 

Washington,   D.C. 
Hon.    John   L.   McClellan. 

Chairman,  Suhconimittee  on  Criminal  Lairs  and  Procedures,  Committee  on  the 
Judiciary,   U.S.  Senate,  Washington,  D.C. 

Dear  Mr.  Chairman  :  Pursuant  to  your  reqiiest,  thex'e  are  enclosed  two  series 
of  Departmental  comments  concerning  suggestions  for  tlie  modification  of  S.  14.">7 
that  have  been  made  in  statements  filed  with  your  Subcommittee  by  the  American 
Civil  Liberties  Union  and  by  the  Legal  Defense  and  Research  Fund  of  the 
Reporters  Committee  for  Freedom  of  the  Press. 

The  suggestions  made  by  the  ACLU  and  the  Reporter's  Committee  are  directed 
largely  to  obtaining  change  in  particular  provisi(»ns  of  the  new  Code  that  would 
carry  forward  the  existing  state  of  the  fedei-al  criminal  law.  The  fact  that 
certain  Code  provisions  are  derived  from  existing  law,  of  course  does  not  neces- 
sarily mean  that  they  reflect  the  best  possilile  approach  to  the  issues  involved. 
It  may  mean,  for  example,  that  diflSculty  may  have  been  anticipated  in  securing 
congressional  agreement  as  to  the  need  for  change  in  the  law.  and,  if  need  were 
established,  agreement  as  to  the  direction  which  any  change  should  take.  As  you 
know,  that  difficulty  did  arise  with  respect  to  many  of  the  particular  issues 
that  have  been  raised  in  the  statements.  The  Code  provisions  in  those  areas 
adopted  the  existing  law  approach  because  it  was  a  reasonable  and  acceptable 
middleground. 

What  is  really  needed  at  this  time  is  an  integrated,  workable  basic  structure 
for  the  federal  criminal  code,  together  with  such  substantive  changes  from  cur- 
rent law  as  can  generally  be  agreed  upon.  Other  specific  changes  may  then  be 
made,  within  that  structure,  in  the  future. 

Both  series  of  comments  follow  the  order  of  the  subjects  as  they  appear  in 
the  statements.  We  appreciate  the  additional  time  that  has  been  afforded  for 
the  review  of  the  statements,  and  hope  that  the  comments  will  prove  helpful 
to  the  Judiciary  Committee  in  the  course  of  its  work.^ 

We  look  forward  to  early  Senate  passage  of  S.  1437. 
Sincerely, 

Griffin  B.  Bell,  Attorney  General. 

Enclosures. 


1  The  comments  by  the  Attorney  General  were  not  provided  until  after  the  Subconnnittee 
reported  the  bill  to  the  Committee  on  the  Judiciary  on  August  5,  1977,  and  include  observa- 
tions on  the  bill  as  reported. 


9230 

Comments  ox  ACLU  Suggestions  Concerning  S.  1437 

1.  ACLU  recommendation. — The  ACLU  suggests  that  section  401(a)  relating 
to  accomplice  liability,  should  be  narrowed  by  eliminating  the  term  "counsel" 
from  the  detinition  of  "abef. 

Comment. — The  word  "counsel",  which  appears  in  the  existing  statute  per- 
tahiing  to  accomplice  lialiility  (IS  U.S.C.  2),  was  carried  forward  in  the  hill  in 
order  to  parallel  the  current  scope  of  the  law.  In  the  August  4  Committee  Print 
of  S.  1437,  however,  the  term  has  been  deleted  from  the  definition  of  "abet"  for 
the  reason  that  "counseling"  is  Included  in  the  concept  of  "aids",  also  pro- 
scribed in  section  401.  Counseling  will  still  be  covered  by  the  Code,  but  the  new 
version  clarifies  the  fact  that  it  is  covered  only  to  the  extent  that  it  constitutes 
aiding,  as  proposed  by  the  Brown  Commission. 

2.  ACLTJ  recommendation. — The  ACLU  suggests  that  section  401(b),  which  car- 
ries forward  the  "Pinkerton"  doctrine  under  which  conspirators  may  be  held 
liable  for  the  "reasonably  foreseeable"  substantive  crimes  committed  by  their 
fellow  conspirators,  should  be  eliminated. 

Comment. — The  rule  announced  by  Justice  Douglas  in  the  ca.se  of  Pinkcrtou  v. 
United  States,  328  U.S.  640,  is  predicated  on  the  hypothesis  that  a  person  who  sets 
in  motion  a  chain  of  criminal  events  by  agreeing  with  others  to  perform  one  or 
more  illegal  acts  should  be  liable  for  other  crimes  that  foreseeably  are  committed 
by  the  members  of  the  conspiracy  (e.g..  stealing  a  car  for  use  as  the  escape  ve- 
hicle in  connection  with  an  agreed-upon  bank  robbery).  It  is  a  reasonable  prin- 
ciple of  criminal  liability,  and  has  proved  useful  in  a  variety  of  situations  where 
most  observers  would  agree  that  criminal  responsil)ility  should  be  recognized. 
S.  1437  narrows  the  theoretical  reach  of  the  Pinkerton  doctrine  somewhat  by 
adopting  the  dictum  in  the  case  and  making  it  clear  that  the  crime  not  only 
must  be  reasonably  foreseeable  but  must  be  committed  "in  furtherance  of  the 
conspiracy". 

3.  ACLU  reeommendatio)!. — The  ACLU  suggests  that  section  404(b),  which 
provides  that  it  is  not  a  defense  to  a  charge  of  accomplice  liat)ility  that  the  ac- 
complice's principal  has  been  acquitted,  should  be  deleted  (and  suggests  that  the 
.same  deletion  should  be  made  in  section  1002(c)  which  precludes  a  similar  de- 
fense in  the  conspiracy  context). 

Comment. — This  aspect  of  S.  1437  is  consistent  with  existhig  case  law.  See 
United  ,s7«/r.s  v.  Bryan,  483  F.  2d  88.  93-94  (.3d)  Cu-.  1973).  Such  a  provision  was 
recommended  by  the  Brown  Commission  and  has  been  included  in  several  recent 
state  codes. 

A  contrary  rule,  automatically  extinguishing  criminal  liability  for  an  accom- 
plice if  the  principal  is  ac(iuitted.  would  appear  to  be  proper  if  the  acquittal 
was  on  the  ground  of  lack  of  proof  of  the  principal's  guilt  of  an  offense  beyond 
a  reasonable  doubt,  but  would  not  appear  to  be  proper  if  the  basis  for  the  princi- 
pal's ac(iuittal  was,  for  example,  a  defense  of  insiinity.  Protection  today  to  a 
defendant  in  the  former  situation  is  provided  by  the  doctrine  of  collateral  estop- 
pel, a  doctrine  that  would  still  be  available  under  the  Code. 

Nor  would  a  rcfiuired  acquittal  of  an  accomplice  appear  proper  if  the  princi- 
pal's ac(iuittal  is  predicated  on  the  inadmissability  of  certain  evidence  as  to 
which  only  the  principal  had  standing  to  object  (e.g.  incriminating  evidence 
ol)tained  during  an  overly-broad  search  of  the  i)rincipars  house).  In  such  a  situ- 
ation tlie  iirincipal's  acf|uittal  would  have  nohing  to  do  witli  his  guilt  or  inno- 
cence. Avoiding  a  mandatory  acquittal  in  such  a  situation  does  not  undermine 
the  exclusionary  rule,  which  today  is  conditioned  on  standing  so  that  only  a 
person  whose  privacy  rights  were  infringed  I)y  an  illegal  search  may  invoke  the 
deterrent  consequence  of  precluding  jury  consideration  of  the  resulting  evidence. 
Tims,  if  an  accomplice  nnd  his  principal,  or  two  coconsi^irators,  are  jointly  tried, 
only  the  party  aggrieved  is  entitled  to  have  illegally  obtained  evidence  sup- 
pressed (e.g.,  Alderman  v.  United  States,  394  U.S.  105).  and  there  is  no  reason 
to  alter  the  rule  if  they  are  tried  separately.  S.  14.37  is  consistent  with  this  rule. 

It  should  be  noted  that  no  objection  is  made  to  the  iloctrin«>  in  current  law 
(canied  forward  in  section  40 Kb)  )  that  it  is  no  defense  for  an  accomplice  that 
the  principal  was  immune  from  pro.secution  (e.g.,  because  of  incompetence,  dijilo- 
matic  immunity,  etc.).  Similarly,  it  should  not  be  a  defense  that  the  jirincipal 
was  acquitted,  if  th(>  reason  for  the  acquittal  was  unrelated  to  a  determination 
of  innocence  on  the  merits. 


9231 

4.  ACLU  rccnm inenddtion.— The  ACLU  suggests  that  section  1001  sluiuld  be 
modmed  to  make  the  test  for  an  attempt  whether  the  conduct  constituted  a  "sub- 
stantial step  to^Yards  completion  of  the  crime.  It  also  suggests  that  the  renunci- 
ation defense  (which  appears  in  the  conspiracy  section  as  well)  is  too  narrow 
to  be  of  value. 

Com incnf.— The  formulation  of  attempt  in  S.  1437— i.e.  intentional  conduct 
that  '-amounts  to  more  than  mere  preparation  for  the  comnussion  of  ihe  crime, 
and  that  indicates  [the  defendant's]  intent  that  the  crime  be  completed'"— differs 
sub.vtantively  very  little  from  the  "substantial  step"  test.  Of  the  two  approaches, 
the  Code  formulation  appears  to  be  the  more  accurate  synthesis  of  present  federal 
case  law. 

Tlie  renunciation  defense  excuses  conduct,  otherwise  criminal,  in  a  case  where 
a  defendant  voluntarily  has  averted  the  actual  commission  of  the  olfense  he 
originally  planned.  It  pro\'ides  an  incentive  for  persons  to  stop  criminal  conduct. 
It  is  new  to  the  law,  and  appears  to  be  of  reasonable  and  useful  scope. 

5.  ACLU  recomiucnUation. — While  implicitly  recognizing  that  the  Code  carries 
for\-Nard  the  px-esent  formulation  of  the  conspiracy  offense  (18  U.H.C.  371) — i.e. 
an  agreement  to  commit  a  crime  plus  an  overt  act  intended  to  effect  an  obji^ct  of 
that  agreement — the  ACLU  suggests  that  the  Code  should  undertake  to  discour- 
age abusive  conspiracy  prosecutions  by  narrowing  the  offense  to  require  one  of 
the  conspirators  to  have  taken  a  "substantial  step"  toward  completion  of  the 
conspiratorial  goal. 

Coniiiients. — The  present  formulation  of  the  conspiracy  offense  is  a  reasonable 
one,  and  is  no  more  subject  to  potential  abuse  than  a  variety  of  other  accepted 
statutes.  The  Supreme  Court  has  repeatedly  expressed  its  view  that  the  offense 
serves  significant  interests  in  protecting  society.  E.g.,  United  States  v.  Fcola, 
420  U.S.  (id.  Moreover,  it  should  be  noted  that  S.  1437  somewhat  narrows  current 
federal  law  by  making  applicable  to  all  conspiracy  offenses  the  section  1002 
requirement  of  proof  of  an  overt  act.  Present  federal  law  contains  a  number  of 
conspiracy  statutes  apart  from  IS  U.S.C.  371 — for  example  the  ones  applicable 
to  narcotic  oifenses,  21  U.S.C.  S46  and  9G3 — that  require  proof  merely  of  an 
unlawful  agreement  without  the  need  to  show  any  overt  act  in  furtherance  of 
the  conspiracy. 

G.  ACLU  recommendation. — The  ACLU  opposes  the  solicitation  offenses  in  sec- 
tion 1003  on  grounds  of  First  Amendment  considerations  and  overbreadth. 

Comment. — Solicitation  of  a  crime  is  no  more  pure,  protected  speech  than  is 
perjury  or  offering  a  bribe.  As  Professor  Thomas  Emerson  has  noted : 

Most  crimes  *  *  *  involve  the  ixae  of  speech  or  other  communication.  Where 
the  communication  is  an  integral  part  of  a  course  of  criminal  action,  it  is  treated 
as  action  and  receives  no  protection  under  the  First  Amendment.  *  *  *  [T]he 
applicable  legal  doctrine  [in  solicitation]  undertakes  to  draw  the  line  between 
'expression'  and  'action.'  The  fact  that  issues  of  this  nature  rarely  arise  indicates 
that  establishing  the  division  between  free  expreession  and  solicitation  to  crime 
has  not  created  a  serious  problem. 

No  examples  of  overbreadth  are  provided  except  for  a  general  assertion  that 
soliciting  a  misdemeanor  should  not  be  an  offense.  The  basis  for  such  a  distinction 
is  not  apparent.  Certainly  the  .solicitation  of  a  violation  of  many  regulatory  mis- 
demeanors in  such  areas  as  environmental  quality  or  food  and  drug  purity  would 
be  a  serious  matter. 

7.  ACLU  recommendation. — The  ACLU  raises  a  general  objection  to  section 
1111,  dealing  with  sabotage,  on  First  Amendment  grounds.  It  states  that  the 
section  should  be  amended  to  require  that  the  property  covered— i.e..  property 
used  in  or  "particularly  suited  for  use  in  the  national  defense" — also  be  required 
to  be  "designated"  for  such  use,  or  alternatively  that  the  suitability  of  the  prop- 
erty be  made  subject  to  a  "knowing"  rather  than  a  "reckless"  standard  of  culp- 
ability. The  ACLU  also  proposes  the  limitation  of  section  1112,  dealing  with 
impairing  military  effectiveness,  to  time  of  war. 

Comment. — The  First  Amendment  as.sertions  do  not  take  into  accouiit  the  re- 
quirement of  the  section  that  the  conduct  be  accompanied  by  a  specific  ''intent 
to  impair,  interfere  witli,  or  obstruct"  war  or  defense  activities.  Accordingly,  the 
example  of  an  anti-war  demonstration  which  coincidentally  obstructs  tratfic  cer- 
tainly would  not  be  covered  by  the  section. 

The  requirement  that  the  property  be  "desi.gnated,"  as  well  as  "particularly 
suited"  for  the  national  defense  has  already  been  incorporated  in  the  section's 
provision  relating  to  public  facilities.  In  the  provision  relating  to  government 
property,  such  a  reiiuirement  would  inappropriately  narrow  current  law    (IS 


9232 

IT.S.C.  2ir)l-21.j6),  since  the  property's  federal  ownership  and  defense  utility 
should  be  sufficient  to  place  persons  on  notice  that  it  is  an  appropriate  sul)iect  for 
statutory  protection.  The  formulation  of  property  '-particularly  suited"  for  use 
in  the  national  defense  is  a  fair  synthesis  of  the  terms  used  to  describe  categories 
of  property  employed  in  the  present  statutes. 

The  susk^stion  that  the  culpability  concerning  the  property's  status  be  elevated 
to  "knowing''  does  not  appear  to  be  warranted.  A  person  who,  as  section  111 
requires,  '"with  intent  to  impaii-.  interfere  with,  or  obstruct  the  ability  of  the 
T'nited  States  *  *  *  to  prepare  for  or  to  engage  in  defense  activities,  damages, 
tampers  with,  contaminates,  defectively  makes,  or  defectively  repairs"  property 
should  not  ,ilso  have  to  be  shown  specifically  to  know  that  the  property  is  par- 
ticularly suited  for  use  in  the  national  defense  in  order  to  be  guilty  of  sabotage. 
It  should  be  enough  that  he  is  "reckless''  as  to  the  nature  of  that  propert.v — 
recklessness  being  defined  in  S.  1437  to  require  proof  that  the  defendant  was 
aware  of  bur  disregarded,  a  risk  that  the  property  is  of  the  type  covered. 
\nuler  circumstances  demonstrating  that  such  disregard  constituted  a  gross  devia- 
tion from  the  standard  of  care  that  a  reasonable  person  w^ould  utilize. 

Finally,  to  limit  the  application  of  1112  to  wartime  would  constitute  a  major 
contraction  of  present  law,  which  applies  not  only  in  wartime  but  in  time  of 
declared  national  emergencv  (18  U.S.C.  2153,  21~A)  and  in  time  of  peace  (IS 
U.S.C.  21.jr,).  See  United  States  v.  Bi.^hop,  55i")  F.  2d  77  (10th  Cir.  1977).  In  view 
of  the  im))ortance  of  the  nation's  being  able  to  deter  hostilities  as  well  as  to 
defend  again.st  them,  there  is  clear  reason  to  retain  the  present  coverage. 

8.  ACLU  rccorniuciidation. — The  ACLU,  with  regard  to  the  Code's  carr.ving 
forward  of  present  statutes  relating  to  espionage,  suggests  making  clear  in  the 
legislative  history  that  proof  of  intent  to  injure  the  national  defense  is  an 
esseuial  element  of  espionage.  It  also  suggests  that  the  word  "communicate"'  is 
defined  too  broadly  in  section  111  to  reflect  the  proper  scope  of  the  term  as  U!?ed 
in  the  espionage  statutes. 

Comment. — The  current  espionage  statutes  use  tlie  language  "with  intent 
or  reason  to  hdicre"  that  the  intVn-mation  disclosed  is  to  be  used  to  the  injury 
of  the  United  States.  18  U.S.C.  793,  7^)4.  The  proposed  addition  to  the  "legislative 
history"  would  therefore  be  at  odds  with  the  clear  coverage  of  the  existing 
statutes.  It  would  also  be  at  odds  with  the  bill's  design  of  carrying  forward  the 
exact  state  of  the  current  law  in  this  area,  a  device  that  was  found  necessary  to 
avoid  potential  conflicts  concerning  the  numner  in  which  the  coverage  of  exist- 
ing law  should  lie  changed. 

With  regard  to  the  section  111  definition  of  "communicate",  the  definitions  of 
that  section  do  not  ai)ply  to  offenses  retained  outside  the  new  Title  18. 

9.  ACLU  recommendation. — To  make  it  clear  that  section  1301  of  the  Code 
cannot  be  "u.sed  to  prosecute  legitimate  journalistic  activities,"  the  ACLU  .sug- 
gests that  the  section  be  limited  to  "material"  obstructions  of  government  +"nn,c- 
tions  through  fraudulent  means  and  that  defenses  be  added  excluding  liability 
for  siich  olistrnctions  where  the  "primary  purpo.se"  is  the  dissemination  of 
information  to  the  public. 

Commeul. — Addition  of  the  word  "material"  would  tend  to  confuse  the  appli- 
cation of  the  statute,  which  continues  current  law  (18  I\S.C.  371).  For  example, 
the  promjit  delivery  of  five  dollars  worth  of  food  stamps  might  be  material  to  a 
per.son  in  need,  while  a  few  days  delay  in  the  delivery  of  a  multimillion  dollar 
boml)er  might  not  result  in  any  real  inconvenience.  If  a  person  specifically  in- 
tends to  obstruct  a  government  function  through  fraudulent  means,  it  .seems 
clear  that  he.  at  least,  regards  the  function  as  material.  Proof  of  this  element 
beyond  a  reasonnble  doubt  should  suffice  to  limit  the  application  of  the  statute 
to  appropriate  bounds. 

Excluding  liability  for  obstructing  "lawful"  government  functions  by  fraudu- 
lent means  would  encoiu'age  out-of-court  testing  of  the  legitimacy  of  private, 
subjective  interiiretations  of  law.  If  a  government  function  is  thought  to  be 
unlawful,  the  civil  law  provides  the  forum  for  testing  the  legality  of  the  func- 
tion. Tliere  appears  to  be  no  reason  to  provide  an  incentive  to  fraud  as  a  device 
for  testing  the  validity  of  a  government  act. 

It  is  unclear  why  it  is  thought  that  there  should  be  a  defense  for  situations 
where  the  primary  purpose  of  a  fraud  is  news  dis'^emination.  The  section  re- 
(|uires  a  specific  intent  to  obstruct  a  government  function  b.v  fraud  and  that 
intent  would  have  to  be  proven  beyond  a  rea.sonable  doul)t.  It  is  difficult  to 
envision  a  situ:ition  in  which  a  def(>ndant's  specific  intent  is  to  obstruct  a  govern- 
ment function  by  fraud  but  his  primary  purpose  is  to  disseminate  information  to 
th(>  inildic. 


9233 

10.  ACLU  recomnirvdation. — The  ACLIT  proposes  that  the  preclusion  of  a 
defease  in  section  1811(c)  be  removed  out  of  concern  that  the  section's  coverage 
of  '•concealiiis  [a  fugitive]  or  his  identity"  might  otherwise  be  construed  to 
reacli  a  journalist  who  refuses  to  divulge  the  identity  of  a  news  source  who  is  a 

fugitive. 

Comment. — The  section  does  not  reach  anyone  who  merely  refuses  to  identify 
a  fugitive.  As  the  draft  Senate  report  on  the  bill  makes  clear,  only  affirmative 
acts  of  concealment  are  covered,  as  is  the  case  under  current  law. 

11.  ACLV  recommendation. — In  section  1344  (Tampering  with  a  Government 
Record),  the  ACLU  suggests  that  the  phrase  "otherwise  impairs  the  integrity 
of  a  government  record"  could  be  interpreted  to  criminalize  unauthorized  photo- 
copying of  a  record  even  if  the  document  was  not  removed  from  government 
premises  or  altered  in  any  way.  It  proposes  a  clarifying  amendment  or  legisla- 
tive history  disavowing  such  an  interpretation. 

Comment. — The  draft  Senate  report  on  the  bill  expressly  disavows  such  an 
interpretation,  as  have  the  courts  with  regard  to  the  current  statute.  See  United 
States  v.  Rosner,  325  F.  Supp.  515  (S.D.X.Y.,  1972),  aff'd  and  remanded  for 
resentencing,  4S5  F.  2d  1213  (2d  Cir.  1973). 

12.  ACLU  recommendation. — The  ACLU  proposes  a  .iournalist's  privilege  to 
the  offense  of  retaliating  against  a  public  servant  where  the  offense  is  committed 
through  economic  injury  rather  than  physical  injury. 

Comment. — The  suggestion  has  been  mooted  by  the  deletion,  in  the  August  4 
Committee  Print  of  S.  1-437,  of  this  aspect  of  the  offense. 

13.  ACLU  recommendation. — The  ACLU  proposes  deleting  paragraph  (1)  of 
section  1302(a).  punishing  the  intentional  obstruction  or  impairment,  by  means 
of  physical  interference  or  obstacle,  of  the  performance  by  a  federal  public 
.■servant  of  an  official  duty.  The  ACLU  suggests  that  there  be  substituted  a  pro- 
vision comparable  to  IS  LT.S.C.  1114,  which  lists  various  classes  of  public  servants 
who  are  covered  by  the  proscriptions  of  IS  L^.g.c.  Ill  against  physical  interfer- 
ence with  official  duties. 

Comment. — Current  federal  law  contains  many  statutes  besides  18  U.S.C.  Ill 
and  1114  that  punish  intentional  interference  with  the  performance  of  official 
duties  by  particular  classes  of  federal  servants.  Tlie  purpose  of  section  1302  is 
to  combine  these  provisions  and  to  fill  unwarranted  gaps  in  coverage.  The  section 
is  designe'd.  therefore,  to  expand  current  law,  which  is  erratic  and  inconsistent  in 
its  scope.  The  Brown  Commission's  Final  Report  and  the  Model  Penal  Code  con- 
tained a  similar  coverage.  The  provision  seems  reasonable,  and  its  specific  intent 
requirement  limits  its  application  to  appropriate  bounds. 

14.  ACLU  recommendation. — Section  1328  deals  with  demonstrations  intended 
to  influence  judicial  proceedings.  The  ACLU  suggests  that  it  be  limited  to  cover 
such  demonstrations  only  while  court  is  in  session,  and  even  then  only  if  the 
demonstration  actually  disrupts  the  session  by  unreasonable  noise,  obstruction 
of  access,  or  threat  of  force. 

Comment. — The  bill  provides  a  defense  if  court  was  not  in  session  (including 
a  half  hour  before  ancl  after  a  session)  and  if  the  conduct  did  not  involve  the 
specific  kinds  of  conduct  the  ACLU  would  prohibit.  It  does,  however,  cover  dem- 
onstrations while  the  court  is  in  session,  whether  or  not  an  actual  disruption 
is  apparent.  Tlie  jiurpose  is  to  avoid  improper  pressures  designed  to  influence 
judges  and  juries  in  carrying  out  their  often-difficult  responsibilities.  Criminal 
and  civil  cases  must  be  decided  on  the  basis  of  facts  established  under  the  rules 
of  evidence  in  the  courtroom — not  on  the  basis  of  pressures  by  demonstrators, 
no  matter  how  worthy  their  motivation.  As  long  as  the  described  conduct  takes 
place  in  the  specific  intent  of  influencing  the  judicial  proceeding,  this  offense 
appropriately  should  continue  to  be  recognized  by  the  criminal  code. 

15.  ACLU  recommendation. — Section  1331  of  S.  1437  as  introduced  created 
an  affirmative  defense  to  contempt  of  a  coiirt  order  if  the  order  was  "clearly 
invalid"  ?nd  if  the  defendant  "did  not  have  a  reasonable  opportunity  to  obtain 
a  judicial  review  or  a  stay  thereof  prior  to  the  disobedience  or  resistance 
charged."  The  ACLU  suggests  the  substitution  of  "or"  for  "and"  in  this  defense 
Sf>  that,  inter  alia,  disobedience  of  a  "clearly  invalid"  order  would  not  be  an 
offense.  The  ACLU  also  expresses  concern  that  the  provision  permitting  a  separate 
prosecution  for  a  substantive  offense  involved  in  the  contempt,  e.g.,  assault  on 
a  juror,  may  raise  double  jeopardy  problems. 

Comment. — It  is  settled  law  that  the  invalidity  of  a  court's  order  is  no  defense 
to  a  charge  of  contempt  for  disobedience  of  the  order.  The  rationale  is  that 
recourse  to  the  courts  through  the  appellate  process  is  the  only  legally  tolerable 


9234 

means  of  challenging  a  judicial  order.  It  is  deliatable  \vliether  federal  law  now 
even  recognizes  an  exception  for  "transparently"  unlawful  orders  as  the  ACLU 
assumes.  The  affirmative  defense  created  in  the  August  4  Committee  Print  of 
S.  1437,  which  is  somewliat  modified  from  that  in  the  hill  as  introduced,  is  in 
any  event  carefully  framed  to  accommodate  the  cimipeting  interests  at  stake. 
By  allowing  a  defense  only  when  the  order  is  clearly  invalid  and  recourse  to 
the  appellate  process  has  proven  ineffective,  the  provision  does  not  encourage 
resort  to  self-help  while  it  does  permit  a  defendant  to  rid  himself  of  criminal 
lial)ility  for  disohedience  of  a  plainly  invalid  order  when  such  obedience  is  the 
only  effective  means  of  vindicating  the  right  at  issue.  By  contrast,  the  ACLU's 
propo.sal  would  encourage  some  defendants  to  risk  a  violation  of  a  court's  order 
based  on  an  assessment  of  its  "clear"  invalidity,  irrespective  of  the  opportunity 
to  appeal,  and  would,  on  the  other  hand,  denigrate  the  authority  and  respect  due 
judicial  orders  that  are  not  "clearly  invalid"  hy  allowing  a  defense  merely  because 
no  appeal  is  immediately  available. 

The  suggestion  that  double  jeopardy  problems  arise  from  allowing  prosecu- 
tion for  a  .specific  offense  as  well  as  tlie  contempt  has  not  been  supported  by  the 
courts.  See,  e.g.,  Jiirncy  v.  McCrarken.  294  U.S.  12.5  (1935)  :  Unitcil  Sf(t1e>^  v. 
RoUcrson.  449  F.  2d  1000  (D.C.  Cir.  1971).  In  any  event,  credit  is  given  in  the 
section  for  time  served  on  the  underlying  offensive. 

16.  AVLU  recommendation. — The  ACLU  suggests  the  amendment  of  section 
1343,  insofar  as  it  covers  oral  false  statements  to  law  enforcement  officers,  by 
limiting  the  offense  to  instances  involving  "false  alarms  or  a  person's  intentional 
false  implication  of  another  person  in  tlie  conunission  of  a  crime." 

Comment. — The  ACLU  correctly  points  out  that  a  conflict  in  case  law  exists 
whether  the  principal,  present  federal  false  statement  statute  reaches  oral  false 
statements  to  law  enforcement  agents.  The  great  weight  of  such  ca.se  authority, 
howevei-.  is  in  favor  of  such  coverage.  I'tiited  States  v.  Adler,  380  F.  2d  917 
(2d  Cir.)  ;  United  State.'i  v.  Lamhert.  501  F.  2d  943  (5th  Cir.)  (en  banc)  :  United 
states  v.  Gold  fine.  538  F.  2d  815  (9th  Cir.)  :  contra.  Friedman  v.  United  Statrn. 
374  F.  2d  363  (8th  Cir.).  See  generally  United  States  v.  Chevoor.  526  F.  2d  178, 
182-183  (1st  Cir.).  The  position  taken  in  section  1343  of  S.  1437  substantially 
restricts  such  current  law  application  by  conditioning  coverage  of  oral  false 
statements  on  proof  (1)  that  the  defendant  knew  the  person  to  whom  the  f;ilse- 
hood  is  told  is  a  law  enforcement  agent,  and  (2)  that  the  statement  is  volun- 
teered or  is  made  after  the  defendant  has  been  advised  that  making  such  a 
false  statement  is  an  offense.  Tliese  limitations  seem  to  represent  more  appro- 
priate boundaries  for  the  offense  than  the  narower  ones  suggested  by  the  ACFjU. 
Persons  should  not  be  able  to  lie  with  impunity  to  an  individual  known  lo  be  a 
law  enforcement  agent,  since  such  a  lie,  whether  or  not  it  consists  of  implicating 
another  person  in  an  offense,  may  cause  tiie  agent,  or  the  agency  for  which  he 
works,  to  commence  an  investigation  and  thereby  waste  or  divert  valuable  re- 
sources and  needlessly  em))nrrass  other  jjersous.  The  limitations  in  the  Code 
also  guard  against  the  situation  of  a  law  enforcement  officer  seeking  to  trap  an 
unwary  target  into  a  falsehood  ;  the  requirement  of  knowledge  of  the  status  of 
the  jierson  as  an  officer,  and  the  reipiiremeiit  that  the  statement  be  volunteered 
or  made  after  a  warning,  protect  against  official  overreaching. 

17.  ACLU  reeommendations. — The  ACLl'  suggests  that  gratuitous  transfers 
of  small  amounts  of  marihuana  should  be  decriminalized  along  with  simple 
possession.  It  fui-ther  suggests  tliat  criminal  punishment  of  drug  addicts  is  un- 
constitutional. 

Comment. — Sections  1812  and  l.si;5  of  S.  1437  decriminalize  federally  l)oth  the 
simple  possession  and  gratutious  transfer  of  ten  grams  or  less  of  marihuana,  tlius 
according  in  part  with  the  ACLU  recommendation.  I'o.s.scssion  or  gratuitous 
transfer  of  more  than  ten  grams  is  punishable  by  uj)  to  thirty  days  in  prison 
and  a  .'t;5n0  fine,  a  material  reduction  from  tiie  current  penally  of  one  year's  im- 
prisonment and  a  i}55,()0()  fine. 

The  suggestion  that  drug  addicts  may  not  constitutionally  be  held  liable  for 
drug  offenses  has  not  ))een  supported  by  the  federal  courts.  See  I'oiceil  v.  Texas, 
392  U.S.  514  (19(18)  ;  United  Slates  v.  Moore,  486  F.2d  1139  (D.C.  Cir),  cert. 
denied,  414  U.S.  980  (1973). 

18.  ACLU  recommendation.— i^.  1437,  in  section  111,  defines  "incite"  as  "to  urge 
other  persons  to  engage  imminently  in  conduct  in  circumstances  under  which 
there  is  a  substantial  likelihood  of  imminently  causing  such  conduct."  The 
ACLU,  in  connection  with  the  offense  of  inciting  a  riot  under  section  1831.  sug- 
gests amending   the  definition   to   insert   a    requirement    that   the   actor   know. 


9235 

rather  than  be  reckless  as  to  the  fact,  that  the  circumstances  are  such  that  there 
IS  a  substantial  hkelihood  of  his  imminently  causing  a  riot.  It  also  sui^gests 
that  the  offenses  of  leading  a  riot  (section  1831)  and  engaging  in  a  riot  (sec- 
tion 1833)  are  too  vague. 

Conimcnt. — The  bill's  definition  is  taken  from  the  Supreme  Court's  decision 
iu  Bmmlvnhiinj  v.  Ohio,  395  U.S.  444.  It  appropriately  uses  a  reckless  rather 
than  a  knowing  culpability  standard  as  to  the  nature  of  the  surrounding  cir- 
cumstances in  which  the  actor's  conduct  occurs.  A  "knowing"  standard  would 
seem  to  be  too  higli,  in  view  of  the  definition  of  "riot"  as  a  public  disturbance 
tluit  involves  violent  and  tumultuous  conduct,  that  involves  ten  or  more  par- 
ticipants, and  that  causes,  or  creates  a  grave  danger  of  imminently  causing, 
injury  to  persons  or  damage  to  property  (section  1834).  It  appears  proper  to 
render  hable  for  inciting  a  riot  a  person  who  knows  that  he  is  urging  an 
imminent  public  disturbance  that  involves  violent  and  tumultuous  conduct  and 
who  disregards  a  known  risk  that  the  number  of  participants  in  tlie  group 
being  incited  is  ten  or  more  and  that  the  danger  of  injury  to  persons  or  prop- 
erty being  imminently  created  is  "grave". 

As  to  the  vagueness  allegations  raised  with  regard  to  sections  1831  and  1833, 
the  sections  seem  to  be  adequately  clear.  "Riot"  is  carefully  defined  in  section 
1834,  and  "leads,"  "gives  commands,  instructions,  or  directions  in  furtherance 
of,  and  "engages  in"  are  words  of  common  understanding.  The  draft  Senate 
report  on  the  bill  makes  it  evident  that  merely  being  swept  up  in  a  riot  is  in- 
sufficient to  constitute  an  offense  under  section  1833. 

19.  ACLJJ  recommendation. — The  ACLU  urges  that  the  obscenity  offense  (sec- 
tion 1842)  be  deleted.  It  then  states  that  at  least  the  venue  provisions  should  be 
modified  to  reduce  the  liability  of  defendants  to  prosecution  in  any  one  of 
several  districts  that  may  have  a  connection  with  the  offense. 

Comments. — The  retention  of  some  form  of  federal  obscenity  offense  may  be 
necessary  to  assure  a  reasonable  supplement  to  state  proscriptions  in  this  area. 
It  is  worthy  of  note  that  the  provision  in  S.  1437  considerably  narrows  the 
reach  of  present  federal  law  by  punishing  only  commercial  dissemination  of 
obscene  matter,  or  its  distribution  to  minors,  or  its  display  in  such  a  manner 
as  not  to  permit  persons  to  avoid  exposure  to  it.  Mere  possession  of,  or  profitless 
transactions  in,  obscene  material  among  consenting  adults — penalized  under 
current  law — are  eliminated  from  the  purview  of  the  Code. 

S.  1437's  venue  provisions  applicable  to  this  section  (3311)  carry  forward 
present  18  U.S.C.  3237(a),  which  provides  that  any  "offense  involving  the  nse 
of  the  mails,  or  transportation  in  interstate  or  foreign  commerce  .  .  .  may  be 
inquired  of  and  prosecuted  in  any  district  from,  through,  or  into  which  such 
commerce  or  mail  matter  moves."  To  be  sure,  just  as  is  the  case  with  mail  fraud 
and  other  crimes,  this  often  permits  the  commencement  of  a  prosecution  in  any 
of  several  districts  with  which  the  offense  is  connected.  To  avoid  too  tenuous 
an  interconnection,  however,  the  August  4  Committee  Print  restricts  the  districts 
in  which  a  prosecution  may  be  initiated  for  a  conspiracy  to  violate  the  obscenity 
section  (section  3311(b) ). 

20.  ACLJJ  re  com  mend  at  ion. — The  ACLU  objects  to  various  aspects  of  the  in- 
fraction oft'ense  in  the  Code  concerning  failure  to  obey  a  public  safety  order.  The 
ACLU  asserts  that  the  phrase  "or  other  condition  that  creates  a  risk  of  serious 
injury,"  which  appears  after  the  words  "fire,  flood,  riot,"  is  too  vague  and 
should  be  deleted;  that  authority  to  issue  public  safety  orders  should  be  more 
confined ;  and  that  the  offense  should  carry  no  criminal  penalty  but  instead  should 
be  a  civil  violation  subjecting  the  oft'ender  to  a  "minimal"  fine. 

Comment. — The  oft'ense  provides  that  a  person  is  guilty  of  an  offense  if  he 
disobeys  an  order  of  a  public  servant  to  move,  disperse,  or  refrain  from  specified 
activity  in  a  particular  place,  and  the  order:  "(1)  is  issued  in  response  to  a 
fire,  flood,  riot,  or  other  condition  that  creates  a  risk  of  serious  injury  to  a  per- 
son or  serious  damage  to  property;  and  (2)  is,  in  fact,  lawful  and  reasonably 
designed  to  prevent  serious  bodily  injury  to  a  person  or  serious  damage  to 
property."  The  offense  carries  a  maximum  penalty  of  five  days  in  prison  and  a 
fine  of  $1,000. 

The  "or  other  condition"  clause  is  not  vague  in  its  context,  and  plainly  is 
needed  to  cover  a  variety  of  miscellaneous  situations,  such  as  law  enforcement 
efforts  to  apprehend  a  sniper,  where  public  safety  is  jeopardized. 

The  concern  that  personnel  without  authority  to  act  might  be  granted  broad 
powers  by  the  section  is  not  supported  by  the  section's  language.  The  section's 
requirement  that  the  order  in  fact  be  lawful  precludes  its  application  to  a  situa- 
tion in  which  an  order  is  issued  by  a  person  without  authority  to  do  so.  That 


9236 

provision,  in  combination  with  the  requirement  that  the  order  be  "reasonably 
designed"  to  safeguard  the  interests  at  stake,  c-onstitiite  ample  protections  against 
overreaching  by  otficials  who  are  not  authorized  to  exercise  authority  in  the 
circumstances  or  who  are  abusing  authority  that  has  been  conferred. 

The  suggestion  that  the  offense  .should  be  a  "civil  violation"  does  not  ade- 
quately recognize  the  exigencies  of  such  situations.  The  situations  in  which  such 
orders  may  need  to  be  issued  are,  by  delinition,  of  a  kind  in  which  compliance 
with  the  order  is  essential  if  serious  i)ersonal  injury  or  property  damage  is  to 
be  avoided.  Thus,  providing  that  a  refusal  to  obey  a  lawful  public  safety  order 
is  a  criminal  offense — even  though  a  minor  one — is  needed  to  insure  that, 
when  necessary,  an  arrest  can  take  place  to  remove  a  recalcitrant  individual 
from  a  location  where  he  is  interfering  with  the  difficult  work  of  public  safety 
officers  such  as  firefighters,  civil  defense  personnel,  bomb  squad  experts,  or  law 
enforcement  agents. 

21.  ACLU  recommendation. — The  ACLU  questions  whether  it  is  appropriate 
for  Congress  to  delegate  to  a  commission  the  function  of  developing  sentencing 
guidelines.  It  also  suggests  that  the  Code  should  not  be  enacted  until  the  sentenc- 
ing commission  has  made  its  report  to  Congress  and  Congress  has  had  an  oppor- 
tunity to  review  the  commission's  proposals.  It  further  suggests  that  the  com- 
mission be  required  to  submit  its  guidelines  within  a  .set  period  of  time. 

Comment. — The  Code's  proposal  for  a  sentencing  guidelines  commission 
(which  is  established  as  an  agency  in  the  Judicial  Branch)  contemplates  an 
active  congressional  review  of  the  guidelines.  Under  2S  U.S.C.  994 (k),  as  it 
would  be  added  by  the  August  4  Committee  Print  of  S.  1437,  the  Congress  would 
have  180  days  to  review,  revise,  and  vote  on  the  guidelines  after  they  had  been 
submitted  by  the  sentencing  commis.sion.  This  system  is  similar  to  that  in  effect 
with  respect  to  the  promulgation  by  the  judiciary  of  Rules  of  Criminal  Proce- 
dure, and  would  seem  to  afford  Congress  an  adequate  opportunity  for  review  so 
as  to  meet  any  claims  of  improi>er  delegation. 

There  is  no  reason  to  delay  passage  of  the  Code  until  the  sentecing  guidelines 
have  been  promulgated.  The  Code  carries  a  two-year  delayed  effective  date.  That 
period  should  be  sufficient  to  permit  the  .sentencing  commission  to  complete  its 
development  of  sentencing  guidelines  and  to  permit  their  consideration  by  the 
Congress.  If  two  years  proves  to  be  insufficient,  the  Congress  may  decide  at  a 
later  time  whether  to  extend  the  Code's  effective  date,  or  to  permit  it  to  take 
effect  with  the  sentencing  decisions  continuing  to  be  made,  as  they  are  now,  l)y 
judges  without  the  benefit  of  the  guidelines  until  such  time  as  the  guidelines  are 
established.  There  is,  in  any  event,  no  reason  to  delay  enactment  of  the  Code. 

The  bill  probably  .should,  as  the  ACLU  suggests,  provide  a  fixed  time  within 
which  the  commission  is  to  .submit  its  proposed  guidelines.  A  one-year  period, 
however,  is  probal)ly  too  short. 

22.  ACLU  recommendations. — The  ACLU  suggests  that  an  opportunity  has 
been  lost  in  the  Code  to  reexamine  the  wiretap  authorization  statutes  (18  U.S.C. 
2510-2520). 

Comment. — As  the  ACLU  recognizes,  S.  1487  essentially  recodifies  current 
law  in  this  area.  This  is  partly  the  result  of  a  deci.sion,  first  made  by  the  Brown 
Commission,  to  avoid  any  attempt  at  this  time  to  undertake  major  procedural 
reform  as  opposed  to  substantive  reform.  It  is  also  partly  the  resuit  of  a  decision 
to  resolve  controversial  areas  by  adopting  current  law.  In  light  of  the  strong  and 
divergent  views  in  this  area  concerning  matters  of  fact  (e.g..  court-authorized 
wiretapping  being  "remarkably  unsuccessful"  as  an  investigative  tool)  and  mat- 
ters of  policy,  it  seems  appropriate,  as  in  the  national  security  ai-ea,  to  retain  cur- 
rent law. 

23.  ACLTJ  recommendations. — The  ACLU  notes  in  passing  that  the  Code  re- 
states the  existing  statutes  on  compulsion  of  witnesses'  testimony  (IS  U.S.C.  6001- 
6005).  which  the  ACLU  opposes. 

Comments. — The  present  statutes,  which  provide  for  the  conferring  of  "use  im- 
munity", date  from  1970  when  the  Congress  enacted  this  Brown  Commission  i)ro- 
posal  to  replace  a  number  of  laws  that  conferred  "tran.sactioiial"  innnunity.  The 
Supreme  Court  has  sustained  the  constitutionality  of  the.se  provisions,  and  expe- 
rience has  demonstrated  their  superiority  over  the  previous  .system.  See  also 
Lefl'on-itz  v.  Cunningham.  —  U.S.  —  (decided  .Tune  13.  1977).  Irrespective  of  the 
merits,  moreover,  this  is  another  procedural  area  in  which  it  is  understood  that 
no  change  from  the  present  laws  could  be  agreed  ui)on  at  this  time. 

24.  ACLU  recommendations. — The  ACLU  suggests  that  the  basic  six-montli 
period   of  custody   that   S.   1437    ^section   3G11)    provides  for  a   determination 


9237 

of  competence  to  stand  trial,  while  reasonable  for  persons  charged  with  a  felony, 
is  too  long  a  period  as  applied  to  accused  misdemeanants. 

Comment. — Just  as  the  Code  malies  no  distinction  between  the  time  needed  to 
determine  mental  competency  depending  upon  tlie  grade  of  felony  charged  (i.e., 
Class  E  to  Class  A  carrying  a  range  of  maximum  incarceration  from  three  years 
to  life)  so  it  malves  no  distinction  between  accused  misdemeanants  and  felons 
in  this  respect.  Rather  the  time  period  selected,  while  necessarily  arbitrary  to  a 
certain  extent,  is  based  upon  an  assessment  of  what  length  of  observation  may 
be  needed  to  determine  "wliether  tliere  is  a  substantial  probal>ility  that  in  the 
foreseeable  future  [the  defendant]  will  attain  the  capacity  to  permit  the  trial 
to  proceed."  The  six-month  interval  adopted  by  the  Code  is  not  unreasonable  in 
this  context. 

25.  ACLTJ  rccommendnfinn. — The  ACLU  suggests  that  the  Code  should  not  per- 
mit any  Federal  retention  of  custody  over  an  individual  who  has  been  found  not 
guilty  by  reason  of  insanity. 

Coinnicnt. — S.  1-137  does  permit  civil  custody  and  hospitalization — contrary  to 
current  federal  law  except  in  the  District  of  Columbia — but  only  after  there  has 
been  a  judicial  determination  at  a  hearing,  based  upon  "clear  and  convincing 
evidence,"  that  the  person  "is  presently  suffering  fi-om  a  mental  disease  or  defect 
as  a  result  of  which  his  release  would  create  a  substantial  rislv  of  serious  bodily 
injury  to  another  person  or  serious  damage  to  property  of  another",  and  only  if 
the  person's  state  of  domicile  will  not  assume  responsibility  for  his  custody,  care, 
and  treatment  (section  3613).  The  detention  may  continue  only  until  tlie  person 
has  recovered  to  the  extent  that  he  no  longer  poses  such  a  danger  or  until  he 
can  be  turned  over  to  state  authorities.  The  Code  tal%es  the  position,  in  short,  that 
in  these  circumstances  it  is  preferable  to  continue  federal  custody  over  a  danger- 
ously disturbed  individual  than  to  release  him  on  the  streets.  The  lack  in  pres- 
ent federal  law  of  any  such  residual  commitment  authority  is  an  unwarranted 
gap  that  poses  a  serious,  albeit  only  occasional,  tlireat  to  the  public  safety.  Such 
a  proposal  was  suggested  by  the  Brown  Commission  staff  and  was  also  suggested 
by  the  Judicial  Conference. 

26.  ACLU  recommendation. — The  ACLU  objects  to  the  fact  that  the  S.  1437 
carries  forward,  in  sections  3713  and  3714,  procedural  provisions  of  current  law 
(IS  U.S.C.  3501.  3577)  relating  to  the  admissibility  of  confessions  and  of  evidence 
in  sentencing  proceedings. 

Comment. — The  ACLU  asserts  that  section  3713  "is  an  attempt  ...  to  undercut 
the  Miranda  decision."  Miranda,  however,  is  predicated  on  constitutional  grounds, 
and  any  legislative  attempt  to  override  that  decision  would  be  fruitless.  Moreover, 
section  3713,  lilce  the  present  statute,  contains  several  useful  provisions  that 
plainly  do  not  pertain  to  Miranda  situations.  In  any  event,  the  Code  adds  a  new 
clause  at  the  outset  of  the  statute  ("Unless  otherwise  required  by  the  Constitu- 
tion") to  insure  that  it  is  not  construed  as  an  effort  to  overrule  Miranda. 

Section  3714  continues  the  existing  law  that  "no  limitation  shall  be  placed  on 
the  information  .  .  .  which  a  court  of  the  United  States  may  receive  and  consider 
for  the  purpose  of  imposing  an  appropriate  sentence"  (IS  U.S.C.  3577).  Although 
the  Federal  Rules  of  Evidence  contain  a  provision  for  their  own  inapplicability  to 
sentencing  proceedings  (Rule  1101(d)  (3)),  thei'e  is  no  statute  apart  from  this 
that  indicates  the  principle  of  evidence  that  does  apply.  The  broad  principle  car- 
ried forward  by  this  section  is  a  reasonable  means  of  assuring  as  informed  a 
sentencing  decision  as  is  possible,  and  the  importance  of  such  informed  decisions 
appears  to  outweigh  any  reasons  for  extending  the  technical  rules  of  evidence  to 
control  defense  and  prosecution  information  pertinent  to  punishment.  See,  e.g., 
Vnited  States  v.  Lee,  540  F.  2d  1205,  1212  (4th  Cir.). 

27.  ACLU  recommendation. — The  ACLU  suggests  that  the  legislative  history 
of  section  1525  (revealing  information  submitted  for  a  government  purpose) 
express  tlie  intent  of  precluding  offenses  based  on  release  of  internally  generated 
documents  or  of  documents  available  under  the  Freedom  of  Information  Act  or 
under  tlie  P'ederal  Rules  of  Civil  Procedure. 

Cojnmcnt. — Documents  which  must  be  produced  under  the  Freedom  of  Infor- 
mation Act  or  the  civil  i-ules  are  clearly  not  documents  released  in  violation  of 
a  speciiic  duty,  as  (lie  offense  requires,  and  thus  do  not  come  within  the  statutory 
proscription.  The  draft  Senate  Report  makes  this  clear.  It  also  makes  clear  that 
most  forms  of  internally  generated  documents  are  not  covered.  However,  some 
internal  documents  would  appropriately  be  covered,  such  as  taxpayer  data  that 
is  put  on  another  form,  or  computerized  and  printed  out.  It  is  the  information 


9238 

gi\on  in  roufidence  which  needs  iirotection,  not  the  particular  sheet  of  pai^er  on 

which  it  arrive?;.  ■,.       ^.      ,        ^ 

28.  ACLU  recommc7ul<itioni<.—T\\f  ACLU  suggests  amending  the  bar  to  pros- 
ecution in  section  1739  to  mnke  clear  that  a  reporter's  normal  salary  is  not 
meant  to  he  included  in  the  "anything  of  value"  exclusion  from  the  defense. 

Comment.— The  requirement  that  a  person,  in  order  to  avail  himself  of  the 
bar  to  prosecution  for  theft  or  receiving  stolen  property,  did  not  derive  "any- 
thing of  value"  from  obtaining,  using,  or  disseminating  the  information  to  the 
public,  has  been  deleted  in  the  August  4  Committee  Print  of  S.  1437.  The  l)ar 
to  prosecution  iu  section  173f)  now  requires,  in  this  respect,  only  that  the  de- 
fendant obtained  or  used  the  property  primarily  for  the  purpose  of  disseminat- 
ing it  to  the  public. 

Comments  on  Reporters  Commiitek  Suggestions  Concerning  S.  1437 

1.  Reporters  eommittee  recommendations. — Section  1358  seeks  to  protect  public 
servants  from  retaliatory  acts  taken  against  them  or  others  because  of  their 
official  actions  or  status  as  pubUc  servants.  In  S.  1437,  as  introduced,  the  acts 
can  be  physical  or  economic.  The  Reports  Committee  objects  to  the  provision 
concerning  economic  retaliation,  since  it  construes  the  proAision  to  reach  press 
criticisms  wnich  may  be  found  to  lead  to  economic  loss. 

Comment. — The  protection  from  economic  retaliation  api>eared  in  S.  1437  as 
a  result  of  a  gap  in  existing  coverage  demonstrated  by  an  incident  in  which  an 
attempt  was  purportedly  made  to  fire  a  federal  employee  because  he  had  testified 
fortbrightly  before  a  congressional  eommittee  investigating  serious  cost  over- 
runs in  d-'fense  contracts.  It  is  difficult  to  see  how  the  provision  could  he  applied 
as  the  Reporters  Committee  suggests.  Nevertheless,  the  issue  is  now  moot, 
since  this  provision  has  been  eliminated  from  the  August  4  Committee  Print  of 
S.  1437. 

2.  Jx'eporter.'^  eniiimittee  rccojiimendations. — Sections  1331  and  1335  continue  the 
present  statutory  coverage  of  acts  in  the  nature  of  contempt  of  court,  but  prt)vide 
an  express  excepti(m  to  liability  if  the  order  disobeyed  was  clearly  invalid  and  the 
defendant  took  reasonable  and  expeditious  steps  to  obtain  a  review  or  stay  of 
the  order  but  was  un.yuccessful  in  doing  so.  The  Reporters  Committee  states  that 
orders  restraining  the  press  are  always  invalid  unless  the  actions  of  the  press 
would  present  a  clear  and  present  danger  to  the  national  security,  and  that 
as  "an  absolute  minimum,  it  can  be  no  federal  crime  to  publish  in  violation  of 
an  illegal  gag  order."  The  Committee  apparently  opix)ses  both  the  formulation 
of  the  contempt  offenses  and  the  defenses. 

Comment. — The  contempt  offenses  in  S.  1437  do  not  change  current  law,  and 
they  certainly  have  no  special  application  to  news  reporters.  As  under  existing 
law,  the  First  Amendment  would  continue,  of  course,  to  confine  narrowly  the 
circumstances  under  which  an  injunctive  order  can  be  issued  against  the  pi'ess. 
Accordingly,  it  is  unclear  just  what  argument  llie  Reporters'  Couunittee  is  at- 
tempting to  make  in  suggesting  that  the  new  Code  would  foster  an  unwelcome 
change. 

If  the  Committee's  objection  is  directed  to  the  formulation  of  the  new  statu- 
tory defense,  it  apparently  is  of  the  view  that  an  intended  protection  that  does 
not  go  as  far  as  the  Committee  believes  wari'anted  is  worse  than  no  jimtection. 
It  would  be  suiin-ising  if  this  were  so  in  this  situation,  but  deference  probably 
should  be  paid  to  those  groups  whose  members  conceivably  would  have  a  prin- 
cipal interest  in  the  subject.  Before  acting  wilh  regard  to  this  issue,  howi'ver, 
the  Congress  should  be  careful  to  ascertain  whetb.er  dro[)ping  the  defense  would 
in  fact  be  favored  by  the  news  repoi-ting  community,  and  whether  in  any  event 
it  would  be  in  the  general  interest  to  maintain  the  defense  for  the  beiiefit  of 
others. 

3.  Reporters  committee  recommendations. — The  Reiwrters  Connnittee  a.ssert.s 
that  section  VMn  would  ini])roperly  apply  to  a  reporter  who  willfully  disobeys  a 
court  order  to  reveal  sources  or  disclose  notes. 

Comments. — Section  1331,  the  general  contempt  section,  applies  to  any  person 
just  as  does  its  current  law  counterpart  (IS  U.s.C.  401).  Neither  repnrtei-s  nor 
other  groups  of  individuals  are  singled  out  by  the  statute  for  special  applica- 
tion. The  Committee  docs  not  identify  the  manner  in  which  it  would  seek  to 
change  the  statute,  unless  it  means  to  dei)ate  the  new  defense. 


9239 

4.  Reporters  committee  recommendation. — Section  1333  punished  persons  who 
refuse  a  court  or  congressional  order  to  provide  testimony  or  evidence  without 
any  legal  privilege  to  do  so.  The  Reporters  Committee  objects  to  the  section, 
asserting  that  a  civil  contempt  provision  is  all  that  is  needed  and  that  a  criminal 
provision  is  unnecessary. 

Commt^ts. — A  potential  witness  who  refuses  without  privilege  to  answer 
proper  questions  may  deprive  the  courts  or  the  Congress  of  important  infor- 
mation, perhaps  resulting  in  the  permanent  failure  of  un  investigation  or  trial. 
In  addition  to  the  civil  contempt  power  designed  to  induce  a  witness  to  testify, 
employment  of  the  criminal  contempt  provisions  occasionally  is  warranted. 
There  appears  to  be  no  reason  to  change  the  existing  law  In  this  regard. 

5.  Reporters  committee  recommcinlation. — Section  1311  covers  any  person  who, 
among  other  things,  conceals  or  destroys  records,  or  conceals  a  person's  identity, 
and  thereby  interferes  with  the  apprehension,  prosecution,  conviction,  or  pun- 
ishment of  a  person  who  he  knows  has  committed  or  is  being  sought  for  a  crime. 
It  is  no  defense  under  the  section  that  any  concealed  records  eventually  turn 
out  to  be  inadmissible  because  of  privilege  or  otherwise. 

The  Reporters  Committee  opposes  the  section  on  the  grounds  that  it  would 
cover  the  act  of  concealing  a  record  even  if  harmless  because  the  record  was 
inadmissible,  and  that  it  would  cover  reporters  who  simply  decUne  to  reveal 
their  sources. 

Cnm,ment. — As  to  the  first  objection,  an  individual,  reporter  or  otherwise, 
cannot  be  i^ermitted  to  make  an  unreviewable  detenuination  of  the  law  which 
may  affect  the  outcome  of  another  person's  criminal  trial.  Destruction  of  a  rec- 
ord is  a  final  act.  Concealment  of  a  record  may  be  equally  serious,  as  the 
resulting  delay  in  a  criminal  investigation  can  be  irreparable.  If  a  record  is  in 
fact  legally  privileged,  the  court  can  promptly  determine  that  fact  in  the  course 
of  reviewing  the  propx'iety  of  a  subpoena  or  warrant  and  the  possessor  of  the 
document  will  adequately  be  protected  thereby.  But  if  the  record  is  not  priv- 
ileged and  is  destroyed  or  hidden,  the  court  and  the  public  will  be  deprived  of 
potentially  important  evidence  and  that  deprivation  may  be  irreversible.  The 
provision  is  a  reasonable  one. 

As  to  the  second  objection,  the  draft  Senate  report  makes  it  clear  that  the 
section,  like  the  misprision  provision  of  current  law  (18  U.S.C.  4),  requires 
active  concealment,  and  that  the  refusal  of  any  person  to  identify  a  fugitive 
could  not  constitute  a  violation  of  the  section. 

6.  Reporters  committee  recommendation. — Sections  1731-1733  are  the  general 
theft  and  receipt  of  stolen  property  offenses.  In  section  1739  of  the  bill  a  bar  to 
prosecution  is  provided  where  intangible  property  was  obtained  without  a  tres- 
pass solely  for  public  dissemination  and  not  as  consideration  for  "anything  of 
value."  The  Reporters  Committee  objects  to  this  provision  as  being  inadequate 
because  a  reporter's  salary  or  a  newspaper's  profit  might  be  construed  to  remove 
them  from  the  protection  of  the  bar. 

Comment.— The  August  4  Committee  Print  of  the  bill,  at  the  suggestion  of  the 
American  Newspaper  Publishers  Association,  deletes  the  "anything  of  value" 
requirement  and  permits  the  bar  to  prosecution  to  be  applied  as  long  as  the 
primary  purpose  of  obtaining  the  information  is  to  disseminate  it  to  the  public 

7.  Reporters  committee  recotnmendation.— Section  1344  punishes  amon°-  other 
things,  the  removal  of  a  government  record,  thereby  impairing  its  availability 
The  Reporters  Committee  suggests  that  the  language  would  cover  photocopies  of 
government  records  even  if  the  original  were  not  removed 

Comment.—Even  though  it  is  quite  apparent  that  under  normal  circumstances 
removal  of  a  photocopy  could  not  impair  the  "availability"  of  a  record  the 
August  4  Committee  Print  of  S.  1437  specifies  that  the  removal,  to  be  covered 
by  the  section,  must  impair  the  record's  "physical"  availability, 

8.  Reporters  committee  recommendation.—Section  1301,  which  is  derived  from 
present  law  (18  U.S.C.  371),  punishes  those  who  intentionally  obstruct  nr  impair 
a  government  function  by  defrauding  the  government  in  any  manner  The 
Reporters  Committee  opposes  the  section  on  the  ground  that  a  part  of  the  Ellsberg 
indictment  charged  a  conspiracy  to  defraud  the  government  under  18  U  S  C  371 
by  disseminating  officially  controlled  documents  '    '    ' 

Comment.~The  provisions  of  18  U.S.C.  371  cover  both  property-taking  fraud 
and  non  property-taking  fraud   (such  as  misusing  the  CIA  in  the  Watergate 
case).  The  essence  of  the  former  Is  theft,  the  essence  of  the  latter  is  obstructing 
92-465 — 77 -43 


9240 

a  government  function.  S.  1437  divides  the  coverage,  placing  part  in  section  1731 
(Theft)  and  part  in  section  1301  (Obstructing  a  Government  Function).  The 
taldng  of  government  records  falls  vrithin  the  theft  coverage  of  the  nev.'  Code, 
provisions  already  sub.iect  to  a  bar  to  prosecution  in  the  situation  that  concerns 
the  Reporters  Committee. 

;>.  h'eijorters  contniHicc  recommendation. — Section  l.">2.j  punishes  government 
employees  who  disclose  private  information  that  members  of  the  public  are 
required  to  submit  to  the  government  and  that  is  l>arred  from  release  raider  a 
specific  duty  imposed  by  law.  The  Reporters  Committee  objects  to  the  section  on 
the  ground  that  it  would  reduce  the  flow  of  information  to  the  public. 

Comment. — The  section  consolidates  a  number  of  existing  offenses  punishing 
the  release  of  tax  information,  census  data,  trade  secrets,  and  the  like.  Since  it 
requires  breach  of  a  pre-existing  duty  before  the  section  applies,  its  primary 
effect  is  in  affording  a  single  penal  statute  with  a  common  penalty.  Consequently, 
it  is  not  likely  to  alter  substantially  the  existing  availability  of  data. 

The  Reporters  Committee  proposes  that  a  defense  l)e  inserted  which  would 
exculpate  a  government  employee  who  publically  releases  private  information 
in  government  files.  Such  a  defense  would  seriously  compromise  recent  eft'orts  to 
help  ensure  against  unwarranted  breaches  of  citizens'  privacy. 

10.  Reporter.^  eoitimittce  recommendation. — Section  3S07  carries  forward  21 
U.S.C.  844.  which  permits  the  sealing  of  arrest  and  disixisition  records  of  certain 
first-time  drug  possessors  who  were  under  the  age  of  21  at  the  time  of  the  offense. 
The  Reporters  Committee  criticizes  it  as  a  '"dangerous  first  step"  in  cutting  oft' 
access  to  information  about  the  criminal  justice  system. 

Comment. — This  provision,  which  was  designed  as  a  device  to  promote  the 
rehabilitation  of  youthful  drug  offenders,  has  been  law  for  seven  years.  In  that 
lime,  it  does  not  appear  to  have  blocked  access  to  important  information  that 
warranted  wider  public  dissemination.  The  competing  interests  in  this  area  are 
clearly  appropriate  matters  for  congressional  resoluticm. 


Department  of  Justice. 
Washington,  D.C.,  Felruary  19, 1916. 
Hon.  .ToHN  C.  McClellan, 

Chairman.  Subcommitfee  on  Critninal  Laws  and  Procedures,  Committee  on  the 
Judiciary,  U.S.  Senate,  Washington,  D.C. 

Dear  Senator:  While,  as  you  know,  the  Department  of  Justice  considers  that 
the  S.  1  proA-isions  dealing  with  public  corruption  offenses  are  generally  very 
satisfactory  and  make  notable  impj'ovements  over  current  law  in  some  areas.  I 
am  disturbed  by  the  fact  that  S.  1  would  not  carry  forward  the  "under  color 
of  official  right"  offense  presently  contained  in  the  Hobbs  Act,  18  U.S.C.  1951, 
and  punishable  by  up  to  twenty  years  in  prison. 

The  non-codification  of  this  offense  evidently  represents  a  conscious  decision 
by  the  draftsmen  of  the  bill.  In  discussing  the  matter,  the  draft  Senate  Report 
takes  the  jjosition  that  the  conduct  covered  by  the  offense  can  almost  always  I'O 
proved  either  to  constitute  classic  extortion,  or  bribery,  both  punishable  under 
S.  ]  at  a  Class  C  felony  level  (up  to  fifteen  years  in  prison).  As  the  Report  puts 
it:  "[A]s  a  practical  matter,  where  a  public  official  receives  property  to  which 
neither  he  nor  his  office  is  entitled  from  persons  who  pay,  e.g.,  because  of  an 
understanding  or  custom  that  every  person  doing  business  with  the  city  has  t<i 
pay,  it  can  readily  be  shown — and  normally  is  by  the  prosecution — that  the  pay- 
7nent  was  made  unwillingly  because  of  an  im]>li(it  tlireat  of  force  or  fear  [of  a 
harmful  economic  conse(|uence]".  The  report  further  asserts  that,  where  no 
exT)li(it  or  inqnicit  tlireat  of  harm  accompanying  the  payment  can  be  shown,  S.  1 
will  i»ermit  jirosecution  of  the  official  for  bribery. 

The  fact,  is  however,  that  S.  1  does  not  perpetuate  the  full  scope  of  the  "under 
color  or  official  right"  offense  since  a  threat  of  reprisal  if  payment  is  not  made 
is  often  very  difficult  to  establi.sh  and  since,  even  assuming  tliat  a  briliery  prose- 
cution wouUl  always  be  a  viable  means  of  reaching  the  identical  conduct  pro- 
scribed, the  jurisdictional  provisions  applicable  to  liribery  in  S.  1  do  not  include 
an  "affecting  commerce"  base  as  does  the  Hobbs  Act  today,  and  thus  would  not 
permit  successful  federal  prosecution  of  such  cases  as  Vnited  States  v.  Mazzei. 
Vyll  V.  2d  G.30  (.3d  Cir.  1075)  (en  banc),  involving  a  corrupt  local  official.  More- 
over, contrary  to  the  assumption  in  the  draft  Report,  the  conduct  readied  by 
the  "under  color  of  official  right"  offen.se  would  not  be  iireserved  by  the  iiossi- 
bility  of  a  prosecution  for  classic  bribery.  To  establish  l)ril)ery  under  section 
1351  of  S.  1  the  prosecution  must  show  that  the  defendant  public  servant  ac- 


9241 

cepted  "anythiiig  of  value  in  return  for  an  agreement  or  understanding  that  the 
recipient's  official  action  as  a  public  servant  will  be  influenced  thereby,  or  that 
the  recipient  will  violate  a  legal  duty  as  a  public  servant."  Proving  the  existence 
of  such  a  quid  pro  quo,  which  is  the  essence  of  bribery,  presents  far  more  diffi- 
cult problems  of  proof  than  to  make  out  the  "under  color  of  official  right" 
offense. 

Because  the  "under  color  of  official  right"  offense  has  received  favorable  treat- 
ment recently  from  the  courts  and  promises  to  be  a  highly  useful  prosecutive 
tool  against  corrupt  public  officials,  it  would  seem  appropriate — and  on  l)ehalf 
of  the  Department  of  Justice  I  strongly  urge — that  the  offense  be  restored  to  S.  1. 

Specifically,  I  suggest  that  the  "under  color  of  official  right"  oft'ense  be  added 
to  S.  I's  extortion  section  (1722),  which  already  contains  an  "affecting  com- 
merce" jurisdictional  base.  In  recognition,  however,  of  the  fact  that  the  conduct 
required  to  commit  this  oft'ense  most  closely  resembles  that  proscribed  by  S.  I's 
graft  section,  1352  (a  Class  E  felony)  and  that  Class  C  felony  treatment,  equiva- 
lent to  forcible  extortion  under  section  1722,  is  not  justified,  I  recommend  grad- 
ing the  "under  color  of  official  right"  offense  as  a  Class  E  felony.  The  section,  if 
amended  as  proposed,  would  then  read,  in  pertinent  part,  as  follows  (new  matter 
iniderlined)  : 

"§  1722.  Extortion 

"(a)  Offense.- — A  person  is  guilty  of  an  offense  if  he  obtains  property  of 
another : 

"(i)   by  force  or  by  threatening  or  placing  another  person  in  fear  that 
any  person  will  be  subjected  to  bodily  injury  or  kidnapping  or  that  any 
property  will  he  damaged ;  or 
"  (2)  under  color  of  official  right. 

"(b)   Ghading. — An  oltense  described  in  this  section  is: 

"(1)   a  Class  C  felony  in  the  cirGuriistanccs  set  forth  in  siihscrtion  (a)  (1)  ; 
"(2)   a  Vla.iH  E  felony  in  the  circumstances  set  forth  in  subsection  (a)  (2). 

Of  course,  from  our  point  of  view  the  location  of  the  offense  in  the  Code  is  not 
of  great  significance  and  we  would  not  object  to  its  placement  elsewhere.  At  the 
risk  of  undue  reiteration,  however,  I  do  wish  to  emi)hasize  the  importance  of  the 
"under  cob/r  of  official  right"  offense  to  this  Department's  current  efforts  to  root 
out  corruption  and  I  therefore  hope  that  serious  consideration  will  be  given  to 
an  amendment  to  restore  this  offense  to  the  criminal  code. 

Sincerely, 

Richard  L.  Thornbuegh. 
Assistant  Attorney  General,  Criminal  Division. 


Congress  of  the  United  States, 

House  of  Representatives. 
Washington,  B.C.,  June  21,  WIG. 
Hon.  Edward  M.  Kennedy, 
U.S.  Senate, 
Washington,  D.C. 

Dear  Ted  :  We  greatly  appreciated  the  May  13  letter  from  your  staff  informing 
us  of  the  status  of  negotiations  on  S.  1,  and  we  apologize  for  the  delay  in  com- 
menting on  the  changes  negotiated  thus  far. 

As  former  members  of  the  Brown  Commission,  and  as  House  sponsors  of 
criminal  code  reform  legislation,  we  share  your  belief  that  reform  of  the  federal 
criminal  law  is  an  important  task  facing  the  Congress.  Efforts  to  make  this 
legislation  more  widely  acceptable,  and  thus  more  likely  to  achieve  eventual 
passage,  certainly  must  be  encouraged.  You  and  your  colleagues  are  to  be  com- 
mended for  the  enormous  headway  yon  have  already  made  in  dealing  with  a 
number  of  the  more  controversial  aspects  of  this  legislation.  As  negotiations  are 
continuing,  we  would  like  to  indicate  our  support  for  your  efforts. 

There  still  are  several  asjjects  of  S.  1  which  cause  us  great  concern  and  it 
seems  most  useful  at  this  point  to  share  those  concerns  with  you.  While  the 
attached  list  of  suggestions  do  not  cover  all  of  the  items  with  which  we  have 
problems,  these  are  the  most  important  and  may  be  helpful  to  you  in  your 
further  pursuit  of  compromise  legislation. 

We  should  also  note  that  we  have  spoken  to  the  various  members  of  the 
House  who  would  be  responsible  for  guiding  the  bill  thraugh  hearing  and 
markup,  and  it  is  their  estimation  that  there  is  not  sufficient  time  remaining 
in  this  session  to  complete  House  action  on  the  bill.  Nevertheless,  your  efforts 


9242 

in  the  Senate  to  achieve  needed  amendments  to  the  proposed  code  reform  will 
place  us  much  closer  to  the  goal  of  eventual  recodification.  We  would  appreciate 
being  kept  informed  of  any  further  progress  you  might  make  on  this  issue. 

Sincerely, 

Robert   W.    Kastenmeier. 
Don  Edwards. 

ABNEB   J.    MiKVA. 

Sec.  511  (Sfatute  of  Limitations)  :  A  5  year  period  of  limitations  for  misde- 
meanor offenses  is  excessive.  Compare  section  701  of  the  Brown  Commission 
Report  (embodied  in  H.R.  333)  (3  years)  ;  section  511  of  H.R.  12504  (2  years). 
Sees.  521-552  (Defenses)  :  Although  deletion  of  all  the  defenses  removes  an 
area  of  significant  controversy,  we  note  that  such  an  approach  misses  the  op- 
portunity to  achieve  important  reforms  and  bring  greater  clarity  to  this  area  of 
criminal  law. 

The  i-ecent  case  of  Hampton  v.  United  States,  44  U.S.L.W.  4542  (April  27. 
1976),  holding  that  a  predisposed  defendant  cannot  claim  entrapment  even  when 
the  government  is  hoth  the  supplier  and  purchaser  of  contraband,  is  but  an- 
other illustration  of  the  need  for  reform  of  this  defense. 

Sec.  1001  (Attempt)  :  We  prefer  the  "substantial  step"'  formulation  contained 
in  both  the  Brown  Commission  Report  (H.R.  333)  and  H.R.  12504  to  that  con- 
tained in  S.  1.  Of  equal  significance,  the  language  of  the  Senate  Draft  Report 
(p.  172)  derived  from  earlier  versions  of  S.  1  and  the  Model  Penal  Code  describ- 
ing conduct  deemed  sufficient  to  constitute  an  attempt  is  strongly  objectionable. 
Such  matters  are  best  left  to  continued  case-by-case  development  in  light  of 
partic\ilar  facts  in  individual  instances. 

Preclusion  of  the  defenses  of  legal  or  factual  impossibility  will  also  lead  to 
unwarranted  results  in  certain  circumstances.  See  United  States  v.  Hair,  356 
F.  Supp.  339  (D.D.C.  1973). 

Sec.  1002  (Conspiracy)  :  Lou  Schwartz,  staff  director  of  the  Brown  Commis- 
sion, has  been  highly  critical  of  the  S.  1  formulation  of  the  overt  act  require- 
ment for  conspiracy.  Compare  section  1002  of  H.R.  12504  ("substantially  tends 
to  effect").  See  also  the  suggested  alternative  comment  in  section  1004  of  the 
Brown  Commission  Report  ("substantial  step"). 

We  also  support  abolition  of  the  Pinkerton  rule  of  co-conspirator  liability,  a  po- 
sition endorsed  by  both  the  Brown  Commission  and  the  American  Bar  Associa- 
tion. 

Seas.  1111-1112  (Sabotage  Offenses):  The  agreement  to  eliminate  references 
to  "delays  or  obstructs"  is  an  important  and  necessary  amendment.  However,  we 
■continue  to  question  whether  a  "reckless  sabotage"  offense  (section  1112)  is 
necessary  or  desirable,  notwithstanding  the  argument  that  this  merely  preserves 
existing  law.  Note  that  the  "reason  to  believe"  phrase  of  the  existing  statute  is 
subject  to  the  same  conflicting  interpretations  as  is  the  case  with  the  similar 
phrase  used  in  current  espionage  statutes.  S.  1  resolves  this  ambiguity  in  favor 
of  broader  application. 

Sees.  1116-1117  (Incitement  Offenses) :  Like  section  1831  (Riot),  these  offenses 
should  be  amended  to  incorporate  the  Brandenhurfj  definition  of  incitement.  The 
•amendment  should  be  clear  in  requiring  knowledge  of  the  existence  of  the  req- 
uisite circumstances,  not  merely  reckless  disregard. 

In  addition,  in  the  sensitive  area  of  aiding  mutiny,  insulwrdination  or  de- 
serfion  by  members  of  the  armed  forces,  the  culpability  level  should  be  amended 
to  require  specific  intent,  rather  than  merely  knowing  aid. 

See.  1S02  (Ob.ttrurtinp  a  Government  Function  by  Physical  Interference)  :  The 
problems  with  this  section  seem  to  be  of  draftsmanship  as  much  as  anything 
else.  All  agree  that  there  is  a  legitimate  neofl  for  an  offense  to  protect  government 
inspectors,  federal  marshals  serving  proces.s.  and  so  on  from  ph.vsical  obstruction 
while  performing  their  duties.  However,  in  creating  this  generic  offense, 
broad  language  has  been  used  which  at  least  arguably  would  make  it  applicable 
to  a  wide  range  of  First  Amendment  related  activities  (absent  a  saving  Court 
construction).  Consideration  should  be  given  to  enumerating  in  the  statute  the 
kinds  of  conduct  intended  to  be  covered,  and  making  clear  in  the  Report  that 
which  is  excluded  from  this  section. 

Other  Demom'itrafion  Offenses:  Whether  drafting  an  affirmative  defense  for 
peaceful,  non-disruptive  demonstrations  on  the  grounds  of  a  courthouse  will  be 
sufUcieiit  to  remedy  the  difficulties  with  section  1328    (Demonstrating  to  In- 


9243 

fluence  a  Judicial  Proceeding)  is  difficult  to  evaluate  witliout  examining  the 
text. 

Limiting  section  1SG3  (Failing  to  Obey  a  Public  Safety  Order)  to  riots  and 
natural  disasters  is  a  desirable  amendment,  but  it  seems  equally  desirable  to 
follow  die  Brown  Commission  recommendation  that  the  authority  to  issue  such 
legally  binding  orders  be  limited  to  supervisory  personnel.  See  section  1804  of 
H.R.  333. 

Section  1861,  like  all  disorderly  conduct  statutes,  presents  great  difficulty.  In 
attempting  to  reach  a  wide  variety  of  disruptive  conduct  not  covered  by  more  spe- 
cific statutes,  disorderly  conduct  offenses  tend  to  reach  the  outer  limits  of  con- 
stitutional boundaries,  both  in  vagueness  and  in  overinclusiveness. 

Two  of  the  remaining  subsections  of  section  1861  continue  to  pose  these  prob- 
lems:  (A)  "obstructs  vehicular  or  pedestrian  traffic,  or  the  use  of  a  public  fa- 
cility" and  (a)(4)  "engages  for  no  legitimate  purpose  in  any  other  conduct  that 
creates  a  hazardous  or  physically  offensive  condition."  As  to  the  former,  many 
demonstration  activities  will  involve  some  measure  of  obstruction  of  traffic  or 
of  use  of  public  facilities.  These  activities,  however,  should  ordinarily  be  pro- 
tected. Yet  lying  down  in  a  line  across  a  public  street  goes  too  far,  and  may 
legitimately  be  subject  to  criminal  sanction.  The  present  statute  fails  to  find  a 
balance.  Much  the  same  consideration  may  apply  to  (a)(4). 

Disorderly  conduct  is  an  infraction.  Both  the  Brown  Commission  Report  and 
H.R.  12504  provide  no  authorized  term  of  imprisonment  for  infractions ;  S.  1  au- 
thorizes 5  days.  If  this  offense  were  reduced  to  a  civil  violation  handled  much  the 
same  as  a  traffic  offense,  then  the  threat  that  unjustified  arrests  could  be  used 
to  break-up  demonstration  activities  would  be  greatly  reduced. 

Chapter  13  (Perjury  Offenses)  :  It  has  been  asserted  that  section  1343  merely 
preserves  existing  law  by  making  false  oral  or  unsworn  statements  to  a  law  en- 
forcement officer  an  offense.  Yet  the  Senate  Draft  Report  itself  (pp.  397-398) 
citing  Friedman  v.  United  States,  374  F.  2d  363  (8tb  Cir.  1967),  indicates  a  split 
of  authority  over  whether  present  18  U.S.C.  section  1001  covers  such  statements. 
The  Brown  Commission  Report  (section  13.54)  sharply  limited  criminalization 
of  false  oral  statements  to  "false  alarms"  and  those  where  another  person  is  in- 
tentionally falsely  implicated  in  crime.  The  American  Bar  Association  recommen- 
dation goes  even  further  and  supports  deletion  of  tlie  oral  statement  provision. 
H.R.  12.>04  contains  no  i)rovision  punishing  false  oral  statements. 

Both  H.R.  333  and  H.R.  12504  take  a  more  limited  approach  to  abrogating  the 
two-witness  rule  in  perjurv  prosecutions  than  does  S.l.  See  section  1351(2)  of 
H.R.  333  and  section  1347(b)  of  H.R.  12504. 

Both  the  Brown  Commission  Report  and  H.R.  12504  require  for  conviction  of 
perjury  that  the  defendant  did  not  believe  his  statement  to  be  true.  S.  1  merely 
requires  that  the  defendant  be  reckless  (under  an  objective  standard)  with  re- 
gard to  the  falsity  of  the  statement. 

Chapter  18  (Marijuana)  :  In  view  of  the  agreement  to  reduce  the  penalties  for 
possession  of  small  amounts  of  marijuana  (and  to  provide  no  federal  penalty 
for  possession  of  very  small  amounts),  we  question  whether  a  1  year  penalty  for 
gratuitous  transfers  of  small  amounts  of  marijuana  and  a  7  year  penalty  for 
sales  of  large  amounts  is  justifialde.  (Section  1812).  Also,  the  jurisdiction  pro- 
vision should  be  amended  to  provide  no  federal  penalty  in  those  states  that  act 
to  decriminalize  marijuana  entirely. 

Sec.  1S42  (Obscenity)  :  We  support  your  original  proposal  that  there  be  no  fed- 
eral obscenity  offense. 

However,  if  this  cannot  be  agreed  to,  at  the  very  least  the  venue  provisions 
(section  3311)  shovild  be  amended  so  that  publishers,  filmmakers  and  others 
cannot  be  harassed  by  multiple  prosecutions  in  every  district  through  which  the 
material  has  passed  in  the  mails  or  otherwise.  The  Senate  Draft  Report  (p.  863) 
endorses  this  undesirable  practice. 

Sentencing :  We  understand  that  six  general  principles  for  redrafting  the  en- 
tire federal  sentencing  system  have  been  indicated. 

Incorporating  a  sentencing  guideline  represents  a  fundamental  shift  in  ap- 
proach to  the  subject  of  sentencing.  This  attempt  to  reduce  judicial  discretion 
may  be  desirable,  but  it  necessarily  calls  for  a  review  of  the  entire  process.  Fot 
example,  while  the  substance  of  the  Parole  Reform  Act  is  to  be  included  in  S.  1, 
the  desire  to  remove  discretion  from  the  system  would  require  substantial  change 
in  the  parole  provisions  as  well.  Indeed,  the  logical  extension  of  the  guideline 
approach  calls  for  abolition  of  the  parole  system  in  its  entirety. 


9244 

We  raisp  these  i)()int.s  not  to  indicate  oxir  disapproval  of  the  general  approach 
yon  are  following,  bnt  merely  to  note  that  snch  a  substantial  reform  of  the  sen- 
tencing process  will  call  for  the  most  carefnl  scrntiny.  and  iintil  more  of  the  de- 
tails have  been  worked  out.  it  is  impossible  for  ns  to  evaluate  these  proiwsals 
properly. 

Sees.  36J1-3617  (Civil  f'nmniitmcvt)  :  01)jections  have  been  rai.sed  to  expand- 
ing federal  authority  in  this  area,  and  to  the  details  of  the  proposals  in  S.  1.  We 
commend  to  your  attention  several  procedural  changes  contained  in  H.R.  12504. 
including  composition  of  the  examining  panel  of  psychiatrists,  videotaping  of 
evaluative  conferences,  and  frequency  of  reports  from  the  hcspital  staff  to  the 
committing  authority. 

As  to  incompetency  to  stand  trial,  time  limits  for  duration  of  commitment  and 
dismissal  of  charges  must  be  provided  (though  they  need  not  necessarily  be  the 
same  time  limit. 

»S'ec.  3715  {Admissihilitr/  of  Evidence  at  Sentencing)  :  The  new  Federal  Rules 
of  Evidence,  in  Rule  1101(d)  (3).  already  provides  that  the  Rules  do  not  apply 
to  sentencing  proceedings.  Thus,  if  this  section  is  not  intended  to  undermine  the 
Fourth  Amendment's  exclusionary  rule,  it  should  be  deleted  as  surplusage. 


Administrative  Office  of  the  U.S.  Courts, 

Supreme  Court  Builhing. 
Washington,  D.C.,  March  31, 1977. 
Hon.  John  L.  McCleli<\n, 

U.S.  Senate.  Dirksen  Senate  Office  Bldg.,  Washington,  B.C. 
Attention  :  Mr.  Paul  Summitt 
Re  Criminal  Code  Recodification  Bill 

D.':ar  Senator  McClellan  :  In  reference  to  a  telephone  conversation  Mr.  Judd 
Kutcher  of  my  staff  had  with  Mr.  Paul  Summitt  of  the  Subcommittee  on  Criminal 
Laws  and  Procedures  of  the  Senate  Judiciary  Committee  concerning  chapter  3G, 
"DiSipositiou  of  Juvenile  or  Incompetent  Offenders."'  I  would  like  to  offer  the 
following  observations  on  that  subject.  One  of  the  functions  of  this  office  is  to 
provide  legal  advice  to  United  States  District  Judges,  United  States  Magistrates, 
and  United  States  Probation  Officers  relative  to  the  legal  construction  of  federal 
statutes,  including  construction  of  the  intended  jiractical  application  of  the  Juve- 
nile Delinquency  Act  of  1974.  In  performing  tliat  fmiction.  it  ajtpeared  to  me 
that  several  aspects  of  that  Act  required  clarification.  The  present  draft  of 
§S  3601-3006  addresses  some  of  these  subjects;  however,  it  appears  that  further 
elucidation  regarding  some  important  items  critical  to  the  practical  application 
of  the  Act  wouhl  l»e  helpful. 

First,  under  F.R.  Crini.  P.  ;j4(b)  (;")),  tlie  rules  of  criminal  i)rocodure  only  apply 
to  juvenile  delinquency  pi-oceedings  so  far  as  they  are  consistent  with  that  chap- 
ter. It  would  be  heli)ful  if  chapter  3(5  could  affirmatively  indicate  any  rule  not  in- 
tended to  apply  (for  example,  chapter  3(i  is  silent  as  to  the  application  of  the 
rules  relating  to  arrest  warrant,  initial  appearance,  preliminary  hearing,  etc.) 
or  if  the  statement  in  Rule  r)4(b)  (5)  were  reiterated  in  chapter  36. 

Second,  this  office  has  taken  the  view  that  a  fine  may  not  be  imposed  as  part  of 
a  juvenile's  disposition  or  as  a  condition  of  i)robation  since  S  •'">037  of  title  IS  is 
silent  itn  that  subj»>ct  and  imposition  of  a  fine  would  appear  to  constitute  a  c«mi- 
biuation  of  rehabilitatioii  treatment  and  retributive  puiiisbnx-nt  inconsistent  witii 
the  purpose  of  the  Juvenile  Act.  An  express  reference  in  §  3603(e)  regarding  this 
issue  and  the  related  issue  of  restitution  could  clarify  this  <|uestion,  such  as  the 
addition  of  the  following  sentence  : 

"No  fine,  other  tlian  a  restitution,  may  lie  imposed  cither  as  a  juvenile's  sen- 
tence, part  of  his  sentence,  or  as  a  condition  of  liis  proliation." 

Third,  it  is  the  opinion  of  this  office  that  a  juvenile  charged  with  an  act  of  juve- 
nile dclin(iuency  who  is  released  on  bail  ponding  the  disposition  of  that  charge  and 
jumps  bail  is  not  subject  to  prosecution  under  S  3J.")0  of  title  1<S.  wliicli  by  its  terms 
only  applies  to  persons  released  in  connection  with  a  charge  of  felony  or  niis- 
demeanoi".  This  i)roblem  could  be  remedied  if  proposed  jj  1312  included  the  phra.se  : 
''or  if  the  person  was  released  in  connection  with  a  charge  of  juvenile  delin- 
quency ;" 


9245 

Fonvth,  fhis  office  has  been  presented  with  numerous  questions  regarding  the 
practical  application  of  nondisclosure  of  .iuvenile  records.  In  construing  §  5038 
of  title  18.  I  have  concluded  that:  (1)  §  5038  is  remedial  and  should  be  applied 
retroactively:  (2)  the  exception.s  to  nondisclosure  should  apply  to  any  release  of 
juvenile  information  collected  during  the  "safeguarding"  stage  of  the  juvenile 
proceeding  as  well  as  to  sealed  records:  (3)  the  term  "juvenile  proceeding" 
encompasses  the  time  from  the  juvenile's  arrest  until  the  completion  of  his  final 
discharge  or  dismissal — thus  ali  his  records  during  that  time  are  "safeguarded" 
until  his  dismissal  or  discharge,  at  which  time  the  records  are  "sealed;"  (4) 
§  5(138  permits  the  disclosure  of  favorable  information  in  a  juvenile's  records 
where  a  juvenile  requests  such  release  and  expressly  consents  to  the  disclosure ;  ^ 
and  (5)  authorizes  the  sentencing  court  to  order  a  juvenile's  records  sealed,  and 
in  conjunction  with  such  an  order,  to  instruct  the  clerk  of  the  court  to  collect  all 
court  records,  including  records  in  the  custody  of  employees  of  the  Administra- 
tive Office  of  the  United  States  Courts  and  the  United  States  Probation  Office,  for 
tht^  purpose  of  sealing  the  juvenile's  records,  and  as  to  information  and  records 
relating  to  a  juvenile  proceeding  prepared  in  the  discharge  of  an  official  duty  of 
an  employee  of  other  governmental  agencies,  instruct  the  clerk  of  the  court  to 
provide  the  appropriate  agencies  with  a  copy  of  the  sentencing  court's  sealing 
order:  and  (6)  a  juvenile  may  not  deny  his  juvenile  arrest,  information,  or  ad- 
judication without  being  subject  to  possible  prosecution  for  perjury  or  false 
statement. 

As  regards  the  first  four  juvenile  record  questions,  a  simple  reference  would 
suffice  to  clarify  the  intended  application  of  §  3605.  As  to  court  procedure,  the  fol- 
lowing statement,  adapted  from  the  recommendations  of  the  Judicial  Conference 
of  the  United  States  in  reference  to  §  844  (b)  (1)  of  title  21,  would  be  helpful : 

"The  sentencing  court  must  ensure  that  all  records  and  information  pertain- 
ing to  a  juvenile  proceeding,  from  the  time  of  a  juvenile's  arrest  until  his  dis- 
missal or  discharge,  be  safeguarded.  Upon  a  dismissal  or  discharge,  the  sen- 
tencing court  shall  order  all  records  and  information  pertaining  to  his  juvenile 
proceeding  be  sealed,  and  instruct  the  clerk  of  the  court  to  collect  and  seal  all 
court  records  and  provide  other  government  agencies  with  a  copy  of  the  seal 
order  so  that  they  may  seal  all  records  or  information  in  their  custody  pertaining 
to  his  juvenile  proceeding."  " 

The  above  described  procedure  for  accomplishing  the  sealing  of  a  juvenile's 
records  would  seem  imperative  if  such  records  are  to  be  effectively  removed  from 
access  to  achieve  the  purpose  of  giving  the  juvenile  a  second  chance  free  of  the 
taint  of  the  juvenile  proceeding. 

Finally,  as  regards  whether  a  juvenile  can  legally  give  a  negative  response  to 
a  question  concerning  his  juvenile  proceeding,  a  negative  response  would  comport 
\\ith  intent  of  §  5038  and  the  proposed  §  3605,  yet  the  present  language  used  in 
those  sections  fails  to  explicitly  provide  this  right,  as  Congress  did,  by  contrast, 
in  §  844(b)  (2)  of  title  21.  Accordingly,  I  would  recommend  that  a  statement  sim- 
ilar to  the  provisions  of  §  844(b)  (2)  be  added  to  §  3605  : 

"no  person  found  to  have  committed  an  act  of  juvenile  delinquency  shall  be 
found  thereafter  under  any  provision  of  any  law  to  be  guilty  of  perjury  or  other- 
wise giving  a  false  statement  by  reason  of  his  failure  to  recite  or  acknowledge  his 
arrest,  information,  or  adjudication  in  response  to  any  injuiry  made  to  him  for 
such  a  purpose." 

I  very  much  appreciate  the  opportunity  to  express  the  views  of  my  office  on  this 
important  legislation  and  hope  my  comments  prove  helpful  to  you. 
Sincerely, 

C(\RL  H.  Imlay, 
General  Counsel. 


1  A  juvenile's  request  for  such  information  would  likely  arise  in  the  context  of  a  probation 
officer's  efforts  to  place  him  in  a  job.  By  virtue  of  his  title,  the  probation  officer  would 
alert  the  potential  employer  that  the  juvenile  was  involved  in  some  judicial  proceeding,  yet 
by  a  strict  application  of  §  5038,  the  probation  officer  would  be  precluded  from  responding 
in  any  way  to  the  employer's  inquiry  into  the  nature  of  the  juvenile's  offense  and  behavior — 
an  inquiry  which  must  be  expected  in  that  situation.  In  such  circumstances  the  juvenile, 
with  counsel,  should  be  able  to  waive  the  restrictions  of  §  5038  with  respect  to  favorable 
Information.  Otherwise  the  practical  application  of  §  5038  would  ensure  the  failure  to 
secure  the  juvenile  a  job,  rather  than  achieving  the  section's  intended  purpose  of  helping 
him  secure  a  job. 

-  Adapted  from  a  Judicial  Conference  standard  order.  See  Proceedings  of  the  Judicial 
Conference  (1973),  pp.  14-13. 


9246 

JUI.Y   13,   1977. 

Hou.  John  L.  McClellan, 

CJmirman,    Subcommittee    on    Criminal   Laws   and    Procedures,    U.S.    Senate, 
Washington,  D.C. 
Dear  Senator  McClellan  :  As  individuals  interested  in  the  sentencing  and 
correctional  process,  we  would  like  to  take  this  opiX)rtunity  to  express  our  views 
on  certain  provisions  of  the  proposed  federal  criminal  law  revision,  S.  1437. 

We  strongly  favor  the  main  sentencing  provisions  of  S.  1437.  The  creation  of  a 
commission  to  set  guidelines  for  judicial  sentencing  decisions  will  do  much  to 
alleviate  disparity,  and  bring  order  and  rationality  to  the  present  chaos. 

We  have,  however,  certain  reservations  about  the  bill's  provisions  concern- 
ing parole,  which  we  would  like  to  bring  to  your  attention.  The  bill  goes  far 
towards  authorizing  the  near-eclipse  of  parole — by  permitting  the  Sentencing 
Commission  to  prescribe  periods  of  parole  ineligibility  of  up  to  nine-tenths  of 
the  sentence.  It  also  eliminates  the  Parole  Commission's  power  to  set  release 
guidelines,  transferring  those  to  the  new  Sentencing  Commission. 

We  share  the  skepticism  that  has  been  expressed  in  many  quarters  about  the 
traditional  rehabilitative  rationale  for  parole.  However,  this  is  not  the  only 
function  that  can  be  served  by  a  parole  authority.  Parole  plays  a  critical  role  in 
the  actual  operation  of  the  sentencing  system.  Judges  are  accustomed  to  impos- 
ing lengthy  sentences  which  could  not  possibly  be  carried  out  given  the  limita- 
tions of  prison  space  and  which  would  be  disproportionately  severe  were  tliey 
carried  out.  It  has  been  a  practical  function  of  the  parole  board  to  scale  down 
the  actual  duration  of  confinement  to  more  manageable  levels.  It  may  be  de- 
sirable for  the  Parole  Commission,  a  small,  compact,  and  specialized  body  to 
continue  its  practical  function  of  reducing  undue  disparity  in  the  actual  length 
of  prison  terms.  Parole  also  performs  a  miscellany  of  other  important  functions, 
such  as  providing  incentives  for  good  behavior  in  prison.  Unless  care  is  taken, 
therefore,  the  precipitate  abolition  or  downgrading  of  parole  could  have  unin- 
tended effects  that  could  seriously  diminish  the  usefulness  of  the  reform  you  are 
undertaking. 

Even  omitting  any  change  in  the  status  of  parole,  the  Sentencing  Commission 
will  face  formidable  tasks.  It  must  develop  guidelines  on  the  critical  choice  of 
whether  to  send  the  offender  to  prison  or  impose  a  lesser  sentence  such  as  pro- 
bation. The  latter  is  an  exclusively  judicial  choice  for  wliich  no  standards  what- 
ever now  exist.  In  developing  its  guidelines,  the  Commission  must  decide  how 
broad  or  narrow  the  limits  of  judicial  discretion  should  be.  It  must  address  the 
perplexing  question  of  how  its  guidelines  are  likely  to  affect  and  be  affected  by 
prosecutorial  decisions.  It  must  develop  methods  of  monitoring  judges'  deci- 
sions, to  see  whether  the  standards  are  lieing  complied  with.  Given  these  tasks, 
we  do  not  see  how  a  Commission  having  human  limits  of  energy  and  time  can 
also,  at  the  outset,  regulate  the  standards  for  parole  release  and  consider  fun- 
damental changes  in  the  parole  system. 

For  several  years,  the  U.S.  Parole  Commission  has  been  continually  develop- 
ing and  revising  guidelines  governing  its  parole  release  decisions.  Wliile  we 
might  quarrel  with  some  of  the  details  of  the  guidelines,  they  do  constitute  a 
substantial  step  towards  structuring  the  discretion  to  release  prisoners.  If  the 
Parole  Commission's  standard-setting  function  is  transferred  immediatelv  to  the 
Sentencing  Commission  during  the  latter's  difficult  initial  stages  of  organization, 
that  function  might  be  performed  less  well. 

We  therefore  think  it  preferable  at  present  to  reduced  the  provision  on  parole 
ineligibility  to  a  maximum  of  not  more  than  one-third  of  the  sentence  imposed, 
and  continue  to  have  the  Parole  Commission  set  the  parole  release  guidelines. 
This  will  allow  the  Sentencing  Commission  to  get  organized  and  issue  its  guide- 
lines for  sentencing  judges;  and  it  will  allow  Congress,  scholars  and  the  public 
to  look  at  the  Commission's  handiwork.  It  will  also  allow  more  time  and  a  more 
informed  setting  to  deiiate  the  question  of  parole  abolition  and  its  collateral 
consequences.  In  the  meantime,  to  ensure  that  the  Parole  Commission  and  Sen- 
tencing Commission  adopt  guidelines  that  are  consistent,  the  statute  should 
require  the  two  Ijodies  to  consult  with  one  another. 

On  a  different  issue,  we  also  have  equally  serious  reservations  about  S.  1437's 
proposed  standards  for  appellate  sentencing  review.  Restricting  appeals  to  sen- 
/«"o''-orP"^''^^^  *^^  guidelines  found  by  the  sentencing  judge  to  be  applicable 
(5!3<_,>)   may  eliminate  the  opportunity  to  hear  appeals  based  upon  an  incor- 


9247 

rect  judicial  application  of  the  guidelines.  Further,  conditioning  appellate  relief 
on  a  finding  that  a  sentence  outside  the  guidelines  is  'clearly  unreasonable'  may 
make  it  so  diflicult  to  overturn  a  sentence  as  to  substantially  reduce  the  ability 
of  the  guidelines  to  structure  discretion  and  promote  equity. 
Yours  sincerely, 

Peter  B.  Hoffman, 
Director  of  Research,  U.S.  Parole  Commission. 

Morris  E.  Lasker, 
Judge,  U.S.  District  Court  for  the  Southern  District  of  New  York. 

Leslie  T.  Wilkins, 
Professor  of  Criminal  Justice,  School  of  Criminal  Justice,  State  University 
of  Neiv  York  at  Albany. 

Donald  J.  Newman, 
Acting  Dean  and  Professor,  School  of  Criminal  Justice,  State  University 
of  New  York  at  Albany. 

Michael  Tonisy, 
Assistant  Professor,  University  of  Maryland  Law  School. 

Andrew  von  Hirsch, 
Associate    Professor,    Graduate    School    of    Criminal    Justice,    Rutgers 
University. 

Franklin   E.   Zimring, 
Professor  of  Law,  University  of  Chicago  Law  School. 

Don  M.  Gottfredson, 
Deayi    and   Professor,    Graduate   School    of    Criminal   Justice,    Rutgers 
University. 


Statement  of  Prof.   Heathcote  W.  Wales 

Section  3616  and  3616  exacerbate  the  existing  constitutional  infirmities  of 
18  U.S.C.  §§4246-48  by  expanding  federal  power  to  preventively  detain  the 
mentally  ill.  The  sections  isolate  three  classes  of  persons  for  whom  no  further 
criminal  proceedings  or  confinement  are  justifiable— persons  acquitted  by  reason 
of  insanity,  persons  deemed  unlikely  ever  to  be  competent  to  stand  trial,^  and 
federal  prisioners  whose  sentences  have  expired — and  subject  them  to  federal 
civil  commitment  proceedings  if  they  are  believed  mentally  ill  and  dangerous.- 
Comraitment  under  these  provisions  if  indefinite. 

Federal  power  to  civilly  commit  is  expanded  in  three  ways.  First,  §  3613  creates 
federal  power  over  those  acquitted  by  reason  of  insanity,  a  power  previously 
thought  not  to  exist.^  Second,  §§3613  and  3616  expand  the  concept  of  danger- 
ousness  to  include  danger  to  state  as  well  as  federal  interests.*  Third,  both  new 
sections  would  pre-empt  state  law  by  requiring  federal  civil  commitment  regard- 
less of  state  willingness  to  accept  jurisdiction  over  the  person  committed.^ 


1  Sections  3611(d)  and  3616(a)  and  the  case  upon  which  they  are  based.  Jackson  v. 
Indiana,  406  U.S.  715  (1972),  fail  to  jruide  the  courts  and  prosecutors  as  to  when  criminal 
charges  should  be  dropped  against  a  person  deemed  unlikely  ever  to  be  competent  to  stand 
triaL  Thus,  a  portion  of  this  class  of  commitable  persons  may  technically  still  be  within  the 
criminal  .iurisdiction  of  the  United  States,  although  the  clear  spirit  of  §§  3611(d)  and 
3616(a)  is  to  apply  only  to  those  who  will  never  be  prosecuted. 

The  Supreme  Court  has  clearly  invited  lower  court  and  legislative  guidance  on  the  issue 
of  when  charges  against  such  persons  should  be  dropped.  406  U.S.  at  740.  One  should  hope 
Congress  might  address  itself  to  this  problem  when  it  considers  amendments  to  §  3611, 
insofar  as  it  may  be  better  situated  than  the  courts  to  establish  a  coherent  policy  on  the 
issue. 

2  A  person  is  eligible  for  commitment  if  he  is  "presently  suffering  from  a  mental  disease 
or  defect  as  a  result  of  which  his  release  would  create  a  substantial  risk  of  serious  bodily 
injury  to  another  person  or  serious  damage  to  property  of  another."  §§  3613,  3616.  This 
paper  will  continue  to  use  the  shorthand  phrase  "mentally  ill  and  dangerous"  to  refer  to 
the  above-quoted  language. 

^  See  note  10  infra. 

*  See  note  21  infra. 

5  The  extent  to  which  the  new  law  would  pre-empt  state  civil  commitment  authority 
may  be  less  under  §3616  than  under  §3613.  Under  §i3616(a),  the  director  of  a  facility 
in  which  the  relevant  classes  of  persons  are  confined  is  directed  to  ascertain  the  willing- 
ness of  the  state  of  domicile  to  hospitalize  the  person  before  triggering  federal  civil  commit- 
ment. However,  there  is  no  mechanism  in  the  statute  to  enforce  this  obligation  ;  the  court 
conducting  the  federal  commitment  hearing  is  not  empowered  to  review  the  director's  efforts 
to  discharge  this  duty.  §  3616 (d(.  See  note  22  infra;  notes  55-56  infra  and  accompanying 
text.  See  also  note  45  infra. 


9248 

At  the  outset,  any  effort  to  legislate  federal  civil  commitment  authority  over 
the  mentally  ill  is  caught  between  two  competing  constitutional  limitations  of 
power.  On  the  one  hand,  civil  commitment  authority  in  general  is  a  power 
thought  to  be  reserved  to  the  states.  Confinement  and  treatment  of  the  mentally 
ill  is  a  federal  matter  only  insofar  as  it  is  necessary  and  proi>er  to  the  exercise  of 
some  other  federal  power — here  the  power  to  legislate  federal  criminal  law.* 
On  the  other  hand,  considerations  of  due  process  and  the  prohibition  on  cruel  and 
unu.sual  punishment  require  that  civil  commitment  of  the  mentally  ill  be  dis- 
sociated from  governmental  exercise  of  its  criminal  law  powers. 

Civil  commitment,  historically  a  coloidial  mix  of  police  and  parens  patriae 
powers,  is  desig:ied  to  be  non-punitive  in  nature.  Although  it  seeks  to  achieve 
some  of  the  goals  of  punishment,  notably  restraint  and  rehabilitation,  civil  com- 
mitment is  not  designed  to  achieve  retribution  or  deterrence  and  does  not  con- 
stitute punishment  for  constitutional  purposes"  unless  conducted  without  treat- 
ment.^ Nor  is  civil  commitment  based  on  prior  criminal  conduct :  rather  it  follows 
from  a  prediction  of  future  behavior  which  may  or  may  not  be  based  on  prior 
antisocial  acts.® 

The  fact  that  a  mentally  ill  person  originally  came  to  the  attention  of  the 
authorities  through  the  criminal  justice  system  does  not  permit  any  different 
type  of  commitment  than  if  there  had  been  no  criminal  charge.  Thus,  in 
Baxsf7-om,  v.  ncraJd,^"  the  Supreme  Court  held  that  a  state  prisoner  was  denied 
equal  protection  when  he  was  committed  at  the  end  of  his  prison  term  to  a 
facility  not  used  for  civilly  committed  persons  generally  and  when  he  was  not 
afforded  procedural  rights  accorded  in  ordinary  civil  commitments.  The  Court 
found  the  following  principle  controlling :  "there  is  no  conceivable  basis  for 
distinguishing  the  commitment  of  a  person  who  is  uearing  the  end  of  a  panel 
term  from  all  other  civil  commitments."  " 

The  Baxstrom  principle  was  extended  to  commitment  of  persons  acquitted  by 
reason  of  insanity  in  Bolton  v.  Harris,^'  and  to  i>ersons  found  unlikely  ever  to 
lie  competent  to  stand  trial  in  Jaclcson  v.  Indiana.^^  In  Jackson,  the  Court  rea- 
soned : 

•'If  criminal  conviction  and  imposition  of  sentence  are  insufficient  to  justify 
less  procedural  and  substantive  protection  against  indefinite  commitment  than 
that  generally  available  to  all  others,  the  mere  filing  of  criminal  charges  surely 
cannot  sufliice."  " 

In  short,  the  only  raison  d'etre  for  the  presence  of  provisions  like  §§  3613  and 
3616  in  a  federal  criminal  code  is  that  the  classes  of  persons  affected  come  to  the 
attention  of  federal  authorities  in  the  course  of  the  administration  of  federal 
criminal  laws.  Yet  the  Baxstrom  principle  requires  that  such  persons  be  treated 
equally  \mder  the  law  of  civil  commitment  with  those  not  charged  with  crime. 
In  the  federal  context,  the  applicable  Inw  of  civil  commitment  should  be  that  of 
the  state  of  the  prisoner-patient's  domicile.  Section  A  of  this  paper  argues  that 
§§  3613  and  3616  should  be  replaced  with  a  simple  provision  allowing  for  transfer 
of  the  persons  covered  to  their  state  of  domicile.^®  Section  P.  suggests  how 
§§3613  and  3616  might  be  amended  to  render  them  more  palatable,  constitution- 
ally and  practically,  should  Congress  reject  the  argument  in  Section  A. 

A.  THE    FEDERALISM    OBJECTIOX    TO     §§  3.51."     AND     oGlO 

The  courts  and  Congress  have  traditionally  assumed  that  the  care  and  treat- 
ment of  the  mentally  ill  was  the  province  of  tlie  states,  beyond  the  power  of 


«  ?9c  notos  17-27  infra  nnfl  ncoompanvinc:  text. 

•  Seo  Rohhtxon  v.  CaUfornin.  .''.70  TT.S.  GOO  (in62). 

"  S  "o  jinthoritiois  ritetl  nolo  40  iiifrn. 

"Thus,  for  cx.'iinrilf,  ono  wlio  is  rh.Trped  witli  disniptin?  n  .iudiclnl  procppdinjr  (§  ir!.'^4) 
oonld  ho  coininittod  on  tlip  basis  of  expert  testimony  that  he  is  r.  compulsive  tliief  and  likely 
to  commit-  theft  offenses  in  the  future. 

'"."'.R.S  T'.S.  107    (lOGO). 

"  Id.  at  111-12. 

12  .■'.n.-)  F.  2d  fi-12  (D.C.  Tir.  lOGS).  Bolton  is  cited  with  approval  in  Jnrlsnn  v.  Indiana, 
40fi  r.S.  71.5  (1072).  Accord.  Reiinnldfi  v.  Nrill.  nsi  F.  .Snpp.  ir?74  CS.D.  Tey.  1074), 
vacoted  sub  nom.  S^heldon  v.  Rfiinohlfi.  422  T^.S.  10.50  (107.">)  :  Slfate  v.  CIemonf>.  110  Ariz. 
70.  .-.1.-)  V.  2d  .?24  fl07.S)  :  Wilson  V.  F!tafp.  2.->ri  Ind.  37."..  2S7  \.E.  2d  S7.">  (1072)  ;  People 
V.  McQuillen.  Z^'2  l\rich.  411.  211  N.W.  2d  .".00  (1074).  But  see  Vnitrd  fitatcs  v.  Krkcr, 
.'J4.t  F.  2'1  178   <rt.C.  C\r.  10^0). 

"400  V.a.  71.">   (1072).  See  also  TJiimnhre'/  v.  Cndu.  40."  T'.S.  .504  (1072). 

"400  r.S.  at  724. 

'■"The  provision  would  resemble  5.'?010(f)  but  would  be  broadened  to  cover  the  three 
classes  of  persons  wliich  S§  ^■^(\^?.  and  .^010  make  eligible  for  federal  commitment,  ."^ee  note 
20  infra. 


9249 

Congress  under  Article  I,  section  8,  clause  18.  Legislative  exceptions  to  tliis  rule 
generally  have  been  confined  to  the  care  and  treatment  of  those  currently  within 
the  criminal  jurisdiction  of  the  United  States— those  awaiting  federal  criminal 
trials  and  those  serving  federal  criminal  sentences.^*  Current  developments  in 
the  treatment  of  the  mentally  ill  and  in  the  state  law  of  civil  commitment  greatly 
strengthen  the  policy  reasons  for  maintaining  the  traditional  state-federal  bal- 
ance. The  first  :ilrernative  for  Congress  then  should  be  simply  to  eliminate 
§§  3613  and  3616  and  replace  them  with  a  simple  provision  for  transferring  the 
persons  covered  to  the  relevant  state  authorities  for  civil  commitment  or  release, 
in  accoi'dance  with  state  law. 

1.  The  constitutional  issue 

The  traditional  \iew  of  the  state-federal  division  of  power  over  civil  com- 
mitment has  been  stated  by  the  courts  as  follows  : 

•'While  the  care  of  insane  persons  is  essentially  the  function  of  the  states  in 
their  sovereign  capacity  as  parens  iiatriae,  and  while  the  federal  government  has 
neither  constitutional  nor  inherent  power  to  enter  the  general  field  of  lunacy, 
Congress  has  the  power  to  make  provision  for  the  proi^er  care  and  treatment 
of  persons  who  become  temporarily  insane  while  in  custody  of  the  United  States 
awaiting  trial  upon  criminal  charges,  and  to  make  provision  for  the  care  and 
treatment  of  federal  prisoners  who  become  mentally  incompetent  during  their 
incarceration  after  conviction."  ^' 

Congress  had  a  similarly  restrained  view  of  federal  power  when,  in  1049,  it 
enacted  18  U.S.C.  §§4241-48,  the  statute  which  chapter  36,  subchapter  B,  of 
S.  1437  would  suix'rcede.  The  report  of  the  Committee  cf  the  Judicial  Conference 
upon  which  the  1949  statute  was  based  stated  : 

••If  the  accused's  mental  disability  appears  not  to  be  a  transitory  eonditioUji 
but  in  all  likelihood  he  will,  because  of  his  insanity,  never  be  brought  to  trial, 
it  would  seem  that  as  a  general  rule  the  federal  government  should  not  assume 
responsibility  for  his  hospitalization  merely  because  he  lias  been  accused  (but 
not  convicted)  of  a  federal  crime.  Normally  such  a  person  should  be  turned  over 
to  the  state  of  his  domicile  to  be  confined  in  a  state  mental  hospital  if  hospitaliza- 
tion is  called  for."  '* 

To  ensure  the  appropriate  state-federal  balance.  Congress  limited  federal 
civil  commitment  power  in  several  significant  ways.  First,  the  statute  made  no 
provision  for  those  acquitted  by  reason  of  insanity,  apparently  because  the 
federal  government  was  thought  to  be  without  power  once  an  individual  was 
acquitted  of  federal  charges."  Second,  federal  commitment  w'as  permitted  only 
where  the  individual  was  found  to  be  mentally  ill  and  a  danger  to  "the  officers, 
the  property,  or  other  interests  of  the  United  States."-*  This  clause  has  been 
interpreted  to  require  a  showing  of  danger  to  federally  protected  interests,  as 
distinct  from  purely  state  criminal  law  concerns.'"^  Third,  federal  authorities 


1"^  18  U.S.C.  §§4247-48  go  beyond  the  general  rule,  permitting  commitment  of  mentally 
ill  and  dangerous  federal  prisoners  whose  sentences  have  expired.  This  authority,  however, 
has  rarely  if  ever  been  used.  See  note  43  infra. 

^''Wellh,  bv  Oilliff  v.  Attornei/  General,  201  P.  2d  556,  .559  (10th  Cir.  195.5),  quoted  in 
Hirjffins  v.  United  States,  205  F.  2d  650,  653  (9th  Cir.  1953). 

i**  Report  of  Committee  to  Study  Treatment  Accorded  by  Federal  Courts  to  Insane 
Persons  Charged  With  Crime,  July  30,  1945,  at  7,  quoted  in  Greenwood  v.  United  States, 
350  TT.S.  366.  373   a956). 

i»  See  Dixon  v.  Steele,  104  F.  Supp.  904,  912-13  (W.D.  Mo.  1952).  The  legislative  history 
of  §§  4241-48  is  silent  on  this  point.  The  practice  has  been  to  refer  such  individuals  to 
state  authorities  for  hospitalization  if  state  law  so  required. 

A  subsequent  effort  to  legislate  federal  civil  commitment  power  over  insanity  ncquittees — • 
S.  3689.  89th  Cong.,  2d  sess.  (1966),  introduced  by  the  late  Senator  Kennedy  of  New  York, 
112  Cong.  Rec.  18326  (Aug.  4,  1966) — failed  to  pass  out  of  committee. 

="  IS  r.S.C.  §  4247. 

21  See  Roiml  v.  United  States,  274  F.  2d  846.  852-53  (10th  Cir..  1960).  The  Royal  dis- 
tinction and  the  related  language  from  18  U.S.C.  §  4247  is  erased  by  §§  3613  and  3616  of 
S.  1437. 

A  predecessor  to  §  3613.  introduced  by  the  late  Senator  Kennedy  of  New  York  in  1966, 
note  19  snprn,  cited  the  Royal  distinction  with  approval.  112  Cong.  Rec.  18325  (.\ug.  4, 
1966).  and  incorporated  it  into  the  statutory  language.  Under  subsection  (b)  of  that  bill, 
only  those  insanity  acouittees  evidencing  a  danger  to  "the  officers,  property,  or  other 
interests  of  the  United  States"  would  be  federally  committed,  the  remainder  to" be  released 
to  their  state  of  legal  residence.  Under  subsection  (c)  persons  federally  committed  who 
were  still  dancerous  to  themselves  or  others  generally,  hut  no  longer  dangerous  to  any 
identifiable  federal  interest,  were  to  be  released  to  their  state  of  legal  residence,  if  known, 
or.  in  the  alternative,  to  the  state  in  which  they  had  originally  been  tried. 


9250 

\Vefe  to  institute  federal  commitment  proceedings  only  in  cases  wliere  no  state 
would  assume  jurisdiction  over  tlie  individual." 

Admittedly,  the  1949  statute  was  not  free  from  federalism  objections.  Al- 
though federal  power  to  hospitalize  those  serving  federal  prison  sentences  seemed 
■clear,  no  court  has  ever  ruled  on  the  constitutionality  of  federal  commitment 
<rk  persons  whose  prison  terms  have  expired  under  18  U.S.C.  §§4247—18.^  Ju- 
dicial attention  has  been  limited  to  whether  federal  power  could  properly  be 
extended  to  federal  commitment  of  those  incompetent  to  stand  trial.  Whereas 
the  courts  agreed  that  temporary  federal  commitment  was  permissible  as  neces- 
sary and  proper  to  the  exercise  of  federal  criminal  jurisdiction,  several  courts 
ruled  that  where  incompetency  was  permanent  with  no  hope  of  trial  ever  occur- 
ring, federal  authorities  were  required  to  release  the  defendent  even  if  no  state 
would  accept  jurisdiction  over  him.^  The  issue  reached  the  Supreme  Court  in 
Grecnirood  v.  United  States,^  where  the  Court  held  that  more  than  temporary 
commitment  was  constitutional  under  the  necessary  and  proper  clause  of  Arti- 
cle 1,  section  8,  clause  18,  so  long  as  federal  authorities  retained  criminal  juris- 
diction over  the  defendant  through  a  valid  pending  indictment.*  The  Court 
rejected  the  distinction  made  by  lower  courts  between  temporary  and  permanent 
incompetence  because  of  "the  uncertainty  of  diagnosis  in  this  field  and  the  ten- 
tativeness  of  professional  judgment  .  .  .  Certainly,  denial  of  constitutional 
power  of  commitment  to  Congress  in  dealing  with  a  situation  like  this  ought  not 
to  rest  on  dogmatic  adherence  to  one  view  or  another  on  controversial  psychiatric 
issues."  " 

The  Court's  narrow  holding  in  Greenu-ood  avoided  a  series  of  other  constitu- 
tional questions  in  the  case.  The  due  process,  equal  protection  and  speedy  trial 
clauses  of  the  Constitution  all  suggest  limitations  on  the  duration  of  the  com- 
mitment upheld  in  Greenwood  and  on  the  duration  of  the  indictment.  In  Jack- 
Non  V.  Indian<i,  the  court  gave  preliminary  answei*s  to  these  questions,  holding 
that  the  pendency  of  charges  emi)owered  the  state  to  detain  one  deemed  incom- 
petent to  stand  trial  for  only  "the  reasonable  period  of  time  necessary  to  deter- 
mine whether  there  is  a  substantial  probability  that  he  will  attain  that  capacity 
in  the  foreseeable  future."  ^  If  the  defendant  is  unlikely  to  become  competent 
within  that  period,  he  must  be  released  unless  subject  to  the  same  civil  commit- 
ment provisions  as  other  citizens  not  charged  with  crime.  The  fact  that  he  has 
once  been  charged  with  crime  is  no  longer  a  relevant  factor  in  his  status  before 
the  law.  A  similar  analysis  had  previously  been  applied  to  prisoners  whose  sen- 
tences had  expired^  and  persons  acquitted  by  reason  of  insanity.*' 


~  See  Report,  supra  note  8,  at  7-9,  citing  examples ;  2  U.S.  Code  Cong.  Serv.,  81st  Cong., 
1st  soss.  (1949).  nt  1929. 

Although  the  Eighth  Circuit  Court  of  Appeals  In  one  case  has  road  this  provision  to 
confer  ffxleral  power  to  commit  where  a  state  amidst  Jurisdiction  over  an  individual,  but 
determines  that  lie  must  be  relensed  under  stato  law,  Greeuvnod  v.  Vniterl  Slfntes.  219  F.  2d 
;'.7fi  (Sth  Cir.  19.5")),  afP'd.  350  U.S.  306  (19.")0),  most  courts  seem  to  follow  the  practice 
that  if  the  state  of  domicile  admits  .iurisdiction,  but  declines  to  commit  pursuant  to  state 
law,  the  individual  must  be  released.  See,  e.g..  United  l^tntcK  v.  Wnlkrr.  ,3.3."  F  Supp 
70.-)  (N.D.  Cnl.  1971)  ;  Cook  v.  Cirrone,  312  F.  Supp.  822  (W.D.  Mo.  1970)  ;  Dtitrd  FHatcf  v. 
Jackson.  306  F.  Supp.  4  (N.D.  Cal.  1969).  The  Supreme  Court,  in  affirming  Greenwood, 
siinra.  did  not  reacli  this  issue.  See  notes  2r)-27  infra  and  accomjianying  text.  Sections 
.'*.613  and  3616  of  S.  1437  would  clearly  require  federal  commitment  for  (his  situation. 
See  Staff  of  Senate  Committee  on  the  .Tudiciary,  93d  Cong.,  2d  sess.,  Reriort  on  Criminal 
.Tustice  Codifications,  Revision,  and  Reform  .\ct  of  1974,  at  1010,  1017  (Connu.  Print 
1974)   [hereinafter  cited  as  Senate  Comm.  Print]. 

^''At  least  since  196.-).  the  Bureau  of  Prisons  has  not  sought  federal  commitment  of  any 
prisoner  whose  prison  term  has  expired.  Any  iiersons  who  might  have  been  elidble  for  such 
comiuifment  under  IS  TJ.S.C.  §§  4247  and  424S  have  been  turned  over  to  st.-ite  authorities. 
See  note  43  infra.  The  disuse  of  those  provisions  is  iiarticul.arly  striking  since  the-  were 
oricrinnlly  included  in  the  1049  legislation  at  the  behest  of  (lie  Direclor  of  the  Bureau 
of  Prisons.  See  Urarincis  on  S.  8r,n  Before  a  Suhcom iiiittee  of  the  Senate  Committee  on  the 
Jiidieiarii.  SOth  Oong.,  2d  soss..  at  7  (1948). 

=■*  See,  O.S..  HifiqinH  v.  United  States.  20,5  F.  2d  6r)0  (9th  Cir.  195.'?)  ;  Wells,  hu  Gillio  v. 
Attorney  General,  201  F.  2d  r).-)6  (10th  Cir.  19.53)  :  Edwards  v.  Steele,  112  F  Supp.  382 
(W.D.   Mo.   10.52)  :   m^ron  v.  Steele,  104  F.   Supp.  904    (W.D.   Mo.   19.52). 

=r.  30,5  U.S.  366   (lfl.56). 

28  At  a  nilninuim.  Greenwood  seems  to  require  constltutionallv  the  approach  taken  bv 
the  draftsmen  of  S.  1437  in  §  3616(f)  (persons  incompetent  to  stand  trial  whose  feder.n'l 
charges  are  dismissed  for  reasons  unrelated  1o  mental  condition  must  be  released  to  their 
state  of  ilomieile).  Nor  does  Greenwood  sucrcest  wliv  persons  incompetent  to  stanrl  trial 
whose  federal  charges  are  dismissed  for  reasons  related  to  their  mental  conditions  (§§  3011 
(d>  and  3(i16(a))  sliould  be  treated  anv  difTerendv. 

=^.3.50  U.S.  at  .37.5-76. 

='406  U.S.  715.  738  (19721. 

'^  na<tstr^m  v.  He.rold,  383  U.S.  107  (1966). 

^  See  cases  cited  at  note  12  supra.  See  also  notes  10   14  supra  and  accompanying  text. 


9251 

Reading  the  due  process  and  equal  protection  limitations  of  Jackson  together 
with  the  Greenwood  reading  of  the  scope  of  the  necessary  and  proper  clause 
suggests  that  when  the  United  States  loses  criminal  jurisdiction  over  an  indivi- 
dual, it  loses  the  auxiliary  power  to  hospitalize  him  as  well.  Unless  and  until 
Congress  determines  in  a  manner  consistent  with  Article  I,  section  8,  that  it 
has  general  parens  patriae  authority  for  the  care  and  treatment  of  the  mentally 
disabled,  such  persons  should  be  left  to  the  operation  of  state  civil  commitment 
laws  and  institutions.*^  This  analysis  includes  all  classes  of  persons  covered 
under  §§  3613  and  3616  of  S.  1437,  except  those  incompetent  to  stand  trial  against 
whom  federal  charges  are  still  pending.''^ 

The  policy  issue 

The  expansion  of  federal  civil  commitment  power  proposed  by  §§3613  and 
3616  comes  at  a  time  when  Congress  should  be  contracting  federal  authority  over 
the  care  and  treatment  of  the  mentally  disabled.  Even  the  civil  commitment  au- 
thority claimed  by  the  1949  statute  api)ears  unwise  in  light  of  intervening  devel- 
opments in  medicine  and  law  concerning  the  mentally  disabled. 

In  1949,  the  principal  "treatment"  of  the  severely  mentally  disabled  and  dan- 
gerous was  extended  hospitalization.  Isolation  of  the  patient  from  the  stresses 
of  the  community,  shock  treatments,  and  marginal  efforts  at  psychotherapy 
were  the  therapeutic  embellishments  to  what  was  essentially  a  warehousing  pro- 
gram to  protect  the  community.'*'*  State  mental  hospitals  were  faj  more  over- 
crowded and  understaffed  than  they  are  today.  As  a  result,  state  mental  health 
systems  were  especially  reluctant  to  assume  the  burden  of  care  for  prisoners  and 
persons  incompetent  to  stand  trial  in  the  federal  system. 

The  revolution  in  modern  psychiatric  treatment  stems  largely  from  discoveries 
of  major  psychotropic  medications  during  the  late  1940's  and  early  1950's.  The 
new  drugs  enabled  a  dramatic  reduction  in  the  average  period  of  hospitalization 
and  a  movement  towards  community  mental  health.**  Spurred  on  by  federal 
money  from  the  Community  Mental  health  Centers  Act  of  1963,*°  a  vast  expan- 
sion of  outpatient  services  has  occurred  at  the  state  and  local  level  over  the 
past  twenty  years.*®  At  the  same  time  research  showed,  contrary  to  earlier 
theories  of  mental  health  care,  that  separation  of  the  patient  from  the  family 
and  community  in  which  stresses  had  arisen  and  the  effects  of  institutionaliza- 
tion caused  patients  to  get  sicker.*^  Indeed,  post-hospital  studies  of  patients  hos- 
pitalized for  varying  periods  of  time  have  found  that  the  patient's  ability  to  func- 
tion in  the  community  is  negatively  correlated  with  length  of  stay  in  the 
hospital.** 

Hence,  to  be  effective,  hospitalization  must  be  brief  and  must  be  conducted 
in  a  setting  where  outpatient  programs,  the  family,  and  community  resources 
can  be  involved  in  the  overall  treatment  program.  Lengthy  hospitalization  in 
places  remote  from  the  patient's  community  may  keep  the  mentally  disabled 
off  the  streets,  but  is  not  conducive  to  amelioration  of  their  ability  to  function 
normally  in  society. 

What  good  medical  policy  dictates,  the  courts  are  beginning  to  require  as  a 
constitutional  matter  through  the  twin  doctrines  of  right  to  treatment  and  least 


31  Put  differently,  enactment  of  §§3613  and  3616  would  establish  a  significant  Con- 
gressional precedent  for  the  proposition  that  Congress  does  in  fact  possess  such  a  gen- 
eralized parens  patriae  authority  pursuant  to  Art.  I,  §  8,  cl.  18.  The  dangers  to  civil  liberties 
and  to  principles  of  federalism  whicli  might  ensue  may  seem  speculative  to  some,  but,  to 
this  writer  at  least,  should  be  addressed  by  the  Congress  and  thought  through  with  utmost 
seriousness. 

^  See  note  1  supra. 

83  See  Deiitsch,  The  Mentally  III  in  America  446-57   (1949). 

3*  "The  drug  revolution  has  probably  had  a  more  profound  effect  on  the  mental  hospital 
as  an  institution  and  as  part  of  a  community  care  program  than  all  other  changes  com- 
bined." B.  PassamanicJ:,  F.  Scarpttti,  &  8.  Binitiz,  Schizophrenics  in  the  Community  17 
(1967).  See  also,  Englehardt,  Freedman,  Click,  Hankoflf,  Mann  &  Margolis.  Prevention 
of  Psychiatric  Hospitalization  With  Use  of  Psychopharmacological  Agents,  173  J.  A.M.A. 
147  (1960)  M.  Greenblatt,  R.  Moore,  R.  Albert  d  M.  Solomon,  The  Prevention  of  Hos- 
pitalization:  Treatment  Without  Admission  for  Psychiatric  Patients    (1963). 

35  Pub.   L.  No.  88-164,  tit.  II,  77  Stat.  290,  as  amended,  42  U.S.C.   §§2681-87    (1970). 

^'^  See  C.  Taube,  Distribution  of  Patient  Care  Episodes  in  Mental  Health  Facilities.  1969, 
Statistical  Note  58,  Survey  and  Reports  Section.  National  Institute  of  Mental  Health 
(1972)  ;  C.  Taube,  Changes  in  the  Distribution  of  Patient  Care  Episodes — 1955-1968 — By 
Type  of  Facility,  Statistical  Note  23,  Survey  and  Reports  Section,  National  Institute  of 
Mental  Health  (1970). 

3T  See,  e.g.,  E.  Goffman,  Asylums  (1961)  ;  Mendel,  On  the  Abolition  of  the  Mental  Hos- 
pital, in  Comprehensive  Mental  Health:  The  Challenge  of  Evaluation  (L.  Roberts  N.  Green- 
field &  M.  Miller  ed.  1968). 

38  Mendel,  Brief  Hospitalization  Techniques,  6  Current  Psychiatric  Therapies  310  (1966). 


9252 

re.strictive  alternative.  Although  the  Supreme  Court  has  not  yet  ruled  on  whether 
a  right  to  treatment  exists  for  persons  deemed  mentally  ill  and  dangerous,''"  sev- 
er;U  lower  courts  have  found  such  a  right  to  exist  '"  to  avoid  the  constitutionally 
repugnant  prospect  of  detaining  a  j)erson  solely  to  prevent  future  criminality." 
The  least  restrictive  alternative  doctrine  goes  toward  balancing  the  patient's 
needs  for  particular  treatment  modalities  against  his  due  process  right  to  liberty. 
Thus  a  patient  is  entitled  to  the  uunimum  intrusion  on  his  liberty  consistent  with 
medical  needs  in  conducting  treatment  and  controlling  any  danger  the  patient 
I)re.sents  toward  others."  These  two  emerging  constitutional  doctrines  then,  com- 
bined with  modern  practices  and  technicpies  of  treatment  of  the  mentally  dis- 
abled, render  untenable  the  indefinite  total  hospitalization  of  patients  in  federal 
facilities  located  far  from  the  patients"  conmiunities  and  associated  outitatient 
services. 

Finally,  tlie  Attorney  General,  to  whose  custody  §§  3G13  and  3616  would  commit 
patients,  currently  has  no  medical  facilities  under  his  control  in  which  to  place 
the  infinitesimal  number  of  patients  he  is  likely  to  receive  under  these  provi- 
sion.s."  Although  Veterans  Administration  hospitals  may  take  some  of  these 
patients,  their  ciirrent  practice  is  not  to  accept  such  patients  unless  charges  have 
Iteea  droppid  and  the  Attorney  General  lias  i-eiinquished  all  authority  over  the 
individual.  Medical  facilities  under  the  Bureau  of  Prisons  coidd  not  be  used  for 
civilly  committed  patients  without  creating  serious  constitutional  difficulties." 
Contracting  out  such  patients  to  state  medical  facilities  pursuant  to  §  3017(h)  (1) 
presents  the  most  ludicrous  alternative  of  all.  The  Attorney  General  would  only 
be  saddled  with  such  patients  in  the  event  that  the  state  of  the  patient's  domicile 
refuses  to  take  responsibility  for  the  patient.  But  what  state  adminisrator  would 
accept  such  responsibility  if  he  knew  the  Attorney  General's  only  other  alter- 
native was  to  pay  the  state  to  take  the  patient?  *' 


:»  See  £rener:ill.v  O'Connor  v.  Donaldaon,  422  TT.S.  .ofi.3  (1975K 

4..  See  es..  W'uatt  v.  Aderholt,  503  P.  2d  1.305  (5th  Cir.  1974)  ;  Rouse  v.  Cameron,  .373 
F  "(1  451  (D  C  Cir.  3966)  :  Sitachiilak  v.  Couphlin,  364  F.  .Supp.  6S6  (N.D.  111.  1973)  :  Xa.w)i 
y  nridricwater,  '353  Mass.  604.  233  N.E.  2(i  90S  (196S).  See  frenerally.  Developments,  Civil 
■Commitment  of  the  Mentally  111,  87  Harv.  L.  Rev.  1190.  1316-33   (1974). 

"See  In  Re  Williams,  157  F.  Supp.  8T1  (D.D.C.  1958),  aff'd  25'2  F.  2d  629  (D.C.  Cir. 
1958). 

4;;  See,  e.g..  Covington  v.  Harris,  419  F.  2d  617  (D.C.  Cir.  1969):  Dixon  v.  Attorneu 
General,  325  F.  Supp.  966  (M.D.  Pa.  1971).  For  a  comprehensive  treatment  of  the  doctrine 
as  applied  to  the  mentally  disabled,  see  Chambers.  Alttrnatirrs  to  Cirij  Commitment  of 
the  Mentally  III:  Praetical  Ouides  and  Constitutional  Imperatives,  70  Mich.  L.  Rev.  1107 
(1972).  See  also  Developments,  supra  note  40,  at  1245-53. 

'"^  In  the  vears  1965-74,  a  total  of  176  persons  have  undergone  the  commitment  proce- 
dures of  ISU.S.C.  §  4248  (the  current  analogue  to  §  3616  of  S.  1437),  an  average  of  17.6 
l)er  year.  The  great  majority  of  these  have  been  referre'l  to  state  hosnitals  for  oomniit- 
nient  pursuant  to  state  laws.  A  few  have  gone  to  private  hospitals  and  the  remainder  have 
i)een  placed  in  Veterans  Administration  hospitals.  All  176  were  persons  incompetent  to  st^md 
trial.  l'\ir  at  least  the  period  1065  to  present,  no  jirisoner  whose  sentence  has  expired  has 
undcrtrone  §  424S  proceedings.  Conversation  with  Dr.  Colin  Frank.  Bureau  of  Prisons.  .Tuly 
9.  1975.  These  statistics  dramatically  undercut  the  conclusory  statements  based  on  anec- 
dotal evidence  in  Tvdings,  A  Federal  Verdict  of  Not  Guilty  hit  Reason  of  Insanitri  and  a 
fiuhsequent  Commitment  Procedure,  27  Md.  L.  Rev.  131,  133-34  (1968),  cited  in  Senate 
Conim.  Print  at  1006.  n.  33. 

.Mthotigh  the  numbers  may  Increase  slightly  with  the  addition  of  tliose  acquitted  by 
reason  of  insanity  (§3613).  the  increase  should  be  insubstantial.  Data  collected  in  the 
District  of  Columbia  under  the  operation  of  the  Durham  rule  showed  insanity  ncouittnls 
occurring  in  2  percent  of  all  cases  terminated.  United  States  v.  Bratcncr,  471  F.  2d  909, 
989  (D.C.  Cir.  1972). 

'■»  See,  i\s..  People  v.  Feaolen.  14  Cal.  3d  .338  rv35  P.  2d  373.  121  Cat.  Rptr.  509  (1975)  ; 
Ke-'<selhre)wer  v.  Anonymous,  33  N.Y.  2d  161.  305  N.E.  2d  903,  350  N.Y.S.  2(1  889  (1973)  ; 
luh'r  Maddo.r.  351  Mich.  358.  88  N.W.  2d  470  (1958). 

Tlu'  fact  tliat  H  ■''>'il'.''  ami  361(i  cummit  patients  to  the  custody  of  the  Attorney  Oeneral. 
rather  tiuin  to  some  department  cnncerned  with  Tuental  healh  care,  may  in  Itself  raise 
constitutional  doubts  .about  these  provisions.  Compare  the  proposed  legislation  cited  in 
note  19  siitirii  ((ommltment  of  patients  to  Surgeon-General).  Cf.  Child  Labor  Tax  Case, 
259  IT.S.  20.  37   (1922). 

^'T'lider  this  alternative,  there  is  also  the  prospect  that  a  patient  will  be  treated  with 
other  state-committed  patients  who  are  hospitalized  under  narrower  commitment  standards 
than  the  federal  i)atient.  For  example,  many  states  do  not  permit  indefinite  commitments. 
Others  require  a  higlier  standard  of  proof  than  §§  3613  and  3616.  Still  others  require  more 
specific  showings  of  dangerousness.  sOTue  of  which  exclude  danger  to  property  as  a  criterion 
for  commitment. 

Furthermore,  one  may  assume  that  different  procedural  schemes  for  committed  patients 
may  be  linked  to  variations  In  the  nature  of  the  treatment  provided.  Thus  federal  patient 
A,  contracted  out  to  state  facility  X  where  procedural  protections  are  high,  may  he 
receiving  Intensive  treatment  designed  to  ready  him  for  release  In  a  few  months,  whereas 
federal  patient  B.  contracted  out  to  state  facility  Y,  may  be  receiving  something  not  much 
better  than  custodial  care. 


9253 

B.   CONSIDERATIONS  FOB  ALTERNATIVE  AMENDMENTS  TO  §§  3613  AND  3G1C 

The  discussion  thus  far  is  directed  to  the  conclusion  tliat  §§3613  and  3616 
constitute  an  impractical  and  unconstitutional  arrogation  of  power  that  properly 
should  be  left  to  the  states.  Should  Congress  reject  these  contentions  by  attempt- 
ing to  preserve  the  thrust  of  these  sections,  it  may  wish  to  consider  a  series  or 
perfecting  amendments  to  deal  with  other  more  limited  constitutional  objections 
and  practical  difficulties  summarized  below. 

Prisoners  whose  sentences  have  expired.  Section  3616(a)  directs  that  prisoners 
believed  by  the  director  of  the  facility  in  which  they  are  confined  to  be  mentally 
ill  and  dangerous  may  be  detained  after  their  sentences  have  run  on  the  basis 
of  a  certificate  filed  by  the  director  until  a  court  hearing  occurs  under  §  3616(c). 
No  time  limitation  is  set  for  this  detention,  no  probable  cause  is  required,  nor  is 
any  mental  examination  required.  Pure,  unbridled  discretion  is  left  in  the  hands 
of  "the  director.  No  reason  is  given  why  the  examinations  required  by  §  3616  (c) 
and  (d)  cannot  occur  before  the  sentence  has  run. 

Fsijchiatric  examinations — Place  of  confinement.  Section  3617(b)  gives  the 
court  discretion  to  designate  the  facility  in  which  the  examination  is  to  occur. 
Experience  shows  that  judges  often  have  left  persons  awaiting  examinations  in 
jail.  This  section  should  specifically  exclude  jails  and  prisons  from  the  clause 
"or  another  facility  designated  by  the  court  as  suitable"  in  the  interests  of 
humane  treatment  of  the  mentally  disabled.*'^  The  same  problem  appears  in 
§§  3613(d)  and  3616(d). 

Paychiatric  examinations  of  persons  acqttitted  hy  reason  of  inftanity.  Section 
3617(b)  allows  persons  undergoing  civil  commitment  because  their  prison  sen- 
tences have  expired  or  because  they  are  unlikely  to  become  competent  to  stand 
trial  to  have  appointed  a  psychiatrist  of  their  choice  for  the  pre-hearing  ex- 
amination, while  denying  that  right  to  persons  acquitted  by  reason  of  insanity. 
Since  all  three  classes  of  persons  are  being  subjected  to  precisely  the  same  loss 
of  liberty  on  precisely  the  same  basis — mental  illness  and  dangerousness — the 
distinction  seems  to  raise  significant  equal  protection  problems. 

Furthermore,  §  3617(b)  permits  a  60-day  commitment  of  persons  acquitted  by 
reason  of  insanity  for  purposes  of  examination  without  any  showing  of  probable 
cause  to  believe  the  person  is  presently  mentally  ill  and  dangerous.^^  Similarly, 
§  3613(a)  states  that  "the  court  shall  order  a  hearing"  on  indefinite  commitment 
for  such  persons  regardless  of  the  absence  of  probable  cause.  The  fact  that  a 
jury  has  entertained  reasonable  doubt  that  the  person,  because  of  mental  illness 
at  the  time  of  the  alleged  offense,  could  be  held  culpable  for  the  crime  charged 
does  not  of  itself  provide  probable  cause  to  believe  he  is  presently  mentally  ill 
and  dangerous.^  It  should  also  be  made  clear  in  the  legislative  history  of  the  bill 
that  the  fact  that  such  60-day  commitments  are  discretionary  means  that  one 
otherwise  entitled  to  bail  should  be  permitted  an  examination  on  an  out-patient 
basis. ^'' 

Finally,  the  draftsmen  have  left  to  the  court's  discretion  the  issue  of  whether 
the  examining  psychiatrist  under  this  provision  may  be  the  same  person  who 
examined  the  patient  for  his  insanity  defense.'^  Experience  in  the  District  of 
Columbia  has  revealed  what  Professor  David  Chambers  has  called  a  "conflict 
of  interest"  for  psychiatrists  conducting  court-ordered  examinations  at  St.  Eliza- 
beth's Hospital.^^  If  the  examination  of  the  accused  before  the  trial  on  the  issues 
of  insanity  and  incompetency  is  conducted  by  staff  from  the  hospital  where  the 
accused  will  be  hospitalized  if  found  insane  or  incompetent,  pre-trial  psychi- 
atric conclusions  will  be  influenced  by  staff  willingness  to  have  the  accused  as  a 
patient.  Similarly,  a  p.sychiatric  conclusion  as  to  a  patient's  present  mental  ill- 
ness and  dangerousness  may  tend  to  be  influenced  by  the  desirability  of  receiving 
the  patient  should  the  court  order  commitment.  The  issue  is  not  which  psychia- 
trist should  conduct  the  examination,  but  which  facility  should  do  it.  The  addi- 


*"  A  simple  amendment  here  would  be  to  add  a  word  to  the  above-quoted  language  to 
make  it  read  :  "or  another  treatment  facility  designated  by  the  court  as  suitable."  For 
similar  language,  see  the  proposed  bill  cited  at  note  19  supra. 

"  See  In  Re  Barnard .  45.".  F.  2d  1.370  (n.C.  Cir.  1971). 

«  Contra,  United  f^tates  v.  Ecler,  543  F.  2d  178  (D.C.  Cir.  1976). 

•IS  See  Marcei/  v.  Harris,  400  F.  2d  772  (D.C.  Cir.  1968). 

so  Senate  Co'mni.  Print,  at  1009. 

51  Brief  of  David  L.  Chambers  as  Amicus  Curiae  at  '3,  United  States  v.  Browner,  471 
F.  2d  969  (D.C.  Cir.  1972).  See  also  Brawner  471  F.  2d  at  1018,  n.  21;  Judicial  Conf. 
of  the  District  of  Columbia  Circuit,  Report  of  the  Comm.  on  Problems  Connected  With 
Mental  Examinations  of  the  Accused  in  Criminal  Cases  Before  Trial  97  (1966). 


9254 

tion  of  a  simple  sentence  to  the  dispositional  sections  of  the  statute,  §§  3613  (d) 
and  3616(d),  would  resolve  the  issue. 

Time  limits  for  reports  and  hearings.  In  its  current  version  the  hill  sets  no 
time  limits  for  psychiatric  reports  in  court-ordered  mental  examinations.  Nor 
are  thei'e  time  limits  set  for  the  commencement  of  a  hearing,  once  the  rejwrts 
have  been  filed.  The  experience  of  trial  attorneys  demonstrates  that  the  mere 
recommendation  that  reports  be  filed  and  hearings  held  "promptly"  or  "within 
a  reasonable  time"  ^"  are  inadequate  in  many  cases,  particularly  when  the 
patient  is  confined. 

Access  to  psychiatric  records.  Section  3617(c)  provides  that  attorneys  for  the 
government  and  for  the  patient  be  given  copies  of  the  psychiatric  report  filed 
with  the  court.  Experience  indicates  that  such  reports  tend  to  l»e  boilerplate  and 
relatively  undetailed,  particularly  with  regard  to  information  of  dissenting 
views  of  hospital  stafi'  who  have  seen  the  patient  and  information  of  behavior 
which  conflicts  with  the  ultimate  conclusions  of  the  examining  psychiatrist. 
This  section  should  be  broadened  to  permit  access  not  only  to  the  conclusory 
final  report,^*  but  also  to  all  records  concerning  the  examination  kept  by  the 
hospital  staff. 

Consideration  should  also  be  given  to  requiring  a  videotape  of  the  staff  con- 
ference upon  which  the  psychiatric  report  is  generally  based.  At  issue  is  the 
patient's  right  of  confrontation.^  Although  it  might  be  impractical  to  require 
the  presence  of  the  patient's  attorney,  a  videotape  would  not  advei'sely  affect 
the  conduct  of  the  staff  conference  while  it  would  iirovide  attorneys  with  fuller 
information  of  what  goes  into  the  final  report. 

Furthermore,  §  3617(c)  should  be  amended  to  reflect  the  fact  that  such  reports 
are  generally  the  product  not  only  of  the  psychiatrist's  findings,  but  also  those 
of  psychologists,  neurologists,  social  workers,  and  other  ward  staff.  The  term 
"psychiatric  report"  should  be  replaced  with  the  term  currently  used  by  mental 
health  professionals,  "mental  status  report,"  and  it  should  be  made  clear  that 
although  the  psychiatrists  may  be  in  charge  of  the  examination,  the  report  is  to 
include  the  input  of  the  entire  ward  staff. 

The  commitment  hearing  generally.  Sections  3613(d)  and  3616(d)  suggest 
that  the  commitment  hearing  and  determination  should  be  held  first,  followed 
by  efforts  of  the  Attorney  General  to  release  the  committed  person  to  state 
authorities.^^  Current  law,  18  U.S.C.  4248,  states  the  procedure  in  reverse  order. 
Since  the  majority  of  such  persons  are  indeed  released  to  state  authorities  for 
commitment  under  state  law,^  the  existing  procedure  would  seem  more  efficient 
than  that  proposed  by  S.  1437.  Why  proponents  of  S.  1437  wish  to  provide  for  a 
number  of  court  hearings  which  will  have  no  effect  on  the  ultimate  administra- 
tive disposition  of  most  cases  is  puzzling. 

The  right  to  a  jury.  Many  states  provide  the  right  to  a  jury  trial  in  civil  com- 
mitments.^' The  jury  serves  as  the  community's  conscience  on  the  issues  of  what 
degree  of  mental  impairment  and/or  dangerousness  is  sufl^oient  to  deprive  an 
individual  of  liberty.®  Since  neither  medical  experts  nor  legal  and  social  philoso- 
phers have  come  to  any  clear  conclusions  on  these  issues,  the  jury's  role  is 
particurly  important  in  commitment  determination.  Although  jury  trials  are 
typically  waived  where  the  right  is  accorded, °°  the  riglit  should  be  established 
for  those  cases  in  which  the  patient  wishes  a  jur.y. 

The  Role  of  Experts.  In  §  3617(c),  Congress  is  challenged  with  a  unique  oppor- 
tunity to  attempt  resolution  of  one  of  the  great  issues  of  the  period  in  the  inter- 


na See  Senate  Comm.  Trlnt  at  1009-10.  See  also  S§  .3()13(e)  nnd  3616fe). 

"^Section  .SG17(c)(4)  exncerbntes  the  current  practice  of  fillnj;  oondnsory  reports  by 
requiring  the  report  to  include  Icpal  conclusions  by  non-lctral  experts.  Compare  Washivfjton 
V.  United  Staten.  300  F.  2(1  444  (D.C.  Cir.  1007),  Cf.  riichs  v.  United  States.  .^11  F.  2(l'407 
(D.C.  Cir.  107.5)  (hospital  held  neRliprent  in  wronpful  death  action  for  filing  conclusory 
report  inridequntelv  informinp:  court  of  patient's  condition). 

^  See  Thornton  v.  Corcoran,  407  F.  2d  60.5  (D.C.  Cir.  1000). 

t^  Section  SOlfifa)  requires  "the  director  of  a  facility"  to  Investigate  state  commit- 
ment options  iiefore  trissering  a  federal  commitment  proceodinpr.  The  extent  and  nature 
of  that  obligation  are  unclear,  however.  See  note  r>  supra.  Nor  is  it  clear  tlint  tlie  director 
is  the  most  appropriate  person  to  make  such  inquiries.  In  any  event,  no  such  screening 
occurs  for  §  3613  commitments. 

*"  See  note  43  supra. 

•"See,  e.g..  Quesnell  v.  State,  S:^  Wash.  2d  224,  517  P.  2d  568  (1074)  :  D.C.  Code  Ann. 
§  21-544    (1073).   See  generally  Developments,  supra  note  40,  at  1201-05. 

MSee  generally  Humphrey  v.  Cady,  405  U.S.  504,  509  (1972)  ;  notes  61-65  infra  and 
accompanying  text. 

<»  See  Developments,  supra  note  40,  at  1203,  n.  16S :  Pfrender,  Prohnte  Court  Attitudes 
Toward  Involuntary  Hospitalization:  A  Field  Study,  5  J.  Fam.  L.  139,  14S  (1900). 


9255 

face  of  law  and  psychiatry — that  of  the  psychiatric  expert  witness."'^  Unfortu- 
nately, in  §  3617(c)  (4),  the  draftsmen  hreak  and  run  the  other  way.  To  avoid  the 
prospect  of  wholesale  legislative  retreat  on  the  issue,  §  3617(c)  (4)  (A)-(D) 
should  be  deleted.  To  advance  the  state  of  the  law  on  this  question,  those  same 
subsections  should  be  rewritten. 

Of  particular  relevance  to  commitments  under  §§3013  and  3616  is  §  3617(c) 
(4)  (C),^^  which  asks  examining  psychiatrists  and  psychologists  to  state  their 
opinion  in  writing  for  the  court  as  to  whether  the  patient  '"is  presently  suffering 
from  a  mental  disease  or  defect  as  a  result  of  which  his  release  would  create  a 
substantial  risk  of  serious  bodily  injury  to  another  person  or  serious  damage  to 
property  of  another."  "-  The  language  assumes  that  psychiatrists  and  psychologists 
are  experts  in  assessing  each  element  of  the  commitment  standard  when  in  fact 
they  are  not.  To  be  sure,  qualified  examiners  are  expert  in  the  diagnosis  and 
treatment  of  mental  disorders.  They  are  not  experts,  however,  on  the  definition 
of  "mental  disease  or  defect"  for  purposes  of  this  section  nor  on  the  prediction 
of  antisocial  conduct. 

A  conclusion  as  to  whether  a  patient  is  "mentally  ill"  is  immaterial  in  ordinary 
private  psychiatric  practice.  If  the  patient  presents  himself  to  the  therapist 
complaining  of  unwanted  thoughts  or  behaviors,  it  is  the  therapist's  role  to 
advise  and  assist  the  patient  in  ways  to  cope  with  or  eradicate  such  thoughts 
and  behaviors.  It  is  only  when  some  third  party  becomes  involved  in  the 
therapist-patient  relationship  that  the  existence  or  nonexistence  of  mental 
illness  as  such  becomes  an  issue.^  Thus,  for  purposes  of  invoking  insurance 
coverage  for  treatment,  mental  illness  may  be  broadly  defined.  For  purposes 
of  deciding  what  criminal  defendant  should  be  held  not  culpable  for  their  conduct, 
the  definition  of  mental  illness  may  be  considerably  more  narrow.  The  point  is 
that  "mental  illness"  is  not  a  purely  medical  concept,  but  a  social  one  employed 
for  a  variety  of  social  purposes.*^  To  make  the  therapist  the  judge  of  what  con- 
stitutes a  sufficient  mental  disease  or  defect  for  purposes  of  §§  3613  and  3616  is  to 
abdicate  the  proper  role  of  legislature  and  courts  in  formulating  this  essentially 
social  judgment.  Furthermore  such  abdication  perpetuates  the  myth  that  certain 
social  problems  are  in  fact  medical  problems  so  that  society  suspends  efforts  to 
deal  intelligently  with  the  social  aspects  of  those  problems. 

Legislating  medical  expertise  over  the  prediction  of  antisocial  behavior  flies 
in  the  face  of  repeated  disclaimers  of  such  expertise  by  the  country's  foremost 


80  See  Washington  v.  United  States,  390  P.  2d  444  (D.C.  Cir.  1967).  See  generally  United 
States  V.  Browner,  471  F.  2fl  969  (D.C.  Cir.  1972)  ;  R  Arens,  The  Insanity  Defense 
(1974)  ;  J.  ZiSKiN,  Coping  With  Psychiatric  and  Psychological  Testimony  (1970)  ; 
Bazelon,  The  Perils  of  Wizardry,  131  Am.  J.  Psychiat.  1317  (1974)  ;  Bazelon.  Psychiatrists 
and  the  Adversary  Process,  231  Sci.  Am.  18  (June  1974)  ;  Diamond  &  Loiiisell,  The  Psy- 
chiatrist as  an  Expert  Witness:  Some  Ruminations  and  Speculations,  63  Micli.  L.  Rev. 
1335  (1965)  ;  Ennis  &  Litwack,  Psychiatry  and  the  Presumption  of  Expertise:  Flipping 
Coins  in  the  Courtroom,  62  Cal.  L.  Rev.  693  (1974). 

*"■  Altliougli  tills  paper  confines  itself  to  examination  of  subsection  (C),  relating  to 
commitments  under  §§  3613  and  3616,  many  of  the  comments  made  here  are  also  relevant 
to  subsections  (A),   (B),  and  (D). 

"^  Although  the  statute  does  not  compel  the  court  to  be  bound  by  the  expert's  opinion 
on  these  matters  or  even  to  admit  the  expert's  opinion  into  evidence,  §  3617(c)  (4)  strongly 
suggests  that  such  conclusions  are  admissible  evidence  (Contra,  Washington  v.  United 
States,  390  F.  2d  444  (D.C.  Cir.  1967)),  and  that  they  are  to  be  accorded  the  weight 
ordinarily  attributed  to  expert  testimony. 

63  Even  when  mental  disorder  is  attributed  to  organic  causes,  such  as  a  tumor,  there 
is  no  precise  point  at  which  the  tumor  becomes  so  intrusive  upon  the  patient's  func- 
tioning_  that  experts  would  agree  that  the  condition  constitutes  "mental  disease  or 
defect."  The  task  becomes  even  more  subjective  when,  as  is  usually  the  case  in  patients 
seen  by  forensic  psychiatrists,  no  organic  cause  for  the  signs  and  symptoms  displayed  by 
the  patient  can  be  demonstrated. 

«*  Sec  Humphrey  v.  Cady.  405  U.S.  504,  509  (1972). 

For  empirical  support  of  this  statement,  see,  e.g.,  Pugh,  The  Insanity  Defense  in  Opera- 
tion: A  Practicing  Psychintrist  Views  Durham  and  Browner,  1973  Wash.  U.L.Q.  87  9.5-96  • 
mx  Acute  Psychiatric  Hospitalization  of  the  Mentally  III  in  Metropolis:  An  Empirical 
Study,  1968  Wash.  U.L.Q.  485. 

T:.,P^u^l?^^xT'^''^".yr^t*'^?.°f  ^*^  experiences  from  1968  to  1970  at  the  forensic  unit  at  St. 
Elizabeths  Hospital  in  Washington,  D.C. 

"Some^^doctors  seemed  to  have  the  'policy'  that  anyone  who  committed  a  sex  crime  was 
insane.    Some  doctors  tended   to  find  a  defendant  insane  if  they  felt   the  hospital  could 
f  Tx  'li™r~^,''  'f  ^^^^  ^®^*  *°'"'"y  ^^^  ^i™-  One  psychologist  had  a  racial  ouirk  :  though  he 
might   find   black   defendants   either   sane   or  insane,   he  invariably  found   any  white  de- 
fendant to  be  insane."  1973  W^ash.  U.L.Q.  at  96. 

One  survey  of  residents  of  Manhattan  concluded  that  only  18.5  percent  of  the  population 
was  free  of  significant  symptoms  of  mental  pathology."  L.  Srole,  T.  Langee,  S.  Michael, 
M.  Opler  &  T.  Rennie.  Mental  Health  in  the  Metropolis  135  (196(2). 

92-465 — 77 44 


9256 

forensic  psychiatrists  and  psychologists.*^  Nor  do  the  judgments  as  to  what 
constitutes  "a  substantial  risk,"  "serious  bodily  injury,"  or  "serious  damage  to 
property"  lend  themselves  to  psychiatric  expertise.  Such  issues  must  be  addressed 
by  courts  in  hearings  under  §§  3613  and  3616,  and  judgments  must  be  rendered 
in  each  case,  however  crude  the  present  ability  of  courts  to  make  them.  But  the 
capabilities  of  courts  to  render  such  judgments  intelligently  and  in  a  manner 
consistent  with  current  social  mores  will  not  be  advanced — indeed  they  will  be 
retarded — so  long  as  courts  are  encouraged  or  even  required  by  statute  to  pretend 
that  their  function  may  be  adequately  discharged  by  merely  asking  a  medical 
"expert"  to  make  such  judgments  for  them. 

A  properly  redrafted  §  3617(c)  (4)  (C)  would  attempt  to  pinpoint  the  kinds  of 
information  over  which  examiners  possess  expertise  which  can  be  most  helpful 
to  a  court  presented  with  the  ditficult  task  of  applying  the  statute's  necessarily 
vague  standard  for  civil  commitment.  What  this  subsection  should  not  do  is  to 
peri>etuate  demonstrably  erroneous  myths  which  serve  to  impede  judicial  develop- 
ment of  our  social  and  political  values  concerning  the  proper  relation  between  the 
state  and  its  potentially  anti-.social  citizens. 

Indefiniie  commitment.  Sections  3613(d)  and  3616(d)  require  the  Attorney 
General  to  hospitalize  indefinitely  committed  persons  for  whom  no  state  will  take 
responsibility.  Although  this  section  could  be  construed  consistent  with  the 
least  restrictive  alternative  doctrine,""  additional  statutory  language  would 
clarify  the  obligation  of  the  committing  court  to  seek  out  with  the  assistance  of 
the  Attorney  General  a  disposition  wliich  would  provide  the  minimal  intrusion  on 
the  patient's  liberty  consistent  with  the  needs  of  maintaining  treatment  and 
protecting  the  community. 

The  Congress  should  also  consider  placing  absolute  time  limits  on  total  hos- 
pitalization." If  such  limitations  are  imposed,  they  should  be  drafted  to  accord 
with  desirable  medical  practice,  rather  than  being  tied  to  the  sentence  the  patient 
might  have  received  had  he  been  convicted  of  the  offense  charged  as  some  states 
have  done.*®  Limitation  in  terms  of  i^otential  criminal  sentence  suggests  a  crim- 
inal rather  tiian  civil  commitment  and  more  nearly  approximates  constitutionally 
suspect  preventive  detention.  Sentence-linked  limitations  would  also  be  incon- 
sistent with  the  commitment  and  release  provisions  of  the  statute  which  are 
drafted  in  terms  of  the  patient's  present  mental  condition  and  dangerousness. 

One  mechanism  for  limiting  indefinite  commitments  is  to  require  the  admitting 
psychiatrist  to  draw  up  a  treatment  plan  to  be  filed  with  the  court  as  part  of  the 
commitment  papers.™  Such  a  plan  should  specify  to  the  greatest  degree  possible 
tlie  treatment  modalities  suitable  for  the  particular  patient  and  rough  time 
schedule  for  carrying  out  the  plan.  The  treatment  plan  also  estal)lislies  a  basis 
for  reports  back  to  the  court  which  will  be  more  frequent  and  more  informative 
than  the  boilerplate  reports  called  for  in  §  3617(e).  Such  a  i)lan  also  facilitates 
judicial  administration  of  the  least  restrictive  alternative  doctrine  by  requiring 
medical  justification  for  the  treatment  modalities  and  degrees  of  confinement 
selected  at  each  stage  of  the  plan. 


•■-''  X  prominont  foronslc  psyrhiatrist,  upon  revlewinjr  the  studies  on  psychiatric  pre- 
flictions  of  (lansrorousnoss.  ooncludpd  : 

"Xpithcr  psychiatrists  nor  otlier  hchavioral  scientists  are  able  to  predict  tlie  occurrence 
of  violent  behavior  with  sufficient  reliability  to  justify  ttie  restriction  of  freedom  of  per- 
sons on  the  basis  of  the  label  of  potential  danfrerousness." 

Diamond.  The  Pfiyrhiniric  Prrrlirfinn  of  Datwcrouxvc-is,  12."^  U.  Pa.  L.  Rev.  4.'^9.  .152 
(1074).  See  also.  Americiii  Psycliintric  Assoeiatiou.  Clinical  Aspects  of  the  Violent  Individ- 
ual ri'>74)  :  A.  Stone.  Mental  Health  and  Law:  A  System  in  Transition  (lOT.T).  Uubln. 
Prrdiction  ofDanticroiixncitK  in  MorinUii  III  Criminals,  27  Arch.  Gen.  Psychiat.  397  (1072)  ; 
Developnients.  siiprn  note  40,  at  1240-4."). 

™ /-''cr  note  42  supra  and  acconii)aiivin£r  text. 

•".SVe.  e.f/..  Cm..  Wei,f.  &  In.st.  Code  §§  5000  et  seq.  (Supp.  1072).  See  also  notes  34-38 
supra  and  accompanying  text. 

Subsection  (e)  of  a  lOfifi  bill  for  commitment  of  insantlty  acouittees.  note  10  supra, 
would  have  provided  for  a  new  commilnient  hearinjr.  with  the  burden  of  jiroof  on  the  cov- 
eniment,  at  least  once  ever.v  two  years.  .Mthonfrh  two  years  may  be  to  Ions  :\  time  period, 
the  basic  model  of  short-term  commitments  wifli  the"  power  to  recommit  allows  for  far 
preater  court  snnervision  over  commitments  than  does  the  model  or  Indefinite  commit- 
ments with  periodic  reports  set  forth  in  ch.  .•ifi.  subch  B. 

"■".S-cc,  C..7.,  N.Y.  Chim.  Pnor.  Law  §  730.50  (MKinney's  Consol.  Laws  c.  11-A.  1971)  ; 
iT.r,.  .WN.  STAT.  c.  .3,S.  S  104-.3(c)   (Supp.  1000). 

.r.,™  C/.-  /•'*'"'  ""'■  ^'''"■"W".  450  F.  2d  OS!  (D.C.  Clr.  1071).  See  qeneralhj  Schwitzffebel, 
The  Rifjht  to  Effective  Mental  Treatment,  62  Cal.  L.  Rev.  03(5  (1074). 


9257 

Discharge.  Sections  3613  (d)  and  (e)  and  3616  (d)  and  (e)  suggest  that  a 
patient  should  be  released  when  his  mental  condition  has  improved  to  the  extent 
that  he  is  no  longer  a  danger.  This  conflicts  with  the  commitment  standard  which 
requires  showings  of  both  mental  illness  and  dangerousness.  According  to  the 
release  provisions  as  drafted,  a  committed  person  could  recover  from  his  mental 
illness,  still  be  dangerous,  and  hence  be  ineligible  for  release.  Such  a  case  would 
amount  to  pure  preventive  detention.  Discharge  should  occur  either  when  the 
patient  is  no  longer  mentally  ill  or  when  he  is  no  longer  dangerous.™ 

More  serious  are  the  immense  hurdles  the  committed  patient  must  overcome 
to  obtain  release  in  §  §  3613(e)  and  3616(e).  Having  persuaded  the  hospital  di- 
rector of  his  eligibility  for  release,  the  patient  must,  if  the  court  or  Attorney 
General  so  choose,  bear  the  burden  of  proving  by  a  preponderance  of  the  evidence 
that  he  is  no  longer  dangerous. 

From  the  theoretical  standpoint,  placing  such  a  burden  on  the  patient  makes 
little  sense.  If  clear  and  convincing  evidence  is  required  to  force  confinement  and 
treatment  upon  him,  why  is  not  the  absence  of  such  evidence  sufiicient  for  re- 
lease.'^ Whereas  it  is  logical  to  place  the  burden  of  persuasion  on  the  patient 
when  he  initiates  release  proceedings,  as  in  habeas  corpus,  the  contrary  should 
be  true  when  it  is  the  government's  own  doctors  who  are  seeking  release. 

From  a  practical  standpoint,  the  provision  makes  even  less  sense.  First,  it  re- 
quires the  patient  to  prove  a  negative — that  he  is  no  longer  dangerous — a  feat 
made  even  more  difficult  if  the  patient  has  been  confined  in  an  artificial  hospital 
setting  since  confinement.  If  his  pre-confinement  offense  was  a  serious  one,  even 
the  model  patient  will  find  proof  of  non-dangerousness  impossible  at  least  until  he 
has  "served"  time  roughly  approximating  a  criminal  sentence  for  his  conduct.'' 
Furthermore,  such  a  system  places  considerable  control  in  the  hands  of  the  Attor- 
ney General.  Psychiatrists  are  notoriously  (and  understandably)  reluctant  to 
testify  in  an  adversary  setting,  both  because  of  the  fear  of  embarrassement  on  the 
stand  and  because  of  the  time  court  hearings  and  continuances  take  from  their 
busy  schedules.  I  have  been  told  on  more  than  one  occassion  by  state  directors  of 
facilities  for  the  "criminally  insane"'  that,  faced  with  certain  opposition  from 
the  prosecutor  in  a  release  proceeding,  they  will  forego  their  recommendation  for 
release  rather  than  "waste  time." 


Save   Parole   Supekvisiox  ^ 

(By  Robert  Martinson  and  Judith  Wilks) 

The  increasing  attacks  on  the  institution  of  parole  in  the  U.S.  today  fail  to 
distinguish  between  parole  as  a  method  for  releasing  offenders  from  (or  return- 
ing offenders  to)  imprisonment  and  parole  as  a  method  for  supervising  offenders 
in  the  community.  These  two  distinct  functions  need  to  be  separately  evaluated 
for  an  overall  assessment  of  the  usefulness  of  parole  and  its  fairness  in  our 
system  of  criminal  justice. 

The  parole  release  (and  revocation)  decision  is  inseparable  from  the  inde- 
terminate sentence.  Decision-making  is  a  quasi-judicial  process  carried  on  by 
small  groups  of  appointed  officials  organized  into  Parole  Boards.  Parole  super- 
vision, on  the  other  hand,  is  not  dependent  on  the  indeterminate  sentence.  It  is 
a  method  for  controlling,  helping,  or  keeping  track  of  offenders  in  the  community. 
For  hundreds  of  thousands  of  convicted  offenders,  it  is  a  major  institutional  al- 
ternative to  extended  periods  of  imprisonment.  The  supervision  functions  of 
parole  are  carried  on  by  an  extended  network  of  thousands  of  agents  organized 
into  parole  district  offices  and  divisions. 

The  essential  criterion  for  parole  as  a  quasi-judical  process  is  simple  fairness 
and  equity.  Such  issues  are  especially  critical  when  unreviewed  discretion  in- 


™  Accord,  proposefl  bill  cited  supra  note  19. 

"1  This  is  the  approach  favored  by  the  proposed  bill  cited  supra  note  19. 

The  habeas  corpus  provision,  §  3617(g),  may  be  in  conflict  here  if  it  is  interpreted  to 
permit  the  patient  to  establish  a  risht  to  release  bv  demonstrating  the  absence  of  clear 
and  convincing  evidence  of  commltabillty. 

''^  See  Covington  v.  Harris,  419  P.  2d  617  (D.C.  Cir.  1969). 

1  Article  has  been  accepted  for  publication  in  the  September  1977  issue  of  Federal 
Prohatton  Data,  for  this  article  was  derived  from  a  project  conducted  for  the  National 
Institute  of  Law  Enforcement  and  Criminal  Justice  under  grant  No.  76NI-99-00''3    Points 

?he"^ri^.f  ^^^/pttmlnforjusule.'  "''^"'"^  '""^  ""'  ""''  ^^P^^^^^°*  *^«  °«"^^  P^-^ion  of 


9258 

Tolves  deprivation  of  liberty.  Many  critics  have  rightly  argued  that  the  parole 
decision-making  process  is  lamentably  brief  for  such  an  important  decision,  lack- 
ing in  essential  elements  of  due  process,  frequently  arbitrary  and  subject  to  po- 
litical interference,  and  based  in  part  on  a  myth  that  Parole  Boards  have  the 
ability  to  accurately  predict  when  a  particular  offender  is  "ready"  for  parole. 

The  usual  criterion  for  assesing  parole  supervision  has  been  how  effective 
it  is  in  reducing  the  criminal  behavior  of  those  under  supervision.  Such  effective- 
ness need  not  be  gained  at  the  price  of  unfairness.  On  the  contrary,  since  the 
consequence  of  engaging  in  criminal  behavior  is  to  be  reimprisoned,  supervision 
which  is  effective  directly  contributes  to  fairness  in  the  sense  that  fewer  offenders 
are  deprived  of  their  liberty.  By  preventing  or  inhibiting  criminal  behavior,  ef- 
fective parole  supervision  insures  that  fewer  offenders  will  be  re-arrested,  con- 
victed and  returned  to  prison. 

Unfortunately,  in  their  haste  to  restrict  or  eliminate  the  Parole  Board  decision- 
making function  (and  the  indeterminate  sentence  on  which  it  rests),  some  critics 
propose  to  throw  the  baby  out  with  the  bath  water.  Yet  there  is  no  reason  why  a 
mandatory  and  definite  parole  sentence  could  not  be  substituted  for  the  present 
system  of  Parole  Board  discretion  and  conditional  release  under  threat  of  re- 
vocation for  rule-breaking."  And  those  who  propose  such  radical  surgery  would 
do  well  not  to  speak  in  the  name  of  the  offender  for  there  is  grave  danger  that  the 
overall  consequence  of  abolishment  of  parole  supervision  would  be  to  consign 
larger  numbers  of  offenders  to  prison. 

One  critical  empirical  question  that  must  be  answered  is :  would  the  aboli- 
tion of  the  present  system  of  parole  supervision  increase  or  decrease  the  rate.s 
at  which  persons  released  from  incarceration  would  be  re-processed  into  the 
criminal  justice  system?  Previous  research  has  not  addressed  this  question. 
Such  research  deals  primarily  with  variants  of  parole  supervision  within  the 
existing  system."  Inferences  from  such  research  are  speculative  and  do  not 
permit  a  ".  .  .  direct  comparison  of  offenders  under  parole  supervision  with 
offenders  set  entirely  free."  * 

Parole  has  never  been  a  universal  method  for  releasing  offenders  from  incar- 
ceration, and  therefore  in  most  jurisdictions  in  the  U.S.  some  persons  are  re- 
leased on  parole  supervision  while  others  are  released  at  the  expiration  of  their 
terms,  i.e.,  "set  entirely  free."  Clearly,  the  most  obvious  research  method,  avail- 
able to  researchers  since  parole  was  established  in  the  U.S..  would  be  controlled 
comparisons  of  persons  released  under  parole  supervision  with  comparable  per- 
sons released  directly  from  imprisonment  without  parole  supervision.  This  is 
the  method  to  be  used  in  the  present  analysis. 

THE   SURVEY 

The  data  presented  in  Table  1  is  taken  from  a  larger  survey  of  criminal  jus- 
tice research.  Tlie  survey  was  designed  to  provide  a  standard  procedure  for 
maximizing  tlie  accumulation  of  existing  information  so  that  substantive  ques- 
tions can  be  answered  and  decisions  taken  on  matters  of  public  policy.  For  a 
description  of  the  search  procedure,  the  classification  of  documents  received, 
and  the  variables  coded,  it  is  necessary  to  read  the  preliminary  report."^  The 
present  sub-study  illustrates  the  utility  of  the  procedure  adopted. 

Two  key  concepts  were  employed  in  collecting,  coding  and  organizing  the  data 
taken  from  more  than  600  recent  documents :  the  "batch"  and  the  "computable 
recidivism  rate." 

a.  Batch.  A  "batch  is  any  number  of  persons  at  some  specificable  location  in 
the  criminal  justice  system  for  whom  a  "proper"  recidivism  rate  is  computnble. 
A  proper  recidivism  rate  must  specify  what  prnportinv  of  a  batch  are  recidivists. 
The  term  "parent  batch"  refers  to  a  universal  set  which  contains  two  or  more 
batches.  For  example,  a  universal  set  of,  say.  1000  male  and  female  parolees 
may  be  broken  into  one  batch  of  800  male  parolees  and  one  batch  of  200  -female 
parolees.  Each  of  these  batches  is  coded  as  "exclusive"  since  together  they  ex- 


-  Sop.  T.  WillfS  and  R.  Mnrtlnson,  "Is  tho  Trpatmont  of  Criminal  Offenders  Really  Neces- 
sary?" Frdernl  Prnhntinn.  v.  XXXX.  n.  1   (Mnrrh  197fi),  pp.  .^-O. 

•'•See.  for  oxninplo.  D.  Lipton.  R.  IMnrtinson.  and  T.  Wllks.  The  Effectlvenexs  of  Correc- 
tional Treatment,  New  York  :  Praeprer  Pnhlishers.  lOT.'i.  sections  on  Probation  and  Parole. 

*  r*.  T.  Stanley,  PHKoners  Among  Us,  The  Problem  of  Parole,  The  Brooklnps  Institution, 
Wnshlnjrton.  D.r..  197R.  pp.  181-2. 

"See.  R.  ivinrtlnson  and  .T.  Wllks.  Knowledqe  in  Criminal  Justice  Planning,  A  Prelim- 
inary Report,  October  15,  1076,  58  pp.  (processed). 


9259 

haust  the  parent  batch  and  have  no  members  in  common.  All  batches  in  Table 
1  are  exclusive  batches  with  an  N  or  10  or  more. 

b.  Recidivism  Rate.  The  primary  unit  of  analysis  in  the  survey  is  the  com- 
putable recidivism  rate.  Each  such  rate  specifies  what  proportion  of  any  batch 
shall  be  identified  as  "recidivists"  according  to  whatever  operational  definition 
of  recidivism  is  utilized  by  the  researcher.  Such  an  operational  definition  will 
normally  specify  the  length  of  time  which  the  batch  was  foUowed-up  in  addi- 
tion to  the  criminal  justice  action  (arrest,  suspension,  conviction,  return  to 
prison,  and  so  forth)  which  led  to  the  decision  to  classify  a  particular  person 
as  a  "recidivist."  All  such  definitions  were  coded  into  seven  categories.  Three 
of  these  categories — arrest,  conviction,  and  return  to  prison  with  a  new  con- 
viction— were  judged  to  be  appropriate  for  a  comparison  of  parolees  and  per- 
sons released  from  incarceration  with  no  supervision   ("max  out").® 

The  term  "system  re-processing  rate"  specifies  precisely  what  is  being  meas- 
ured in  Table  1.  An  "arrest,"  for  example,  is  an  event  that  can  occur  to  a  per- 
son under  the  jurisdiction  of  criminal  justice,  and  an  arrest  rate  simply  reports 
what  proportion  of  any  batch  included  in  Table  1  were  reported  as  being  re- 
processed in  this  way  in  the  documents  coded  in  the  survey. 

Each  recidivism  rate  in  the  survey  has  been  coded  with  additional  items  of 
information.  The  coding  system  developed  was  guided  by  the  primary  aim  of 
the  accumulation  of  knowledge  based  on  the  existing  state  of  the  art  in  crimi- 
nal justice  research.  Codes  were  designed  to  maximize  the  information  produced 
by  the  standard  procedures  now  used  in  the  body  of  documents  encountered. 
Many  of  the  items  specify  critical  methodological  features  of  the  study  such 
as  whether  the  batch  is  a  population  or  a  sample,  the  type  of  research  design 
utilized,  months  in  follow-up,  months  in  treatment,  the  tyi>e  of  population  or 
sample  (e.g.,  "termination"  sample),  and  so  forth.  Since  studies  report  infor- 
mation on  the  characteristics  of  batches  in  a  bewildering  variety  of  ways,  a 
standard  attribute  code  was  developed  so  as  to  maximize  the  reporting  of  such 
information  as  educational  attainment,  current  offense,  race,  class  position, 
family  status,  and  so  forth.''  In  addition,  it  was  possible  to  code  a  considerable 
number  of  batches  (and  therefore  rates)  with  such  information  as  mean  age, 
months  in  incarceration,  sex,  wether  the  batch  consisted  primarily  of  narcotics 
cases  or  persons  with  alcohol  problems,  and  so  forth. 

PROCEDURE 

The  procedure  adopted  was  to  exhaust  the  survey  data  base  of  all  meaning- 
ful comparisons  between  adult  offenders  released  from  incarceration  to  parole 
supervision  and  comparable  groups  of  adult  offenders  not  released  to  parole 
supervision  ("max  out").  This  was  a  simple  sorting  operation  with  an  IBM 
counter-sorter.  From  a  total  pool  of  5.804  recidivism  rates  for  batches  of  adult 
persons  in  the  U.S.  and  Canada  released  imder  parole  supervision,  those  rates 
which  fell  in  the  category  of  "arrest"  (N=235),  "conviction"  (N=13.5),  and 
"return  to  prison  with  a  new  conviction"  (N=738)  were  sorted  out.  A  similar 
sort  for  adult  max  out  rates  resulted  in  44  arrest  rates.  26  conviction  rates, 
and  73  return-to-pi'ison-with-new-conviction  rates.  The  total  number  of  rates 
produced  by  these  initial  sorts  are  found  at  the  bottom  of  Table  1. 

The  cards  were  then  sorted  on  the  variables  which  had  been  coded  in  the 
survey  making  no  distinction  between  items  which  were  primarily  methologi- 
cal  (e.g.,  time  in  follow-up)  and  those  which  were  primarily  descriptive  of  a 
batch  (e.g.,  mean  age,  sex,  percent  property  offenders).  All  code  categories  for 
which  at  least  two  rates  were  reported  for  both  parole  and  max  out  were  lo- 
cated. Mean  rates  for  these  code  categories  were  computed,  and  are  presented 
in  Table  l.** 


*  The  other  four  categories  were  :  100  percent  minus  "success"  rate ;  short  of  arrest 
(i.e.,  AWOL,  absconding,  suspension,  and  .similar)  ;  return  to  prison  for  technical  viola- 
tion ;  and  return  to  prison  for  technical  plus  new  conviction.  Three  of  these  categories 
were  eliminated  because  they  cannot  happen  to  max  out  groups.  The  fourth — 100  percent 
minus  "success"  rate — was  eliminated  because  of  possible  problems  in  interpreting  the 
meaning  of  the  measure. 

"  The  proportion  in  which  an  attribute  was  present  in  a  batch  was  coded  as  follows  : 
1=0-24.9%  ;  2=25-48.9%  ;  3=50-74.9%  ;  and  4=75-100%. 

8  Multiplying  the  total  number  of  coding  categories  (97)  by  the  three  definitions  gives 
a  total  of  291  possible  comparisons  if  sufficient  data  has  been  present.  Eliminating  39 
cases  where  data  was  reported  as  "unknown,"  38  cases  in  which  there  were  less  than 
two  rates  in  a  category  or  either  parole  or  max  out,  and  134  cases  in  which  no  data  was 
reported,  leaves  the  SO  comparisons  reported  in  Table  1. 


9260 

DISCUSSION 

Item  1  can  be  usetl  to  illustrate  how  the  table  should  be  read.  For  parole, 
there  were  84  recidivism  rates  where  "arrest"  was  the  measurement  of  recid- 
ivism and  for  which  the  batch  size  fell  between  100  and  499.  The  mean  of  these 
84  rates  was  26.9.  For  this  same  batch  size  (100-499).  there  was  12  max  out 
rates,  and  the  mean  of  these  rates  was  32.8.  The  difference  between  these  two 
means  is  5.9. 

Reading  across  the  table,  for  the  "conviction"  definition  the  mean  rates  for 
jiarole  and  max  out  were  20.5  and  25.9.  resi>ectivel.v.  For  the  "return  to  prison 
with  new  conviction"  definition  these  means  were  11.0  and  14.7.  Turning  to  a 
different  batch  size  of  50-99  (Item  24),  one  notes  that  comparisons  could  only 
be  made  for  two  of  the  three  definitions.  For  some  variables  comparisons  were 
possible  for  only  one  definition. 

This  table  presents  data  in  a  manner  which  is  similar  to  the  pi'ocedure  of 
simultaneously  controlling  for  adulthood,  definition  of  recidivism,  place  in  the 
criminal  justice  system  (i.e.,  parole  vs.  max  out),  and  at  least  one  additional 
variable.  Given  the  number  of  rates  available,  it  would  have  been  possible  to 
have  controlled  for  one  (or  even  more)  variables  in  addition  to  the  four  speci- 
fied above.  For  reasons  of  time,  these  additional  controls  were  not  attempted. 

It  is  interesting  to  note  that  in  seventy-four  of  the  eighty  comparisons  ron- 
tained  hi  Table  1.  the  mean  of  the  recidivism,  rates  for  parole  is  lower  than  max 
out.  This  is  the  case  whether  the  final  variable  controlled  is  methodological  or 
socio-demographic.  For  the  arrest  definition,  the  difference  in  favor  of  parole 
range  from  a  low  of  0.2  (Item  22)  to  a  high  of  43.6  (Item  24).  For  conviction, 
the  differences  in  favor  of  parole  range  from  0.2  (Item  20)  to  16.0  (Item  15). 
For  new  prison  sentence,  the  differences  in  favor  of  parole  range  from  0.2  (Item 
10)   to  11.3   (Item  43). 

In  six  of  the  eighty  comparisons,  the  mean  of  the  rates  for  max  out  is  equal  to 
or  lower  than  the  mean  for  parole.  These  six  cases  are  un.systematically  dis- 
tributed throughout  the  table.  In  three  in.stances  the  final  control  variable  is 
methodological :  in  three  it  is  socio-demographic.  Two  cases  fall  under  the  arrest 
definition;  two  under  conviction;  and  two  under  return  to  prison.  These  six 
exceptions  do  not  suggest  to  us  any  particular  set  of  conditions  which  might  be 
further  explored  to  discover  sub-groups  of  offenders,  or  contexts,  for  which  max 
out  would  be  a  superior  policy  for  criminal  justice. 

Data  contained  in  our  Preliminary  Report  provided  a  starting  point  for  this 
analysis.  Tliis  initial  data  (based  on  3.005  rates  coded  at  that  time)  indicated 
that  the  mean  of  the  rates  for  parole  (25.4)  was  somewhat  lower  than  the  mean 
of  rates  for  max  out  (31.6).  This  six  percentage  point  difference  resulted  from  a 
comparison  which  did  not  further  control  for  the  definition  of  recidivism,  for 
adults  vs.  juvenile,  or  for  any  of  the  other  variables  utilized  in  Table  1.  Increas- 
ing the  total  number  of  rates,  and  simultaneously  controlling  for  four  additional 
variables  has  led  to  the  discovery  of  larger  mean  differences  between  parole  and 
max  out.® 

SUMMARY 

Those  who  propose  the  aliolition  of  pai'ole  supervision  in  this  country  often 
speak  of  "fairness  to  the  offender."  It  i.^  difficult  to  detect  in  Table  1  evidence  of 
such  fairness.  On  the  contrary.  The  evidence  seems  to  indicate  that  the  abolition 
of  parole  supervision  wouhl  result  in  substantial  increases  in  arrest,  conviction, 
and  return  to  prison.  Those  who  wish  to  eliminate  the  unfairness  of  Parole 
Board  decision-makinc  might  well  concentrate  on  finding  a  specific  remedy  for 
this  problem,  a  remedy  which  would  not  increase  the  very  "unfairness"  they 
deplore. 

At  the  very  least,  tlie  d.ita  in  Table  1  should  irive  pause  to  those  iiolicy  makers 
and  legislators  who  have  been  operating  on  the  unexamined  assumption  that 
parole  supervision  makes  no  difference.  In  face  of  the  evidence  in  Table  1  such 
an  assumption  is  unlikelv. 


"'This  iDPthof)  1p  nn  .njipliontion  of  sfniidnrd  rpsfni'oh  procediirps.  Pop,  for  I'xainplo. 
P.  F.  T,.T/,ors<'f>lf1.  "Tntorprotntion  of  Stntisticil  Rplation«  .ts  n  Resparch  Oppration."  in 
The  T,nnrniaqc  nf  Fiorial  Research  (P.  F.  Lazersfeld  and  >r.  Rosenberfr.  eds.),  Glencoe, 
111.  :  Thp  Frep  Pi-pss,  Wii't. 


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9263 

Albany,   N.Y. 
Senator  John  L.  McClellan, 

Senate  Subcommittee  on  Criminal  Laxv,  U.S.  Senate, 
Washington,  D.C. 

Dear  Senator  McClellan  :  I  regret  that  I  have  not  been  able  to  study  the 
above  because  of  absence  from  the  country.  However,  I  am  informed  that  it  is 
proposed  to  abolish  the  United  States  Parole  Commission. 

I  do  not  regard  supervi-sion  or  surveillance  on  parole  to  be  of  any  value,  but 
the  decision-making  function  of  the  Commission  through  its  Hearing  Representa- 
tives is  a  piece  of  judicial  machinery  which,  I  think,  should  be  retained. 

I  do  not  think  that  it  could  be  replaced  adequately  by  any  other  body  charged 
with  a  wider  range  of  determinations  of  disposition  of  offenders.  Judges  have 
considerable  experience  of  selecting  between  incarcerativc  and  non-incarcerative 
penalties,  while  Parole  Boards  have  experience  in  setting  time  once  a  decision  to 
incarcerate  has  been  made. 

It  seems  to  me  to  be  most  advantageous  to  separate  the  selection  of  time  to  be 
served  from  the  initial  decision  to  incarcerate  and  to  ensure  that  there  is  a  feed- 
back of  information  to  the  decision-making  body.  The  "guideline"  system  in  use 
by  the  United  States  Parole  Commissioners  is,  in  my  view,  most  suited  to  this 
purpose. 

I  hope  that  the  decision  to  abolish  the  decision-tnalcing  function  of  the  Parole 
Commissioners  will  be  carefully  re-considered. 
Yours  truly, 

Leslie  T.  Wilkins, 
Professor  of  Criminal  Justice,  State  University  of  New  York,  Albany. 


Washington,  D.C,  June  15, 1977. 

Hon.  Edward  M.  Kennedy, 
U.S.  Senator, 
Washington,   D.C. 

Dear  Senator:  I  have  enclosed  for  your  consideration,  and  for  inclusion  in  the 
record  regarding  your  bill,  S-1437,  a  copy  of  the  comments  of  the  Freedom  of 
Information  Clearinghouse  on  two  provisions  of  that  bill  which  we  believe  unnec- 
essarily threaten  to  undermine  the  open  government  provisions  of  the  Freedom 
of  Information  Act.  In  view  of  the  exceptional  work  which  you  have  done  to 
reduce  government  secrecy,  we  hope  that  you  will  either  eliminate  the  two  pro- 
visions to  which  we  refer  or,  at  least,  amend  them  to  reduce  their  anti-openness 
effects. 

We  thank  you  for  your  consideration  of  these  matters. 
Respectfully  yours, 

Larry  P.   Ellsworth 


Freedom  of  Information  ClEzVringhouse, 

Washington,  D.C. 

Memoranum  Regarding  Provisions  of  S.  1437  Which  Adversely  Affect  the 
Open  Government  Provisions  of  the  Freedom  of  Information  Act 

S.  1437  is  intended  to  be  a  comprehensive  recodification  and  reform  of  the 
criminal  provisions  of  Title  18  of  the  United  States  Code.  However,  two  of  the 
intended  reforms  would,  perhaps  inadvertently,  have  severe  adverse  effects  on  the 
disclosure  provisions  of  the  Freedom  of  Information  Act  (FOIA),  5  U.S.C. 
§  552.  Section  1.525  would  subject  former  and  present  Government  employees  to 
criminal  liability  for  disclosing,  "in  violation  of  a  specific  duty."  virtually  any 
information  received  from  outside  the  Government.  Section  3825  would  exempt 
the  Bureau  of  Prisons,  when  making  certain  imprisonment,  transfer  and  release 
decisions,  from  the  Administrative  Procedure  Act,  including  the  FOIA  and  the 
Federal  Privacy  Act,  5  U.S.C.  §  552a.  This  memorandum  discusses  the  public 
access  problems  created  by  these  provisons  and  suggests  solution  to  these 
problems. 

SECTION    152  5 

Section  1525  is  apparently  intended  to  replace  18  U.S.C.  §  1905,  the  so-called 
Trade  Secrets  Act.  This  latter  Act  punishes  any  disclosure  by  Federal  employees, 
which  is  "not  authorized  by  law,"  of  any  information  that  "relates  to  trade 


9264 

spcrets,  processes,  oi>erations,  style  of  work,  or  apparatus,  or  to  the  identity, 
oonfidential  statistical  data,  amount  or  source  of  any  income,  profits,  losses,  or 
expenditures  of  any  person  .  .  .  ." 

Interosrinsly  the  hroad  prohibitory  language  of  Section  1905  was  itself  created 
by  a  1948  codification  of  three  much  narrower  non-disclosure  statutes,  even 
tliough  the  legislative  explanation  denied  any  intent  to  expand  the  prohibitions 
of  precodification  law.^  These  pre-existing  statutes  punished  only  disclosures 
of  certain  income  tax  return,  TarifT  Commission  and  Commerce  Department  in- 
formation.- The  expanded  18  U.S.C.  §  390.5  has  apparently  never  been  used  to 
prosecute  anyone  criminally,  but  in  recent  yeai's  it  has  been  the  subject  of  an 
ever-expanding  amount  of  civil  litigation.  Typical  cases  include  those  where 
companies  have  attempted  to  use  it  to  prevent  civil  rights  groups  from  obtaining 
information  concerning  employment  discrimination  and  to  prevent  state  agencies 
from  securing  financial  information  needed  for  state  law  enforcemet  efforts." 
Courts  have  generally  held  that  commercial  and  financial  information  is  protected 
by  section  190.")  only  if  its  disclosure  would  be  likely  to  cause  substantial  com- 
petitive injury.*  They  have  split  widely  on  such  questions  as  whether  an  agency 
may  by  regulation  "authorize"  disclosure  where  the  public  interest  will  thereby  be 
advanced.' 

.Tnst  as  section  190.5  expanded  the  criminal  prohibitions  contained  in  pre- 
1948  law.  proposed  section  1.52.5  would  expand  upon  the  criminal  prohibitions  of 
section  1905.  No  longer  will  criminal  sanctions  be  limited  to  di.sclosures  of  com- 
petitively sensitive  commercial  information.  Instead,  subject  to  the  not  altogether 
clear  qualifying  phrase — "in  violation  of  a  specific  duty" — any  disclosure  of  any 
information,  whose  submission  is  required  by  the  Government  or  is  necessary 
in  order  to  receive  a  benefit,  will  subject  Government  employees  to  the  threat  of 
criminal  prosecution.  While  disclosures  required  by  the  FOIA  would  apparently 
not  violate  this  duty  of  secrecy,  the  threat  of  criminal  sanctions  for  mistakes 
could  have  a  significant  chilling  effect  on  the  willinsness  of  employees  to  disclose 
and  also  might  significantly  reduce  the  number  of  legitimate  discretionary  dis- 
closures of  technically  exempt  information  which  is  necessary  for  informed 
public  debate  of  political,  health,  or  other  important  issues.  Section  1.525  thus 
threatens  important  First  Amendment  interests  which  the  FIOA.  and  similar 
laws,  were  intended  to  foster. 

The  sweeping  nature  of  section  152.5,  which  subjects  to  possible  criminal 
sanction  disclosures  of  most  information  recevied  from  private  parties,  is  over- 
broad. As  the  liistorv  of  non-enforcement  under  18  F.S.C.  §  1905  reveals,  over- 
broad criminal  statutes  are  often  unused  statutes.  ^Moreover,  the  criminal  law 
cannot,  and  should  not.  be  used  in  an  attempt  to  cure  all  possible  ills.  Indeed, 
use  of  Civil  Service  sanctions  or  imposition  of  civil  damages  for  injuries  inflicted 
would  probably  be  a  far  more  effective  deterrent  to  wrongful  disclosures,  if  any 
additional  deterrent  is  needed. 

Assuming,  however,  that  criminal  penalties  for  disclosures  of  some  typos  of 
private  Information  will  be  maintained,  the  scope  of  this  criminal  statute  ."should 
be  narrowly  confined  to  the  most  sensitive  of  information.  Our  society  has  his- 
toricslly  chosen  not  to  criminalize  nil  disclosures  that  might  harm  Government 
functions.  l»ut  instead  only  disclosures  of  a  narrow  class  of  very  sensitive  na- 
tional security  infoTmation  where  the  intent  of  the  disclosures  was  to  aid  a 
foreign  iw>wer.  Similarly,  in  dcaliuff  with  private  Information  in  the  hands  of 
the  Government,  we  should  single  out  only  the  most  sensitive  information  for  the 
protections  afforded  by  ci'iininal  sanctions.  This  does  not  mean  that  because 
there  are  ho  criminal  iHMialties  for  disclosures  of  other  tyjies  of  Information,  it 
must  or  will  generally  be  disclosed.  Rather,  this  is  merely  a  recognition  that  not 
all  prlvnte  information,  and  not  all  business  or  personal  information,  is  of  equal 
sensitivity.  More  flexibility  than  a  criminal  statute  provides  is  needed  to  deal 
with  le^s  ';ensltive  Information.  Indeed,  experience  teaches  that  claims  that  every- 
thing nnist  be  kept  secret  generally  result  in  nothing  being  kept  .secret.  The 
narrowing  of  Section  1525  to  only  the  most  sensitive  of  private  information  is 
tbfrefore  essential. 


^f!er  F?.  Rep.  No.  ie<20.  SOtli  Cnns..  2d  Spssr.  1(1048)  :  H.R.  Rpp.  Xo.  ."^04.  ROth  Conpr.. 
1st  SPSS.  .S.  A  127-2R  (1047)  :  O-V  Cohr.  Rpc.  8721   (1948)   (Remarks  of  Senator  Wilev). 

2  1.S  U.S.C.  S  210  (10401  :  10  TT.S.C.  5  i:V.',->  (1040)  :  1.5  TT.S.r.  §  17()b  (1040). 

•■' .^pc.  CO..  Wefttinohniine  Klci'tric  Corp.  v.  Schlcsinrjer  M2  F.2d  1100  (4th  Cir.  1976). 
rnt.  flenied.  4.5  T\S.t>.\V.  .'',740  (May  1'!,  1977)  (No.  70-1102)  (civil  rights)  ;  Charles  River 
P<irk".V'.  Inc.  v.  HUD.  510  F.2(i  0.3.-)  (D.C.  Oir.  107.5)  (law  enforceiueut). 

•>  /'.ff..  M'cfi'tinfthnufie  Electric  Corp.  v.  Schlesinfjer,  .'Hipra. 

''•  Conipajc  \Ve,<<tinoJiouse  Electric  Corp.  v.  iichle.'iinner,  supra,  with  Westinohouse  Elec- 
tric Corp.  V.  Xuclear  Rttglatorii  Comm'n.,  No.  76-1011  dd  Cir.,  March  22.  1977). 


9265 

This  objective  cau  be  aecomplislied  by  amending  Section  1525  by  adding  tlie 
phrase  "trade  secrets  or  intimate  personal"  just  before  the  words  -information". 
Amended  Section  1525  will  then  read  in  pertinent  part  that :  "A  person  is  guilty 
of  an  offence  if  .  .  .  he  discloses  trade  secrets  or  intimate  personal  information  .  .  ." 

Another  aspect  of  Section  1525  which  deserves  attention  is  the  "state  of  mind" 
that  must  be  proved  as  an  element  of  the  crime.  Since  Section  1525  does  not 
specify  the  required  state  of  mind,  one  must  look  at  Section  303(b),  which  pro- 
vides the  required  state  of  mind  in  any  instance  where  it  is  not  otherwise  speci- 
fied. However,  it  is  unclear  v,hether  the  required  state  of  mind  under  Section 
1525  is  "knowing"  (§303(1.)  (1))  or  "reckless"  (§  303(b)  (3) ).  In  neither  case, 
however,  are  the  protections  against  possibly  unwarranted  prosecutions  suf- 
ficient. As  presently  written,  disclosure  of  personal  information  may  be  punish- 
able under  Section  1525,  even  though  it  would  not  be  an  offense  under  the  crimi- 
nal provisions  of  the  Federal  Privacy  Act,  5  U.S.C.  §  552a (i)  (1),  which  punishes 
only  those  disclosures  that  were  both  knowingly  and  willfully  made.  Moreover, 
the"  penalties  under  proposed  Section  1525  are  much  greater:  up  to  a  year  in 
prison  and  a  ten  thousand  dollar  fine  as  opposed  to  a  fine  of  no  more  than  five 
thousand  dollars,  and  no  prison  term,  under  the  Privacy  Act.  There  is  no  reason- 
able justification  for  such  uneciual  treatment,  unless  Section  1525  is  going  to 
punish  only  more  significant  offenses.  Government  employees  should  not  be  sub- 
jected to  the  threat  of  criminal  sanctions  for  disclosures  of  information  to  the 
American  people,  unless  the  employee  intended  the  discolsure  to  injure  the 
source  or  subject  of  the  information,  or  the  employee  intended  to  gain  i>ersonal 
pecuniary  advantage  from  the  disclosure.  Section  1525  should  be  amended 
accordingly. 

Finally,  the  language  of  Section  1525  should  be  revised  simply  to  make  it 
clearer.  The  present  single,  run-on  sentence  should  be  divided  into  at  least  two 
separate  sentences.  With  such  a  division,  and  the  addition  of  the  aforemen- 
tioned amendments,  Section  1525(a)  will  read  as  follows: 

"(a)  Offense. — A  person  is  guilty  of  an  offense  if.  in  violation  of  a  specific 
duty  imposed  upon  him  as  a  public  servant  or  former  public  servant  by  a  statute, 
or  regulation,  rule,  or  order  issued  pursuant  thereto,  he  discloses  trade  secrets 
or  intimate  personal  information,  to  which  he  has  or  had  access  only  in  his 
capacity  as  a  jniblic  servant,  where  the  intent  of  the  disclosure  was  to  cause 
injury  to  the  source  or  subject  of  the  information  or  to  benefit  financially  the 
person  making  such  disclosure.  This  section  applies  only  to  information  that  had 
been  provided  to  the  government:  (1)  by  a  person,  other  than  a  public  servant 
acting  in  his  oflicial  capacity;  and  (2)  solely  in  order  to  comply  with: 

"(A)  a  requirement  of  an  application  for  a  patent,  copyright,  license,  em- 
ployment, or  benefit :  or 
"(B)  a  specific  duty  imposed  by  law  upon  such  other  person." 

SECTION   3825 

Subchapter  C  of  Chapter  3S  concerns  post-sentencing  imprisonment  and  re- 
lease, excluding  parole.  For  a  convicted  person,  the  decisions  of  the  Bureau  of 
Pri.sons  inider  this  Subchapter  probably  affect  his  or  her  life  more  than  any 
othfrs  made  during  the  period  of  incarceration.  Certainly  the  public  has  a  sig- 
nificant stake  in  assuring  that  such  decisions  are  made  on  rational  and  nondis- 
criminatory grounds.  In  the  past,  there  have  been  many  instances,  for  example, 
of  transfers  from  one  prison  facility  to  another  less  desirable  facility  in  retalia- 
tion for  the  exercise  of  First  Amendment  rights. 

In  view  of  the  overriding  importance  of  sentencing  decisions  to  an  inmate  and 
to  society,  the  advisability  of  exempting  these  decisions  from  the  procedural  pro- 
tections of  the  Administrative  Procedure  Act  (APA).  5  U.S.C.  §§  551-59,  701-Of?, 
as  Section  3825  would  do,  is  very  doulitful.  Be  that  as  it  may,  the  determination 
totnlly  to  exempt  the  Bureau  of  Prison's  records  of  decisions  from  public  scrutiny 
under  the  FOTA  and  the  Privacy  Act.  5  U.S.C.  §§552  and  552a.  is  indefensible. 
Inmates  who  have  access  to  records  explaining  the  basis  of  transfers  and  other 
sentencing  decisions  are  more  apt  to  accept  those  decisions  and  are  more  apt 
to  react  favorably  to  rehabilitation  programs.  .Tust  as  important,  citizens  are 
more  apt  to  put  their  trust  in.  and  to  give  their  support  to.  our  correctional 
system  if  they  have  access  to  the  documentation  of  its  workings.  Thus,  even  if 
tiie  exemption  in  Section  3825  from  the  APA's  procedural  is  retained,  the  exemp- 
tion from  our  open  Government  laws  should  be  stricken.  This  can  easily  be  ac- 
complished by  amending  Section  3825  to  read  as  follows  (additional  matter  is 
italic)  :  "The  provisions  of  5  U.S.C.  551,  553  through  559,  and  701  through  706, 


9266 

do  not  apply  to  the  making  of  any  determination,  decision,  or  order  under  this 
suhc'hapter." 

New  York  County  Lawyers'  Association. 

New  York,  N.Y.,  June  13, 1977. 
Kenneth  Feinberg,  Esq., 
Committee  on  the  Judicinry. 
Senate  Office  Building,  WasMngton,  D.C. 

Dear  Mr.  Feinberg  :  In  response  to  your  request  for  areas  for  possible  further 
consideration  with  respect  to  the  conforming  amendments  to  titles  other  than 
Title  18  in  connection  with  the  new  federal  criminal  code,  I  would  like  to  men- 
tion the  following  questions  (which  have  not  been,  however,  the  subject  of  any 
specific  position  by  our  Committee)  : 

S.  1,  8/15/75  version,  p.  435-36,  sec.  9115:  should  there  be  an  exception  for: 

Communication  of  information  to  a  member  of  Congress  or  a  Congressional 
Committee?  This  might  be  important  to  protect  someone  who  "blows  the  whistle" 
with  regard  to  a  matter  of  public  concern  and  who  might  otherwise  be  threatened 
with  the  spectre  of  actual  or  possible  prosecution. 

Conununications  requested  by  a  member  of  Congress  or  Congressional  com- 
mittee? This  might  be  important  to  protect  full  congressional  access  to  ideas  and 
recommendations  from  those  with  the  most  information.  Limiting  access  to  ideas 
flowing  through  approved  channels  would  prevent  consideration  of  many  alter- 
natives other  than  a  bureaucratically  sanctioned  "party  line". 

The  section  as  drafted  is  obviously  not  intended  to  cover  the  kinds  of  situa- 
tions mentioned,  but  its  existence  and  possible  misinterpretation  might  exert  an 
in  terroram  effect  absent  clarification  by  amendment  or  Committee  Report 
language. 

S.  1,  8/15/75  version,  p.  512,  sec.  386  covers  the  "Denture  Crimes  Act,"  making 
it  a  crime  to  transport  in  commerce  or  with  the  use  of  the  mails  any  dentures 
made  by  one  lacking  a  license  to  practice  dentistry  under  the  laws  of  the  state 
into  which  the  dentures  are  brought,  where  required  by  such  state  law.  This  is  a 
mercantilist  provision  preventing  even  licensed  personnel  in  State  X  from  compet- 
ing with  those  in  State  Y.  The  analogy  would  be  a  federal  law  penalizing  legal 
advice  by  a  California  lawyer  to  a  New  York  resident.  Further,  licensing  is  not 
always  in  the  public  interest,  as  frequently  noted  in  recent  days.  The  federal 
interest  in  a  criminal  provision  of  this  type  reinforcing  state  licensing  laws  is 
questionable  at  best. 

S.  1.  8/15/75  version,  p.  760-707,  sec.  6008.  6009  continue  crimin.nl  penalties 
for  private  carriage  of  mail.  The  need  for  a  statutory  monoi>oly  in  this  field  sup- 
jmrted  by  criminal  sanctions  today  may  well  be  questioned.  Further,  many  tyjies 
of  private  delivery  systems  in  fact  compete  with  the  Postal  Service,  making  the 
theoretical  prohibitions  somewhat  obsolete  and  i)erhaps  making  any  pro.secuticn 
today  even  inifair  to  one  singled  out.  The  federal  interest  in  providing  ix)stal 
service  does  not  necessarily  extend  to  punishing  citizens  who,  not  satisfied  with 
the  service,  might  wish  to  "do  it  yourself"  within  limited  ai*eas.  The  argument 
to  the  contrary — that  private  delivery  services  would  simply  "skim  the  cream" 
and  leave  the  uni)rofitable  work  to  the  Postal  Service — is  similar  to  the  CAB 
controver.sy  over  limiting  competition  on  prime  runs  as  a  way  of  subsidizing 
socially  desirable  luiprofitable  ones.  It  may  be  better  to  give  subsidies  to  un- 
profitable but  necess;iry  iMistal  or  personal  transportation  directly  rather  than 
via  Crown  monopolies. 

As  noted,  these  are  questions  merely,  in  response  to  your  request,  and  not 
Committee  positions. 
Resixjctfully, 

Richard  A.  Givens, 
Chairman,  Committee  on  Federal  Legislation. 


Georgia  Department  of  Labor. 

Employment  Security  Agency, 

Atlanta,  Ga.,  Maij  IS.  7971 
Hon.  EnwARD  Kennedy, 

Mcmher,  TI.S.  Senate,  Russell  Senate  Office  Building. 
Washington.  D.C. 

My  Dear  Senator  Kennedy:  This  letter  is  in  regard  to  S.  1437  authored  by 
you  and  Senator  McClellan  now  pending  in  the  Committee  on  the  Judiciary  pro- 


9267 

viding  for  codification,  revision  and  reform  of  the  Federal  Criminal  Code.  This 
Bill  is  immeasurably  superior  to  previous  versions.  The  staff  work  on  it  has 
been  excellent. 

There  is  one  matter  which  I  would  like  to  present  to  you  for  your  attention 
and  for  your  consideration.  That  has  to  do  with  the  language  of  Section  1516 
on  pages  92  and  93  of  S.  1437. 

My  first  comment  on  these  sections  right  along  in  here  is  that  we  have  done 
considerable  research  on  existing  laws  relating  to  these  same  subject  matters 
and  find  that  the  codification  in  S.  1437  clearly  states  what  Congress  from  the 
beginning  has  intended  these  laws  to  be  notwithstanding  the  sometimes  vague 
language  in  the  present  laws,  intermittent  changes  over  the  years  and  conflicting 
interpretations  by  various  Federal  Couils. 

We  agree  with  the  proposed  codification  in  S.  1437  and  particularly  with  the 
language  of  the  other  sections  in  subchapter  B  on  pages  90,  91,  92,  93  and  94. 

While  we  understand  what  is  meant  by  Section  1516,  we  think  for  the  purposes 
of  clarity,  a  new  subparagraph  (c)  should  be  added  on  page  93  in  lieu  of  the 
present  subparagraph  (c) ,  the  new  paragraph  to  read  as  follows : 

"(c)  The  provisions  of  this  section  shall  not  apply  to  oflicers,  oflicials  and 
employees  of  State  governments  or  any  of  their  political  subdivisions  or  entities 
nor  to  buildings  or  facilities  owned,  rented,  occupied  or  operated  by  them." 

We  suggested  further  that  subparagraph  (c)  as  it  appears  in  S.  1437  be  re- 
designated as  subparagraph  (d)  and  that  it  be  added  after  the  above  paragraph 
to  read  as  follows  : 

"(c)  Grading — ^An  offense  described  in  this  section  is  a  Class  A  misdemeanor." 

Please  let  me  compliment  you  and  Senator  McClellan  and  others  for  the  good 
work  which  you  have  done  trying  to  bring  some  order  out  of  a  very  chaotic 
condition  as  regards  Fedei*al  Criminal  Statutes.  Under  S.  1437  it  will  be  possible 
for  a  person  to  read  the  same  and  know  what  is  prohibited  and  what  is  not. 

With  the  expression  of  my  highest  esteem  for  you  and  with  warmest  regards. 
Always  sincerely, 

Walter  O.  Brooks. 

Director. 


University  of  Chicago  Law  School, 

Chicago,  III.,  June  20, 1911. 
Hon.  Edward  M.  Kennedy, 
V.S.  Senate, 
Washington,  D.G. 

Dear  Senator  Kennedy  :  To  my  deep  regret,  earlier  made  and  firm  obligations 
preclude  my  accepting  the  invitation  to  appear  before  the  Subcommittee  on 
Criminal  Laws  and  Procedures  of  the  Senate  Committee  on  the  Judiciary.  I 
was  advised,  however,  that  a  letter  to  you  on  certain  aspects  of  the  testimony 
I  had  planned  to  offer  may  be  appropriate  and  of  some  use.  I  do  hope  so. 

Let  me  open  by  expressing  the  satisfaction  that  all  who  care  about  the  ^ape, 
content  and  operation  of  the  federal  criminal  justice  system  must  feel  in  your 
initiative  and  that  of  your  colleagues  in  the  Senate,  expressed  in  S.  1437.  It  is 
surely  time  that  order  and  principle  are  brought  to  the  federal  statute  book  of 
crime  and  punishment ;  S.  1437  is  a  secure  foundation  for  such  an  effort. 

In  this  letter  I  shall  confine  myself  to  a  few  comments  on  the  sentencing 
provisions  in  the  proposed  Federal  Criminal  Code. 

Responsible  students  of  the  fedei*al  criminal  justice  system  have  come  to 
appreciate  that  present  legislative  provisions  on  criminal  sentences  are  so  scat- 
tered and  uneven,  and  present  judicial  sentences  are  so  characterized  by  arbi- 
trary and  unjust  disparities  that  it  is  impossible  to  fashion  a  fair,  just  and  com- 
munity protective  criminal  justice  system  around  them.  Charge  and  plea  bar- 
gaining, at  one  end  of  the  process,  and  parole  discretion  at  the  other  compovmd 
and  vary  the  mixture.  A  responsible  balance  between  legislative,  judicial  and 
administrative  sentencing  functions  remains  elusive.  The  sentencing  provisions 
of  the  proposed  Code  provide  a  rational  system  of  checks  and  balances  which 
should  in  time  lead  the  federal  system  to  fair  and  just  sentencing  of  criminal 
offenders. 

Of  course  I  have  quibbles  and  disagreements.  They  merely  slightly  cloud  my 
enthusiasm  for  the  broad  approach  to  sentencing  in  the  proix)sed  Code. 

As  a  quibble,  section  2003(a)  (2)  (d)  :  Is  it  really  appropriate  in  deciding  on 
what  sentence  to  impose  to  consider  rehabilitative  purposes?  For  example,  fed- 


9268 

eral  prisons  should  provide  more  vocational  and  educational  training  than  tlipy 
now  do.  but  it  seems  to  me  an  abuse  of  power  to  send  a  convicted  criminal  to 
prison  for  such  training  who,  lacking  that  need,  would  not  have  been  imprisoned. 
On  this  point.  I  respectfully  agree  with  the  testimony  already  presented  to  your 
subcommittee  by  Norman  Carlson,  Director  of  the  Bureau  of  Prisons.  Some  re- 
fashioning of  the  language  of  section  2003  and  comparable  sections  on  sentenc- 
ing purposes  could  easily  put  rehabilitative  processes  into  proper  sentencing 
jierspective. 

As  a  disagreement :  I  doubt  the  wisdom  of  those  mandatory  minimum  sen- 
tences and  those  provisions  for  parole  ineligibility  which  are  to  be  found  in  tl)e 
Code.  They  tend  to  be  largely  nullified  in  practice  :  they  shift  discretion  from 
judge  to  prosecutor,  or  from  parole  board  to  the  judiciary,  in  an  inisatisfac- 
tory  and  unprincipled  way.  They  are  politically  attractive,  it  is  true,  but  seems 
to  me  out  of  phase  with  the  broad  and  balanced  approach  of  the  other  sentenc- 
ing provisions  of  the  proposed  Code. 

Let  me  put  aside  quibb'es  and  disagreements  and  come  to  areas  of  enthusiastic 
sui)i)ort.  Tlie  T"f.S.  Sentencing  Commission,  an  idea  first  suggested.  I  l>elieve.  by 
.Tudge  Marvin  Frankel  in  his  excellent  Crlmlnnl  Snitrucoi :  Law  Without  Orthr, 
will  be  a  mechanism  to  bring  justice  to  the  present  disparity  of  federal  sentoic- 
ing.  The  Commission  can.  over  time,  produce  guidelines  and  policy  statements, 
within,  and  sometimes  overlapping,  legislative  categories  of  criminal  sanctions, 
which  will  contribute  to  rational  and  fair  sentencing  based  on  our  best  present 
knowledge,  on  feedback  from  how  sentences  operate  in  practice,  on  the  continu- 
ing controls  of  Congress  and  the  decisions  on  sentencing  from  the  newly-estab- 
lished judicial  appellate  procedures.  A  sound  process  may  be  fashioned  by  which 
a  common  law  of  sentencing  may  evolve.  It  is  an  enormously  important  develop- 
ment in  the  jurisprudence  of  punishment. 

Buoyed  by  the  hope  of  passage  of  this  Federal  Crimin.nl  Code,  a  grouj)  of 
scholars  who  have  written  on  problems  of  sentencing  are  planning  to  start  this 
summer  drafting  a  series  of  "guidelines"  and  "policy  statements"  under  the  terms 
of  the  Code.  We  may  thus  Ivp  of  some  assistance  to  the  Sentencing  Commission 
when,  as  I  hope,  they  take  up  this  difficult  task. 

The  Sentencing  Commission  is  the  linchpin  of  the  punishment  system  of  the 
prf)posed  Code :  For  this  reason.  I  wonder  whether  the  provisions  in  Part  E  are 
the  best  that  could  be  devised.  Should  membershiji  of  the  United  States  Sen- 
tencing Commission  be  designated  only  by  the  .Tudirial  Conference  of  the  United 
States"'  May  that  api)ointment  prcicedure  not  overload  the  Commission  with 
judges?  The  Commission'*  role  is  to  acquire  knowledge  of  .sentencing  and  its 
efficacy  and  to  shape  the  evolution  of  fair  sentencing  principles.  This  complex 
task  renuires.  T  believe,  also  some  of  the  knowledge  of  other  actors  in  and  stu- 
dents of  the  criminal  justice  system.  The  insight  and  experience  of  a  meml)er  of 
a  parole  board  may  well  be  appropriate  to  membersh.ip  of  the  Sentencing  Com- 
mission :  there  may  even  be  room  for  an  academic  or  scholar  in  that  the  insights 
of  research  feedback  on  sentencing  must  be  incorporated  into  the  Commission's 
work:  and  tliere  are  several  other  appropriate  professional  paths,  in  my  view, 
to  membership  on  the  Commission.  Would  it  not  be  appropriate  to  reduce  "the  ap- 
pointive power  of  the  Judicial  Conference  and  give  some  of  it,  perhaps  the  buM<. 
to  the  Executive?  It  seems  so  to  me.  being  likely  to  provide  a  more  roundly  in- 
formed Commission,  better  able  to  harmonize  l(>gislative.  judicial  and  admin- 
istrative sentencing  discretions  contemplated  under  the  proposed  Code. 

May  I  comment  on  two  more  points  of  imi>ortance  in  the  proposed  Code:  the 
cpicstion  of  parole  and  the  Parole  Board,  and  the  (picstion  of  appellate  review? 

I  note  that  some  witnesses  liave  advocated  the  abolition  of  parole  with  the 
estaldishment  of  logisbitive  sentencing  criteria  and  tlie  creation  of  tlie  Senfenc- 
ing  Commission.  Norman  Carlson  has  gone  further  and  advocated  the  abolition 
fif  "good  time."  Botli  recommendations  are  congenial  to  my  view  of  what  the 
sentencing  of  crimin:ils  will  lie  like  in  the  future,  assuming  the  gradual  i>erfect- 
abllity  of  men  and  women  and  tlielr  institutions.  But  at  tliis  stage  of  our  efforts 
to  reshape  our  jurisprudence  and  practice  of  crime  control  it  se(>ms  to  me  that 
tb(  re  is  a  great  deal  to  be  said  for  the  preservation  of  the  parole  dlf^cretion  and 
of  "good  time"  (provided  it  be  applied  witli  due  i)rocess)  to  assist  in  the  gradual 
evolution  of  prlncijiled  senteiicing.  For  the  time  l)elng  I  think  we  need  the  safety 
valves  they  i)rovlde.  And  further,  the  projiosed  Code  would  bring  i)ressure  to  bear 
on  the  I'arole  Board  to  pursue  its  pres(>nt  plans  for  <>arlier  fixation  of  presmnp- 
tive  pjiroJe  dates  under  firm  and  predictable  criteiia.  The  proposed  Code  niake.s 
the   Parole   Board   subject   to   the  guidelines   of  the   Sentencing  Commissior^ ; 


9269 

indeed,  it  may  go  too  far  toward  restricting  parole  release  discretion  ;  l»iit  cer- 
tainly a  wise' use  over  time  by  the  Sentencing  Commission  of  its  powers  could 
lead  to  a  better  informed  judgment  than  can  now  be  made  on  the  proper  role  of 
a  parole  board.  The  abolition  of  parole  boards  may  prove  desirable ;  the  bill  al- 
lows for  movement  in  that  direction  and,  if  appropriate,  for  a  gradual  reduction 
(if  the  Parole  Board's  discretion  and  a  consequential  expansion  of  that  of  the 
Sentencing  Commission. 

Appellate  Review:  The  proposed  Code  does  not,  in  my  opinion,  go  far  enough. 
Respectfully.  I  would  concur  with  the  testimony  offered  to  the  Subcommittee  by 
Judge  Frankel.  Building  on  the  Sentencing  Commission's  guidelinc\s  and  policy 
statements,  it  should  be  possible  under  the  Code  to  use  appellate  review  as  a 
means  of  further  developing  guidelines  and  policy  statements  and  of  fashioning 
a  common  law  of  sentencing.  Principled  sentencing  is  central  to  a  fair  criminal 
justice  system.  I  appreciate  the  present  pressure  of  business  on  the  federal  courts 
but  a  proposed  Code  should  not  let  expediency  preclude  a  design  that  can  in 
time  achieve  a  fair  criminal  justice  system.  Ample  appellate  review  is  essen- 
tial to  the  interlocking  sentencing  relationships  in  the  proposed  Code  betweeii 
congressional  control,  the  influence  of  the  Sentencing  Commission,  and  the  work 
of  trial  judges. 
Sincerely, 

norval  morbis.  dciih. 

Arkansas  Women's  Club, 
Eureka  Si)iinffs,  Ark..  May  20, 11)77. 
General  Federation  Clubwomen  News, 
Washiffton,  B.C. 

Dear  Editor  and  Staff  Members  :  We,  the  Womans  Club  of  Eureka  Springs, 
Arkansas,  want  to  go  on  record  as  supporting  the  General  Federation  of  Club 
Woman  News  in  its  "Justice  for  Citizens"  campaign. 

We  share  your  views  concerning  the  tendency  of  our  courts  to  protect  the 
rights  of  criminals  rather  than  the  rights  of  victims  and  w^e  are  hopeful  that 
the  combined  efforts  of  our  women  throughout  the  nation  may  be  a  compelliuj^- 
factor  which  will  bring  about  much  needed  change. 

Below  is  our  statement  of  commitment  as  you  requested  : 

•■Whereas,  compassion  for  the  criminal  at  the  expense  of  the  victim  is  at  the 
root  of  our  rising  crime  problem  ;  and 

"Whereas,  too  often  court  interpretations  mock  justice  and  affront  the  victim 
and  release,  su.spend  sentence,  or  parole  offenders  who  return  to  the  streets  to 
commit  more  crimes  ;  and 

"Whereas,  we  need  to  approach  the  problem  at  the  beginning  point,  in  the  sen- 
tencing, to  insure  that  lawbreakers  will  be  punished  and  will  not  be  encouraged 
to  contribute  to  the  suffering  and  terror  of  the  law-abiding  ;  therefore 

"Resolved,  that  the  Womans  Club  of  Eureka  Springs,  Arkansas  go  on  record 
supporting  General  Federation   CLUBWOMAN  NEWS'  JUSTICE   FOR  CITI- 
ZENS campaign  which  calls  for  a  mandatory  minimum  sentence,  without  parole 
suspension  or  probation,  for  violent  crimes,  in  an  eft'ort  to  promote  community 
welfare  and  the  security  and  wellbelng  of  the  general  citizenry. 
Sincerely, 

Mrs.  C.  J.  Tyson, 
Corresponding  Seoretary. 

Statement  of  James  V.  Bennett,  Former  Director  of  U.S.  Bureau  of  Prisons 

As  the  former  Director  of  the  U.S.  Bureau  of  Prisons  and  a  much  chastened 
advocate  of  sentencing  reform,  I  appear  before  you  to  suggest  a  word  of  caution 
about  the  pending  proposals  on  sentencing  lest  the  admirable  efforts  of  a  decade 
to  revamp  and  modernize  the  criminal  code  are  frustrated. 

Praiseworthy  as  may  be  the  goal  to  structure  and  guide  judicial  discretion  in 
the  imposition  of  sentences,  its  achievement  along  the  lines  suggested  in  the 
l>ending  bill  will  require  so  much  research,  so  much  debate,  and  so  much 
controversy  that  the  impressive  progress  so  far  made  by  the  Brown  Commis- 
sion, the  Committees  of  the  Congress,  and  a  host  of  scholars  may  be  stymied 
for  years.  "^ 

The  proposal  to  delay  the  effective  date  of  the  Act  for  two  years  in  order  to 
give  the  suggested  Sentencing  Commission  time  to  obtain  funds,  organize,  select 


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its  staff,  prepare  its  guidelines  and  policies,  and  obtain  tho  ;i;)proval  of  the 
Congress  of  its  findings  is,  I  suggest,  much  too  optimistic.  It  would  be  far  better 
to  split  ofl"  Part  E  of  the  bill  and  go  forward  with  immediate  approval  of  the 
revision  of  Title  18  of  the  U.S.  Code.  Its  sentencing  proposal  can  be  taken  up 
later. 

FORMULATION  OF  SENTENCING  GUIDELINES  MIND  BOGGLING 

The  pro])osal  to  establish  a  nine-person  Sentencing  Commission  of  judges, 
lawyers,  laymen,  and  perhaps  ex-prisoners  to  draft  really  meaningful  and 
detinite  guidelines  to  channel  the  concepts  of  upwards  of  500  judges  in  their 
disposition  of  hundreds  of  different  crimes  is  an  overwhelming,  not  to  say 
chimerical,  task. 

I  have  read  much  of  the  literature  on  sentencing,  listened  to  much  rhetoric 
about  the  lawlessness  of  our  methods  of  imposing  sentences — indeed  contributed 
to  some  of  it  myself — but  have  yet  to  learn  of  any  precise  definition  of  the 
factors  that  a  court  should  take  into  consideration  in  disposing  of  particular 
cases. 

SELF-E\T[DENT  GtJIDELINES 

To  be  sure,  a  court  can  be  urged  to  take  into  account  the  seriousness  or 
gravity  of  the  offense,  the  prior  record  of  the  defendant,  his  age,  his  emotional 
problems  and  handicaps,  his  work  history,  the  extent  of  harm  done  to  others 
or  to  society,  public  attitudes  about  the  crime,  deterrent  values  and  so  on  and 
so  on.  But  these  are  mostly  admonitions  which  ^^^ll  be  impossible  to  scale  or 
quantify,  even  with  the  help  of  computer  science.  Inevitably,  guidelines  for 
sentencing  many  offenders  will  be  articulated  in  such  vague  and  ambiguous 
terms  as  to  be  of  little  help  to  the  conscientious  and  experienced  judge.  More- 
over, recent  pre-sentence  reports  have  become  so  lacking  in  depth  and  analysis 
that  the  court  is  severely  handicapped  in  making  judgments. 

And  if  som.e  genius  could  be  found  to  verbalize  a  set  of  really  definite  and 
u.seful  guidelines  for  robbery,  or  auto  theft,  or  counterfeiting,  how  can  he 
define  the  factors  that  must  be  taken  into  account  in  disix)sing  of  an  anti-trust 
violation,  an  income  tax  case  incUiding  many  with  implications  of  social  sig- 
nificance, a  charge  of  perjury,  bank  embezzlement,  or  any  of  the  myriad  types 
of  drug-law  violation?  And.  the  Commission  must  si>ell  out  factors  and  guide- 
lines that  Congress  must  approve ! 

DIFFICULTIES  OF  LEGISLATIVELY  MANDATED  GUIDELINES 

If.  in  all  deference,  we  suggest  Congress  has  great  difl5culty  agreeing  on  the 
l>enalty  for  a  marijuana  smoker  or  the  disiX)sition  of  a  militiiry  deserter,  how 
can  it  possibly  be  expected  to  ^approve  definitive  guidelines  for  sentencing  a 
Jimmy  Hoffa,  an  Alger  Hiss,  a  Patty  Hearst,  a  John  Dean,  a  John  Mitchell,  or 
a  Dave  Dellinger — the  draft  evader  and  militant  leader  of  the  war-protestei'S. 

The  American  Bar  Association  spent  much  time,  money,  and  effort  to  develop 
a  set  of  standards  for  the  administration  of  Criminal  Justice.  Among  them  was 
one  volume  dealing  with  sentencing.  The  entire  thrust  of  the  standards  on 
sentencing  was  to  minimize  the  role  of  the  legislature  in  determining  precise 
sentences.  It  urged  legislatures  not  to  specify  mandatory  sentences  and  that 
the  court  be  provided  with  a  wide  range  of  alternative  dispositions  so  that  a 
sentence  appropriate  to  each  individual  case,  the  times,  the  potentialities  of 
the  offender,  the  correctional  facilities  available,  and  the  purposes  of  the 
criminal  justice  system. 

In  view  of  this  standard,  I  .should  think  the  Bar  Association  could  not  accept 
a  plan  which  required  that  a  detailed  formulation  of  sentencing  criteria  be 
subject  to  approval  by  Congress  with  its  many  faceted  attitudes  with  respect 
to  crime  control. 

BROAD  SCOPE  OF  SENTENCING  COMMISSION 

The  proposal  (Sec.  004 (a) 2)  that  the  Sentencing  Commission  may.  from 
time  to  time,  promulgate  "general  policy  statements  regarding  application  of 
the  guidehnes  or  any  other  afspecf  of  sentencing  that  in  iTic  view  of  the  Com- 
mission u-onhl  further  the  piirposefi  set  forth  in  Section  1011)  of  Title  18"  seems 
bound  to  raise  serious  practical  and  constitutional  problems  since  the  general 
pnrriose  of  this  section,  among  other  things,  is  to  "prescribe  appropriate  srnc- 
tions"  for  engaging  in  conduct  that  causes  or  threatens  harm  to  those  individual 
or  public  interests  for  which  federal  protection  is  appropriate. 


9271 

I  cite  this  chiefly  to  call  further  attention  to  the  many  aspects  of  the  proposed 
sentencing  procedure  that  are  bound  to  be  controversial.  The  ultimate  abolition 
of  the  Parole  Board  without  providing  any  alternative  system  of  aftercare  or 
supervision  or  anv  means  to  ameliorate  a  sentence  other  than  by  Presidential 
intervention  is  another.  The  virtual  abandonment  of  the  "good  time  system 
witliout  providing  any  other  system  of  incentives  for  good  conduct  is,  m  my 
judgment,  a  fatal  flaw'that  forebodes  institutional  violence. 

PLEA  BARGAINING  THE  CRUX  OF  THE  DISPARITY  PROBLEM 

The  crux  of  the  disparity  of  the  sentencing  problem,  however,  is  not  alone 
to  bring  more  even-handed"  justice  to  the  fifteen  percent  of  those  who  stand 
trial  but  to  the  85  percent  of  the  approximately  59,000  defendants  whose  sen- 
tence was  set,  to  all  practical  intents  and  purposes,  by  the  prosecutor  m  a  plea 
negotiation.  It  is  the  94  U.S.  Attorneys  and  their  hundreds  of  assistants  who 
determine  the  charges,  make  recommendations  as  to  sentences,  and  largely  deter- 
mine the  disposition  of  tlie  offenders  who  do  not  stand  trial.  Spelling  out  sen- 
tencing guideUnes,  incidentally,  would  give  the  prosecutor  another  bargaining 
chip  and,  in  all  likelihood,  further  exacerbate  the  sentencing  dilemma.  The 
speedv  trial  law.  on  the  other  hand,  is  an  incentive  for  the  prosecutor  to  accept 
a  negotiated  plea  and  sentence  that  may  further  contribute  to  disparity. 

AN  ALTBaiNATE  PROPOSAL 

The  effort  to  bring  about  a  more  consistent,  a  more  rational,  a  more  effective 
system  of  sentencing  surely  should  not  be  abandoned.  A  number  of  alternatives 
to  the  .'sentencing  guideline  plan  have  been  proposed:  (a)  flat  sentences;  (b) 
presumptive  sentences ;  (c)  sentencing  councils ;  (d)  mandatory  minimum  sen- 
tencing;  (e)  review  boards;  (f)  sentencing  seminars;  and  (g)  development  of 
a  system  of  judicially  promulgated  case  law  on  sentencing  stemming  from  ap- 
pellate overview  of  the  reasons  stated  by  the  district  judge  for  the  sentence. 

It  would  seem  the  part  of  wisdom  for  the  Federal  Government  with  its  heavy 
responsibility  for  law  enforcement  to  delay  venturing  into  so  baffling  a  field 
until  it  had  commissioned  a  group  to  draft  specific  sentencing  guidelines  and 
subjected  them  to  study  by  knowledgeable  groups.  It  might  indeed  be  possible 
to  find  several  courts  that  would  voluntarily  undertake  to  implement  them. 
The  results  could  be  studied  and  improvements  made,  or  the  plan  abandoned, 
and  one  of  the  other  proposals  tried.  -^ 

Meanwhile,  the  substantive  code  with  its  enormous  promise  of  important 
improvements  in  existing  law  can  be  enacted.  To  delay  its  enactment  until  a 
highly  controversial  sentencing  scheme  is  developed  and  wins  the  approval  of 
tlie  Congress  would  be  "throwing  out  the  baby  with  the  bath  water." 


Washington  Supreme  Court, 

Ohjmpia  ,Wash.,  July  S,  1977. 
Senate  Subcommittee  on  Criminal  Law^s  and  Procedures, 
New  Senate  Office  Building, 
Washington,  D.G. 
(Attention:  Mr.  Paul  C.  Summit.) 

Gentlemen  :  I  appreciate  the  opportunity  to  comment  on  the  provisions  of 
SB  1437.  My  first  comment  is  a  rather  minor  one  and  regards  the  definitions  found 
at  the  end  of  a  particular  subchapter  which  apply  only  to  that  section.  It  might 
be  more  convenient  to  place  these  at  the  beginning  of  the  section  where  they  are 
not  easily  overlooked. 

CHAPTER   3. — CULPABLE    STATES   MIND 

Rather  than  commenting  on  the  chapter  specifically,  my  comments  will  be  in 
subsequent  chapters  whose  provisions  require  substantially  less  than  the  inten- 
tional or  knowing  state  of  mind  normally  presumed  to  exist  where  a  particular 
state  of  mind  is  unspecified. 

CHAPTER     4. COMPLICITY 

§  401.  Liability  of  an  Accomplice.  Section  (a)  (2)  appears  to  be  a  method  for 
making  one  liable  as  a  principal  for  what  is  in  fact  the  crime  of  "solicitation" 
(§1003)   w^hich  ordinarily  carries  a  penalty  one  grade  lower  than  that  of  the 

92-465  O  -"77  -  45 


9272 

crime  solicited.  (§  1003(d) ).  If  this  is  in  fact  true,  I  question  whether  this  is  an 
appropriate  degree  of  prosecutorial  discretion,  given  the  ability  to  charge  two  or 
more  different  crimes  with  the  same  elements  but  different  penalties. 

Section  (b)  Liability  as  Coconspirator.  There  appears  to  be  an  inconsistency 
with  the  general  conspiracy  statute,  §  1002.  which  provides  one  is  liable  as  a  con- 
spirator for  the  same  grade  of  crime  as  the  mo.st  serious  crime  which  was  an 
objective  of  the  conspiracy  (the  agi'eement  to  engage  in  criminal  conduct). 
Section  401(b)  renders  a  coconspirator  liable  as  a  principal  for  any  conduct  of 
another  party  to  the  conspiracy  which  is  not  a  part  of  the  agreement  or,  argu- 
ably, the  '"objective"  but  is  simply  "reasonably  foreseeable." 

CHAPTER     10. OFFENSES    OF    GENERAL    APPUCABILITY 

§  1002.  Criminal  Conspiracy.  Our  recently  drafted  criminal  code  for  Washington 
State,  RCW  9A. 28.040(1),  sought  a  compromise  between  the  "any  objective" 
language  used  in  §  1002  and  the  "unequivocal  step"  language  employed  in  the 
Model  Penal  Code  and  original  recommendations  to  our  State  legislature.  Our 
statute  adopted  the  "substantial  step"  requirement  which  seemed  to  me  to  be  a 
more  reasonable  middle  ground.  I  am  also  concerned  about  section  (c)  (Defense 
Precluded).  Section  1002  would  seem  to  allow  conviction  of  one  who  agreed,  but 
performed  no  act,  even  if  the  individual  who  conspired  with  him  was  agent  or 
informer  and  therefore  immune  from  prosecution  and  the  latter  individual  was 
responsible  for  all  significant  overt  acts  in  furtherance  of  the  conspiracy. 

§  1003.  Criminal  Solicitation.  This  provision  seems  a  bit  overbroad  to  me.  It 
could  be  argued  every  drug  enforcement  agent  who  assisted  in  arranging  a  sale 
would  be  guilty  of  this  crime  as  the  statute  is  presently  worded.  The  statute  also 
appears  to  require  nothing  more  than  speech  as  actus  reus.  In  our  recently  re- 
vised criminal  code,  RCW  9A.28.030,  criminal  solicitation  is  defined  as  "(1)  A 
person  is  guilty  of  criminal  solicitation  when,  with  intent  to  promote  or  facilitate 
the  commission  of  a  crime,  he  offers  to  give  or  gives  money  or  other  thing  of 
value  to  another  to  engage  in  specific  conduct  which  would  constitute  such 
crime  or  which  would  establish  complicity  of  such  other  i>erson  in  its  commission 
or  attempted  commission  had  such  crime  been  attempted  or  committed." 

CHAPTER     11. OFFENSES    INVOLVING    NATIONAL    DEFENSE 

§  1102.  Armed  Rebellion  or  Insurrection.  It  seems  to  me  this  statute  needs 
more  concise  definition.  The  terms  "armed  rebellion"  or  "armed  insurrection" 
appears  to  j)rovide  possible  void  for  vagueness  issues. 

§  1103.  Engaging  in  Para-Military  Activity.  I  have  some  problems  with  this 
provision  which  relates  back  to  the  chapter  3  definitions  of  culpable  states  of 
mind.  The  purpose  of  an  organization  training  one  in  use  of  weapons  would  be 
"an  existing  circumstance."  Guilt  under  this  section  would  only  require  a  show- 
ing that  the  defendant  was  aware  of  a  "risk"  that  the  purpose  of  the  organization 
was  the  unauthorized  assumption,  by  threat  of  force,  of  a  government  agency, 
rather  than  proof  he  knew  that  to  be  its  purpose.  Moreover,  this  provision  does 
not  require  a  showing  that  the  training  or  caching  of  weapons  was  in  further- 
ance of  the  unlawful  purpose.  For  instance,  the  Black  Panthers  cache  weapons  in 
fear  of  assaults  by  a  rightist  para-military  group.  This  would  be  enough,  argu- 
ably, to  establish  guilt  since  the  purpose  to  assume  control  of  government  activity 
by  threat  of  force  has  at  various  times  been  an  expressed  purpose  of  that 
organization. 

§  llli).  Obstructing  Military  Recruitment  or  Induction ;  and  §  1116.  Inciting 
or  Aiding  Mutiny,  Insubordination,  or  Desertion.  I  agree  with  the  legitimate  aims 
of  the.se  sections,  but  I  am  concerned  about  overbreadth.  I  would  hope  these 
statutes  could  be  altered  so  as  to  include  more  than  speech  as  a  sufficient  actus 
reus  and  also  be  more  specific  as  to  the  extent  of  the  incitement  or  obstruction 
required  in  order  to  survive  an  overbreadth  challenge.  As  presently  constituted, 
they  seem  to  have  a  potential  chilling  effect  on  peace  and  disarmament  move- 
ments traditionally  thought  to  be  protected  by  the  First  Amendment. 

CHAPTER    1.3. — OFFENSES    INVOLVING    GOVERNMENT    PROCESSES 

§  1302.  Obstructing  a  Government  Function  by  Physical  Interference.  I  am 
uncertain  of  the  specific  situations  this  subsection  was  meant  to  encompass.  It 
does  seem  the  possibility  of  a  one-year  jail  sentence  against  one  who  staged  a 
sitdown  strike  or  sit-in  at  a  federal  office  building  may  be  a  bit  overbroad  and 


9273 

further  grading  as  to  various  types  of  obstruction  which  might  be  committed 
would  be  appropriate. 

CHAPTER    14. — OFFENSES   INVOLVING   TAXATION 

§  1411.  Smuggling.  The  culpable  state  of  mind  as  to  section  (a)(1)(B)  ought 
to  be  "knowing"  rather  than  the  "reckless"  standard  which  is  applied  in  the 
absence  of  a  specific  section  to  the  contrary.  With  the  proliferation  of  regula- 
tions there  could  always  be  the  risk  that  formal  conditions  had  not  been  com- 
plied with  and  the  severity  of  the  potential  sentence  seems  to  make  a  "knowing" 
standard  more  appropriate. 

§  1412.  Trafficking  in  Smuggled  Property ;  and  §  1413.  Receiving  Smuggled 
Property.  I  believe  these  sections  have  the  same  deficiencies  as  section  1411. 

CHAPTER    15. — OFFENSES   INVOLVING  INDIVIDUAL   RIGHTS 

§§  1501-06.  It  seems  ironic  that  the  grading  of  these  offenses  are  listed  as  mis- 
demeanors while  nearly  all  the  offenses  against  the  government  carry  more  se- 
vere sanctions.  It  seems  that  the  danger  to  constitutional  government  is  identical 
whether  in  an  act  of  defiance  against  the  government  or  an  act  violating  the  civil 
rights  of  its  citizens.  An  example  of  this  is  the  comparison  of  the  "strikebreaking" 
provision  in  section  1506,  which  requires  the  use  or  threat  of  force,  with  section 
1302  (obstructing  government  function),  which  requires  only  a  physical  inter- 
ference. 

§  1511(a)  (2) .  I  am  concerned  about  the  phrase  "something  of  value"  applicable 
to  this  provision.  Is  it  the  same  as  "anything  of  value"  (p.  14,  line  32)  which 
means  "any  direct  or  indirect  gain  or  advantages,  or  anything  that  might  rea- 
sonably be  regarded  by  the  beneficiary  as  a  direct  or  indirect  gain  or  advantage, 
including  a  direct  or  indirect  gain  or  advantage  to  any  other  person."  If  this  in 
fact  is  similar,  it  would  seem  to  include  any  innocuous  campaign  promise  and  be 
overboard.  If  another  definition  is  intended  it  should  be  spelled  out  in  the  defini- 
tion section  at  the  end  of  the  chapter. 

§  1513(a)  (3).  This  provision  also  seems  overbroad  and  places  a  penalty  on 
what  could  be  simply  an  administrative  oversight.  If  the  present  grading  is  to  be 
maintained  it  should  be  tightened  to  punish  only  intentional  misrepresentation 
by  the  responsible  organization. 

§  1516.  Soliciting  a  Political  Contribution  as  a  Federal  Public  Servant  or  in  a 
Federal  Building.  With  the  exemption  noted  in  section  (b)  (affirmative  defense), 
would  it  not  be  better  to  control  this  through  civil  service  sanctions  and  fines, 
rather  than  making  this  a  criminal  offense. 

§  1.521.  Eavesdropping.  The  defense  for  "quality  control"  checks  should  be 
limited  to  preclude  it  in  instances  where  the  information  obtained  is  transferred 
to  anyone  not  employed  by  the  common  carrier  or  used  for  a  purpose  other  than 
quality  control.  The  same  would  apply  to  section  1524  and  the  defense  should 
protect  only  in  innocent  interception  or  one  necessary  to  monitor  service  by  the 
carrier.  It  should  not  protect  subsequent  disclosure  for  any  other  purpose. 

CHAPTER    16. — OFFENSES   INVOLVING   THE   PERSON 

§  1601.  Murder.  I  am  convinced  by  the  "loss  of  self-control"  defense,  section 
(b).  It  appears  to  be  a  substitute  for  the  traditional  protection  of  the  person 
rationale  for  self-defense  and  greatly  reduces  an  individual's  responsibility  for 
control  of  emotions.  I  would  urge  a  limitation  of  the  felony-murder  provision 
(section  (3) )  to  instances  in  which  the  conduct  during  the  course  of  the  specified 
crime  which  in  fact  causes  the  death  must  itself  demonstrate  a  reckless  regard  for 
human  life.  Such  a  provision  would  dispense  with  many  of  the  problems  inherent 
in  felony  murder  statutes,  particularly  when  coupled  with  a  merger  rule  which 
the  federal  act  has  adopted.  By  limiting  application  of  felony  murder  to  in- 
stances in  which  death  is  caused  by  reckless  conduct,  focus  is  placed  on  the  felon's 
willingness  to  employ  dangerous  means  to  perpetrate  a  felony.  This  is  the  only 
sort  of  conduct  which  a  felony  murder  rule  can  logically  be  designed  to  deter. 

§  1621.  Kidnapping.  The  grading  of  this  crime  seems  to  encourage  the  kid- 
napper to  persevere.  It  is  only  a  Grade  A  crime  if  the  actor  fails  to  voluntarily 
release  the  victim  unharmed  prior  to  trial.  On  the  basis  of  this  reasoning,  one  who 
succeeds  in  collecting  ransom  and  then  releases  his  victim  is  no  more  culpable 
than  one  who  gives  up  sooner. 


9274 

§  1624.  This  affirmative  defense  should  also  extend  to  parents  or  guardians  of 
adult  incompetents. 

§  1641.  Rape.  This  section  takes  needed  steps  toward  reform  but  could  go 
further.  The  definition  of  ".spouse",  .section  1646(a)(3),  could  be  limited  addi- 
tionally so  as  not  to  include  persons  living  .separate  and  apart  even  if  there  is 
no  judicial  decree  of  separation.  This  definition  is  related  to  the  "not  a  spouse" 
exception  contained  in  the  definition  of  the  substantive  offense. 

§  1641(a)  (2).  I  am  concerned  that  the  grading  of  a  forcible  rape  may  be  too 
lenient.  It  is  in  harmony  with  the  gradation  of  other  violent  crimes  against  a 
person,  Maiming,  §  1611  (class  C)  ;  Aggravated  Battery.  §  1612  (class  D),  but  no 
more  severe  than  most  of  the  crimes  against  property.  It  seems  to  me  the  violent 
crimes  against  persons  should  be  more  .severe  than  the  sanction  for  a  simple 
burglary  and  that,  for  example,  aggravated  battery  which  is  a  class  D  felony, 
should  be  at  least  as  severe  as  simple  burglary,  a  class  C  felony  and  arguably 
more  severe. 

The  rape  statutes  could  be  more  clear  on  the  nature  of  consent  which  is  suffi- 
cient to  exculpate.  Our  state  statute,  RCW  9.79.140(6)  defines  "consent"  to  mean 
that  at  the  time  of  the  act  of  sexual  intercourse  there  are  actual  words  or  conduct 
indicating  freely  given  agreement  to  have  sexual  intercourse. 

CHAPTER    18. — OFFENSES    INVOLVING   PUBLIC   ORDER,    SAFETY,    HEALTH,    AND    WELFARE 

§§  1811-15.  I  have  not  been  a  trial  court  judge  for  seven  years  and  do  not  have 
current  experience  with  sentencing  problems  involving  drug  offenders.  My  gen- 
eral feeling  at  that  time  regarding  dealers  at  all  levels  was  one  of  outrage  and  the 
temptation  was  to  impose  punitive  sentences.  In  retrospect  I  que.stion  the  ef- 
fectiveness of  such  a  policy.  While  I  can  and  do  justify  this  attitude  toward  those 
involved  in  the  narcotics  trade  at  a  commercial  level,  most  of  those  arrested 
and  brought  before  me  were  addicts  themselves.  Incarceration  for  some  time  for 
addicts  may  be  justifiable,  but  the  majority  of  those  I  ol).served  did  not  have  ac- 
cess to  effective  help  for  addiction  while  incarcerated.  They  also  had  better  or 
equal  access  to  drugs  in  prison  compared  to  their  availability  on  the  street  and 
on  release  were  in  no  better  position  to  remain  away  from  drugs  than  they  were 
before  they  were  incarcerated.  I  am  enclosing  copies  of  two  opinions  I  wrote  in 
Bresolm  v.  Morris  which  set  forth  some  of  my  concerns  about  handling  of  drug 
offenders  in  institutions.  The  only  effective  programs  I  have  observed  dealing 
with  addicts  are  those  for  addicts  who  want  help  and  are  supervised  by  ex-addicts, 
where  close  supervision  and  positive  peer  pressure  is  combined  with  effective 
post-release  job  placement  and  close  personal  supervision  is  provided  after  re- 
lease. ]My  candid  observation  is  that,  while  the  public  is  very  supportive  of  puni- 
tive sentences  for  anyone  involved  in  drug  offenses,  with  the  exception  of  those 
pos.sessing  minor  amounts  of  marijuana,  the  effectiveness  of  such  programs,  as 
evidenced  by  the  recent  New  York  legislation,  has  been  minimal. 

§1821.  Explosives  Offenses.  In  section  1821(a)(1)  the  second  phrase  in  the 
provision  seems  a  bit  broad,  and  I  would  suggest  it  be  amended  to  read  "with 
knowledge  it  is  intended  to  be  used  by  its  ultimate  recipients  to  commit  a  felony." 

§  1823.  U.sing  a  Weapon  in  the  Course  of  a  Crime.  This  provision  is  an  excellent 
one,  eliminating  some  of  the  problems  of  definition  and  enforcement  we  have 
encountered  in  our  state. 

§§1831-34.  Riot  Offenses.  Although  I  appreciate  these  provisions  have  been 
changed  since  the  original  proposals  in  S.  1,  I  still  believe  the  proposed  provisions 
have  problems.  The  most  serious  is  the  failure  to  grade  the  offense  in  a  manner 
which  distinguishes  a  barroom  brawl  or  minor  disturbance  which  can  easily  be 
controlle<l  by  local  law  enforcement  efforts,  from  a  civil  insurrection.  The  pro- 
visions originally  put  forth  by  the  Brown  Commis.sion  Report  at  pp.  241-4.1  offer 
the  flexibility  needed. 

SENTENCING 

My  comments  on  the  new  sentencing  provisions  of  the  Senate  Bill  would  gen- 
erally echo  the  testimony  of  Judge  Marvin  Frankel,  who  has  already  apiieared 
before  your  committee.  The  presence  of  guidelines  with  a  requirement  for  state- 
ment of  rea.son  for  deviating  from  tliem  is  a  positive  stop.  ^ly  experience  with 
sentencing  and  other  judges,  however,  has  been  that  the  greatest  damage  to  the 
public  and  unfairness  to  the  offender  comes  from  judges  who  have  an  unju.sti- 
fiable  bias  in  sentencing  a  particular  offender.  Many  judges  recognize  what  the.se 
biases  are  but  are  able  to  articulate  reasons  to  justify  them,  sufficient  to  pass  any 
api)ellate  review  of  a  sentence.  I  have  been  intrigued  with  the  concept  of  a  panel 


9275 

of  two  or  three  judges  who  would  initially  impose  a  sentence.  This  would  seem 
to  me  to  largely  eliminate  the  element  of  individual  bias  and  force  judges  to  ar- 
ticulate, at  least  to  each  other,  the  reason  for  their  views  in  a  given  case  at  a 
time  when  they  could  be  modified  by  a  group  discussion.  The  time  demands  on  a 
judge  to  be  involved  in  a  small  panel  for  sentencing  would  not  greatly  exceed 
those  now  required  for  individual  sentencing.  The  added  number  of  cases  to  be 
decided  would  be  offset  by  sharing  the  time  spent  agonizing  over  the  proper  de- 
cision with  someone  else.  Such  a  system  would  seem  to  me  to  greatly  reduce  the 
chances  of  the  occasional  unjustifiable  grant  of  probation  to  those  involved  m 
organized  crime  or  anti-trust  violations,  and  on  the  other  hand  furnish  an  addi- 
tional person  to  be  a  bulwark  in  cases  where  public  passion  is  unreasonably 

strong.  .         ^        .  XN 

I  have  grave  concern  about  the  workability  of  appellate  review  of  sentences.  De- 
lay is  a  great  curse  in  the  appellate  system  and  criminal  justice  process  and  is 
inherent  in  appellate  review.  What  appellate  review  produces  is  a  panel  decision 
on  sentencing  by  judges  removed  from  the  individual  offender  and  the  victim  or 
victims.  These  "persons  are  essential  ingredients  to  reaching  a  proper  sentence 
and  their  presence  is  often  helpful.  Additional  factors  considered  by  every  judge 
in  sentencing  are  the  availability  of  alternative  resources  to  incarceration  and 
their  effectiveness.  I  believe  personal  evaluation  of  these,  whether  job  opportuni- 
ties, half-way  houses  or  work  release  programs,  is  essential.  This  is  impractical 
at  the  appellate  level. 

§3611.  Determination  of  Mental  Competency  to  Stand  Trial.  The  proposed 
statute  limits  the  authority  to  raise  this  issue  to  the  defendant  or  the  state.  Al- 
though the  trial  judge  can  be  viewed  as  possessing  inherent  power  to  raise  the 
issue,  this  power  should  be  articulated  in  the  statute.  The  burden  to  establish  in- 
competency is  by  a  preponderance  of  the  evidence.  Presumedly  this  burden  falls 
upon  the  moving  party,  or  if  raised  by  the  court,  upon  the  government.  The 
statute,  however,  does  not  specify  who  must  carry  it  and  it  should. 

§  361.8.  Hospitalization  of  a  Person  Acquitted  by  Reason  of  Insanity.  Section 
3613(d)  and  (e)  places  an  insurmountable  barrier  before  a  defendant  who  is 
committed  following  a  verdict  of  not  guilty  by  reason  of  insanity.  The  standard 
for  initial  commitment  following  such  a  verdict  is  "clear  and  convincing  evidence 
that  release  would  create  a  substantial  risk  of  serious  injury  to  another  person 
or  serious  damage  to  the  property  of  another."  The  release  provisions,  while 
somewhat  ambiguous,  appear  to  place  the  burden  upon  the  defendant  to  estab- 
lish that  he  no  longer  possesses  a  substantial  danger  by  a  preponderance  of  the 
evidence.  The  standards  for  release  of  one  subjected  to  a  criminal  mental  com- 
mitment should  be  the  same  as  those  released  as  civilly  committed  mental  pa- 
tients. Such  identity  in  standards  may  be  mandated  by  the  equal  protection 
clause.  Jftckson  v.  Indiana,  406  F.R.  715  Q972)  ;  Baxstrom  v.  Herald,  383  TT.S. 
107  (1966). 

§  383.5.  Revocation  of  Parole.  Section  (e)  does  not  specify  the  burden  of  proof 
to  establish  a  parole  violation.  The  committee  should  consider  the  use  of  a  clear 
and  convincing  standard.  The  current  Washington  statute  requires  proof  of  a 
parole  violation  by  a  preponderance  of  the  evidence.  See  ROW  9.0.'). 125. 

I  hope  you  find  these  comments  helpful.  If  I  can  be  of  further  assistance,  please 
advise. 

Very  truly  yours, 

RoBEUT  F.  Utter. 

Enclosure. 


9276 


Dec.  1975]  BRESOLIN  v.  MORRIS  241 

86  Wn.2d  241,  543  P.2d  325 

[No.  43846.       Department  One.      December  11,  1975.] 

Bradley  Lave  Bresolin,  Petitioner,  v.  Charles  Morris, 
as  Secretary  of  the  Department  of  Social  and  Health 

Services,  Respondent. 

[1]  Judgment  —  Vacation  —  Collateral  Proceeding  —  Void  Judgment.  A 

final  judgment  may  be  vacated  during  a  collateral  proceeding  only 
by  demonstrating  that  it  is  void,  i.e.,  entered  without  jurisdiction 
over  the  parties  or  the  subject  matter  or  without  the  inherent 
power  to  enter  the  decree  involved. 

[2]  Controlled  Substances  —  Convicts  —  Isolated  Facilities  —  Necessity. 

Under  the  terms  of  ROW  69.32.090  the  State  is  required  to  provide 
facilities  within  prisons  wherein  health  authorities  may  treat  con- 
victs suffering  from  narcotics  addiction.  Such  facilities  must  include 
isolation  areas  if  they  are  deemed  necessary  to  such  treatment. 

[3]  Contempt — Officers — Convicts — Condition  of  Imprisonment — ^Failure 
To  Comply.  Failure  of  responsible  ofiBcers  to  comply  with  an  order 
concerning  certain  conditions  of  imprisonment  of  convicts  may  be 
treated  as  criminal  or  civil  contempt  by  the  courts  or  may  result  in 
the  release  or  transfer  of  convicts  whose  conditions  are  the  object 
of  the  order. 

[4]  Constitutional     Law — Statutes — Construction — Source     of     Relief. 

When  judicial  relief  is  available  within  the  terms  of  existing 
statutes,  relief  on  constitutional  grounds  will  not  be  afforded. 

Application  filed  in  the  Supreme  Court  August  13,  1975, 
to  compel  admission  of  a  convict  to  a  drug  treatment  pro- 
gram. Granted  in  part. 

Richard  Emery,  Steven  G.  Scott,  John  G.  Ziegler,  and 
Allen  Ressler,  for  petitioner. 

Slade  Gorton,  'Attorney  General,  and  William  C.  Collins, 
Assistant,  for  respondent. 

Utter,  J. — Petitioner  seeks  a  writ  of  mandamus  ordering 
his  transfer  to  the  drug  treatment  program  at  Western 
State  Hospital.  Alternatively,  if  this  motion  is  denied,  he 
asks  for  an  order  adjudging  respondent  Charles  Morris,  as 
Secretary  of  the  Department  of  Social  and  Health  Services, 
in  contempt  of  this  court  for  failure  to  abide  by  our  order 
entered  December  2,  1974.  That  order  directed  respondent 


9277 


242  BRESOLIN  V.  MORRIS  [Dec.  1975 

86  Wn.2d  241,  543  P.2d  325 

to  "make  available  to  health  authorities  portions  of  correc- 
tional institutions  under  his  jurisdiction  for  the  isolation 
and  treatment,  at  public  expense,  of  petitioner"  for  narcotic 
addiction.  The  primary  questions  presented  by  this  writ  are 
the  extent  of  petitioner's  rights  under  the  December  2, 1974 
order  and  the  nature  of  the  proper  remedy  for  this  court  to 
enter  in  enforcement  of  that  order. 

The  proceedings  leading  to  the  entry  of  the  order  for 
isolation  and  treatment  began  with  a  petition  filed  by  Breso- 
lin  on  August  28,  1973,  seeking  his  discharge  from  custody 
"and  alleging  that  he  had  been  consistently  and  arbi- 
trarily denied  treatment  for  his  narcotic  addiction.  Peti- 
tioner claimed  this  treatment  was  directed  by  RCW 
69.32.090  and  the  eighth  and  fourteenth  amendments  to  the 
United  States  Constitution.  Hearings  were  held  on  the  mer- 
its of  the  petition  and  this  court  referred  to  the  Superior 
Court  for  Walla  Walla  County  a  series  of  questions  upon 
which  we  desired  to  have  evidence  taken.  Findings  of  fact 
were  entered  by  the  Superior  Court  on  September  23,  1974. 
These  findings  indicated  petitioner,  who  is  now  31,  is  psy- 
chologically addicted  to  use  of  narcotic  drugs  and  has  been 
since  he  was  18,  and  that  he  was  both  physically  and  psy- 
chologically addicted  at  the  times  he  committed  the  crimes 
for  which  he  was  imprisoned.  His  current  incarceration 
resulted  from  th«  armed  robbery  of  a  narcotics  dealer  to 
obtain  drugs.  He  is  continuing  to  take  drugs  on  a  weekly  to 
bi-weekly  basis  while  at  the  penitentiary  and  these  drugs 
include,  occasionally,  heroin.  Although  the  diminished  dos- 
age he  receives  has  cured  his  physical  dependence,  his  psy- 
chological dependence  on  drugs  remains.  At  the  time  the 
trial  court  heard  testimony,  there  was  no  drug  counseling 
available  at  the  penitentiary,  nor  was  there  any  form  of 
therapy  available  at  the  institution  to  cure  or  rehabilitate 
narcotic  addicts.  The  court  found  the  State  had  the  power 
and  duty  to  provide  petitioner  treatment  under  RCW 
69.32.090,  which  should  be  administered  to  him  in  light  of 
his  psychological  addiction  to  drugs. 

In  response  to  the  court's  order,  petitioner  received  a 


9278 


Dec.  1975]  BRESOLIN  v.  MORRIS  243 

86  Wn.2d  241,  543  P.2d  325 

letter  on  March  13,  1975,  from  respondent's  legal  counsel 
informing  him  that  three  alternatives  were  available:  (1) 
transfer  to  the  Washington  State  Reformatory  to  be 
screened  for  entry  into  the  drug  treatment  program  there 
which  did  not  include  an  isolated  treatment  program;  (2) 
remain  at  the  Washington  State  Penitentiary  and  continue 
to  participate  in  the  social  therapy  program  which  was  not 
a  drug-oriented  treatment  program  and  did  not  include 
an  isolated  treatment  program;  or  (3)  wait  for  establish- 
ment of  a  drug  treatment  program  at  the  Washington  State 
Penitentiary  which  was  then  in  the  process  of  being  funded 
for  two  counselors. 

Petitioner,  after  receipt  of  this  letter,  moved  to  hold  re- 
spondent in  contempt  or  to  have  the  court  order  him  trans- 
ferred to  an  existing  drug  treatment  program  at  Western 
State  Hospital.  Petitioner's  motion  was  withdrawn  on  May 
29,  1975,  as  he  believed  he  was  then  eligible  for  the  pro- 
gram at  Western  State.  Following  respondent's  refusal  to 
transfer  him  there,  petitioner  again  moved  for  a  writ  of 
mandamus  ordering  his  transfer  to  the  Western  State  Hos- 
pital program,  or,  if  this  was  denied,  an  order  finding  re- 
spondent in  contempt.  It  is  this  last  motion  that  is  before  us 
at  this  time. 

Respondent  first  contends  that  the  court's  order  of  De- 
cember 2,  1974,  focused  too  closely  on  certain  language  of 
RCW  69.32.090  and  that  when  this  statute  is  considered  in 
the  total  context  of  RCW  69.32  and  respondent's  overall 
responsibility  in  administering  this  state's  prisons,  it  does 
not  require  isolation  for  treatment.  Respondent  argues  he 
has  therefore  adequately  complied  with  the  order  of  De- 
cember 2,  1974,  by  making  available  the  alternatives  set 
forth  in  the  March  13,  1975,  letter. 

The  applicable  statutes  provide: 

69.32.070  Suspected  addicts  —  Treatment  —  Isolation. 
State,  county  and  municipal  health  officers,  or  their  au- 
thorized deputies,  who  are  licensed  physicians,  within 
their  respective  jurisdictions  are  hereby  directed  and  em- 
powered, when  in  their  judgment  it  is  necessary  to  pro- 
tect the  public  safety,  health  and  morals,  to  make  exami- 


9279 


244  BRESOLIN  V,  MORRIS  [Dec.  1975 

86  Wn.2d  241,  543  P,2d  325 

nations  of  persons  reasonably  suspected  of  being  habitual 
users  of  any  narcotic  drug  and  to  require  persons  whom 
they  have  reason  to  suspect  to  be  habitual  users  of  any 
narcotic  drug  to  report  for  treatment  to  an  approved 
physician,  and  continue  treatment  at  his  own  expense 
until  cured,  or  to  submit  to  treatment,  provided  at  public 
expense,  until  cured,  and  also  to  isolate  or  quarantine 
habitual  users  of  such  narcotic  drugs  or  their  derivatives. 
Such  officer,  deputy  or  physician  shall  make  a  written 
finding  that  such  person  is  an  habitual  user  of  a  narcotic 
drug,  which  finding  shall  be  filed  in  his  office:  Provided, 
That  such  habitual  users  shall  not  be  isolated  or  quaran- 
tined until  the  state  board  of  health  shall  first,  by  general 
regulation,  detennine  that  the  quarantine  or  isolation  of 
all  habitual  users  is  necessaiy:  Provided,  jurther,  That 
any  persons  suspected  as  herein  set  forth  may  have  pres- 
ent at  the  time  of  his  examination,  a  physician  of  his  or 
her  own  choosing:  And  provided  further,  That  the  sus- 
pected person  shall  be  informed  by  the  health  officer  of 
his  or  her  rights  under  this  chapter. 

69.32.090  Examination  and  treatment  of  convicted 
persons.  Any  person  convicted  under  the  provisions  of 
RCW  69.32.080  or  any  person  who  shall  be  confined  or 
imprisoned  in  any  state,  county,  or  city  prison  in  the 
state  and  who  may  be  reasonably  suspected  by  the  health 
officer  of  being  a  narcotic  addict  shall  be  examined  for 
and  if  foimd  to  be  an  habitual  user  of  said  drugs,  or  any 
of  them,  shall  be  treated  therefor  at  public  expense  by 
the  health  officers  or  their  deputies  who  are  licensed 
physicians.  The  prison  authorities  of  any  state,  county,  or 
city  prison  are  directed  to  make  available  to  the  health 
authorities,  such  portion  of  any  state,  county,  or  city 
prison  as  may  be  necessary  for  a  clinic  or  hospital 
wherein  all  persons  who  may  be  confined  or  imprisoned 
in  any  such  prison,  and  who  are  habitual  users  of  said 
drugs  or  their  derivatives,  may  be  isolated  and  treated  at 
public  expense  until  cured,  or,  in  lieu  of  such  isolation 
any  such  person  may,  in  the  discretion  of  the  board  of 
health,  be  required  to  report  for  treatment  to  a  hcensed 
physician,  or  submit  to  treatment  provided  at  public  ex- 
pense, as  provided  in  RCW  69.32.070.  Nothing  herein  con- 
tained shall  be  constraed  to  interfere  with  the  service  of 
any  sentence  imposed  by  a  court  as  a  punishment  for  the 
commission  of  crime:  Provided,  That  licensed  physicians 
treating  any  narcotic  addict  shall,  upon  beginning  said 


9280 


.^,.  1975]  BRESOLIN  V.  MORRIS  '  245 

86  Wn.2d  241,  543  P.2d  325 

treatment,  immediately  report  the  same  to  the  health 
ofncer  in  charge  in  that  jurisdiction,  such  report  to  be  on 
fomis  prescribed  by  the  state  board  of  health,  and  such 
report  shall  give  the  name  of  the  person  receiving  such 
treatment  and  such  other  information  as  shall  be  deemed 
necessary  by  the  state  board  of  health. 

[IJ  The  order  of  December  2,  1974,  was  a  final  order 
entered  in  a  different  cause.  Supreme  Court  No.  42966.  Re- 
spondent may  only  attack  that  order  in  a  collateral  pro- 
ceeding if  it  is  absolutely  void,  not  merely  erroneous.  State 
ex  rel  Ewing  v.  Morris,  120  Wash.  146,  207  P.  18  (1922); 
State  V.  Lew,  25  Wn.2d  854,  172  P.2d  289  (1946);  State  ex 
rel.  Superior  Court  v.  Sperry,  79  Wn.2d  69,  483  P.2d  608 
(1971).  A  judgment  is  void  only  where  the  court  lacks 
jurisdiction  of  the  parties  or  the  subject  matter  or  lacks  the 
inherent  power  to  enter  the  particular  order  involved.  Dike 
V.  Dike,  75  Wn.2d  1,  448  P.2d  490  (1968) ;  see  State  v.  Alter, 
67  Wn.2d  111,  406  P.2d  765  (1965);  cf.  Bergren  v.  Adams 
County,  8  Wn.  App.  853,  509  P.2d  661  (1973);  Lange  v. 
Johnson,  295  Minn.  320,  204  N.W.2d  205  (1973).  There  is  no 
such  defect  here  and  respondent's  challenge  to  the  order 
must  fail  for  that  reason. 

The  large  number  of  persons  affected  by  the  issues  raised 
here,  however,  makes  it  imperative  for  this  court  to  dispose 
of  this  case  on  the  merits  of  the  arguments  as  well.  Testi- 
mony of  respondent's  expert  witness  established  that,  in  his 
opinion,  45  to  50  percent  of  the  prison  population  at  the 
Washington  State  Penitentiary  were  convicted  of  crimes 
where  drugs  were  either  a  primary  or  secondary  factor. 

[2]  At  the  outset  we  take  particular  note  of  the  legislative 
command  in  RCW  72.08.101  that  "[t]he  director  of  institu- 
tions shall  provide  for  the  establishment  of  programs  and 
procedures  for  convicted  persons  at  the  state  penitentiary, 
which  are  designed  to  be  corrective,  rehabilitative  and  re- 
formative of  the  undesirable  behavior  problems  of  such  per- 
sons, as  distinguished  from  programs  and  procedures  essen- 
tially penal  in  nature."  This  directive  reinforces  the  specific 
statutory  provisions  governing  the  treatment  of  addicted 


9281 


246  BRESOLIN  V.  MORRIS  [Dec.  197r 

86  Wn.2cl  241,  543  P.2d  325 

inmates.  RCW  69.32.090  does  not  require  the  isolation  of  all 
persons  addicted  to  narcotic  drugs.  The  health  authorities 
are  given  responsibility  under  RCW  69.32.070  and  .090  to 
require  narcotic  addicts  to  report  for  treatment  at  pablic 
expense,  both  within  and  without  the  prison  system.  Nar- 
cotic addicts  not  already  incarcerated  may  not  be  isolated 
until  the  board  of  health,  by  general  regulation,  determines 
isolation  of  all  habitual  users  is  necessary.  The  vital  distinc- 
tion, however,  is  that  for  those  addicts  who  are  conjfined  in 
prison,  the  board  of  health  need  not  determine  by  general 
regulation  that  isolation  of  all  narcotic  users  is  necessary 
before  isolating  and  treating  confined  addicts.  Prison  au- 
thorities must  provide  health  authorities  with  facilities 
where  imprisoned  addicts  may  be  isolated,  if  needed,  and 
treated.  While  under  RCW  69.32.090  health  authorities  may 
require  treatment  of  imprisoned  addicts  in  the  same  man- 
ner as  those  outside  prison  are  treated,  the  option  of  isola- 
tion must  be  provided.  The  current  prison  programs  do  not 
comply  with  the  plain  language  of  the  statute,  its  spirit  or 
the  order  of  the  court. 

Testimony  at  the  fact-finding  hearing  provided  some  in- 
sight into  the  need  for  the  two  different  modes  of  treatment 
set  out  in  the  statute.  At  that  hearing,  Lyle  Quasim,  mental 
health  administrator  for  the  Department  of  Social  and 
Health  Services,  Office  of  Mental  Health,  in  charge  of  drug 
abuse  programs  in  adult  corrections,  testified  as  one  of  the 
witnesses.  Quasim  stressed  the  need  for  two  types  of  treat- 
ment: first,  isolated  therapeutic  communities  both  inside 
and  outside  the  penitentiary  serving  35  to  40  people  who 
have  an  extensive  drug  history;  second,  some  program  that 
is  applicable  to  the  penitentiary  population  similarly  af- 
flicted with  drug  problems.  When  asked  why  such  pro- 
grams were  not  available,  Quasim  stated  the  only  reason 
was  that  the  money  was  not  provided.  He  indicated, 
"[t]here  were  herculean  efforts  made  to  encumber  money  at 
the  levels  that  I  exist  at.  We  put  in  a  supplemental  budget 
request.  We  dealt  with  federal  funding  sources  ...  I 
was    not    successful    in    developing    additional    funding." 


9282 


Dec.  1975J  BRESOLIN  v.  MORRIS  247 

86  Wn.2d  241,  543  P.2d  325 

Quasim  estimated  the  amount  of  funding  needed  to  support 
the  two-level  program  at  the  Washington  State  Peniten- 
tiary in  1974  was  $195,000  a  year;  $125,000  for  the  isolated 
therapeutic  community  and  $70,000  for  the  general  pro- 
gram. 

Both  staff  and  residents  of  the  Washington  State  Peni- 
tentiary expressed  concern  that  if  the  programs  instituted 
were  superficial,  people  would  be  sent  to  the  penitentiary 
and  other  institutions  for  programs  that  provided  the  illu- 
sion of  help,  but  could  not  in  fact  help.  Quasim  saw  the 
institutional  programs  as  no  panacea,  but  necessary  to  the 
care  of  addiction,  in  the  same  sense  as  kindergarten  is  a 
necessary  first  step  for  a  college  graduate.  He  stressed  the 
need  for  continuing  programs  after  release  into  the  commu- 
nity. 

Affidavits  oji  file  by  the  two  counselors  now  employed  in 
the  Washington  State  Penitentiary  drug  program  instituted 
since  the  1974  hearing,  indicate  that  although  the  program 
consists  of  educational,  individual  and  group  counseling 
and  placement  service  for  those  on  parole,  it  is  not  effec- 
tive. The  reason  they  gave  for  its  ineffectiveness  was  that 
residents  who  participated  in  it  had  to  return  to  the  general 
prison  population  where  the  availability  of  drugs  and  the 
existence  of  a  drug  subculture  nullify  any  gains.  The  resi- 
dents of  the  penitentiary  voted  not  to  endorse  the  existing 
drug  program  because  they  would  "rather  have  a  real  drug 
program  than  an  educational  program." 

Petitioner  is  an  adopted  child  who  adjusted  well  to 
school  and  community  and  had  no  history  of  law  enforce- 
ment contacts  until  after  the  death  of  his  adoptive  father  in 
an  industrial  accident  when  Bresolin  was  15.  At  age  16,  he 
began  drinking  cough  syrup  containing  codeine  and  later 
experimented  with  marijuana,  heroin  and  amphetamines. 
He  became  addicted  to  drugs  by  age  18  and  at  20  was 
convicted  of  burglary  in  the  second  degree  in  December 
1963  after  participation  in  the  burglary  of  a  drugstore  to 
obtain  narcotics.  His  presentence  report  at  that  time  indi- 
cated a  poor  prognosis  for  future  adjustment  due  to  his 


9283 


248  BRESOLIN  V.  MORRIS  [Dec.  1975 

86  Wn.2d  241,  543  P.2d  325 

drug  addiction.  There  v/ere,  however,  no  drug  treatment 
programs  available,  either  inside  or  outside  the  institution, 
and  he  was  placed  on  probation.  During  this  time  he  con- 
tinued his  involvement  with  use  and  sale  of  narcotics  in 
both  the  Tacoma  and  Portland  areas. 

Bresolin  was  again  convicted  and  sentenced  in  Portland 
in  1964  for  attempting  to  obtain  narcotics  by  forged  pre- 
scription. By  that  time  he  was  using  heroin  regularly  and. 
when  it  could  not  be  obtained,  he  consumed  as  many  as  20 
bottles  a  day  of  cough  medicine  containing  codeine.  His 
deferred  sentence  on  the  Washington  burglary  conviction 
was  revoked  in  1965  and  petitioner  was  initially  sent  to  the 
Washington  State  Reformatory,  but  was  transferred  later 
to  the  Washington  State  Penitentiary  because  of  his  exten- 
sive drug  involvement.  There  his  coimselor  reported  he  was 
skeptical  Bresolin  would  have  the  willpower  to  overcome 
his  drug  habit  when  released.  Once  again,  however,  there 
was  no  drug  counseling  or  treatment  program  to  help  him 
overcome  his  addiction  at  any  institution  where  petitioner 
had  been  confined. 

He  was  released  on  June  15,  1971,  and  for  a  period  of 
time  was  active  on  a  methadone  maintenance  program.  He 
was  dropped  in  April  1972  for  passing  marijuana  to  another 
participant.  He  then  became  actively  involved  in  the  sale 
and  use  of  heroin  and  shortly  afterward  was  charged  with 
grand  larceny  in  King  County  and  arrested  on  federal 
charges  for  sale  of  heroin  as  well  as  a  state  charge  for 
robbery  of  a  drug  dealer.  Bresolin  was  sentenced  to  the 
Washington  State  Penitentiary  on  the  state  drug  charges 
and  received  a  deferred  federal  sentence  as  well.  On  his 
return  to  the  Washington  State  Penitentiary,  his  adjust- 
ment potential  was  evaluated.  The  penitentiary  staff  noted, 
"he  has  the  potential  to  become  a  productive  member  of 
our  society  if  and  only  when  he  can  stay  off  drugs.  It  is 
evident  that  Bradley  can't  accomplish  tliis  alone." 

The  State  of  Washington,  by  its  failure  to  fund  and  es- 
tablish legislatively  mandated  drug  treatment  programs  irx 
the  state's  prisons^  has  constructed  a  m^aze  for  Bresolin 


9284 


Dec.  1975]  BRESOLIN  v.  MORRIS  249 

86  Wn.2d  241,  543  P.2d  325 

from  which  there  is  no  escape.  He  is  psychologically  and 
has  been  physiologically  addicted  to  drugs.  All  his  crimes 
have  been  committed  either  to  obtain  drugs  or  money  with 
which  to  purchase  drugs.  Due  to  lack  of  funding,  no  pro- 
grams have  been  provided  to  help  him  cure  this  addiction, 
although  the  people  of  this  state  over  50  years  ago,  in  Laws 
of  1923,  ch.  47,  §  7  (now  RCW  69.32.090),  expressed  a 
mandate  that  such  programs  were  necessary  and  must  be 
provided.  Use  of  drugs  has  resulted  in  confinement  in  insti- 
tutions where  his  addiction  is  encouraged  by  the  availabil- 
ity of  narcotics.  He  is  unable  to  escape  either  their  physical 
presence  or  the  prison  drug  subculture  that  encourages 
their  use.  On  his  release  at  the  end  of  his  term,  nothing  will 
have  been  accomplished  by  confinement  except  to  confirm 
the  physical  and  psychological  needs  which  guarantee,  once 
more,  his  involvement  in  criminal  acts,  followed  by  more 
confinement. 

The  Washington  prison  system  has  been  the  object  of 
care  and  attention  by  successive  Governors,  legislatures, 
and  the  people  of  this  state.  Many  innovative  programs 
have  been  instituted  to  alleviate  improper  conditions  in  our 
prisons.  And  yet,  even  with  our  history  of  concern  for 
prison  conditions,  there  still  exist  in  this  state's  prison  sys- 
tem conditions  which  destroy  the  ability  of  drug-addicted 
inmates  to  prevent  a  repetition  of  the  offenses  which  led  to 
their  incarceration.  It  may  not  be  possible  to  effectuate 
rehabilitation  for  a  particular  inmate  within  a  prison  set- 
ting. The  key  to  rehabilitation  is  as  often  found  in  the 
particular  personality  of  the  offender  as  it  is  in  the  availa- 
bility of  affirmative  rehabilitative  programs.  On  the  other 
hand,  there  can  be  no  justification  for  failure  to  follow  the 
statutory  mandate  to  provide  the  inmate  the  opportunity  to 
participate  in  a  rehabilitative  program,  focused  on  his  drug 
addiction. 

[3]  The  Secretary  has  failed  to  comply  with  his  statu- 
tory duties  as  well  as  the  order  of  this  court.  Petitioner 
asks  that  the  Secretary  be  held  in  contempt  for  this  failure. 
Many  alternatives  are  available  to  enforce  our  order.  If  the 


9285 


250  BRESOLIN  V.  MORRIS  [Dec.  1975 

86  Wn.2d  241,  543  P.2d  325 

Secretary's  failure  is  willful,  he  could  be  found  guilty  of 
criminal  contempt  with  its  attendant  sanctions.  RCW 
9.23.010(4)  and  (5).  He  could  be  held  guilty  of  civil  con- 
tempt and  a  fine  imposed  for  failure  to  comply,  regardless 
of  good  faith.  RCW  7.20.010(5),  7.20.020.  Landman  v.  Roys- 
ter,  354  F.  Supp.  1292  (E.D.  Va.  1973).  Alternatively,  we 
could  release  or  transfer  petitioner.  In  Invnates  oj  Suffolk 
County  Jail  v.  Eisenstadt,  494  F.2d  1196,  1198  (Ist  Cir. 
1974) ,  the  court  upheld  a  district  court  order  requiring  that 
the  State  Commissioner  of  Corrections  transfer  jail  inmates 
from  facilities  which  were  deficient.  The  court  noted  that 
the  commissioner,  in  resisting  the  transfer  order,  "underes- 
timates his  own  statutory  duties  respecting  the  Jail  and  its 
inmates  .  .  ."  See  Commonwealth  ex  rel.  Bryant  v.  Hen- 
drick,  444  Pa.  83,  280  A.2d  110  (1971);  Rhem  v.  Malcolm, 
507  F.2d  333,  340-42  (2d  Cir.  1974).  In  Hamilton  v.  Love, 
328  F.  Supp.  1182,  1194  (E.D.  Ark.  1971),  the  court 
said  *"'[i]f  the  state  cannot  obtain  the  resources  to  detain 
persons  awaiting  trial  in  accordance  with  minimum  consti- 
tutional standards,  then  the  state  simply  will  not  be  per- 
mitted to  detain  such  persons." 

[4]  At  this  time  we  decline  to  order  the  transfer  of 
petitioner  to  the  drug  treatment  program  at  Western  State 
Hospital.  That  program  is  designed  only  for  persons  who 
will  be  released  into  society  within  a  short  time  after 
commencing  treatment,  and,  as  respondent  notes,  is  not 
designed  to  treat  an  individual  and  then  return  him  to  an 
institution.  Under  the  terms  of  petitioner's  sentence,  the 
length  of  his  incarceration  is  subject  to  adjustment  only  by 
the  Board  of  Prison  Terms  and  Paroles.  He  likely  will  not 
be  available  for  release  within  the  short  time  contemplated 
by  the  Western  State  program.  However,  at  the  time  when 
it  appears  to  the  administrative  officials  that  petitioner  sat- 
isfies all  the  criteria  for  admission  into  the  Western  State 
treatment  program,  he  may  be  transferred  there.  We  also 
do  not  rule  on  petitioner's  constitutional  claims  inasmuch 
as  the  relief  he  seeks  is  available  under  existing  statutes. 
Kirkland  v.  Steen,  68  Wn.2d  804,  416  P.2d  80  (1966) . 


9286 


.^.  ..,-y,  BRESOLIN  V.  MORRIS  251 

86  Wn.2d  241,  543  P.2d  325 

:-\.(  ed  with  similar  problems  of  even  greater  magnitude 
-r.in  ours,  the  court  in  Holt  v.  Sarver,  309  F.  Supp.  362,  383 
K.D.  Ark.  1970),  noted  "[i]t  is  obvious  that  money  will  be 
riHiuired  to  meet  the    .     .     .    deficiencies  of  the  institution, 
jrxi  t'lere  is  no  reason  to  believe  that,  subject  to  the  overall 
.••.nancial  needs  and  requirements  of  the  State,  the  Legisla- 
ture will  be  unwilling  to  appropriate  necessary  funds."  We 
share  this  optimism  despite  earlier  legislative  refusals  to 
fund  these  programs  and  believe  respondent  should  use  the 
expertise  available  to  him  to  tell  this  court,  and  through  it 
rhe  people  of  this  state,  how  he  plans  to  remedy  the  exist- 
ing failure  to  abide  by  legislative  mandates.  To  comply 
with  our  order  we  assume  additional  funding  will  be  re- 
quired and  that  requests  for  such  funds  will  be  directed  to 
the  legislature.  Reports  shall  be  made  to  this  court  monthly 
following  the  issuance  of  this  order/opinion,  describing  re- 
spondent's progress,  his  plans,  his  efforts  to  secure  funding, 
and  the  implementation  of  his  plans.  Petitioner's  request  to 
hold  respondent  in  contempt  will  be  continued  pending  our 
examination  of  his  efforts  to  comply  with  this  order  and  the 
order  of  December  2,  1974. 

Stafford,  C.J.,  and  Finley,  Brachtenbach,  and  Horo- 
witz, JJ.,  concur. 


9287 
Jan.  1977  BRESOLIN  v.  MORRIS  lg7 

construction  deprives  them  of  half  their  efficacy,  and 
leads  to  gradual  depreciation  of  the  right,  as  if  it  con- 
sisted more  in  sound  than  in  substance.  It  is  the  duty  of 
courts  to  be  watchful  for  the  constitutional  rights  of  the 
citizen,  and  against  any  stealthy  encroachments  thereon. 

Since  the  search  and  seizure  were  without  valid  warrant, 
and  do  not  come  within  a  recognized  exception,  the  motion 
to  suppress  should  have  been  granted.  Mapp  v.  Ohio,  367 
U.S.  643,  6  L.  Ed.  2d  1081,  81  S.  Ct.  1684,  84  A.L.R.2d  933 
(1961);  Weeks  v.  United  States,  232  U.S.  383,  58  L.  Ed. 
652,  34  S.  Ct.  341  (1914). 

The  judgment  should  be  reversed  and  a  new  trial 
granted. 

RosELLiNi  and  Uttkr,  JJ.,  concur  with  Horowitz,  J. 


[No.  43846.    En  Banc.    January  7,  1977.] 

Bradley  Lave  Bresolin,  Petitioner,  v.  Charles 

Morris,  as  Secretary  of  the  Department 

of  Social  and  Health  Services, 

Respondent. 

[1]  Appeal  and  Error — Decisions  Reviewable — Moot  Ques- 
tions-Tissues of  Public  Concern.  An  otherwise  moot  case  will 
be  determined  by  the  Supreme  Court  when  the  constitutional  issues 
involved  are  of  great  public  concern  and  will  continue  to  recur  in 
subsequent  cases,  and  the  issues  and  arguments  have  been  ade- 
quately presented  to  the  court. 

[2]  Prisons — Rehabilitation — Right  of  Prisoners.  Rehabilitation 
of  convicted  persons  is  a  legitimate  governmental  interest  and  insti- 
tutional goal  but  it  is  not  an  enforceable  right  of  institutionalized 
prisoners. 

[3]  Prisons— Medical  Treatment— Duty  To  Provide— Burden 
of  Proof.  A  prisoner  seeking  medical  treatment  or  care  in  a  penal 


92-465  O  -  77  -  46 


9288 

163  BRESOLIN  V.  MORRIS  Jan.  1977 

institution  has  the  burden  of  showing  that  his  condition  is  amenable 
to  treatment  and  that  the  appropriate  treatment  is  available  to 
prison  officials. 

[4]  Prisons — Medical  Treatment — Drug  Rehabilitation.  In  the 

absence  of  a  showing  that  there  exists  and  is  available  to  prison 
officials  an  accepted  method  of  treating  drug  addiction  in  a  prison 
environment,  there  is  no  viblation  of  prisoners'  constitutional  rights 
in  the  failure  of  the  state  penitentiary  to  provide  more  extended 
drug  rehabilitation  programs  within  the  institution. 

Utter,  Hunter,  and  Horowitz,  JJ.,  dissent  by  separate  opinions. 

Supreme  Court:  Original  action  to  compel  the  Secre- 
tary of  the  Department  of  Social  and  Health  Services  to 
establish  and  maintain  a  drug  rehabilitation  program  at  the 
state  penitentiary.  Mandamus  is  denied  on  the  basis  that 
there  is  no  enforceable  right  of  a  prisoner  to  be  rehabili- 
tated and  that  the  present  record  shows  no  available 
method  for  medical  treatment  of  drug  addiction  within  a 
prison  environment. 

Allen  Ressler  and  John  G.  Ziegler,  for  petitioner. 

Slade  Gorton,  Attorney  General,  and  William  C.  Collins, 
Assistant,  for  respondent. 

RosELLiNi,  J. — An  inmate  of  the  state's  correctional 
institution  at  Walla  Walla  brought  this  action  seeking 
mandamus  to  compel  the  Secretary  of  the  Department  of 
Social  and  Health  Services  to  establish  and  maintain  a  drug 
rehabilitation  program  at  the  institution.  In  a  previous 
hearing,  we  ordered  the  secretary  to  take  steps  to  secure 
financing  for  isolated  facilities  for  drug  addicts,  which  were 
required  under  RCW  69.32.090,  and  to  report  to  the  court. 
Bresolin  v.  Morris,  86  Wn.2d  241,  543  P.2d  325  (1975). 

After  three  reports  had  been  rendered,  the  legislature 
enacted  Laws  of  1975,  2d  Ex.  Sess.,  ch.  103,  which  repealed 
RCW  69.32.090,  and  made  the  establishment  of  a  drug 
treatment  and  rehabilitation  program  discretionary  rather 
than  mandatory. 


9289 
Jan.  1977  BRESOLIN  v.  MORRIS  j^gg 

[1]  In  the  meantime,  we  are  advised  that  the  petitioner 
has,  in  spite  of  his  inehgibility,  been  transferred  to  Western 
State  Hospital  where  he  is  enrolled  in  that  institution's 
drug  offender  program.  Since  this  was  one  of  the  alternative 
forms  of  relief  which  he  sought  in  the  original  action,  the 
case  would  appear  to  be  moot.  However,  we  are  asked  to 
consider  the  constitutional  questions  which  were  passed  in 
the  original  opinion.  The  question  of  the  constitutional 
duty  of  prison  officials  with  respect  to  drug  rehabilitation, 
we  are  told,  is  one  of  great  public  concern  which  will  con- 
tinue to  recur  in  similar  suits  until  the  court  answers  the 
contentions  raised. 

Being  assured  by  the  parties  that  this  case  is  as  well  pre- 
pared and  argued  as  any  that  is  likely  to  come  before  the 
court  in  the  near  future,  we  will  dispose  of  these  questions. 

The  petitioner  contends  that  a  prisoner  has  a  right  to 
treatment  of  his  psychological  dependence  on  drugs,  for 
rehabilitative  purposes,  and  that  the  denial  of  this  right 
constitutes  cruel  and  unusual  punishment  (forbidden  by 
the  eighth  amendment  to  the  United  States  Constitution 
and  article  1,  section  14,  of  the  Washington  State  Constitu- 
tion) as  well  as  a  deprivation  of  his  liberty  without  due 
process  of  law  and  a  denial  of  equal  protection  of  the  law. 

The  authorities  cited  do  not  establish  these  contentions. 
None  of  them  holds  that  a  prisoner  in  a  penal  institution 
has  a  right  to  rehabilitation,  and  none  holds  that  the  failure 
to  rehabilitate  amounts  to  cruel  and  unusual  punishment. 

It  is  established  that  prisoners  do  not  lose  all  of  their 
constitutional  rights  and  that  the  due  process  and  equal 
protection  clauses  of  the  Fourteenth  Amendment  follow 
them 'into  prison  and  protect  them  there.  Washington  v. 
Lee,  263  F.  Supp.  327,  331  (M.D.  Ala.  1966),  affd  and 
approved,  390  U.S.  333,  19  L.  Ed.  2d  1212,  88  S.  Ct.  994 
(1968);  accord,  Smith  v.  Schneckloth,  414  F.2d  680  (9th 
Cir.  1969). 

As  the  federal  district  court  in  the  latter  case  said,  how- 
ever, it  is  also  settled  that  correctional  authorities  have 
wide  discretion  in  matters  of  internal  administration  and 


9290 
170  BRESOLIN  V.  MORRIS  Jan.  1977 

that  reasonable  action  within  the  scope  of  this  discretion 
does  not  violate  a  prisoner's  constitutional  rights. 

[2]  The  petitioner  cites  Procunier  v.  Martinez,  416  U.S. 
396,  404-06,  40  L.  Ed.  2d  224,  94  S.  Ct.  1800  (1974),  for  the 
proposition  that  rehabilitation  is  a  basic  penal  goal,  and 
reasons  that  because  it  is  a  goal,  punishment  is  cruel  and 
unusual  if  it  fails  to  substantially  further  such  rehabilita- 
tion. The  United  States  Supreme  Court  in  Martinez  was 
concerned  with  the  censorship  of  prisoners'  mail  in  a  state 
institution.  Before  deciding  that  such  prisoners  have  a  right 
of  free  speech  and  a  right  of  access  to  the  courts,  both  of 
which  are  subject  to  reasonable  restrictions  in  furtherance 
of  legitimate  governmental  interests,  the  court  summarized 
the  role  of  courts  in  solving  prison  administration  prob- 
lems. While  the  language  was  directed  primarily  to  the 
question  of  the  intervention  of  federal  courts  in  state  penal 
matters,  its  import  is  equally  valid  with  respect  to  the  role 
of  state  courts  in  such  matters,  if  it  is  borne  in  mind  that 
such  courts  have  also  the  duty  of  protecting  statutory  rights 
of  prisoners.* 

The  United  States  Supreme  Court  said: 

Traditionally,  federal  courts  have  adopted  a  broad 
hands-off  attitude  toward  problems  of  prison  adminis- 
tration. In  part  this  policy  is  the  product  of  various  limi- 
tations on  the  scope  of  federal  review  of  conditions  in 
state  penal  institutions.  More  fundamentally,  this  atti- 
tude springs  from  complementary  perceptions  about  the 
nature  of  the  problems  and  the  efficacy  of  judicial  inter- 
vention. Prison  administrators  are  responsible  for  main- 
taining internal  order  and  discipline,  for  securing  their 
institutions  against  unauthorized  access  or  escape,  and 
for  rehabilitating,  to  the  extent  that  human  nature  and 
inadequate  resources  allow,  the  inmates  placed  in  their 
custody.  The  Herculean  obstacles  to  effective  discharge 
of  these  duties  are  too  apparent  to  warrant  explication. 
Suffice  it  to  say  that  the  problems  of  prisons  in  America 
are  complex  and  intractable,  and,  more  to  the  point,  they 
are  not  readily  susceptible  of  resolution  by  decree.  Most 

^See  Breaolin  v.  Morris,  86  Wn.2d  241,  543  P.2d  325  (1975). 


9291 
Jan.  1977  BRESOLIN  v.  MORRIS  171 


require  expertise,  comprehensive  planning,  and  the  com- 
mitment of  resources,  all  of  which  are  peculiarly  within 
the  province  of  the  legislative  and  executive  branches  of 
government.  For  all  of  those  reason,  courts  are  ill 
equipped  to  deal  with  the  increasingly  urgent  problems 
of  prison  administration  ahd  reform.  Judicial  recognition 
of  that  fact  reflects  no  more  than  a  healthy  sense  of  real- 
ism. Moreover,  where  state  penal  institutions  are 
involved,  federal  courts  have  a  further  reason  for  defer- 
ence to  the  appropriate  prison  authorities. 

But  a  policy  of  judicial  restraint  cannot  encompass  any 
failure  to  take  cognizance  of  valid  constitutional  claims 
whether  arising  in  a  federal  or  state  institution.  When  a 
prison  regulation  or  practice  offends  a  fundamental  con- 
stitutional guarantee,  federal  courts  will  discharge  their 
duty  to  protect  constitutional  rights. 

(Footnotes  omitted.) 

The  court  in  Martinez  recognized  that  rehabilitation  is  a 
governmental  interest.  Procunier  v.  Martinez,  supra  at 
412.  It  did  not  characterize  it  as  a  prisoner's  right.  The  leg- 
islature in  this  state  has  also  adopted  rehabilitation  as  a 
penal  goal.  RCW  72.08.101.2  But  to  say  that  the  govern- 
ment has  an  interest  in  rehabilitation  and  that  this  is  a 
legitimate  institutional  goal  is  one  thing.  To  say  that  a 
prisoner  has  an  enforceable  right  to  such  rehabilitation  is 
another.  The  United  States  Supreme  Court  has  spoken  to 
that  subject  in  a  case  not  cited  by  the  parties  to  this  action 
but  which  we  find  to  be  directly  in  point  and  controlling. 

That  court,  in  Marshall  v.  United  States,  414  U.S.  417, 
421,  38  L.  Ed.  2d  618,  94  S.  Ct.  700  (1974),  affirmed  a  hold- 
ing of  the  Court  of  Appeals  {Marshall  v.  Parker,  470  F.2d 
34  (9th  Cir.  1972))  that  "there  is  no  'fundamental  right'  to 
rehabilitation  ...  at  public  expense  after  conviction  of  a 
crime".  In  that  case,  the  petitioner  claimed  that  the  Nar- 
cotic  Addict  Rehabilitation  Act  of  1966,  18  U.S.C.  §§  4251- 

^"The  director  of  institutions  shall  provide  for  the  establishment  of  programs 
and  procedures  for  convicted  persons  at  the  state  penitentiary,  which  are  designed 
to  be  corrective,  rehabilitative  and  reformative  of  the  undesirable  behavior  prob- 
lems of  such  persons,  as  distinguished  from  programs  and  procedures  essentially 
penal  in  nature."  RCW  72.08.101. 


9292 
172  BRESOLIN  V.  MORRIS  Jan.  1977 

4255,  denied  him  due  process  and  equal  protection  of  the 
laws  because  it  excluded  persons  in  his  situation  from  its 
benefits.  Noting  that  no  suspect  classification  was  involved, 
the  high  court  said  that  the  correct  standard  to  be  applied 
was  whether  the  statutory  classification  bore  some  rele- 
vance to  the  purpose  for  which  the  classification  was  made. 
The  Congress,  the  court  said,  could  reasonably  find  that 
some  types  of  offenders  were  more  likely  to  be  susceptible 
and  suitable  to  treatment  than  others,  and  could  justifiably 
make  classifications  upon  this  basis. 

There  is  no  contention  here  that  the  drug  treatment  pro- 
gram at  the  state  correctional  institution  discriminates 
among  prisoners;  rather,  the  factual  allegation  of  the  peti- 
tioner is  that  it  is  inadequate.  Certainly,  if  a  legislative 
body  may  enact  a  statute  which  discriminates  among  pris- 
oners (upon  a  nonsuspect  basis)  in  providing  drug  treat- 
ment, and  may  deny  such  treatment  to  some  prisoners,  it 
may  constitutionally  decide  that  no  drug  rehabilitation 
program  shall  be  required  at  all.^ 

[3,  4]  The  petitioner  relies  upon  federal  cases  which 
have  held  that  a  prisoner  is  entitled  to  essential  or  reason- 
able medical  care.  We  have  no  quarrel  with  this  concept; 
however,  the  cases  generally  recognize  that  the  burden  is  on 
the  complainant  to  show  that  his  disease  or  condition  is 
amenable  to  medical  treatment.  For  example,  in  Smith  u. 
Schneckloth,  supra,  it  was  held  that  under  the  federal  Civil 
Rights  Act,  42  U.S.C.  1983,  a  complaint  can  be  maintained 
in  federal  court  if  it  alleges  that  a  state  prisoner  suff*ering 
an  acute  physical  condition  and  having  urgent  need  for 
medical  care  was  refused  such  care  and  suflfered  tangible 
injury  thereby.  But  as  that  court  pointed  out,  implicit  in 
the  formulation  is  the  requirement  of  proof  that  medical 
treatment  in  fact  exists  and  is  available  to  state  officials, 

^Our    recent    cases    of   State    v.    Starrish,    86    Wn.2d    200,    544    P.2d    1 
(1975)(ob8erving  in  a  footnote  that  the  problem  of  treatment  of  alcohol  problems 
of  offenders  is  one  for  legislative  resolution),  and  Robinson  v.  Peterson,  87  Wn.2d 
665,  555  P.2d  1348  (1976)(holding  that  jail  officials  do  not  have  a  constitutional 
duty  to  provide  rehabilitation  programs)  are  in  accord. 


9293 
Jan.  1977  BRESOLIN  v.  MORRIS  I73 

before  their  refusal  to  provide  it  can  be  said  to  violate  the 
Fourteenth  Amendment. 

It  should  be  emphasized  that  the  petitioner  is  not  con- 
tending that  the  institution  withholds  needed  medication 
and  medical  treatment.*  He  makes  no  showing  that  there  is 
an  accepted  method  of  treating  psychological  addiction, 
either  within  the  confines  of  prison  or  without.  At  the  same 
time,  the  respondent's  authorities  and  affidavits  stress  the 
uncertainties  which  exist  with  respect  to  the  efficacy  of 
attempts  to  rehabilitate  drug  addicts,  and  particularly 
within  the  prison  setting.  That  the  entire  concept  of  reha- 
bilitation as  a  practical  goal  of  confinement  is  under  ques- 
tion can  be  appreciated  by  examining  the  current  literature 
upon  this  subject.  See,  e.g.,  L.  Pierce,  Rehabilitation  in 
Corrections:  A  Reassessment,  38  Fed.  Prob.  No.  2,  p.  14 
(1974);  J.  Wilks  &  R.  Martinson,  Is  the  Treatment  of 
Criminal  Offenders  Really  Necessary?,  40  Fed.  Prob.  No.  1, 
p.  3  (1976);  N.  Morris  &  G.  Hawkins,  Rehabilitation  Rhet- 
oric and  Reality,  34  Fed.  Prob.  No.  4,  p.  9  (1970).^ 

Thus,  the  petitioner  has  not  shown  that  there  exists  and 
is  available  to  prison  officials  an  accepted  method  of  treat- 
ing drug  addiction  in  the  prison  environment.  The  respon- 
dent, on  the  other  hand,  has  demonstrated  that  the 
department  is  not  indiff'erent  to  the  problems  of  drug 
addiction.  In  addition  to  its  other  rehabilitative  programs, 

A  law  review  article  relied  upon  by  the  petitioner,  in  support  of  his  claim  that 
drug  rehabilitation  programs  should  be  judicially  required,  goes  no  further  than  to 
advocate  protection  of  the  right  to  receive  methadone  for  withdrawal  symptoms 
and  treatment  of  physical  dependence,  while  at  the  same  time  recognizing  that 
even  this  treatment  is  controversial.  Comment,  The  Rights  of  Prisoners  to  Medi- 
cal Care  and  the  Implications  For  Drug-Dependent  Prisoners  and  Pre-trial 
Detainees,  42  U.  Chi.  L.  Rev.  705  (1975). 

5An  article  by  P.  Dwyer  &  M.  Botein,  The  Right  to  Rehabilitation  for  Prison- 
ers—Judicial Reform  of  the  Correctional  Process,  20  ^J.Y.L.F.  273  (1974),  cited 
by  the  petitioner,  takes  the  view  that  the  courts  should  intervene  in  prison  man* 
agement  and  order  the  establishment  of  maintenance  of  rehabilitation  programs. 
The  authors  assume,  without  citation  of  evidence,  that  rehabilitation  is  an 
achievable  prison  goal.  They  do  not  address  the  specific  problem  of  rehabilitation 
of  drug  addicts. 


9294 
174  BRESOLIN  V.  MORRIS  Jan.  1977 

the  institution  at  Walla  Walla  (which  is  the  institution  here 
under  attack)  offers  drug  counseling  to  those  who  are  will- 
ing to  accept  it.  While  this  program  may  be  termed  mini- 
mal, the  consensus  of  opinion  appears  to  be  that,  as  a 
practical  matter,  drug  rehabilitative  programs  within  the 
prison  environment  are  nonproductive.  Psychological 
assistance  to  motivated  prisoners  who  are  shortly  to  be 
released  or  paroled  offers  some  hope  of  success,  and  to  this 
end  the  program  at  Western  State  Hospital,  to  which  the 
petitioner  has  been  prematurely  transferred,  has  been 
established. 

In  the  meantime,  the  Secretary  and  those  charged  with 
the  responsibility  of  administering  the  prison  system  are 
constantly  reexamining  their  programs  and  policies  and  the 
available  and  evolving  alternatives,  with  a  view  to  fulfilling 
to  the  best  of  their  capacity  the  statutory  goal  of  rehabili- 
tation. The  petitioner  makes  no  showing  that  these  efforts 
are  pursued  with  less  than  good  faith  or  that  any  superior 
alternatives  to  the  existing  programs  and  methods  pres- 
ently exist  and  are  available  to  the  respondent.  We  need 
not  decide  whether,  if  such  a  showing  were  made,  judicial 
intervention  would  be  appropriate.  As  the  record  stands, 
there  is  nothing  here  to  indicate  that  the  low  incidence  of 
drug  rehabilitation  is  occasioned  by  any  breach  of  duty  on 
the  part  of  the  respondent. 

We  find  no  constitutional  violation  in  the  failure  to  pro- 
vide a  more  extended  drug  rehabilitation  program  within 
the  institution. 

The  writ  is  denied. 

Stafford,  C.J.,  and  Hamilton,  Wright,  Brachtenbach, 
and  DoLLivER,  JJ.,  concur. 

Utter,  J.  (dissenting) — The  majority  contends  this  court 
is  helpless  to  act  in  the  face  of  the  failbre  of  the  State  to 
provide  meaningful  assistance  to  the  petitioner,  a  narcotic 
addict  who  has  demonstrated  a  willingness  and  desire  to 
cure  his  addiction,  when   State  action  exacerbates  his 


9295 

Jan.  1977  BRESOLIN  v.  MORRIS  I75 

addictive  personality  by  placing  him  in  a  closed  setting 
where  the  sale  and  use  of  drugs  apparently  cannot  be  effec- 
tively controlled. 

This  is  not,  should  not,  and  cannot  be  the  law.  For  this 
court  to  hold  that  it  is  assures  the  continued  explosive 
degeneration  of  the  addicts  confined  to  our  institutions  and 
creates  a  great  likelihood  that  such  individuals  will  do  fur- 
ther injury  to  society  when  they  are  eventually  released. 

The  United  States  Supreme  Court  in  Estelle  v.  Gamble, 

U.S ,  ,  ^  L.  Ed.  2d  ,  97  S.  Ct.  285  (1976),  has 

recognized  as  repugnant  to  the  Eighth  Amendment  "pun- 
ishments which  are  incompatible  with  'the  evolving  stand- 
ards of  decency  that  mark  the  progress  of  a  maturing 
society',"  and  that  infliction  of  unnecessary  suffering  is 
"inconsistent  with  contemporary  standards  of  decency  as 
manifested  in  modern  legislation  codifying  the  common- 
law  view  that  '[i]t  is  but  just  that  the  public  be  required  to 
care  for  the  prisoner,  who  cannot,  by  reason  of  the  depriva- 
tion of  his  liberty,  care  for  himself.'"  (Footnote  omitted.) 

The  relief  here  requested  does  not  require,  as  the  major- 
ity insists,  the  recognition  by  this  court  of  a  constitutionally 
based  broad  right  of  rehabilitation.  In  its  present  facutal 
framework  this  case  presents  a  narrow,  albeit  important, 
issue  concerning  the  constitutional  rights  of  inmates  con- 
fined to  state  institutions:  Does  a  prisoner  who  is  psycho- 
logically addicted  to  narcotics  have  the  right  to  demand 
some  protection  from  the  demonstrable  physical  and  men- 
tal harm  which  he  suffers  as  a  result  of  being  confined  to  an 
institution  in  "which  he  is  unavoidably  exposed  to  unlawful 
trade  in  and  use  of  hard  narcotics,  which  prison  officials  are 
unable  to  prevent?  I  conclude  that  the  state  is  constitu- 
tionally compelled  to  provide  protection  from  harm  of  this 
nature  and  therefore  dissent. 

The  record  establishes  that,  prior  to  his  recent  and  more 
than  coincidental  transfer  to  Western  State  Hospital,  the 
petitioner  was  incarcerated  at  Walla  Walla  State  Peniten- 
tiary where  there  is  extensive  unlawful  use  of  hard  drugs, 
including  heroin,  amphetamines,  and  hallucinogens.  This 


9296 

176  BRESOLIN  V.  MORRIS  Jan.  1977 

drug  culture  allegedly  involves  not  only  prisoners,  but  staff 
and  visitors  as  well.  Prison  personnel  have,  under  existing 
conditions,  been  unable  to  do  anything  to  significantly  cur- 
tail this  activity,  nor  have  they  provided  a  means  by  which 
prisoners  who  wish  to  do  so,  may  seek  sanctuary  from  its 
adverse  effects.  Such  a  situation  not  only  results  in  the  cre- 
ation of  an  environment  in  which  it  is  extremely  difficult 
for  most  inmates  who  have  the  desire  to  rehabilitate  them- 
selves, but  in  the  case  of  the  petitioner  and  others  like  him, 
makes  debilitation  inevitable.  As  we  stated  in  our  prior 
opinion  in  this  case,  the  petitioner 

is  psychologically^  and  has  been  physiologically  addicted 
to  drugs.  All  his  crimes  have  been  committed  either  to 
obtain  drugs  or  money  with  which  to  purchase  drugs. 
Due  to  lack  of  funding,  no  programs  have  been  provided 
to  help  him  cure  this  addiction  .  .  .  Use  of  drugs  has 
resulted  in  confinement  in  institutions  where  his  addic- 
tion is  encouraged  by  the  availability  of  narcotics.  He  is 
unable  to  escape  either  their  physical  presence  or  the 
prison  drug  subculture  that  encourages  their  use.  On  his 
release  at  the  end  of  his  term,  nothing  will  have  been 
accomplished  by  confinement  except  to  confirm  the 
physical  and  psychological  needs  which  guarantee,  once 
more,  his  involvement  in  criminal  acts,  followed  by  more 
confinement. 

Bresolin  v.  Morris,  86  Wn.2d  241,  249,  543  P.2d  325  (1975). 
Faced  with  this  situation,  the  petitioner  has  made  great 
efforts  to  secure  placement  in  a  drug  treatment  program.  As 
the  majority  points  out,  the  petitioner  has  recently  been 
transferred  to  the  drug  treatment  program  at  Western 
State  Hospital.  That  placement  is  unusual,  to  say  the  least. 
In  the  long  history  of  this  case,  the  petitioner  first  sought 
treatment  under  RCW  69.32.090.  This  court  then  ordered, 
in  the  words  of  the  statute,  that  respondent  "make  avail- 
able to  health  authorities  portions  of  correctional  institu- 
tions under  his  jurisdiction  for  the  isolation  and  treatment, 
at  public  expense,  of  petitioner."  Respondent  failed  to  do 
so  and  petitioner  sought  placement  in  the  Western  State 


9297 
Jan.  1977  BRESOLIN  v.  MORRIS  I77 


Hospital  drug  treatment  program.  Respondent  resistad  that 
placement,  stating  in  the  Brief  of  Respondent  at  pages  1-2: 

[I]t  is  used  primarily  as  a  stepping  stone  back  to  the 
streets  and  is  not  designed  to  treat  an  individual  and 
then  return  him  to  an  institution  .  .  .  The  treatment 
program  at  the  hospital  is  of  limited  duration  (about  18 
months)  and  the  program  is  of  limited  size  (30  people). 
Because  of  the  physical  layout  of  the  hospital,  it  is  not 
considered  a  "secure"  facility.  It  has  no  walls,  fences  or 
guards,  limiting  the  types  of  persons  it  can  take  and 
clearly  indicating  it  was  not  established  to  provide 
immediate  drug  treatment  for  all  prison  inmates  who 
might  be  found  to  be  narcotics  addicts. 

Petitioner  has  not  been  transferred  to  Western  State 
Hospital  because  of  his  long  sentence.  He  is  presently 
serving  the  first  of  three  five-year  mandatory  minimum 
terms  based  upon  deadly  weapon  findings.  State  v. 
Bresolin,  13  Wn.  App.  386  (1975),  and  in  fact  has  no  ten- 
tative release  date  yet  established  because  of  his  consec- 
utive sentence  structure.  He  also  has  a  federal  detainer, 
based  on  a  federal  conviction,  lodged  against  him  which 
prevents  his  parole,  except  to  federal  custody,  .  .  . 

The  court  has  been  informed  by  counsel  for  the  respondent, 
at  the  time  of  the  most  recent  hearings  in  this  case,  that 
these  underlying  facts  have  not  significantly  changed. 
Respondent  has  not  contended  Bresolin  now  fits  the  estab- 
lished criteria  for  the  Western  State  program. 

It  is  difficult  to  view  Bresolin's  recent  transfer  to  the 
Western  State  program,  in  view  of  respondent's  past  posi- 
tion, as  little  more  than  an  effort  by  the  respondent  to 
render  moot  the  important  issues  raised  by  this  case. 
Bresolin's  placement  at  Western  State  does  not,  however, 
moot  these  issues  as  to  other  inmate/addicts  who,  as  the 
undisputed  evidence  indicates,  de?ire  and  would  benefit 
from  placement  in  a  drug  treatment  program.  These 
inmates  pre  still  incarcerated  in  the  state  penitentiary 
under  conditions  and  v^ith  resulting  harm  identical  to  that 
of  the  named  petitioner  here. 

The  legislature  has  expressly  repealed  RCW  69.32.090 
{see  Laws  of  1975,  2d  Ex*  Sess.,  cX  vl03),,  the  statute  which 


9298 
X78  BRESOLIN  V.  MORRIS  Jan.  1977 

we  found  controlling  in  our  prior  opinion  in  this  case.  While 
the  present  statutory  scheme  clearly  allows  the  establish- 
ment of  drug  treatment  programs,  and  I  feel  in  a  factual 
setting  such  as  this  requires  them  (RCW  72.08.101),  the 
record  is  devoid  of  any  indication  that  the  respondent 
intends  to  implement  an  adequate  program  at  the  state 
penitentiary  at  any  tinie  in  the  near  future.® 

As  the  majority  suggests,  courts  have  shown  reluctance  to 
become  involved  in  the  inner  workings  of  our  penal  institu- 
tions. The  power  of  the  courts  to  intervene  to  protect 
inmates  from  conditions  which  threaten  their  health  or 
safety,  or  which  are  violative  of  a  basic  constitutional  right 
is  clearly  established.  See,  e.g.,  Est e lie  v.  Gamble,  supra; 
Procunier  u.  Martinez,  416  U.S.  396,  40  L.  Ed.  2d  224,  94  S. 
Ct.  1800  (1974)  (prison  mail  censorship  regulations  held  vio- 
lative of  inmates'  First  and  Fourteenth  Amendment  rights); 
Gates  V.  Collier,  501  F.2d  1291  (5th  Cir.  1974) (confinement 
under  conditions  which  threaten  physical  health  and  safety 
and  deprive  inmates  of  basic  hygiene  and  medical  treat- 
ment constitutes  "cruel  and  unusual  punishment");  Riley  v. 
Rhay,  407  F.2d  496  (9th  Cir.  1969)  (claim  by  inmate  of 
Washington  State  Penitentiary  that  failure  to  provide 
medical  care  violated  his  constitutional  rights  states  cause 
of  action  under  the  Civil  Rights  Act,  42  U.S.C.  §§  1981, 
1983,  l^Sby/Pugh  V.  Locke,  406  F.  Supp.  318  (M.D.  Ala. 
1976) (failure  to  protect  inmates  from  the  constant  threat  of 
physical  harm  constitutes  cruel  and  unusual  punishment). 

Where  deprivation  of  needed  medical  care  is  added  to 
the  imprisonment  imposed  as  punishment  for  commission 

jThe  trial  court,  in  its  hearing  on  this  matter,  expressly  found  that  '[t)here  is 
no  form  of  therapy  available  to  che  P-titioner  at  the  Penitentiary  whicn  has  any 
probability  of  curing  his  condition."  In  un  ^fiidavit.  riubijj::';.:^^  in  ihui  case  dated 
June  16,  1976,  Harold  Bradley,  Director  of  Adult  CorrectioDs  Di\a»ion  of  the 
Department  of  Social  and  Health  Services,  stated  the  •^xiscing  drug  treatment 
program  at  Walla  Walla  would  continue  at  'essentially  the  same  level  as  it  has 
been  in  the  past .  .  .* 


9299 
Jan.  1977  BRESOLIN  v.  MORRIS  179 

of  a  crime,  the  additional  suffering  imposed  thereby  consti- 
tutes cruel  and  unusual  punishment  and  provides  justifica- 
tion for  our  intervention  to  alleviate  that  additional 
suffering.  Estelle  u.  Gamble,  supra;  Ramsey  v.  Ciccone,  310 
F.  Supp.  600  (W.D.  Mo.  1970).  Moreover,  due  process 
requires  additional  proceedings  to  justify  failure  of  the 
state  to  protect  an  inmate  from  any  harm  greater  than  that 
contemplated  by  his  incarceration.  New  York  Ass'n  for 
Retarded  Childmn,  Inc.  v.  Rockefeller,  357  F.  Supp.  752 
(E.D.N.Y.  1973);  Baxstrom  v.  Herold,  383  U.S.  107,  15  L. 
Ed.  2d  620,  86  S.  Ct.  760  (1966). 

The  trial  court  found,  pursuant  to  our  order  of  referral, 
that: 

The  Petitioner  is  psychologically  addicted  to  the  use  of 
narcotic  drugs.  Psychological  addiction  is  the  primary 
cause  of  drug  usage.  Drug  treatment  programs  have  as 
their  primary  focus  the  cure  of  psychological 
addiction.  .  .  . 

...  [The  petitioner's]  psychological  addiction  leads 
him  to  obtain  and  use  narcotic  drugs  when  he  is  able  to 
do  so. 

.  .  .  There  is  no  form  of  therapy  available  to  the  Peti- 
tioner at  the  Penitentiary  which  has  any  probability  of 
curing  his  condition.  ' 

The  evidence  presented  at  this  fact-finding  hearing  fur- 
ther establishes  that  the  petitioner  has  actively  sought  aid 
in  dealing  with  his  drug  problems  while  not  in  prison.  No 
such  programs  are  available  to  him,  or  other  inmates,  at  the 
penitentiary.  Yet,  because  of  his  confinement  and  the  fail- 
ure of  prison  officials  to  control  illegal  drug  activity  within 
the  walls  of  the  institution,  it  is  impossible,  at  the  present 
time,  for  an  addicted  inmate  to  avoid  continued  involve- 
ment with  drugs,  no  matter  how  determined  he  might  be  to 
forsake  them.  This  would  not  be  the  case  but  for  the 
inability  of  the  institution  staff  to  adequately  control  the 
prison  environment,  coupled  with  the  failure  to  provide 
addicts  who  affirmatively  seek  help  an  environment  in 


9300 
130  BRESOLIN  V.  MORRIS  Jan.  1977 

which  to  begin  to  rebuild  their  lives.  Confinement  under 
the  present  conditions  only  intensifies  such  an  individual's 
psychological  addiction,  with  the  result  that  when  he  is 
thrust  once  again  into  society's  mainstream,  it  will  be  even 
more  difficult  for  him  to  avoid  further  involvement  with 
drugs  and  additional  confinement. 

Contrary  to  the  assertion  of  the  majority,  the  uncontro- 
verted  testimony  of  expert  witnesses  in  the  superior  court 
fact-finding  hearing  established  that  the  petitioner  and 
others  like  him  are  indeed  treatable  and  that  such  treat- 
ment is  a  necessity.*^  While  there  is  considerable  conflict 
among  experts  as  to  which  of  a  number  of  techniques  would 
be  most  beneficial  to  addicts,  most  authorities  seem  now  to 
assume  that  eff'ective  treatment  can  be  provided.  See  S. 
Levine,  Narcotics  and  Drug  Abuse  311  (1973);  R.  Bonnie  & 
M.  Sonnenreich,  Legal  Aspects  of  Drug  Dependence  171- 
80  (1975);  Drug  Addiction  and  Treatment  in  the  District 
of  Columbia,  Hearing  Before  the  Subcomm.  on  Public 
Health,  Education,  Welfare,  and  Safety  of  the  Comm.  on 
the  District  of  Columbia  United  States  Senate,  92nd 
Cong.,  1st  Sess.  (1971);  G.  Swanson,  Law  Enforcement  and 
Drug  Rehabilitation:  Is  a  Bridge  of  Trust  Possible?  4  Con- 
temporary Drug  Problems  493  (1975).® 

Lyle  Quasim,  a  qualified  expert,  testified  as  follows:  'Q.  [by  Mr.  Emery]:  Can 
you  treat  the  psychological  addiction  in  prison?  A.  Yes,  you  can  treat  psychologi- 
cal addiction  in  prison.  ...  I  think  that  we  can  make  some  significant  inroads 
into  dealing  with  the  psychological  process  in  the  penitentiary."  Gene  Chontos, 
another  expert,  testified  as  follows:  'Q.  [by  Mr.  Emery]:  Do  you  conclude  that 
drug  treatment  in  prison  is  an  absolute  necessity  as  a  grounding  for  successful 
treatment  of  an  addict  who  is  in  prison  and  who  will  be  released  later  on?  A.  I 
think,  yes,  it's  necessary.  It's  definitely  necessary  just  to  build  trust  that  you  can 
transfer  outside.  .  .  .  Q.  [by  the  Court]:  In  other  words,  and  assuming  the  law  is 
that  you  can't  interfere  with  his  prison  sentence  while  you  are  treating  him,  there 
are  available  to  the  State  forms  of  medical  or  psychological  therapy  which  could 
be  administered  to  this  petitioner  at  the  penitentiary  beneficially  in  the  light  of 
his  present  physical  and  mental  condition?  A.  If  the  funds  were  free  enough  to  do 
that.  If  there  were  money  available,  I  would  say  yes."  The  record  is  replete  with 
similar  statements. 

Expert  testimony  at  the  fact-finding  hearing  was  to  the  effect  that  the  most 
effective  drug  treatment  program  would  involve  isolated  therapeutic  communities 


9301 

Jan.  1977  BRESOLIN  v.  MORRIS  181 

The  record  in  this  case  clearly  establishes  that  the  failure 
to  make  such  -treatment  available  to  the  inmate/addict  who 
affirmatively  seeks  it  does  substantial  harm  to  that  individ- 
ual, as  well  as  society  as  a  whole.  See  Bresolin  u.  Morris, 
supra  at  247-49.  Though  it  may  be  true  that  the  Supreme 
Court  has  not  recognized  the  existence  of  a  "'fundamental 
right'  to  rehabilitation  from  narcotics  addiction  ..." 
{Marshall  v.  United  States,  414  U.S.  417,  421,  38  L.  Ed.  2d 
618,  94  S.  Ct.  700  (1974)),^  it  is  clear  that  a  person  may  not 
be  punished  simply  for  being  an  addict,  Robinson  u. 
California,  370  U.S.  660,  8  L.  Ed.  2d  758,  82  S.  Ct.  1417 
(1962),  and  has  a  constitutional  right  to  protection  from 
direct  harm  caused  by  the  failure  of  prison  officials  to  keep 
order.  Gates  v.  Collier,  supra;  Pugh  v.  Locke,  supra. 

In  a  situation  such  as  that  before  us,  the  right  to  be  free 
of  official  indifference  to  the  need  for  medical  treatment 
and  protection  from  harm,  which  is  constitutionally 
required,  forms  the  basis  for  petitioner's  claim.  An  accepted 
part  of  medical  treatment  is  often  the  healing  of  the  mind. 
See,  e.g.,  Howard  R.  &  Martha  E.  Lewis,  Psychosomatics 
(1972);  L.  Reiser,  The  Traumatic  Neurosis  (1968).  Such 
healing  of  the  mind  is  necessary  to  treat  psychological 
addiction  for  the  purpose  of  providing  the  inmate  with  the 
defense  mechanisms  necessary  to  survive  as  a  nonaddict  in 
the  drug  culture  existing  inside  the  prison.  The  trial  court 

of  approximately  35  to  40  members  each.  These  groups  would  include  those 
addicts  who  had  affirmatively  and  sincerely  sought  help  in  curing  their  drug 
addiction.  In  addition,  some  apparently  less  intensive  program  was  indicated  to  be 
desirable  to  serve  the  approximately  300  members  of  the  prison  population  who 
are  primarily  or  secondarily  involved  with  the  drug  culture  but  do  not  seem  to  be 
prime  candidates  for  successful  isolated  treatment. 

u  disagree  with  the  majority's  conclusion  that  the  Supreme  Court's  decision  in 
Marshall  controls  our  disposition  of  this  case.  The  Supreme  Court  affirmed  the 
determination  of  the  Court  of  Appeals  that  the  eligibility  clfissifications  contained 
in  the  federal  statute  there  at  issue,  which  rendered  the  particular  addict  there 
considered  ineligible  for  discretionary  rehabilitative  commitment,  did  not  violate 
the  petitioner's  right  to  equal  protection.  The  court  was  not  considering  the  right 
of  an  inmate  to  be  protected  from  the  specific  harm  caused  him  by  the  inability  of 
the  state  to  keep  order  within  its  institutions.  It  is  that  issue  which  is  before  us 
here. 


9302 

182  BRESOLIN  V.  MORRIS  Jan.  1977 

found  on  the  basis  of  expert  testimony  that  the  primary 
means  of  treating  addiction  is  to  combat  the  psychological 
roots  of  this  "disease."  Robinson  v.  California,  supra  at  667 
n.8.  It  is  entirely  inappropriate  to  deny  the  addict  protec- 
tion from  the  harm  which  the  prison  environment  causes 
him,  simply  because  the  appropriate  means  of  implement- 
ing those  constitutional  rights  requires  treating  his  mind. 

I  therefore  conclude  the  established  right  of  the  peti- 
tioner and  others  similarly  situated  to  be  free  of  cruel  and 
and  unusual  punishment  (U.S.  Const,  amend.  8;  Const,  art. 
1,  §  14)  and  the  due  process  right  to  be  free  from  direct 
harm  not  contemplated  by  the  sentencing  court,  create  in 
these  circumstances  a  concomitant  obligation  on  the  part  of 
the  State  to  provide  adequate  treatment  to  ameliorate  the 
harm  caused  those  addicts  who  affirmatively  seek  help  with 
their  drug  problems.  Such  a  result  is  required  because  it  is 
the  failure  of  the  State,  (presumably  due  to  inadequate 
facilities  and  staffing),  to  bring  under  control  unlawful 
activity  within  the  penitentiary  which  creates  the  particular 
harm  suffered  by  this  petitioner  and  others  like  him. 

I  would  deny  respondent's  motion  to  dismiss  and  order 
the  respondent  to  take  appropriate  action  to  provide  mean- 
ingful drug  treatment  programs  for  individuals  whose  cir- 
cumstances are  similar  to  the  petitioner's,  and  further  order 
that  the  respondent  report  to  this  court  on  a  monthly  basis 
as  to  his  progress  in  this  endeavor.^°  We  must  assume  that 

the  respondent,  like  all  citizens  of  this  state,  will  obey  the 

— ^^^  •      — — — »^^—  —'^—^—^^^—•^—^—^^^^^-^^ 

^''The  power  of  the  courts  to  enforce  such  obligations  is  well  established.  In 
recent  years  the  courts  of  this  nation  have  utilized  various  remedies  in  an  effort  to 
protect  the  constitutional  rights  of  persons  confined  to  prisons.  Traditionally,  the 
courts  have  allowed  relief  in  the  form  of  contempt  citations,  injunctive  relief,  or, 
particularly  in  section  1983  actions,  damages.  More  recently,  the  courts  have 
found  it  appropriate  to  utilize  remedies  which  are  quite  broad  in  scope,  including: 
enjoining  institutions  from  accepting  new  prisoners  until  populations  within  the 
institutions  are  reduced;  ordering  specific  institutional  changes;  and,  apt>ointing 
special  masters  or  committees  to  enforce  orders  of  the  court  requiring  specific 
reforms.  See  Comment,  Cruel  But  Not  So  Unusual  Punishment:  The  Role  of  the 
Federal  Judiciary  in  State  Prison  Reform,  7  Cumberland  L.  Rev.  31  (1976),  and 
cases  cited  therein. 


9303 
Jan.  1977  FLANDERS  v.  MORRIS  183 

commands  of  this  court  and  therefore  see  no  need  at  this 
time  to  consider  what  further  remedies  may  prove  appro- 
priate or  necessary. 

Horowitz,  J.,  concurs  with  Utter,  J. 

Hunter,  J.  (dissenting) — I  concur  with  the  dissent  except 
for  the  mandate  requiring  the  respondent  to  make  monthly 
reports  to  this  court  regarding  the  success  of  the  treat- 
ments, in  which  respect,  I  dissent  to  the  dissent. 


92-465  O  -  77  -  47 


9304 

Board  of  Parole, 
Salem,  Oreg.,  July  7, 1977. 
Hon.  Edwaed  M.  Kennedy, 
Russell  Senate  Office  Building, 
Washington,  D.C. 

Dear  Senator  Kennedy  :  I  am  writing  you  regarding  parole  decision-making 
and  tlie  sentencing  commission  tliat  you  are  advocating.  You  may  recall  that  we 
have  met  (m  several  occasions  in  Oregon  regarding  national  health  insurance  and 
Senator  Robert  Kennedy's  campaign  for  president.  Currently  I  am  the  Chair- 
man of  the  Board  of  Parole  in  Oregon. 

Oregon  has  recently  passed  progressive  legislation.  HB  2013  is  attached  relat- 
ing to  the  Board  of  Parole.  I  believe  that  you  will  tind  it  of  interest  and  may  i»os- 
sibly  tind  ideas  and  concepts  relevant  to  your  legislative  undertaking.  This  bill 
will  become  law  in  the  State  of  Oregon  on  October  4, 1977. 

I  have  worked,  along  with  my  colleagues  on  the  Board  of  Parole,  on  develop- 
ment and  passage  of  this  legislation  for  over  two  yeax-s.  We  have  consulted  with 
or  utilized  concepts  develoi>ed  by  the  United  States  Parole  Commission  (es- 
pecially Peter  Hoffman),  Leslie  Wilkins,  Don  Gottfredsion,  Norval  Morris,  and 
Andrew  von  Hirsch.  Because  of  this  experience,  I  presume  to  offer  some 
comments. 

I  believe  the  guideline  approach  to  parole  board  decision-making  undertaken 
by  the  United  States  Parole  Commission  and  the  Oregon  State  Board  of  Pa- 
role is  progressive  and  enhances  the  quality  of  justice.  It  has  been  argued  by 
some  that  since  the  guidelines  have  been  developed,  it  is  no  longer  necessary  to 
have  a  parole  board  or  a  commission.  Since  the  guidelines  have  been  developed, 
the  argument  runs,  simply  give  the  sentencing  responsibility  to  the  judiciary 
and  adopt  a  presumptive  sentencing  approach.  This  approach  is  not  as  fair  or 
equitable  as  a  two-tiered  approach  to  sentencing. 

The  vast  number  of  judges  cannot  be  expected  to  apply  guidelines  and  stand- 
ards with  the  precision  that  a  smaller,  collegial  body  such  as  the  parole  board 
or  commission  can. 

Additionally  judges  are  not  dealing  with  real  time  in  terms  of  incarceration. 
They  have  in  the  past  dealt  with  symbolic  sentences  and  mythological  time. 
When  it  comes  to  imprisonment,  we  have  tended  to  bark  louder  than  we  wanted 
bo  bite.  The  parole  decision  makers  are  more  aware  of  the  reality  of  prison  time. 
For  these  reasons  a  two-step  process  is  to  be  favored,  I  submit,  over  a  one-stage 
determination  of  time  to  be  spent  behind  bars. 

In  Oregon  we  will  develop,  as  you  will  see  from  the  enclosed  legislation,  a 
commission  on  prison  terms.  This  commission  will  be  composed  of  the  five  voting 
members  of  the  board,  five  who  are  appointed  by  the  Governor,  and  five  circuit 
judges  appointed  by  the  Chief  Justice  of  the  Supreme  Court.  This  body  is  charged 
with  the  responsibility  to  develop  and  recommend  parole  standards  regarding 
length  of  incarceration,  offense  severity  assessments,  and  aggravating  and  miti- 
gating circumstances  for  typical  offenses  encountered  by  the  parole  board.  Ad- 
ditionally some  kind  of  scaling  device  (quantifiable  measure)  to  determine 
criminal  history/risk  will  be  developed.  This  is  in  effect  a  sentencing  commission 
at  the  state  level. 

Another  criticism  of  parole  that  has  been  leveled  is  that  the  offender  must 
serve  time  waiting,  perhaps  years,  for  the  parole  board  to  make  a  decision  about 
his  release.  In  point  of  fact,  a  parole  system  does  not  depend  ujion  deferriu"'  a 
release  decision.  A  parole  board  operating  under  a  modified  ''just  deserts"  sys- 
tem can  establish  a  parole  release  date  early  in  the  man's  term.  This  is  a 
suggestion  that  has  been  advanced  by  Norval  ^Morris  in  his  book  The  Future  of 
Imprisonment.  Tliere  is  no  reason  why  this  cannot  l)e  done. 

The  United  States  Parole  Commission  is  moving  toward  establishing  parole 
hearing/release  dates  early  in  a  man's  term.  It  is  current  Oregon  practice.  In 
Oregon  we  meet  with  each  offender  within  the  first  four  months  of  his  incar- 
ceration. We  establish  a  parole  hearing  date  at  that  time.  Approximately  80% 
of  those  who  come  l)efore  the  board  on  that  parole  hearinsr  date  are  paroled.  The 
only  resets  or  parole  deferrals  are  because  of  serious  institutional  misconduct  or 
present  severe  emotional  disorder.  In  addition,  a  prisoner's  release  may  be  de- 
ferred because  of  a  poor  parole  plan.  However,  this  deferral  is  limited  to  90 
days. 

I  believe  that  this  system  eliminates  or  meets  the  criticism  that  parole  sub- 
jects prisoners  to  nerve-racking  uncertainty  about  the  time  of  their  release.  In  a 


9305 

few  cases  the  parole  board  advances  a  release  date  (a  shorter  period  of  incar- 
ceration) because  of  an  offender's  altered  circumstances,  outstanding  conduct, 
or  because  new  information  is  presented  to  tlie  board.  Because  release  criteria 
are  explicit,  the  decisions  of  the  parole  board  can  be  subjected  first  to  adminis- 
trative review  by  the  board  itself  and  ultimately  by  the  courts. 

This  procedure  (a  two-tiered  decision-making  system)  offers  a  more  eflScient 
application  by  a  coUegial  body  of  explicit  release  standards,  enhances  equity, 
can  eliminate  indeterminacy,  and  provides  for  more  realistic  review  of  parole 
decisions. 

Finally,  I  read  and  enjoyed  your  recent  article  in  Judicature:  and  I  have  had 
occasion  to  quote  from  it.  I  iiope  your  legislative  efforts  regarding  sentencing  are 
successful.  Perhaps  our  experience  in  Oregon  will  provide  you  with  something 
useful.  We  have  certainly  benefited  from  our  knowledge  of  the  federal 
experience. 

Sincerely, 

Iba  Blalock,  Chairman. 


9306 


PUNISHMENT, 
DESERT  AND 
ABILITATION 


Norval  M«>rris 
Dean,  Univorsity  of  Chicago  Law  School 


9307 


THE  BICENTENNIAL  LECTURE  SERIES 

SPONSORED  BY 

THE  UNITED  STATES  DEPARTMENT  OF  JUSTICE 

'PUNISHMENT,  DESERT  AND  REHABILITATION" 

PRESENTED  BY 

NORVAL  MORRIS 

AT  THE 

UNIVERSITY  OF  DENVER  COLLEGE  OF  LAW 
DENVER,  COLORADO 

4:30  P.M. 

FRIDAY,  NOVEMBER  12,  1976 


9309 


Let  me  open  with  a  summation  of  my  submissions  to 
you  this  afternoon  so  that  you  may  have  a  glimpse  of 
the  intellectual  terrain  I  wish  to  cross  and  may,  if  you 
wish,  by  swift  departure  avoid  what  may  well  be  a 
somewhat  ghastly  journey.  I  shall  be  making  a  case 
against  equality,  a  case  on  its  face  less  than  congenial 
to  the  American  ethic.  I  will  argue  that  equality  in 
punishment  is  not  an  absolute  principle;  that  equality  in 
punishment  is  a  value  to  be  weighed  and  considered 
among  other  values,  no  more;  and  that  there  can  be  just 
sentences  in  which  like  criminals  are  not  treated  alike, 
as  to  either  who  goes  to  prison  or  for  how  long.  If 
I  am  right,  conclusions  follow  of  substantial  importance 
to  sentencing  principles  and  practice,  and  to  prison 
administration;  if  I  am  wrong,  many  of  my  colleagues 
will   be   pleased   and  little  harm  will  have  been  done. 

No  apology  is  needed  for  seeking  to  attract  your  at- 
tention to  problems  of  crime  control  in  this  series  of 
Bicentennial  lectures.  Crime  has  long  been  a  serious 
blight  on  the  social  stability  of  this  country  and  a 
great  impediment  to  the  sense  of  security  of  genera- 
tions of  Americans.  And  the  crime  problem  grows  more 
intractable,  matching  in  severity  the  persistence  of  pov- 
erty amongst  plenty  and  of  racial  discrimination  in  a 
constitutional  democracy  dedicated  to  equality  of  op- 
portunity. In  particular,  the  past  decade  of  claimed 
efforts  at  more  effective  crime  prevention  and  control, 
with  substantially  increased  resources  allocated  to  those 
tasks,  has  proved  deeply  disappointing.  Crime  continues 
to  influence  where  Americans  live,  how  they  live,  where 
they  work,  their  patterns  of  recreation  and  of  social 
intercourse;  crime  touches  all  aspects  of  life.  Nor  will 
this  lecture  offer  any  cures  for  this  scourge.  And  for 
that  deficiency  an  apology  may  be  thought  to  be 
appropriate. 


(1) 


9310 


With  crime  rates  high  and  increasing,  with  the  police, 
jails,  and  prisons  overburdened,  it  seems  almost  perverse 
or  picayune  to  devote  a  lecture  to  jurisprudential  issues 
in  sentencing  and  prison  administration,  when  the  pressing 
problems  are  so  practical.  Even  in  relation  to  sentencing 
the  immediate  needs  are  obvious  enough:  higher  detection 
rates  of  serious  crime,  better  control  of  plea  bargaining, 
more  adequate  resources  to  prosecute  and  to  defend  those 
charged  with  serious  crimes,  and  so  on.  Why  then  bother 
with  questions  that  are  so  unlikely  to  have  any  imminent 
impact  as  whether  like  cases  should  be  treated  alike? 
But  it  has  been  my  experience  that  it  is  often  questions 
of  pure  theory  that  turn  out  to  have  the  most  lasting 
influence. 

There  is  another  reason  that  seems  to  me  to  justify 
my  trying  to  turn  your  attention  to  jurisprudential 
issues  in  crime  control.  Current  recognition  of  the 
gravity  of  the  threat  of  crime  to  the  quality  of  life  in 
this  country,  particularly  in  our  urban  areas,  and  the 
threat  of  the  further  disruption  of  the  patterns  of  our 
lives  by  crime  and  the  fear  of  crime,  is  attracting 
recommendations  for  repressive  measures,  swift  and  dra- 
conic  cures,  which  are  not  only  illusory  protections  but, 
more  importantly,  are  likely  to  erode  values  of  free- 
dom and  justice  which  are  of  fundamental  importance — 
values  properly  celebrated  in  this  Bicentennial  year. 

The  title  of  this  lecture,  however,  does  demand  an 
apology.  It  is  pretentious;  it  promises  too  much.  It 
was  settled  months  ago  when  ambition  over-reached 
judgment,  when  the  trivia  of  decanal  duties  seemed  no 
impediment  to  scholarly  productivity.  What  has  emerged 
is  much  less  than  an  analysis  of  "Punishment,  Desert, 
and  Rehabilitation"— very  much  less.  What  has  emerged 
are  notes  towards  a  jurisprudence  of  imprisoning. 


9311 


Oscar  Wilde  wrote  of  promising  careers  being  ruined 
by  the  vice  of  attending  to  one's  correspondence.  It  is 
an  occupational  vice  of  law  school  deans  from  which  1 
hope  to  be  cured  before  the  capacity  for  any  sustained 
thought  is  quite  removed. 

Sustained  thought  about  the  jurisprudence  of  impris- 
oning is,  of  course,  complicated  enormously  by  the 
extraordinary  diversity  of  crime  and  criminals  to  which 
that  jurisprudence  must  apply.  Nevertheless,  relatively 
few  principles  may  suffice,  with  different  mixes  of  those 
principles  being  capable  of  embracing  the  diversities  of 
behavior  and  personality  of  crime  and  criminals  re- 
spectively— that,  certainly,  is  my  belief.  Acting  on  that 
belief,  in  a  chapter  of  a  book  entitled.  The  Future  of 
Imprisonment,^  I  tried  to  answer  the  question  "Who 
should  go  to  prison?".  1  now  hope  to  carry  that  analysis 
a  few  steps  further  by  considering  the  interrelationship 
between  a  few  of  the  principles  that  seem  to  me  to 
bear  on  that  critical  question  and  also  on  the  proper 
role  of  prison  programs  in  the  jurisprudence  of  criminal 
sanctions. 

Here  are  the  three  principles  I  wish  to  relate  to  the 
general  presumption  in  favor  of  equality  in  punishment: 

Parsimony:  The  least  afflictive  (punitive)  sanction 
necessary  to  achieve  defined  social  purposes  should  be 
imposed. 2 

Rehabilitation  or  Reform:  Power  over  a  criminal's  life 
should  not  be  taken  in  excess  of  that  which  would  be 
taken  were  his  reform  not  considered  as  one  of  our 
purposes.  Rehabilitative  programs  in  prison  must  not 
define  either  the  duration  or  the  conditions  of  incar- 
ceration; prison  programs  must  be  entirely  facilitative, 
never  coercive.^ 


9312 


Desert:  No  sanction  should  be  imposed  greater  than 
that  which  is  "deserved"  by  the  last  crime,  or  series 
of  crimes,  for  which  the  offender  is  being  sentenced.  Nor 
should  a  sanction  be  imposed  which  is  so  lenient  that 
it  unduly  depreciates  the  seriousness  of  the  crime."* 

These  three  principles  are  not,  of  course,  sufficient  in 
themselves  to  support  a  jurisprudence  of  imprisonment. 
There  are  other  purposes  and  principles  to  be  considered 
of  greater  or  less  validity  and  justice — deterrent  pur- 
poses; incarceration  while  time  passes  and  the  fires  of 
criminality  abate;  imprisoning  because  of  repeated  failure 
of  other  lesser  sanctions;  the  community  educative  effect 
of  condign  punishments;  the  segregation  of  the  dangerous; 
and  so  on.  But  in  this  lecture  I  wish  to  confine  myself 
to  the  relationship  between  the  above  three  principles — 
parsimony,  reform,  and  desert — and  to  discuss  ways  in 
which  they  relate  to  another  principle,  the  allegedly 
over-arching  principle  of  equality,  ingrained  both  in 
our  Constitution  and  in  our  systems  of  justice  and 
ethics. 

The  central  question  I  address  is  this:  In  seeking  to 
facilitate  the  prisoners'  reform  and  in  seeking  to  impose 
deserved  punishment  on  the  criminal,  to  what  extent  is 
it  necessary  that  like  cases  should  be  treated  alike? 
To  what  extent  does  the  value  of  equality  preclude  dif- 
ferentiation between  prisoners  in  facilitating  their  self- 
reform;  must  they  all  be  given  equal  self-developmental 
opportunities?  To  what  extent  does  the  value  of  equality 
preclude  differentiation  between  prisoners  in  imposing 
deserved  punishments;  must  the  equally  undeserving 
be  equally  punished? 

To  offer  answers  to  these  questions,  I  need  the  fol- 
lowing distinctions  which  I  do  not  take  from  the  litera- 
ture  but   which    I   find   helpful   in   my   own   thinking.   I 


9313 


wish  to  distinguish  between  three  types  of  principles  of 
justice:  Those  which  are  defining,  those  which  are  limiting, 
and  those  which  are  guiding. 

If  we  knew  enough,  deterrent  purposes  could  be  de- 
fining. If  we  knew  enough,  it  would  be  possible  to 
graph  the  precisely  appropriate  deterrent  punishment 
for  a  given  crime  committed  by  a  given  type  of  crimi- 
nal. We  would  have  to  know  a  great  deal  more  than  we 
do  now,  but  if  we  did  the  graph  could  be  drawn 
and  the  hedonistic  utilitarian  precise  punishment  found. 
We  would  have  to  know  for  each  community  all  about 
the  relationships  between  certainty,  celerity  and  sever- 
ity of  punishments  and  the  incidence  of  the  crime  we  are 
to  punish.  We  would  have  to  make  value  judgments 
relating  the  criminal's  pain  to  the  pain  of  future  victims, 
say,  fifteen  hedonistic  units  to  one.  But  if  we  knew  all 
this,  and  more  besides,  the  precise  point  on  the  graph 
of  punishment  could  be  determined  where  any  additional 
punishment  of  the  criminal  was  not  worth  the  margin 
of  increased  crime  prevention  it  would  produce. 

(I  set  aside  possible  questions  of  the  disutility  of  in- 
creased sanctions  achieving  lesser  enforceability.  I  as- 
sume, for  this  argument,  that  the  co-relationship  between 
increased  punishment  and  reduced  incidence  of  crime  is 
linear.)  Thus,  given  sufficient  knowledge,  on  utilitarian 
grounds  we  could  determine  the  precisely  appropriate 
deterrent  punishment.  There  may  be  other  reasons  why 
we  would  not  wish  to  impose  the  punishment  so  defined, 
for  example,  it  may  exceed  what  we  think  is  just,  but 
nevertheless  deterrent  utilitarian  values  could  precisely 
determine  the  punishment.  Deterrence  could  be  a  defining 
principle  of  punishment,  achieving  fine  tuning  of  punish- 
ment to  its  precise  utilitarian  purpose. 

By  a  limiting  principle  of  punishment  I  mean  a  princi- 
ple that,  though  it  would   rarely  tell  us  the  exact 


9314 


sanction  to  be  imposed,  as  deterrence  might,  would 
nevertheless  give  us  the  outer  limits  of  leniency  and 
severity  which  should  not  be  exceeded.  Desert,  I  will 
submit,  is  such  a  limiting  principle. 

By  a  guiding  principle,  I  mean  only  a  general  value 
which  should  be  respected  unless  other  values  suf- 
ficiently strongly  justify  its  rejection  in  any  given  case. 
Equality,    I   will   submit,   is   such   a   guiding   priniciple. 

Equipped  with  these  distinctions  between  defining, 
limiting  and  guiding  principles,  let  us  start  by  con- 
sidering the  relationship  between  rehabilitation  and 
equality;  later  we  shall  consider  the  relationship  between 
desert  and  equality. 

Rehabilitation  and  Equality 

The  proper  role  of  rehabilitation  in  sentencing  and 
corrections  is,  I  am  glad  to  say,  receiving  increasing  sup- 
port both  in  the  literature  and  the  practice  of  punishment. 
In  U.S.  V.  Bergman,  Judge  Marvin  E.  Frankelof  the  United 
States  District  Court  for  the  Southern  District  of  New 
York  put  the  point  with  his  usual  grace  and  precision: 

The  court  agrees  that  this  defendant  should  not  be 
sent  to  prison  for  "rehabilitation."  Apart  from  the  pa- 
tent inappositeness  of  the  concept  to  this  individual, 
this  court  shares  the  growing  understanding  that  no 
one  should  ever  be  sent  to  prison  for  rehabilitation. 
That  is  to  say,  nobody  who  would  not  otherwise  be 
locked  up  should  suffer  that  fate  on  the  incongruous 
premise  that  it  will  be  good  for  him  or  her.  Im- 
prisonment is  punishment.  Facing  that  simple 
reality  should  help  us  to  be  civilized.  It  is  less 
agreeable  to  confine  someone  when  we  deem  it  an 
affliction  rather  than  a  benefaction.  If  someone  must 
be  imprisoned — for  other,  valid  reasons — we  should 


9315 


seek  to  make  rehabilitative  resources  available  to  him 
or  her.  But  the  goal  of  rehabilitation  cannot  fairly 
serve  in  itself  as  grounds  for  the  sentence  to  con- 
finement. ^ 

This  position  does  not,  of  course,  argue  for  any  re- 
duction of  treatment  programs  within  prison,  quite 
the  contrary.  But  it  does  require  that  such  programs 
should  be  voluntary  and  that  success  or  failure  in  them 
by  the  prisoner  should  in  no  way  determine  either  the 
duration  or  the  conditions  of  his  imprisonment. 

Does  the  principle  of  equality  require  that  all  pris- 
oners have  equal  access  to  such  self-developmental 
rehabilitative  programs — educational,  vocational  and  psy- 
chological— as  are  available  within  the  prison?  The  problem 
troubles  me  in  relation  to  a  new  federal  prison  in  which 
I  have  a  close  personal  interest. 

The  new  federal  prison  at  Butner,  North  Carolina,  is 
currently  testing  ideas  on  prison  programs  which  I 
offered  in  The  Future  of  Imprisonment.  Butner  is 
designed  to  hold  140  psychiatrically  ill  prisoners  and  200 
dangerous  prisoners,  that  is  to  say,  men  aged  18  to  30 
who  have  been  convicted  of  at  least  two  separate  serious 
crimes  during  their  last  three  years  at  large  and  who 
have  between  one  to  three  years  to  serve  before  their 
parole  release  date.  This  is  the  deep  end  of  the  pool 
of  prisoners,  not  the  shallow  end  of  criminality  usually 
chosen  by  penal  reformers;  the  dangerous,  not  the  ame- 
nable. Butner  is  a  "voluntary"  prison  in  the  sense  that 
after  the  prisoner  has  been  there  a  few  weeks,  long 
enough  to  understand  something  of  the  prison  and  its 
treatment  program,  he  may  return  if  he  so  wishes  to 
the  prison  from  whence  he  came  or  to  any  other  federal 
prison  to  which  he  may  properly  be  transferred.  Soon 
after  his  arrival  in   Butner  he  will  be  told  his  release 


9316 


date  and  that  date  will  be  adhered  to  subject  only  to 
his  obedience  to  the  disciplinary  requirements  of  the 
prison;  the  date  will  be  entirely  independent  of  his 
involvement  either  at  all  or  with  success  or  failure  in 
prison  training  programs.  If  he  decides  to  leave  Butner 
he  can  take  his  release  date  with  him  and  suffer  no 
adverse  consequences  thereby.  There  is  much  else  that 
I  would  like  to  say  about  this  prison,  since  I  have  a 
paternal  affection  for  it,  but  for  present  purposes  all  I 
really  need  add  is  that  it  will,  it  is  hoped,  provide  more 
educational,  vocational  training  and  self-developmental 
opportunities  to  prisoners  than  any  other  prison  in  this 
country.  Selected  for  these  opportunities  is  a  group  of 
repetitive  criminals  whose  final  selection  is  made  by  a 
computer,  so  that  there  will  be  available  a  perfectly 
matched  control  group  of  similar  prisoners  to  facilitate 
measurement  of  the  Butner  experiment.  The  equality 
issue  bursts  out:  Is  it  fair,  is  it  just,  to  give  these 
unusual  opportunities  to  a  few  serious  offenders  when  they 
are  not  available  to  the  broad  spectrum  of  federal 
prisoners,  many  of  whom  must  be  in  more  need  of  these 
excellent  self-development  opportunities  and  who  have 
also  inflicted  much  less  harm  on  society  than  the 
Butner  group? 

Have  the  prisoners  who  are  excluded  from  Butner  a 
valid  complaint?  I  think  not.  The  argument  will  be 
more  fully  developed  in  relation  to  equality  and  desert; 
it  will  suffice  here  to  note  only  the  outline  of  my 
justification  of  that  conclusion. 

The  shortage  of  treatment  resources;  the  need  for 
critical  testing  of  what  programs  prove  of  assistance 
to  which  prisoners;  the  wisdom  of  allocating  scarce 
resources   where   they   are   likely   to   be   of  more  value 


9317 


these  and  other  properly  discriminating  values  adequately 
justify  the  breach  of  any  rigid  application  of  a  principle 
of  equality  to  rehabilitative  programs  in  prisons.  Here,  as 
in  relation  to  sentencing,  equality  is  only  a  guiding 
principle;  it  neither  limits  nor  defines  what  may  justly 
be  done.  Ideally,  of  course,  in  a  Utopia  in  which  there 
was  no  shortage  of  treatment  resources,  the  case  for 
inequality  would  rest  only  on  the  need  for  experimen- 
tation with  a  view  to  the  acquisition  of  knowledge. 
In  the  interim,  and  it  looks  like  a  long  interim,  lacking 
both  adequate  resources  and  knowledge,  there  is  clear 
propriety  in  our  allocating  those  scarce  treatment  re- 
sources unevenly. 

There  is  another  aspect  of  equality  that  has  borne 
heavily  on  prison  conditions  which  cannot  be  so  lightly 
brushed  aside.  May  prison  programs  provide  more  and 
better  self-developmental  opportunities  than  are  avail- 
able to  citizens  who  have  not  been  convicted  of  crime? 
This  is  the  question  of  "less  eligibility"  which  is  sup- 
posed to  call  forth  the  answer  that  prison  conditions 
must  always  be  less  desirable  than  the  conditions  avail- 
able to  any  (and  therefore  every)  more  worthy  group 
in  the  community  whose  members  have  not  been 
convicted  of  crime.  This  miserable  principle  of  "less 
eligibility"  has  helped  to  impose  idleness  and  brutality 
on  our  prisons;  it  has  been  used  by  the  unthinking  to 
justify  overcrowded  cages,  fortress  prisons  of  fear  in 
which  we  are  unable  to  protect  the  weak  from  the 
predatory  strong,  in  which  coerced  homosexuality 
flourishes,  in  which  drug  habits  are  supported,  insti- 
tutions run  by  the  prisoners  rather  than  by  representa- 
tives of  the  society  who  have  imprisoned  them. 

Must  racial  discrimination  be  eliminated  from  society 
at  large  before  we  can  provide  a  decent  integration  within 


9318 


10 


the  walls?  Must  meaningless  and  insufficient  make- 
work,  idleness  and  inefficiency,  characterize  prison 
labor  until  full  employment  exists  in  society  generally 
and  poverty  has  been  eliminated?  Will  there  be  a  rush 
to  the  prisons,  a  diminution  of  the  deterrent  threat  of 
imprisonment,  if  we  give  reasonable  productive  oppor- 
tunities to  prisoners  and  give  them  a  chance  to  earn 
money  to  pay  for  their  keep,  to  compensate  their  victims 
where  that  is  appropriate,  to  support  their  families  where 
that  is  within  their  competence,  and  possibly  even  to 
save  something  to  tide  them  over  the  difficulties  of 
re-integration  into  the  economic  life  of  the  community? 
Protracted  observation  of  the  widest  diversity  of  prisons 
in  many  parts  of  the  world  has  convinced  me  that  the 
last  thing  we  need  worry  about  is  that  prisoners  will  not 
dislike  their  cages.  The  pervading  aim  of  prisoners  in 
Butner,  as  well  as  every  other  prison  I  have  visited  in  the 
world,  is  to  get  out  of  prison,  and  it  is  unlikely  indeed 
that  any  variation  of  opportunities  for  self  development 
within  the  walls  will  make  any  difference  whatsoever 
to  that  overwhelming  motivation. 

No  one  of  any  sensitivity  can  visit  any  of  our  prisons 
without  recognizing  that  they  contain,  as  in  all  coun- 
tries, populations  which  are  disproportionately  illiter- 
ate, unemployed,  vocationally  untrained,  undereducated, 
psychologically  disturbed  and  socially  isolated.  It  is  both 
in  the  prisoner's  and  the  community's  best  interests 
to  help  them  to  remedy  these  deficiencies:  We  should 
not  inhibit  ourselves  from  doing  so  by  any  presumed 
principle  of  equality  by  which  they  must  not  have  greater 
opportunities  than  those  who  have  not  been  convicted 
of  crime.  To  do  so  is  seif-defealins.  Nor  will  denial  of  these 
opportunities  to  prisoners  have  the  slightest  effect  upon  the 
more  important  and  larger  efforts  at  social  equality  out- 
side the  walls. 


9319 


11 


it  thus  appears  to  me  that  the  principle  of  equality, 
both  as  between  one  group  of  prisoners  and  another, 
and  between  prisoners  and  those  who  have  not  been 
convicted  of  crime,  must  not  be  allowed  to  inhibit  such 
hesitant  steps  toward  the  minimization  of  brutality  and 
cruelty  within  our  overcrowded  prisons  as  the  federal 
and  state  governments  are  now  taking.  There  is  no 
categorical  imperative  to  treat  like  prisoners  alike  nor 
to  treat  prisoners,  other  than  by  virtue  of  their  imprison- 
ment, worse  than  the  next  most  eligible  group  in  the 
community. 

Desert  and  Equality 

One  defect  frequently  alleged  to  exist  in  sentencing 
practice  is  that  of  unjust  disparities  between  sentences. 
By  "unjust  disparities''  I  mean  that  the  chance  of  which 
judge  hears  a  case,  or  which  parole  board  member  the 
prisoner  comes  before,  or  even  the  point  in  time  at  which 
the  case  is  heard,  will  be  powerfully  and  irrationally 
determinative  both  of  the  HkeUhood  and  of  the  duration 
of  his  imprisonment. 

There  is  a  mass  of  compelling  data  on  this  question, 
culminating  in  the  recent  important  sentencing  study 
in  the  Second  Circuit,^  and  there  is  no  need  for  me  to 
belabor  them  here.  I  ask  you  to  accept  that  the  case  is 
proved,  that  there  are  unjust  and  irrational  sentences 
pervasively  imposed  in  adult  and  juvenile  courts,  and  by 
parole  boards  throughout  this  country.  I  ask  you  further 
to  accept  what  is  less  generally  recognized  but  is,  I 
believe,  also  quite  clear,  that  the  inequitable  disparities 
achieved  by  charge  and  plea  bargaining  processes  are 
even  greater  than  those  that  h^ve  been  demonstrated 
in  the  literature  of  judicial  sentencing. 

Let  me  try  to  summarize  briefly  the  paths  of  reform  that 
are  being  advocated  at  present  to  bring  order  to  this 


92-465   O  -  77  -  48 


9320 


12 


jungle  of  unjust,  disparate  sentences.  Let  me  set  aside 
charge  and  plea  bargaining  for  the  time  being  and  con- 
centrate on  judicial  sentences  and  the  sentences 
shaped  by  parole  boards.  First,  there  is  the  attack  on  the 
indeterminate  sentence  and  on  parole.  Elsewhere  I 
have  argued  that  the  parole  board  is  no  more  capable 
than  the  judge  of  predicting  the  later  criminal  conduct 
of  the  offender  and  that  there  is  no  principled  case  that  can 
be  made  for  the  continuance  of  parole  board  sentencing.^ 
Certainly,  if  parole  boards  are  to  continue  to  exist  their 
roles  will  change  as  the  federal  parole  board's  role  is  cur- 
rently changing.  They  will  increasingly  set  the  prisoner's 
release  date,  with  more  or  less  precision,  quite  early 
in  his  sentence.  Base  expectancy  recidivism  rate  can 
be  determined  as  well  early  in  the  prisoner's  term  as 
later.  Present  parole  practice  has,  as  Hans  W.  Mattick 
phrased  it,  turned  our  prisons  into  great  schools  of 
dramatic  art;  it  is  time  we  abandoned  this  hypocritical 
pretense.  There  will,  in  other  words,  be  a  gradual  move- 
ment away  from  the  false  proposition  that  by  observing 
the  prisoner's  behavior  in  prison  it  is  possible  to  make 
predictions  about  his  likely  criminal  behavior  in  the 
community.  That  is  the  cure  suggested  for  the  unprincipled 
randomness  of  parole  board  "sentencing." 

Let  us  turn  now  to  the  cures  for  unjust  sentencing  dis- 
parities recommended  at  the  legislative  level.  One  group 
of  reformers,  of  whom  David  Fogel  is  a  principal  spokes- 
man, advocate  fixed-term  sentences,  the  legislature 
prescribing  precisely  what  sentence  the  judge  must 
impose  for  any  given  offense  proved  before  him,  allowing 
him  only  a  relatively  small  margin  for  the  variation  of 
the  sentence  because  of  mitigating  or.  aggravating 
circumstances  of  the  offense  or  of  the  offender. «  Some- 
what similar  recommendations  are  offered  by  Andrew 
von  Hirsch  in  his  book  Doing  Justice"^  and  a  more  sophis- 
ticated plan  is  developed  in  the  report  of  the  Twentieth 


9321 


13 


Century  Fund,  "Fair  and  Certain  Punishment,"  in  which 
Professor  Dershowitz  has  been  influential.'^  Their 
recommendations  have  similar  thrusts,  seeking  to  con- 
trol judicial  discretion  by  precise  legislative  statements 
of  the  appropriate  or  "presumptive"  sentence.  I  regard 
all  these  recommended  reforms  as  steps  in  the  right 
direction,  but  in  my  view  they  fail  sufficiently  to  address 
the  complexity  of  the  subject.  They  are  shortcuts  to  rational 
sentencing,  having  the  defect  of  most  shortcuts — they 
quickly  get  you  into  rough  terrain  best  avoided.  For  my 
own  part,  I  believe  we  should  continue  on  the  path  set  in 
the  mid-1950's  by  the  American  Law  Institute  in  its 
Model  Penal  Code.  The  legislature  should  bring  some 
order  to  sentences  provided  in  the  criminal  codes,  federal 
and  state,  by  reducing  the  categories  of  offenses  in  rela- 
tion to  their  punishment  and  by  defining  the  criteria 
that  judges  should  take  into  account  in  imposing  sen- 
tences. Then  we  must  move  steadily  toward  a  common 
law  ^  sentencing,  in  the  same  way  that  the  common 
law  has  developed  elsewhere.  The  judge  must  give  rea- 
sons for  the  sentence  he  imposes  and  the  sentence  must 
be  subject  to  appellate  review,  so  that  the  usual  pattern 
of  the  emergence  of  wisdom  through  precedent  may 
apply  here  as  it  applies  in  many  less  important  areas 
of  juridical  practice. 

A  recently  announced  plan,"  currently  under  dis- 
cussion in  the  Department  of  Justice,  may  prove  a 
useful  step  in  that  direction.  The  proposal  calls  for  the 
abolition  of  the  Federal  Parole  Board  and  the  creation  of 
a  Commissior  on  Sentencing,  composed  of  nine  com- 
missioners whose  task  it  would  be  to  promulgate  guide- 
lines to  sentencing  in  the  federal  system.  When  any 
federal  judge  imposed  a  sentence  outside  the  guidelines 
he  would  be  required  to  set  out  his  reasons  for  doing  so. 
Such  sentences  outside  the  guidelines  would  be  subject 


9322 


14 


to  appellate  review,  at  the  motion  of  the  defense  if  they 
exceeded  the  severity  prescribed  in  the  guidelines,  at 
the  instance  of  the  prosecution  if  they  were  more  lenient 
than  the  guidelines  indicated.  This  plan  is  politically 
sophisticated  and  practical;  its  broad  thrust,  gradually 
bringing  defined  criteria  and  appellate  review  to  sen- 
tencmg,  is  to  be  welcomed. 

One  other  reformist  recommendation  that  has  a 
current  fashion  can  be  cursorily  dismissed.  I  refer  to  the 
advocacy  of  mandatory  minimum  sentences  for  given 
offenses.  This  is  a  wholly  illusory  path  to  rational  sentenc- 
ing. It  is  not  even  clear  whether  mandatory  minimum- 
sentences  achieve  the  increased  severity  which  their 
protagonists  seek.  In  some  cases,  certainly,  and  probably 
in  the  case  of  the  mandatory  minimum  sentences 
experimented  with  in  New  York  for  dealing  in  drugs, 
they  have  achieved  leniency  rather  than  severity.  People 
who  advocate  mandatory  minimum  sentences  seem  to 
forget  that  discretion,  rather  like  matter,  cannot  be  de- 
stroyed; it  can  be  shifted,  it  can  be  controlled  and  possibly 
modulated,  but  not  destroyed.  Mandatory  minimum 
sentences  tend  merely  to  shift  discretion  from  judges 
to  prosecutors.  Charge  bargaining  increases;  plea  bar- 
gaining and  judicial  sentencing  decrease.  There  is  little 
reason  to  believe  that  prosecutors  and  defense  counsel, 
in  their  intricate  negotiating  gavottes,  influenced 
by  the  widest  range  of  pressures,  proper  and  improper, 
not  the  least  by  the  business  of  the  jurisdiction  in  which 
they  practice,  can  achieve  more  just  sentencing  than 
prosecutors,  defense  counsel  and  judges  do  at  present. 
A  shift  of  discretion  from  the  judge  to  the  prosecutor  by 
no  means  guarantees  a  reduction  of  unjust  sentencing 
disparities. 

But  there  is  an  important  element  in  the  recommen- 
dations of  von  Hirsch,  of  Dershowitz  and  (to  add  another 


9323 
15 


commentator)  of  Ernest  van  den  Haag  in  his  book. 
Punishing  Criminals, ^"^  which  cannot  be  as  cursorily 
dismissed  as  can  the  argument  for  mandatory  minimum 
sentences.  Their  recommendations  lead  to  an  issue  of 
principle  central  to  the  relationship  between  equality 
and  desert.  They  all  favor,  as  do  I,  a  system  of  sentences 
which  is  primarily  retributive,  which  does  not  pretend  to 
a  personal  curative  effect  on  the  criminal,  and  in  which 
the  proper  sentence  to  be  imposed  is  strongly  influenced 
by  what  the  criminal  has  done.  Thus,  concepts  of  just 
desert  are  of  overwhelming  importance.  Indeed,  von 
Hirsch  and  the  Committee  for  the  Study  of  Incarcera- 
tion, whose  report  his  book  encapsulates,  build  their  en- 
tire sentencing  system  on  a  defining  relationship  be- 
tween the  deserved  and  the  imposed  punishment. 
Alan  Dershowitz'  presumptive  sentencing  recommenda- 
tion somewhat  weakens  the  link  between  the  de- 
served and  the  appropriate  sentence,  but  desert  still 
remains  a  defining  principle.  My  view  is  different:  It 
is  that  desert  is  not  a  defining  principle,  but  is  rather  a 
limiting  principle;  that  the  concept  of  a  just  desert 
properly  limits  the  maximum  and  the  minimum  of  the 
sentence  that  may  be  imposed,  but  does  not  give  us  any 
more  fine  tuning  to  the  appropriate  sentence  than 
that. 

Is  this  only  a  quibble,  or  does  it  push  to  issues  of  principle 
concerning  just  sentencing?  I  think  the  latter,  of  course, 
and  hope  to  prove  that  conclusion  to  you  today.  Let  me 
offer  some  examples  where  it  seems  to  be  accepted, 
and  is  in  my  view  proper  and  just,  not  to  treat  like  cases 
alike.  The  exemplary  sentence  is  such  a  case.  As  Pro- 
fessor Nigel  Walker  put  it,  judges  "will  sometimes 
impose  sentences  which  are  markedly  more  severe  than 
the  norm  for  the  express  purpose  of  increasing  their 
deterrent    effect." '^    He   gives   as   an   example   the    im- 


9324 
16 


position  of  a  sentence  of  four  years  imprisonment  on 
each  of  nine  young  white  men  who  were  involved  in 
attacks  on  blacks  in  the  Nottinghill  District  of  London  in 
1958.  This  sentence  was  at  least  double  the  sentence 
normally  imposed  for  their  offenses,  and  was  stated  by 
the  sentencing  judge  to  be  in  excess  of  his  normal  sen- 
tence for  such  offenses,  but  it  was  within  the  legisla- 
tively prescribed  maximum  for  those  offenses.  It  was 
imposed  expressly  as  an  exemplary  punishment,  to  cap- 
ture public  attention  and  to  deter  such  behavior  by  a 
dramatic  punishment.  It  needs  no  refined  analysis  to 
demonstrate  that  these  nine  offenders  were  selected 
for  unequal  treatment  before  the  law.  Please  do 
not  misunderstand  me,  I  am  not  opposing  such  sentences, 
quite  the  contrary.  Rather,  I  am  arguing  that  if  the  in- 
creased penalty  is  within  the  legislatively  prescribed 
range  then  any  supposed  principle  of  equality  does  not 
prevent  such  a  sentence  from  being  in  the  appropriate 
case  a  just  punishment.  There  are  many  such  examples, 
they  occur  in  all  countries  and  are  generally  accepted. 
Let  me  give  you  just  one  more  example.  Annually,  in 
Chicago,  there  is  what  is  called  a  "crackdown  on  drunken 
driving."  It  occurs  in  the  latter  weeks  of  November 
and  the  early  weeks  of  December.  It  is  designed  ex- 
pressly to  reduce  the  carnage  from  drunken  driving  in 
Chicago  over  the  Christmas  period.  Often,  those  selected 
for  punishment  during  this  crackdown  commit  their 
offenses  in  the  summer  or  autumnal  months,  when 
the  thought  of  the  allegedly  jolly  penury  of  Christmas  is 
far  from  their  minds;  but  such  are  the  delays  in  the  courts 
that  an  opportunity  to  serve  their  country  as  recipients 
of  exemplary  punishment  is  vouchsafed  them — in  this 
instance,  a  jail  term  for  what  would  at  other  times  be 
punished  by  lesser  sanctions.  My  excellent  colleague, 
Franklin  Zimring  has  done  a  close  study  of  this  practice 
and  has  concluded,  cautious  fellow  that  he  is,  addicted 


9325 


17 


as  he  is  to  methodological  niceties,  that  it  is  not  disproved 
that  the  "crackdown"  may  have  reduced  the  Yuletide 
devastation  in  Chicago  from  the  combination  of  the 
ingestion  of  alcohol  and  the  activation  of  the  internal 
combustion  engine. 

Exemplary  punishment  is  surely  discordant  to  the  prin- 
ciple that  like  cases  should  be  treated  alike,  if  that  prin- 
ciple is  regarded  as  either  a  limiting  or  defining  principle 
of  just  punishment. 

At  the  other  end  of  the  punishment  process  another 
example  is  to  be  found  of  general  acceptance  of  not 
treating  like  criminal  cases  alike.  The  pardon  and 
amnesty  power  is  exercised  in  dramatically  different 
ways  in  different  jurisdictions,  but  it  exists  in  all,  at  home 
and  abroad.  Pressures  outside  the  prisoner  and  his  crime, 
factors  plainly  extrinsic  to  the  deserved  punishment,  the 
birth  of  a  prince,  the  inauguration  of  a  new  government, 
the  cessation  of  a  foreign  war,  and  political  processes  far 
removed  from  whatever  makes  criminal  cases  alike, 
except  differences  of  date  of  the  commission  of  the  crime 
or  imposition  of  the  sentence,  will  lead  to  clemency 
to  one  prisoner  which  was  denied  to  another.  The  pardon 
and  amnesty  power  is  difficult  to  reconcile  with  the 
equality  principle  if  that  principle  is  regarded  as  either 
defining  or  limiting  just  punishment. 

Let  us  consider  another  hard  case  for  that  principle, 
this  time  a  law  teacher's  hypothetical,  which,  however, 
I  shall  later  argue  is  realistic,  presenting  some  empirical 
data  to  that  end. 

Let  us  suppose  what  is,  no  doubt,  wildly  unlikely, 
that  six  medical  practitioners  in  Denver  are  discovered 
to  have  a  preference  for  patients  who  pay  th^m  in  cash 
and  who  do  not  require  receipts.  Let  us  suppose  that  on 
full  investigation  we  discover  that  all  six  doctors  have 


9326 

18 

understated  their  income  last  year  by,  say,  $20,000 
each.  For  some  time  we  have  been  doubtful  of  the  pre- 
cision of  tax  returns  by  medical  practitioners  in  this 
city  and,  as  advisers  to  the  Internal  Revenue  Service, 
we  discuss  what  should  be  done  about  the  six  doctors. 
Well,  to  start  with,  it  is  quite  clear  that  all  six  must 
pay  tax  on  the  income  they  have  failed  to  declare, 
interest  at  appropriately  high  rates  on  that  tax,  and  sub- 
stantial financial  penalties  for  their  criminality.  All 
this  can,  of  course,  be  arranged  without  the  need  for 
their  prosecution  before  a  federal  district  court.  Most 
of  the  six  and  their  tax  advisers  will  be  happy  indeed 
to  arrange  such  settlements  with  IRS  agents  or,  if" 
necessary  in  relation  to  disputed  issues  of  fact,  through 
the  tax  court.  Do  we  need  to  prosecute  all  six  in  the 
federal  district  court  and  do  we  need  to  send  all  six 
to  prison?  I  submit  not.  Our  purposes  are  utilitarian, 
deterrent.  We  wish,  as  Voltaire  said  of  the  English 
practice  of  killing  an  occasional  admiral  to  encourage 
the  others  to  bravery,  publicly  to  punish  by  sending 
to  prison  an  occasional  medical  practitioner  "to  encour- 
age the  others"  to  integrity  in  their  tax  returns.  We 
do  not  need  to  send  all  six  to  prison.  The  extra  incre- 
ment of  deterrence  would  be  bought  at  too  high  a  cost. 
It  would  be  wasteful  of  our  own  resources,  wasteful  of 
the  court's  time  and,  what  is  perhaps  also  in  point,  it 
would  inflict  unnecessary  suffering  on  those  doctors 
whose  punishment  did  not  substantially  increase  the 
deterrent  impact  we  would  gain  by  the  imprisonment  of, 
say,  two  of  their  number.  The  principle  of  parsimony 
overcomes  the  principle  of  equality. 

How  should  we  select  those  to  be  imprisoned?  Per- 
haps we  should  struggle  for  some  distinguishing  character- 
istic of  deserved  severity  or  some  opportunity  of  extra 
deterrent  utility  in  the  punishment  of  some  amongst  the 


9327 
19 


six;  but  what  is  important  to  recognize  is  that  we  are 
involved  in  a  conscious  breach  of  a  principle  that  like 
cases  should  be  equally  punished.  It  may  be  that  we  would 
select  those  doctors  whose  lives  had  achieved  the 
larger  contribution  to  social  welfare  and  who,  as  a 
consequence,  were  the  better  known  of  the  six;  their 
punishment  would  thus  achieve  the  larger  deterrent 
impact.  That  can  hardly  be  a  reason  of  equality  for 
selecting  them  for  the  larger  punishment. 

This  principle  of  parsimony  in  the  imposition  of  punish- 
ment is,  I  think,  of  great  importance,  and  is  too 
often  neglected.  Let  me  offer  some  figures  to  demonstrate 
the  frugality  with  v/hich  the  Internal  Revenue  Service 
in  practice  applies  its  massive  punitive  powers.  In  1975, 
throughout  this  vast  country,  only  1391  defendants  were 
indicted  for  federal  income  tax  violations,  of  whom 
1158  were  convicted  and  sentenced,  and  of  whom  only 
367  were  sent  to  prison  or  jail.  In  1976,  the  number  of 
indictments  declined  to  1331  and,  of  course,  the  num- 
ber of  convictions  and  prison  sentences  are  not  yet 
determined.  This  is  an  astonishingly  selective  and  cautious 
use  of  the  sanction  of  imprisonment  for  deterrent 
purposes.  Is  it  unjust?  It  cannot  be  treating  like  cases 
alike  if  any  reasonable  concepts  of  the  quality  of  guilt 
and  deserved  suffering  are  to  be  applied.  In  my  view, 
on  the  data  that  have  been  published  about  the  impli- 
cation of  the  prison  term  in  federal  district  courts, 
the  system  is  both  unequal  and  just,  and  it  is  precisely 
that  apparent  paradox  I  am  seeking  to  defend. 

When  I  put  this  type  of  case  to  many  people,  academic 
and  civilian  (if  the  distinction  will  be  accepted),  they 
tend  to  reply  that  this  discriminatory  selective  invo- 
cation of  the  prison  sentence  by  prosecutorial  agencies, 
by   administrators,    is   to    be  approved,   provided   it   is 


9328 

20 

properly  controlled  by  K.  C.  Davis-like  criteria  that  can 
be  announced  and  tested  as  to  their  validity;  but  that 
it  v^'ould  be  grossly  unjust  for  a  judge  to  act  in  this 
fashion  in  exercising  his  sentencing  discretion.  This  dis- 
tinction puzzles  me.  You  will  note  that  it  is  not  made 
about  exemplary  punishment,  where  there  seems  to  be 
general  acceptance  of  the  judge  as  the  selector  of  the 
individual  for  the  exemplary  punishment.  Why  should  the 
judge  not  be  equally  capable  of  being  the  selector  of 
the  four  of  my  six  doctors  not  to  receive  the  more 
severe  punishment?  It  can  hardly  be  that  the  sentence 
of  two  of  the  six  to  prison,  if  only  two  are  taken 
by  the  prosecutor  to  trial  and  four  are  handled  admin- 
istratively, is  a  just  sentence,  but  that  it  would  not  be 
a  just  sentence  if  the  selection  were  made  by  a  judge. 
Equality  in  that  case  would  serve  only  to  protect  the 
judicial  role,  to  protect  the  oracle,  the  black  robe — 
although  that  too  is  an  important  value  which  cannot  be 
dismissed  out  of  hand. 

As  you  will  gather,  I  have  difficulty  with  these  problems 
and  by  no  means  pretend  to  their  solution;  but  I  do 
strenuously  argue  that  I  have  demonstrated  situations 
in  which  justice  and  the  principle  of  equality  are  not 
coterminous. 

Our  entire  present  criminal  justice  system  is  infested 
with  discretion  in  the  exercise  of  the  punishment  power, 
and  much  of  this  discretion  must  continue  to  be  exercised, 
guided  but  not  determined  by  principles  of  equality  in 
punishment.  At  present,  the  shortage  of  police,  prosecu- 
torial, defense,  judicial  and  punishment  resources 
compels  the  discretionary  selection  of  cases  to  be  pros- 
ecuted; but  the  constraint  that  the  principle  of  parsimony 
in  punishment  properly  imposes  on  the  principle  of  equal- 
ity in  just  punishment  would  remain  were  such  resources 
unlimited.    Equality  would   still   remain   only  a  guiding 


9329 

21 

principle;  even  with  adequate  resources  in  the  criminal 
justice  system,  equality  would  neither  define  nor  limit 
just  punishment.  By  contrast,  the  principle  of  a  deserved 
punishment  is  and  should  remain  a  limiting  principle  of 
just  punishment.  Let  me  try  to  unpack  that  blunt  affirma- 
tion. 

Let  me  propose  that  the  death  penalty  be  the  mandatory 
sentence  for  anyone  convicted  of  abortion.  I  am  not 
talking  only  about  an  abortion  in  which  the  mother  dies 
but  the  run-of-the-mill  legally  unjustified  abortion  in 
which  the  life  of  the  well-grown,  third-trimester  foetus 
is  terminated.  Well,  why  do  you  not  leap  to  accept  such 
a  proposition?  Why  does  no  one,  so  far  as  I  know,  ad- 
vocate that  punishment?  Not  even  the  most  perfervid 
advocates  of  the  right-to-life  position  seem  to  take  them- 
selves that  seriously  in  relation  to  abortion  being  mur- 
der. On  deterrent  utilitarian  grounds  there  would  be  a 
great  deal  to  be  said  for  such  a  penalty  if  you  are  a 
true  believer  in  the  right  to  life.  It  would  certainly 
push  the  price  of  the  backyard  abortion  up  to  a  very 
high  figure;  it  would  greatly  reduce  the  number  of 
foetuses  whose  existence  was  terminated;  it  would  greatly 
increase  the  number  of  tickets  that  were  purchased  on 
international  airlines  and  I  would,  for  my  own  part, 
immediately  reinvest  in  TWA.  Well,  why  not?  The  answer 
must  surely  be  that  no  one  would  see  such  a  punish- 
ment as  an  appropriately  deserved  punishment,  even 
those  who  are  both  in  favor  of  protecting  the  foetus 
and  in  favor  of  capital  punishment  for  convicted  mur- 
derers. The  limiting  principle  is  the  principle  of  desert. 
As  elsewhere,  it  is  hard  to  quantify  this  principle,  but 
it  clearly  operates  in  this  case  to  hold  that  such  a  punish- 
ment would  be  undeserved. 

Desert  thus  operates  categorically  to  limit  the  maximum 
of  punishment.  Sometimes  it  operates  to  limit  the  minimum, 


9330 
22 


when  it  is  argued  that  a  too  lenient  punishment  would 
unduly  depreciate  the  seriousness  of  the  offense  that  the 
accused  has  committed.  An  example  of  this  was  the 
sentencing  of  Spiro  Agnew  which,  in  my  view,  was 
entirely  correct,  for  utilitarian  and  governmental  practical 
reasons,  but  which  certainly  strained  at  the  lower  level 
of  the  deserved  punishment. 

By  contrast,  I  am  suggesting  that  the  principle  of 
equality,  that  like  cases  should  be  treated  alike,  is  not 
a  limiting  principle  at  all,  but  is  only  a  guiding  princi- 
ple which  will  enjoin  equality  of  punishment  unless  there 
are  other  substantial  utilitarian  reasons  to  the  contrary,- 
such  as  those  that  favor  exemplary  punishment  or  the 
parsimonious  punishment  of  some  of  my  six  doctors,  or 
in  situations  where  there  are  inadequate  resources  for 
or  high  costs  attached  to  the  application  of  equal 
punishments.  The  equality  principle  neither  restricts  nor 
limits;  it  merely  guides.  The  principle  of  desert  is  not 
much  of  a  guide,  but  it  does  restrict  and  limit. 

When  we  say  a  punishment  is  deserved  we  rarely  mean 
that  it  is  precisely  appropriate  in  the  sense  that  a 
deterrent  punishment  could  in  principle  be.  Rather  we 
mean  it  is  not  undeserved;  that  it  is  neither  too  lenient 
nor  too  severe;  that  it  neither  sentimentally  understates 
the  wickedness  or  harmfulness  of  the  crime  nor  inflicts 
excessive  pain  or  deprivation  on  the  criminal  in  rela- 
tion to  the  wickedness  or  harmfulness  of  his  crime.  It 
is  not  part  of  a  utilitarian  calculus,  in  the  properly 
restricted  Rawlsian  sense  of  utilitarianism.  The  concept 
of  desert  defines  relationships  between  crimes  and 
punishments  on  a  continuum  between  the  unduly  lenient 
and  the  excessively  punitive  within  which  the  just  sen- 
tence may  on  other  grounds  be  determined. 

It  is  not  my  concern  today  to  try  to  explain  how 
complexities  of  social  relationships  and  the  dialectic  of 


9331 
23 


human  thoughts  and  actions  determine  over  time  the  values 
that  set  these  minima  and  maxima  of  deserved  punish- 
ments for  diverse  crimes.  What  is  determinative  is  that 
these  values  exist  and  underlie  concepts  of  "just  desert" 
which  set  the  limits  of  acceptable  intervals  on  a  spectrum 
of  just  punishment. 

To  summarize:  Desert  is  not  a  defining  principle;  it  is 
a  limiting  principle.  The  concept  of  "just  desert"  sets  the 
maximum  and  minimum  of  the  sentence  that  may  be  im- 
posed for  any  offense  and  helps  to  define  the  punish- 
ment relationships  between  offenses;  it  does  not  give 
any  more  fine  tuning  to  the  appropriate  sentence  than 
that.  The  fine  tuning  is  to  be  done  on  utilitarian 
principles. 

Some  immediate  quibbles  you  may  have  concerning 
this  analysis  had  better  be  brushed  aside.  What  of  the  Tal- 
ionic  Law,  you  say?  An  eye  for  an  eye,  a  tooth  for  a 
tooth,  a  life  for  a  life?  Well,  that  does  not  help  much 
with  our  present  punishment  currency  of  fines,  probation 
and  prison  where  the  desert  exchange  rates  are  harder 
to  calculate.  And  even  the  most  atavistic  punisher  does 
not  advocate  capital  punishment  for  every  criminal  killer; 
he  will  favor  the  death  penalty  for  only  some  mur- 
derers, indeed  a  few,  which  supports  rather  than  conflicts 
with  my  argument.  And,  in  any  event,  the  Talionic  Law 
properly  understood  means  not  a  life  for  a  life,  an 
eye  for  an  eye,  but  rather  no  more  than  a  life  for  a 
life,  not  torture  and  then  death,  and  a  life  only  for  a 
life,  not  a  life  for  larceny  or  embezzlement.  It,  too, 
was  and  is  a  limiting  not  a  defining  principle. 

No.  The  Mikado's  aim  of  letting  the  punishment  fit  the 
crime  belongs  to  Gilbert  and  Sullivan,  not  to  the  real 
world  of  criminal  justice  nor  to  a  jurisprudence  of 
imprisonment. 


9332 
24 


As  you  will  have  gathered,  I  come  to  these  problems 
by  worrying  about  practice  and  then  I  try  to  look  at 
the  philosophic  authorities  to  see  how  they  address 
them.  This  second  step  is  always  more  burdensome,  but 
we  had  better  take  it. 

In  the  Protagoras,  Plato  suggests  that  "He  who  under- 
takes to  punish  with  reason  does  not  avenge  himself  for 
past  offense,  since  he  cannot  make  what  was  done  as 
though  it  had  not  come  to  pass;  he  looks  rather  to  the 
future,  and  aims  at  preventing  that  particular  person 
and  others  who  see  him  punished  from  doing  wrong  again 
.  ...  He  punishes  to  deter. "''*  Seneca  put  it  more 
curtly,  "Nemo  prudens  punit  quia  peccatum  est,  sed  ne 
peccetur"  (No  reasonable  man  punishes  because  there  has 
been  a  wrongdoing,  but  in  order  that  there  should  be 
no  wrongdoing).  That  is  the  purely  utilitarian  statement, 
the  extreme  contrast  to  which  is  that  of  Kant:  "The 
Law  concerning  punishment  is  a  categorical  imperative, 
and  woe  to  him  who  rummages  around  in  the  winding 
paths  of  a  theory  of  happiness  looking  for  some  ad- 
vantage to  be  gained  by  releasing  the  criminal  from 
punishment  or  by  reducing  the  amount  of  it — in  keeping 
with  the  Pharisaic  motto:  *It  is  better  that  one  man  should 
die  than  that  the  whole  people  should  perish'.  If  legal 
just'ce  perishes,  then  it  is  no  longer  worthwhile  for 
men  to  remain  alive  on  this  earth. "'^ 

Thus  the  issue  has  been  drawn  in  philosophic  dis- 
course between  relativist,  utilitarian  guides  to  punish- 
ment and  categoric,  non-utilitarian  absolutist  principles. 
The  argument  survives  the  centuries,  but  throughout  these 
centuries  of  uncertainty  there  has  been  what  H.  L.  A. 
Hart  describes  as  the  "somewhat  hazy  requirement"'^ 
of  justice  that  like  cases  be  treated  alike.  Professor 
Hart  further  suggests  that  "there  is,  for  modern  minds. 


9333 

25 

something  obscure  and  difficult  in  the  idea  that  we 
should  think  in  choosing  punishment  of  some  intrinsic 
relationship  which  it  must  bear  to  the  wickedness  of  the 
criminal's  act,  rather  than  the  effect  of  the  punishment 
on  society  and  on  him."'^ 

Much  of  the  literature  of  philosophy  on  this  topic 
deals  with  what  factors  make  like  cases  alike  and  once  it 
is  decided  what  factors  bear  upon  desert  and  deterrence, 
it  tends  to  be  assumed  that  the  equally  guilty  should  be 
equally  punished.  As  you  see,  it  is  a  severance  I  am 
seeking  to  make  and  to  suggest  that  these  two  princi- 
ples operate  quite  differently. 

How  does  all  this  square  with  the  views  of  John  Rawls? 
It  is  true,  of  course,  that  Rawls  was  writing  in  A 
Theory  of  Justice^^  of  strict  compliance  theories  of 
justice  and  not  of  the  problems  of  punishment  with 
which  we  are  concerned,  but  it  seems  to  me  that  his 
principles  are  applicable  and  in  conformity  with  the 
argument  that  1  am  trying  to  offer.  He  writes  that  "all 
social  values  ...  are  to  be  distributed  equally  unless 
an  unequal  distribution  of  any,  or  all,  of  these  values 
is  to  everyone's  advantage.  Injustice,  then,  is  simply 
inequalities  that  are  not  to  the  benefit  of  all."'*^ 
It  seems  to  me  that  the  type  of  parsimony  and  inequal- 
ity in  the  use  of  punishment  which  I  suggest  works  to 
the  benefit  of  all  and  does  not  offend  sound  principles 
of  justice  as  Rawls  defines  them. 

Let  me  put  aside  the  philosophic  implications  of  the 
argument  and  turn  to  some  more  lighthearted  psycholog- 
ical reflections. 

"It  isn't  fair,"  the  prisoner  tells  me.  "Here  am  I, 
serving  two  years  for  that  bank  robbery  when  others 
who  have  done  just  as  bad,  have  ripped  off  even  more, 
have  not  been  caught  or  have  not  been  convicted  or  are 


9334 
26 


serving  lesser  terms."  My  usual  reply  is  to  wish  that 
they  were  in  there  with  him,  but  to  ask  him  if  he 
thinks  that  for  what  he  actually  did,  as  distinct  from  that 
for  which  he  was  convicted,  'he  deserved  the  punish- 
ment he  has  received.  The  general  answer,  I  find,  is 
an  enthusiastic  reassurance  that  he  certainly  has  done 
enough  to  deserve  this  punishment  and  that  his  only 
complaint  is  that  others  haven't  been  treated  likewise. 
Well,  is  it  a  good  complaint?  In  terms  of  utilitarian 
analysis  it  may  well  be.  We  might  well  have  a  much 
safer  society  if  we  were  capable  of  catching,  convicting 
and  rationally  sentencing  more  of  our  predatory  and 
violent  criminals.  But  in  terms  of  justice,  I  am  not  at 
all  sure.  1  am  prepared  to  allow  that  he  has  been 
treated  unfairly,  if  fairness  presupposes  equality  of 
punishment,  but  I  always  argue  to  prisoners,  and  usually 
without  too  great  animosity  on  their  part,  that  principles 
of  justice  do  not  require  an  equality  of  punishment. 
You  would  be  surprised  how  much  more  sensible  prison- 
ers are  about  matters  of  punishment  than  are  my  colleagues 
at  the  University  of  Chicago  Law  School. 

I  used  to  hear  the  same  argument  interminably  in 
my  family.  "Here  you  go,"  said  my  second  son,  "imposing 
these  cruel  deprivations  on  me.  This  brutal  temporary 
denial  of  use  of  the  car,  whereas  my  elder  brother,  as 
usual,  gets  away  with  much  worse  without  even  de- 
tection, and  that  younger  brother,  who  is  discovered 
in  his  wickedness,  is  treated  with  maudlin,  senile 
sentimentality,  and  not  punished  at  all."  I  used  to  find 
these  confrontations  with  my  second  son  more  difficult 
than  those  with  the  prisoners — I  miss  them  now. 

There  is  little  doubt  that  principles  of  equality  bulk 
large  in  psychological  concepts  of  the  fair  punishment. 
The   question   is   whether  concepts   of  fairness   and    of 


9335 

27 


justice  are  identical.  I  think  it  not  at  all  imprecise  to 
argue  that  a  punishment  is  both  unfair  and  just.  Principles 
of  fairness,  psychologically  and  in  terms  of  the  growth 
of  the  individual  psyche,  antedate  the  development  of 
a  sense  of  justice.  The  sense  of  justice  is  a  social  concept 
in  which  the  necessities  and  practicabilities  of  social 
organization  must  in  some  cases  take  precedence  to  the 
pressures  towards  identity  of  treatment  in  relation 
to  desert. 20 

Let  me  now,  and  I  am  sure  you  will  be  deeply  grateful 
for  the  promised  cessation  of  punishment,  try  to  draw 
this  lecture  to  a  close  by  suggesting  some  of  the  implica- 
tions of  the  argument  I  have  offered  concerning  the 
relationship  between  equality  and  desert. 

First,  though  my  view  of  the  equality  principle  is  neutral 
in  its  relationship  to  the  indeterminacy  of  sentencing 
and  to  the  survival  or  the  proper  role  of  parole  boards,  it 
argues  strongly  against  legislatively  fixed,  flat-time 
sentences.  The  legislature  is  in  no  possible  position  to 
handle  the  fine  tuning  of  just  sentencing  required  by 
the  relationship  I  have  suggested  between  the  princi- 
ples of  desert  and  equality.  Flat-time  sentences,  judicially 
fixed  terms  subject  to  time  off  for  good  behavior,  are  en- 
tirely acceptable;  but  not  legislatively  fixed  sentencing, 
even  if  some  discretion  be  given  to  the  judge  to  vary 
sentences  for  statutorily  defined  aggravating  and  miti- 
gating circumstances.  Such  are  the  diversities  of  human 
criminal  behavior  and  such  the  complex  relationships 
between  justice  and  fairness,  that  the  legislature  should 
properly  define  only  the  maximum  and  minimum  terms 
that  the  judge  should  impose.  In  other  words,  concepts 
jof  "just  desert"  should  properly  guide  the  legislature  in 
fixing  the  range  in  which  the  judge  should  struggle  for 
larger  justice  than  can  be  achieved  by  the  desert  princi- 
ple alone. 


92-465  O  -  77  -  49 


9336 
28 


Secondly,  mandatory  minimum  sentences  offend  the 
principles  of  parsimony  and  of  equality  as  here  inter- 
related. Further,  they  are  either  ingenuous  or  unwise, 
being  a  shift  of  discretion  from  judge  to  prosecutor,  which 
is  unwise.  They  are  political  ploys,  not  principled  sentenc- 
ing reforms. 

Thirdly,  recommendations  like  those  of  the  Com- 
mittee for  the  Study  of  Incarceration  and  the  Task  Force 
on  Criminal  Sentencing  of  the  Twentieth  Century 
Fund,  with  their  support  of  "presumptive  sentences," 
do  not  lay  out  the  path  we  should  follow.  If  accepted,  they 
would  be  clear  advances  on  our  present  sentencing 
anarchy  and  inequity,  but  they  are  a  less  principled  course 
for  us  to  follow  than  the  path  laid  out  by  the  American 
Law  Institute's  Model  Penal  Code  commissioners, 
which  would  better  guide  us  to  a  Common  Law  of 
Sentencing.  The  several  proposals  for  a  federal  crimiral 
code,  the  American  Bar  Association's  Committee  on 
Sentencing  in  its  Standards  Project,  and  a  number  of 
recently  proposed  and  legislatively  accepted  state  crimi- 
nal codes  are  building  on  the  American  Law  Institute's 
initiative  and  can  increasingly  give  a  rational  frame  of 
reference  to  the  judge  in  his  difficult  task  of  punishing 
the  convicted  criminal.  They  reduce  the  number  of 
categories  of  felonies  and  misdemeanors  in  relation  to 
the  maxima  and  minima  of  punishment  applicable  to 
-each  and  they  guide  the  judge  in  the  criteria  that  he 
is  to  apply  in  the  exercise  of  his  sentencing  discretion  to 
fix  the  proper  term  of  imprisonment,  if  imprisonment 
is  to  be  ordered,  within  the  discretion  statutorily  given 
to  him.  To  continue  this  evolution  toward  a  Common 
Law  of  Sentencing  it  should  increasingly  be  required 
that  the  judge  should  give  reasons  for  his  choice  of  sentence 
and  that  his  sentences  and  thus  his  reasons  should  be 
subject,  as  in  other  countries,  to  appellate  review.  Princi- 


9337 
29 


pled  sentencing  lies  at  the  heart  of  an  effective  criminal 
justice  system;  it  is  obvious  that  it  deserves  our  best 
intelligence  and  that  means  reasons  given,  critical 
appellate  review  of  those  reasons,  critical  public  con- 
sideration of  those  reasons,  a  system  of  precedent  leading 
to  principled  justice  under  law. 

It  should  be  added  that  the  proposals  of  the  Department  of 
Justice  for  the  establishment  of  a  Commission  on  Sentenc- 
ing, promulgating  guidelines  to  sentencing,  requiring 
the  statement  of  reasons  for  sentences  outside  those 
guidelines  and  subjecting  such  sentences  to  appellate 
review  is  a  most  encouraging  step  towards  rational  and 
just  sentencing. 

Finally,  everything  I  have  said  and  the  work  of  others 
that  I  have  tried  to  build  upon,  all  presuppose  that  we 
take  seriously  the  moral  imperative  critically  to  measure 
the  consequences  of  our  penal  sanctions.  So  much  that 
could  be  known  about  punishment  is  unknown  and  un- 
studied. Deterrent  studies  are  in  their  infancy,  studies 
of  reformative  efforts,  in  and  out  of  institutions,  are 
unsophisticated  and  largely  unhelpful.  It  is  a  sin  against 
the  light  to  have  to  base  such  serious  penal  sanctions  as 
imprisonment  and  now,  God  help  us  all,  possibly  the 
death  penalty,  on  our  present  insecure,  empirically  un- 
sophisticated guesses  about  the  social  consequences  and 
effects  of  what  we  do.  I  hope  my  speculations  have  in- 
terested you;  how  much  better  if  they  could  have  been 
buttressed  by  more  knowledge  of  the  social  consequences 
of  imprisonment. 


9338 
30 


'University  of  Chicago  Press.  1974. 

21d.  pp.  60-62. 

^Studies  in  Criminal  Law,  Norval  Morris  and  Colin  Howard, 
(Oxford:  Clarendon  Press,  1964),  pp.  175-177;  The  Future  of  Imprison- 
ment, Norval  Morris,  Chapter  2. 

*The  Future  of  Imprisonment,  pp.  73-77. 

'Sentencing  Memoramdum  75  Cfi  785,  delivered  in  the  United 
States  District  Court,  Southern  District  of  New  York,  June  17,  1976. 

^"The  Second  Circuit  Sentencing  Study:  A  Report  to  the  Judges  of 
the  Second  Circuit,"  by  Anthony  Partridge  and  William  B.  Eldridge, 
Federal  Judicial  Center,  August,  1974. 

^77?^  Future  of  Imprisonment,  pp.  31-57. 

^We  Are  the  Living  Proof:  The  Justice  Model  of  Corrections, 
David  Fogel  (W.  H.  Anderson,  1975). 

'^ Doing  Justice  -  The  Choice  of  Punishments,  Report  of  the  Com- 
mittee for  the  Study  of  Incarceration  (Hill  «fe  Wang,  1976). 

^^Task  Force  on  Criminal  Sentencing,  Fair  and  Certain 
Punishment  -  Report  of  the  Twentieth  Centurv  Fund  (McGraw- 
Hill,  1976). 

""Sentencing  Reform  and  Its  Impact  on  Parole  Practices,"  Karen 
Skrivseth  and  Harry  A.  Scarr,  a  paper  presented  before  the  American 
Society  of  Criminology  on  November  3,  1976.  See  too  Senate  Bill 
2699  presented  on  January  20,  1976,  in  the  first  session  of  the  95th 
Congress  by   Senators   Kennedy,   Abourezk,   Bayh  and   McClellan. 

'2Basic  Books,  1975. 

^^ Sentencing  in  a  Rational  Society,  Nigel  Walker  (London: 
Penguin  Press,  1969),  p.  69. 

^^ Protagoras,  trans.  W.  R.  M.  Lamb  (London:  Heincmann, 
1952),  p.  139. 

"TTie  Metaphysical  Elements  of  Justice.  Part  1  of  The  Meta- 
physics of  Morals,  trans.  John  Ladd  (Indianapolis,  1965),  p.  100. 

^^ Punishment  and  Responsibility:  Essays  in  the  Philosophy  of  Law 
(Oxford,  1968),  p,  24. 

'Md.  at  163. 

'M  Theory  of  Justice,  John  Rawls  (Harvard,  1971). 


9339 
31 


'•^Id.  at  62. 

2""On  the  Development  of  a  Sense  of  Justice,"  Bernard  Rubin, 
a  paper  presented  at  the  Judges  Seminar,  Annual  Judicial  Con- 
ference, Chicago,  Illinois,  April  I,  1976. 


UNiTia)  States  Catholic  Conference, 
Department  of  Social  Development  and  World  Peace, 

Washington,  D.C.,  July  13,  1977. 
Hon.  John  L.  McClellan,  \ 

Subcommittee  on  Criminal  Laivs  and  Procedure^,  Judiciary  Committee,   U.S. 
Senate,  Washington,  D.C.  > 

Dear  Mr.  Chairman  :  The  Department  of  Social  Development  and  World  Peace, 
the  United  States  Catholic  Conference,  welcomes  this  opportimity  to  comment  on 
S.  1437,  the  Criminal  Code  Act  of  1977.  We  recognize  that  reform  of  the  federal 
criminal  code  is  both  technically  and  politically  a  difficult  task.  Crime  and 
punishment  are,  however,  preeminently  moral  issues.  As  religious  leaders,  our 
primary  concern  is  with  the  moral  and  human  dimensions  of  criminal  justice 
policy  and  reform  rather  than  specific  technical  and  administrative  aspects  of 
the  criminal  justice  system.  At  this  time,  we  wish  to  address  only  those  provisions 
of  S.  1437  which  focus  on  corrections,  sentencing,  parole,  handgun  control,  victim 
compensation  and  unlawful  discrimination. 

On  several  occasions  the  Catholic  Bishops  of  the  United  States  have  formally 
addressed  critical  justice  issues,  including  prison  reform,  capital  punishment 
and  handgun  control.  In  1973,  the  bishops  issued  the  statement,  The  Reform  of 
Correctional  Institutions  in  the  1970s,  which  focused  on  the  need  for  and  problems 
of  prison  reform.  They  publicly  stated  their  opposition  to  capital  punishment  in 
November  1974  and  in  1976,  the  President  of  the  United  States  Catholic  Confer- 
ence, Archbishop  Joseph  L.  Bernardin,  issued  a  statement  opposing  the  reinstitu- 
tion  of  the  death  penalty  in  this  country.  In  1975,  the  bishops'  Committee  on 
Social  Development  and  World  Peace  issued  a  document  supporting  a  federal 
ban  on  handguns.  Copies  of  these  statements  are  enclosed  for  your  information. 

These  statements  embody  certain  basic  principles  which  we  believe  are  relevant 
to  federal  criminal  code  reform.  We  will  evaluate  S.  1437  according  to  the  follow- 
ing norms. 

I.  Punishment  in  order  to  fulfill  its  proper  purpose  must  fit  the  nature  of  the 
crime ;  it  must  be  considerate  of  the  offender's  human  dignity ;  and  it  must  be 
tempered  by  mercy  and  constantly  aimed  at  reconciliation. 

II.  Dealing  with  all  except  the  dangerous  offenders  outside  of  penal  institutions 
is  a  challenging  concept  which  society  should  allow  to  prove  itself.  Individual 
and  community  acceptance  of  ex-offenders  with  love  and  understanding  is 
absolutely  necessary  for  their  complete  integration  into  normal  community  living. 
Community  correctional  efforts,  therefore,  should  be  high  on  the  list  of  priorities. 

III.  Society  has  a  right  to  protect  itself  against  lawbreakers  and  even  to  exact 
just  and  measured  retribution,  but  the  limits  of  what  is  reasonable  and  just 
are  far  exceeded  in  too  many  penal  institutions.  Abuses  cannot  be  justified  on 
the  basis  of  their  effectiveness  as  deterrents  to  crime.  It  is  necessary  to  raise 
serious  moral  objection  to  tormenting  one  man  unjustly  in  order  to  instruct  or 
caution  another.  Correctional  institutions  should  be  institutions  of  rehabilitation. 
They  should  help  men  and  women  rebuild  their  lives  in  order  that,  with  few 
exceptions,  they  can  return  to  society  as  considerate,  free  and  law-abiding 
citizens. 

IV.  A  resident  should  be  free  to  refuse  treatments  aimed  at  social  rehabilita- 
tion, whose  appropriateness  can  be  called  into  question  by  reasonable  persons  in 
and  outside  the  institution.  No  penalties  of  any  kind  should  result  from  such 
refusal. 

V.  The  work  to  which  a  resident  is  assigned  should  be — and  appear  to  be — 
worthwhile  and  compatible  with  the  dignity  of  a  human  being.  National  standards 
should  be  adopted  and  promulgated  regarding  compensation  for  work.  Much 
greater  empha,  :«  needed  on  practical  job  training  and  post-release  employment 
opportunity. 

VI.  A  reside  r  ,lcl  be  informed  of  the  date  beyond  which  further  detention 
demands  anothe.  Uitervontion  of  the  court. 

VII.  Parole  is  a  viral  function  both  for  the  offender  and  for  society.  Considera- 
tion should  be  given  to  shifting  the  "burden  of  proof"  by  making  a  parole  auto- 
matic after  a  definitely  determined  period  of  confinement  unless  there  is  sound 
reason  again.st  it. 

VIII.  No  resident  should  be  detained  simply  because  employment  is  not  avail- 
able. If  employment  is  a  condition  for  release  and  no  private  employment  is 
available,  federal,  state  or  local  government  should  make  every  effort  to  assist  the 

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9342 

resident.  Career  counseling,  testing,  guidance  and  bonding — where  applicable — 
should  be  oflPered  all  who  are  preparing  to  be  released. 

IX.  The  United  States  Catholic  Conference  opposes  the  use  of  capital 
punishment. 

X.  Society  must  share  at  least  some  of  the  responsbility  for  compensating 
innocent  victims  of  crime.  When  a  way  is  found  to  pay  offenders  a  fair  rate 
for  the  work  they  do  in  confinement,  provisions  should  be  made  for  regular 
court-determined  payments  oi-  at  least  a  partial  recompense  to  the  victims, 
or  the  survivors  of  victims  of  their  crimes. 

XI.  We  believe  that  effective  action  must  be  taken  to  reverse  the  rising  tide 
of  violence.  For  this  reason,  we  call  for  effective  and  courageous  action  to  con- 
trol handguns,  leading  to  their  eventual  elimination  from  our  society.  Of  course, 
reasonable  exceptions  ought  to  be  made  for  the  police,  military,  security  guards, 
and  pistol  clubs  where  guns  would  ])e  kept  on  the  premises  under  secure 
conditions. 

In  light  of  these  criteria,  we  have  reservations  about  certain  provisions  of  S. 
1437.  We  recognize  that  some  of  these  provisions  are  current  law.  As  moral 
teachers,  we  believe  that  the  primary  basis  for  reform  should  be  the  develop- 
ment of  a  fair  and  equitable  criminal  justice  system.  The  fact  that  a  provision 
is  current  law  does  not  mean  that  it  is  necessarily  just,  and  therefore  even  cur- 
rent law  should  be  carefully  scrutinized  in  the  context  of  criminal  justice  reform. 

se;ntencing  part  hi,  chapter  20 

We  are  concerned  about  the  provisions  on  sentencing  as  they  relate  to  im- 
prisonment, the  rehabilitation  of  the  offender,  the  definiteness  of  the  length  of 
the  sentence,  and  the  quality  of  time  served.  Based  on  the  principles  articulated 
above,  we  agree  that  the  primary  basis  for  determining  a  sentence  should  be  the 
nature  of  the  crime.  The  characteristics  of  the  offender,  however,  are  factors 
relating  to  the  quality  of  treatment  needed  rather  than  determinants  for  the 
lengtli  of  .sentence.  Factors  such  as  the  educational,  medical  or  correctional 
treatment  of  the  offender  should  clearly  be  stated  as  the  l)asis  for  the  considera- 
tion of  placement  of  the  offender  and  not  the  length  of  sentence  or  even  incar- 
ceration. An  individual  should  not  be  imprisoned  for  an  offense  or  receive  a 
longer  sentence  because  of  educational  needs.  These  services  should  be  provided 
but  not  be  the  basis  for  the  length  of  sentence. 

Since  the  decision  to  incarcerate  is  the  major  sentencing  decision,  we  believe 
that  the  legislation  should  include  a  statement  on  this  matter.  In  light  of  the 
proven  destructiveness  of  prisons,  we  would  recommend  that  S.  1437  be  amended 
to  provide  a  presumption  against  incarceration  or  a  reiiuirement  that  a  Judge 
consider  "whether  less  restrictive  sanctions  have  been  applied  to  the  defendant 
frequently  or  recently,"  as  found  in  S.  181. 

Adequate  deterrence  against  crime  is  a  legitimate  concern  of  society,  however, 
it  should  not  be  considered  as  a  primary  basis  for  the  .sentence  imposed.  Too 
often  the  concern  for  deterrence  has  led  to  abusive  treatment  in  correctional 
facilities.  We  would,  therefore,  recommend  a  clearer  statement  of  this  provision, 
and  a  warning  against  abuse. 

IMPRISONMENT  AND   PAROLE  PART  II,   CHAPTER   2,3 

In  general,  parole  and  imprisonment  are  related  functions.  This  fact  was  rec- 
ognized by  the  Catholic  bishops  in  their  1073  statement  on  correctional  reform. 
In  S.  1437.  the.se  functions  are  particularly  well-linked  because  of  the  interrela- 
tionship of  the  tasks  of  the  Parole  Commission  and  the  proposed  Sentencing 
Commission. 

In  their  1973  document,  the  Catholic  Bishops  criticized  the  practice  of  inde- 
terminate sentencing  and  tlie  frequeni  arbitrary  decisions  of  overburdened  parole 
boards  by  which  an  offender's  confinement  can  be  unjustly  and  inhumanlv  ex- 
tended beyond  any  reasonal)le  criterion  of  retribution  for  the  defense.  They  then 
state  that  "consideration  should  l)e  given  to  shifting  the  'burden  of  proof  for 
parole  by  making  parole  automatic  after  a  definitely  determined  period  of  con- 
finement unless  there  is  sound  reason  against  it.  We,  therefore,  support  the  efforts 
in  S.  1437  to  provide  for  a  more  automatic  .system  of  parole. 

In  the  same  statement,  however,  the  bishops  also  state  that  correctional  in- 
stitutions arc   fundamentally   places   of  custody  and   strongholds   for   the   re- 


9343 

moval  of  certain  citizens  where  rehabilitation  remains  largely  an  abstract  ideal 
rather  than  a  concrete  achievement.  We  are.  therefore,  concerned  that  the  effects 
of  Part  II,  Chapter  23  of  S.  1437  may  result  in  increased  sentences  served  by 
most  offenders  in  facilities  that  are  non-rehabilitative  and  often  harmful.  We 
would  encourage  the  Subcommittee  to  review  this  section  in  order  to  ascertain 
the  impact  of  these  provsions. 

Our  difiiculties  with  this  section  also  relates  to  Title  II,  Tart  E  of  the  bill, 
which  describe  the  functions  of  the  Sentencing  Commission.  This  is  discussed 
below. 

With  repect  to  parole  services  we  believe  that  greater  emphasis  on  practical 
job  training  and  post-release  employment  opportunity  is  needed.  If  community- 
based  alternatives  become  the  primary  recourse  of  the  corrections  system,  then 
these  concerns  should  be  well-integrated  with  that  approach.  For  those  who  are 
incarcerated,  we  believe  that  this  function  of  the  parole  system  is  essential  and 
should  remain  a  clear  and  distinct  function  within  the  criminal  justice  system. 

CAPITAL  PUNISHMENT,  PROPOSED  CONFORMING  AMENDMENTS 

It  is  our  understanding  that  the  provision  of  current  law  authorizing  capital 
punishment  in  cases  of  hijacking  where  a  death  occurs,  will  be  incoriDorated  into 
the  new  criminal  code  through  the  proposed  conforming  amendments  to  S.  1437. 
We  recognize  that  this  provision  is  current  law.  Recently,  we  opposed  S.  1382, 
the  bill  which  proposes  to  establish  a  rational  criteria  for  the  imposition  of  the 
death  penalty  under  federal  law.  We  do  not  beheve  that  capital  punshment 
should  be  used  under  any  circumstances. 

SENTENCING  COMMISSION,  TITLE  II,  PART  E 

The  United  States  Catholic  Conference  does  not  have  a  position  at  this  time 
as  to  whether  or  not  sentences  and  sentencing  guidelines  should  be  determined 
by  a  sentencing  commission  (n-  who  should  be  represented  on  such  a  commission. 
In  light  of  the  influence  that  the  proposed  Commission  will  have  over  sentencing 
and  our  concern  that  the  punishment  of  offenders  fit  the  crime,  be  considerate 
of  human  dignity  and  be  tempered  by  mercy  and  constantly  aimed  at  recon- 
cilitation  we  believe  that  a  clear  rationale  to  guide  the  Commission  should  be 
included  in  the  text  of  the  bill  rather  than  the  hodgepodge  of  competing  factors 
articulated  in  the  present  bill. 

As  presently  worded,  there  is  ne  basis  in  S.  1437  from  which  one  may  deter- 
mine the  importance  that  the  particular  factors  enumerated  will  have  in  the 
guidelines  to  be  established  since  there  is  no  overall  statement  of  purpose  of 
sentencing.  We  believe  such  a  statement  is  essential  to  the  development  of  a 
fair  code. 

VICTIM   COMPENSATION,    CHAPTER   41,    SUBCHAPTER   A 

We  were  pleased  to  see  that  some  recognition  of  the  victims  of  crime  has  been 
incorporated  into  this  bill.  The  inclusion  of  victims  of  federal  crimes  against 
person  is  a  first  step  toward  society's  acceptance  of  its  responsibility  to  provide 
for  the  victims  of  crime. 

We  would  also  encourage  efforts  to  involve  the  offender  in  providing  restitu- 
tion to  the  victim  and  not  simply  repayment  to  the  victim's  fund.  Restitution 
should  be  made  part  of  the  rehabilitative  process,  as  has  been  done  successfully  in 
a  number  of  states  . 

HANDGUNS,    TITLE   II,  PART   A,    SECTION    202 

We  recognize  that  handgun  control  is  a  controversial  issue.  In  1975  the  Com- 
mittee on  Social  Development  and  World  Peace  of  the  United  States  Catholic 
Conference  issued  a  statement  supporting  strong  handgun  control  legislation.  As 
initial  steps  toward  comprehensive  control,  they  endorsed  the  following  meas- 
ures :  a  several  day  cooling  off  period,  a  ban  on  "Saturday  Night  Specials,"  reg- 
istration of  handguns,  licensing  of  handgiui  owners,  and  more  effective  controls 
and  better  enforcement  of  existing  laws  regulating  the  manufacture,  importation, 
and  sale  of  handguns. 

S.  1437  essentially  transfers  existing  statutes  to  the  new  criminal  code.  We 
would  support  the  inclusion  of  more  stringent  handgun  control  measures.  At 


9344 

minimum,  we  would  recommeud  tlie  amendment  of  section  922,  of  title  18. 
Ignited  States  Code  and  referred  to  in  Title  II,  Section  202  b(2)  of  the  Criminal 
Code  Reform  Act  of  1977  (50  U.S.C.)  so  as  to  ban  tlie  importation  of  any  part 
intended  to  be  used  in  the  production  of  a  firearm.  This  would  thereby 
strengthen  an  obvious  loophole  in  the  Gun  Control  Act  of  1968. 

We  are  also  concerned  that  this  bill  be  consistent  with  previous  civil  rights 
legislation  on  the  subject  of  discrimination. 

UNLAWItrL  DISCEIMINATION,  SECTION  1504 

This  section  makes  it  a  crime  for  a  person,  by  force  or  threat  of  force,  to  inten- 
tionally injure,  intimidate,  or  interfere  with  another  person's  civil  rights  because 
of  that  person's  race,  color,  sex,  religion  or  national  origin.  It  is  essen- 
tially a  recodification  of  18  U.S.C.  245(b)  (2),  (4),  and  (5),  and  42  U.S.C.  3631 
with  the  addition  of  sex  as  a  prohibited  ground  for  discrimination. 

The  above-stated  statutes  were  part  of  the  Civil  Rights  Act  of  1968.  Apparently, 
at  that  time,  religion  was  included  with  race,  color  and  national  origin  as  a  pro- 
hibited ground  for  discrimination  in  certain  parts  of  the  Act.  Although  we  have 
no  record  of  any  difficulty  being  experienced  w'ith  those  provisions  and  no 
evidence  that  they  have  been  abused,  since  Congress  is  reviewing  the  law  we 
believe  it  is  the  proper  time  to  stress  our  opposition  to  the  inclusion  of  religion 
in  Section  1504  without  some  qualifying  statement,  specifially  as  it  is  contained 
in  Section  1054  (H)  and  (I). 

xVlthough  Section  1504  in  many  ways  parallels  the  Civil  Rights  Acts  of  1964 
and  1968,  making  discrimination  a  crime  where  before  it  only  subjected  one  to 
a  civil  penalty,  the  .section  does  not  have  any  of  the  exceptions  or  exclusions  for 
religion  that  those  laws  have.  For  example.  Title  VI.  Section  601  of  the  Civil 
Rights  Act  of  1964  states  that :  "No  person  in  the  United  States  shall  on  the 
ground  of  race,  color  or  national  origin  be  excluded  from  participation  in,  be 
denied  the  benefits  of  or  be  subjected  to  discrimination  under  any  program  or 
activity  receiving  Federal  financial  assistance." 

Religion  was  not  included  as  one  of  the  prohibited  grounds.  By  excluding  reli- 
gion Congress  was  recognizing  the  distinction  between  legitimate  religious  pref- 
erence and  individous  discrimination  l>a.sed  on  inherent  characteristics  such  as 
race,  color  or  national  origin. 

Congress  also  granted  an  exemption  to  religion  in  Title  VII  of  the  Civil 
Rights  Act  of  1964  in  Section  702,  as  amended  : 

"This  title  shall  not  apply  to  an  employer  with  respect  to  ...  a  religious  cor- 
poration, a.ssociation,  educational  institution  or  society  with  respect  to  the  employ- 
ment of  individuals  of  a  particular  religion  to  perform  work  connected  with  the 
carrying  on  by  such  corporation,  association,  educational  institution  or  societj'  of 
its  activitie.s."  And  Section  703  "it  shall  not  be  an  unlawful  employment  practice 
for  a  school,  college,  university,  or  other  educational  institution  or  institution  of 
higher  learning  to  hire  and  employ  employees  of  a  particular  religion,  if  such 
school,  college,  university  or  other  educational  institution  of  higher  learning  is  in 
whole  or  in  substantial  part  owned,  supported,  controlled  or  managed  l>y  a  par- 
ticular religious  corporation,  association  or  society,  or  if  the  curriculum  of 
such  school,  college,  university  or  other  educational  institution  or  institution 
of  higher  learning  is  directed  toward  the  propag.ition  of  a  particular  religion." 

Section  1504(H)  of  S.  1437,  however,  makes  it  a  crime  to  intentionally 
injury,  intimidate  or  interfere  by  force  or  threat  of  force  with  another  person 
on  the  groinid  of  religion  in  applying  for  or  enjoying  employment  by  a  private 
employer. 

"While  religious  and  religious  organizations  are  free  from  the  requirements  of 
Title  VII  for  their  legitimate  operations,  they  are  included  in  the  Jurisdi'^tion 
of  Section  1504.  It  i.s  not  luireasonable  to  imagine  that  the  officials  of  religious 
institutions  may  l)e  subject  to  criminal  sanctions  for  activities  which  ai'e 
exempted  under  other  Civil  Riglits  laws. 

This  is  also  true  regarding  Section  l.lOld).  which  refers  to  the  sellin;;.  jnir- 
chaslng,  renting,  financing  or  occupying  a  dwelling:  contracting  or  nesotiating 
for  the  sale,  purchase,  rental,  financinsr  or  occupation  of  a  dwellin<r :  or  ap- 
plying for  or  participating  in  a  service  of  renting  dwellings.  Section  807  of  the 
Civil  Rights  Act  of  lOOS.  allowed  an  exemption  for  religious  organizations,  as- 
sociations or  societies  of  any  nonprofit  institution  operated,  supervised  or  con- 
trolled by  or  in  conjunction  with  a  religious  organization,  or  society,  from  limiting 
the  sale,  rental  or  occupancy  of  xlwellings  which  it  owns  or  operates  for  other 


9345 

than  a  commercial  purpose  to  persons  of  the  same  religion,  or  from  giving  pref- 
erence to  such  persons,  unless  membership  in  such  religion  is  restricted  on 
account  of  race,  color,  or  national  origin. 

From  the  above  it  is  clear  that  Section  1504  of  S.  1437  will  be  inconsistent 
with  these  earlier  Civil  Rights  law.s.  Although  we  do  not  foresee  any  instances 
of  church  officials  using  force  or  threats  of  force  to  intentionally  injure  or 
intimidate  the  civil  rights  of  any  person,  we  can  foresee  situations  where  un- 
just charges  may  be  made.  If  they  are  upheld  we  wonder  what  effect  this  will 
have  on  the  previous  exemptions  and  exclusion  in  the  Civil  Rights  laws. 

We  believe  that  this  is  an  opportunity  for  Congress  to  eliminate  this  incon- 
sistency in  the  law.  This  could  be  done  either  by  removing  the  word  religion 
from  Section  1504  or  bv  adding  in  Section  1504  a  provision  which  would  state 
that : 

"Provided :  that  the  above  prohibitions  are  not  to  be  interpreted  as  to  mod- 
ify or  change  in  any  way  or  manner  the  religious  exemptions  included  in  the 
Civil  Rights  Acts  of  1964  and  1908  and  that  these  exemptions  remain  in  full 
force  and  effect." 

The  failure  to  provide  this  clarification  may  make  it  possible  to  charge  per- 
sons with  crimes  for  religious  discrimination  where  they  would  not  be  subject 
to  civil  penalties.  The  inclusion  of  Section  1504  in  S.  1437  without  qualifica- 
ton  may  also  create  doulit  in  the  minds  of  some  courts  whether  these  exemp- 
tions are  meant  to  continue  to  exist  since  criminal  penalties  are  more  severe  than 
civil  ones.  If  criminal  penalties  are  permitted,  it  may  seem  logical  to  some 
that  civil  penalties  are  also  allowed. 

In  the  Civil  Rights  Acts  of  1964  and  1968,  Congress  recognized  the  differ- 
ences between  religion  and  inherent  characteristics  such  as  race,  color  and 
national  origin.  We  l)elieve  that  Congress  should  strive  to  maintain  this  posi- 
tion by  making  Section  1504  of  S.  1437  con.sistent  with  those  laws.  Failure  to 
do  so  will  only  result  in  confusion.  It  is  important  that  the  language  in  this 
area  of  law  be  clear  as  to  rights  and  responsibilities. 

CONCLUSION 

We  wish  to  thank  the  Subcommittee  for  including  these  remarks  in  the  hear- 
ing record  on  S.  1437.  While  acknowledging  that  much  time  and  effort  has 
already  been  devoted  to  this  bill,  we  believe  that  the  issues  raised  in  this  letter 
are  critical  to  the  development  of  a  just  and  effective  criminal  code  and  crimi- 
nal justice  system.  Your  careful  consideration  of  these  concerns  is  appreciated. 
Sincerely, 

(M.sgr.)   Francis  J.  Lally, 
Secretary,  Department  of  Social  Development  and  World  Peace. 


Mailgram 

Hackensack,  N.J. 
Subcommittee  on  Criminal  Laws  and  Procedures, 
Senate  Judiciary  Committee, 
U.S.  Senate  Office  Building, 
Washington,  D.C. 

Please  record  the  National  Council  on  Crime  and  Delinquency  as  opposed  to 
the  enactment  of  S.  1437. 

A  Federal  criminal  code  is  needed  and  should  enunciate  a  major  change  in 
national  criminal  justice  policy  which  could  serve  as  a  model  for  State  crimi- 
nal codes  and  justice  systems.  We  recommend  that  the  new  Federal  code :  Re- 
duce Federal  jurisdiction  for  crimes  which  are  State  crimes ;  decriminalize 
victimless-type  crimes ;  eliminate  the  use  of  imprisonment  as  punishment  except 
for  dangerous  defenders ;  expand  the  range  of  non-imprisonment  sentences : 
establish  a  policy  of  short  sentences  or  consistent  with  those  of  other  industrial 
nations  ;  guarantee  a  helping  service  to  persons  discharged  from  prison :  pro- 
vide for  serving  of  Federal  prison  sentence  in  State  prisons  near  the  residence 
of  the  prisoner. 

A  full  statement  in  support  of  the  above  principles  will  be  submitted  at  a 
later  date. 

Milton  G.  Rector, 
President,  National  Council  on  Crime  and  and  Delinquency. 


9346 

Prepared  StatemExVT  of  the  Association  of  American  Publishers,  Inc. 

The  Association  of  American  Publishers  (AAP),  whose  more  than  300  mem- 
bers include  most  of  the  leading  book  publishers  in  the  United  States,  submits 
this  statement  to  the  Subcommittee  on  Criminal  Laws  and  Procedures  of  the 
Senate  Committee  on  the  Judiciary,  to  record  its  opposition  to  Section  1842 — 
the  proposed  obscenity  provisions — of  S.  1437. 

Section  1S42  was  among:  the  •'controversial"'  provisions  of  S.  1,  but,  unlike 
other  sections  of  S.  1437  that  appear  to  modify  or  eliminate  many  of  the  dis- 
puted provisions  of  the  earlier  bill,  the  current  Section  1842  duplicates  its 
predecessor  provision,  almost  verbatim.  It  thus  fails  to  resolve  the  troubling 
constitutional  issues  presented  in  S.  1. 

As  drafted.  Section  1842  retains  the  worst  features  of  current  federal  laws 
and  introduces  significant  new  provisions  that  will  compound  the  vagueness  and 
overbreadth  of  current  federal  law.  Yet  it  will  do  nothing  to  eliminate  or  re- 
duce the  "chilling"  effect  on  the  exercise  of  constitutional  freedoms  that,  un- 
fortunately, has  been  a  hallmark  of  obscenity  law  for  the  past  one  hundred 
years. 

For  these  reasons  and  other  stated  below,  this  ill-conceived  provision  should 
be  eliminated  from  S.  1437  or,  at  least,  should  be  substantially  revised. 

Federal  laws  dealing  with  obscenity  date  back  more  than  one  hundred  years 
to  Anthony  Comstock's  crusades  against  sexual  immorality,  coarse  language  and 
corrupt  opinion.  But  since  the  1870's  this  country  has  experienced  several  rev- 
olutions in  sexual,  legal  and  constitutional  values.  And  the  American  people 
have  granted  a  progressively  higher  priority  to  First  Amendment  guarantees 
of  freedom  of  speech  and  the  press.  Despite  these  fundamental  changes,  the 
Comstock  laws  have  remained  on  the  books  virtually  intact,  their  con.stitutioii- 
ality  sustained  only  by  virtue  of  constant  reinterpretation  in  the  United  States 
Supreme  Court. 

The  ob.scenity  issue  has  sharply  divided  the  Supreme  Court  for  the  past  two 
decades.  During  that  time  a  substantial  number  of  the  Justices  sitting  on  the 
Court  have  come  to  the  conclu.sion  that  criminal  obscenity  laws — including  the 
Comstock  laws — are  inherently  at  odds  with  constitutional  protections.  Even 
the  bare  majority  of  Justices  who  have  voted  to  sustain  criminal  obscenity  laws 
have  expressed  concern  over  the  difficulty  of  fairly  defining  and  even-handedly 
enforcing  such  laws. 

In  sum,  while  it  is  true  that  a  bare  majority  of  the  present  Supreme  Court 
continues  to  affirm  the  power  of  the  federal  government  to  prohibit  the  com- 
mercial dissemination  of  "obscenity",  within  strict  constitutional  limits,  it  would 
be  a  serious  error  to  interpret  the  Court's  divided  and  troubled  posture  on 
obscenty  as  representing  a  judicial  mandate  for,  or  as  affirming  the  wi.sdom 
of,  federal  criminal  laws  jiroscribing  obscenity.  In  these  circumstances,  the 
Supreme  Court's  reluctant  and  constantly-shifting  judicial  consfnicfion  of  the 
constitutional  limits  of  obscenity  is  neither  an  appropriate  nor  sufficientl.v  stable 
basis  for  legislative  action  to  reform  or  codify  the  federal  law  of  obscenity. 
We  believe  that  the  recommendations  of  the  1970  Congre.«:sional  Commission 
on  Ob.Sf^enity  and  Pornography  do  constitute  the  proper  basis  for  establishing 
a  sound  legislative  and  constitutional  ])olicy.  That  Commission's  basic  recom- 
mendation was  that  no  legislation  should  be  adopted  which  operates  to  prevent 
the  dissemination  of  sexually-related  materials  to  adults  who  wish  to  read  or 
view  them. 

If.  however,  the  Subcommittee  is  committed  to  including  in  S.  1437  federal 
criminal  legislation  regulating  such  materials,  we  believe  that  the  bill  must  bo 
snb.stantiall.v  revised  in  order  to  eliminate  the  many  constitutional  and  techni- 
cal defects  that  inhere  in  Section  1842  as  drafted. 

"V^'ithout  attempting  to  create  an  exhaustive  catalogue,  we  list  a  number  of 
possible  amendments  that  would,  in  the  AAP's  view,  help  to  improve  Section 
1842. 

I.  Precedence  inr  Slfate  Law<>.  As  new.  free-standing  federal  law,  potentially 
inconsistent  with  state  or  local  standards  of  obscenity.  Section  1842  could  be 
used  by  federal  prosecutors  to  invoke  stricter  standards  than  those  which  a 
state  may  liave  adoiited.  The  section  should  therefore  be  amended  to  limit  any 
federal  offense  to  the  dissemination  of  sexnallv-on'ented  materials  in  violation 
of  tlie  laws  of  the  state  in  which  they  are  disseminated. 

II.  Atfnntey  GcneraVR  Prior  Apnroral  fn  Prnaecute.  To  reduce  inconsistency 
and  f'onfusion  in  the  application  of  a  federal  obscenity  law.  Section  1842  should 
provide  for  prior  approval  of  any  federal  obscenity  jtrosecution  by  the  Attor- 


9347 

ney  General.  Publishers  and  distributors  would  thiis  be  assured  of  luiiform  ap- 
plication of  federal  law  in  different  federal  jurisdictions,  and  there  would  be 
less  likelihood  of  the  federal  statuie  being  used  to  circumvent  application  of 
more  permissive  state  or  local  procedures. 

III.  Enforceahlc  Bars  to  "Venuc-Shoirping".  Many  recent  federal  prosecutions 
of  allegedly  obscene  materials  have  been  brought  against  nationally-distributed 
material,  not  in  its  place  of  origin  or  where  it  is  predominantly  sold,  but  in 
some  community  having  no  substantial  connection  to  the  act  of  publication  or 
distribution.  Section  1842  (or  other  pertinent  provisions  of  S.  1437)  should  be 
amended  to  provide  a  strict  and  enforceable  rule  against  such  "venue-shop- 
ping". Prosecutions  should  be  limited  to  the  district  in  which  the  material  was 
created  or  from  which  it  was  disseminated.  Multiple  prosecutions,  which  invite 
similar  abuses,  should  also  be  outlawed — once  specific  materials  have  been  ac- 
quitted in  any  proceeding,  there  should  be  no  further  federal  prosecution. 

lY.  A  Single  IStattitory  Framework.  It  is  essential  that  federal  law  relating 
to  obscenity  be  limited  to  one  statutory  framework.  Provisions  contained  in  other 
titles — for  example,  the  postal  act  provisions  in  Title  39 — should  conform  to 
those  enacted  elsewhere  in  the  statute.  Similarly,  to  insiire  consistent  enforce- 
ment, all  federal  proceedings  against  sexually-oriented  materials,  whether  civil 
or  criminal  in  nature,  should  be  subject  to  approval  by  the  Attorney  General.     ' 

V.  Prior  Civil  Determination  of  Ohscenity.  Because  the  definition  of  obscenity 
is  inherently  vague,  and  a  publisher  or  distributor  risks  criminal  prosecution 
if  it  is  ultimately  determined  that  materials  he  disseminates  are  obscene,  a  num- 
ber of  states  have  adopted  procedural  safeguards  to  assure  greater  clarity,  uni- 
formity and  fairness  in  the  application  of  their  obscenity  laws.  To  this  end,  the 
Congress  should  consider  amending  Section  1842  to  provide  for  a  civil  proceeding 
to  make  initial  determination  of  the  obscenity  or  non-obscenity  of  sexually- 
oriented  materials,  prior  to  the  commencement  of  any  criminal  action.  Any  such 
civil  proceeding  should  provide  for  a  speedy  jury  trial  and  expedited  appeals, 
and  should  permit  introduction  of  expert  testimony  and  other  evidence  bearing 
upon  the  constitutional  test  of  obscenity. 

VI.  Clarified  Provisions  Coiwerninff  Minors  and  "Thrusting".  There  is  logic 
in  according  separate  statutory  considerations,  as  Section  1S42  does,  to  distribu- 
tion of  sexually-explicit  materials  to  wilUnq  adults  as  distinct  from  their  dis- 
semination to  minors  or  their  exposure  to  unicilVnuf  adults  ("thrusting").  In- 
deed, the  AAP  has  not  opposed  appropriate  state  or  local  legislation  dealing  with 
either  of  the  two  latter  activities.  However,  such  legislation  is  new  to  federal  law 
and,  so  far  as  we  are  aware,  the  proper  role,  if  any,  for  federal  legislation  regard- 
ing minors  has  never  been  considered  by  the  Congress.  It  is  not  surprising,  there- 
fore, that  the  two  provisions  of  Section  1842  purporting  to  deal  with  these  two 
aspects  of  the  obscenity  question  present  substantial  questions  of  propriety  and 
enforceability.  Their  lack  of  specificity  stands  in  stark  contrast  to  the  detailed 
provisions  of  the  many  state  and  local  laws  in  these  areas.  If  Congress  wishes 
to  legislate  on  thrusting.  Section  1842  must,  at  least,  be  amended  to  specify  the 
kinds  of  public  di-splays  or  premises  to  which  it  is  applicable.  If  Congress  wishes 
to  legislate  regarding  dissemination  to  minors.  Section  1842  should,  at  least,  be 
amended  to  provide  as  an  affirmative  defense  that  the  minor  has  parental  permis- 
sion, is  emancipated  or  has  provided  convincing  evidence  that  he  or  she  is  of 
age.  Again,  any  enforcement  of  the  minors  and  thrusting  provisions  should,  we 
believe,  commence  with  a  prior  civil  determination  of  obscenity. 

VII.  Sexual  Abuse  of  Minors.  The  shocking  phenomenon  of  the  sexual  abuse 
of  minors  in  creation  of  pornography  is  another  issue  which  the  AAP  believes  can 
be  an  appropriate  subject  of  federal  legislation,  if  properly  defined.  While  we 
have  some  reservations  concerning  the  constitutionality  of  bills  dealing  with  the 
use  of  minors  in  pornography  that  are  currently  before  the  Congress,  we  believe 
consideration  could  be  given  to  the  probable  relationship  between  such  pending 
federal  child  abuse  legislation  and  the  proposed  Section  1842,  provided  that  any 
legislation  is  drafted  with  careful  concern  for  the  constitutionally-mandated 
protection  of  materials  of  potential  scientific  and  educational  value. 

Finally,  it  should  be  made  clear  that  our  opposition  to  Section  1842  does  not 
represent  an  attack  on  S.  1437  as  a  whole.  On  the  contrary,  we  recognize  and 
commend  the  seriousness  of  purpose  and  spirit  of  compromise  that  have  gone 
into  this  revision  of  S.  1.  Many  groups,  including  ours,  that  vigorously  opposed 
S.  1.  now  substantially  support  S.  1437  as  a  substantial  improvement.  However, 
as  Senators  Kennedy  and  McClellan  have  both  recognized,  the  bill  can  be  further 
improved.  It  is  in  this  spirit  that  we  urge  this  Subcommittee — and  the  Congress — 
to  recognize  that  very  serious  defects  are  still  present  in  Section  1842  and  to 
delete  or  amend  this  provision  accordingly. 


9348 

SuPKRiOR  Court  of  the  District  of  Columbia. 

Washington,  D.C.,  July  12.  1977. 
Hon.  Edward  M.  Kex:^edy. 
U.S.  Senate, 

Hon.  JOIIX  L.  McCi.ELLAN, 

U.S.  Senate, 
Washington,  B.C. 

Dear  Sexators  Kennedy  and  McClellan  :  In  reviewin,e:  the  provisions  of 
S.  1437,  it  occurs  to  me  tliat  a  series  of  potential  prol)lems  exist  for  wliicli  no  clear 
resolution  presents  itself  in  the  bill.  As  you  know,  in  the  District  of  Columbia 
there  are  two  court  systems  which  are  intended  to  be  independent,  but  which, 
in  actuality,  overlap  in  some  certain  areas.  Most  particularly,  both  the  Superior 
Court  of  the  District  of  Columbia  and  the  T'nited  States  Court  for  the  District 
of  Columbia  have  the  responsibility  for  sentencing  offenders  convicted  of  oflfen.ses 
listed  in  the  D.C.  Code.  Of  concern  in  the  present  context  is  Section  11-502(3) 
of  the  D.C.  Code  which  provides  that  the  Ignited  States  District  Court  has  juris- 
diction of  the  following:  "Any  offense  under  any  law  applicable  exclusively  to 
the  District  of  Columbia  which  offen.se  is  joined  in  the  same  information  or  in- 
dictment with  any  Federal  offense;" 

It  is  not  uncommon  for  such  a  mixed  indictment,  containing  Federal  and  D.C. 
Code  offenses,  to  be  re.solved  by  a  plea  of  guilty  to  a  D.C.  Code  offense  only, 
thereby  putting  the  United  States  District  Court  in  a  position  to  sentence  the 
offender  under  a  criminal  statute  applicable  exclusively  in  the  District  of  Colum- 
bia. In  other  cases,  the  Federal  Court  may  have  to  sentence  for  both  a  Federal 
and  a  D.C.  Code  violation. 

Another  difficulty  is  also  present.  I  enclose  herewith  a  copy  of  two  related 
opinions  which  I  wrote  in  the  case  of  United  States  v.  Mary  Williams,  Criminal 
No.  3o771-73.  My  decision  in  this  case  was  never  appealed  by  any  government 
party  to  the  litigation.  While  this  case  deals  with  the  issue  of  an  unconstitu- 
tional discrimination  against  female  felons  convicted  and  sentenced  to  more 
than  one  year's  confinement  in  the  District  of  Columbia,  the  ca.se  also  discloses 
the  source  of  a  potential  problem  lurking,  but  not  addressed,  in  S.  1437. 

Section  103(a)  of  S.  1437  exempts  prosecutions  under  any  Act  of  Congress 
applicable  exclusivel.v  in  the  District  of  Columbia  from  the  provisions  of  S.  1437. 
However,  in  light  of  certain  imique  aspects  of  sentencing,  imprisonment  and 
parole  which  apply  in  the  District  of  Columbia,  ic  .seems  to  me  that  certain 
provisions  of  S.  1437  will  apply  to  criminal  cases  under  exclusively  local  criminal 
provisions  of  the  D.C.  Code  which  are  applicable  exclusively  in  the  District  of 
Columbia. 

As  the  Mary  Williams  opinion  points  out,  Sec.  24-42.")  of  the  D.C.  Code  pro- 
vides that  all  persons  convicted  in  the  District  of  Columbia  of  a  criminal  offense, 
either  under  Federal  law  or  provisions  of  the  D.C.  Code,  shall  be  committed  to 
the  custody  of  the  Attorney  General  of  the  T'nlted  States.  Thereafter.  D.C.  Code 
offenders  may  be  incarcerated  either  in  institutions  maintained  by  the  D.C. 
Department  of  Corrections  or  the  Federal  Bureau  of  Prisons.  When  such  of- 
fenders are  confined  in  Federal  prisons  they  are  then  subject  to  parole  considera- 
tion by  the  U.S.  Board  of  Parole.  In  that  circumstance  it  appears  to  me  that 
Sections  3821  through  3837  of  S.  1437  will  indeed  apply  to  offenders  who  have 
been  convicted  under  an  Act  of  Congress  applicable  exclusively  in  the  District 
of  Columbia,  in  contravention  of  what  is  apparently  intended  by  Section  103(a). 

Furthermore,  in  cases  where  the  United  States  District  Court  for  the  District 
of  Columbia,  pursuant  to  the  provisions  of  D.C.  Code  Sec.  11-502(3),  is  called 
upon  to  .sentence  an  offender  for  a  D;C.  Code  violation,  it  appears  that  the  provi- 
sions of  Chapter  20  of  S.  1437  may  come  into  p'ay.  And  if  they  do  not.  then 
there  will  be  the  anomolous  situation  of  a  Federal  District  Court  sentencing  a 
criminal  defendant  under  some  .system  other  than  that  made  applicable  to  such 
Federal  Courts  by  Chapter  20. 

Also,  there  may  well  be  created  by  the  system  here  to  be  established  a  serious 
problem  of  a  violation  of  the  Constitutional  right  t(.  equal  protection  of  the  law. 
My  opinion  in  Mary  Williams  addres.sed  that  very  proldem  in  the  context  of  the 
treatment  of  women  only,  but  the  vast  disparity  between  the  .sentencing  and 
parole  treatment  of  convicted  offenders  which  will  arise  if  some  District  of 
Columbir.  offenders  are  treated  under  local  sentence  and  parole  systems  while 
others  are  treated  by  the  provisions  of  S.  1-^37,  may  well  give  rise  to  exten-ive 
litigation  over  that  very  constitutional  issue.  It  seems  to  me  that  such  matters 
should  be  considered  and  resolved  in  the  drafting,  amending  and  enacting  stages 
of  S.  1437  so  as  to  forestall  just  such  problems. 


9349 

May  I  respectfully  suggest  two  possible  means  of  removing  these  potential 
problem  areas.  First,  the  District  Court  for  the  District  of  Columbia  should  have 
removed  from  its  jurisdiction  all  purely  local  offenses  in  the  District  of  Colum- 
bia. Indictments  or  informations  filed  in  the  Federal  Court  should  only  contain 
counts  setting  forth  violations  of  Federal  la\A's.  This  would  require  an  amend- 
ment to  D.C.  Code  Sec.  11-502(3 1.  Second,  although  it  is  probably  imperative 
for  the  Attorney  General  to  have  the  authority  to  be  able  to  transfer  certain 
individuals  to  more  secure  Federal  prisons,  or  to  transfer  them  for  their  own 
or  others'  safety,  I  suggest  that  no  matter  where  a  D.C.  Code  violator  who  is 
sentenced  in  Superior  Court  of  the  District  of  Columbia  is  incarcerated,  all  such 
prisoners  .shall  be  considered  by  the  D.C.  Board  of  Parole.  By  removing  all  such 
D.C.  prisons  from  the  ambit  of  the  U.S.  Board  of  Parole,  two  incipient  problems 
will  be  solved.  One,  all  such  prisoners  will  be  afforded  equal  treatment,  thereby 
curing  the  constitutional  infirmities  delineated  in  my  Mari/  Williams  opinion. 
Two,  there  will  be  no  possibility  that  strictly  D.C.  Code  offenders,  who  are 
sentenced  by  Sui^erior  Court,  and  not  under  the  provisions  of  Chapter  20  of 
S.  1437,  will  thereafter  have  to  be  dealt  with  by  the  U.S.  Parole  Board  under 
the  provisions  of  Section  3821-3827  of  S.  1437.  Indeed,  if  those  sections  of 
S.  1437  had  to  apply,  it  is  doubtful  if  they  could  be  made  to  work  in  the  case 
of  a  sentence  imposed  by  a  Superior  Court  judge  under  the  applicable  sentencing 
scheme  now  in  use  pursuant  to  the  D.C.  Code,  rather  than  being  imposed  under 
Chapter  20  of  S.  1^37. 

I  would  be  happy  to  meet  with  either  you  or  members  of  your  staff  to  discuss 
further  the  matters  discussed  above,  in  the  event  you  feel  that  I  can  be  of  any 
further  help. 

Very  truly  yours, 

Charles  W.  Halleck, 

Judge. 

Enclosure. 

In  the  Superior  Court  of  the  District  of  Columbia 

(Criminal  No.  35771-73;  Civil  Action  No.  SP  792-76) 

United  States 

v. 

Mary  A.  Williams 

Mary  A.  Williams 

V. 

Edward  Levi,  Attorney'  General  of  the  United  States  ;  District  of  Columbia 
Board  of  Parole  ;  and  Delbert  Jackson,  Director,  District  of  Columbia  De- 
partment OF  Corrections 

Opinion  and  Order 

Mary  A.  Williams  is  before  the  sentencing  court  seeking  post-conviction  relief 
from  a  denial  of  equal  protection  of  the  law  arising  solely  from  a  classification 
by  sex  which  resulted  in  a  discrimination  in  her  consideration  for  parole.  This 
court  hereby  finds  that  Mary  Williams,  having  come  under  the  authority  and 
power  of  the  United  States  Board  of  Parole  pursuant  to  D.C.  Code  Sec.  24-209 
due  solely  to  her  designation  and  placement  in  a  federal  correctional  facility, 
was  a  victim  of  a  discriminatory  application  of  different  parole  standards  than 
would  have  been  applicable  to  her  if  she  had  appeared  before  the  District  of 
Columbia  Board  of  Parole.  This  court  finds  that  she  came  under  the  authority 
of  the  U.S.  Board  of  Parole  solely  as  a  result  of  classification  by  sex,  and  that 
the  resulting  different  treatment  is  a  violation  of  her  rights  to  equal  protection 
of  the  law  guaranteed  by  the  United  States  Constitution.  The  appropriate  remedy, 
declaratory  and  injunctive  relief,  is  granted  herein. 


On  May  8,  1974,  the  defendant  Mary  Williams  pleaded  guilty  to  a  charge  of 
assault  with  a  dangerous  weapon  in  violation  of  D.C.  Code  Sec.  22-502,  which 
carries  a  maximum  possible  penalty  of  ten  years  imprisonment.  On  May  31,  1974, 


9350 

this  court  sentenced  her  to  ninety  (90)  days  to  three  (3)  years  imprisonment. 
It  was  this  court's  intention  and  belief  that  she  would  receive  some  treatment 
for  alcoholism,  and  that  she  would  receive  meaningful  parole  consideration 
ninety  days  after  commencing  her  sentence  and  that  the  Parole  Board  would 
make  an  individualized  determination  of  her  progress  toward  rehabilitation. 

Like  all  persons  sentenced  by  the  District  of  Columbia  Superior  Court,  pur- 
suant to  D.C.  Code  Sec.  24-425,  Mary  Williams  was  committed  to  the  custody 
of  the  Attorney  General  for  imprisonment  in  such  facility  as  he  or  his  authorized 
representative  would  designate.  The  Federal  Bureau  of  Prisons  designated  her 
to  serve  that  sentence  at  the  Federal  Women's  Reformatory  at  Alderson,  West 
Virginia,  and  she  was  accordingly  transferred  there  from  the  Women's  Detention 
Center  in  Washington,  D.C.  Pursuant  to  D.C.  Code  Sec.  24-209,  the  United  States 
Board  of  Parole  had  jurisdiction  over  the  parole  status  of  Mary  Williams.  That 
section  provides : 

"The  Board  of  Parole  created  by  section  723a  of  title  18,  U.S.  Code,  shall  have 
and  exercise  the  same  power  and  authority  over  prisoners  convicted  in  the  Dis- 
trict of  Columbia  of  crimes  against  the  United  States  and  now  or  hereafter  con- 
fined in  any  United  States  penitentiary  or  prison  (other  than  the  penal  institu- 
tions of  the  District  of  Columbia)  as  is  vested  in  the  Board  of  Indeterminate 
Sentence  and  Parole  over  prisoners  confined  in  the  i)enal  institutions  of  the  Dis- 
trict of  Columbia." 

On  November  6,  1974,  Mary  Williams  was  interviewed  by  a  hearing  examiner 
from  the  United  States  Board  of  Parole.  On  November  20,  1974,  she  was  notified 
that  she  would  be  required  to  continue  to  serve  to  expiration  the  sentence  im- 
posed by  this  court.  The  November  20  notice  introduced  at  the  November  17, 
1975,  hearing  as  defendant's  exhibit  #2  gives  the  reasons  for  the  continuance  to 
expiration  as  follows : 

"Your  offense  behavior  has  been  rated  as  greatest  severity.  You  have  a  salient 
factor  score  of  5.  You  have  been  in  custody  a  total  of  S  months.  Guidelines  estab- 
lished by  the  Board  for  adult  cases  which  consider  the  above  factors  indicate  a 
range  of  unlimited  months  to  be  served  before  release  for  cases  with  good  institu- 
tional program  performance  and  adjustmeut.  After  careful  consideration  of  all 
relevant  factors  and  information  presented,  it  is  found  that  a  decision  outside  the 
guidelines  at  this  consideration  does  not  appear  warranted.  You  need  additional 
institutional  treatment,  specifically,  alcohol  therapy  to  enhance  your  capacity  to 
lead  a  law  abiding  life."  ^ 

The  guidelines  which  dictate  this  result  are  applicable  only  to  the  United 
States  Board  of  Parole  and  not  to  the  District  of  Columbia  Board  of  Parole. 

Thereafter,  Mary  Williams,  through  court-appointed  counsel,  moved  this  court 
to  vacate  or  modify  her  sentence  pursuant  to  Superior  Court  Criminal  Rule  35, 
D.C.  Code  Sec.  16-1901,  ct.  seq.,  or  D.C.  Code  Sec.  23-110.  On  November  17.  1975, 
this  court  heard  testimony  from  Mr.  Peter  Hoffman.  Research  Director  of  the 
United  States  Board  of  Parole,  concerning  that  Board's  adult  guidelines  for 
length  of  time  to  be  served  prior  to  parole  as  well  as  the  procedures  of  that 
Board,  and  from  Mr.  Edward  Keightley,  Program  Analyst  of  the  District  of 
Columbia  Board  of  Parole  concerning  the  procedures  and  standards  of  that 
Board.  On  JVbruary  9,  1970,  Mr.  Delbert  Jackson,  Director  of  the  D.C.  Depart- 
ment of  Corrections,  testified  concerning  the  reasons  for  and  methods  of  trans- 
ferring sentenced  women  felons  to  federal  institutions. 

This  court  determined  by  order  of  May  3,  197C,  for  reasons  set  forth  therein, 
that  this  court  has  jurisdiction  to  consider  Mary  Williams'  motion  under  D.C. 
Superior  Court  Rule  3.~»  to  correct  an  illegal  sentence,  her  motion  under  23  D.C. 
Code  Sec.  110  to  vacate  or  correct  the  sentence  as  one  subject  to  collateral  attack, 
and  her  petition  for  habeas  corpus  under  16  D.C.  Code  Sec.  1901.  Mindful  that 
the  mandate  of  23  D.C.  Code  Sec.  110(e)  that  "[t]he  court  shall  not  be  required 
to  entertain  a  second  or  successive  motion  for  similar  relief  on  behalf  of  the  same 
pri.soner"  was  intended  not  only  to  prevent  repetitious  demands  by  the  same 
prisoner  for  relief  on  tlie  same  grounds,  but  also  to  re(|uire  the  assertion  in  one 
motion  of  all  the  existing  grounds  which  the  pri.soner  has  for  questioning  the 
validity  of  his  or  her  .sentence,  sec  Bistram  v.  Vniicd  Staten,  283  F.2d  1  (Sth  Cir. 
1960).  cert,  denied,  306  T'.S.  921  (1960),  and  especially  mindful  of  the  interests 
of  judicial  economy,  eflUciency.  and  convenience  to  the  parties  and  witnesses,  as 
well  as  the  court,  this  court  by  order  of  May  3,  197(!.  consolidated  the  civil  and 


1  There  was  no  indication  of  what  "treatment,  specifically,  alcohol  therapy"  had  been 
afforded  her,  the  depree  of  her  progress,  or  more  importantly,  what  kind  of  additional 
treatment  other  than  incarceration  was  contemplated. 


9351 

criminal  motious  above-mentioned  into  a  single  case  for  unitary  disposition. 
That  order  is  apijended  hereto.  The  question  before  the  court,  to  be  resolved 
upon  careful  consideration  of  the  testimony  taken  at  two  hearings,  as  well  as 
the  numerous  extensive  written  pleadings  submitted  by  the  parties  and  by  a 
court-appointed  amicus  curiae,  is  as  follows :  Was  Mary  Williams  discriminated 
against  in  her  parole  treatment  solely  on  account  of  sex,  and  if  so,  does  that  dis- 
crimination constitute  a  violation  of  her  right  to  equal  protection  of  the  laws? 
This  court  concludes  as  a  matter  of  fact,  and  of  law,  that  the  answer  to  that 
question  is  yes. 

II 

Before  exaipining  the  question  of  discrimination  in  parole  treatment,   the 
coiirt  must  first  consider  why  Mary  Williams  appeared  before  the  United  States 
Parole  Board  rather  than  the  District  of  Columbia  Board  of  Parole.  On  February 
9.  1976,  Mr.  Delbert  Jackson,  the  Director  of  the  District  of  Columbia  Depart- 
ment of  Corrections  testifield  in  this  matter.  He  explained  that  at;  one  time  sen- 
tenced female  felons  were  incarcerated  in  a  facility  operated  by  the  D.C.  Depart- 
ment of  Corrections  and  located  in  Occoquan,  Virginia,  but  that  the  facility  was 
subsequently  converted  to  what  is  now  Youth  Center  Number  Two  for  male 
youths.  (Transcript,  pp.  S-9).  Mr.  Jackson  testified  that  despite  the  "dramatic" 
increase  in  female  offenders  in  D.C.   (Tr.,  p.  9),  "there  are  no  facilities  for  sen- 
tenced female  felons  in  the  District  of  Columbia  at  present."  (Tr.,  p.  8,  also  p. 
23).  On  cross-examination,  he  explained  that  there  is  no  possibility  of  using  the 
present  Women's  Detention  Center,  located  in  Washington,  D.C,  to  house  sen- 
tenced felons ;  it  was  designed  simply  as  a  holding  facility  and  "most  certainly 
is  not"'  a  reformatory.  It  was  never  designed  to  house  convicted  defendants  (Tr., 
p.  15)  and  Mr.  Jackson  asserted,  "It's  not  a  facility  that  I  personally  recommend 
for  the  maintenance  of  human  beings  over  a  prolonged  period  of  time."  (Tr.  p. 
14). 

Mr.  Jackson  testified  that  althougli  bringing  the  sentenced  women  back  from 
federal  facilities  is  a  high  priority  in  his  mind,  it  would  require  a  minimum 
allocation  of  twenty  million  dollars  ($20,000,000.00)  (Tr.,  p.  38).  The  D.C.  De- 
partment of  Corrections'  projected  facility  for  women  is  part  of  a  $55  million 
Lorton  Improvement  Plan,  extant  since  1972,  and  to  date  with  no  prospects  of 
being  funded. 

However,  the  District  of  Columbia  does  provide  extensive  facilities  to  house 
male  sentenced  felons  and  youth  offenders  at  its  buildings  in  Lorton,  Virginia. 

As  a  consequence  of  this  lack  of  facilities  sentenced  female  felons  from  Su- 
perior Court  must  serve  their  sentences  in  federal  correctional  facilities. 

D.C.  Code  Sec.  24-425  provides  that  all  prisoners  sentenced  in  the  District  of 
Columbia  are  committed  to  the  custody  of  the  Attorney  General  of  the  United 
States  or  his  authorized  representative,  "who  shall  designate  the  places  of  con- 
finement where  the  sentences  of  all  such  persons  shall  be  served."  Likewise 
persons  convicted  and  sentenced  in  federal  courts  across  the  country  are  com- 
mitted to  the  custody  of  the  Attorney  General.  Persons  convicted  in  federal 
courts,  both  for  offense  in  violation  of  the  U.S.  Code  and  for  lesser  included  D.C. 
Code  offenses,  are  designated  to  serve  their  sentences  in  federal  prisons.  (Tr., 
p.  tj).  Theoretically,  a  reading  of  D.C.    Code  Sec.  24-425  would  produce  the  im- 
pression that  persons  sentenced  by  the  District  of  Columbia   Superior  Court 
would  receive  from  the   Federal   Bureau   of  Prisons   the  same  individualized 
designation  treatment  as  do  federal  court  prisoners ;  that  is,  an  examination  of 
available  relevant  information  to  determine  whether  maximum-,  medium-,  or 
minimum-security  setting  is  appropriate,  whether  informants  need  to  be  sepa- 
rated from  other  persons,  and  similar  factors. 

Plowever,  this  individualized  evaluation  and  designation  does  not  occur  for 
D.C.  Code  offenders  sentenced  by  D.C.  Superior  Court.  Mr.  Jackson  testified  about, 
and  subsequently  submitted  to  this  Court,  as  part  of  the  record  of  this  case,  an 
exchange  of  correspondence  between  then  Chief  Judge  John  Sirica  of  the  United 
States  District  Court  for  the  District  of  Columbia  and  then  Attorney  General 
Richard  Kleindienst,   dated   in   October,    1972,   concerning  designation   of  sen- 
tenced prisoners.  Chief  Judge  Sirica,  in  his  letter  of  October  13,  1972,  to  Attorney 
General  Kleindienst,  requested  that  because  "the  prison  facilities  of  the  District 
of  Columbia  Department  of  Corrections  are  overcrowded,  *  *  *  discipline  is  lax  or 
non-existent",  "prisoners  entrusted  to  the  care  of  the  District  of  Columbia  De- 
partment of  Corrections  are  not  protected  from  sexual  assault  and  bodily  harm 
at  the  hands  of  other  prisoners  and  *  *  *  there  are  frequent  e.scapes  and  release 
from  the  Department's  custody  of  prisoners  deemed  to  be  highly  dangerous",  and 
92-465—77 50 


9352 

hecanso  "the  sorvices.  facilities.  i>ersonnel  and  profrranis  are  totally  inadeiiiiate'' 
the  Judges  of  the  Fnited  States  District  Court  after  consideration  at  an  Elxecu- 
tive  Session  on  October  12.  1972.  urfieutl.v  requested  tlie  Attorne.v  General  to 
'"designate  institutions  other  than  the  facilities  under  the  sui>ervision  or  control 
(if  the  District  of  ('oluml)ia  Department  of  Corrections  for  incarceration  of  all 
defendants"  thereafter  convicted  in  the  T'nited  States  District  Court  for  the 
District  of  Columbia.  By  letter  of  October  16.  1S>72.  Attorney  General  Kleindienst 
agreed  to  the  request  and  informed  Judge  Sirica  that  the  Director  of  the  Federal 
Bureau  of  Prisons  had  been  so  instructed. 

The  trade-off  for  all  prisoners  from  federal  court  being  designated  to  federal 
facilities  is  that  i)er.sons  convicted  in  the  District  of  Columbia  court  system  are 
all  automatically,  pur.suant  to  a  categorical  agreement,  designatetl  to  serve  their 
sentences  in  District  of  Columbia  Department  of  Cctrrection  facilities.  (Tr..  p. 
5)  The  exception,  for  persons  sentenced  by  the  D.C.  Courts,  are  twofold.  First 
are  those  "special  cases"  (Tr.,  p.  22)  who  for  individual  reasons  of  safety  or 
security  are  in  danger  from  other  inmates  in  D.C.  facilities :  examples  include 
persons  who  have  informed  ix)lice  or  assisted  prosecutors  such  that  their  lives 
may  be  endangered.  Each  of  these  cases  is  handled  on  an  individual  basis  and 
a  decision  is  made  on  the  facts  of  each  case.  The  second  exception  is  a  class  one 
rather  than  an  individual  one :  women,  solely  on  account  of  their  sex,  are 
routinely  sent  to  federal  institutions,  as  Mr.  Jackson  testified,  "simply  because 
at  present,  there  are  no  facilities  in  the  District  of  Columbia  for  sentenced 
incarcerated  women."  (Tr.,  p.  23). 

Indeed,  so  routine  is  the  designation  of  D.C.  Sui)erior  Court  sentenced  males 
to  D.C.  Department  of  Corrections  facilities  that  the  Attorney  General  has  dele- 
gated the  designation  of  such  persons  to  the  Mayor  of  the  District  of  Columlua. 
who  in  turn  has  further  delegated  that  authority  to  the  D.C.  Department  of 
Corrections. 

At  the  hearing  on  February  9,  1976,  :Mr.  Jackson  was  presented  with  the  hypo- 
thetical question  of  a  male.  John  Smith,  who  was  found  guilty  of  assault  witli 
a  dangerous  weapon  and  sentenced  by  a  D.C.  Superior  Court  judge  to  a  sentence 
of  three  months  to  three  years.  The  court  inquired  of  Mr.  Jackson  how  such  a 
person  would  be  designated  : 

The  Court.  Well,  if  I  give  this  man.  John  Smith,  for  assault  with  a  dangerous 
weapon  felony,  and  if  I  give  him  a  sentence  of  three  months  to  three  years.  T1ip!i. 
the  first  thing  that  happens  is  that  there  has  to  be  a  de.signation  by  the  Federal 
Bureau  of  Prisons? 

The  Witness.  No. 

The  Court.  No? 

Ttie  Witness.  No. 

The  Court.  Does  he  go  straight  to  Lorton? 

The  Witness.  Yes. 

The  Court.  Who  decides  that? 

The  Witness.  I  do. 

The  Court.  Now.  would  you  send  him  to  a  Federal  Institution? 

The  Witness.  No. 

The  Court.  So.  he  would  have  to  go  to  Lorton? 

The  Witness.  That's  correct. 

err.,  pp.  10-11). 

Then  Mr.  .Tackson  was  asked  the  identical  liyix.dictical  for  a  female  who  coin- 
mitted  the  same  offense  and  received  the  same  sentence.  She  woTild  be  routinely 
sent  to  a  federal  institution.  i>robably  Alderson  for  an  adult  and  Morgantowii 
for  a  person  with  a  youth  .sentence. 

This  explains  why  Mary  Williams  was  sent  to  Alderson.  mie  IMstrict  of 
Columbia  has  facilities  for  fem;:le  felons.  Although  theoretically  (lie  Attorney 
General  designates  t!ie  jilace  of  sentence  of  evei\v  ]H'rson  sentenced  by  D.C. 
Superior  Court,  he  has  en-masse  designated  the  males  to  facilities  run  bv  the 
D.C.  Department  of  Corrections  and  female  go  en-masse  to  federal  institutions.^ 
The  designation  is  made  by  class  on  the  basis  of  sex.  The  court  nnist  then 
evaluate  the  applicability  of  D.C.  Code  Sec.  24-209  in  light  of  these  facts  found 
by  the  court. 


Vo'  1-0   -"  ^     "^  Oom-f^vmns  D.-sit'i.afion  juul  Hftni-n"  in  Canie.s  v.  TiniJor,  Civil    \ctinii 


9353 


III 


As  set  forth  above,  D.C.  Code  Sec.  24-209  provides  that  the  Federal  Board  of 
Parole  has  the  same  power  and  authority  over  persons  convicted  of  crimes  in 
this  court  and  confined  in  federal  prisons  as  does  the  D.C.  Board  of  Parole  over 
persons  in  D.C.  i>enal  institutions. 

The  respondents  here  argue  that  Mary  Williams'  placement  under  the  authority 
of  the  U.S.  Board  of  Parole  cannot  be  a  discrimination  because  some  males  sen- 
tenced in  D.C.  SuiJerior  Court  also  are  designated  to  federal  prisons  and  they 
t(X)  are  subject  to  the  authority  of  the  U.S.  Parole  Board.  The  crux  of  the  matter 
is  not  that  all  D.C.  sentenced  prisoners  designated  to  federal  prisons  equally 
appear  before  the  U.S.  Parole  Board,  but  rather  that  it  is  discrimination  in  the 
designation  process  which  results  in  the  federal  parole  authority.  Part  II  of  this 
opinion,  supra,  contains  findings  of  fact  that  a  discrimination  exists  in  the 
designation  process. 

The  next  question  to  consider  is  whether  the  standards  and  rules  of  the  Dis- 
trict of  Columbia  Board  of  Parole  and  the  United  States  Board  of  Parole  are 
different,  so  that  a  woman  api>earing  before  the  federal  board  would  be  treated 
differently  than  if  she  api>eared  before  the  D.C.  Board. 

The  United  States  Board  of  Parole  uses  "Guidelines  for  Decision  Making", 
first  published  in  the  Federal  Register  in  November,  3978,^  which  outline  the 
length  of  time  persons  under  the  jurisdiction  of  that  Board  will  be  required  to 
serve.  The  guidelines  have  been  described  in  a  number  of  court  opinions  on  parole 
and  in  scholarly  articles,  and  were  also  explained  by  Mr.  Peter  Hoffman.  Re- 
search Director  of  the  U.S.  Board  of  Parole  in  his  testimony  in  this  matter  on 
November  17,  1975. 

"The  Guideline  Table  consists  of  two  basic  indices  on  which  inmates  are 
scored:  an  'Offense  Severity'  index  and  a  risk  prediction  or  'Salient  Facticm' 
index.  These  two  indices  form  the  axes  of  a  matrix :  on  the  vertical  axis  inmates 
are  placed  into  one  of  six  severity  groups  according  to  the  "offense  beha^■ior.' 
while  along  the  horizontal  axis  they  are  divided  into  four  risk  groups  according 
to  their  Salient  Factor  Score.  At  the  intersection  of  each  severity  and  risk 
category,  a  range  of  months  is  listed.  This  range  represents  the  amount  of  actual 
time  to  be  served  prior  to  the  first  release  of  an  inmate  with  those  otTense  and 
risk  characteristics.  By  scoring  and  rating  an  inmate  on  the  two  indices,  the 
hearing  examiners  determine  the  inmate's  expected  incarceration  period.  They 
Vtill  normally  recommend  a  decision — parole,  a  continuance  to  a  later  hearing 
or  report  (a  set-off),  or  imprisonment  until  the  expiration  of  the  sentence  (c(m- 
tinue  to  expiration,  or  CTE) — such  that  the  total  time  actually  served  by  the  in- 
mate at  release  will  be  within  that  expected  range. 

The  Offense  Severity  Scale  was  derived  l>y  averaging  the  evaluations  of 
Parole  Board  members  and  examiners  of  the  seriousness,  on  a  scale  of  one 
through  six,  of  typical  offense  behaviors.  The  Offense  Severity  Rating  reflects 
the  Parole  Board's  independent,  subjective  evaluation  of  the  gravity  of  the 
inmate's  past  criminal  behavior.  Classification  on  the  severity  scale  is  not  based 
on  the  legal  "offense  of  commitment''  or  on  sentence  length ;  rather,  tlie  Board 
makes  its  own  determination  of  the  inmate's  offense  behavior,  v\iiich  it  then 
rates  relative  to  'offense  behaviors  .  .  .  commonly  seen  by  the  parole  board.' 

The  Salient  Factor  Score  is  designed  to  predict  the  likelihood  that  an  inmate 
will  .succeed  on  parole.  This  score  is  measured  by  an  11-point  Salient  Factor 
Scale,  which  consists  of  nine  weighted  personal  characteristics  that  were  sta- 
tistically determined  to  have  high  predictive  power  in  discriminating  between 
past  groups  of  releases  who  'succeeded'  and  'failed'  after  their  release.  All  but 
two  of  the  nine  items  are  part  of  the  inmate's  past  criminal  record  and  behavior ; 
they  lare  'static'  and  generally  known  to  the  judge  at  the  time  of  sentencing. 
The  items  scored  cannot  reflect  rehabilitative  progress,  because  they  bear  little 
or  no  relation  to  the  commitment  offense,  the  amount  of  time  the  inmate  has 
served,  or  the  programs  in  which  he  or  she  has  participated  at  the  institution." 
Parole  Release  Decisionmaking  and  the  Sentencing  Process,  84  Yale  L.  J.  810, 
823-824. 

Neither  the  Offen.se  Severity  nor  the  Salient  Factor  Score  measures  the 
person's  institutional  behavior  or  rehabilitative  progress.  The  Board  gives  each 
person  a  rating  along  each  axis  of  its  chart,  using  a  different  chart  for  adult. 


•' Fefleral  .incises  -wero  first  iiotifipd  of  tliesp  guirtelinps  in  Auguf^t.  1974.  See  Parole 
Release  Deeisionmakliiff  and  the  Sentenoinfr  Process.  S4  Yale  L.  J.  SIO,  822,  note  59. 
Judges  of  this  eourt  have  never  been  directly  notified  of  these  guidelines. 


9354 

yonth.  aiul  narcotics  addiction  sentences,  and  then  sees  the  "customary  total 
time  served  before  release." 

In  his  testimony  of  November  17.  197.5.  in  this  case  Mr.  Peter  Hoffman  testi- 
fied that  "within  the  last  six  months  approximately  84  percent  of  the  initial 
decisions  have  l)een  within  the  guidelines."  (Tr.  p.  23),  or  perhaps  82  percent 
(Tr.  p.  46).  with  half  of  the  remainder  above  and  half  below  the  g-uidelines 
figure.  Mr.  Holfman  testified  that  in  May,  197.5.  the  guidelines  were -applied  90 
percent  of  the  time  at  initial  he,arings  in  the  Northehst  region,  with  another  5 
I)erceut  serving  longer  than  the  guidelines  and  5  percent  serving  shorter  times. 
(Tr..  p.  44).  He  referred  to  a  written  report  giving  a  figure  of  91.7  percent 
adherence  to  the  guidelines,  (i(Z.)  *  In  the  ease'bf  G^msso  v.  Norton,  376  F.  Supp. 
116.  119  (D.Coun.  1974),  Mr!  Hoffman  testifie<l  tliat  the  Board  follows  its  guide- 
lines between  92  and  94  percent  of  the  time.  Mr.  Hoffman  explained  that  these 
figures  derived  from  different  time  periods,  that  from  October,  1973.  to  March. 
1974,  at  initial  parole  board  hearings  the  guidelines  were  applied  in  91.7  percent 
of  the  cases.  (Tr.  p.  47),  that. since  then  the  percentage  of  deeisioins' within  the 
guidelines  has  gone  down  somewhat  so  that  the  figure  has  "leveled  off"  at  about 
85%  compliance  with  the  guid^ilines,  7  and'.V^  pei-cent  above,  and  7, and  'A  per- 
cent helov\'  the  guidelines  (Tr,  p.  48).  This  court  finds  jts  a  facf'the  United 
States  Board  of  Parole  follows  its  "Guidelines  for  pecisionmaking"  charts  in 
making  parole  release  decisions  in  the  vast  majority  of  cases,  from  84  to  92  per- 
cent of  the  time. 

Mary  Williams'  conviction  for  assault  with  a  dangerous  weapon  was  con- 
sidered to  be  in  the  "greatest  severity"  category,  along  with  such  other  crimes 
as  aircraft  hijacking,  espionage,  kidnapping,  and  willful  homicide.  Her  salient 
factor  score  was  calculated  as  5,  in  the  "fair"  range.  A  person  with  a  5  salient 
factor  score  and  the  next  lesser  severity  category  (very  high)  would  be  re- 
quired to  serve  45  to  55  months,  and  a  person  with  a  5  salient  factor  score  in  the 
greatest  severity  category  is  to  serve  a  time  "greater  than  above" ;  thus  the 
U.S.  Board  of  Parole  told  her  that  the  time  for  her  to  serve  was  "a  range  of 
unlimited  months  to  be  served  before  release",  (Deft,  exhibit  #2),  and  that  a 
decision  outside  these  guidelines  was  not  warranted  in  her  case.  It  is  an  in- 
escapable fact  that  her  parole  decision,  to  continue  her  to  the  expiration  of  her 
sentence,  was  premised  on  these  guideline  charts. 

The  District  of  Columbia  Board  of  Parole  does  not  use  this  chart-based 
decision  method  of  the  federal  board.  The  compilation  of  niles  and  regulations 
of  the  D.C.  Board  of  Parole,  tendered  by  Mr.  Edward  J.  Keightley,  Program 
Analyst  of  the  D.C.  Board  of  Parole  at  his  November  17,  1975,  testimony  in 
this  case,  sets  forth  the  factors  to  be  considered  in  making  a  parole  determina- 
tion. Sec.  105  of  the  D.C.  Rules  and  Regulations,  Title  9,  notes  that  the  statutory 
criteria  are  "that  there  is  a  reasonable  probability  that  a  prisoner  will  live 
and  remain  at  liberty  without  violating  the  law,  that  his  release  is  not  in- 
compatible with  the  welfare  of  society,  and  that  he  has  served  the  minimimi 
sentence  imposed  or  the  prescribed  portion  of  his  sentence  as  the  case  may  be." 
Sec.  105.1  sets  forth  the  specific  factors  considered  by  the  D.C.  Board  as 
follows : 

"(a)  The  offense,  noting  the  nature  of  the  violation,  mitigating  or  aggravat- 
ing circumst^inces  and  the  activities  and  adjustment  of  the  offender  following 
arrest  if  on  bond  or  in  the  comnumity  imder  any  pre-sentence  tyi)e  arrangement. 
Cb)   Prior  history  of  criminality  noting  the  nature  and  pattern  of  any  prior 
offense  as  they  may  relate  to  the  current  circumstances. 

(c)  Personal  and  social  history  of  the  offender,  including  such  factors  as 
his  family  situation,  educational  development,  socialization,  marital  history, 
employment  history,  use  of  leisure  time  and  prior  military  experience,  if  any. 


*  The  Ynle  Law  Journal  study  reported  figures  based  on  a  written  report  by  Mr.  Iloff- 
mnn.  as  follows  : 

"Botwppn  October  m?."?,  and  March  1074.  91.7  percent  of  all  decisions  at  initial  parole 
lio.TrincR  woro  Tvltliin  the  nnldclinos.  while  4..'i  percent  were  decisions  above  the  Onide- 
linps  and  .S.8  percent  were  docisinns  bolow  tlie  Gnldelinos.  P.  Ilowinnn  &  L  DeGostin 
Parole  Declsion-Makin? :  Strnctiirinu  Pisrroticni,  .Tune  l!t74.  at  10  (T-S  Bd  of  Parole 
Res.  T'nit  :  Rep.  .■>)  rhercinnfter  cited  a«  Stnictur'iir;  niscrcHonnll  There  ?s  some  dispute 
ns  to  the  ineaninp  of  tliese  flcrtires.  Tf  nil  cases  arc  excluded  that  involve  either  ininimnm 
sentencos  t'roater  than  the  (Jnldellno  rnnfrc  or  maximum  sentences  or  mandatorv  release 
il;Vf7^i%.  "^^'^'^  Ouidellnc  ran-e  fcf.  note  SO  infra),  then  the  percentni-e  of  decisions  at 
!.cr(.nt^rhT'.o';.%a  Guidelines   is   88.4   percent   with   5..3   percent   below   and    G  3 

Parole  Release  Decisionmaking  and  the  Sentencing  Process,  supra,  at  82.5,  note  75. 


9355 

(d)  Physical  and.  emotioual  health  and/or  problems  which  may  have  played  a 
role  in  the  indi\adiiars  socialization  process,  and  efforts  made  to  overcome  any- 
such  problems.  «.      ■■     .  ,i 

(e)  Institutional  experience,  including  information  as  to  the  oftender  s  overall 
general  adjustment,  his  ability  to  handle  interpersonal  relationships,  his  be- 
havior responses,  his  planning  for  himself,  setting  meaningful  goals  in  areas 
of  academic  schooling,  vocational  education  or  training,  involvements  in  self- 
improvement  activity  and  therapy  and  his  utilization  of  available  resources  to 
overcome  recognized  problems.  Achievements  in  accomplishing  goals  and  efforts 
put  forth  in  any  involvements  in  established  programs  to  overcome  problems 
are  carefully  evaluated. 

(f)  Community  resources  available  to  assist  the  offender  with  regard  to  his 
needs  and  problems,  which  will  supplement  treatment  and  training  programs 
begun  in  the  institution,  and  be  available  to  assist  the  offender  to  further  serve 
in  his  efforts  to  reintegrate  himself  back  into  the  community  and  within  his 
familv  unit  as  a  productive  useful  individual."  D.C.  Register,  Special  Edition, 
D.C.  ilules  and  Regulations,  Title  9,  Board  of  Parole,  July  24,  1972,  at  pp.  19-21. 

See  also  testimony  of  Mr.  Keightley,  November  17,  1975,  Tr.,  pp.  106-108. 

The  court  takes  note  that  institutional  experience  and  behavior  is  a  factor 
considered  by  the  D.C.  Board  of  Parole  which  is  not  considered  by  the  U.S. 
Board  of  Parole. 

Mr.  Keightley  testified  at  the  November  17,  1975,  hearing  that  the  D.C. 
Board  of  Parole  has  no  guidelines  or  mechanical  computations  for  parole,  the 
only  applicable  calculation  being  the  minimum  sentence  imposed  by  the  judge 
(Tr.,  p.  lO'i),  and  that  prisoners  under  their  jurisdiction  are  generally  given 
parole  consideration  on  or  shortly  after  the  expiration  of  their  minimum 
sentence  (Tr.,  p.  105)  or  after  one-third  of  their  senteiice  (Tr.,  p.  112).  He 
testified  that  tlie  D.C.  Board  of  Parole  looks  "at  each  individual  as  an  in- 
dividual and  the  length  of  his  sentence,  minimum  sentence"  and  that  "the 
maximum  sentence  doesn't  come  into  play  at  all  in  making  that  determination 
as  to  whether  they  are  going  to  .  .  .  grant  parole."  (Id.  also  Tr.,  p.  15). 
M!r.  Keightley  explicitly  stated  on  cross-examination  that  the  D.C.  Board  does 
mot  use  tlie  federal  guideline  charts  or  any  analogous  schedules  (Tr.,  pp. 
109-110) . 

Mr.  Keightley  testified  that  the  D.C.  parole  rate  is  about  69  percent;  that 
between  57  to  59  percent  of  the  persons  inider  their  jurisdiction  are  granted 
parole  at  their  first  eligibility  date,  and  an  additional  12  percent  are  granted 
at  a  rehearing.  (Tr.,  pp.  105,  114).  The  Washmgton  Post  reported  more  re- 
cently, on  March  14,  1976,  that  of  1,025  inmates  considered  for  parole  for  the 
first  time  in  1975,  607  were  paroled,  or  two-thirds  at  the  initial  hearing  and 
that  of  the  1,330  persons  heard  altogether  in  1975,  948  or  71.2  percent  were 
granted  parole.  In  1974,  the  total  percentage  granted  was  72.9  percent.  D.C. 
Parole  Rate  of  66  percent  Tops  Area,  Washinffton  Post,  Sunday,  Jlarch  14, 
1976,  p.  A1-A5.  By  contrast  the  Post  reported  that  "according  to  statistics  on 
file  in  the  Senate  Judiciary  Committee,  the  federal  board  paroles  about  35  per- 
cent of  those  considered  for  parole  annually."  Id.,  at  A5,  col.  8. 

Indeed,  some  judges  of  this  court  have  criticized  the  D.C.  Board  of  Parole  for 
Parole  for  presuming  that  every  prisoner  who  completes  the  minimum  sentence 
is  ready  to  be  paroled,  absent  some  deficiency  in  prison  behavior,  so  that  "the 
vast  majority  of  prisoners  make  parole  at  the  initial  hearing."  8ee  United 
States  V.  Michael  Samuels,  Crim.  No.  2331-73,  Memorandum  and  Order  dated 
January  14,  1975,  at  p.  4,  and  that  the  Board  does  not  make  an  affirmative  finding 
of  rehabilitation  but  presumes  such  a  state.  (Id.)  See  also  Washington  Post 
article,  supra. 

This  court  finds  as  a  fact  that  Mary  Williams'  consideration  by  the  United 
States  Board  of  Parole  resulted  in  the  application  of  different  and  harsher 
standards  of  parole  than  would  have  been  applied  by  the  District  of  Columbia 
Board  of  Parole  had  they  had  jurisdiction  of  her  case.  This  does  not  constitute 
a  finding  of  fact  concerning  whether  or  not  she  would  have  been  released.  This 
court's  findings  herein  related  only  to  the  application  of  a  different  set  of  stand- 
ards to  Mary  Williams  simply  by  virtue  of  her  status  as  a  convicte<l,  sentenced 
female  felon  from  Superior  Court  of  the  District  of  Columbia. 

IV 

Having  found  the  above  facts,  the  court  must  now  address  the  question  of 
whether  this  application  of  difl'erent  and  harsher  parole  standards  constituted 


9356 

a  denial  of  equal  protection  of  the  laws  in  violation  of  Mary  Williams'  right  to 
due  process  under  the  Fifth  Amendment. 

The  I'nited  States  Supreme  Court  held  in  1954  that  equal  protection  of  the 
law  is  one  element  of  the  due  process  guarantee  which  applies  to  the  District 
of  Columbia  through  the  Fifth  Amendment,  and  that  an  unjustifiable  discrimi- 
nation violates  due  process.  liolUno  v.  Sharpe,  347  U.S.  497  (1954).  Procedures 
through  which  persons  are  granted  or  denied  parole  are  subject  to  a  standard 
of  due  process;  the  right  to  consideration  for  parole  is  an  aspect  of  liberty  to 
which  the  protection  of  the  due  process  clause  extends.  Childs  v.  United  States 
Hoard  of  Parole,  167  U.S.  App.  D.C.  268.  275  (1974)  ;  United  States  ex  rel.  John- 
xon.  V.  Chairman  of  New  York  State  Board  of  Parole,  500  F.  2d  825,  927  (2nd 
Cir. ).  vacated  as  moot,  95  S.  Ct.  488  (1974)  :  Bradford  v.  Wein.'^tein.  519  F.  2d  728. 
731  (4tli  Cir.,  1974),  certiorari  granted,  95  S.  Ct.  2394,  dismissed  as  moot  after 
prisoner  released  from  supervision,  96  S.  Ct.  347  (1975). 

AI)sent  an  equal  rights  amendment,  this  court  must  turn  to  equal  protection 
case  law  to  determine  the  correct  analytical  framework. 

Differences  in  treatment  based  solely  on  classification  by  sex  violate  equal 
protection  of  the  laws,  and  therefore  due  process  of  law.  when  there  is  no 
"rational  relationship"  between  the  classification  by  sex  and  the  governmental 
purpose  sought  to  be  achieved,  or  when  the  distinction  between  the  sexes  does 
not  bear  a  "fair  and  substantial  relation  to  the  subject  of  the  legislation",  or 
when  a  distinction  l>ased  on  a  suspect  classification  found  to  lie  inherently  sus- 
pect is  not  justified  by  a  compelling  government  interest,  depending  on  the  con- 
stitutional test  applied. 

In  recent  years  there  luis  been  a  great  deal  of  litigation  over  the  proper  status 
of  women  in  society,  and  despite  a  series  of  Supreme  Court  opinions  on  sex  dis- 
crimination issues,  the  exact  test  to  be  applied  is  still  not  firmly  resolved.  In 
1971.  the  Supreme  Court  was  confronted  with  an  Idaho  statute  which  required 
that  "males  must  be  preferred  to  females"  among  persons  otherwise  equally  en- 
titled to  administer  tlie  estate  of  a  person  who  died  intestate.  The  Court  con- 
cluded that  this  "arbitrary  perference  .  .  .  cannot  stand  in  the  face  of  the 
Fourleenth  Amendment's  command  that  no  State  den.v  the  equal  protection  of 
the  laws  to  any  person  within  is  jurisdiction."  Reed  v.  Reed.  404  U.S.  71.  74 
(1971).  The  test  enunciated  by  the  Court  was  drawn  from  Royster  Guano  Co. 
V.  Vir[/i)iia.  253  U.S.  412,  415  (1920)  : 

"A  classification  must  be  reasonable,  not  arbitrary,  and  must  rest  upon  some 
ground  of  difference  having  a  fair  and  substantial  relation  to  the  object  of  the 
legislation,  so  that  all  persons  similarlv  circumstanced  shall  l)e  treated  alike.'' 
(404  I\S.  at  76.) 

This  "fair  and  sul)stantial  relation"  test  is  less  stringent  than  the  "strict 
scrutiny"  which  must  be  apjilied  to  classifications  declared  inherently  .susix'ct, 
liut  clearly  stronger  than  the  traditional  "rational  relationship"  test. 

Then  in  1973  the  Supreme  Court  in  Frontiero  v.  Richardson,  411  U.S.  677 
(1973),  again  considered  the  validity  of  a  sex-based  classification  scheme.  In 
Frorifirro  a  servicewoman  <'hallenged  statutes  wliich  allowe<l  a  serviceman  to 
claim  his  wife  as  a  "dependent"  without  regard  to  whether  she  was  in  fact  de- 
pendent upon  him  for  any  part  of  her  support,  but  required  a  servicewoman  to 
prove  that  her  husband  was  in  fact  dependent  upon  her  for  over  one-half  of  his 
supi)ort  in  order  to  claim  him  as  a  dependent  for  medical  and  dental  benefits 
and  quarters  allowances.  The  court  struck  down  the  statute  as  a  violation  of  the 
Due  Process  Clause  of  the  Fifth  Amendment.  The  plurality  opinion,  containing 
the  views  of  .Justices  Rrennan.  Douglas,  Wliite.  and  INIarsliall.  found  that  "clns- 
sifications  based  on  sex,  like  classifications  based  on  race,  alienage,  and  national 
origin,  are  inherentl.v  suspect  and  must  therefore  be  subjected  to  close  judicial 
.scrutiny.'^  411  TT.S.  at  682.  The  court  went  on  to  note  that  'Ttlhis  departure  from 
'traditional'  rational-basis  analysis  with  respect  to  sex-based  classifications  is 
clearly  justified"  because  of  the  "unfortunate  historv  of  sex  discrimination"  in 
our  nation.  411  T^S.  at  684. 

".\nd  what  differentiates  sex  from  such  nonsuspect  statuses  as  intellieence  or 
physif-al  disability,  and  aligns  it  with  the  recognized  inspect  criteria,  is  that  the 
sex  characteristic  frequently  bears  no  relation  to  abilitv  to  perform  or  contrib- 
ute to  society."  (411  U.S.  at  686.) 

Thorp  ^^■^'!  no  niaioritv  opinion  in  Frotitiero.  .Justice  Stewart  eoncurred  in  'bo 
iud?rment  of  the  plnrnlitv.  on  the  ground  that  the  statutorv  spbeme  workcl  "an 
invidions  rliccrimination"  and  cited  only  Reed  v.  Reed.  .Justices  Powell.  P.lnck- 
niun,  and  Chief  Justice  P.urger  concurred  in  the  judsrment  but  did  not  ndont  sex 
as  a  suspect  clas.sification,  because  they  felt  it  unnece^^sary  to  the  decision  and 


9357 

because  the  equal  rights  amendmeut  was  then  involved  in  the  ratification  proc- 
ess in  state  legishitures.  Justice  Rehnquist  dissented. 

In  Cleveland  Bdard  of  Education  v.  LaFleur,  414  U.S.  632  (1974),  the  Court 
struck  down  rules  in  Cleveland,  Ohio,  and  Chesterfield  County,  Virginia,  which 
required  public  school  teachers  to  take  unpaid  maternity  leaves  five  and  four 
months,  respectively,  prior  to  the  expected  childbirth,  and  which  in  Cleveland 
prohibited  the  female  teacher  from  returning  to  work  until  her  child  was  at  least 
three  months  old.  The  Court's  rationale  there  was  based  on  due  process  rather 
than  sex  discrimination.  The  mandatory  times  fixed  created  irrebuttable  pre- 
sumptions of  physical  incompetence  and  the  Court  noted  that  '"irrebuttable  pre- 
sumptions have  long  been  disfavored  under  the  Due  Process  Clauses  of  the 
Fifth  and  Fourteenth  Amendments."  414  U.S.  at  644. 

The  Court's  next  opinion  in  a  sex  discrimination  case  was  Kahn  v.  Shevin,  416 
U.S.  351  (1974).  In  upholding  a  tax  exemption  for  widows  but  not  for  widowers, 
the  Court  applied  the  Reed  test  and  found  "some  ground  of  difference  having  a 
fair  and  substantial  relation  to  the  object  of  the  legislation."  416  U.S.  at  355. 

Geduldig  v.  Aiello,  417  U.S.  484  (1974)  upheld  the  exclusion  of  certain  preg- 
nancy related  disabilities  from  coverage  by  the  California  disability  insurance 
system  because  the  heavy  exi>ense  of  covering  pregnancy  would  destroy  the  eco- 
nomic viability  of  the  social  welfare  program.  Indeed,  the  Court  denied  that  the 
case  presented  a  question  of  sex  discrimination. 

"[T]his  case  is  ...  a  far  cry  from  cases  like  Reed  v.  Reed,  and  Frontiero  v. 
Richardson,  involving  discrimination  based  upon  gender  as  such.  The  California 
insurance  program  does  not  exclude  anyone  from  benefit  eligibility  because  of 
gpnder  but  merely  removes  one  pliysical  condition — pregnancy — from  the  list 
of  compensable  disabilities.  While  it  is  true  that  only  women  can  become  preg- 
nant, it  does  not  follow  that  every  legislative  classification  concerning  preg- 
iianc.v  is  a  sex-based  classification  like  those  considered  in  Reed,  supra,  and 
Frontiero,  supra.  Normal  pregnancy  is  an  objectively  identifiable  physical  condi- 
tion with  unique  characteristics.  Absent  a  showing  that  distinctions  involving 
pregnancy  are  mere  pretexts  designed  to  effect  an  invidious  discrimination  against 
the  members  of  one  sex  or  the  other,  law-makers  are  constitutionally  free  to  in- 
clude or  exclude  pregnancy  from  the  coverage  of  legislation  such  as  this  on  any 
reasonable  basis,  just  as  with  respect  to  any  other  physical  condition."  (417  U.S. 
at  496-97,  note  20.) 

Weinherffer  v.  Wiesenfeld,  420  U.S.  636  (1975)  extended  to  widowers  with  de- 
pendent children  the  social  security  benefits  formerly  available  only  to  widows 
with  dependent  children.  The  Court  found  the  gender-based  distinction  of  the 
Social  Security  Act  "indistinguishable"  from  that  invalidated  in  Frontiero  v. 
Richardson,  420  U.S.  at  642-43.  The  Court  did  not  articulate  the  precise  test  it 
was  using  because  the  discrimination  could  not  be  found  constitutional  under 
any  test. 

"Given  the  purpose  of  enabling  the  surviving  parent  to  remain  at  home  to  care 
for  a  child,  the  gender-based  distinction  of  Sec.  402(g)  is  entirely  irrational." 
(420  U.S.  at  651.) 

Most  recently,  the  Court  found  that  a  difference  in  sex  between  children  did 
not  warrant  a  distinction  in  the  Utah  statute  under  which  girls  attained  majority 
at  age  18  but  boys  did  not  attain  majority  until  age  21.  The  challenged  statute  al- 
lowed for  support  payments  to  cease  when  female  children  reached  age  18  and 
male  children  reached  21.  The  Court  left  open  the  precise  test  to  be  used  in  sex 
discrimination  cases. 

"We  find  it  unnecessary  in  this  case  to  decide  whether  a  classification  based 
on  sex  is  inherently  suspect. 

*  *  ♦  *  * 
"Rrrd.  we  feci,  is  controlling  here. 

*  *  *  *  * 

"_We  therefore  conclude  that  under  any  test — compelling  state  interest,  or 
rationn)  basis,  or  something  in  l)etween — Sec.  15-2-1  in  the  context  of  child 
support,  does  not  survive  an  equal  protection  attack.  In  that  context,  no  valid 
distinction  may  be  drawn."  {fitavton  v.  Stanton.  95  S.  Ct.  1373,  1377-1379 
(1975).) 

This  court  believes  that  the  correct  and  appropriate  test  to  be  applied  here  is 
that  of  strict  scrutiny  for  two  reasons:  First,  sex  is  a  suspect  classification. 
Frontiero  v.  Richardson,  svpra.  United  States  ex.  rel.  RoMnson  v.  York,  281  F. 
Supp.  8.  16  (D.Conn  1968)  ;  SaH'cr  Tnn.  Inc  v.  Kirhu.  5  Cal.  3d  1.  485  P.2d  529 


9358 

(1071)  ;  second,  the  right  to  non-discriminatory  parole  consideration  is  a  funda- 
mental one.  .        .  4. 
There  are  few  interests  more  substantial  than  freedom  from  imprisonment. 
Chief  Justice  Burger  described  the  important  function  of  parole  in  the  criminal 
justice  system  as  follows  : 

"During  the  past  60  years,  the  practice  of  releasing  prisoners  on  parole  be- 
fore the  end  of  their  sentences  has  become  an  integral  part  of  the  penological 
system.  Note.  Parole  Revocation  in  the  Federal  System,  56  Geo.  L.  J.  705  (1968). 
Rather  than  being  an  ad  hoc  exercise  of  clemency,  parole  is  an  established  varia- 
tion on  imprisonment  of  convicted  criminals.  Its  purpose  is  to  help  individuals 
reintegrate  into  society  as  constructive  individuals  as  soon  as  they  are  aide,  with- 
out being  confined  for  the  full  term  of  the  sentence  imposed.  It  also  serves  to 
alleviate  the  costs  to  society  of  keeping  an  individual  in  prison.  The  essence 
of  parole  is  release  from  prison,  before  the  completion  of  sentence,  on  the  con- 
dition that  the  prisoner  abide  by  certain  rules  during  the  balance  of  the  sen- 
tence." (Morrissey  v.  Brewer,  408  U.S.  471,  477  (1972) . ) 

Just  as  a  parolee  lias  an  interest  in  his  continued  liberty,  so  a  prisoner  has  a 
substantial  interest  in  non-discriminatory  consideration  for  parole  and  nnn-dis- 
criniination  parole  eligibility. 

"The  liberty  of  a  parolee  enables  him  to  do  a  wide  range  of  things  open  to 
persons  who  have  never  been  convicted  of  any  crime.  The  parolee  has  been  re- 
leased from  prison  based  on  an  evaluation  that  he  shows  reasonable  promise 
of  being  able  to  return  to  society  and  function  as  a  responsible,  self-reliant  per- 
son. Subject  to  the  conditions  of  his  parole,  he  can  be  gainfully  employed  and  is 
free  to  be  with  family  and  friends  and  to  form  the  other  enduring  attachments 
of  normal  life.  Though  the  State  properly  subjects  him  to  many  restrictions  not 
applicable  to  other  citizens,  his  condition  is  very  different  from  that  of  confine- 
ment in  a  prison.  He  may  have  been  on  parole  for  a  number  of  years  and  may 
be  living  a  relatively  normal  life  at  the  time  he  is  faced  with  revocation.  The 
parolee  has  relied  on  at  least  an  implicit  promise  that  parole  will  be  revoked 
only  if  he  fails  to  live  up  to  the  parole  conditions,  in  many  cases,  the  parolee 
faces  lengthy  incarceration  if  his  parole  is  revoked. 

"We  see,  therefore,  that  the  liberty  of  a  parolee,  although  indetern.inate.  in- 
cludes many  of  the  core  values  of  unqualified  liberty  and  its  termination  in- 
flicts a  "grievous  loss"  on  the  parolee  and  often  on  others.  It  is  hardly  useful 
any  longer  to  try  to  deal  with  the  problem  in  terms  of  whether  the  parolee's  lib- 
erty is  a  right'  or  a  'privilege.'  By  whatever  name,  the  liberty  is  valuable  and 
must  be  seen  as  within  the  protection  of  the  Fourteenth  Amendment."  (Morrissey 
V.  Brc7cer,  id.,  at  482.) 

The  federal  respondents  seem  to  believe  that  the  correct  test  is  that  of  a 
"fair  and  substantial  relationship  to  the  object  of  the  legislation."  See  Return 
and  Answer  to  the  Order  to  Show  Cause,  p.  7. 

However,  the  di.'jcrimination  against  Mary  Williams  cannot  withstand  an  efpial 
protection  attack  even  if  the  test  to  lie  applied  is  merely  that  of  a  rational  re- 
lation.ship  between  the  classification  based  on  sex  and  the  difference  in  parole 
treatment.  Parole  is  a  fundamental  public  policy  in  the  District  of  Columbia. 
Sec  D.C.  Code,  Sees.  24-201.  et.  seq.  I'arole  may  mean  an  opportunity  to  start 
anew  in  society,  and  may  be  a  determinative  step  in  a  person's  rehabilitation 
and  adjustment  to  a  law-abiding  life. 

The  Supreme  Court  of  I»ennsylvania  struck  down  a  statute  regarding  the 
imposition  of  minimum  sentences  for  men  but  not  for  women,  wliich  resulted 
in  different  parole  eligibility  dates  solely  on  the  basis  of  sex.  Their  approach  is 
worth  noting : 

"That  one  i>erson  (assuming  equality  of  considerations  as.  for  example,  prior 
criminal  record  or  rehabilitative  progress)  should  be  eligible  for  parole  at  a  dif- 
ferent time  than  another  ix'rson  solely  becau.se  of  his  or  lier  sex  is  discrimina- 
tion of  the  most  obvious  sort.  We  jierceive  no  basis,  let  alone  a  rational  bsLsi.^. 
for  predicating  eligibility  for  parole  on  a  person's  sex."  (CowmoinccaltJi  v 
Buthr,  828  A.2d  8.-)l ,  S.">6  ( Pa..  1974 ) . ) 

"In  other  contexts,  much  has  been  written  about  the  equal  protection  clause 
(e.specially  about  its  impact  on  .sox  discrimination)  and  manv  different  views 
of  Its  scojk;  and  n.le  propounded.  And  although  at  times  the"  equal  protection 
Clause  can  at  best  be  seen  through  a  glass  darklv,  one  asj.ect  is  perceived 
clearly:  if  a  legislative  classification  bears  no  reasonable  relationship  to  the 
purposes  of  the  legi.slalion,  the  equal  protection  elau.-e  is  offended    *  *  *  [W]e 


9359 

have  concluded  that  there  is  no  rational  relationsliip  between  the  sex  of  a  con- 
victed person  and  the  Commonwealth's  interest  in  parole  eli^bility."  (Id.  at 
/  858.) 

See  also  State  v.  Chambers,  63  N.J.  287,  307  A.2d  78  (1973). 

This  court,  too,  must  conclude  that  there  is  no  rational  relationship  between 
the  sex  of  a  convicted  person  and  the  District  of  Columbia's  interest  in  parole 
eligibility  or  the  application  of  different  parole  standards  and  criteria  to  male 
and  female  prisoners  sentenced  in  District  of  Columbia  Superior  Court.  No  testi- 
mony has  been  introduced  to  even  suggest  any  theory  that  men  and  women  should 
have  different  parole  criteria  applied.  Indeed,  the  respondents  have  only  ad- 
dressed themselves  to  whether  the  criteria  are  indeed  different,  a  factual  question. 

Tlie  plurality  in  Frontiero  v.  Richardson  wrote  about  sex  discrimination  in 
this  country : 

"There  can  be  no  doubt  that  our  Nation  has  had  a  Ion,?  and  unfortunate  his- 
tory of  sex  discrimination.  Traditionally,  such  discrimination  was  rationalized 
by  an  attitude  of  a  'romantic  paternalism'  which,  in  practical  effect,  put  women 
not  on  a  pedestal,  but  in  a  cage."  (411  U.S.  677,  684.) 

Mary  Williams  is  here  literally  in  a  cage,  a  federal  cage.  She  may  not 
be  entitled  to  release  from  her  cage,  but  she  is  most  certainly  constitutionally 
entitled  to  the  same  consideration  for  possible  parole  as  a  male  would  have  had 
before  the  District  of  Columbia  Board  of  Parole. 

Accordingly,  this  court  finds  that  the  United  States  Board  of  Parole  having 
authority  and  jurisdiction  over  Mary  Williams  pursuant  to  D.C.  Code  See.  24-209 
was  a  result  of  a  discriminatory  classification  by  sex,  and  the  resulting  dif- 
ferent treatment  is  therefore  a  violation  of  her  right  to  equal  protection  of  the 
law  and  due  process  guaranteed  to  her  by  the  Fifth  Amendment  to  the  Constitu- 
tion. 

The  court  must  now  address  the  question  of  an  appropriate  remedy. 

There  is  some  substantial  question  whether  the  rights  of  women  such  as  Mary 
Williams  are  violated  when  they  are  not  provided  prison  facilities  by  the  District 
of  Columbia  while  men  prisoners  similarly  situated  are  so  provided.  The  United 
States  Supreme  Court  held  in  Missouri  ex.  rel.  Gaines  v.  Canada,  305  U.S.  337 
(19.38)  that  if  a  state  furnishes  legal  education  to  white  students  within  its 
borders,  it  cannot  deny  that  quality  legal  education  to  black  students  in  the 
state;  paying  for  the  black  students  to  go  to  out-of-state  schools  would  not  suf- 
fice. The  fact  that  there  may  have  been  only  a  limited  number  of  black  students 
seeking  such  benefits,  so  that  provision  of  a  separate-but-eqvial  school  was  bur- 
densome, was  not  relevant.  The  Court  found  that  the  obligation  of  the  State  to 
give  the  protection  of  equal  laws  must  be  performed  where  its  laws  operate ; 
that  is  within  its  own  jurisdiction. 

Similarly,  at  a  time  when  Congressional  intent  regarding  the  education  of 
deaf  children  in  the  District  of  Columbia  was  that  such  children  should  be  sep- 
arated by  race,  it  was  the  practice  that  the  D.C.  Board  of  Education  contracted 
with  a  private  school  within  the  District  for  the  education  of  white  deaf  chil- 
dren, and  the  black  deaf  children  were  sent  to  a  school  in  Maryland.  The  United 
States  District  Court  held  in  Miller  v.  Board  of  Education,  106  F.  Supp.  988 
(D.C. D.C.  1952)  that,  although  the  separation  by  race  was  proper,  the  District 
may  not  provide  facilities  for  one  race  in  the  District  and  .send  the  other  race 
outside  the  jurisdiction;  it  is  the  duty  of  the  District  to  provide  equal  education 
facilities  within  the  District  for  deaf  children  of  both  races,  if  it  provides  for  any 
within  the  District. 

Although  all  persons  sentenced  in  District  of  Columbia  Superior  Court  to 
terms  of  incarceration  are  committed  to  the  custody  of  the  Attorney  General,  the 
District  of  Columbia  Government  has  elected  to  provide  for  the  confinement  of 
males  in  its  own  facilities  while  it  sends  the  females  to  federal  institutions  far 
from  their  homes  and  families.^ 

However,  Mary  Williams  has  not  here  challenged  her  placement  in  a  federal 
institution,  only  her  resultant  parole  treatment.  This  court  can  afford  her  a 
full  equitable  remedy  without  ordering  the  provision  of  facilities  by  the  D.C. 
Department  of  Corrections. 

Mary  Williams  has  sought  declaratory  and  injunctive  relief.  Pursuant  to  its 
equitable  iiowcrs,  D.C.  Code  11-946.  District  of  Columbia  v.  Walte7'S,  319  A.  2d 
332  (D.C.C.A.,  1974)  ;  Spock  v.  District  of  Columbia,  283  A.  2d  14  (D.C.C.A.,  1971), 


=  The  nearest  federal  pris?on  for  women  is  at  Alder;5on,  West  Virginia,  some  3S0  miles  from 
Washington,  D.C. 


9360 

this  court  lipreby  renders  a  declaratory  judgment  that  D.C.  Code  Sec.  24-200  is 
unconstitutional  as  applied  to  persons  sentenced  by  the  District  of  Colunilna 
Superior  Court  who  are  designated  to  serve  their  sentences  in  federal  institutions 
solely  on  the  basis  of  sex ;  that  is,  females  who  receive  regular  sentences.  Thus, 
this  judgment  will  not  apply  to  persons  who  are  in  federal  institutions  serving 
XARA  sentences. 

This  court  on  ]May  14.  197C>.  ordered  respondent  District  of  Columbia  Board 
of  Parole  to  give  a  hearing  to  Mary  Williams  within  twenty  days.  By  order  of 
May  14,  1976.  this  court  granted  a  conditional  writ  of  habeas  corpus  and  ordered 
that  the  writ  will  issue  discharging  Mary  Williams  unless  within  twenty  days 
the  District  of  Columbia  Board  of  Parole  grants  a  hearing  to  consider  whether 
or  not  ilarv  Williams  should  be  paroled. 

Dated  :  June  9, 1976. 

Judge  Charles  W.  Halleck. 


In  the  Superior  Court  of  the  District  of  Cohunbia,  Criminal  Division 

United  States 

V. 

Mary  A.  Williams 

(Criminal  Xo.  35771-73) 

Order 

Mary  Williams  is  before  the  sentencing  court  seeking  ijost-eonvietion  remedies 
to  correct  what  she  alleges  is  a  denial  of  equal  protection  based  solely  on  classi- 
fication by  sex.  Several  motions  are  now  pending.  By  this  order,  the  court  finds 
jurisdiction  over  this  action  under  Superior  Court  Criminal  Rule  35,  under  D.C. 
Code  23-110,  and  under  D.C.  Code  16-1901  and  grants  the  :Motion  fi>r  Joinder  of 
Parties  to  join  Mr.  Delbert  Jackson  in  his  capacity  as  Director  of  the  District 
of  Columbia  Department  of  Corrections,  Mr.  Joseph  Shore  as  a  representative  of 
the  District  of  Columbia  Board  of  F'arole.  and  Attorney  G^ene^al  Edward  I^evi 
in  his  capacity  as  ultimate  custodian  of  !Mary  Williams.  The  joined  parties  will 
now  have  an  opportunity  to  file  any  pleadings  on  the  merits  of  the  case,  if  they 
so  de.sire.  prior  to  any  ruling  on  the  equal  protection  issue  and  any  appropriate 
remedv. 

I 

On  May  8,  1974.  the  defendant.  Mary  Williams,  pled  guilty  to  a  charge  of 
assault  with  a  dangerous  weapon  in  violation  of  1).(^.  Code  Sec.  22-502.  which 
carries  a  maximum  jmssible  penalty  of  ten  yeai"s  imprisonment.  On  May  31.  1974. 
this  court  sentenced  her  to  ninety  (90)  days  to  three  (3)  years  imprisonment. 
She  was  designated  l>y  the  Federal  Bureau  of  Prisons  to  serve  that  sentence  at 
the  Federal  Women's  Reformatory  at  Alderson,  West  Virginia.  Testimony  in- 
troduced in  a  hearing  in  this  matter  was  that  women  scjitenced  by  D.C.  Superior 
Court  are  routinely  sent  to  federal  pri.«ons  because  of  a  lack  of  facilities  for 
females  in  the  D.C.  De]»artment  of  Corrections,  whereas  males  similarly  sen- 
tenced normally  serve  their  sentences  in  facilities  of  the  D.C.  Department  of 
Corrections. 

Pursuant  to  D.C.  Code  24-209.  the  Ignited  States  Board  of  Parole  had  juris- 
diction over  the  i)arole  status  of  ^lary  Williams.  On  Xovember  6,  1974.  ]\Iary 
Williams  was  interviewed  by  a  hearing  examiner  from  the  Ignited  Stiites  Board 
of  Parole.  On  November  20,  1974,  she  was  notified  that  she  would  be  required  to 
continue  to  serve  to  expiration  the  sentence  imjiosed  by  this  court.  The  \<i- 
vember  20  notice  introduced  at  the  Xovember  17,  1975.  hearing,  as  defendant's 
exhibit  Xo.  2  gives  the  reasons  for  the  continuance  to  expiration  as  follows : 

"Your  offense  behavior  has  been  rated  as  greatest  severity.  You  have  a  salient 
factor  score  of  5.  You  have  been  in  custody  a  total  of  S  months.  Cuidelines  estab- 
lished by  llie  Board  for  adult  cases  which  consider  the  above  factors  indicate 
a  r;inge  of  mdimited  monlhs  to  be  served  before  release  for  cases  with  good 
institutional  program  performance  and  adjustment.  After  careful  consideration 
of  all  relevant  factors  aTid  information  presented,  it  is  found  that  a  decision  out- 


9361 

side  the  gniidelines  at  this  consideration  does  not  appear  warranted.  You  need 
additional  institutional  treatment,  specifically,  alcohol  therapy  to  enhance  your 
capacity  to  lead  a  law  abiding  life."  ^ 

The  guidelines  which  dictate  this  result  are  applicable  only  to  the  United 
States  Board  of  Parole  and  not  to  the  District  of  Columbia  Board  of  Parole. 

Thereafter,  Mary  Williams,  through  court-appointed  counsel,  moved  this  court 
to  vacate  or  modify  her  sentence  pursuant  to  Superior  Court  Criminal  Rule  3."), 
D.C.  Code  See.  1&-1901,  et  seq.,  or  D.C.  Code  Sec.  23-110.  This  court  has  heard 
testimony  from  Mr.  Peter  Hoffman,  Research  Director  of  the  United  States 
Board  of  Parole,  concerning  that  Board's  adult  guidelines  for  length  of  time 
to  be  served  prior  to  parole  and  the  procedures  of  that  Board  on  November  17, 
1975.  Also,  Mr.  Edward  Keightley,  Program  Analyst  of  the  District  of  Columbia 
Board  of  Parole  testified  on  November  17th  concerning  the  procedures  and 
standards  of  the  Board. 

-Mary  Williams  remains  incarcerated  on  this  sentence  *  and  seeks  relief. 

II 

The  relief  requested  b.v  Mary  Williams  presently  includes  a  motion  to  vacate 
or  modify  her  sentence,  filed  May  21,  1975,  and  supplemented  on  November  7, 
1975,  by  a  request  for  efpiitable  relief  through  hal»eas  corpus  contained  in  a 
supi)lemental  memorandum  file<l  December  11,  1975,  a  motion  for  declaratory 
and  injunctive  relief  filed  December  19,  1975,  and  a  motion  for  declaratory  and 
injunctive  relief  filed  April  28,  1976. 

She  has  requested  to  "be  resentenced  in  such  a  manner  as  to  be  given  credit 
for  time  served  and  released  from  custody"  (Dec.  11.  1975,  p.  4),  "to  order  the 
I>.C.  Board  of  Parole  to  consider  her  for  parole"  (Id.,  p.  5).  for  "an  affirmative 
remedy  which  would  place  the  petitioner  in  the  same  position  as  a  similarly 
situated  male"  (Id.,  p.  6),  and  for  "a  declaration  that  her  continued  incarcera- 
tion without  parole  consideration  by  the  respondents  is  unlawful  and  in  viola- 
tion of  her  right  to  due  process  of  law  under  the  Fifth  Amendment."  ( Dee.  19, 
1975,  p.  1  and  April  28, 1976,  p.  1) . 

Before  addressing  these  substantive  issues  of  whether  Mary  Williams  has 
been  unconstitutionally  denied  equal  protection  of  the  laws  and  due  process  of 
law  by  reason  of  her  consideration  for  parole  by  the  personnel  and  procedures 
of  the  United  States  Board  of  Parole  rather  than  by  the  personnel  and  proce- 
dures of  the  District  of  Columbia  Board  of  Parole  which  she  alleges  would  have 
been  afforded  to  a  similarly-situated  male  sentenced  by  this  court,  and  whether 
her  sentence  should  be  vacated  or  modified  by  this  court,  it  is  first  necessary 
to  consider  the  pending  Motions  for  Joinder  of  Parties  and  the  preliminary 
jurisictional  issues. 

Ill 

The  jurisdictional  issues  have  been  well  and  thoroughly  briefed  by  counsel 
for  Mary  Williams,  counsel  for  the  United  States,  and  by  the  amicus  curiae 
appointed  by  this  court.  Three  theories  of  jurisdiction  have  been  advanced  and 
require  evaluation. 

First,  defendant  moved  under  Superior  Court  Criminal  Rule  35  for  correction 
of  her  sentence.  This  motion  is  required  to  be  filed  before  the  original  sentencing 
judge.  Rule  35(a),  identical  to  Federal  Rule  of  Criminal  Procedure  35,  provides: 

"The  court  may  correct  an  illegal  sentence  at  any  time  and  may  correct  a 
sentence  imposed  in  an  illegal  manner  within  the  time  provided  herein  for  the 
reduction  of  sentence." 

The  time  provided  where,  as  here,  there  was  no  appeal  from  the  conviction, 
is  120  days.  Defendant's  Rule  35  motion  was  filed  well  after  the  120  day  limit 
had  expired.  The  case  law  is  imiform  in  federal  court  that  Rule  35  motions  re- 
quired to  be  filed  within  that  time  limit  cannot  be  considered  after  the  120  days. 
Ser  Kortnexs  v.  United  States,  514  F.2d  167,  168.  note  1  (8th  Cir.,  1975).  The 
counsel  for  the  United  States  correctly  points  out  that  Superior  Court  Criminal 


1  Thpre  Is.  however,  nothing  to  Indicate  that  "alcohol  therapy"  Is  either  available  oi- 
affor'lefl  to  nrisoners  at  Alder-jnn. 

*  Mary  Williams  was  initially  incarcerated  in  Alderson.  West  Virginia.  Dnriner  the  conrse 
of  this  litisjatlon  she  was  brniiixht  to  Washingrton,  D.C.  to  he  a  witness  in  iinrelaterl  litir-a- 
tion  in  TT.S.  District  Court,  and  has  .snbsenuently  remained  in  AA'ashington  hv  May  SO.  197,5. 
order  of  this  court.  Her  presence  under  that  order,  modified  by  consent  of  hoth  the  Assist- 
ant U.S.  .Attorney  and  defense  counsel  on  February  13,  1976,  is  not  the  basis  of  any  finding 
of  jurisdiction  herein. 


9362 

TFluie  45{h)  explicitly  dissallows  extensions  of  time  for  filing  Rnle  35  motions. 
Therefore  this  court  cannot  and  will  not  now  consider  any  allegations  under 
a  Rule  3.J  motion  that  the  sentence  was  "imposed  in  an  illegal  manner".  How- 
over,  the  court  can  and  will  consider  the  allegation  made  in  this  Rule  35  motion 
that  the  sentence  itself  is  illegal,  as  that  aspect  of  a  Rule  35  motion  may  be 
made  "at  any  time". 

The  appropriateness  of  entertaining  a  Rule  35  motion  in  a  situation  where 
the  defendant  was  denied  parole  consideration  due  to  the  U.S.  Board  of  Parole's 
guidelines  is  well  illustrated  in  United  States  v.  MandervUle,  396  F.  Supp.  1244 
(D.Conn.  1975).  In  MandervUle,  Judge  Blumenfeld  held  that  while  courts  should 
not  function  as  superparole  boards,  "they  should  not  be  reluctant  to  modify 
sentences  when  assumptions  which  they  entertained  at  the  time  of  sentencing 
with  regard  to  parole  possibilities  have  subsequently  been  invalidated."  396  F. 
Supp.  at  1249.  In  ]\[arnlerriUe.  the  trial  judge  had  sentenced  thp  defendant  to 
two  year.s  imprisonment  for  possession  of  stolen  bank  funds  with  the  expectation 
that  the  defendant  would  serve  12  to  16  months  in  prison  and  the  remainder 
on  parole,  but  the  U.S.  Board  of  Parole  in  applying  its  policy  guideline  table 
had  determined  that  the  defendant  should  serve  the  entire  sentence  less  good 
time,  a  period  of  19  months.  Tlie  .iudge  therefore  on  a  Rule  35  motion  reduced 
the  sentence  to  18  months  imprisonment  which  would  allow  for  release  in  14 
months. 

In  United  States  v.  SlutsJcij.  514  F.2d  1222  (2nd  Cir.  1975),  the  second  circuit 
found  that  a  Rule  35  motion  is  an  appropriate  method  for  reconsideration  of  a 
sentence  where  the  trial  court  was  unaware  at  the  time  of  sentencing  of  new 
Board  Parole  guidelines  which  had  the  effect  of  causing  the  defendants  to  serve 
longer  sentences.  The  appellate  court  held : 

"We  are  convinced  that  the  parole  consideration  afforded  the  Slutskys  is 
likely  to  depart  substantially  from  what  we  must  assume  were  the  reasonable 
expectations  of  the  district  judge.  Accordingly,  we  think  that  a  remand  for 
resentencing  is  appropriate  in  order  to  allow  the  district  judge  an  opportunity 
to  reconsider  the  original  sentence  in  light  of  these  new  circumstances."  United 
States  V.  Slutskij,  514  F.2d  1222,  at  1227. 

Because  new  parties  are  about  to  be  joined,  infra,  this  court  does  not  now 
rule  on  the  substance  of  Mary  Williams'  Rule  35  motion  but  only  decides  here 
that  this  court  does  have  jurisdiction  over  the  unlimited  time  "illegal  sentence" 
aspect  and  will  not  consider  the  time-expired  "sentence  imposed  in  an  illegal 
manner"  aspect  of  the  Rule  35  motion. 

The  second  basis  of  defendant's  requests  for  relief  is  a  motion  under  23  D.C. 
Code  Sec.  110  to  vacate  or  correct  the  sentence.  That  section  of  the  D.C.  Code, 
almost  identical  to  2S  U.S.  Code  Sec.  22.^)5,  provides  in  relevant  part: 
"Sec.  23-110.  Remedies  on  motion  attacking  sentence 

"(a)  A  prisoner  in  custody  under  sentence  of  tlie  Superior  Court  claiming 
the  right  to  be  released  upon  the  ground  that  (1)  the  sentence  was  imposed  in 
violation  of  the  Constitution  of  the  United  States  or  the  laws  of  the  District 
of  Columbia.  (2)  the  court  was  without  jurisdiction  to  impose  the  sentence. 
C3)  the  sentence  was  in  excess  of  the  maximum  authorized  by  law,  (4)  the 
sentence  is  otherwise  subject  to  collateral  attack,  may  move  the  court  to  vacate, 
set  aside,  or  correct  the  sentence. 

"  (b)   A  motion  for  such  relief  may  be  made  at  any  time. 

******* 

"(e)  The  court  shall  not  be  required  to  entertain  a  second  or  .successive 
niotion  for  similar  relief  on  behalf  of  the  same  prisoner. 

******* 

"(ix)  An  application  for  a  writ  of  habeas  corpus  in  behalf  of  a  prisoner  who  is 
authorized  to  apply  for  relief  by  motion  pursuant  to  this  section  shall  not  be 
entertained  by  the  Superior  Court  or  by  any  Federal  or  State  court  if  it  appears 
that  the  applicnnt  has  failed  to  make  a  motioTi  for  relief  under  this  section  or 
that  the  Superior  Court  has  denied  him  relief,  unless  it  also  nppenrs  that  the 
remedy  by  motion  is  inadequate  or  ineffective  to  test  the  legalitv  of  his  deten- 
tion." 

This  motion  is  timely  made  and  is  correctly  before  the  judge  who  imposed  the 
orifrnial  «ontcTi<-T'.  Tbnt  n  nioHon  under  r>«  T'  S  C  Son.  2*^."."  '«  nn  .i-TiroDrinl-r. 
method  of  challenging  pnrolo  bonrd  imnlementntiorj  of  a  sentence  is  illustrated 
by  Knrtness  v.  United  States,  514  F.2d  167  (8th  Cir.,  1975). 


9363 

Robert  Kortness  was  sentenced  on  November  19,  1973,  to  a  three  year  prison 
term.  On  May  2,  1974,  the  sentencing  court  denied  his  Sec.  2255  petition  on  the 
grounds  that  the  "court  is  without  authority  to  direct  the  Parole  Board  in  the 
discharge  of  its  responsibility  and  is  without  authority  to  modify  the  sentence 
imposed".  514  F.2d  at  1G8.  He  appealed  and  the  Court  of  Appeals  found  that  the 
sentencing  court  did  have  the  authority  to  modify  the  sentence.  Kortness  had 
applied  for  parole,  and  like  Mary  Williams,  was  informed  that  he  would  re- 
ceive no  further  consideration  for  parol  during  the  remainder  of  his  prison  term. 
Like  Mary  Williams,  the  reason  for  this  determination  was  that  the  Parole 
Board's  set  of  tables,  known  as  their  parole  policy  guidelines,  indicated  a  sen- 
tence to  be  served  that  equalled  or  exceeded  the  maximum  sentence  imposed. 
Kortness'  sentence  under  18  U.S.C.  Sec.  4208(a)  (2)  allowed  for  immediate  parole 
consideration,  yet  the  board  computation  of  an  offense  severity  rating  and  salient 
factor  score  combined  on  a  matrix  to  indicate  a  range  of  26  to  32  months  to  be 
served  in  such  cases.  The  Board  determined  that  a  decision  outside  the  guidelines 
was  not  warranted  and  continued  his  case  to  the  expiration  of  his  sentence.  The 
Kortness  court  noted  that  in  Grasso  v.  Norton,  376  F.  Supp.  116,  119  (D.  Conn. 
1974),  the  Director  of  Research  for  the  Board  of  Parole  testified  that  the  Board 
follows  its  guidelines  between  92  and  94  percent  of  the  time.  The  same  official 
of  the  U.S.  Parole  Board,  Peter  Hoffman,  testified  in  this  case  on  November  17, 
1975,  that  from  October,  1973,  to  March,  1974,  at  initial  parole  board  hearings  the 
guidelines  were  applied  in  91.7%  of  the  cases,  and  that  from  January  to  July 
of  1975  che  Parole  Board  held  5,993  hearings  and  in  84%  of  the  intial  hearings 
the  guidelines  were  applied.  He  also  testified  that  where  the  Board  goes  outside 
the  guidelines  it  must  justify  that  decision  with  an  explanation,  whereas  deci- 
sions within  the  guidelines  required  no  explanation. 

Kortness'  sentence  was  imposed  the  same  day  as  the  initial  publication  of  the 
guidelines.  "Without  access  to  these  guidelines,  the  sentencing  judge  was  entitled 
to  assume  that  defendant  Kortness  would  receive  meaningful  consideration  for 
parole  at  an  early  date  or  at  least  upon  completion  of  one-third  of  this  sen- 
tence." 514  F.2d  at  170. 

When  this  court  sentenced  Mary  Williams  to  a  sentence  of  ninety  days  to  three 
years,  the  court  was  unaware  of  the  Parole  Board  guidelines  and  their  applicabil- 
ity. The  court  intended  that  she  should  undertake  alcohol  rehabilitation  and  re- 
quested that  she  be  designated  to  serve  her  sentnce  in  a  federal  facility  so  that 
she  might  receive  such  therapy.  It  was  the  court's  intention  and  belief  that  she 
would  receive  meaningful  parole  consideration  ninety  days  after  commencing 
her  sentence  and  that  the  Parole  Board  would  determine  her  progress  toward 
conquering  her  alcohol  problems.  The  Government  argues  that  defendant  can- 
not claim  relief  only  because  the  court  had  insufficient  or  erroneous  information 
to  enable  an  accurate  prediction  of  future  decisions  by  the  Parole  Board.  But 
thnt  argument  misses  the  mark  completely.  The  point  is  not  that  the  <=pnten<^inf5: 
judge  should  be  able  to  predict  whether  or  not  a  defendant  will  be  released  but 
rathe  that  the  judge  intends  that  the  defendant  be  given  meaningful  eonsidern^ 
tion.  Here  the  sentence  and  parole  treatment  combine  to  effect  a  three  year  sen- 
tence with  no  possibility  of  parole. 

The  8th  Circuit  found  in  Kortness  that  under  these  exact  circumstances  "a 
prisoner  may  utilize  28  TT.S.C.  Sec.  22.55  to  attack  a  sentence  apparently  legal 
on  its  face",  that  under  the  "otherwise  subject  to  collateral  attack"  language 
of  Sec.  225,  "[a]  critical  error  made  by  the  sentencing  court  in  fixing  the  sen- 
tence may  be  corrected  through  a  Sec.  22-^5  proceeding."  514  F.2d  nt  170.  This 
court  has  jurisdiction  over  Mary  Williams'  motion  under  23  D.C.  Code  Sec.  110. 

The  third  basis  for  Mary  Williams'  request  for  relief  is  an  application  for  the 
Great  Writ  of  Habeas  Corpus  under  16  D.C.  Code  Sec.  1901. 

"Sec.  16-1901.  Petition  :  issuance  of  writ. 

"(a)  A  person  committed,  detained,  confined,  or  restrained  from  his  lawful 
liberty  within  the  District,  under  any  color  or  pretense  whatever,  or  a  person  in 
his  behalf,  may  apply  by  petition  to  the  appropriate  court,  or  a  judge  thereof, 
for  a  writ  of  habeas  corpus,  to  the  end  that  the  cause  of  the  commitment,  detainer, 
confinement,  or  restraint  may  be  inquired  into.  The  court  or  the  judge  applied 
to,  if  the  facts  set  forth  in  the  petition  make  a  prima  facie  case,  shall  forthmth 
grant  the  writ,  directed  to  the  officer  or  other  person  in  whose  custody  or  keep- 
ing the  party  so  detained  is  returnable  forthwith  before  the  court  or  judge. 

"(b)  Petitions  for  writs  directed  to  Federal  offices  and  employees  shall  be  filed 
in  the  United  States  District  Court  for  the  District  of  Columbia. 


9364 

"(c)  Petitions  for  writs  directed  to  any  other  person  shall  be  filed  in  the 
Superior  Court  of  tlie  District  of  Columbia." 

Parole  treatment  is  clearly  an  appropriate  subject  matter  for  habeas  corpus 
treatment.  Vtiitcd  States.  e.r.  rel  Marrern  v.  Warden.  Lciri.^hurg  PenitcTitiary, 
488  F.2d  656.  659-60  (3rd  Cir.,  1973),  rev'd  on  other  grounds  Warden  v.  Marrcro. 
417  U.S.  653  (1974),  Grassn  v.  Norton,  520  F.2d  27  (2nd  Cir.  1975),  and  indeed 
has  been  held  to  be  the  proi>er  method  of  challenging  denial  of  parole.  Lupo  v. 
Xorton.  371  F.  Supp.  156  (D.Conn.  1974).  See  also  Garafola  v.  Benson,  505  F.2d 
1212  (7lh  Cir..  1974). 

Mary  Williams  is  "a  person  committed,  detained,  confined  or  restrained  from 
[her]  lawful  Uberty  within  the  District"  and  may  therefore  apply  to  the  appro- 
priate court  for  a  writ  of  habeaes  corpus.^  This  statute  is  even  more  liberal  than 
the  federal  habeas  corpus  statute,  28  U.S.C.  Sec.  2241,  which  requires  that  the 
prisoner  be  "in  custody".  So  long  as  a  person  su)).1ect  to  the  jurisdiction  of  this 
court  is  committed,  detained,  confined,  or  restrained  from  his  or  her  liberty  the 
habeas  remedy  applies  and  is  to  be  liberally  construed.  Jones  v.  Cunninffham, 
371  U.S.  2.36  (1963).  The  use  of  the  word  "or"  provides  for  habeas  jurisdiction 
in  any  one  of  those  four  instances.  Mary  Williams  was  obviously  "committed" 
"within  the  District"  since  she  was  sentenced  by  and  committed  by  this  judge 
of  the  District  of  Columbia  Superior  Court.  This  provision  is  doubtle.ss  a  recogni- 
tion of  the  duty  of  the  District  to  adjudicate  matters  which  initially  stem  from 
its  own  courts.  See  MeCall  v.  Swain,  166  U.S.  App.  D.C.  214,  229-31  (1975). 

Mary  Williams,  like  all  persons  sentenced  in  D.C.  Superior  Court,  was  com- 
mitted to  the  custody  of  the  Attorney  General  of  the  United  States  pursuant  to 
24  D.C.  Code  Sec.  425.  Throughout  her  sentence,  the  Attorney  General  has  been 
her  custodian.  She  is  "restrained"  within  the  District  because  that  is  the  place 
of  her  custodian,  regardless  of  whether  she  is  physically  present  in  the  District. 
The  Supreme  Court,  in  Jones  v.  Cunningham,  suj)ra.  found  that  the  Virginia 
parole  authorities  were  the  correct  parties  for  a  habeas  corpus  petition  of  a 
parolee  under  their  authority  who  was  being  permitted  to  live  with  relatives 
in  (ieorgia. 

The  facts  of  Ms.  Williams'  physical  location  are  that  she  served  the  early  part 
of  her  sentence  at  Alderson,  West  Virginia,  then  was  transferred  to  the  Women's 
Detention  Center  in  Washington,  for  the  purpose  of  being  a  witness  in  another 
unrelated  ca.se,  and  then  was  ordered  kept  in  AVashington  by  this  court.  She  is 
presently  in  a  Half-way  house  in  Washington.  There  has  been  some  dispute 
among  the  parties  as  to  whether  her  transfer  and  pre.sent  hx'atiou  in  Washington 
do  or  do  not  provide  the  basis  for  habeas  juiisdiction.  The  dispute  centers  on 
wli(>tiicr,  were  she  still  located  at  Alderson,  this  court  would  have  habeas  iurisdic- 
tion  under  LB.  v.  District  of  Columbia.  287  A.2d  827  (D.C.C.A.,  1972),  which 
found  that  D.C.  Superior  Court  did  not  have  jurisdiction  over  persons  it  com- 
mitted to  institutions  located  in  Maryland,  as  that  decision  must  now  be  viewed 
in  light  of  the  Supreme  (Court's  ruling  Braden  v.  SOth  Judicial  Circuit  Court  of 
Krntuck!/.  410  U.S.  484  (1973).  The  Braden  ruling  held  that  the  jurisdiction 
of  a  district  court  considering  a  habeas  corpus  petition  requires  only  that  the 
Court  issuing  the  writ  have  jurisdiction  over  the  custodian  of  the  prisoner. 

"So  long  as  the  custodian  can  be  reached  by  service  of  process,  the  court  can 
issue  a  wnt  'within  its  jurisdiction'  requiring  that  the  prisoner  be  brought 
before  the  court  for  a  hearing  on  his  claim,  or  recpiiring  tliat  he  be  relea.^ed 
outright  from  custody,  even  if  the  prisoner  himself  is  confined  outside  the  court's 
territorial  juri.sdiction."  Braden  v.  SOth  Judicial  Circuit  Court  of  Kentucky, 
410  U.S.  484,  495  (1973). 

The  court  noted  that  a  numlier  of  developments  had  vitiated  Ahrcns  v.  Clai-k, 
335  T^S.  18.S  (1945),  including  Congre.s.sional  enactment  of  28  U.S.C.  Sec.  2255, 
re(iuiring  collateral  attack  on  a  sentence  to  be  brought  in  the  sentencing  court  and 
2S  U.S.C.  Sec.  2241(d),  permitting  habens  in  either  the  district  of  confinement 
or  the  district  of  the  senlencing  court.  Indeed.  .Tiistice  Rehnqnist.  dissenting  for 
hiin.self.  the  Chief  .Justice,  and  .Justice  Powell  asserted  tliat  Braden  overruled 
Ahren.  see  410  I'.S.  at  502.  509-511,  and  the  TT.S.  Court  of  Appeals  for  the  D.C. 
Circuit  notes  that  "that  accusation  would  appear  to  be  well-taken".  McCall  v. 
Swain,  166  l^S.App.D.C.  214.  222,  note  20  ( 1975). 

The  D.C.  Court  of  Appeals  has  not  addres.sed  this  jurisdiction  question  post- 
liniden,  but  the  U.S.  Court  of  Appeals  for  the  D.C.  Circuit  has.  McCall  v.  Swain, 


^  Tlio  oxhaiistion  ipqiiireincnt  of  2:5  D.C.  Codp  110(g)  Is  addressed  below. 


9365 

IGG  U.S.App.D.C.  214  (1975),  made  an  exhaustive  and  careful  analysis  of  this 
very  statute,  16  D.C.  Code  .Sec.  1901,  and  its  jurisdictional  ramifications.  A 
unanimous  opinion  held  that  the  phrase  "within  the  District" 

'•does  not  prohibit  the  court — whether  the  District  Court  or  the  Superior 
Court — located  in  the  District  from  entertaining  habeas  corpus  petitions  from 
individuals  confined  within  the  District's  correctional  facilities  located  outside 
the  District  limits."  166  U.S.App.D.C.  at  224. 

This  court  is  not  bound  by  tlie  opinions  of  the  U.S.  Court  of  Api>eals  but  adopts 
that  analysis  of  "within  the  District"'  contained  in  16  D.C.  Code  Sec.  1901. 

Having'  then  found  that  the  District  Court  and  Superior  Court  may  entertain 
habeas  corpus  petitions  from  persons  in  D.C.  correctional  facilities  that  are 
outside  the  District  of  Columbia  boundaries,  the  McCall  court  went  on  to  hold 
that  the  District  of  Columbia  correctional  officials  at  Lortou,  to  the  extent  they 
were  holding  a  i>erson  sentenced  by  federal  District  Court,  took  on  the  cloak  of 
federal  officials  and  thus  the  petitioner  could  seek  habeas  corpus  relief  in  the 
court  that  had  sentenced  him  under  Sec.  1901  (b) . 

The  jailer  who  has  had,  or  presently  has,  custody  of  Mary  Williams  does  so 
as  an  "official  or  employee"  of  the  District  of  Columbia.  This  is  so  whether  she 
is  at  Alderson  or  the  AVomen's  Detention  Center  or  any  other  facility  and  the 
court  need  not  now  discuss  any  consequences  of  her  moves  for  this  action,  as 
there  are  none. 

Having  found  that  a  Sec.  16-1001  action  does  lie,  the  question  of  the  appro- 
priate forum  arises  under  1901  (b)  and  (c).  The  person  to  whom  the  writ  should 
l)e  directed  is  Mary  Williams'  custodian.  Traditionally,  habeas  corpus  actions 
have  been  brought  in  the  jurisdiction  in  which  the  petitioner  was  confined.  In 
such  actions,  petitioner's  "immediate"  custodian,  (usually  the  warden  of  a 
pri.son),  is  named  as  the  resiwndent.  However,  it  is  now  well  established  that 
a  liabeas  corpus  action  is  proper  in  the  jurisdiction  of  a  petitioner's  "ultimate" 
custodian,  regardless  of  whether  the  petitioner  is  confined  within  that  jurisdic- 
tion. Bradcn.  v.  30ih  Judicial  Circuit  Court  Oif  Kentucky,  supra,  sec  also  Ex  Parte 
Hays,  414  U.S.  1327  (1973).  In  Braden,  the  petitioner,  who  was  incarcerated  in 
an  Alabama  prison,  filed  in  the  Western  District  of  Kentucky  for  a  writ  of 
habeas  corpus.  The  Supreme  Court  held  that,  notwithstanding  the  fact  that  the 
petitioner  was  not  confined  in  the  Western  District  of  Kentucky,  habeas  corpus 
jurisdiction  was  still  proper  there  since  the  petitioner's  ultimate  custodian  was 
within  the  territorial  jurisdiction  of  that  court.  In  so  doing,  the  Court  sub- 
stantially modified  its  opinion  in  Ahrcns  v.  Clark,  335  U.S.  18.S  (1948),  see 
Braden.  supra,  410  U.S.  at  -jOI,  an  opinion  which  had  previously  led  many  courts 
to  take  a  narrow  and  overly  restrictive  view  of  habeas  corpus  jurisdiction.  See, 
c.fj.,  I.E.  v.  D.C.  Department  of  Human  Resources,  supra. 

Fletcher  v.  Levi,  —  F.  Supp.  • — ,  (Criminal  Case  No.  1421-71,  civil  action  No. 
7-5-2063,  D.D.C.  January  16,  1976),  involved  a  person  sentenced  by  U.S.  District 
Court  in  the  District  of  Columbia  who  challenged  her  parole  treatment.  She  was 
then  incarcerated  in  a  federal  prison  in  California.  Judge  June  Green  consoli- 
dated a  Motion  to  Correct  Sentence  pursuant  to  18  U.S.C.  Sec.  2255  with  a  Peti- 
tion for  Habeas  Corpus  pursuant  to  18  U.S.C.  Sec.  2241.  Judge  Green  denied 
the  Sec.  2255  motion  and  granted  the  habeas  corpus,  finding  both  jurisdiction  and 
venue : 

"Petitioner  was  sentenced  from  this  Court  to  the  custody  of  the  Attorney  Gen- 
eral. Moreover,  this  Court  has  jurisdiction  over  the  respondent  custodian  of  peti- 
tioner who  can  be  reached  b.v  service  of  process  within  this  Court  and  therefore, 
this  Court  can  grant  full  and  complete  relief  to  the  petitioner.  Accordingly,  this 
Court  has  jurisdiction  over  the  Petition  for  Habeas  Corpus.  Braden  v.  30th 
Judicial  Circuit  of  Ky..  410  U.S.  484  (1973)  ;  McCall  v.  Suain.  166  U.S.App.D.C. 
21-»,  510  F.2d  167  (1975)  :  Starnes  v.  McGnire.  168  U.S.App.D.C.  4,  512  F.2d  918 
(1974)  ;  Pickxis  v.  United  States  Board  of  Parole,  165  U.S.App.D.C.  284,  .507  F.2d 
1107  (1974),  and  statutes  and  authorities  cited  therein."'  Slip  opinion  at  p.  7. 
District  of  Columbia  courts  have  repeatedly  faced  the  situation  of  persons 
serving  sentences  in  District  facilities  located  in  Virginia  at  the  Lorton  Complex 
and  have  asserted  juridiction.  See,  e.g.,  Fitzgerald  v.  Sigler,  372  F.  Supp.  889 
(D.C.D.C,  1974).  Habeas  petitions  routinely  come  to  the  Superior  Court  from 
the  Lorton  Complex.  To  deny  jurisdiction  over  such  petitions,  especially  in 
light  of  Braden,  would  be  a  totally  inappropriate  treatment  of  i>ersons  sentenced 
by  this  court.  Certainly,  to  require  Virginia  courts  to  entertain  all  such  petitions 
would  be  an  incongruous  result.  Note  that  federal  jurisdiction  in  McCall  applied 
because  McCall,  incarcerated  at  Lorton  had  been  convicted  in  federal  district 
court. 


93G6 

As  Judge  Gesell  asserted  and  the  U.S.  Court  of  Appeals  confirmed  in  McCall,  a 
court  has  an  "inherent  power"'  to  act  with  respect  to  prisoners  •"committed  under 
its  aegis."  166  U.S.  App.  D.C.  at  231. 

The  Attorney  General,  as  custodian  of  Mary  Williams  is  acting  in  his  capacity 
as  an  officer  and  agent  of  the  Superior  Court,  and  therefore  the  habeas  corpus 
petition  is  properly  filed  in  this  court.  The  habeas  corpus  statute  under  which 
this  Petitioner  is  proceeding,  16  D.C.  Section  1901,  contains  provisions  for  the 
petition  to  be  filed  in  the  United  States  District  Court  for  the  District  of  Columbia 
or  the  Superior  Court  for  the  District  of  Columbia.  The  determination  as  to  which 
court  the  petition  should  be  filed  in  depends  upon  the  capacity  of  the  respondent 
to  whom  the  petition  is  directed.  If  the  petition  is  directed  to  a  Federal  officer  or 
employee  it  is  to  be  filed  in  District  Court.  16  D.C.  Code.  Sec.  1901(b).  If  it  i.s 
directed  to  a  person  other  than  a  Federal  officer  or  employee,  it  is  to  be  filed  in 
Superior  Court.  16  D.C.  Code  Sec.  1901(c).  The  proper  respondent  in  this  Peti- 
tioner"s  action  is  the  Attorney  General  as  she  was  committed  in  his  custody  by  the 
Superior  Court  and  therefore  is  her  custodian.  See  24  D.C.  Code  Sec.  425.  Al- 
though the  Attorney  General  is  nominally  a  Federal  officer,  he  is  not  acting  in  that 
capacity  in  his  control  and  custody  over  this  Petitioner.  She  is  in  his  custody 
because  she  was  committed  there  by  the  Superior  Court  of  the  District  of  Colum- 
bia. Consequently,  as  to  this  Petitioner,  he  is  acting  as  an  officer  and  arm  of  the 
Superior  Court,  as  he  is  in  the  context  of  this  case  a  person  other  than  a  Federal 
officer.  16  D.C.  Code  Sec.  1901  (c) . 

The  reasoning  behind  why  he  is  acting  as  an  officer  of  the  Superior  Court  cau 
be  found  in  the  U.S.  Court  of  Appeals  decision  in  McCall  v.  Sicain,  166  U.S.  App. 
D.C.  214,  224-232,  510  F.2d  167  (1975).  In  that  case,  a  person  was  convicted  of  a 
local  District  of  Columbia  offense  in  Federal  court  and  was  thereafter  incarcerated 
in  the  Lorton  Reformatory,  a  District  of  Columbia  institution.  The  McCall  court 
considered  whether  the  Superintendent  and  officers  of  that  institution  were  Dis- 
trict of  Columbia  officials  or  Federal  officials.  The  same  statute,  and  the  same 
subsections  that  are  at  issue  in  the  present  case.  Sec.  1901(b)  (c).  were  those  at 
issue  in  the  McCall  case.  After  extensively  reviewing  the  case  law.  McCall  v. 
Swain,  supra,  at  224-231,  the  court  held  that  the  Superintendent  of  Lorton  was 
acting  as  a  Federal  officer  and  the  petition  was  therefore  properly  filed  in  the 
Di-strict  Court  pursuant  to  Sec.  1901(b).  The  court  so  held  notwithstanding  the 
fact  that  the  petitioner  in  that  case  was  incarcerated  for  a  local  District  of  Colum- 
bia offense,  was  incarcerated  in  a  District  of  Columbia  institution,  and  the  issue 
under  consideration  concerned  the  local  prison's  administrative  decision.  The 
court's  holding  in  McCall  was  based  on  the  fact  that  the  petitioner  was  convicted 
and  incarcerated  by  an  order  of  the  Federal  court.  "Appellant  was  tried,  convicted, 
sentenced,  and  resentenced  l)y  the  Di.strict  Court.  *  *  *  rt]hat  Federal 
court  issued  the  order  under  which  the  Attorney  General  assumed  custody  of  and 
responsibility  for  appellee,  a  responsibility  which  he  sub.senuently  delegated  to 
appellants.  In  accepting  custody  of  appellee,  the  Attorney  General  and  appellants 
were  acting  as  officers  of  the  District  Court  *  *  *  McCall  v.  Swain,  supra.  166 
U.S.  App.  D.C.  at  231. 

These  same  principles,  as  enunciated  in  McCall  and  in  the  cases  on  which  the 
court  there  relied,  require  and  demonstrate  why  the  Petitioner's  custodian  In  llie 
present  case,  the  Attorney  General,  is  acting  as  an  officer  of  the  Superior  Court. 
The  Petitioner  was  tried,  convicted  and  .sentenced  by  the  Superior  Court,  and  the 
Superior  Court  issued  the  order  under  which  the  Attorney  General  assumed 
custody  of  iind  responsibility  for  thf^  petitioner.  He  must  therefore  be  seen  as  nct- 
inc  ns  an  officer  of  the  Superior  Court.  The  U.S.  Court  of  Appeals  itsf^lf  in  McCall 
noted.  *  *  *  to  the  extent  that  he  Tthe  Attorney  Generall  acts  pursuant  to  an 
order  of  the  Superior  Court  or  another  local  court,  lie  trovld  prnhnhh/  he  cliarnc- 
fcrizrd  as  'other  Ihnn  a  Federal  nffieer'  for  purposes  of  jurisdieiion  under  Section 
lOnir  (emphasis  added)  McCall  v.  Swain,  supra.  166  U.S.  App.  D.C.  at  227,  n.  34. 

That  the  Attorney  General  is  acting  as  an  officer  of  the  Superior  Court  and  that 
the  action  must  be  filed  in  Superior  Court  is  further  supported  by  the  oliligation 
of  the  Superior  Court  to  adjudicate  matters  which  initially  arise  out  of  its  own 
courts.  Td.  nt  221.  "It  is  simply  anomalous  to  sugsest  that  a  court,  who.se  duty  it  is 
to  ensuro  that  the  full  vitality  of  the  Grent  Writ  is  pmserved  invioVit*^.  could  be 
precluded  from  exercising  continuing  oversight  of  the  manner  in  which  individ- 
uals it  commits  to  custody  are  treated,  particularly  when  those  executing  the 
cnurt"s  fonimitmont  orders  are  considered  officers  of  the  court  with  respect  to 
those  prisoners.  .Judge  Ge.sell's  assertion  is  worth  repeating:  a  court  has  an  'in- 


9367 

herent  power'  to  act  with  respect  to  prisoners  'committed  under  its  aegis.'  "  Id.  at 
231  (footnote  omitted). 

The  logic,  and  indeed  the  necessity  of  finding  the  Attorney  General  an  oflBcer 
of  the  Superior  Court  and  the  petition  properly  filed  in  Superior  Court  is  per- 
suasively demonstrated  by  considering  the  implications  and  results  of  a  contrary 
holding.  All  persons  convicted  and  sentenced  in  Superior  Court  are  committed  to 
the  custody  of  the  Attorney  General.  24  D.C.  Code  Sec.  425.  If  he  were  to  be  held 
a  federal  oflicial  in  that  capacity,  when  acting  directly  pursuant  to  the  orders 
of  the  Superior  Court,  it  is  difiicult  to  see  how  habeas  corpus  would  ever  be 
proper  in  the  Superior  Court.  In  addition,  such  an  interpretation  would  be  con- 
trary to  the  purposes  and  objectives  of  the  Court  Reform  Act.  See  Bland  v. 
Rogers,  332  F.  Supp.  989,  991  (D.D.C.  1971)  ;  -See  also  McCall  v.  Sfirain,  supra, 
im  U.S.  App.  D.C.  at  232,  n.  53,  citing  S.  Rep.  No.  405,  91st  Cong.,  1st  Sess.  1 
(1970). 

IV 

Mindful  of  the  interests  of  judicial  economy,  efficiency,  convenience  to  the 
parties  and  witnesses,  and  of  the  admonition  that  a  habeas  corpus  proceeding 
"must  not  be  permitted  to  flounder  in  a  procedural  morass",  Blavd  v.  Rodgers, 
332  F.  Supp.  989,  993  (D.C.D.C,  1971),  this  court  hereby  consohdates  Mary 
Williams'  various  motions  and  actions  into  a  single  case  covering  three  elements : 

(1)  Her  Rule  35  motion  to  correct  an  illegal  sentence ; 

(2)  Her  Motion  under  23  D.C.  Code  Sec.  110  to  vacate  or  correct  the  sentence 
as  one  subject  to  collateral  attack ;  and 

(3)  Her  petition  for  habeas  corpus  under  16  D.C.  Code  Sec.  1901. 

Such  a  consolidation  is  not  only  prudent  and  conservative  of  the  time  and 
resources  of  all  parties,  including  the  court,  but  is  also  necessary. 

Under  23  D.C.  Code  Sec.  110(g),  an  application  for  a  writ  of  habeas  corpus  in 
behalf  of  a  prisoner  who  is  authorized  to  apply  for  relief  under  23-110  shall 
not  be  entertained  by  the  Superior  Court  or  by  any  Federal  or  State  court  if  it 
appears  that  the  applicant  failed  to  make  a  motion  for  relief  under  23-110,  unless 
a  23-110  motion  would  be  inadequate  or  ineffective  to  test  the  legality  of 
detention. 

It  was  therefore  incumbent  upon  the  defendant-petitioner  to  seek  relief  under 
Sec.  23-110  to  see  whether  or  not  the  court  deems  that  an  adequate  remedy.  In 
Fletcher  v.  Levi,  —  F.  Supp.  — ,  Criminal  Case  No.  1421-71,  civil  actions  Nos. 
75-2063,  75-2064,  D.C.D.C,  January  16,  1976)  Judge  June  Green,  in  a  similar 
situation  consolidated  a  motion  under  28  U.S.C.  Sec.  2255,  and  a  petition  for 
habeas  corpus,  and  found  jurisdiction  and  venue  proper  as  to  both  actions. 

The  court  also  finds  that  venue  is  proper  here.  Service  of  process  is  available 
here  on  all  parties,  the  parties  and  witnesses  are  all  present  in  this  jurisdiction, 
the  Rule  35  motion  and  23-110  motion  must  be  assigned  to  the  sentencing  judge, 
and  this  is  the  jurisdiction  whose  Code  is  in  question.  This  is  clearly  the  most 
appropriate  and  convenient  forum.  See  Braden  v.  SOth  Judicial  Circuit  Court  of 
Kentucky,  410  U.S.  484  (1973)  ;  Stornes  v.  McGuire,  168  U.S.  xVpp.  D.C.  4  (1974). 

The  court  hereby  grants  Mary  Williams'  Motions  for  joinder  of  those  parties 
needed  for  a  just  and  complete  adjudication,  namely  Attorney  General  Edward 
Levi  in  his  capacity  as  the  ultimate  custodian  of  Mary  Williams,  the  District  of 
Columbia  Board  of  Parole  through  its  representative  Mr.  Joseph  Shore,  and  the 
District  of  Columbia  Department  of  Corrections  through  its  representative  Mr. 
Delbert  Jackson. 

VI 

Therefore  it  is  this  3rd  day  of  May,  1976, 

Ordered  That  in  light  of  the  court's  jurisdiction,  as  delineated  above,  the 
causes  of  action  are  consolidated,  the  motions  for  joinder  are  granted,  and  the 
three  newly  joined  parties  have  five  days  in  which  to  file  any  motions,  if  they  so 
desire,  and  the  respondents,  on  or  before  the  fifth  day  after  service  of  a  copy 
of  this  order,  shall  make  return  to  said  petition  and  show  cause,  if  any  they 
have,  why  the  Writ  of  Habeas  Corpus  should  not  issue,  and  why  the  Motion  to 
Vacate  or  Correct  the  Sentence  should  not  be  granted. 

It  is  further  ORDERED  that  the  respondents  serve  on  counsel  for  Mary 
Williams  a  copy  of  any  answer  to  this  order  that  they  may  file  with  the  court. 

Counsel  for  Mary  Williams  having  certifieti  that  he  has  served  each  of  the 
respondents  with  the  pleadings  filed  in  this  matter,  the  United  States  Marshal  is 
directed  to  serve  a  copy  of  this  order  on  each  of  the  respondents  forthwith. 

Judge  Charles  W.  Halleck. 

92-465—77 — —51 


9368 

Statement  of   Daniel  Crystal,  East   Okange,   New   Jersey 

introduction 

I  iini  an  attorney  at  law  and  a  member  of  the  Bars  of  New  Jersey,  the  Supreme 
Court  of  the  United  States,  and  the  District  of  Columbia.  I  am  deeply  apprecia- 
tive to  the  Subcommittee  on  Criminal  Laws  and  Procedures  of  the  Senate  Judi- 
ciary Committee  for  this  opportunity  to  inchide  in  the  record  my  views  as  to 
S.  1437. 

I  have  been  deeply  concerned  about  the  predecessor  bills,  including  S.  1  of  the 
!)-}th  Congre-ss,  and  the  earlier  S.  1400  and  S.  1.  My  concern  has  led  me  to  write 
law  review  articles  on  various  phases  of  this  important  proposed  legislation,  e.g.. 
Crystal,  The  Proposed  FedernJ  Criminal  Justice  Reform  Act  of  197.5:  A  Civil 
Liberties  Critique,  6  Seaton  Hall  Law  Rev.  591  (Summer  1975)  ;  Crystal 
The  Proposed  Federal  Criminal  Justice  Act  of  1915 :  Senfe)icing — Laio  and  Order 
With  a  Vengeance,  7  Seton  Hall  Law  R^v.  33  (Fall  1975).  In  addition  I  drafted 
various  analyses  of  S.  1  and  H.R.  3907  of  the  94th  Congress  which  were  inserted 
into  the  Congressional  Record  by  Congresswoman  Bella  S.  Abzug.  e.g..  Dangers 
of  S.  I  and  H.R.  3907.  Proposed  A'cr/.s/on-s-  in  the  Federal  Criminal  Code.  Cong. 
Rec,  Nov.  4,  1975.  Vol.  121.  No  163.  H10G89 ;  The  Boohij  Traps  for  Labor,  Cong. 
Ree.,  May  2(),  1976,  H.R.  4769—1771 :  *Sf.  1  Compromise  7.9  Unacceptable,  Cong.  Rec. 
April  26,  1976,  E20S2-E2083.  My  concern  in  writing  these  articles  and  analyses 
has,  at  all  times,  been  to  foster  the  protection  of  the  Bill  of  Rights.  I  have  felt 
impelled  to  set  foi-th  the  many  areas  in  which  I  felt  that  the  predecessor  bills 
failed  to  measure  up  to  the  requirements  of  our  great  charter  of  liberty. 

In  my  .iudgment,  the  redraft  of  S.  1,  now  known  as  S.  1437  in  the  Senate  and 
H.R.  6869,  constituting  the  jiroposed  Criminal  Code  Reform  Act  of  1977.  still  fails 
in  important  respects  to  give  adequate  protection  both  to  the  Bill  of  Rights  and 
to  the  due  process  rights  of  the  accused  and  the  convicted  alike  who  become 
enmeshed  in  the  federal  penal  and  correctional  system.  I  welcome  the  changes 
which  have  been  made  in  S.  1.  They  have  substantiall.v  lessened  the  civil  liberties 
horrors  of  the  original  bill.  However,  in  my  view,  those  35  or  so  changes  have 
simply  not  yet  gone  far  enough.  My  analysis  in  the  in-esent  statement  is  limited 
to  the  sentencing  provisions  of  S.  1437.  Even  with  this  limitation,  I  find  that  the 
new  bill,  instead  of  being  purged  of  all  the  provisions  violative  of  due  process 
requirements,  still  contains  provisions  inimical  to  the  Bill  of  Rights. 

It  remains  true,  in  my  .iudgment.  that  what  Professors  Vern  Countryman  of 
Harvard  Law  School  and  Thomas  I.  Emerson  of  Yale  Law  School  wrote  about 
S.  1  has  continuing  validity  with  respect  to  the  sentencing  provisions  contained 
in  the  identical  bills.  S.  1437  and  H.R.  6869 : 

"S.  1  was  designed  and  drafted  upon  the  basis  of  philosojibical.  ethical,  and 
political  goals  that  were  repudiated  by  the  American  people  in  the  Watergate 
scandals.  The  biil  is  the  product  of  the  Nixon  Administration,  prepared  und(>r  the 
ageis  of  Attorneys  General  Mitchell  and  Kleindienst.  and  put  into  concrete  form 
by  a  group  of  lawyers  in  Nixon's  Department  of  .lustice.  The  ob.iective  of  the 
draftsiDf'n  was  to  incorjtorate  into  the  criminal  code  every  resti'iction  upon  indi- 
vidual liberties,  every  method  and  device  that  the  Nixon  Administration  thought 
neces.sary  or  useful  in  pursuit  of  its  fearful  and  corruiit  ]iolicies.  As  such,  the  bill 
is  permeated  with  assumjjtions,  i>oints  of  view,  and  objectives,  finding  expression 
in  numerous  overt  or  subtle  ])ro visions,  that  run  counter  to  the  open  and  free 
spirit  UTion  which  American  liberties  are  based.  This  pervasive  taint  cannot  be 
anieiuled  out." 

For  reasons  set  forth  in  detail  below.  I  am  impelled  to  conclude  that  this 
trenchant  criticism  of  S.  1  applies  with  continuing  relevance  to  the  jirovisions 
of  S.  1437  and  H.R.  6869  dealing  with  sentencing,  parole,  jtrobation.  the  proyiosed 
Sentencin','  Commission,  and  all  too  mnnv  other  provisions  of  th"^  bills  applicable 
to  penology  and  correction.  The  philosophy  of  the  bill  continues  to  be  one  which 
turns  its  back  on  the  objectives  and  recommendations  of  experts  in  penology  and 
criminal  law  in  favor  of  a  harsh  approach  toward  the  punishment  of  crime 
whicli  can  only  guarantee  recidivism  and  the  u.se  of  prisons  as  c.ncres  and  store- 
hioisf.'-;  for  embittered  men  and  woineii. 

ReiK'ated  assurances  have  been  given  that  some  85  jx^rcent  or  Tno-e  of  S.  1 
was  non-controversial  and  that  those  provisions  meriting  criticism  have  been 
corrected  bv  amendment  so  that  the  substitute  for  S.  1  is  now  n  "clean  bill." 
See.  e.g.,  "Retirement  and  You,"  by  Theodore  Voorhees  in  the  O'^tober  1976  issue 
of  the  American  Bar  Association  Journal,  and  the  rejily  thereto  by  this  writer 
in  the  January  1977  issue  of  the  ABA  JournM  (pp.  8.  10).  These  assurances  are 


9369 

illusory.  It  is  a  legal  myth  to  urge  that  80  to  95  perr-ent  of  the  bill  is  non-con- 
troversial. The  sentencing  provisions  of  S.  1437  are  highly  controversial.  More- 
over, many  of  them  have  been  repeatedly  opposed  by  prestigious  legal  bodies, 
including  the  American  Bar  Association,  the  Association  of  the  Bar  of  the  City 
of  New  York,  and  a  special  committee  on  S.  1  of  the  California  Bar  Association. 
Many  of  the  provisions  carried  over  intact  into  S.  1437  and  H.R.  6869  from  S.  1 
have"  been  objected  to  by  such  leading  authorities  in  penal  reform  as  the  National 
Council  on  Crime  and  i)elin(iuency.  the  American  Civil  Liberties  Union,  and  the 
Friends  Committee  on  National  Legislation.  This  memorandum  will  call  atten- 
tion to  some  of  the  testimony  and  statements,  already  in  this  subcommittee's 
past  hearings,  which  have  taken  strong  exception  to  provisions  applicable  to 
.sentencing  which  are  offered  in  S.  1437  and  H.R.  6869  as  osten.sibly  non-contro- 
versial. 

If  the  proponents  of  this  legislation  have  made  a  policy  decision  to  ignore 
these  objections  from  prestigious  legal  groups  and  other  authorities  on  penology 
and  criminal  law,  the  country  should  be  so  advised  and  made  aware.  The  coim- 
try  should  be  given  an  opportunity  to  make  a  knowing  choice  between  the  harsh 
retributive  approach  toward  sentencing,  probation,  and  parole  exemplified  by 
S.  1437  and  H.R.  6869  in  precisely  the  same  way  as  it  was  exemplified  by  S.  1, 
and  the  enlightened,  humane,  hopeful  view  of  sentencing  exemplified,  for  exam- 
ple, by  the  program  and  reports  of  the  National  Council  on  Crime  and  Delinquency. 

To  have  the  hard-nosed  view  of  '"law-and-order"'  which  still  permeates  all  too 
much  of  S.  1437  and  H.R.  6769  offered  in  a  purported  compromise  bill  makes  it 
necessary  to  advise  this  sul)Committee  of  what  appears  again  and  again  in  its 
past  hearings  as  recommendations  from  knowledgeable  witnesses.  Those  recom- 
mendations are  squarely  contrary  to  the  proposals  for  sentencing  contained  in 
S.  1437  and  H.R.  6869.  The  startling  disparity  between  those  recommendations 
and  what  the  bill  actually  contains  is  all  too  reminiscent  of  what  Professor 
Kenneth  Clark  is  quoted  in  the  famous  Koerner  Report  dealing  with  the  civil 
disorders  of  1967.  "The  same  moving  picture  shown  over  and  over  again,  the  same 
analysis,  the  same  recommendations,  and  the  same  inaction. " 

The  sentencing  provisions  of  S.  1437  and  H.R.  6869  will  set  the  penology  and 
correctional  standards  of  these  countries  for  generations  to  come.  When  they 
are  analyzed  objectively,  as  the  instant  memorandum  seeks  to  do,  it  becomes 
clear  that  they  constitute  a  rejection  of  modern  views  of  penology.  Incarceration 
rather  than  hope  for  rehabilitations  is  to  be  the  national  policy.  That  road 
will  predictably  lead  to  further  Attica's  and  Rahway's.  It  will  solve  little  except 
to  create  the  simplistic  impression  that  something  meaningful  is  being  done 
about  street  crime.  The  approach  is  illusory  and  retrogressive.  In  this  writer's 
opinion,  it  will  not  work. 

It  may  readily  be  conceded  that  there  is  a  very  real  and,  indeed,  a  shocking 
problem  of  steet  crime.  There  is  equally  a  growing  problem  of  white  collar  crime — 
what  Ralph  Nader  aptly  described  to  this  subcommittee  as  "suite  crime."  The 
difficulties  of  achieving  meaningful  improvements  in  penology  should  not  lead 
to  rejection  of  what  experts  have  concluded  is  the  viable  method  of  eventually 
winning  success.  It  is  by  now  a  cliche,  but  nevertheless  remains  true,  that  the 
baby  should  not  be  thrown  out  with  the  bathwater. 

It  should  also  be  noted  that  the  statistics  which  this  subcommittee  and  pro- 
ponents of  both  S.  1  and  the  present  re-draft  of  S.  1  have  apparently  relied  upon 
appear  to  be  erroneous  and  obsolete.  There  is  signflcant  applicability  to  this  sub- 
committee's present  hearings  in  a  newstory  appearing  in  Lawscope,  in  the  Ameri- 
can Bar  Association  Journal,  April  1977,  p.  481  (Vol.  63)  : 

"Corrections 

"Recidivism  not  so  bad  after  all,  study  finds 

"The  national  crime  recidivism  rate  is  much  lower  than  has  been  believed 
and  is  steadily  declining,  according  to  a  recent  analysis.  And  the  study  shows, 
parolees  are  less  likely  to  return  to  jail  than  nonparolees. 

"The  results  could  have  an  impact  on  the  current  hard  line  being  taken  by 
many  on  mandatory  sentencing. 

"The  study,  by  Robert  Martinson  and  Judith  Wilkes  of  the  Center  for  knowledge 
in  Criminal  Justice  Planning,  produced  interim  results  showing : 

"The  recidivism  rate  is  about  23  per  cent,  not  the  50-70  per  cent  cited  re- 
cently by  textbooks,  corrections  authorities,  and  the  courts. 

"Parolees  have  a  lower  i-epeat  offense  rate  than  nonparolees^about  25  per 
cent  compared  with  about  32  ■per  cent. 


9370 

"Convicts  routed  through  halfway  houses  on  their  way  out  of  prison  have  a 
lower  repeat  crime  rate  than  those  going  to  the  liouses  before  prison — 22  per 
cent  compared  with  42  per  cent. 

"Special  in-prison  rehabilitative  programs  do  not  affect  recidivism.  About  22.5 
per  cent  of  prisoners  become  repeaters,  whether  they  undergo  'rehabilitation' 
or  not. 

"Recidivism  has  declined  from  about  33  per  cent  in  the  1960s  to  about  23  per 
cent  thiis  far  In  the  1970s. 

"The  findings  contradict  not  only  current  theory,  but  an  earlier  study  by  Mar- 
tinson and  Wilkes  as  well.  Martinson  explains  that  the  first  analysis  was  not 
as  sophisticated." 

There  is  accordingly  the  great  probability  that  the  policy  judgments  as  to  how 
to  deal  with  crime  and  with  sentencing  incorporated  into  S.  1437  and  II.R.  OSfiO 
are  based  upon  incorrect,  erroneous  statistics,  and  reflect  an  equally  erroneous 
view  as  to  how  a  very  real  problem  should  properly  be  dealt  with. 

The  issues  have  been,  and  should  be,  sharply  defined.  They  are  made  un- 
mistakably clear  by  Professor  Louis  B.  Schwartz,  formerly  Director.  National 
Commission  on  Reform  of  Federal  Criminal  Law  (the  Brown  Commission).  In  an 
article  by  Professor  Schwartz  reprinted  in  this  subcommittee  record  of  Hear- 
ings on  S.  1,  Part  XII,  p.  384  (April  18,  1975),  the  contrast  between  the  two 
opposing  views  of  the  direction  to  be  taken  in  sentencing  and  correction  is  made 
in  the  sharpest  possible  terms  : 

"It  can  be  said  generally  of  the  contrasts  between  S.  1  and  the  Brown  Com- 
mission proposals  that  S.  1  expresses  the  view  that  the  crime  problem  can  and 
should  be  solved  by  extending  government's  power  over  individuals.  This  exten- 
sion can  take  the  form  of  wiretapping  and  other  secret  surveillance,  of  giving 
broad  discretion  to  oflBcials  in  decisions  about  punishment,  of  authorizing  ex- 
ceptionally sever©  sentences,  or  of  restricting  access  to  critical  information  about 
government  operations.  The  other  school  of  thought,  represented  by  the  Brown 
Commisssion,  is  skeptical  about  the  gains  in  law  enforcement  that  can  be  ex- 
pected from  such  measures,  and  more  concerned  about  impairing  the  quality 
of  civic  life  by  needful  restraints  on  liberty." 

This  contrast  in  views  is  of  paramount  importance  because  in  actuality  murh 
of  the  sentencing  in  the  federal  courts,  as  in  all  courts,  is  a  reflection  of  dispar- 
ity in  economic  opportunity  and  freedom  or  lack  of  freedom  from  racism.  This 
subcommittee  has  been  advised  that  "in  the  Federal  District  Court  in  Los  Angeles, 
75  percent  of  the  defendants  in  criminal  cases  are  indigent.  Indigent  defendants 
in  the  main  commit  crimes  because  of  their  poverty.  Their  poverty  and  the 
powerlessness  that  goes  'along  with  it,  is  a  central  fact  in  their  lives."  Statement 
of  .John  Van  De  Kamp.  Federal  Public  Defender.  Los  Angeles.  Hearings  on  S.  1 
and  S.  1400.  Part  XT,  p.  780.^)  (,Tulv  13,  1974).  The  proposed  federal  criminal 
code  must  contain  safeguards  against  racism.  Whether  or  not  the  proposed 
Sentencing  Commission  will  do  so  adequately  is  open  to  question  for  reasons 
set  forth  below.  What  is  abundantly  clear  in  my  view  is  that  it  is  impossible  to 
achieve  a  just  criminal  code  unless  there  is  a  just  economic  society.  There  is  no 
sngicestion  here  to  wait  for  the  millenium.  All  that  is  being  sought  is  that  Bill  of 
Rights  protections  be  adequately  included  in  any  omnibus  bill  offered  as  a  fed- 
eral criminal  code.  In  my  judgment,  S.  1437  and  its  companion  bill,  H.R.  6869 
fail  to  meet  this  challenge  adequately.  On  the  other  hand,  H.R.  2311,  introduced 
into  the  House  by  Congressman  Cohen  of  Maine,  and  carrying  on  last  session's 
Kastenmeier-Mikva-Edwards  bill  (H.R.  108r>n  of  the  04th  Congress),  although 
containing  some  serious  defects,  does  offer  far  more  civil  liberties  protections 
in  its  sentencing  provision  than  do  S.  1437  and  H.R.  6869. 

The  analysis  which  follows  attempts  to  compare  the  two  hills  in  important 
sections  applicable  to  sentencing. 

IT.    TITK   PRESTTAfPTTOX    TX   FAVOR    OF   TNCARCF.UATION    CONTAINED    IN    S    1437    AND 

H.R.  6869 

Concrally,  the  sentences  proposed  by  S.  1437  evidence  a  preoccupation  with 
punitive  considerations  at  the  expense  of  crime  prevention  and  rehabilitation  of 
offenders.  This  preoccupation  is  apparent  in  the  length  of  the  proposed  author- 
ized prision  sentences  (S.  2301),  the  insufliriency  of  restraints  on  consecutive 
sentencing  (S.  2304).  and  particularly  in  certain  proposed  criteria  required  to 
be  evaluated  by  the  federal  courts  in  determining  terms  of  imprisonment,  terms 
of  probation,  fines,  and  parole  ineligibility.  It  is  abundantly  clear  that  those 
criteria  in  actuality  establish  a  totally  unacceptable  presumption  in  favor   of 


9371 

incarceration,   and   are   squarely   opposed   to   modern   views   of  penology   and 
correction. 

S.  1437's  "law  and  order"  thrust  is  plainly  reflected  in  these  criteria  which  the 
judge  is  to  consider  when  imposing  sentence.  Apart  from  a  rearrangement  of 
the  order  in  which  these  criteria  appear,  S.  1437  is  identical  in  this  respect  with 
its  predecessor  bill,  S.  1.  Sec.  2302(a)  would  require  that  the  court,  in  con- 
sidering imposition  of  a  sentence  of  imprisonment,  consider  the  factors  earlier 
set  out  in  section  2003(a)  "to  the  extent  that  they  are  applicable."  Sec.  2003(a) 
in  turn  requires  that  the  court  consider  the  following : 

"(1)  The  nature  and  circumstance  of  the  offense  and  the  history  and  char- 
acteristics of  the  defendant ;  and 

"(2)  The  need  for  the  sentence  imposed  : 

"(A)  To  afford  adequate  deterrence  to  criminal  conduct; 
"(B)    To  protect  the  public  from  further  crimes  of  the  defendant; 
"(C)  to  reflect  the  seriousness  of  the  offense,  to  promote  respect  for  law, 
and  to  provide  just  punishment  for  the  offense  ;  and 

"(D)    to  i)rovide  the  defendant  with  needed  educational  or  vocational 
training,  medical  care,  or  other  correctional  treatment  in  the  most  effective 
manner ; 
"(3)  The  sentencing  range  established  for  the  applicable  category  of  offense 
committed  by  the  applicable  category  of  defendant  as  set  forth  in  the  guidelines 
that  are  issued  by  the  Sentencing  Commission  pursuant  to  28  U.S.C.  994(a)  (1) 
and  that  are  iii  effect  on  the  date  the  defendant  committed  the  offense;  and 
"(4)  Any  pertinent  policy  statement  issued  by  the  Sentencing  Commission  pur- 
suant to  28  U.S.C.  994(a)  (2)." 

The  provisions  relating  to  the  Sentencing  Commission  did  not,  of  course,  appear 
in  S.  1.  The  approach  of  the  section  and  the  mandate  that  these  criteria  be 
applied  remains  a  constant  in  both  S.  1  and  S.  1437. 

As  this  writer  noted  in  a  law  review  article  with  respect  to  the  comparable 
provision  of  S.  1  (Crystal,  The  Proposed  Federal  Crminal  Justice  Act  of  1915: 
Sentencing — Law  and  Order  With  A  Vengenance,  7  SETON  HALL  LAW  REV. 
at  41,  it  is  not  enough  that  the  sentence  "protect  the  public  from  further  crimes 
of  the  defendant"  and  "afford  adequate  deterrence  to  criminal  conduct,"  the 
sentence  must  also : 

"Reflect  the  seriousness  of  the  offense, 
"Promote  respect  for  law,  and 
"Provide  just  punishment  for  the  offense. 

The  criteria  thus  inii)osed  would  have  a  judge  punish  a  defendant  beyond  what 
is  required  for  his  individiial  wrong,  and  even  beyond  that  required  for  deter- 
rence, apjiarently  in  a  single-minded  attenipt  to  set  an  "examjile."  The  burden 
is  put  on  the  defendant  to  show  why  he  should  not  lie  imprisoned ;  why  he  should 
not  be  denied  probation;  why  he  sliould  be  granted  parole.  Incarceration  is  to 
be  the  norm.  As  noted  below,  this  is  squarely  at  variance  with  the  philosophy  of 
the  Brown  Commission,  of  the  ABA  Standards  and  Goals,  of  the  reconunenda- 
tiims  of  prestigious  legal  bodies,  including  the  American  Bar  Association,  the 
Association  of  the  Bar  of  the  City  of  New  York,  and  the  Special  Committee  on 
8.  1  of  the  State  Bar  Association  of  California,  of  the  National  Council  on  Crime 
and  Delinquency,  and  Program  for  Prison  Reform  in  the  United  States,  set  forth 
in  the  Final  Report  of  the  Annual  Chief  .Justice  Earl  Warren  Conference  on 
Advocacy,  June  9-June  10,  1972,  sponsored  by  the  Roscoe  Pound-American  Trial 
Lnwyers  Fonndntion,  Cambridge,  Mass. 

The  country  is  thus  faced  at  the  very  outset  of  S.  1437  with  a  fundamental 
choice  in  sentencing  policy.  The  approach  chosen  by  the  draftsmen  of  S.  1437 
is  demonstrably  out  of  line  with  the  reconnnendntions  of  the  leading  legal  and 
penological  authorities  of  the  country.  The  discrepancy  is  far  too  glaring  to  he 
papered  over  by  the  bland  assurances  that  85  percent  to  95  percent  of  the  bill  is 
non-controversial. 

_  The  genesis  of  the  "criteria"  set  forth  in  S.  1437,  and  derived  from  S.  1  which, 
m  turn,  derived  it  essentially  from  the  Nixon-Mitchell  Administration  version, 
S.  1400  of  the  93rd  Congress.  1st  Sess.,  is  clear.  It  reflects  the  law  and  order 
approach  toward  crime  voiced  by  former  President  Richard  M.  Nixon,  who  de- 
cried the  "sense  of  permissiveness"  that  characterized  America  in  the  1900's. 
and  who  concluded  that  "the  only  way  to  attaclv  crime  in  America  is  the  way 
crime  attacks  our  people — without  pity."  (Sixth  in  a  Series  nf  Presidential  Mes- 
sages to  the  Congress  on  the  State  of  the  Union,  reprinted  in  this  Subcommittee's 
Hearings,  4819-20  (1973). 


9372 

This  snboominiltee  has  been  tolrl  repeate<ll.v  by  the  most  prostisious  legal 
bodies  that  the  Xixoii-Mitchell  approach,  iiicliuling  its  emphasis  upon  iucar- 
ceration.  is  unacceptable.  Citation  to  the  testimony  and  statements  appearing  in 
the  committee's  own  hearings  makes  this  abundantly  clear. 

A.  Position  of  the  American  Bar  As-socialio)} :  In  its  testimony,  and  state- 
ment. Hearings.  Part  XII.  April  17,  107."..  ABA  submitted  to  the  subcommittee 
the  following  as  its  position  with  respect  to  grant  of  probation  in  lieu  of  incar- 
ceration (p.  377)  : 

"(26)  Recommendation  an  to  prcaiimption  for  prohaiion.  ABA  Standards  for 
Probation,  §  1.3  (a)  provides:  'Probation  should  be  the  sentence  unless  the  sen- 
tencing court  finds  that:  (i)  confinement  is  necessary  to  protect  the  public  from 
further  criminal  activity  by  the  offender;  or  (ii)  the  offender  is  in  need  of  cor- 
r^'ctional  treatment  which  can  most  effectively  l)e  provided  if  he  is  confined  :  or 
(iii)  it  would  unduly  depreciate  the  seriousness  of  the  offense  if  a  sentence  of 
probation  were  imposed.'  The  Association  supports  §3101  (a)  of  Brown  Com- 
mission to  this  effect.  Section  2102  of  S.  1  does  not  have  any  such  presumption 
in  favor  of  i)robation.  and  is  not  supported." 

B.  Poxition  of  the  As.<<ociation  of  the  Bar  of  the  Citi/  of  Xeir  York:  This  equally 
prestigious  law  association  similarly  vigorousl.v  opposed  the  provisions  of  S.  1 
which  are  carried  forward  virtually  intact  (with  the  exception  of  reference  to 
the  Sentencing  Commission)  in  S.  1437. 

With  respect  to  probation,  the  Association  advised  the  subcommittee  on  June 
13.  1974: 

"2.  We  approved  the  [Brown]  Commission's  statement  of  preference  for  prdha- 
tion  sentences,  and  therefore  disapprove  the  failure  of  S.  1  to  state  a  policy,  and 
even  more  the  presumption  favoring  imprisonment  in  S.  1400."  Ilearitnjs.  Part 
XI.  at  7765. 

With  respect  to  the  closely  related  problem  of  parole,  the  Association  stated 
in  the  same  report:  (commenting  on  the  Brown  Commission  bill,  S.  1  of  the  93rd 
Congress,  and  S.  1400  of  the  93rd  Consress  : 

"The  difference  in  the  parole  provisions  of  the  three  bills  is  closely  analogous 
to  that  in  their  probation  i)rovi.sions.  The  Commission  bill  mandates  earlier  re- 
lease, and  expi-essly  favors  parole  over  continued  imprisonment.  S.  1  takes  a 
middle  position  on  mandatory  release,  and  is  silent  on  priorities.  S.  1400  man- 
dates no  early  release  and  sugge.sts  a  stricter  parole  standard,  parallel  to  that 
in  its  probation  provisions,  (e.g..  parole  may  be  granted  if  the  Board  ('Conjuiis- 
sion')  is  of  the  opinion  that  the  defendant's  release  'would  not  fail'  to  afford 
adequate  deterrence). 

"We  favor  the  Commission  bill's  provisions  on  early  release  and  its  expression 
of  Priority  for  parole  over  continued  imprisonment." 

C.  Position  of  Special  Cntntnittee  on  S.  1  of  the  California-  F^tate  Bar  Associa- 
tion: A  Special  Committee  of  the  State  Bar  Association  of  California  prepared  a 
report  for  submission  to  the  1976  Conference  of  State  Bar  Delegates.  Sept.  1976, 
in  Fresno,  Calif.  The  Special  Committee  reviewed  many  provisions  of  S.  1. 
Its  final  conclusion  was  as  follow\s  (App.  M-18)  ; 

"CONCLrSIOX 

"S.  1  cannot  be  adequately  amended  to  avoid  creating  serious  voids  and  retro- 
gressions in  existing  federal  criminal  practice,  and  the  Committee  recommends 
that  the  State  Bar  make  every  attempt  to  defeat  this  unwise  proposed 
legislation." 

After  thorough  review  of  both  existing  law  and  of  the  sjiecific  proposals  of  S.  1 
as  to  sentencing,  prolmf ion.  parole,  and  the  like  (largely  carried  into  S.  1437  un- 
modified from  S.  1)  the  Sjiecial  Committee  concluded  (App.  M-7-App.  IM-8)  : 

"D.  Opinion  and  Recommendation  : 

"The  American  Bar  Association  Standards  for  Sentencing  §  3.1(d)  provides 
that  'for  most  offenses  .  .  .  the  maximum  authorized  term  ought  not  to  exceed 
ten  yciirs  excejit  in  unusual  cases  and  norm;illy  should  not  exceed  five  years.'  with 
sentences  of  25  years  or  longer  'reserved  for  particularly  serious  offenses  or  for 
certain  particular  dangerous  offenders.'  The  need  for  such  long  term  sentences 
has  been  seriously  questif>nfMl.  and  the  sentencing  structure  propo.sed  by  S.  1  i.s 
clearly  at  odds  with  the  sentencing  structure  i)roposed  by  the  Brown  Commi.s- 
<ii)M.  The  total  sentencing  schenu>  presumes  ixiteutial  misconduct,  and  the  uncon- 
trolled and  the  almost  limitless  i)ossibility  of  ]»arole  fosters  a  serious  danger  for 


9373 

the  use  of  parole  as  an  easier  method  by  which  to  return  a  person  to  the 
penitentiary  rather  than  by  a  trial  in  court  for  subsequent  alleged  crnnmal  mis- 
conduct. Neither  the  existing  prison  system  nor  our  parole  system  are  even 
capable  of  adjusting  to  the  new  requirements  that  would  be  imposed  by  S.  1. 
The  pattern  and  procedure  of  sentence  to  imprisonment  clearly  proclaims  that 
confinement  is  the  only  effective  answer  and  control  of  criminal  misbehavior, 
but  fonfinement  if  necessary  to  deter,  isolate,  and  finally  punish,  should  be  used 
only  as  a  last  resort.  Its  present  failure  is  obvious,  and.  unfortunately,  our  places 
of  confinment  are  often  the  breeding  places  of  tomorrow's  violent  offender.  In 
^.  1— confinement  appears  to  be  the  first  and  omnipresent  control— a  clear  case 
of  overkill.  The  Committee  recommends  against  adoption  of  the  provisions  of 

S  1." 

I).  Position  of  the  National  Council  on  Crime  and  Delinquency :  The  National 
Council  on  Crime  and  Delinquency,  organized  in  1907,  has  long  had  an  interest 
in  improving  sentencing  and  the  quality  of  our  penal  systems.  Its  surveys  and 
eon.sultation  have  been  of  immeasurable  importance  in  achieving  long  overdue 
reform  in  penology.  It  has  published  a  number  of  model  legislative  acts,  those 
most  relevant  to  the  proposed  federal  criminal  code,  being  the  Model  Sentencing 
Act,  authored  by  the  Council  of  Judges  of  the  Council  ( NCCD)  and  the  Standard 
Act  for  State  Correctional  Association  published  by  NCCD. 

On  April  17,  1975.  Mr.  Justus  Freimund,  Director,  Action  Service  Division,  of 
the  NCCD,  testified  before  this  subcommittee  and  presented  a  prepared  state- 
ment on  behalf  of  the  National  Council  on  Crime  and  Delinquency.  With  respect 
to  the  issue  of  the  apparent  presumption  in  favor  of  incarceration  rather  than 
release  of  the  defendant  to  some  rehabilitative  program  in  the  community.  Mr. 
Freimund  presented  the  following  statement  on  behalf  of  NCCD  : 

•'Probation  Sentence:  Section  2102.  Another  issue  of  major  concern  is  the  legal 
restraints  on  probation.  We  urge  the  Subcommittee  not  to  support  such  a  statute. 
It  goes  against  the  grain  of  progressive  penology.  Probation  is  recognizecl  as  the 
most  effective  form  on  sentence  in  a  great  many  cases,  and  yet.  Section  2101 
reciuires  a  prison  sentence  unless  the  judge  is  of  the  opinion  that  probation 
'will  not  fail  to  afford  deterrence  to  criminal  conduct  and  such  disposition  will 
not  unduly  depreciate  the  seriousness  of  the  defendant's  crime,  undermine  re- 
spect for  the  law,  or  fail  to  constitute  just  punishment  for  the  offense  committed.' 
Although  the  judge  is  required  to  consider  the  offender's  individual  circum- 
stances, such  provisions  implicitly  tell  the  judge  that  probation  is  not  preferred, 
but  a  last  resort,  to  be  accorded  only  the  criminal  offender  who  is  an  extraordi- 
narily good  risk.  They  ignore  the  fact  that  prison  sentences  completely  dislocate 
offenders  from  the  community,  cutting  oft'  the  ties  of  family  and  job  which 
alone  may  provide  the  incentive  to  obey  the  law.  Yet  since  most  offenders  ulti- 
mately do  return  to  the  outside  world,  it  in  society's  best  interest — as  well  as 
their  own — that  these  offenders  have  more  to  go  back  to  than  a  life  of  crime." 
Hearings,  Part  XII,  at  184. 

E.  Position  of  American  Civil  Liberties  Union :  The  ACLU  was  equally  sharp 
in  its  rejection  of  the  sentencing  scheme  of  S.  1  (which  has  been  largely  carried 
over  intact  into  S.  1-137  and  II. R.  6869).  Melvin  I.  Wulf.  Legal  Director,  Ameri- 
can Civil  Liberties  Union,  advised  this  subcommittee  in  a  statement  on  April  17, 
1975: 

"S.  1  sets  harsh,  retributive  sentences  for  many  crimes,  and  provides  for  the 
death  penalty,  which  the  ACLU  has  long  opposed  as  cruel  and  hard  punishment 
in  violation  of  the  Constitution.  *  *  * 

"The  .sentencing  schemes  of  S.  1  are  skewed  in  favor  of  long-term  prison  sen- 
tences, despite  the  overwhelming  recommendation  of  penologists  and  law.vers  who 
have  studied  the  correctional  system  that  sentences  instead  be  sharply  reduced. 
See.  e.g..  President's  Commission  on  Law  Enforcement  and  Administration  of 
Justice.  The  Challenge  of  Cnme  in  a  Free  Society  348-351  (Avon.  Ed.  1967)  ; 
Brown  Commission  Wo?-king  Papers,  vol.  II  at  1255-57,  1269;  Schwartz.  "The 
Proposed  Federal  Criminal  Code,"  13  Crim.  L.  Rep.  3265.  3266  (1973).  Although 
such  sentences  may  be  aimed  at  the  most  egregious  offenders,  the  Brown  Com- 
mission reported : 

"  'They  have  a  psychological  tendency  to  drive  sentences  up  in  cases  where 
such  a  tendency  is  unwarranted.  Long,  incapacitating  terms  can  do  great  dam- 
age, if  imposed  in  the  wrong  cases,  both  in  terms  of  injustice  to  the  individual 
and  in  terms  of  positive,  harmful  effects  to  the  public  upon  release  of  the  pris- 
oner. Long  sentences  imposed  on  the  wrong  people  can  lead  to  more  offenses 


9374 

rather  thau  less.  Workinff  Papers,  vol.  II  at  2257."  (Hearings  on  S.  1,  Part  XII, 
pp.  20^209) . 

'"Despite  the  Brown  Commission's  finding  that  'probation  is  likely  to  he  the 
most  effective  form  of  sentence  in  a  great  many  cases',  Working  Papers,  vol.  II 
at  1268,  S.  1  creates  substantial  legal  hurdles  to  the  imposition  of  probation 
instead  of  a  prison  sentence. 

"Section  2102  instructs  a  judge,  in  granting  probation,  to  consider  the  need  to 
provide  the  defendant  with  edncafional  or  vor'at'oiial  training,  medical  care,  or 
other  correctional  treatment  in  the  most  effective  manner.  Such  factors  only 
reinforce  the  criminal  justice  system's  discrimination  against  the  poor,  the  sick, 
and  the  uneducated.  The  constitutional  guarantees  of  due  process  and  equal 
protection  of  the  law  requires  courts  to  weigh  evenly  the  claims  of  rich  and  poor, 
skilled  and  unskilled.  Freedom  from  imprisonment  and  the  chance  to  try  again 
should  not  depend  on  an  absence  of  past  sufferings.  'Effective'  provision  of  job 
training  and  medical  care  in  most  cases  does  not  reqtiire  isolation  of  the 
offender  from  the  community  in  which  he  will  ultimately  have  to  learn  to  live. 
The  Congress  should  legislate  to  provide  these  services  outside  of  pri.son,  instead 
of  incarcerating  people  just  to  obtain  them.  S.  1  similarly  stacks  the  decision- 
making process  against  the  granting  of  parole  and  fails  to  provide  for  a  pref- 
erence to  parole  over  continued  imprisonment.  Yet  parole,  like  probation,  can  be 
crucial  in  encouraging  offenders  to  estaldish  law-abiding  lives.  See  Morrissey  v. 
Brewer,  ^09  U.S.  471,  484  (1972)."  (Hearings  on  S.  1,  Part  XII.  p.  210). 

F.  Position  of  Friends  Coinmitfee  on  National  Legislation  :  The  approach  to- 
ward sentencing  set  forth  in  S.  1  (much  of  which  is  retained  in  S.  1-^37  and  H.R. 
6869)  was  also  opposed  in  a  statement  by  Ralph  Rudd  on  behalf  of  the  Friends 
Committee  on  National  Legislation.  Mr.  Rudd  was  there  testifying  with  respect 
to  S.  1  and  S.  1400  of  the  93rd  Congress  rather  than  the  later  composite  S.  1  of 
the  94th  Congress.  His  statement  (Hearings,  Part  XII,  pp.  176-181,  April  17, 
1975)  has  continuing  validity  to  the  present  S.  1437.  He  there  stated  (Hearings, 
Part  XII,  at  177)  : 

"The  other  main  idea  I  want  to  express  has  to  do  with  the  iniquity  of  our 
prison  system.  It  is  widoJy  said  that  it  takes  young  delinquents  and  turns  them 
into  hardened  criminals.  The  National  Advisory  Common  on  Criminal  Justice 
Standards  and  Goals  reported  in  its  1973  report,  A  National  Strate.gy  to  Reduce 
Crime,  page  173  and  183,  two  studies  that  seemed  to  show  that  recidivism  in- 
crea.ses  with  longer  terms  in  prison.  This  seems  attril>utai>le  (o  the  basic  charac- 
ter of  prison  life,  which,  at  best,  reduces  drastically  the  opportunities  for  practice 
of  freedom  and  exercise  of  responsiliility.  At  worst  it  reduces  one  from  a  person 
to  a  number,  from  a  citizen  to  a  subject,  from  self-reliance  to  dependency,  from 
hope  to  frustration.  It  tends  even  to  (lograde  the  jalhu-*.  I  have  read  of  an  experi- 
ment in  which  a  sociolo.gy  class  voluntaril.v  simulated  a  prison  situation  and  the 
volunteer  jailers,  cho.sen  by  lot.  found  themselves  l)ec()ming  1>ru<^al  and  tyran- 
nical. Imprisonment  as  presently  practiced,  and  perhaps  inevitably,  is  totally 
undemocratic  and  fundamentally  del)asing.  It  is  a  monunieut  to  the  strength  and 
resiliency  of  the  human  spirit  that  so  many  do  come  out  of  prison  still  able  to 
make  their  way  in  normal  society.  It  is  small  wonder  that  so  many  come  out 
unalile  to  do  so. 

"The  gist  of  our  message  is  that  everv  effort  should  be  made  to  minimize 
imprisonment,  both  the  number  of  prison  sentences,  and  the  length  of  time 
served." 

G.  Position  of  Federal  Pnhlir  Defender,  Los  Angeles,  and  National  Legal  Aid 
and  Defenders'  Assoeiation:  The  approach  still  reflocted  in  S.  1437  of  so-called 
"criteria"  intended  to  utilize  sentencing  so  as  to  make  "an  example"  of  a  con- 
victed defendant  has  been  vigorousl.v  opposed  before  this  snlvomni'ttee  by  the 
National  Legal  .\)d  and  Defenders'  Association  in  testimony  given  and  a  state- 
ment submitted  on  June  17,  1074.  with  respect  to  the  nredecesor  bills,  S.  1  and 
S.  1400  of  the  n3rd  Congress  (TTenrinns.  Part  XT.  v\\  7790-7862"!.  It  is  urged  that 
tho  subcommittee  members  and  all  members  of  the  Senate  Judiciary  Committee 
reread  t1iis  important  testiTJiony  and  autiioritativo  statement.  The  views  there 
set  forth  refiiH-t  tlio  expertise  of  tl-ose  who  r-onie  daily  into  contact  with  de- 
fendants and  have  first-hand  knowledge  of  how  truly  illusory  are  the  approaches 
toward  scntenring  and  dealing  with  crime  that  all  too  much  of  S.  1437  still 
roflorts.  In  this  writer's  belief,  this  statement  constitutes  the  most  creative  and 
significant  approach  toward  a  sentencing  policy  that  combines  meaningful  deal- 
ling  with  the  important  proi)lem  of  sentencing  and  penology  consonant  with  pro- 


9375 

tection  of  the  Bill  of  Rights  freedoms  of  the  accused  and  the  convicted  which  has 
been  presented  to  this  committee.  Of  the  numerous  contributions  which  this 
testimony  and  statement  make,  the  following  may  be  quoted  as  particularly  rele- 
vant here. 

John  K.  Van  De  Kamp,  Federal  Public  Defender  in  Los  Angeles,  formerly  the 
U.S.  Attorney  in  Los  An;xeles,  and  also  formerly  the  Director  of  the  Executive 
Office  for  the  U.S.  Attorneys  in  Washington,  D.C.,  from  1967  to  1969,  advised 
this  subcommittee  (Hearings,  Part  XI,  at  7800)  : 

"With  respect  to  probation,  I  thinli  it  is  important  that  the  code  treat  proba- 
tion as  a  sentence,  not  as  an  event,  in  lieu  of  sentencing.  We  support  the  concept 
that  probation  be  considered  as  a  proper  disposition  in  each  case,  unless  con- 
finement is  necessary  to  protect  the  public  from  further  criminal  activity  by 
the  offender,  and/or  the  need  for  treatment  and  supervision  relating  to  an  of- 
fender's potential  for  further  criminal  conduct  cannot  be  provided  through  avail- 
able community  resources. 

"We  take  some  issue  with  the  criteria  set  up  on  S.  1.  particularly  the  first 
standard  which  the  court  is  to  consider,  that  is,  'the  need  to  maintain  respect  for 
law  and  to  reinforce  the  credibility  of  the  deterrent  factors  of  the  law.'  [cf.  Sec. 
2003  (a)  of  S.  1437].  While  warehousing  a  hardened  criminal  and  potential  recidi- 
vist may  well  be  justified  in  a  particular  case,  the  fuzzy  concept  of  public  deter- 
rence is  one  which  has  often  been  used  by  trial  judges  as  a  justification  for  a 
jail  sentence,  and  yet  we  know  that  a  sanction  does  not  have  preventive  deter- 
rent capability  miless  the  public  is  not  only  aware  of  the  potential  sanctions  that 
will  be  imposed,  and  knows  when  it  will  be  imposed.  And  I  can  tell  you,  Senator, 
that  press  coverage  and  public  awareness  is  absent  in  all  but  the  most  extreme, 
extraordinary  or  bizarre  Federal  cases  in  our  district.  For  this  reason  I  would 
suggest  that  the  provision  be  eliminated  since  it  tends  to  shift  the  focus  of  the 
judge  away  from  the  offender  to  a  concept  which  is  rarely  applicable." 

The  statement  submitted  on  behalf  of  the  National  Legal  Aid  and  Defenders' 
Association  urged  this  subcommittee  to  set  forth  in  the  code  for  the  trial  courts 
to  consider  in  sentencing  the  presumption  articTilated  by  the  National  Commis- 
sion on  Reform  of  the  Federal  Criminal  Law  (Brown  Commission)  and  which 
were  incorporated  in  proposed  legislation  : 

"The  court  shall  not  impose  a  sentence  of  imprisonment  upon  a  person  unless, 
having  regard  to  the  nature  and  character  of  the  offender  and  the  circumstances 
of  the  offense,  the  court  is  satisfied  that  (a)  confinement  is  necessary  to  protect 
the  pnl)lic  from  further  criminal  activity  by  the  offender:  and/or  (b)  the  of- 
fender is  in  need  of  treatment  and  supervision  which  can  only  be  provided  in  a 
correctional  institution."  (Hearings,  Part  XI,  at  7809). 

The  National  Legal  Aid  ami  Defenders'  Association  further  urged  this  sub- 
committee to  set  forth  appropriate  factors  for  sentencing,  including  these 
suggested  by  the  Brown  Commission  in  Sec.  3101  of  its  proposed  Federal  Criminal 
Code : 

"(a)  The  defendant's  criminal  conduct  neither  caused  nor  threatened  serious 
harm  to  another  person  or  his  property  : 

"(b)  The  defendant  did  not  plan  or  expect  that  his  criminal  conduct  would 
cause  or  threaten  serious  harm  to  another  person  or  his  property  ; 

"  (c)  The  defendant  acted  under  strong  provocation  ; 

"(d)  There  was  substantial  grounds  which,  though  insufficient  to  establish  a 
legal  defense,  tend  to  excuse  or  justify  the  defendant's  conduct. 

"(e)  The  victim  of  the  defendants'  conduct  induced  or  facilitated  its 
commission ; 

"(f)  The  defendant  has  made  or  will  make  restitution  or  reparation  to  the 
victim  of  his  conduct  for  the  damage  or  injury  whir-h  was  sustained  ; 

"(g)  The  defendant  has  no  (history  of  prior  delinquency  or  criminal  activity, 
or  had  led  a  law-abiding  life  for  a  substantial  period  of  time  before  the  com- 
mission of  the  present  ofl'ense ; 

"(h)  The  defendant's  conduct  was  the  result  of  circumstances  unlikely  to 
recur ; 

"(i)  The  character,  history  and  attitudes  of  the  defendant  indicate  that  he 
is  unlikely  to  commit  another  crime ; 

"(j)  The  defendant  is  likely  to  respond  affirmatively  to  supervision  and/or 
treatment  in  the  community  ; 

"(k)  The  imprisonment  of  the  defendant  would  eiitail  undue  hardship  to  him- 
self or  his  dependents." 

It  apiwars  clear  that  these  standards,  criteria,  and  guidelines  suggested  by 
the  Brown  Commission  in  Sec.  3101  of  its  proposed  Federal  Criminal  Code  are 


9376 

eminently  more  practical  and  consonant  with  fairness  and  a  just  criminal  code 
tlian  are  the  sweepinfj,  law-and-order  motivated  criteria  reflected,  resi)ectivelv, 
iu  Sees.  101    (a)   and   (i>).  2003(a).  2102,  2302,  and  .3834  of  S.  1437. 

II.  Criteria  Urf/cd  in  Fituil  J'c/jort  of  the  Annual  ('lii<f  .Justice  Earl  Wnrrrn 
Conference  on  Advocneij  Proposing  a  Proijrmn  for  Prison  Reform :  The  approacli 
toward  .sentenciny:  reflected  in  S.  1437  is  also  dramatically  out  of  line  witli  the 
prosiram  for  prison  reform  set  out  in  the  Final  Report  of  the  Annual  Cliief 
.Justice  Earl  Warren  Conference  on  Advocacy  in  the  I'nited  States,  held  .June 
!l-10,  11)72,  and  sponsored  by  the  Roscoe  Pound- American  Trial  Lawyers  Founda- 
tion, 20  Garden  Street,  Cambridge,  Mass.  02138.  The  reiiort  sets  out  as  its  theme 
the  followint;  trenchant  observation  by  Dostoevski : 

■'Huuiane  treatment  may  raise  up  one  in  whom  the  divine  inmse  has  lonjjc 
been  obscured.  It  is  with  the  unfortunate,  above  all.  tluit  humane  conduct  is 
necessary." 

It  is  a  lesson  the  drafters  of  S.  1437,  in  comuuin  wiih  the  drafters  of  tli" 
l»redecessor  bills,  S.  1  of  the  94th  Congress  and  S.  1  and  S.  14<i0  of  the  9ord 
C(mgress,  appear  to  have  paid  all  too  little  heed  in  their  omnibus  criteria  moti- 
vated rather  by  unworkable  and  emotion-ridden  law-and-order  concepts  reflect- 
ing largely  the  Xixon-Mitcliell  view  of  control  of  crime  and  imposition  of 
sentencing. 

In  a  clearly  written,  yet  extremely  sensitive,  foreword.  .Jacob  I).  P'nchsberg, 
then  President.  The  Roscoe  Pound-American  Trial  Lawyers  Foundation  1004- 
1972  (now  Judge  of  the  Second  Circuit  Court  of  Aispeals)  and  Theodore  I. 
Koskoflf,  Chairman  of  the  Annual  Chief  Justice  P^arl  Warren  Conference.  1972. 
stated  : 

•"America's  penal  system  is  a  major  national  chronic  blight.  Citizen  disinterest 
has  too  often  swept  it  luider  the  rug  of  public  conscience.  But  iJeriodic  eruptions. 
of  which  perhaps  the  most  dramatic  in  recent  years  was  the  violence  at  Attica 
State  Prison  in  New  York  in  September  1971.  have  turn(  d  current  public  atten- 
tion to  it.  Further,  this  waking  of  concern  has  occurred  during  a  inriod  of  our 
history  when  the  larger  problems  of  crime  and  justice  are  in  the  forefront  of 
our  national  issues. 

•"There  are  those  sensitive  and  knowledgeable  lawyers,  law  professors,  stu- 
dents, criminologists,  wardens,  law-enforcement  officers,  psychiatrists,  judges, 
prosecutors,  defenders,  administrators  of  i^enal  program.s,  journalists.  ex-pris(m- 
ers.  and  others  who  through  periods  of  public  interest  and  public  indifference 
alike,  have  worked  insistently  for  solutions  in  this  field.  It  was  such  distin- 
guished and  experienced  people,  perhaps  as  a  group  the  most  outstanding  ever 
a.sseinl>led  in  our  country  to  deal  with  such  problems,  who  met  to  concentrate 
tlunr  ccmbined  thinking  and  ideas  at  the  Law  Research  Center  of  the  Roscoe 
Pound-American  Trial  Lawyers  Foundation  in  Cambridge,  Massachusetts,  in 
June  of  this  year  [1972.].  There  the  Foundation's  Annual  Chief  Justice  Earl 
Warren  Conference  on  Advocacy  was  given  over  to  the  subject  of  prison  reform." 

The  reconnnendations  of  this  distinguished  body,  constituting  tlieir  Final 
Report,  and  their  I'rogram  for  I'risoii  Reform,  are  markedly  different  from  the 
approadi  taken  in  S.  1437.  That  difference  should  impel  this  suliconunittee  to 
reconsi<lcr,  fundamentally  and  completely,  its  approach  toward  the  admittedly 
diliicidt  ;iiid  coiu]ilex  problem  of  sentencing,  probation.  i)arole.  and  utilization 
of  ))risons  in  the  federal  correctional  system. 

It  is  urgently  recommended  that  the  statement  of  purposes,  constituting  a 
declaration  of  national  policy,  contained  in  Sec.  101,  of  S.  1437.  be  rewritten  to 
incorporate  the  formulations  proi)osed  by  the  Chief  Justice  Earl  Warren  Con- 
ference on  .Advocacy  in  the  Cnited  States,  that  the  bill  be  completely  .and  totally 
redriifted  in  the  spirit  there  i"etle(ted,  and  that,  accordingly.  S.  1437  itself  be 
tabled  pending  such  complete  redrafting  in  the  spirit  of  the  Conference's  recoin- 
memlations  and  the  imi>erative  mandates  of  the  Pill  of  Riglits. 

Tills  is  i)artictdarly  iiroper  and  urgently  re(piir(>d  because  of  the  virtual  una- 
nimity that  the  Conference  luirticipants  -of  widely  ditferent  views  and  ap- 
liroacl.es- — reached  thi;t  it  is  in  these  recommendations  that  the  workable  ap- 
proach lies  to  achieve  sentencing  and  prison  reform.  In  this  connection,  this 
fmther  extract  from  the  Foreword  to  the  Conference's  Report  is  approjmate : 

"'The  oveiTiding  fact  that  broad  consensus  was  reached  by  a  highly  diverse 
group — representing  such  poles  as  prosecution  and  defense,  prison  administrators 
and  ex-jirisoners — illustrates  that  prison  reform  is  not.  ami  must  not  be  a  p;\rti- 
san  or  adversary  issue.  Everyone  in  our  society — including  tlie  iK)tential  victims 
of  crime — will  benefit  from  a  wise  overhaul  of  our  penal  system. 


9377 

"It  is  the  hoi^e  of  the  Foundation  that  the  Report  will  become  a  practical  blue- 
print, a  living  letter  helping  to  give  a  new  sense  of  direction  to  penal  practices  at 
national,  state,  and  local  levels.  To  that  end,  many  Conferees  have  volunteered 
to  join  in  a  task  force  available  to  legislators,  courts  and  others  with  power  to 
implement  the  Report's  recommendations.  In  other  words,  they  are  ready  to  pro- 
vide the  activism  that  will  guarantee  that  this  Report  is  not  'filed  away.'  " 

Such,  however,  will  unquestionably  be  the  fate  of  this  seminal  Report  unless 
this  Committee  makes  use  of  the  opportunity  presented  by  the  Report  and  by 
the  availability  of  the  Conferees  to  make  their  expertise  available  to  implement 
the  Report's  recommendations.  It  is  accordingly  urged  that  the  present  hearings 
on  the  sentencing  provisions  of  S.  1437  be  broadened  and  that  the  Conferees  to 
this  important  Conference  on  Prison  Reform  be  invited  to  set  forth  their  views 
and  recommendations  at  length  as  to  the  proper  course  which  the  sentencing 
and  correctional  philosophy  of  the  federal  government  should  take,  and  which 
should  be  reflected  in  any  omnibus  federal  criiuinal  code. 

For  the  convenience  of  the  Subcommittee,  the  Reconunendations  of  the  Annual 
Chief  Justice  Earl  Warren  Conference  on  Advocacy  in  the  United  States  spon- 
sored by  the  Roscoe  Pound-American  Trial  Lawyers  Foundation  (Library  of 
Congress  Catalog  Card  Number  73-75717)  are  here  set  forth: 


"Criminal  sanctions  can  never  be  a  cure  for  the  ills  of  society.  While  at  pres- 
ent they  are  considered  necessary,  and  are  regretfully  imposed  for  lack  of  a 
constructive  alternative,  criminal  sanctions  are  essentially  negative  responses  to 
the  failings  of  human  beings,  to  the  failure  to  correct  basic  malfunctions  and 
inequalities  in  society,  and  to  pulilic  demands  for  retribution. 

"II. 

''Prisons  must  be  judged  by  their  actual  functioning  rather  than  by  their 
stated  objectives.  Experience  lias  shown  that  prisons  do  not  rehabilitate  of- 
fenders. For  all  practical  purposes,  prisons  are  wholly  punitive.  Given  this 
reality,  they  accomplish  only  three  limited  functions :  Protection  of  society  from 
a  relatively  small  number  of  dangerous  convicted  persons  for  a  limited  period 
of  time;  possibly  some  deterrence  of  a  limited  segment  of  society  at  large; 
retribution  for  blameworthy  acts.  Furthermore,  recidivism  rates  indicate  that 
prison  'caging'  maladjusts  prisoners,  and  thus  actually  exacerbates  the  crime 
problem. 

"Ill 

"These  limitations  must  be  candidly  recognized  and  the  employment  of  im- 
prisonment and  other  criminal  sanctions  must  accordingly  be  sharply  curtailed, 
liideed.  the  release  of  the  majority  of  the  prison  population,  coupled  with  the 
provision  of  community  programs  and  services,  would  not  increase  the  danger  to 
the  public,  and  ultimately  would  enhance  public  safety. 

"IV 

"Imprisonment  should  be  a  last  resort.  The  presumption  should  be  against  its 
use.  Before  any  offender  is  incarcerated,  the  prosecution  should  bear  the  burden 
of  proving  in  an  evidentiary  hearing  that  no  acceptable  alternative  exists.  An 
equal  burden  should  be  required  for  the  denial  of  revocation  of  'good  time', 
probation,  and  parole,  which  really  are  only  other  ways  of  imposing  imprison- 
ment. 

<'V 

"Nearly  half  the  present  potential  prison  and  jail  population  can  and  should  be 
placed  outside  the  criminal  justice  system  by  decriminalizing  behavior  which 
does  not  involve  (a)  the  threat  of  use  of  force  against  another  person  or  per- 
sons, (b)  fraud,  (c)  wanton  destruction  of  property,  or  (d)  violent  attacks 
against  the  government. 

"VI 

"Among  the  ofTenses  which  should  be  reviewed  for  immediate  removal  from 
the  criminal  law  are  alcoholism,  drug  addiction,  adult-consenting  sexual  acts, 
such  as  homosexuality  and  prostitution,  and  gambling,  all  of  which  are  usually 
'complaint-less'.   It  should  also  be   recognized   that  further  social,  psychiatric 


9378 

and  niedti?ar  research  may  place  certain  forms  of  behavior  now  termed  'crimi- 
nal' into  disoernable,  and  possibly  treatable,  disease  entities. 

"VII 

"The  de-criminalizing  of  offenses  does  not  apply  approval  of  such  behavior 
or  that  society  should  ignore  it.  It  recognizes  that  the  criminal  law  and  its 
agencies  are  inappropriate,  often  even  exacerbating,  to  such  behavior,  and  that 
what  is  required  instead  is  a  concurrent  enlargement  of  available  community 
resources  in  medicine,  public  health,  vocational  training,  education,  welfare 
and  family  counselling.  It  is  important,  however,  that  such  'therapeutic'  pro- 
grams not  be  employed  either  as  a  guise  under  which  another  form  of  incarcera- 
tion is  imposed,  or  as  a  condition  for  the  avoidance  of  imprisonment,  both  of 
which  are  often  now  the  case. 

"VIII 

"We  should  further  reduce  our  extensive  reliance  on  prisons  by  making  exten- 
sive use  of  alternatives  to  imprisonment,  such  as  fines,  restitution,  and  other 
probationary  methods,  which  could  at  least  as  effectively  meet  society's  need 
for  legal  sanctions.  However,  such  alternatives  must  be  made  available  to  all 
people  who  have  committed  similar  offenses,  so  as  not  to  become  a  means  for 
the  more  affluent  to  buy  their  way  out  of  prison.  And,  where  some  kind  of  con- 
finement seems  necessary,  half-way  houses,  community  centers,  group  homes, 
intermittent  sentences,  and  other  methods  of  keeping  offenders  within  the  com- 
munity should  be  preferred  to  prison. 

"IX 

"Even  where  imprisonment  is  warranted,  we  should  not  normally  resort  to 
long  sentences.  Experience  has  proved  that,  beyond  a  certain  length,  they  are 
self-defeating.  Therefore,  those  present  statutory  maximum  sentences  which  are 
grossly  disproportionate  to  any  legitimate  social  purpose  should  be  drastically 
reduced.  Correspondingly,  the  average  length  of  actual  time  served,  which  now 
exceeds  that  of  other  western  nations,  should  likewise  be  greatly  shortened. 

"X 

"The  indeterminate  sentence  has  not  had  the  salutary  effects  iiredicted. 
Instead  it  has  resulted  in  the  exercise  of  a  wide  discretion,  without  the  guidance 
of  standards,  and  in  longer  periods  of  time  served  in  prison.  Those  who  are 
least  able  to  mobilize  social,  economic  and  legal  resources  into  the  sentencing 
processes  thus  become  the  victims  of  the  harshest  and  most  discriminatory 
sentences.  On  occasion,  even  the  non-poor  may  be  victimized  by  an  idiosyncratic 
judge  with  tendentious  prejudices  about  race  or  life  .style.  There  .should,  there- 
fore, be  strict  limitations  on  the  .iudicial  and  quasi-.iudicial  exercise  of  dis- 
cretion in  the  fixing  of  terms,  of  imprisonment,  with  firm  guidelines  based  on 
reasonal)ly  definite  factors  such  as  past  criminal  record,  maturity,  and  the 
mitigated  or  aggravated  nature  of  the  particular  criminal  act  being  weighed. 
By  w^ay  of  contrast,  the  definite  sentence  would  automatically  eliminate  admin- 
istrative parole  board  procedures  which  now  consist  largely  of  an  untrammeled 
discretion  wliich  reduces  prisoners  to  little  more  than  supplicants.  The  ultimate 
goal  should  be  no  indeterminancy  whatsoever  in  sentencing. 

"XI 

"The  presumption  of  innocence  should  pervade  our  system  of  criminal  justice 
at  all  pro-conviction  stages.  But  our  present  bail  and  release-on-recognizance 
systems  do  violence  to  that  principle  and  are  discriminatory  and  arbitrary. 

"Studies  have  demonstrate  that  most  bail  is  unnecessary  and  merely  an  un- 
justifiable impairment  of  the  right  of  an  accused  to  be  free  pending  bail.  Yet 
under  our  present  practices  half  or  more  of  accused  persons  are  detained  in  jail 
pending  trial. 

"Some  meml)ers  of  the  Conference  recognized  that  short  and  specified  pretrial 
custody  may  be  required  for  society's  protection  in  a  few  extreme  cases,  such 
as  whore  a  person  is  irrational  and  dangerous  dno  to  severe  mental  illness  or 
when  tlie  state  can  establish  the  highly  probable  imminent  occurrence  of  a 
specific  dangerous  crime  of  personal  violence. 

"But  all  agree  that  bail  as  a  prevailing  system  should  go.  An  end  to  it  would, 
of  course,  also  .serve  to  further  reduce  prison  and  jail  populations. 


9379 

"XII 

"The  drastic  reduction  of  our  present  population  would  enable  us  to  employ 
better  our  resources  in  the  penal  institutions  which  would  remain. 

"Prison  personnel  must  be  adequately  trained  and  compensated,  and  the 
racial  and  ethnic  composition  of  the  prison  population  should  be  taken  into 
account  in  the  formulation  of  staff  recruitment  policies. 

"XIII 

"We  must,  take  immediate  steps  to  ensure  respect  for  the  rights  which  a 
democratic  society  must  grant  even  to  prisoners.  Though  he  is  suffering  a  punish- 
ment, a  prisoner  is  still  a  citizen  and  a  human  being.  Therefore,  except  to  the 
extent  absolutely  necessary  for  custodial  purposes,  he  should  not  be  deprived  of 
any  of  the  individual  rights  recognized  in  a  free  society.  These  include,  but  are 
not  limited  to,  such  basic  dignities  as  freedom  from  racial  discrimination,  free- 
dom from  physical  and  mental  brutality,  the  right  to  adequate  diet,  clothing, 
and  health  care,  the  right  to  furlough  or  institutional  accommodations  to  main- 
tain social  jind  fatailiai  ties,  including  being  located  as  close  to  home  as  prac- 
ticable, freedom  from  censorship  of  mail  and  other  literature  including  law 
books,  the  right  to  participate  in  local  and  national  elections,  and  the  right  to 
procedural  and  substantive  due  process  to  guarantee  such  rights.  Judicial, 
administrative,  and  legislative  action  to  promote  and  develop  these  rights  is 
imperative.  The  presumption  should  always  be  strongly  in  favor  of  full  entice- 
ment to  such  rights  and  not  against  them  as  is  all  too  prevalent  today. 

"XIV 

"As  a  further  concomitant  for  the  securing  of  such  rights,  prisoners  should  be 
permitted  to  organize,  without  fear  of  reprisal,  for  the  purpose  of  effective  ex- 
pression and  negotiation  of  grievances.  Even  in  the  absence  of  grievances,  and 
as  a  method  of  avoiding  abuses  leading  to  grievances,  there  should  be  regular 
meetings  between  duly  elected  prisoners'  representatives  and  prison  authorities. 

"XV 

"Under  current  practices,  the  initial  sentencing,  as  well  as  the  later  parole 
hearing  that  determines  the  tiltimate  sentence,  is  usually  conducted  absent  the 
right  of  a  prisoner  to  present  open  proof,  to  cross-examine  witnesses  and  pro- 
bation officers,  and  to  exercise  the  other  elements  of  due  process.  The  right  to 
full  due  process  should  accompany  the  sentencing  procedure  through  all  its 
stages,  including  the  denial  of  probation,  or  to  any  other  decisional  stage  that 
substantially  affects  the  term  of  imprisonment.  Until  such  time  as  the  present 
parole  system  is  eliminated  by  short  definite  prison  terms,  due  process  should 
apply  to  both  the  initial  granting  and  revocation  of  parole  or  good  conduct  time. 
These  events  are  now  at  least  as  critical  in  the  sentencing  process  as  is  the 
original  judicial  decision. 

"XVI 

"Since  most  prisoners  are  without  means  to  engage  counsel  for  the  protection 
of  their  rights,  it  is  essential  to  the  implementation  of  such  rights  that  the  avail- 
ability of  properly  trained  and  experienced  Public  Defenders  or  private  counsel, 
with  adequate  staff  support,  be  assured  to  all.  Such  legal  services  should  be  avail- 
able to  challenge  the  conviction,  to  aid  the  prisoner  with  any  civil  problems,  and 
to  represent  the  prisoner  in  grievances  against  the  institution. 

"XVII 

"Like  most  other  public  institutions,  prisons  must  be  open  to  public  scrutiny 
and  not  be  hidden  away  beyond  easy  observation.  To  assure  such  high  visibility, 
the  press  and  other  media,  upon  request,  should  have  ready  access  to  our  prisons, 
provided  that  each  prisoner's  right  to  refuse  interviews  or  exposure  shall  be 
respected. 

"XVIII 

"The  fact  that  rehabilitation  is  not  a  legitimate  purpose  of  imprisonment  does 
not  imply  that  'helping'  programs  should  be  removed  from  prisons.  The  state 
has  a  duty  to  provide  economic,  social,  educational  and  medical  services  in 


9380 

prisons,  as  well  as  in  the  communities,  but  since  sneh  services  bear  no  relation- 
.ship  to' the  legitimate  purposes  of  imprisonment,  their  acceptance  by  prisoners 
should  be  voluntary.  Ksi>ecially  since  there  is  no  convincing  evidence  of  the  effec- 
tiveness of  rehabilitative  programs  in  prison,  they  should  have  no  bearing  what- 
soever on  the  length  of  a  prisoner's  incarceration. 

"XIX 

••Upon  completion  of  their  sentences,  prisoners  should  return  to  full,  lawful 
membership  in  society.  No  discrimination  should  be  i^ermitted  against  former 
offenders  regarding  work,  education,  voting  or  other  civil  and  human  rights. 
Legislative  reform  in  this  regard  should  he  undertaken,  and  existing  agencies 
engaged  in  such  functions  as  job  placement  and  training  should  coordinate  their 
efforts  with  those  of  the  prison  system.  Changes  .should  not  have  to  await  judicial 
intervention. 

"XX 

•'To  focus,  as  we  have  d(me  in  this  Conferenct\  on  that  portion  of  the  criminal 
justice  system  which  begins  with  judicial  sentencing  and  terminates  with  restora- 
rion  of  civil  and  political  rights  is  not  to  imply  that  other  areas  of  our  criminal 
justice  system  are  not  also  in  need  of  reform.  Our  entire  criminal  law  should 
i»e  reviewed  periodically  and  .systematically  so  as  to  keep  it  abreast  of  the  con- 
temporary needs  of  a  free  society." 

This  thoughtful  Report  merits  the  most  detailed  study  by  this  Subcommittee. 
As  the  Foreword  to  the  Report  noted,  is  reading  makes  obvious  that  it  is  no  halt- 
ing, equivocating  document.  The  Conferees  clearly  felt  that  the  time  for  minnr^ 
piece-meal  "reforms"  is  long  past.  Indeed,  the  Report  cut  both  ways.  As  the 
Foreward  noted  (pp.  6-7)  : 

'Rather  the  Report  challenges  the  fundamental  value  of  today's  prison  as  an 
institution.  In  effect,  as  we  read  the  findings  and  as  we  heard  them  formulated, 
their  plain-spoken  direction  is  toward  the  elimination  of  prisons,  now  too  often 
just  a  way  to  cage  society's  cast-offs.  A  similar  conclusion  is  reached  on  our  bail 
system. 

"The  report  also  strips  away  the  protective  covering  from  many  shibboleths  to 
which  now  applies  the  lip-service  label  'progressive.'  For  instance,  the  Report 
minces  no  words  when  it  tells  us  that  our  ■modern"  parole  system  and  the  indv^- 
terminate  sentence  which  is  its  concomitant,  do  not  in  actual  practice  operate 
in  response  to  rehabilitative  achievement,  but  instead  most  often  are  but  a  means 
of  adding  punishment.  Indeed,  the  value  of  'rehabilitation'  procedures  is  almost 
entirely  unproved.  And  the  net  effect  of  the  use  of  these  devices  is  to  cause  our 
sentencing  structure  to  bear  most  heavily  on  the  poor." 

These  are  searching,  insightful  conclusions  .squarely  applicable  to  the  im- 
portant issues  with  which  this  Subcommittee  is  now  dealing.  They  provide  the 
ba.sis  for  a  national  policy  toward  sentencing,  probation,  parole,  bail,  early 
release  programs,  correction,  and  prisons  whicli  will  be  consonant  with  both 
criminal  law  realities  and  the  Bill  of  Rights. 

Yet  it  nnist  be  stated,  regretfully  but  firndy.  that  in  all  too  many  aspects, 
S.  1437  takes  precisely  the  oi>posite  approach  t(»ward  sentencing,  correction,  pro- 
bation, and  parole.  It  appears  to  bo  motivated  by  a  harsh,  even  vindictive,  ai)- 
proach  toward  the  defendants  in  the  criminal  justice  system.  In  all  too  many 
instanc(>s,  it  fails  to  provide  even  the  due  process  proltH'tions  Ret  forth  in 
II.R.  2311  now  iiending  in  the  House,  which  traces  back  to  the  II.R.  10S50  of  the 
last  Congress  and  which  had  much  of  its  provisions  drafted  in  close  collabora- 
tion with  the  American  Civil  Liberties  Union.  See  comparison  of  S.  1  and 
II.R.  ]08r>0  by  Congressman  Kastenmeier.  Conq.  Rcc,  February  24.  1976.  11.  1270- 
II.  1277. 

What  the  foregoing  analysis  has  clearly  shown  is  that  S.  14.".7,  like  its 
predecessor,  S.  ].  disregards  many  of  the  sound  recommendations  of  legal,  peno- 
logical and  correctional  experts,  including  tliose  embodh-d  in  the  Report  of  the 
National  Commission  on  Reform  of  Die  Federal  Criminal  Laws  (Brown  Com- 
Uiission  )  relating  to  the  si  ructure  of  crinunal  scnteuce.s. 

III.    TIIK    CHOICE    or    X.\TIO.\.\L    SENTENCIXG    POLICY    PRKSENTKn    RY    S.    1  t.">- 

Before  analysis  is  made  of  the  specific  provisions  relating  to  .sentencing  con- 
tained in  S.  14.37.  the  national  choices  which  (liis  legislation  presents  to  the 
country  should  be  made  crystal-clear.  S.  1437.  far  from  being  noncontroversial  as 
its  proponents  fallaciously  assert,  is  in  actuality  retrogressive  and  has  every 


9381 

probability  of  proving  to  be  harslily  vindit-tive  and  punitive  in  its  .sentent-ing 
pliiloKophy.  The  purported  equalization  and  end  to  sentence  disparity  is  the  false 
equality  (and  will  so  prove,  it  may  be  predicted,  in  all  too  many  instances)  of 
the  fabled  Bed  of  Procrustes. 

The  fateful  choice  as  to  a  sentencing  policy  in  criminal  law  which  this  country 
is  being  asked  to  make  was  set  forth  in  two  diametrically  opposed  speeches 
given  recently  to  the  Convocation  of  the  Center  for  the  Study  of  Democratic 
Institutions,  lield  in  Chicago,  Illinois,  on  April  2, 1977. 

Senator  Edward  M.  Kennedy  (D.  Mass.),  one  of  the  sponsors  of  S.  14.37,  stated 
in  part : 

"What  les.sons  have  we  learned?  Is  there  anything  we  can  do  now?  How 
much  progress  can  we  make? 

•The  first  step  is  to  change  the  terms  of  the  debate  on  crime.  We  must  end 
the  foolish  argument  over  whether  crime  can  be  attacked  more  effectively  by 
correcting  social  injustices  or  by  locking  up  offenders  and  throwing  away  the 
key. 

*  ****** 

"But  let  us  no  longer  confuse  social  progress  with  progress  in  the  war  against 
crime.  We  must  eliminate  ghetto  slums,  reduce  teenage  unemployment  and  im- 
prove health  care,  because  such  steps  in  and  of  themselves,  are  necessary  and 
right.  To  the  extent  that  steps  like  these  have  a  beneficial  impact  on  our  soaring 
crime  rate,  that  would  be  a  welcome  side  effect. 

•'But  CO  argue  'no  crime  reform  until  society  is  reformed'  is  to  direct  attention 
away  from  the  significant  steps  government  can  take  now  to  fight  crime.  The 
demand  for  causal  solutions  to  the  nation's  crime  problem  is,  whether  intended 
or  not,  a  way  of  deferring  specific  action. 

H:  *  ^  i>i  *  *  * 

••The  chaos  of  the  substantive  offenses  in  the  code  is  bad  enough.  But  when  we 
talk  about  how  the  current  laws  promote  injustice  how  they  mean  different 
things  to  the  rich  and  the  poor,  one  flaw  stands  out  above  the  rest.  That  is  fed- 
eral sentencing  policy.  Sentencing  in  America  is  a  national  scandal.  Every  day 
the  system  breeds  massive  injustice.  There  are  no  guidelines  to  aid  judges  in  the 
exercise  of  their  discretion.  There  is  no  appellate  review  of  sentences.  Judges 
are  free  to  roam  at  will,  dispensing  ad  hoc  justice  in  ways  that  defy  both 
reason  and  fairness.  Different  judges  hand  out  widely  differing  sentences  to 
similar  offenders  convicted  of  similar  crimes.  Some  offenders,  including  many 
repeat  offenders,  escape  jail  althogether  while  others — convicted  of  the  very 
same  crime — go  to  jail  for  excessive  periods. 

"The  impact  of  such  sentencing  disparity  on  our  criminal  justice  system  is 
devastating.  Certainty  of  punishment  is  a  joke.  To  all  who  come  in  contact 
v.ith  it,  the  system  is  seen  for  what  it  is — a  game  of  chance  in  which  offenders 
play  the  odds  and  gamble  on  avoiding  punishment.  Because  one  thief  went  to 
jail  doesn't  mean  the  next  will  go.  Hire  the  well-connected  lawyer ;  play  assign- 
ment calendar  roulette  by  adjourning  your  case  again  and  again  until  you  get  a 
lenient  judge;  in  every  other  way.  learn  the  ropes  and  beat  the  rap. 

"Sentencing  disparity  also  tilts  the  process  against  the  young  and  poor  and 
nurtures  a  growing  public  cynicism  about  our  institutions.  The  youth  who  goes 
for  a  joyride  or  commits  petty  larceny  is  sentenced  to  a  year  in'jail.  Too  often, 
the  evader,  the  price  fixer,  the  polluter  or  the  corrupt  public  official  receive 
suspended  sentences  on  the  unthinking  ground  that  the  stigma  of  their  convic- 
tions is  punishment  enough. 

"The  judges  are  not  to  blame.  The  problem  cannot  be  traced  to  'weak'  judges 
who  'coddle'  criminals.  The  great  majority  of  our  federal  judges  try  to  perform 
their  sentencing  duties  in  a  responsible,  diligent  manner.  But  they  must  act  with- 
out guidelines  or  review,  because  there  are  no  standards  or  review  procedures. 
The  law  invites  injustice  by  conferring  unlimited  discretion  to  impose  sentences 
within  vast  statutory  limits.  A  convicted  bank  roliber  can  be  sentenced  anywhere 
from  a  term  of  probation  to  twenty-five  years  in  prison,  a  rapist  anywhere  from 
probation  to  life  imprisonment.  This  discretion  has  been  provided  for  in  the  name 
of  benevolence,  in  the  name  of  doing  good.  The  original  purpose  of  the  law  was 
to  promote  rehabilitation  by  tailoring  the  sentencing  to  fit  the  personal  needs  of 
the  offender. 

••But  this  purpose  has  too  seldom  been  achieved.  Our  good  intentions  are  not 
enough.  The  use  of  broad  discretion  has  backfired  :  there  has  been  notorious  lack 
of  rehabilitation  and  an  equally  notorious  increase  in  arbitrariness  and  injustice." 


9382 

There  is  truth  in  some  of  Senator  Kennedy's  comments,  but  equally,  there  are 
falhicies,  half-truths,  and  a  glossing  over  of  a  retreat  tov\'ard  a  mechanical  method 
of  sentencing  wliich  will  be  brought  about  if  the  proposed  Sentencing  Commission 
establishes  guidelines  in  the  light  of  the  criteria  which,  if  S.  1437  becomes  law, 
will  be  made  uuuidatory  by  Sec.  lOl(a)  (the  General  Purpose  section).  Sec. 
20U3(a)  (dealing  with  factors  to  be  considered  in  imiwsition  of  a.  sentence), 
Sec.  2102  (dealing  with  factors  to  be  considered  in  imposition  of  a  sentence  of 
probation).  Sec!  2201  (and  Sec.  2202(a)  (dealing  with  imposition  of  a  sentence 
of  fine),  and  See.  3831(c)  (dealing  with  criteria  for  release  of  a  prisoner  on 
parole). 

Issue  i.s  effectively  and  authoritatively  joined  with  the  views  expressed  by 
Senator" l-Cerinedy  (which  in  large  part  are  incorporated  into  S.  1437  just  as  are 
also  those  of  the  Nixon-Mitchell  administration)  in  the  remarks  given  at  the 
.same  Confejrence  on  Crime  and  What  We  Can  Do  About  It  held  in  Chicago  on 
April  22.  1,977,  and  sponsored  by  the  Cei-ter  for  the  Study  ftf  Democratic  In- 
stil utioVife,  such  rebuttal  remarks  being  given  by  David  L.  Bazelon.  Chief  Judge, 
United  States  Court  of  Appeals  for  the  District  of  Columbia  Circuit.  Judge 
Bazelon's  remarks  appear  in  the  Congressional  Record.  May  2.  1977,  E,  2674- 
E.  2070.  .Jn  inserting  Judge  Bazelon's  address  into  the  Congressional  Record, 
Congressman  Don  Edwards  of  California  observed,  "I  was  deeply  moved  by  the 
insight  and  wisdom  in  the  si)eech,  and  commend  its  study  to  my  colleagues." 
.(E.  2674),.  '  . 

■  In  this  important  speech.  Judge  Bazelon  cut  through  much  of  the  self-serving 
rhetoric  that  has  been  offered  in  justification,  respectively,  for  the  hard-line  view 
of  sentencing  that  has  apppeared,  respectively  and  successively,  in  S.  1  and 
S.  1400  of  the  93rd  Congress,  S.  1  of  the  94th  Congress,  and  now  in  S.  14.37  of  the 
95th  Congress,  1st  Sess.  Congressman  Edwards  was  eminently  correct  in  com- 
mending its  study  to  the  members  of  Congress. 

Judge  Bazelon  there  said  in  part  (Cong.  Rec.  May  2. 1977,  at  E.  2675)  : 

"On  the  other  end  of  the  spectrum  from  the  abolitionists  [of  prisons],  there 
are  growing  numbers  of  criminologists  and  politicians  who  are  promising  society 
gi-eat  victories  in  the  war  on  crime  by  changing  our  sentencing  policies.  They 
speak  of  flat  sentences,  uniform  sentences,  mandatory  sentences,  presumptive 
sentences.  Under  one  proposal,  a  new  sentencing  commission  would  set  standards, 
and  appellate  courts  would  review  sentencing  decisions  to  insure  that  those 
standards  are  implemented. 

"Some  of  these  proposals  come  from  those  who  have  given  up  on  rehabilitation, 
and  indeterminate  sentencing,  which  uses  the  unfixed  release  date  to  induce 
prisoners  to  reform  themselves.  Since  prisons  now  seem  to  serve  no  purpose  but 
puni.shment  and  isolation,  they  say,  there  is  no  reason  that  like  crimes  should 
not  receive  like  sentences.  These  people  rest  their  case  for  uniform  sentences  on 
fairness  for  prisoners  themselves,  who  are  too  often  kept  ignorant  of  their 
release  date  or  subjected  to  unequal  treatment. 

"Perhaps  it  is  true  that  'we  have  not  achieve{l  either  the  individual  love  and 
understanding  or  the  social  distribution  of  power  and  property  that  is  essential 
if  discretion  is  to  serve  justice.'  Yet  I  still  cling  to  the  ideal  of  individualized 
justice.  As  others  have  recognized,  'In  abandoning  individuation  here,  we  make 
it  progressively  easier  to  abandon  it  eksewhere.  I  fear  that  if  we  shift  from 
concern  for  the  individual  to  mechanical  principles  of  fairness  we  may  cease 
trying  to  learn  as  much  as  possible  about  the  circumstances  of  life  that  may 
have  brought  the  particular  offender  to  the  bar  of  justice. 

"At  pre.sent,  sentencing  discretion  is  shared  by  prosecutors,  judges,  parole 
boards,  and  others.  Uniform  and  mandatory  sentences  would  merely  transfer 
most  of  this  discretion  to  prosecutors,  who  would  in  effect  set  sentences  by  their 
decisions  about  whom  to  charge  with  what  crime  and  whether  to  plea  bargain. 
Since  prosecutors  need  not  reveal  their  reasons,  their  exercise  of  discretion  is 
not  reviewable. 

"Of  course,  keeping  discretion  in  judges'  hands  is  preferable  only  if  judges 
explain  their  decisions  and  make  themselves  accountable  to  the  public.  Sentenc- 
ing discretion  cannot  appear  fair  or  serve  justice  or  teach  anyone  anything  unless 
its  exercise  is  fully  explained.  Unfortunately,  most  judges  now  give  only  boiler- 
plate reasons  for  that  sentencing,  if  that.  I  would  guess  that  some  judges — those 
who  are  moved  by  retribution  and  vengeance — woidd  be  ashamed  to  say  no  forth- 
rightly.  Others  suppose  there  must  be  right  and  wrong  sentences,  so  they  are 
embarrassed  to  reveal  their  understandable  dilemma  in  not  knowing  one  from 
the  other.  And  finally  there  are  those  who  can't  be  troubled ;  if  they  bothered 


9383 

to  probe  their  own  minds,  wlio  knows  what  useful  insights  or  disturbing  biases 
they  would  find? 

"All  the  proposals  for  sentencing  reform  are  worthless  unless  trial  judges 
clearly  and  honestly  reveal  in  writing  the  reasons  for  the  sentences  imposed. 
Without  such  reasons,  no  review — judicial  or  otherwise — would  have  any  basis 
for  determining  whether  the  judge  abused  his  sentencing  discretion.  And  without 
reasons,  we  would  be  denied  the  experience  which  would  be  essential  for  fixing 
sentencing  standards  and  guidelines  by  any  court,  commission,  or  legislature. 

"I  am  also  disturbed  by  the  movement  for  mandatory  and  uniform  sentencing 
because  some  people  advertise  it  as  a  way  of  reducing  crime.  Led  by  Harvard's 
James  Wilson  and  NYU's  Ernest  van  den  Haag,  this  group  argues  that  increas- 
ing the  certainty  of  a  prison  sentence  will  decrease  the  crime  rate  either  by 
removing  the  more  prolific  criminals  from  the  streets  or  by  deterring  others  from 
yielding  to  temptation.  Some  politicians  have  told  me  that  they  are  highly  im- 
pressed with  the  theory,  which  they  attribute  to  Wilson,  that  the  current  surge 
in  crime  is  caused  by  the  post-war  baby  boom.  Apparently,  the  idea  is  that  as 
this  generation  enters  its  crime-prone  years,  all  that  is  required  is  essentially 
a  holding  action — put  these  people  away  until  the  population  bulge  passes,  and 
eventually  the  problem  of  unacceptable  crime  statistics  will  largely  solve  itself. 

"What  can  society  really  expect  from  these  proposals?  Of  course,  all  these 
proposals  are  almost  certain  to  increase  the  number  of  prisoners,  even  if  sent- 
ences are  shortened.  Most  state  systems  are  already  overcrowded ;  many  are 
operating  at  130%  or  more  of  capacity.  In  one  state  the  Department  of  Correc- 
tions has  stopped  issuing  a  capacity  figure  'because  we  keep  passing  it.'  One 
survey  puts  our  national  prison  iwpulation  at  276,000.  In  the  last  year,  this 
country  experienced  the  largest  one-year  increase  on  record.  Billions  of  dollars 
in  new  prison  construction  is  scheduled  for  the  next  few  years ;  yet  at  a  cost  of 
$35,000  to  $50,000  per  cell,  we  can  safely  assume  that  overcrowding  will  get 
worse  before  it  gets  better. 

"Can  society  expect  harsher  sentences  to  deter  crime?  The  white-collar  offender 
may  weigh  the  risks  of  punishment,  but  the  street  offender — the  one  who  is  the 
cause  of  our  alarm — most  probably  does  not.  With  no  job,  no  opportunity,  no 
close  family  ties,  he  may  well  believe  he  has  more  to  gain  than  he  has  to  lose. 
More  than  3%  of  this  nation's  non-white  male  population  between  the  ages  of  18 
and  34  was  imprisoned  in  1970.  This  is  six  times  the  percentage  for  whites.  Can 
anyone  doubt  the  connection  between  these  out-of-proportion  figures  and  the 
out-of -proportion  unemployment  rates  and  lack  of  opportunity  facing  this  coun- 
try's non-white  slum  dwellers? 

"Also,  even  if  it  is  true  that  we  can  reduce  crime  simply  by  locking  up  enough 
lawbreakers,  we  must  ask — for  how  long  and  at  what  cost  to  them  and  ourselves? 
Is  the  plan  to  keep  them  behind  bars  for  life?  Even  if  it  succeeds,  will  this  ap- 
proach make  our  society  more  just,  or  merely  more  repressive? 

"Most  disturbing,  all  these  proposals  fail  to  consider  the  social  injustices 
that  breed  crime.  Can  it  be  true  that  this  nation  would  rather  build  a  new  prison 
cell  for  every  slum  dweller  who  turns  to  crime  than  try  to  alleviate  the  causes 
of  his  lawlessness.  I  do  not  understand  how  academicians  and  politicians  can 
have  a  clear  conscience  preaching  repression  as  the  solution  to  crime,  unless 
of  course  they  believe  that  despite  the  accident  of  birth  everyone  in  this  country 
is  equally  endowed,  mentally  and  physically,  and  has  the  same  opportunities  they 
have  had  to  get  ahead. 

"If  the  present  debates  in  corrections  are  aimed  at  making  prisons  less  brutal 
and  sentencing  more  fair,  then  the  effort  is  worthwhile.  But  if  they  are  aimed  at 
reducing  crime,  they  are  dangerously  off-target.  They  are  dangerous  because  they 
risk  repression  and  greater  suffering.  They  are  off-target  because  they  encourage 
society  to  expect  magic  cures  rather  than  facing  the  real  causes  of  crime." 

And  Judge  Bazelon  concluded  his  incisive  criticism  of  the  fallacious  and  prob- 
ably self-defeating  approach  tov/ard  crime  which  is  exemplified  by  S.  1437  with 
these  wise  words  (Cnvg.  Rcc,  May  2, 1977,  at  E  2676)  : 

"Prison  reform  and  tougher  sentencing  seem  like  hollow  promises  when  we 
realize  that  it  is  this  kind  of  crime  with  these  causes  that  we  are  really  talking 
about.  At  worst,  the  present  attacks  on  crime  are  repressive.  At  best,  they  are 
mere  nibbling. 

"Of  the  more  humane  reforms  that  I  call  'nibbling',  Norvnl  ^lorris  argues  that 
'it  is  a  serious  mistake  to  oppose  any  reform  until  all  can  be  reformed.'  Of  course 
I  agree.  Making  sentences  more  fair  and  relieving  over-crowding  in  prisons  need 

92-463—77 52 


9384 

not  wait  for  the  elimination  of  poverty  in  tliis  country.  Surely  review  of  the  sen- 
tencing judge's  discretion — accompanied  by  a  requirement  tliat  he  give  his  rea- 
sons— could  eliminate  wide  disparities  in  sentencing  without  ignoring  differences 
in  individual  offenders  that  justify  different  treatment. 

■'But  wliat  I  reject  is  the  notion  we  should  strive  to  achieve  only  those  changes 
in  the  criminal  justice  system.  Instead,  we  must  try  to  hold  in  mind  the  full 
picture.  We  nuist  not  forget  that  the  people  I  have  been  speaking  about  in  the 
criminal  justice  system  are  merely  the  end-product  of  our  failling  social  justice 
system. 

"What  ultimately  is  at  issue  in  the  debate  over  alternative  responses  to  the 
crime  problem  is  a  question  of  the  goal  to  be  pursued  :  repressive  order  or  moral 
order.  To  choose  to  eliminate  social  injustice  is  to  choose  a  long,  painful,  and 
costly  process.  The  only  option  I  can  imagine  that  is  less  appealing  is  not  to 
choose.  Creating  order  through  repression  will  not  be  easy,  and  maintaining  it, 
as  the  frustrations  of  the  deprived  grow,  will  be  more  and  more  difficult.  As 
the  poet  Langston  Hughes  warned  : 

"What  happens  to  a  dream  deferred? 
Does  it  dry  up 

like  a  raisin  in  the  sun 
Or  fester  like  a  sore — 
And  then  run? 

Does  it  stink  like  rotten  meat? 
Or  crust  and  sugar  over — 

Like  a  syrup  sweet? 
Maybe  it  just  sags 

Like  it  just  sags 

like  a  heavy  load. 
Or  docs  it  explode? 

"Everything  I've  said  this  morning  you've  heard  somewhere,  sometime  before. 
I've  given  you  no  new  data  or  new  theories.  My  purpose  in  coming  here  was  to 
deliver  a  simple  message :  In  the  growing  debate  about  corrections  and  the  rising 
hysteria  about  crime,  we  have  lost  sight  of  old  truths  and  old  priorities.  I  believe 
there  is  a  desperate  need  to  inform  the  nation  that  there  are  no  nostrums  for 
street  crime  apart  from  social  reform,  and  thjit  to  put  social  oi'der  ahead  of 
social  justice  is  repressive. 

"The  crux  of  the  dilemma  is  this :  It  is  easy  to  concede  the  inevitability  of 
social  injustice  and  find  the  serenity  to  accejit  it.  The  far  harder  task  is  to  feel 
its  intolerability  and  seek  the  strength  to  clumge  it.'' 

It  is  against  this  wise  perspective  l)y  Judge  David  L.  Bazelon  that  tlie  analysis 
of  the  Sentencing  Commission  and  the  sentencing  provisions  to  be  established  by 
S.  1437  if  it  becomes  law,  which  follows,  must  be  weighed.  The  bias  of  this  writer 
is  one  in  favor  of  the  BiU  of  Bights  and  against  tlie  tough,  law-oiul-order  concepts 
wliich  infest  S.  1487,  just  as  tliey  infested  S.  14.".7's  predecessor  l)i]l,  S.  1  of  the 
94th  Congress.  It  was  precisely  those  supposedly  "tough"  api)ronches  that  led 
inevitably  to  Attica  and  to  a  host  of  other  incidents  that  tore  the  lid  off  the  myth 
that  we  have  true  criminal  justice  in  our  sentencing  and  correctional  system  of 
law  enfor<'enient  and  crime  i)revention.  Jtidge  Bazelon's  warnings  take  on  even 
more  urgency  when  it  is  seen,  as  the  next  section  demonstrates,  tiiat  the  choice 
of  a  national  policy  is  to  l)e  made  in  actuality  not  by  Congress,  but  instead  in 
secret  by  a  non-legislative  hod,v,  the  Judicial  Conference.  The  reality  is  tliat.  in 
l>eing  asked  to  enact  S.  1437  into  law.  Congress  is  being  asked  to  addicate  its 
constitutional  obligation  to  make  jiolicy  and  legislate.  The  triie  Tiational  policy 
for  sentencing,  probation,  parole,  dangerous  offenders,  and  other  asp(>cts  of  the 
correctional  asjjects  of  criminal  law  will  not  be  made  b,v  Congress  but  instead 
b.v  a  .self-perpetuating  body  of  ranking  jurists  heavily  influenced  by  the  strict 
constructionist  views  of  former  President  Richard  M.  Nixon's  api)ointees  to  the 
United  States  Supreme  Court.  As  noted  in  the  next  section  of  this  analysis,  this  is 
both  undemocratic  and  unwise. 

IV.    CONGKESS  SHOULD  NOT  EX.VCT  S.  14.T7  PRIOR  TO  HAVING  BEFORE  IT  THE  SENTENCING 
GUIDELINES    PROPOSED   TO   BE   ESTABLISHED   BY   THE    SENTENCING    COMMISSION 

It  is  abundantly  clear  that  the  proponents  of  S.  1487  regard  the  proposed  Sen- 
tencing Commission  as  the  keystone  of  their  arch  for  federal  criminal  law  codifica- 
tion. Yet  those  guidelines  to  be  established  have  every  probability  of  being  formu- 


9385 

lated  in  a  harsh,  repressive  manner  that  will  inevitably  have  the  effect  of  further 
crowding  of  already  over-crowded  prisons  and  in  which  unworkable  "law-aud- 
order"  concepts  will  have  priority  over  intelligent,  expert  use  of  probation,  parole, 
halfway  houses,  release  to  the  community,  and  other  methods  of  correction  offer- 
ing hope  of  rehabilitation  and  reform  for  the  person  who  has  run  afoul  of  the  law, 
and  will  do  so  again  unless  recidivism  is  avoided  by  his  own  motivation  to  "go 
straight". 

Viewed  in  this  sense.  Congress  is  clearly  being  invited  to  "buy  a  pig  in  a  poke."' 
Momentous  issues  of  national  policy  should  not,  and  must  not,  be  delegated  to  a 
non-legislative  body,  as  is  the  formulation  adopted  with  respect  to  the  proposed 
Sentencing  Commission  (Chapter  5S  of  Fart  E,  pp.  301-307,  Sees.  991-998). 

In  a  Statement  issued  on  April  4,  1977,  the  American  Civil  Liberties  Union, 
appraising  the  Kennedy-McClellan  Proposed  Revision  of  S.  1,  noted  that  the 
Kennedy  guidelines  proposal  has  been  incorporated  into  the  bill.  Under  this  sys- 
tem, a  nine-member  commission  is  to  be  established,  appointed  by  the  Judicial 
Conference  of  the  United  States,  to  draft  "guidelines"  to  direct  the  trial  judge  in 
making  his  sentencing  decision.  Failure  to  sentence  within  the  guidelines  creates 
a  presumption  of  error  when  the  sentence  is  reviewed  by  the  appellate  court. 

On  this  important  provision  of  S.  1437,  ACLU  recommended  : 

''Recommendation:  The  ACLU,  of  course,  cannot  properly  evaluate  this  proposal 
without  seeing  tlie  guidelines  themselves.  Furthermore,  we  question  whether  a 
non-legislative  commission  should  be  delegated  the  authority  to  make  essentially 
legislative  decisions,  that  is  the  severity  of  punishment  to  be  accorded  particular 
categories  of  crime  and  criminals. 

"We  propose  that  a  sentencing  guidelines  commission  should  be  given  a  fixed 
time,  perhaps  one  year,  to  draft  and  submit  to  Congress  its  proposed  sentencing 
guidelines  system.  Enactment  of  any  criminal  codification  bill  should  be  deferred 
until  the  sentencing  commission  has  made  its  report  and  until  Congress  has  had 
an  opportunity  to  review  the  proposal." 

Such  recommendation  by  ACLU  is  both  practical  and  cogent.  It  closely  parallels 
criticism  made  by  the  National  Council  on  Crime  and  Delinquency  with  respect  to 
Senator  Cary  Hart's  draft  of  the  Federal  Sentencing  Standards  Act  of  1977 
(S.  204).  Included  in  the  National  Councirs  (hereinafler  NCCD)  comments  on 
Senator  Hart's  draft  were  the  following  observations,  inter  alia: 

"The  operative  sections  of  the  draft  bill  (S.  204)  are  sections  6,  7,  8,  9,  and  10. 
Section  6  calls  for  a  new  commission  (1)  to  establish  a  number  of  categories  of 
offenses,  placing  each  criminal  offense  in  a  category  ;  and  (2)  to  assign  a  presump- 
tive sentence  for  each  category. 

"With  respect  to  the  first  task,  the  draft  bill  would  set  up  a  complex  procedure 
without  es:tnhUshing  the  classifications,  or  placing  the  different  crimes  in  the  cate- 
gories. It  is  hard  to  see  that  anything  is  gained  by  this  procedure,  and  something 
is  lost  by  it :  the  first  hand  legislative  consideration  of  the  vital  ingredients  of  its 
bill.  It  should  be  a  legislative  task  to  determine  what  classification  accords  with 
its  view  of  sentencing,  and  to  set  it  forth.  Pushing  the  problem  aside  does  not 
promise  anything  superior. 

"A  sponsor  of  a  bill  of  this  kind  has  choices  among  the  models.  The  choice  in- 
volves such  decisions  as  whether  the  classifications  will  be  more  punitive  than  tho 
existing  lav/,  less  punitive,  or  much  the  same.  The  suggestion  that  the  commission 
may  establish  subclasses  for  any  criminal  offense  is  a  seemingly  neutral  guideline, 
but  the  question  is  a  vital  policy  matter  that  should  be  answered  by  the  Congress." 

As  noted  below,  the  proposed  Sentencing  Commission  provided  by  S.  1^37  would 
establish  guidelines  which  would  take  into  account  a  series  of  mitigating  and 
aggravating  circumstances.  If  anything,  the  provisions  of  S.  1437  in  this  regard 
are  even  more  speculative  and  conjectviral  than  the  parallel  provisions  of  Senator 
Hart's  S.  204.  the  "Federal  Sentencing  Standards  Act  of  1977." We  do  not  know, 
and  cannot  know,  at  this  time  what  these  guidelines  will  be.  No  one  can  evaluate 
either  the  effectiveness  or  the  fairness  of  the  guidelines  to  be  eventually  estab- 
lished by  the  Sentencing  Commission  to  be  set  up  pursuant  to  S.  1437  until  they 
have  actually  been  promulgated  and  the  country  finally  will  know  what  they 
provide. 

Accordingly,  it  is  strongly  advocated  that  action  on  criminal  code  legislation  be 
deferred  and  tabled  for  the  present  session  of  Congress  at  the  very  least.  Legisla- 
tion in  this  area  should  be  confined  to  establishment  of  such  a  Sentencing  Com- 
mission (the  members  to  be  appointed  by  the  President  rather  than  by  the  .Judicial 
Conferenf'e).  That  Commission  in  turn  would  have  the  duty  to  formulate  its  pro- 
posed guidelines  and  make  them  public  and  available  for  analysis  and  public 


9386 

debate,  including  the  extent  to  which  they  deal  fairly  with  the  poor,  the  minorities, 
and  other  categories  which  thus  far  have  never  truly  known  either  fairness  and 
basic  justice  in  sentencing,  as  groups,  or  that  federal  criminal  law  could  seriously 
be  termed  a  just  criminal  code.  Only  after  Congress  and  the  Executive  Depart- 
ment are  truly  satisfied,  following  extensive  hearings  with  full  opportunity  for  all 
interested  groups  to  make  their  views  known  on  the  fairness  and  justice  of  these 
guidelines,  including  the  availability  of  probation,  parole.  Half- Way  Houses,  re- 
lease to  the  community,  work  release,  and  other  creative  programs  affording  a  real 
hope  for  rehabilitation  and  avoidance  of  recidivism,  should  Congress  consider 
passage  of  the  complex  criminal  code  reform  bill  exemplified  by  S.  1437. 

This  recommendation  is  eminently  reasonable  in  view  of  the  great  importance 
which  the  sponsors  and  proponents  of  S.  1437  place  upon  the  Sentencing  Commis- 
sion and  the  sentencing  guidelines  it  will  be  given  the  power  to  promulgate,  if 
S.  1437  becomes  law.  This  is  made  strikingly  clear  by  the  statements  offered,  re- 
sppctivelv,  bv  Senator  John  McClellan  and  Senator  Edward  M.  Kennedv  in  intro- 
ducing S.  1437  ( Cong.  Ree,  May  2. 1977.  S.  6833-S.  6841 ) . 

Senator  Kennedy,  for  example,  stated  (Td..  at  S.  6839)  : 

•*'^Jr.  President,  although  these  new  [sentencing]  features  in  the  bill  basically 
result  from  our  effort  to  codify  current  law.  the  proposed  bill  goes  well  beyond 
mere  codification.  It  is  a  reform  effort  as  well. 

"First  and  foremost,  the  new  bill  overhauls  the  entire  Federal  sentencing 
process  by  adopting  many  of  the  sentencing  reforms  I  suggested  in  S.  181.  'the 
sentencing  guidelines  bill,'  introduced  with  broad,  bipartisan  support,  includ- 
ing the  cosponsorship  of  Senator  McClellan.  on  January  10,  [1977].  /  ricui  the 
seiitcncing  provisions  as  Ihe  key  reform  of  the  entire  bill.  The  bill  sets  forth 
four  generally  recognized  purposes  of  sentencing — deterrence,  protection  of  the 
public,  assurance  of  just  punishment,  and  rehabilitation.  A  sentencing  commis- 
sion is  created  and  directed  to  establish  guidelines  to  govern  the  imposition  of 
sentences  for  all  Federal  offenses,  taking  into  consideration  factors  relating  to 
the  purposes  of  sentencing,  the  characteristics  of  the  offender,  and  the  aggra- 
vating and  mitigating  circumstances  of  the  offense. 

"In  sentencing  offenders,  a  judge  will  be  expected  to  sentence  within  the  range 
specified  in  the  guidelines,  although  if  he  <'onsiders  the  guideline  range  inappro- 
priate for  a  particular  case  he  is  free  to  sentence  above  or  below  the  guideline 
range  ns  long  as  he  explains  his  reasons  for  doing  so.  If  an  offender  is  sentenced 
below  the  range  specified  in  the  guidelines,  the  Government  may  obtain  appellate 
review  of  the  sentence.  If  an  offender  is  sentenced  above  the  range  specified  in 
the  guidelines,  the  offender  may  appeal.  Tliis  system  is  designed  to  promote 
greater  uniformity  and  fairness,  while  retaining  necessary  judicial  flexibility. 
Under  this  new  approach,  the  gross  disparities  in  sentencing  fomid  in  current 
law  should  be  significantly  reduced."  (Emphasis  supplied). 

Similar  stress  upon  the  importance  of  the  Sentencing  Commission  and  the 
guidelines  it  is  to  formulate  appears  in  the  analysis  of  S.  1437  inserted  into  the 
Congressional  Reeord  on  May  2,  1977,  by  Senator  McClellan.  Cong..  Rcc,  INIay  2, 
1977,  at  S.  6838). 

It  is  eminently  fair  accordingly  that  Congress  defer  enactment  of  this  com- 
plex propossed  legislation  until  means  can  be  assured  that  it  is  Congress,  not 
some  sol f-perpetua ting  group  of  judges,  appointed  by  the  .Judicial  Conference, 
which  will  make  national  policy  with  respect  to  sentencing,  probation,  parole, 
fines,  prisoner  release,  and  all  the  other  important  sooial-policy  issues  involved 
here,  and  wliich  S.  1437  proposes  slionld  be  effectively  delegated  to  a  body  not 
answerablo  to  the  people,  but  instead  to  the  Judicial  Conft^rence.  and  which,  as 
demonstrated  in  the  next  section  of  this  analysis,  has  every  probal)ility  of  being 
undemooratic  and  unresponsive  to  progressive  views  of  sentencing  in  determin- 
ing tliese  guidelines. 

Just  as  it  is  eternally  true  that  questions  of  war  and  peace  are  too  important 
to  be  left  to  generals,  it  is  equally  true  that  questions  of  national  policy  as  to 
sentencing  are  too  important  to  be  left  to  judges  or  otlier  nppointees  of  the 
Judicinl  Conference.  Democratic  controls  over  sentencing  policy  are  absolute, 
indispensnble  requirements  for  a  just  criminal  code.  The  input!  expertise,  and 
advice  of  judges  are  urgently  needed,  just  as  is  the  comparable  authoritative 
input  nf  others  wlio  denl  with  tlio^-e  wlio  romo  into  conflict  with  the  Inw — • 
attornevs.  correctional  ofhcprs.  Public  Defpuders.  sncinl  workers,  psychiatrists, 
penologists.  There  is.  however,  an  enormous  distinction  to  be  made  between  utiliz- 
imr  flip  expertise  of  the  resources  and  personnnel  nvailable  to  the  Judicial  Con- 
ference and  hnving  Congress  abdicate  its  legislative  responsibilities  so  as  to 
dAioirate  decision  making  as  to  sentencing  to  appointees  of  the  Judicial  Con- 
ference. 


9387 

We  are  dealing  here  with  issues  where  legislative  decisions  between  choices 
must  be  made.  Those  legislative  decisions  should  not  be  delegated  to  a  commis- 
sion. Congress  will  be  flagrantly  remiss  in  measuring  up  to  its  constitutional 
duties  if  it  surrenders  the  power  to  make  these  decisions  to  a  non-legislative 
body,  the  proposed  Sentencing  Commission. 

V.  APPOINTMENT  OF  THE  MEMBERS  OF  THE  SENTENCING  COMMISSION  BY  THE  JUDICIAL 
CONFERENCE   IS   BOTH   UNDEMOCRATIC   AND   UNWISE 

Both  S.  1437  and  its  legislative  sibling,  S.  181  ( a  bill  to  establish  certain  guide- 
lines for  sentencing,  introducetl  by  Senator  Kennedy)  provide  that  there  is 
established  as  an  independent  Commission  in  the  judicial  branch  a  United  States 
Sentencing  Commission  which  shall  consist  of  nine  members  designated  by  the 
Judicial  Conference  of  the  United  States.  A  member  of  the  Commission  may  be 
removed  by  the  Judicial  Conference  only  for  cause.  (S.  1437,  Ch.  58,  Sect.  991, 
p.  301). 

The  Federal  Sentencing  Standards  Act  of  1977  ( S.  204,  introduced  by  Senator 
Gary  Hart)  takes  the  democratic  approach  with  respect  to  the  Federal  Sentenc- 
ing Commission  which  it  would  establish.  Sec.  4  of  S.  204  provides  for  the  estab- 
lishment of  a  commission  to  be  known  as  the  Federal  Sentencing  Commission. 
This  commission  is  to  be  composed  of  five  members  appointed  by  the  President 
of  the  United  States,  with  the  advice  and  consent  of  the  Senate.  This  is  entirely 
consonant  with  our  democratc  form  of  government.  It  permits  full  opportunity 
to  have  public  participation  in  the  choice  of  the  membership  of  this  body.  It 
does  not  leave  such  choice  to  a  group  (the  Judicial  Conference)  entirely  sepa- 
rated from  the  democratic  process  and  which  is  demonstrably  part  of  a  closed 
universe  of  judicial  elitism  largely  dominated  by  the  influence  of  Chief  Justice 
"Warren  Burger. 

Little  has  been  publicly  revealed  about  the  activities  and  decisions  of  the 
Judicial  Conference.  Some  of  the  secrecy  in  which  this  powerful,  but  little  known, 
judicial  agency  operates  has  been  stripped  away  by  an  article  by  John  P. 
MacKenzie,  former  Supreme  Court  reporter.  Dark  Doings  Among  the  Judges, 
appearing  in  Saturday  Review,  May  28,  1977  (pp.  18-19).  A  copy  of  this  reveal- 
ing article  is  annexed  as  an  appendix  to  this  statement. 

Mr.  MacKenzie's  enlightening  article  makes  clear  that,  far  from  delegating  to 
designees  of  the  Judicial  Conference  unprecedented  power  to  determine  the  policy 
of  the  federal  government  over  sentencing,  fines,  probation,  parole,  and  the  other 
broad  powers  which  S.  1437  seeks  to  confer  upon  the  Sentencing  Commission, 
the  time  is  overdue  for  Congress  ta  investigate  the  powers  the  Judicial  Con- 
ference already  has,  the  secrecy  in  Avhich  it  operates,  and  the  extent  to  which 
it  is  an  arm  for  lobbying  and  execution  of  the  narrow,  rigid  views  of  the  Bill 
of  Rights  and  constitutional  liberties  typified  by  the  Burger  Court  majority  of 
the  United  States  Supreme  Court. 

Mr.  MacKenzie  states  initially  in  his  article  : 

"  'Sunlight,'  said  Justice  Louis  D.  Brandeis,  'is  the  best  of  all  disinfectants.' 
Yet  one  enormously  influential  body  of  high-level  jurists,  the  Judicial  Conference 
of  the  United  States,  has  been  meeting  in  the  dark  for  so  many  decades  that  by 
now  one  almost  hesitates  to  throw  its  proceedings  open  to  the  cleansing  sunlight 
and  fresh  air." 

His  article  makes  clear  that  the  public  interest  is  deeply  involved  in  under- 
standing the  use  of  power  in  secret  by  this  small  body  of  leading  federal  judges. 
He  states  (p.  18)  : 

"But  why  should  the  public  care  about  this  secret  society  of  a  few  dozen 
eminent  judges?  Why  not  just  let  the  judicial  'beetles'  doze  away  on  their  perches, 
safe  from  the  glare  of  publicity  ? 

"The  answer  is  that,  whatever  its  original  intended  functions,  this  conference 
of  respected  jurists,  chaired  and  guided  by  Chief  Justice  Warren  Burger  has 
slowly  become  a  secret  lobby,  a  powerful  policy-shaping  instrument  that  is  in  no 
way  accountable  for  its  often  questionable  actions. 

"Not  content  with  lobbying  for  higher  salaries  for  judges  (a  perhaps  under- 
standable preoccupation),  the  group  has  lately  gone  on  to  influencing  congres- 
sional deliberations  on  wiretap  legislation  and  similar  key  policy  matters.  As 
things  stand,  the  Judicial  Conference  is  fast  becoming  a  secret  government  force 
to  be  reckoned  with." 

The  Saturday  Review  article  emphasizes  the  way  in  which  the  .Judicial  Con- 
ference is  dominated  by  its  chairman.  Chief  Justice  Warren  Burger.  Mr.  Mac- 
Kenzie explains  (p.  18)  : 

"Chief  Justices  have  many  collateral  duties  thrust  upon  them,  but  Burger, 
who  has  sought  and  gained  more  renown  as  a  judicial  administrator  than  as  a 
jurist,  has  accepted  the  conference  chairmanship  with  gusto  and  spends  long 


9388 

hours  on  its  work.  The  members  (11  chief  judges  of  the  regional  U.S.  courts  of 

^Plieal.><,  11  federal  district  judges  elected  by  their  peers  from  those  same  regions, 

and  representatives  from  claims  and  patents  courts)  often  are  no  match  for  a 

well-prepared  presiding  officer,  even  if  the  judges  were  inclined  to  resist  his 

4eadersliip. 

•'What  does  the  conference  actually  do?  An  attempt  to  help  outsiders  find  out 
\^•as  ciuietly  launched  a  few  years  ago — and  just  as  quietly  buried  last  year. 
James  E.  Doyle,  a  U.S.  district  judge  in  Madison,  Wisconsin,  advanced  the  modest 
proposal  that  the  conference  meetings  be  thrown  open  to  the  public.  He  told  his 
colleagues  that  after  attending  a  number  of  these  meetings  as  a  conference 
uiember,  he  couldn't  think  of  any  discussion  he  had  heard  that  couldn't  liave 
l>eeii  held  in  the  open.  His  proposal  was  drowned  in  apathy  and  opposition  led 
hy  Burger.  The  subject  itself  became  classified.  Burger  refused  to  discuss  the 
^details.  Terrified  staff  members,  taking  that  cue,  were  struck  dumb  when  ques- 
tioned. Judge  D.)yle  himself  found  the  topic  too  hot  to  talk  about.  'No  comment,' 
lie  replied  to  inquiries.  Was  he  the  initiator  of  such  a  proposal?  'No  comment 
on  tliat  either,"  he  answered." 

^Moreover,  it  has  become  clear  that,  under  the  domination  of  Chief  Justice 
Burger,  the  Judicial  Conference  has  been  utilizing  its  prestige  in  favor  of  pro- 
IXLsed  legislation  which  is  demonstrably  violative  of  civil  liberties  and  constitu- 
tional protections.  That  record  of  attempting  to  influence  legislation  in  a  manner 
:supp()rtive  of  the  type  of  proposed  legislation  which  public  outrage  forced  dele- 
tion from  S.  1  is  highly  disturbing.  It  poses  .shariily  the  questions  whether  the 
hardline,  rigid  views  of  the  Nixon  appointees  on  the  Supreme  Court  are  to  be 
the  ultimate  guidelines  promulgated  by  the  Sentencing  Commission  so  that  what 
Ave  are  dealing  with  here  is  an  indefensible  .species  of  legislative  legerdemain 
in  which  Congress  and  the  Carter  Administration  abdicate  their  mutual  responsi- 
bilities to  formulate  national  policy  over  sentencing  in  favor  of  delegating  that 
choice  of  national  policy  to  Chief  Justice  Warren  Burger,  dominant  force,  it  is 
clear,  in  the  Judicial  Conference,  a  body  of  top  jurists,  responsible  and  answer- 
able to  no  one,  meeting  in  secret,  and  reflecting  views  of  the  Bill  of  Rights  which 
aire  increasingly  arousing  alarm  among  those  who  regard  the  constitution  and 
the  Bill  of  Rights  as  a  precious  charter  of  freedom  not  to  be  eroded  even  by  a 
temporary  majority  on  the  Supreme  Court  re])resenting  Justices  carefully  chosen 
by  Richard  M.  Nixon  to  reflect  his  views  of  strict  constructionism  and  a  "tough" 
attitude  toward  lawbreakers  and  constitutional  freedoms. 

And  Mr.  INIacKenzie  concluded  (p.  19)  : 

"Whether  or  not  the  press  can  be  likened  to  government,  there's  little  doubt 
that  the  Judicial  Conference  performs  important  governmental  tasks — judicial, 
legislative,  and  executive.  It  has  come  a  long  way  since  1922,  when  Congress 
heeded  [Chief  Justice]  Taft's  call  for  a  body  to  cope  with  case-load  arrears  and 
possibly  to  something  about  the  disparity  among  courts  in  their  sentencing  of 
convicted  criminals.  Those  two  problems  remain  as  baffling  as  ever,  but  the 
•conference  has  branched  out  into  other  fields.  One  is  lol)bying,  and  not  just  for 
higher  federal-court  payrolls.  One  recalcitrant  congressman  predicted  early  that 
the  conference  would  become  'a  legally  constituted  and  publicly  financed  propa- 
ganda organization  on  behalf  of  the  fedral  judiciary.'  His  predictions  have  been 
borne  out  several  times. 

"One  notable  instance  occurred  in  19G7,  when  the  conference,  then  led  by  the 
late  Chief  Justice  Earl  Warren,  voted  to  volunteer  its  views  to  Congress  on  the 
wisdom  of  the  pending  wiretap  bills.  It  was  an  odd  stance,  one  tliat  came  to 
light  only  in  the  fine  print  of  the  conference's  report  and  the  satisfied  reactions 
of  wiretap  advocates.  The  conference,  with  its  roster  of  senior  and  prominent 
jurists,  could  be  expected  to  properly  connnent  on  the  ju'acticality  of  .sjiecific 
provisions  in  a  bill,  but  this  body  went  beyond  that:  it  chose  a  pro-tap  bill  in 
preference  to  a  bill  J>anning  all  wiretapping,  and  it  favored  a  bill  that  was  clearly 
unconstitutional  mider  existing  Suiu-eme  Court  ])recedents.  Activists  and  advo- 
ates  of  judicial  n^straint  alike  iet  the  resolution  pass,  since  there  was  no  recorded 
dissent.  Subsequent  iiuiuires  by  several  members  of  the  Judicial  Conference 
as  to  what  had  hajipened  yielded  the  inescapal)le  conclusion  that  many  of  them 
had  no  idea  of  what  they  had  done. 

"Cliicf  Justice  Warren  and  Chief  Justice  Burger  have  inspired  many  studies 
in  contrast,  but  they  are  alike  in  their  ])assion  for  conference  secrecy.  Congress 
could  cool  that  passion  by  l)ringing  the  conference  under  the  lash  of  disclosure 
and  public  access  now  recpiired  of  government  advisory  committees  and  agencies 
by  the  Freedom  of  Information  Act.  The  judicial  branch  is  not  covered  by  the 


9389 

information  law — needed,  the  alarming  fact  is  that  these  same  secretive  jurists 
are  the  ones  with  power  to  say  what  that  law  means — but  there  is  little  reason 
to  exempt  the  conference,  especially  when  it  is  not  performing  strictly  judicial 
work. 

"That  was  the  view  of  former  senator  Sam  J.  Ervin,  Jr.  (D-N.C).  Like  many 
other  lawmakers,  Ervin  found  other  fields  to  conquer  than  the  Judicial  Con- 
ference. But  he  said  this  in  1L»70  : 

"  'They  certainly  do  not  act  as  judges  when  they  vote  to  approve  or  disapprove 
of  pending  legislation,  or  adopt  rules  of  financial  disclosure  for  their  colleagues. 
Why,  then,  should  the  conference  meet  in  secret?  I  believe  that  when  judges 
act  as  policy  makers  and  lobbyists,  it  follows  that  their  discussions  should  be 
public.  If  the  conference  supports  or  opposes  a  bill,  the  Congress  and  the  public 
should  have  free  access  to  the  conference's  debate  on  that  proposal.  The  Con- 
gress .should  know  how  carefully  the  Judicial  Conference  researches  its  positions 
so  that  it  can  attach  relative  weights  to  them.'  " 

There  can  be  no  more  important  domestic  issue  for  the  citizenry  of  the  country 
to  confront  than  whether  Congress  is  to  abdicate  its  legislative  responsibilities 
and  surrender  legislative  decision  making  to  an  unresponsive  body  dominated 
by  Chief  Justice  Warren  Burger,  so  that  the  sentencing  policy  of  this  country 
is  to  be  formulated,  not  by  Congress  responsive  to  the  democratic  wishes  of  the 
electorate,  but  instead  by  the  judiciary,  and  particularly,  by  the  narrow,  retro- 
gressive views  of  the  Burger  Court  majority  of  the  United  States  Supreme  Court, 
and  its  titular  head,  the  Chief  Justice. 

What  that  will  mean  for  sentencing  may  be  seen  in  a  disturbing  article. 
Has  the  Supreme  Court  Abandoned  the  Constitution?  written  by  Laughlin  Mc- 
Donald, director  of  the  southern  regional  office  of  the  ACLU  Foundation  in 
Atlanta,  Ga. 

Mr.  McDonald  states  initially  (Saturday  Review,  May  28,  1977,  at  10)  : 

"The  Supreme  Court  has  lost  its  sense  of  direction.  It  seems  almost  to  have 
forgotten  what  its  job  is — to  interpret  and  defend  the  Constitution.  Under  Chief 
Justice  Warren  Burger  it  is  systematically  restricting  is  own  jurisdiction,  and 
that  of  the  lower  federal  courts,  to  hear  and  decide  cases  involving  the  denial 
of  constitutional  rights.  It  is  nailing  up  its  doors.  As  a  result,  people  with  legiti- 
mate complaints  are  left  without  remedy  or  redress.  But  paradoxically,  it  is 
often  better  to  be  ignored  by  the  Supreme  Court  these  days,  for  with  increasing 
frequency  the  Court  turns  the  cases  that  it  does  hear  into  constitutional 
disasters." 

And  he  concluded  {Saturday  RevieiD,  May  28, 1977,  at  p.  14)  : 

"On  the  whole,  the  decisions  of  the  Burger  Court  unmistakably  suggest  an 
underlying  ideology  similar  to  that  of  Richard  Nixon,  who  placed  Chief  Justice 
Burger  and  Justices  Powell,  Rehnquist,  and  Blackmun  on  the  Supreme  Court. 
Nixon  said  he  was  a  'strict  constructionist.'  Later,  Nixon  proved  he  loathed  the 
Constitution.*  *  * 

*  >;:  H«  *  *  *  * 

"As  things  are  now  developing.  Burger  Court  decisions  will  mean  a  reduction 
in  constitutional  protection,  and  in  freedom,  for  all  of  us.  There  will  be  less 
protection  from  police  abuse  and  less  free  speech,  less  protection  from  consumer 
fraud  and  less  fairness  in  the  administration  of  the  criminal  laivs.  There  will 
be  more  repression  in  the  administration  of  archaic  sex  laws,  more  invasion  of 
privacy,  and  more  discrimination  against  the  poor  and  other  minorities. 

"All  of  our  freedoms  will  be  diminished,  and  as  the  Constitution  begins  to 
atrophy  through  lack  of  enforcement,  increased  constitutional  violations  will 
be  eu'  ouraged  and  will  occur.  Our  institutions  of  government  will  become  more 
and  more  prone  to  abuse  and  less  and  less  reliable.  There  will  be  an  ever  in- 
creasing, palpalile  deterioration  in  ihe  quality  of  American  democracy  and  in 
American  life."  (Emphasis  supplied.) 

Is  then  the  ultimate  victor  in  determining  the  country's  national  policy  toward 
sentencing  and  corrpotion  to  be  Richard  M.  Nixon  through  the  lasting  influence 
of  his  handpicked  Chief  Justice  Warren  Burger,  chosen  to  reflect  the  then 
Pi'esidenfs  law-and-order  views  of  dealing  with  crime?  Is  a  hardnosed  approach 
toward  crime,  offering  little  or  no  hope  of  rehabilitation  and  pi-oviding  merely 
storage,  retribution,  and  claimed  "deterrence"  to  mark  this  country's  policy 
toward  sentencing  for  genei'ations  to  come,  and  thereby  to  reflect  Nixon's  ulti- 


9390 

mate  victory  in  this  important  area?  Whetlier  or  not  the  proponents  of  S.  1437, 
and  its  Sentencing  Commission  recognize  that  this  will  be  the  outcome  if 
S.  1437  becomes  law  in  its  present  form,  such  will  indeed  be  the  predictable,  and 
disturbing,  effect  of  enactment  of  this  provision. 

To  recapitulate,  S.  1437  presents  the  country  with  the  following  little-realized 
phenomenon  of  national  importance:  (1)  the  bill  is  replete  with  hard-nosed 
guidelines  for  so-called  "law-and-oi'der"  treatment  of  defendants  (euphemistically 
called  "certainty  of  punishment"  even  though  realistically  our  already  over- 
ci-owded  courts  and  prisons  will  be  flooded  far  beyond  capacity  if  this  increased 
imprisonment  called  for  by  S.  1437  and  its  proposed  Sentencing  Commission 
becomes  law)  ;  (2)  the  national  policy  as  to  sentencing  is  to  be  made  by  a 
Sentencing  Commission  to  be  appointed  by  the  Judicial  Conference  with  the 
result  that  Congress  is  being  required  to  abdicate  its  constitutional  obligation 
to  legislate  national  policy  in  this  important  area  of  the  law  in  favor  of  a  non- 
legislative  body  (totally  unresponsive  to  the  will  of  the  people)  which  has  not 
yet  even  been  appointed;  (3)  the  Judicial  Conference  is  responsible  to  no  other 
group,  represents  only  the  elite  hierarchy  of  the  federal  judiciary  and  meets 
and  conducts  its  business  completely  in  secret;  and  (4)  the  Judicial  Conference 
is  totally  dominated  by  its  chairman,  Chief  Justice  Burger,  who  in  turn  speaks 
for  the  Burger  Court  majority  of  the  Supreme  Court  which  has  issued  opinion 
after  opinion  taking  a  narrow,  retrogressive  view  of  the  Constitution  and  its 
Bill  of  Rights. 

From  this  emerges  the  inescapable  conclusion  that  S.  1437  leaves  determina- 
tion of  the  country's  national  policy  about  sentencing,  parole,  probation,  early 
release  of  prisoners,  and  the  like  to  a  totally  unresponsive  group,  dominated  by 
Chief  Justice  Burger.  Accordingly,  what  is  in  actuality  involved  in  the  pro- 
vision that  the  Sentencing  Commission  is  to  be  appointed  by  the  Judicial  Con- 
ference is  that  effective  control  of  the  country's  policy  about  how  to  deal  with 
crime  and  correction  is  being  surrendered  to  Chief  Justice  Burger  and  the  nar- 
row, law-and-order  view  he  typifles  which  has  led  those  concerned  about  the 
Bill  of  Rights  to  conclude  that  its  greatest  danger  is  no  longer  some  demagogue 
of  the  type  of  Senator  Joseph  McCarthy,  but  instead  the  present  majority  of 
tlie  United  States  Supreme  Court.  The  attempt  to  gloss  over  this  important  fact 
by  claiming  judicial  impartiality  or  whatever  other  euphemistic  defense  is  to  be 
given  to  this  demand  for  abdication  by  Congress  of  its  legislative  responsibilities 
cannot  conceal  the  fact  that,  if  S.  1437  becomes  law,  the  country  will  have  sur- 
rendered any  effective  control  over  sentencing;  capitulated  as  to  making  work 
probation,  parole,  diversion  of  the  offender  to  the  community,  and  other  creative 
and  hope-inspiring  correctional  techniques ;  and  delegated  full  control  in  this 
area  of  the  criminal  law  to  a  secret  body  in  the  judiciary  dominated  by  the 
retrogressive  views  of  Chief  Justice  Burger  and  his  colleagues  who  form  the 
Burger  Court  majority. 

There  is  no  criticism  here  of  the  concept  of  a  Sentencing  Commission  per  se. 
The  danger  to  constitutional  freedoms  and  to  a  fair  sentencing  policy  for  the 
country  arises  in  one  important  aspect  from  the  indefensible  i)r()vision  that  the 
members  of  the  Sentencing  Commission  are  to  be  appoiiittd  by  the  Judicial 
Council.  That  danger  can  readily  he  remedied — and  must — by  the  simple  process 
of  amending  the  provision  to  replace  it  with  the  approach  taken  in  S.  204,  the 
Federal  Sentencing  Standards  Act  of  1977.  introduced  by  Senator  Gary  Hart, 
provided,  as  previously  noted,  that  the  members  of  the  Connuission  must  be 
appointed  by  the  President  of  the  United  States,  with  the  advice  and  consent 
of  the  Senate. 

This  one  change  will  by  no  means  tame  all  the  dangers  which  the  Sentencing 
Commission,  as  formulated  in  S.  1437,  presents  to  justice  in  America.  It  is, 
however,  an  indispensable  initial  requirement. 

It  is  possible  to  legislate  a  Sentencing  Commission  which  has  some  reason- 
able likehhood  of  evolving  fair  and  just  sentencing  guidelines  within  the  frame- 
work of  a  just  criminal  code.  But  S.  1437  is  not  a  just  criminal  code,  and  the 
Sentencing  Commission  provisions  of  S.  1437  do  not  establish  a  commission 
which  will  bring  into  being  just,  equitable,  and  fair  sentencing  guidelines.  Most 
certainly,  it  will  not  do  so  long  as  S.  1437  continues  to  set  forth  harsh,  vindic- 
tive standards  of  its  own  which  look  toward  punitive  treatment  of  the  offender, 
rather  than  rehabilitation  and  return  to  society  with  a  motivation  to  abide  by 
the  law.  Both  the  sentencing  guidelines  of  S.  1437  itself,  and  the  undemocratic 
and  unresponsive  nature  of  the  proposed  Sentencing  Commission,  will  inevitably 
interlink  to  produce  a  tough,  inflexible  set  of  Sentencing  Commission  guidelines 
which  will  equally  inevitably  exacerbate,  rather  than  alleviate,  the  existing 


9391 

problem  of  dealing  effectively  with  crime  and  those  convicted  of  crime.  It  is  to 
this  area  of  the  proposed  Sentencing  Commission  that  the  instant  analysis  now 
turns. 

VI.  THE  GUIDELINES  SET  FORTH  IN  S.   1437  AND  TO  BE  REFLECTED  IN  THE  SENTENCING 
COMMISSION  GUIDELINES  ARE  UNACCEPTABLT  HARSH  AND  PUNITIVE 

This  analysis  has  earlier  noted  (Point  II)  that  there  is  a  presumption  in  favor 
of  incarceration  contained  in  S.  1437  and  its  companion  bill  in  the  House,  H.R. 
6869.  That  point  quoted  the  factors  set  forth  in  Section  2003(a)  required  to  be 
considered  by  the  trial  court  in  sentencing  the  convicted  defendant.  In  addition 
to  the  factors  there  quoted,  the  court  is  required  to  consider  the  sentencing  range 
established  for  the  applicable  category  of  offense  committed  by  the  applicable 
category  or  defendant  as  set  forth  in  the  Sentencing  Commission's  guidelines 
and.  further,  any  pertient  policy  statement  issued  by  the  Commission. 

Section  2003(a)  of  S.  1437  (Ch.  20,  p.  169)  directs  the  federal  district  court 
to  consider  all  these  factors  in  determining  sentences  of  prohabation,  fines,  or 
imprisonment.  There  lias  been  a  modification  from  the  old  S.  1.  That  pre- 
decessor bill  established  different  criteria  to  be  considered  by  the  court  in  sen- 
tencing a  defendant  to  any  of  the  listed  sanctions. 

However,  S.  1437  does  establish  additional  factors  for  the  court  to  consider  in 
levying  a  fine  and  for  the  parole  commission  In  granting  parole. 

Section  2202  (Ch.  22,  p.  175)  of  S.  1437  mandates  that,  in  levying  a  fine,  the 
court  must  consider  the  defendant's  "income,  earning  capacity,  and  financial  re- 
ssources :  the  nature  of  the  burden  that  payment  of  the  fine  will  impose  on  the 
defendant  or  his  dependents ;  and  any  requirement  that  the  defendant  make 
restitution  to  the  victim  of  the  offense." 

The  Parole  Commission  must  be  "of  the  opinion  that :  there  is  no  undue  risk 
that  a  prisoner  will  fail  to  conform  to  his  conditions  of  parole  *  *  *  and  his  re- 
lease at  that  time,  in  light  of  his  conduct  at  the  institution,  would  not  have  a 
substantially  adverse  effect  on  institutional  discipline"  in  order  to  grant  parole. 
(Sec.  38.31,  p.  266). 

The  purposes  of  S.  181.  the  bill  to  establish  certain  guidelines  for  sentencing 
introduced  by  Senator  Kennedy,  are  understandably  very  similar  to  those  in 
S.  1437. 

In  contrast,  the  purposes  of  S.  204.  the  "Federal  Sentencing  Standards  Act  of 
1977,"  introduced  by  Senator  Gary  Hart,  differ  from  those  in  S.  1437  and  S.  181. 
The  objective  of  S.  204  is  stated  to  be  the  establishment  of  standards  "that  will 
help  to  deter  crime  and  punish  convicted  criminal  offenders  fairly  and  equally." 
Senator  Hart  has  declared  that  this  bill  is  based  on  a  "just  deserts''  rationale 
for  sentencing.  "The  severity  of  a  sentence  must  be  commensurate  with  the  seri- 
misness  of  the  offender's  crime,  rather  than  being  based  on  his  suppospd  nppd  for 
treatment  or  his  likelihood  of  recidivism.  Accordingly,  S.  204  is  markedly  different 
in  important  commendable  respects  from  S.  1437.  It  is  not  based  on  the  "need  *  *  * 
to  provide  the  defendant  with  needed  educational  or  vocational  training  .  .  . 
or  other  correctional  treatment."  and  thus  recognizes  that  true  treatment  can- 
not be  coercively  imposed  by  the  courts  and  the  prison  system.  This  requirement 
penalizes  blacks,  Hispanics,  and  members  of  other  minority  groups,  as  well  as 
the  poor,  and  adds  to  the  results  of  discrimination  previously  suffered  by  them 
the  opportunity  to  correction  officers  to  keep  them  in  prison  on  the  claim  that 
somehow  this  will  provide  them  with  "needed  educational  or  vocational  train- 
ing"— training  which  is  desirable,  but  which  should  be  provided  in  the  com- 
munity instead  of  in  prison,  as  part  of  the  alternatives  to  sentencing  which  S. 
1437  minimizes  as  correctional  approaches  to  be  taken  by  the  sentencincr  .iudge. 

S.  204  is  further  preferable  because  it  does  not  (as  S.  1437  does)  aim  to  "pro- 
tect the  public  from  further  crimes  of  the  defendant."  There  is  here  a  recogni- 
nition  of  the  unfairness  of  basing  a  penalty  on  supposed  furtlier  activity  of  the 
defendant,  rather  than  actual  past  practices.  The  same  objection  also  applies  to 
the  provision  included  in  S.  1437's  provision  that  parole  not  be  granted  wJiere 
there  is  "undue  risk  that  a  prisoner  v^'ill  fail  to  conform  to  his  conditions  of 
parole." 

Specific  analysis  will  be  made  below  as  to  what  S.  1437  provides  with  respect 
to  probation,  parole,  and  other  alternative  sanctions  to  imprisonment.  At  this 
point,  a  general  over-all  comment  on  the  bill's  approach  is  that  it  clearly  demon- 
strates a  preference,  and  indeed  a  bias,  in  favor  of  incarceration  and  imprison- 
ment rather  than  in  place  of  alternative  sanctions  to  imprisonment.  Concededly, 


9392 

it  does  permit  the  use  of  traditional  alternatives  to  imprisonment,  inchiding 
probation,  parole,  and  fines,  subject  to  the  guidelines  and  policy  statements  of 
the  proposed  U.S.  Sentencing  Commission.  However,  it  does  not  mandate  the  u.se 
of  alternative  sanction.s  for  any  crime  (an  exception  is  possession  of  10  to  100 
grams  of  marijuana,  for  which  only  a  $500  fine  is  authorized).  Probation  is 
statutorily  prohibited  for  offenders  convicted  of  Class  A  felonies,  or  who  are 
convicted  of  "TraflBcking  in  an  Opiate"  or  "Using  a.  Weapon  in  the  Course  of  a 
Crime,"  offenses  which  are  required  to  be  punished  by  imposition  of  a  two-year 
mandatory  minimum  sentence  except  under  sharply  limited  circumstances  (the 
defendant  was  less  than  eighteen  years  of  age,  had  significantly  impaired  mental 
capacity,  was  under  unusual  duress,  or  was  an  accomplice  with  a  minor  role). 
Fines  can  be  assessed  against  any  defendant  found  guilty  of  an  offense,  subject  to 
the  purposes  of  sentences  mentioned  above,  the  Sentencing  Commission's  guide- 
lines, and  the  defendant's  financial  capabilities. 

S.  204  is  significantl.v  more  in  line  with  progressive  and  creative  concepts  of 
penology  and  correction.  Under  S.  2C^.  alternatives  to  imprisonment  are  required 
for  criminal  offenses  which  are  not  "serious."  Serious  offenses  are  defined  as 
those  which  involve  a  '"substantial  degree  of  harm  or  risk  and  a  high  degree  of 
culpability  on  the  part  of  the  person  who  commits  such  criminal  offense."  These 
offenses  "involve  (1)  the  infliction,  risk,  or  threat  of  substantial  bodily  injury; 
or  (2)  involves  the  infliction  of  risk  of  substantial  abuse  of  a  public  oflice.  a 
public  or  private  trust,  or  of  government  pi'ocesses.  or  the  deprivation  of  a  sub- 
stantial portion  of  the  livelihood  of  a  victim  of  such  criminal  offense." 

S.  204  illustrates  the  correctional  path  that  S.  1437  should  ( but  does  not)  take. 
S.  204  would  establish  a  number  of  alternatives  to  imprisonment,  both  old  and 
new.  These  include:  (1)  intermittent  confinement  for  days,  evenings,  or  week- 
ends, or  portions  thereof:  (2)  supervisi(m  in  the  community:  (3)  a  fine  or  for- 
feiture; (4)  a  curfew  or  travel  restrictions;  or  (5)  community  service.  S.  204 
further  provides  that  the  Attorney  Genei-al.  after  consulting  with  the  Sentencing 
Commission  provided  by  that  bill,  is  to  establish  or  designate  an  office  within  the 
Department  of  Justice  that  shall  be  responsible  for  implementing  and  carrying 
out  any  alternative  sanctions. 

It  is  in  proposals  for  alternative  sentencing  and  diversion  of  offenders,  par- 
ticularly to  community-based  correctional  programs,  that  the  real  hope  for  al- 
leviating crime  through  the  correctional  system  is  found.  What  S.  1437  exempli- 
fies is  a  swing  of  a  pendulum  away  from  modern  and  progressive  concepts  of 
penology.  There  are  a  number  of  reasons  for  this  swing,  not  all  by  any  means 
justifiable.  It  should  be  stated  bluntly  that  the  emphasis  in  S.  1437  upon  deter- 
minate sentencin.^.  mandatory  inii)risonment.  incarceration  to  "reflect  the  seri- 
ousness of  the  offense,  to  promote  resiiect  f(U'  law.  and  to  provide  just  punishment 
for  the  offense"  (Sec.  2003(a))  offers  littU^  hope  for  alleviating  crime,  although 
unquestionably  it  will  be  of  service  to  politicians  in  giving  them  an  opportunity 
to  tell  the  voters  back  home  that  they  haA-e  "done  something  about  crime." 

Here,  as  ever.  .Tudgp  David  T;.  Bazelon.  has  written  wise  words: 

"Mandatory  incarcer.-ition.  determinate  sentencing,  and  other  similar  ideas  ;ive 
thus  the  first  steps  in  a  thousand-mile  journey,  but  in  precisely  the  wrong  direc- 
tion— towards  rei>ression.  Mandatory  incarceration  means  nothing  more  than 
locking  up  those  who  manifest  symptoms  of  the  underlying  ill.  If  it  reduces  crime, 
it  will  do  so  only  l)ecause  repression  and  fear  can  be  effective.  Mandatory  in- 
carceration, however,  wi'l  not  cure — or  even  address  the  roots  of  the  disease. 
Determinate  sentencing  is  also  an  ostrich-like  response;  it  expressly  eliminates 
from  the  sentencing  process  any  effort  to  learn  about  the  circumstances  that 
foster  the  bolmvior  of  a  iiarticular  offender.  As  a  result,  we  forfeit  an  opportunity 
to  learn  what  must  be  done  to  pi'evont  him — and  others  like  him — from  commit- 
ting future  offen.ses,"  ("Ciril  Lihcrfir.s — Profrciiiir/  Old  Valvrfi  in  thr  Xcio 
Crnfury''.  .^1  New  York  I^niversity  Law  Review  r>05.  at  510.  1070.) 

TTnquestionably,  for  the  hai-dened  criminal,  imprisonment  is  proper.  S.  1437 
leans,  however,  despite  lip  service  givoji  toward  alternatives  to  imprisonment, 
toward  an  infatuation  with  incarceration  for  most  defendants.  It  evades  recog- 
nition of  the  simiile  truth  that  there  cainiot  be  a  just  criminal  code,  or  a  ju'st 
program  for  sentencing,  without  there  being  a  just  economic  system.  It  is  no 
mystery  that  there  is  a  link  between  continiiinc:  unemployment,  particularly 
of  the  youth,  and  more  specifically  of  l>lack  and  other  minority  youth,  and 
continuing  street  crime.  Fewer  jobs  unquestionably  result  in  more  crime.  The 
rather  simplistic  approach  taken  by  the  emphasis  upon  incarceration  in  S.  1437 
cannot  escape  that  truism.  It  is  probable  that  a  one  percent  increase  in  the  rate 


9393 

of  unemployment  will  wipe  ont  any  deterrent  effect  that  the  certainty  of  im- 
prisonment" exemplified  by  S.  1437  could  conceivably  bring  about.  Enthusiasm 
for  determinate  sentencing  and  mandatory  incarceration  is  strongly  suggestive 
of  leaping  on  a  bandwagon.  In  this  case,  however,  that  bandwagon  appears  to 
be  located  on  S.S.  Titanic. 

The  prestigious  journal.  Crime  and  Delinquency,  Vol.  21,  July  1975,   (No.  6), 
p.  295,  quoted  the  following  from  an  article  by  Tom  Wicker,  "Jobs  and  Crime, 
l<[ew   York   Timen.  April  4,  1975: 

"Crime  was  sharply  up  in  1974.  according  to  Federal  Bureau  of  Investiga- 
tion statistics,  and  Attorney  General  Edward  Levi  thinks  that  bears  out  his 
prediction  that  rising  unemployment  would  cause  more  crime.  With  unemploy- 
ment generally  above  8  percent  and  as  high  as  41  per  cent  for  black  teen-agers,, 
there  is  little  reason  to  doubt  Mr.  Levi's  analysis.  .  .  . 

"As  reported  by  the  Los  Angeles  Times,  the  FBI  statistics  show  the  incidence 
of  crime  to  have  risen  by  17  per  cent  in  1974.  compared  to  only  6  per  cent  in 
1973.  Violent  crimes — murder,  rape,  robbery,  and  assault — more  than  doubled 
to  11  from  5  per  cent:  property  crimes  tripled,  from  6  to  17  per  cent  in  1974. 
Crime  statistics  are  not  entirely  reliable  for  many  reasons,  but  these  FBI 
figures  seem  to  reflect  a  definite  upward  trend. 

"That  these  increases  at  least  to  some  extent  are  the  product  of  rising  unem- 
ployment can  hardly  be  doubted.  For  one  thing,  the  crime  increases  were 
sharpest  in  the  last  three  months  of  1974,  when  the  economic  recession  was 
gathering  speed  and  producing  large-scale  layoffs  and  business  failures. 

"For  another,  cities  where  unemployment  was  at  its  worst  suffered  the  biggest 
increases  in  the  incidence  of  crime  .  .  . 

"These  figures  were  entirely  predictable.  As  Mr.  Levi  suggested  in  his  con- 
firmation hearings,  when  .iol)s  are  not  available,  when  layoffs  are  widespread, 
and  when  the  first-fired  are  likely  to  be  those  least  skilled  and  least  educated, 
hence  least  able  to  get  and  keep  whatever  work  may  be  available — particularly^ 
when  prices  are  also  rising — an  increase  in  crime  is  almost  bound  to  result, 
as  the  jobless  seek  some  way  to  maintain  themselves,  or  their  families,  or  their 
drug  habits,  or  their  installment  payments,  or  their  loan  shark,  or  all  of 
these  .  .  . 

"High  unemployment  ...  is  likely  to  result — as  the  FBI  figures  suggest — 
in  precisely  the  most-feared  forms  of  crime.  Since  layoffs  disproportionately 
affect  the  poor,  the  unskilled,  and  the  disadvantaged,  they  stimulate  muggings, 
robbery  and  assault,  which  are  predominantly  crimes  of  the  poor,  often  against 
other  poor  people.  And  one  high-risk  class  of  potential  offenders — ex-convicts — ■ 
are  particularly  affected  by  hard  economic  times.  It  is  difficult  enough  for  ex-cons 
to  find  work  during  periods  of  prosperity,  and  all  but  impossible  in  a  recession — ■ 
which  is  one  good  reason  why  recidivism  rates  are  estimated  as  high  as  70' 
per  cent  .  .  . 

"Maybe  full  employment  and  reduced  economic  disparities  would  do  more  to 
make  the  sti-eets  safe  than  any  number  of  policemen." 

Reference  to  the  link  between  rising  unemplo.vment  and  rising  crime  is  not 
made  here  in  any  spirit  of  vaguely  idealist  exculpation  of  the  street  criminal. 
Clearly,  violent  crime  must  be  curbed.  No  sensible  person  disagrees  with  that 
truism.  The  prolilem.  which  in  this  writer's  judgment.  S.  1437  fudges  is  how  to 
deal  with  it  meaningfully  and  effectively. 

As  this  writer  has  elsewhere  written  (Crystal,  The  Proposed  Federal  Criminnl 
Justice  Act  of  1975:  f^entencing — Law  and  Order  With  a  Vengeance,  7  Seton  Hall 
Law  Rev.  at  41-42  (197.t)  :  the  major  flaw  with  a  "law  and  order"  approach, 
which  looks  to  increased  penalties  as  a  solution  to  crime  is  that  it  ignores  the 
reality  that,  sooner  or  later,  most  prisoners  will  return  to  society:  and  unless 
they  are  adequately  rehabilitated,  the  prison  will  simply  have  proved  to  have 
been  a  training  school  for  further  crime.  Moreover,  the  very  factors  thnt  in- 
evitaV>ly  produce  plea  l»nrgaining — the  inadequacy  both  of  the  law-enforcement 
system  which  processes  those  accused  of  crime  and  of  the  penal  system  which 
houses  and  maintains  those  convicted  of  crime — make  it  clear  that  a  program 
which  emphasiz<=s  the  imnosition  of  increased  terms  of  imprisonment  for  enlarged 
classes  of  offenders  tlireatens  to  break  down  the  pennl  system  itself. 

The  question  of  vnriability  of  sentencing  to  which  the  Sentencing  Commission 
provisions  of  S.  1437  address  themselves  is  clearly  an  important  one.  However, 
it  must  be  viewed  in  the  context  of  what  S.  1437  itself  provides  as  to  length  of 
sentencing,  severity  of  fine,  and  availability  of  probation,  parole,  and  alternative 
methods  of  imposing  sanctions  and  penalties  upon  the  convicted  offender.  At- 
tention is  now  turned  to  these  specific  aspects  of  S.  1437's  sentencing  provisions. 


9394 

Vn.  THE  SENTEjN^CING  maxima  IX  S.   14  37  ARE  STILL  UiS^ACCEPTABLY  0\'ERLOXG 

The  liari^h  sonteuciusr  provisions  and  extended  prison  terms  mandated  by  S.  1 
were  ^harjily  criticized  by  authoritative  commentators.  Reviewing  these  heavy 
imprisonment  maxima,  the  National  Council  on  Crime  and  Delinquency  observed, 
for  example,  that.  "Unless  one  talces  pride  in  a  swollen,  expensive,  wasteful 
pri.son  system.  Chapter  23  [of  S.  1  of  the  94th  Congress]  requires  serious  re- 
con.sideration."  Senote  Judiciary  Suhcoininittce  Hearings  on  S.  1,  Part  XII.  at 
182.  A(.'LTJ  noted  that.  "S.  1  sets  harsh,  retributive  .sentences  for  many  crimes," 
and  that,  further  "The  sentencing  schemes  of  S.  1  are  skewed  in  favor  of  long- 
term  prison  sentences,  despite  the  overwhelming  recommendation  of  jienologists 
aiid  lawyers  who  have  studied  the  correctional  system  that  sentences  instead  be 
sharply  reduced."  JlcarinffS,  Part  XII.  at  208. 

The  American  Friends  Service  Committee,  New  York  Metropolitan  Region,  de- 
clared in  an  analysis  of  S.  1  that : 

"The  sentencing  provisions  run  directly  counter  to  every  reform  proposal  of 
recent  years,  including  several  federal  commissions  and  the  American  Bar  Asso- 
ciation, calling  for  lower  sentences  and  reduced  diBcretion.  S.  1  combines  high 
maximum  sentences  with  mandatory  or  optional  add-on  sentences.  As  Struggle 
for  Justice  points  out,  long  sentences  do  not  deter  or  rehabilitate;  they  embitter 
hiunan  beings  and  destroy  their  lives.  Tliis  is  known  to  anyone  who  has  been 
imprisoned  and  to  most  corrections  officials." 

The  alarming  ferocity  of  the  sentencing  provisions  of  the  last  Congress'  S.  1 
have  Iteen  somewhat  modified  by  changes  made  as  a  restilt  of  compromise.  There 
has  i)een  some  lowering  of  mandatory  minimum  sentences  and  the  maximum  sen- 
tences for  lesser  felonies.  This  is  made  clear  bv  the  following  tabular  compari- 
son between  S.  1,  S.  1437,  and  H.R.  2311. 

SENTENCING  PROVISIONS— AUTHORIZED  TERMS  (MAXIMUIVI) 
S.  1  S.  1437  H.R.  2311 

Felony: 

Class  A Life  or  any  part Life  or  any  period  of  time 15  yr. 

Class  B 30  vr 25  yr 7yr. 

Class  C 15  yr 12  yr 4  yr. 

Class  D 7yr 6  yr 2  yr. 

Class  E 3  yr Syr No  corresponding  felony  classifi- 
cation. 
Misdemeanor: 

Class  A 1  yr 1  yr 1  yr. 

Class  B 6  mo 6  mo 6  mo. 

Class  C -  30  days 30  days 30  days. 

Infraction 5  days 5  days No  corresponding  infraction  classi- 
fication. 

Rome  examples  of  maximum  sentences  provided  by  S.  1437  are  the  following : 
Class  A  felonies:  Trea.son,  murder,  sabotage,  and  kidnapping. 

Class  B  felonies:  Armed  rebellion,  aircraft  hijacking,  racketeering,  and  traf- 
ficking in  an  opiate. 

Class  C  felonies:  Impairing  military  effectiveness,  bribery,  manslaughter,  rape, 
burglary.  robl)ery.  and  counterfeiting. 

Class  D  felonies:  Perjury,  sexual  as.sault,  using  a  weaiwn  in  the  course  of  a 
crime,  gambling,  and  attacking  a  foreign  power. 

Class  E  felonies:  01)scenity,  graft,  obstructing  an  election,  impersonating  an 
official  and  entering  a  foreign  armed  force. 

In  sharp  contrast,  under  S.  204.  no  period  of  imprisonment  may  be  imposed  in 
excess  of  five  years,  except  for  the  offenses  of  murder,  manslaughter,  forcible 
rape,  aircraft  hijacking,  kidnapping  or  treason,  or  any  attempt  or  aiding  or 
abetting  of  such  offenses. 

It  should  l)e  noted  that  in  all  otlier  Western  countries,  the  period  of  incarcera- 
tion is  much  shorter,  with  no  increase  in  the  public  danger.  Cf.  Justus  Freimund, 
Director.  Action  Service  Division,  National  Council  on  Crime  and  Delinquency, 
Hearings.  Part  XIT.  at  18.5. 

The  ABA  Standards  for  Sentencing,  §  3.1(d)  provide  that  "for  most  of- 
fenses .  .  .  the  ninximimi  authorized  prison  term  ouglit  not  to  exceed  ten  years 
except  in  unusual  cas(\s  and  normally  should  not  exceed  five  years",  with  sen- 
tences of  twenty-five  .vears  or  longer  "reserved  for  particularly  serious  offenses 
or  .  .  .  for  certain  particularly  dangerous  offenders." 


9395 

Even  as  revised,  tbe  sentencing  maxima  provided  in  Sec  2301(b)  of  S.  1437 
clearlv  exceed  tlie  ABA  Standards  for  Sentencing  so  far  as  Felony  Uas>,es  A,  B, 
and  C  are  concerned,  and  exceed  tliose  same  standards  witli  respect  to  Class  D 
felonies  insofar  as  the  ABA  Standards  provide  that  authorized  prison  terms 
'•normally  should  not  exceed  five  years."  S.  204  has  been  drafted  in  conformance 
with  the  ABA  Sentencing  Standards.  S.  1437  has  not  been  so  drafted  even 
though  the  original  savagery  of  S.  1  has  been  somewhat  alleviated.  Accordingly, 
it  still  fails  to  correct  the  valid  criticisms  made  of  S.  1  by  the  ABA  {Hearings, 
Part  XI  p  377),  by  the  Association  of  the  Bar  of  the  City  of  ^ew  York  {Hear- 
ings, Part  XI,  at  7765,  by  the  Special  Committee  on  S.  1  of  the  CaUfornia  St&te 
Bar  Association,  and  by  other  prestigious  national  groups  which  were  quoted 
in  Point  II  of  this  memorandum. 

The  sentencing  maxima  in  S.  1437  are  still  unreasonably  and  unacceptably 
long,  and  violate  the  ABA  Standards  for  Sentencing. 

VIII.   THE  FINES   PROVIDED   BY   S.    14  37   ARE  EXCESSIVELY   HEAVY  AND   HABSII 

A.  Existing  law 

Existing  federal  criminal  laws  tend  to  have  fines  between  $500  and  $1,000  for 
misdemeanors  and  $10,000  to  $25,000  for  felonies. 

B.  Fine  provisions  of  8.  lltSl 

S.  1437  would  provide  fines  for  the  individual  of  $100,000  for  a  felony,  $10,000 
for  a  misdemeanor  and  $1,000  for  an  infraction,  and  in  the  case  of  an  organiza- 
tion defendant,  for  a  felony  $500,000,  for  a  misdemeanor  $100,000,  and  for  an 
infraction  $10,000  (Sec.  2201(b).  S.  1  had  identical  fines.  Pl.R.  2311  would  impose 
upon  an  individual  defendant  fines  as  follows :  For  a  felony  $100,000,  for  a  mis- 
demeanor $10,000,  for  an  infraction  $500;  and  in  the  case  of  an  organization, 
for  a  felony  $500,000,  for  a  misdemeanor,  $10,000,  and  for  an  infraction,  $5,000. 
Sec.  2201(b)  of  H.R.  2311. 

In  addition,  S.  1437  provides  that  fine  may  be  set  not  to  exceed  twice  the  gain 
obtained  or  loss  imposed.  Sec.  2201(c).  H.R.  2311  similarly  provides.  Sec.  2201(c) 
of  H.R.  2311. 

The  Special  Committee  of  the  California  State  Bar  Association  recommended 
against  the  adoptions  of  the  fine  provisions  in  S.  1.  Since  those  provisions  have 
been  retained  in  S.  1437  intact,  its  disapproval  continues  to  have  validity. 

This  authoritative  committee  of  the  California  State  Bar  Association  anal- 
yzed the  Fine  provisions  of  S.  1  (and  therefore  of  S.  1437)  as  follows  (App. 
M-9— M-10  of  Committee  Report)  : 

"Although  the  financial  sanction  is  a  positive  one,  it  does  give  the  appearance 
that  criminal  conduct  can  be  'bought  off.'  Although  a  large  financial  fine  may 
appear  to  be  a  heavy  burden  for  an  individual,  it  may  not  in  fact  be  a  serious 
burden  for  a  corporate  financial  organization.  The  fine  could  be  a  serious  eco- 
nomic threat  to  the  positive  efforts  at  rehabilitation  of  a  defendant  on  proba- 
tion. The  statute  does  not,  but  should  clearly,  spell  out  that  a  person  financially 
unable  to  pay  the  fine  at  the  time  of  sentence  should  not  be  subject  to  a  fine, 
for  this  economic  burden  would  seriously  tax  future  Uvelihood  of  the  defendant 
when  he  may  need  to  make  a  new  start  in  life.  Such  sanction  is  far  less  impor- 
tant than  the  positive  re-integration  of  the  defendant  into  society  as  a  produc- 
tive member.  The  principles  set  forth  in  Williams  v.  Illinois,  339  U.S.  235  (1970), 
and  Tate  v.  Short,  401  U.S.  395  (1971),  that  an  indigent  cannot  be  confined  be- 
cause of  his  impecunious  status  should  be  clearly  articulated  in  this  proposed 
legislation.  Also,  the  creation  of  a  lien  for  an  unpaid  fine  will  create  an  un- 
necessary burden  that  would  probably  injure  the  credit  of  someone  seeking  to 
enter  into  or  continue  in  legitimate  business.  The  cost  of  maintaining  the  ac- 
countabiUty  of  the  lieu  system  (§3813)  might  exceed  the  total  of  the  tines  re- 
couped, esjiecially  in  cases  involving  small  fines.  The  lien  unnecessarily  burdens 
transfer  of  property  and  unfairly  impunges  the  credit  standing  of  defendants 
and  those  that  may  be  dependent  upon  them." 

In  addition  the  fine  itself  may  clearly  have  a  chilling  effect  upon  the  exercise 
of  constitutionally  guaranteed  freedoms,  particularlv  with  respect  to  such  pur- 
portedly Contempt  offenses,  as  Sec.  1331,  Criminal  Contempt,  Sec.  1332,  Failing 
to  Appear  as  a  Witness.  Sec.  1333,  Refusing  to  Testify  or  to  Produce  Informa- 
tion. Sec.  1334,  Obstructing  a  Proceeding  by  Disorderly  Conduct,  and  Sec.  1335, 
Disobeying  a  Judicial  Order.  Imposition  of  a  fine  against  an  individual  of 
$100,000  for  a  felony,  and  $10,000  for  a  misdemeanor  is  a  potent  legal  weapon 
to  coerce  compliance  with  an  order  not  having  legal  validity.  There  is  a  potential- 


9396 

ity  of  a  similar  chilling  eftVt-t  uiwu  the  exercise  of  the  right  to  strike,  coii- 
laiiied  ill  the  moditicatiou  of  the  Hobhs  Act  (Extortion,  Sec.  172li)  if  an  am- 
bitious riiited  States  Attorney  can  successfully  claim  that  violence  in  a  labor 
dispute  ("threatened  or  feared",  p.  118  of  S.  1437)  was  not  "minor"  or  can  he 
chiimed  not  to  be  "incidental  to  peaceful  picketing  or  other  concerted  activity  in 
the  course  of  a  bona  tide  labor  dispute."  A  similar  chilling  effect  results  from 
the  imposition  of  a  heavy  tine  against  labor  unions  and  their  members  from  a 
charge  that  a  labor  dispute  violated  Sec.  17U3,  the  blackmail  section,  where  there 
was  a  dispute  over  a  closed  shop,  cf.  Sec.  17L*3(a)(3).  or  put  an  employer 
in  fear  that  his  property  would  be  subjected  to  '•economic  loss  or  injury  to  his 
business  or  profession"'  (precisely  what  all  strikes  and  laltor  disputes  are  all 
about,  as  the  sanction  interposed  by  labor). 

A  si>ecitic'  instance  of  how  tlie  bill.  S.  1437,  carries  forward  intact  a  surreptitious 
attack  upon  civil  liberties  is  provided  by  Sec.  1333.  dealing  with  Kefusing  to 
Testify  or  to  Produce  Information,  inter  alia  "in  an  otticial  proceeding  that  is 
conducted  under  the  authority  of  Congress  or  of  either  House  of  Congress."  This 
is  penalized  as  a  Class  E  felony  (Sec.  1333, (f),  p.  72  of  S.  1437).  Thereby,  the 
penalty  foa*  refusal  to  cooperate  with  congressional  committees,  e.g.,  the  Senate 
Internal  Security  Subcommittee,  is  increased  from  one  year  in  prison  and  a 
thousand-dollar  fine  as  provided  by  present  law  to  three  years  and/or  one 
hundred  thousand  dollars  fine. 

This  one  example  (and  others  could  readily  be  cited)  puts  into  proper  focus 
the  euphemistic  claim  made  by  Senator  McClellan  in  introducing  S.  1437  that 
'•!).")  ]>er  cent  of  the  bill  has  been  noncontroversial  and  *  *  *  it  contains  many 
provisions  w^hich  are  universally  recognized  to  be  clear  and  substantial  im- 
provements." Cong.  Rec,  May  2, 1977,  S  6834,  3rd  column. 

IX.  S.  1437  CLEARLY  DISFAVORS  PROBATION 

.a..  Existing  law 

Under  existing  law,  the  district  judge  may  grant  probation  if  the  ends  of 
justice  will  be  satisfied  and  the  best  interest  of  the  public  as  well  as  the  de- 
fendant will  be  served  thereby.  The  defendant  may  be  placed  on  probation  on 
such  terms  and  conditions  as  the  court  deems  best.  For  any  offense  for  which 
tlie  maximum  imprisonment  is  more  than  six  months,  other  than  death  or  life 
iiu])risonment,  the  court  may  impose  the  sentence  and  provide  that  up  to  six 
months  be  spent  in  a  jail-type  facility  (i.e..  the  so-called  "split  sentence")  and 
•suspend  the  remainder  of  the  sentence  and  place  the  defendant  on  probation  or 
l)lace  the  defendant  on  probation  subject  to  certiiin  conditions.  The  ixn-iod 
■of  probation  is  limited  to  five  years.  18  U.S.C.  §  3651. 

Ji.  Corresponding  provisions  of  S.  1437,  %2101-2W6.  301G.  3S01-38U). 

Under  S.  1-137,  the  period  of  probation  for  a  felony  would  not  be  less  than 
■one  and  not  more  than  five  years.  For  a  misdemeanor  it  would  not  be  more  than 
two  years,  and  for  an  infraction  not  more  than  one  ycMr.  Probntir  n  is  denied 
where  (1)  the  offense  is  a  Class  A  felony,  (2)  the  olTeiise  is  one  for  which  pro- 
h;ition  has  been  expressly  precluded  :  or  (3)  the  defendant  is  sentenced  at  the 
same  time  to  a  term  of  imprisonment  for  the  same  or  a  dltlerent  offense.  Sec 
2101  (a)  and  (b). 

Sec.  2102(a)  dealing  with  factors  to  be  considered  in  iniiiosing  ii  term  of  iiro- 
li;ition  provides  that.  "The  court,  in  determining  whellicr  to  imjiose  a  term  of 
priibation.  and,  if  a  term  of  prob.-ition  is  to  be  imposed,  in  determining  tlie  length 
■of  the  term  and  the  conditions  of  probation  shall  consider  the  f.-ictors  set  forth  in 
section  2003(ia)  to  the  extent  that  they  are  apjilicable."  (  Enii)h!isis  supplied). 
This  clearly  gives  no  preferential  consideration  to  probation.  Conditions  of 
proli.ition  nre  spelled  out  in  great  detail.  Sec.  2103  (pp.  172-173).  S.  1437  has 
the  term  of  jirobation  run  concurrently  with  parole  or  other  term  of  jirobation 
<  Sec.  2104(b)),  except  that  it  does  not  run  during  any  period  in  which  the 
defendant  is  imprisoned  in  connection  with  a  conviction  for  a  federal,  state  or 
locnl  crime.  Sec.  2104(b).  A  feloiiv  probation  imist  siiend  at  least  one  vear  on 
probatiim.  Sec.  204(c). 

The  provisions  contained  in  Sec.  2102(a)  that,  in  determining  whether  iiro- 
1'ation  is  to  be  granted  and  if  so,  its  t(>rms.  the  district  court  "shall  consider 
the  factors  set  forth  in  section  2003(a)  to  the  extent  that  thev  are  api)licable" 
is  in  actuality  a  <'aution  to  th(>  court  that  lu-obation  should  be  tlie  exception 
rather  than  the  rule.  This  is  in  keeping  with  the  la w-and-onler  apiiroach  wliich 
S.  1  137  carries  on  virtually  intact  from  S.  1.  Clearly,  probation  is  not  favored 
in  S.  1-137,  any  more  than  it  was  in  the  predecessor  liill.  S.  1.  It  aiijiears  almost 


9397 

as  "a  second  choice.  '"The  Si)ecial  Committee  on  S.  1  of  tlie  California  State  Bar 
Association  reconnnended  against  the  probation  provisions  of  S.  1  "because  seri- 
ous aspects  of  probation  have  not  been  in-oixn-ly  dealt  with.  "Comniittee  Report, 
App.  :\I-11.  The  criticism  remains  valid,  and  the  probation  provisions  of  S.  1437 
should  similarly  be  rejected  by  the  Congress. 

These  provisions  are  flatly  inconsistent  with  the  ABA  Standards  for  Probation. 
Standard  §  1.8(a)  provides:  "Probation  should  be  the  sentence  unless  the  sen- 
tencing court  finds  that:  (1)  confinement  is  necessary  to  protect  the  public  from 
further  criminal  activity  by  the  offender  ;  or  (ii)  the  offender  is  in  need  of  correc- 
tion treatment  which  can  most  effectively  be  provided  if  he  is  confined  ;  or  (iii)  it 
\\  ould  unduly  depreciate  the  seriousness  of  the  offense  if  a  sentence  of  probation 
were  imposed."  Section  3101(a)  of  the  Brown  Commission  so  provided.  The 
American  Bar  Association  approved  this  provision  of  the  Brown  Commission.  It 
rejected  Section  2102  of  S.  1  because  it  "does  not  have  any  such  presumption  in 
favor  of  probation."  Hearings,  Part  XII.  at  377.  Here  again  we  are  afforded  a 
startling  confirmation  as  to  how  euphemistic  is  the  claim  that  "95  percent  of  the 
bill  has  been  noncontroversial."  See  McClellan,  Cong.  Rec.  May  2,  1977,  S.  6834, 
3d  Column. 

In  the  sharpest  possible  contrast  with  S.  1137,  H.R.  2311  provides  the  essential 
prcsiiiiiptiOH  in  favor  of  prohation.  Sec.  2302  of  H.R.  2311  thus  provides  :  "A  term 
of  imiH-isonment  shall  not  be  imposed  luiless  the  court  finds  that  a  sentence  of 
probation  is  inappropriate  under  section  2101(b)." 

S.  1-J37  thus  deliberately  turns  its  back  upon  the  reconunendations  of  prestigi- 
ous bar  associations  and  the  best  thinking  of  penologists  a  virtual  presumption 
against  the  grant  of  probation  rather  than  in  favor  of  such  grant.  This  is  done 
despite  the  Brown  Commission's  finding  that  "probation  is  likely  to  be  the  most 
effective  form  of  sentence  in  a  great  many  cases."  Working  Papers,  (of  Brown 
Commission),  vol.  II  at  1268.  For  the  patent  bias  of  S.  1437  in  favor  of  a  law-and- 
order  appron<'h  toward  pro))ation.  see  this  writer's  expi-ession  of  views  elsewhere. 
Crystal,  the  Propo.^cd  Federal  Criminal  Justice  Act  of  1975:  Senteneing — Law  and 
Order  With  a  Vengcanee,  7  Seton  Hall  Law  Rev.  at  42-49.  This  writer  there  con- 
cluded (p.  -^9)  in  words  which  have  continuing  applicability  to  S.  1437: 

"S.  1  [read  S.  1137]  disregards  the  progressive  and  enlightened  approach 
recommended  by  the  Brown  Coumiission,  the  American  Bar  Association,  and  the 
American  Law  Institute.  Nowhere  does  it  place  suitable  emphasis  on  the  positive 
qualities  of  probation.  It  does  not  require  federal  sentencing  judges  to  consider 
the  propriety  of  probation  before  imp')sing  a  harsher  sentence.  *  *  *  The  S.  1 
approach  does  little  more  than  encourage  the  storage  of  human  beings.  Penological 
experience  has  demonstrated  the  unlikelihood  that  imprisonment  serves  any  sort 
of  rehabilitative  purpo.se.  Since  the  rehabilitative  value  of  imprisonment  has  yet 
to  be  demonstrated,  the  "storage  of  offenders'  approach  to  corrections  embodied  in 
S.  1  [and  still  embodied  in  S.  1437]  is  without  justification.  This  policy  can  only 
result  in  persistently  high  crime  rates  and  excessive  penal  system  costs." 

A  particularly  indefensible  provision  applicable  to  prol)ation  is  that  subsection 
of  S^c.  2003 (  a  )  (2)  whidi  retpiires  the  court,  in  considering  the  particular  sentence 
to  !)e  imposed,  to  weigh  the  need  for  the  sentence  imposed  "(D)  to  provide  the 
defendant  with  needed  educational  or  vocational  training,  medical  care,  or  other 
correctional  treatment  in  the  most  effective  manner."  This  is  a  profoundly  imfair 
and  even  racist  provision  carried  into  S.  1437  from  the  predecessor  bill.  S.  1.  This 
Subcommittee  has  previously  been  advised  of  the  inequity  and  gross  unfairness  of 
this  provision.  A  statement  of  Melvin  L.  Wulf,  T>egal  Director,  American  Civil 
Liberties  Union,  on  behalf  of  ACLU,  stated  (Hearings.  Part  XII,  at  210  : 

"Section  2102  instructs  a  judge,  in  granting  probation,  to  consider  the  need"  to 
provide  the  defendant  with  educational  or  vocational  training,  medical  care,  or 
other  correctional  treatment  in  the  most  effective  manner."  Such  factors  only  rein- 
force the  criminal  justice  system's  discrimination  against  the  poor,  the  sick,  and 
the  uneducated.  The  constitiTtional  guarantees  of  due  process  and  equal  protection 
of  the  law  require  courts  to  weigh  evenly  the  claims  of  rich  and  poor,  skilled  and 
unskilled.  Freedom  from  imprisonment  and  the  chance  to  try  again  should  not 
depend  on  an  absence  of  past  suffering.  'Effective'  provision  of  job  training  and 
medical  care  in  most  cases  does  not  require  isolation  of  the  offender  from  the 
community  in  which  he  will  ultimately  have  to  learn  to  live.  The  Congress  should 
legislate  to  provide  the.se  services  outside  of  prison,  instead  of  incarcerating  people 
just  to  obtain  them.  S.  1  [read  S.  1437]  similarly  stacks  the  decision-making  proc- 
ess against  the  granting  of  parole  and  fails  to  provide  for  a  preference  to  parole 
over  continued  imprisonment.  Yet  parole,  like  probation,  can  be  crucial  in  encour- 


9398 

aging  offenders  to  establish  law-abiding  lives.  See  Morrissey  v.  Breiver,  40S  U.S. 
471,  484  (1972)." 

The  tilting  of  the  scales  against  probation  in  S.  1437  is  completely  indefensible 
in  the  light  of  what  has  been  learned  about  community  programs  and  diversion  to 
the  community  representing  the  most  encouraging  approach  toward  achieving 
rehabilitation.  The  probation  provisions  of  S.  1437  accordingly  merit  rejection  by 
the  Congress,  as  the  authoritative  national  organizations  heretofore  cited,  make 
plain  beyond  dispute. 

X.    S.    1437    VIRTUALLY   ABOLISHES    PAROLE 

With  respect  to  parole  ineligibility,  the  revision  of  S.  1  to  convert  it  into 
S.  1437  has  resulted  in  substantially  weakened  provisions  relating  to  a  de- 
fendant's entitlement  to  parole. 

S.  1  provided  in  Sec.  2301(d)  : 

"(d)  Authorized  terms  of  parole  ineligibility. — The  authorized  terms  of  im- 
prisonment for  felonies  that  may  be  required  to  be  served  prior  to  eligibility  for 
parole  are  not  more  than  one-fourth  the  term  of  imprisonment  authorized  by 
subsection  (b)  [of  section  2301  of  S.  1],  or  by  subsection  (c)  if  an  extended 
term  is  imposed,  or  ten  years,  whichever  is  less.  For  a  misdemeanor  or  an 
infraction,  no  term  of  parole  ineligibility  may  be  required  to  be  served." 
(Emphasis  supplied). 

S.  1437  goes  far  beyond  S.  1  in  this  regard  and  virtually  abolishes  parole  by 
providing  that  a  term  of  parole  ineligibility  may  be  set  at  %o  of  the  sentence 
imposed.  This  is  achieved  by  Sec.  2301  (c)  of  S.  1437,  providing  : 

"(c)  Authorized  terms  of  parole  ineligibility. — The  authorized  terms  of  im- 
prisonment that  may  be  required  to  be  served  prior  to  eligibility  for  parole  is 
any  term  found  appropriate  by  the  court  in  light  of  the  provisions  of  section 
2302(b),  but  no  term  of  parole  ineligibility  may  extend  into  the  last  one-tenth 
of  the  sentence  imposed." 

Thus,  where  in  S.  1,  the  prisoner  was  eligible  for  parole  after  having  served 
one-fourth  of  his  sentence,  he  may  now  be  barred  from  eligibility  for  parole 
until  he  has  served  %o  of  his  sentence.  This  converts  sentencing  into  actuality 
into  mandatory  niininuim  sentencing  at  %o  of  tlie  full  sentence,  and  is  a  startling 
ivorscniui/  of  the  already  too  harsh  sentencing  provisions  of  S.  1.  Once  again  one 
is  compelled  to  question  the  accuracy  of  the  claim  that  do  percent  of  S.  1437  is 
non-controversial.  McClellan,  Conr/.  Rcc,  May  2,  1977,  at  S.  GS34  (3d  column). 

By  contrast.  II.R.  2311  authorizes  a  minimum  term  of  imprisonment,  with- 
out entitlement  to  parole,  for  C1af(S  A  or  B  fcJouics  only,  of  up  to  one-third  of 
the  prison  term  actually  imposed.  ( Sec.  2301  (c)  of  II.R.  2311 ) . 

The  same  striking  differences  exist  between  S.  1437  and  II.R.  2311  with  respect 
to  the  criteria  to  be  applied  by  the  Parole  Commission  in  granting  parole. 

Under  S.  1437  (Sec.  2302(b)),  the  court  is  mandaled  to  consider  the  factors 
set  forth  in  section  2003 (a)  to  tlie  extent  that  tliey  are  applicable.  As  earlier 
noted  in  consideration  of  tliese  criteria,  i)arole  is  permissible  if  the  court  does 
not  provide  for  parole  ineligibility.  A  prisoner  may  be  released  from  imprison- 
ment on  i)arole  by  the  Parole  Commission  if  "having  regard  for  the  guidelines 
and  any  pertinent  policy  statements  concerning  parole  issued  by  the  Sentencing 
Commission  pursuant  to  28  U.S.C.  994(f),  the  [Parole]  Commission  is  of  the 
opinion  that : 

"(1)  his  release  at  that  time  is  consistent  with  the  applicable  factors  that  led 
to  the  imposition  of  his  particular  sentence  under  the  provisions  of  part  III  of 
this  title; 

"(2)  tlierc  is  no  undue  risk  that  he  will  fail  to  conform  to  such  conditions  of 
parole  as  would  be  warranted  under  the  circumstances  ;  and 

"(3)  his  release  at  that  time,  in  light  of  his  conduct  at  the  institution,  would 
not  have  a  substantially  adverse  effect  on  institutional  discipline."' 
(Sec.  3831(c)). 

Reference  in  Sec.  .3.8:',t(c)  dealing  witli  criteria  for  release  to  the  gfiidolines 
(contained  in  Sec.  2003(a))  requires  that  the  Parole  Commissicm  consider 
whether  the  prisoner's  release  on  parole  complies  with  the  statutory  need  for 
such  release  not  to  interfere  witli  or  impede  (1 )  adecpinte  deterrence  to  criminal 
conduct.  (2)  protection  of  the  public  from  further  crimes  of  tlie  defendant^ 
(3)  reflection  of  tbe  seriousness  of  tlie  defense,  promotion  of  respect  for  law^ 
and  jirovision  of  just  iiunishment  for  tiie  offense,  and  (4)  provision  for  the  de- 
fendant of  needed  educational  or  vocational  training,  medical  care,  or  other 
correctional  treatment  in   the  most  effective  manner.  The  prior  discussion  of 


9399 

the  invalidity  of  these  law-ancl-order  criteria  with  respect  to  probation  and  its 
denial  applies  equally  here.  Moreover,  these  are  the  criteria  as  they  are  set 
forth  in  the  main  body  of  S.  1437. 

The  Sentencing  Commission  which  is  to  be  established  by  Chapter  58  of  S.  1437 
is  mandated  to  establish  in  its  term  guidelines  applicable  to  both  the  district 
court's  determination  of  whether  to  consider  parole  ineligibility  and  for  how 
long  a  period  (Sec.  994,  pp.  302-303)  and  for  controlling  the  exercise  of  discre- 
tion by  the  Parole  Commission  (which  already  exists  in  law)  (Sec.  994(f)) 
(p.  304).  This  power  given  to  the  Sentencing  Commission  provides: 

"(f)  The  Commission,  by  vote  of  a  majority  of  the  members,  and  pursuant  to 
its  rules  and  regulations  and  consistent  with  all  pertinent  provisions  of  this  title 
and  title  18,  United  States  Code,  shall  promulgate  and  distribute  to  the  United 
States  Parole  Commission : 

"(1)  guidelines  consistent  with  those  promulgated  pursuant  to  section  (a)  (1) 
of  this  section  for  use  of  the  United  States  Parole  Commission  in  determining 
whether  to  parole  a  prisoner  and  in  determining  the  length  of  the  term  and  con- 
ditions of  parole ;  and 

"(2)  general  policy  statements  regarding  application  of  the  guidelines  or  any 
other  aspect  of  parole  that  in  the  view  of  the  Commission  would  further  the 
purposes  set  forth  in  section  101(b)  of  title  18,  United  States  Code  [i.e.,  Section 
101(b)  of  S.  1437,  p.  12)]." 

The  analysis  previously  made  of  the  Sentencing  Commission  and  of  the 
manner  it  is  to  be  appointed  (by  the  Judicial  Conference)  has  made  it  clear 
that  this  is  a  surreptitious  way  of  turning  effective  control  of  all  sentencing  policy, 
including  that  relating  both  to  parole  and  to  proliation,  to  a  secret,  luiresponsive 
group  of  top  federal  judges  dominated  by  Chief  Justice  Warren  Burger.  As 
there  indicated,  it  is  gross  abdication  of  constitutional  responsibility  for  Con- 
gress to  delegate  to  a  group  of  judges,  dominated  by  the  titular  head  of  a 
Supreme  Court  majority  that  has  severely  eroded  constitutional  protections 
through  its  rigid,  repressve  decisions,  power  to  make  binding  national  policy 
on  parole,  probation,  and  sentencing.  "When  this  vast  grant  of  power  to  the 
Judicial  Conference  and  its  chairman.  Chief  Justice  Burger,  is  contemplated  in 
the  lifflit  of  the  already  retrogressive  guidelines  set  forth  in  the  main  body  of 
S.  1437.  it  becomes  clear  that  S.  1437  presents  this  country  with  a  grave  con- 
stitutional problem.  The  seemingly  innocuous  power  to  appoint  the  membership 
of  the  Sentencing  Commission  granted  to  the  Judicial  Conference  by  Sec.  991 
of  Chapter  58  (p.  301)  is  in  actuality  a  grant  of  power  to  make  national  policy 
on  virtually  all  of  sentencing,  and  thereby  makes  the  .Judicial  Conference  the 
ultimate  determinant  of  the  sentencing  policy  of  this  coiuitry,  even  though  that 
power  constitutionally  rests  in  Congress  and  the  executive  department,  includ- 
ing the  President. 

There  are  other  serious  criticisms  to  be  made  of  the  parole  provisions  of  S.  1437. 
Parole  is  auomatically  added  to  the  sentence,  rather  than  included  in  it,  as 
nov^r  (Sec.  2303).  If  parole  is  revoked,  the  parolee  can  be  returned  to  prison  and 
ordered  to  serve  the  term  of  his  original  sentence  minus  the  portion  of  the 
original  sentence  served  in  confinement  prior  to  the  parole.  Sec.  3835(g)  (p.  272). 
It  should  be  noted  that  violating  a  condition  of  parole  (Sec.  38.35  (a)  and  (b)) 
can  be  a  non-criminal  act  such  as  failing  to  .stay  away  from  an  old  hangout, 
quitting  school  or  discontinuing  medical  treatment. 

A  sentence  to  imprisonment  for  a  felony  or  a  Class  A  misdemeanor  under 
S.  1437  automatically  incudes  a  separate  term  of  parole.  This  term  shall  be  set 
by  the  Parole  Commission,  having  regard  for  the  guidelines  and  ix)licy  state- 
ments of  the  Sentencing  Commission.  For  a  Class  A  or  Class  B  felony,  the  term 
shall  be  not  less  than  one  year  nor  more  than  five  years ;  for  Class  C,  not  less 
than  one  year  nor  more  than  five  years;  for  Class  C,  not  less  than  one  year  nor 
more  than  three ;  for  Class  D,  not  less  than  one  year  nor  more  than  two  for 
Class  E,  not  less  than  six  months  nor  more  than  one  year;  and  for  a  Class  A 
misdemeanor,  not  less  than  three  months  nor  more  than  six  months.  Sec.  3834(b) 
of  S.  1437. 

A  sentence  to  imprisonment  also  automatically  includes  a  separate  contingent 
term  of  imprisonment  of  ninety  days  in  the  case  of  a  felony,  or  thirty  days  in 
the  case  of  a  felony,  or  thirty  days  in  the  case  of  a  Class  A  misdemeanor,  v.hich 
must  be  served  in  the  event  of  a  recommitment  for  violation  of  a  condition  of 
parole  and  the  remaining  unserved  portion  of  the  offender's  sentence  is  less  than 
ninety  days.  Sec.  2303  (p.  178). 

If  a  term  of  parole  ineligibility  is  not  set  by  the  court,  the  Parole  Commis- 
sion shall  consider  the  parole  of  a  prisoner  sixty  days  before  he  will  complete 

92-46.3 — 77 53 


9400 

the  service  of  one-fonrth  of  the  term  of  imprisonment  or  tlie  first  year  of  the  term 
of  imprisonment,  whichever  is  earlier  (and  provided  that  he  is  serving  a  prison 
term  greater  than  a  year).  If  iiarole  is  denied,  the  Parole  Commission  shall  re- 
con.sider  in  one  or  two  years.  The  parole  criteria  have  already  been  set  out  in  this 
statement. 

The  limitation  of  parole  exemplified  by  S.  1437  is  in  actuality  a  menus  of 
surreptitiously  achieving  mandatory,  minimum,  "presumptive"  sentences  the 
leiijifh  of  which  are  to  be  effectively  set.  not  l»y  Congress  but  instead  by  operation 
of  the  guidelines  to  be  established  by  the  Sentencing  Commission  compo,sed  of 
designees  of  the  Judicial  C(mference.  We  are  dealing  here  basically  with  a  system 
of  automatic,  mandatory  sentences.  This  needlessly  eliminates  exercise  of  dis- 
cretion and  individualization  of  sentencing  by  the  district  judge.  Once  a  defend- 
;nt  is  committed,  it  needlessly  eliminates  Parole  Commission  discretion.  Parole 
(and  probation,  as  well  as  other  uon-imprisonment  sentences)  should  be  available 
for  almost  all  crimes,  according  to  the  nature  of  the  defendant  as  revealed  by  a 
competent  presentence  report. 

What  is  l)eing  souglit  here  is  equality  of  sentences.  However,  there  is  a  false 
equality  being  sought  here.  Sameness  and  uniformity  are  totally  different  from 
equality.  Identical  sentences  imposed  on  two  quite  different,  disparate  defendants 
do  not  achieve  equality  :  they  ignore  important  differences. 

Oiie  uKiy  proi>erly  inquire:  What  is  the  purpose  of  restricting  parole  to  the 
vanishing  point,  as  S.  1437  does?  ( S.  204,  Section  11  completely  abolishes  parole). 
Concededly,  investigation  of  prison  conditions  has  resulted  in  fault  having 
been  found  with  parole  systems.  However,  obviously,  abolition  of  parole  does 
not  cure  its  defects,  and  equally  clearly  prevents  u.se  of  its  sound  advantages.  The 
m;iin  defect  of  parole,  as  utilized,  has  been  failure  to  give  due  attention  to  the 
suitability  of  prisoners  for  release.  Restricting  grant  of  parole  to  the  vanishing 
point,  or  doing  away  with  it  altogether,  does  not  cure  illibei'ality ;  it  does  not 
permit  liberality  at  all.  The  principal  victims  here  are  the  prisoners. 

Congress  has  a  non-delegable  responsibility  to  make  policy  in  this  important 
field.  The  impatient  attempt  to  achieve  determinate  sentencing  exemplified  by 
S.  1437  takes  exactly  the  wrong  course.  As  noted  in  the  next  section,  there  should 
be  more  relea.se  of  prisoners  to  the  community,  not  less.  No  harm  is  done,  and 
u.seful  individualization  is  maintained.  If  an  effective  correctional  apparatus 
exists  for  early  conditional  release.  This  can  properly  be  done  by  the  Parole 
Conniiission.  and  by  parole  boards.  They  should  be  strengthened  ruther  than 
being  eliminated. 

The  United  States  Supreme  Court  has  recognized  that  "the  practice  of  releasing 
prisoners  on  parole  before  the  end  of  their  sentences  has  become  an  integral  part 
of  the  penological  system."  Morrissey  v.  Brewer,  408  U.S.  471.  477  (1912),  The 
purpo.se  of  parole  is  to  serve  as  an  intermediate  step  in  the  reintegratiiui  of  con- 
victed offenders  into  society  without  requiring  that  sentences  of  imiirisoinnent 
be  fully  served.  S.  1437  goes  far  beyond  even  S.  1  in  unduly  exteiuling  the  periml 
of  time  for  wliicli  the  Government  may  inqiose  its  domination  and  control  over 
offenders  by  i)roviding  that  a  term  of  parole  shall  be  an  automatic  add-on  to  a 
term  of  imprisonment  in  certain  cases,  by  permitting  (b'liial  of  parole  until  9/10 
of  the  .sentence  has  been  served,  and  by  giving  the  i)roii()Si>d  Sentencing  Conunis- 
sion  power  to  impose  unduly  restrictive  standards  on  the  discretion  of  th(>  Parole 
Commission  to  release  a  prisoner  t)n  parole  prior  to  the  expiration  of  his  sentence. 
See  Cry.stal,  The  Proposed  Federal  Criiitiiiiil  -liistiee  Aet  nf  1915:  Sevteiiriiifii — 
Lair  and  Order  With  a   Venncanee,  7  Setim  Hall  Law  Rev.  at  (i3-70.  As  noted 
there  for  S.  1   (and  S.  1437  is  even  worse  in  inq)ortant  respects  than  S.  1)  the 
net  effect  of  this  propo.sed  federal  criminal  code  so  far  as  parole  is  concerned 
is  to  limit  iuireasonai)ly  the  opportunity  of  a  nondangerous  offender  to  obtain 
l)arole  i»rior  to  the  expiration  of  his  prisoner  term.  therel)y  limiting  his  aliility 
to   reintegrate   into   the   coninnuiity.   This   is   flatly   at   odds  with   the   wise   and 
.seiisilile  pi-ovisioii   of  the   lirown  Connnission  that  "release  should   lie  favored 
unless  some  public  purpose  was,  in  the  oiunion  of  the  Parole  Board,  served  by 
detention."  See  Sc-hwartz.  The  Proposed  Federal  Criiniiial  Code.  17  Crim.  !>.  Rep. 
3203.3204  (197.1). 

Xr.  S.  14:t7  tlNWISKI.Y  TUKNK  ITS  I!A(  Fv  ITOX  UOPKFT'I.  INXOVATIOXS  IX  PEX'OLOGY, 
IXCI.T-OTNG  PROK.VTIOX  AM)  KARLY  RELEASE  TO  OR  DIVERSION  OF  THE  OFFENDER  TO 
THE  COMMUNITY   VXDER  SKILLED  SUPERVISION 

The  approach  taken  toward  sentencing  in  S.  1437  is  simplistic  and  probably 
unworkable.  It  abandons  h<tpe  fur  motivating  the  convicted  nfl'ender  to  rehabili- 
tate himself,   and  settles  for  the  punitive  tactic  of  incarcertaion  for  a  fixed, 


9401 

detenniiiate  term  the  illusory  concept  of  "deterreuce"  and  use  of  the  sentence 
for  the  supposed  fear-creating  values  of  (Sec.  2003  (a)(2)  (C))  "to  reflect  the 
seriou.sness  of  the  offense,  to  promote  respect  for  law.  and  to  provide  just  punish- 
ment for  the  offense."  In  so  doing,  it  reflects  a  disillusioned  view  reflected  to  some 
extent  in  the  literature  dealing  with  sentencing,  probation,  and  parole,  but  which 
nevertheless  minimizes  the  creative  types  of  sentencing  that  do  offer  hope  for 
rehabilitation  and  a  lessening  of  recidivism  for  a  significant  number  of  those 
convicted  of  breaking  the  law. 

The  concepts  of  determinate  sentencing,  lessening  or  ending  of  parole,  and  the 
other  "tough"  views  of  sentencing  exemplified  by  S.  1437  did  not,  of  course,  come 
from  nowhere.  ( )ne  important  source  for  these  views  is  the  book  by  Judge  Marvin 
E.  Fraukel,  Criminal  sentences:  Laic  Without  Order,  Hill  and  Wang,  New  York, 
1973).  These  views  have  been  summarized  in  two  important  articles  by  Richard 
A.  McGee,  president  of  the  American  Justice  Institute,  Sacramento,  California  : 
A  Ncir  Look  At  .SentcnciiKj,  Part  I  38  Federal  Probation,  No.  2,  June  1974,  pp.  3-8; 
A  New  Look  at  ^Sentenciny,  Part  II,  38  Federal  Probation,  No.  3,  September  1974, 

pp.  3-11. 

Nevertheless,  despite  these  views  (which  must  be  regarded  as  minority  views), 
penological  experts  do  not  have  the  hoi)eless,  vindictive  point  of  view  toward 
offenders  which  is  exemplified  in  actuality  by  S.  1437  (even  though  some  of  its 
proponents,  including  Senator  Kennedy  will  disclaim  any  such  intention). 

Thus,  Judge  Lawrence  W.  Pierce,  U.S.  District  Judge,  Southern  District  of 
New  York,  in  a  keynote  address  delivered  August  12,  1973,  at  the  Annual  Meeting 
of  the  American  Correctional  Association,  Seattle,  Washington  (38  Federal 
Probation,  June  1974,  No.  2,  pp.  14-23)  expressed  hope  and  confidence  that 
rehabilitation  and  lessening  of  recidivism  is  possible,  albeit  not  in  prison.  He 
told  his  audience : 

"I  propose  that  we  consider  shorter  prison  sentences  for  offenders  who  are 
convicted  of  crimes  which  do  not  involve  violence  or  acts  of  moral  turpitude :  I 
proposed  that  we  consider  yet  another  use  for  the  isolated  rural  prisons  that 
dot  the  landscape  in  most  of  our  states;  and  I  propose  that  we  consider  an 
implciueutation  of  the  community-based  center  concept  structured  on  a  truly 
noncoercive  basis." 

Speaking  from  his  vast  expertise  as  a  distinguished  federal  district  judge,  and 
addressing  himself  without  illusions  to  the  problem  of  the  dangerous  offender  (a 
problem  fully  recognized  by  this  writer),  Judge  Pierce,  after  having  urged  ex- 
paniled  use  of  the  community-based  center  concept  of  correction,  stated  (38  Fed- 
eral Probation  at  18 : 

"Now,  clearly  there  are  serious  questions  to  be  raised  with  respect  to  such  an 
ai)p roach  : 

■(  ll  The  most  glaring  problem  is  the  dangerous  offender.  Any  person  w^ho  has 
demonstrated  through  his  prior  acts  that  he  is  a  danger  to  others  has  to  be 
incapacitated.  Accurate  identification  of  such  persons  is  the  core  of  the  prob- 
lem *  *  *  Sufl3ce  it  to  say  as  I  have  indicated  that  the  greater  number  of  persons 
sente:;ced  to  prison  iu  a  given  year  are  convicted  of  nonviolent  crimes — as  many 
as  90  licrcent  of  our  Federal  offenders  sent  to  prison  and  63  percent  of  those  sent 
to  State  prison.  It  is  from  among  these  offenders  that  one  would  expect  to  find 
prime  candidates  for  this  approach. 

"(2)  A  major  problem  would  lie  gaining  community  acceptance  of  community- 
base  centers.  This  will  not  come  easily,  I  am  one  of  a  handful  of  administrators 
who  can  make  that  statement  from  firsthand  knowledge,  having  presided  over 
the  .setting  up  of  one  of  the  first  major  community-based  center  networks  in  the 
country.  A  great  deal  will  depend  upon  a  judicious  selection  of  sites,  skillful 
community  organization  work  to  promote  understanding  of  the  purposes  of  the 
centers,  and  careful  screening  out  of  those  offenders  who  would  be  likely  to  ful- 
fill the  dire  predictions  which  are  certain  to  be  made.  And  it  must  he  acknowl- 
edged that  even  with  the  best  of  .screening,  mere  assignment  to  such  a  program 
is  certaiidy  in  and  of  itself  not  going  to  convert  convicted  offenders  into  model 
citizens  any  more  than  present  correctional  efforts  do." 

Other  experts  have  expressed  similar  views.  The  President's  Commission  on 
Law  Enforcement  and  the  Administration  of  Justice  conducted  in  1972  one  of 
the  most  comprehensive  studies  ever  made  on  the  American  correctional  system. 
Community-based  programs,  the  Commission  concluded,  were  by-and-large  le.' 
costly  than  institutional  incarceration  and  usually  at  least  as  effective  in  reduc- 
ing recidivism  and  in  some  cases  significantly  more  .so.  See  Claude  Pepi^er 
Chairman,  Select  Committee  ou  Crime.  T".S.  ITonse  of  Renresentatives.  36  Fed 
eral  Prol)atioii.  December  1972.  No.  4,  34.  Congressman  Pepper  called  for  pro 


ss 


9402 

bation  in  lieu  of  incarceration  (p.  5),  for  parole  supervision  (p.  6),  for  halfway 
house  use  (p.  7),  work  release  (p.  7),  and  for  other  innovative  and  creative 
methods  of  motivating  the  offender  to  be  law-abiding. 

For  other  explanations  of  the  vital  role  which  diversion  of  offenders  to 
community-based  programs  will  have,  see,  e.g.,  Robert  M.  Carter,  Director,  Cen- 
ter of  the  Administration  of  Justice,  University  of  Southern  California.  Los 
Angeles,  The  Diversion  of  Offenders,  36  Federal  Probation,  December  1972,  No.  4, 
pp.  31-36:  John  M.  Pettibone,  Director,  Division  of  Parole  and  Probation,  Mary- 
land Department  of  Public  Safety  and  Correctional  Services,  Community -Based 
Programs,  Catching  Up  With  Yesterday  and  Planning  for  Tomorrow,  37  Federal 
Probation,  September  1973,  No.  3,  pp.  3-6. 

In  an  important  policy  statement,  the  Board  of  Directors,  National  Council 
on  Crime  and  Delinquency,  strongly  recommended  that  the  nondaugerous  offender 
should  not  be  imprisoned.  21  Crime  &  Delinquency  315-322  (October  197"),  No.  4). 
The  NCCD  there  urged  diversion  of  the  nondaugerous  offender  to  community- 
based  programs  (pp.  318-319).  For  other  helpful  articles,  see  Sol  Ilubiu,  Pro- 
bation or  Prison:  Applying  the  Principle  of  the  Least  Restrictive  Alternative, 
21  Crime  &  Delinquency,  jip.  331-336  (1075)  :  David  Gilnian,  Counsel,  National 
Council  on  Crime  and  Delinquency.  The  Sanction  of  Improvement:  For  Whom, 
for  What,  and  How,  pp.  337-347  (1975). 

These  hopeful,  innovative  programs  offer  the  way  out  of  the  nation's  dilemma 
about  w'hat  to  do  about  crime.  They  should  be  re.sorted  to.  It  is  here  that  hope 
for  curbing  crime  through  use  of  sentencing  and  the  correctional  apparatus 
truly  lies. 

The  mandatory  minimum  sentences  imposed  in  accordance  with  guidelines 
to  be  established  by  a  Sentencing  Commission  retiecting  the  views  ultimately  of 
the  Judicial  Conference  and  the  conference's  chairman,  Chief  Justice  Warren 
Burger,  offers  at  most  a  temporary  stop-gap.  Certain  offenders,  admittedly,  will 
be  taken  out  of  circulation  in  the  community  for  a  certain  period  of  time.  Eco- 
nomic conditions  will  inevitably  create  other  troubled  human  beings  in  the  same 
pool  of  sociological  problems.  And  meanwhile,  those  who  are  incarcerated  and 
subjected  to  the  only  "solution"  offered  by  S.  1 — simply  "storage"  in  prisons — 
will  be  subjected  to  the  lessons  to  be  learned  in  those  prisons  described  in  1967 
in  this  conclusion  by  the  President's  Commission  of  Law  Enforcement  and  tlie 
Administration  of  Justice : 

"Life  in  many  institutions  is  at  best  barren  and  futile,  at  worst  unspeakably 
brutal  and  degrading.  To  be  sure,  the  offenders  in  such  institutions  are  incapaci- 
tated from  committing  further  crimes  while  serving  their  sentences,  but  the 
conditions  in  which  they  live  are  the  poorest  possible  preparation  for  their  suc- 
cessful reentry  into  society,  and  often  merely  reinforce  in  tlieni  a  pattern  of 
manii)ulation  or  destructiveness."  (President's  Commission  on  Law  Enforcement 
and  Administration  of  Justice,  The  Challenge  of  Crime  in  a  Free  Society.  Wash- 
ington, U.S.  Government  Printing  Office.  1978,  1967.  p.  159:  quoted  in  Pepper, 
Prisons  in  Turmoil,  3(>  Federal  I'robation  3  (Dec.  1972,  No.  4). 

It  is  futile  and  illusory  to  expect  that  a  prison  sentence,  even  one  of  determi- 
nate length,  or  one  pursuant  to  a  mandatory  minimum  sentence  in  accordance 
with  Sentencing  Commis.sion  guidelines  and  directive.s.  will  change  the  sucepti- 
Itility  toward  criminal  conduct  by  one  exposed  to  these  brutalizing  conditions. 

XIT.  TIIKRE  IS  DEXIAT,  OF  PROCEDURAL  DUE  PROCESS  OF  LAW  AND  VIOLATION  OF  OTIIEK 
RIGHTS  OF  DEFENDANTS  IN  PERJIITTING  THE  GOVERNMENT  TO  APPEAL  THE  LENGTH 
OF  SENTENCES 

Section  3725,  p.  257,  gives  either  the  defendant  or  the  government  the  right  to 
fde  an  appeal  challenging  the  final  sentence  imposed  for  a  sentence.  Tliis  is  a 
commendable  improvement  over  existing  law  so  far  as  tlie  right  of  the  defendant 
to  appeal  a  sentence  is  concerned.  It  is  quite  otlienvi.^e  where  the  new  right  given 
the  government  is  conceriu'd.  The  government  has  this  right  under  Sec.  3725(b) 
"if  tlie  sentence  includes  a  fine  or  a  term  of  imiirisonment  or  a  term  of  parole  in- 
(>ligibility  lower  tlian  tlie  minimum  estal)lishe(l  in  tlie  guidelines  that  are  issued 
by  tlie  S''nten'-iiig  Commission. 

H.R.  2311  iiroperly  permits  only  an  appeal  hy  the  defendant  of  a  sentence 
(Sec.  3725).  The  defendant  may  so  appeal  regardless  of  the  fractional  nmount  of 
the  maximum  authorized  sentence  which  luis  been  imjiosed.  Further,  under  H.R. 
2.'^>1 1  an  appellate  conrt  m.'iy  not  increase  the  s(>ntence.  The  stnndard  of  review 
under  Sec.  3725(c)  is  whetlier  the  sentence  is  "excessive,  having  regard  for  (1) 
the  nature  and  circumstances  of  the  offense  ami  tlie  history  and  characteristics 


9403 

of  tbe  defendant ;  (2)  the  purposes  of  sentencing  required  to  be  considered  *  *  * 
and  (3)  the  opportunity  of  the  district  court  to  observe  the  defendant." 

Tile  writer  lias  elsewhere  re\iewed  the  constitutional  problems  raised  by  this 
right  to  be  given  the  government  to  appeal  the  length  of  sentence.  These  include 
questions  of  double  jeopardy,  see,  e.g..  Ex  parte  Langc,  S.j  U.S.  (18  Wall.)  163 
(1874),  as  well  as  the  potentiality  for  retaliatory  cross-appeal  by  the  govern- 
ment, made  as  a  matter  of  course,  whenever  convicts  seek  review  of  their  sen- 
tences. This  clearlj'  coistitutes  a  deprivation  of  due  process  by  chilling  a  convict's 
exeroi.se  of  his  right  to  appeal.  See,  Crystal,  The  Proposed  Federal  Criminal  Jus- 
tiee  Act  of  1975:  Sentencing — Laiv  and  Order  With  A  Vengeance,  7  Seton  Hall 
Law  Rev.  at  70-80. 

XIII.     SENTENCING    DISPARITY    MAY    BE    REMEDIED    WITHOUT    ABANDONING    CREATIVE 
METHODS    OF    SENTENCING    AFFORDING    HOPE    FOR    REHAHILITATION 

There  is  no  challenge  made  here  that  disparity  in  sentencing  calls  for  significant 
changes  to  be  made  in  our  sentencing  procedures.  That  unmistakable  fact  does 
not  justify,  however,  the  regressive  approach  taken  in  S.  1437  which  would  aban- 
don virtually  all  innovative,  creative  methods  of  .sentencing  (albeit  lip  service 
is  paid  to  these  methods,  e.g..  Sec.  991(b)  (1)  (C)  directing  the  Sentencing  Com- 
mission to  establish  sentencing  policies  and  practices  which  will,  inter  alia, 
"reflect,  to  the  extent  practicable,  advancement  in  knowledge  of  human  behavior 
as  it  relates  to  the  criminal  justice  process." 

There  is  clearly  room  for  modifying  the  elements  in  existing  sentencing  prac- 
tice which  make  for  disparity  in  sentencing  : 

"There  is  a  so-called  'indefinite'  sentence  with  a  maximum  fixed  by  the  judge 
and  an  automatic  one-third  of  that  maximum  for  parole  eligibility.  Or,  there  is 
a  so-called  'indeterminate'  sentence,  the  judge  fixing  both  minimum  and  maximum 
Third  choice — the  judge  may  fix  the  maximum  and  provide  that  there  shall  be 
no  minimum.  Fourth — commitment  for  the  maximum  allowable  by  law,  subject 
to  a  study  and  return  to  court  for  possible  reduction  of  the  term.  Then  if  the 
defendant  is  under  26  years  of  age  there  are  several  more  choices.  There  are  few 
if  any  states  with  such  a  variety  of  forms  of  commitment."  (Sol  Rubin,  "Federal 
Sentencing  Problems  and  the  Model  Sentencing  Act",  41  Federal  Rules  Decisions 
f506,  at507, 1967). 

Unquestionably,  tliei-e  is  value  in  establishing  a  Sentencing  Commission  (pro- 
vided its  members  are  appointed  by  the  President  with  the  advice  and  consent  of 
the  Senate,  thereby  assuring  democratic  control  over  the  Commission  rather  than 
being  made  part  of  the  judiciary  and  designated  by  the  Judicial  Conference  as  is 
unwisely  provided  in  S.  1437).  Such  a  democratically  appointed  and  established 
Commission  could  establish  a  uniform  system  of  sentences  to  eliminate  the  con- 
tending varieties  now  existing  in  the  federal  .system.  However,  it  should  and  must 
lessen  sentence  variability  without  going  to  the  other  extreme  so  as  to  achieve  an 
illusory  and  false  uniformity.  Each  defendant  has  a  different  background  to  be 
evaluated  by  the  district  court's  expertise  aided  by  efficient  pre-sentencing  re- 
ports. Individualization  of  sentencing  must  be  permitted  to  continue.  The  ABA 
Standards  make  clear  that  the  norm  should  not  be  imprisonment.  There  should 
be  full  utilization  of  community-release  and  other  hopeful  programs  where  the 
defendant  is  nondangerous.  The  bias  which  S.  1437  shows  in  favor  of  determinate 
sentencing  required  to  be  served  without  probation,  parole,  release  to  a  com- 
munity-based program,  or  other  correctional  alternative  to  imprisonment  is  unwise 
and  should  be  rejected. 

S.  1437  plainly  and  unmistakably  exhibits  excessive  zeal  to  reject  hopeful 
concepts  of  creative  and  innovative  sentencing.  The  concept  of  imprisonment 
which  is  basic  to  the  sentencing  structure  of  S.  1437  is  in  actuality  a  retreat  to 
the  mistakes  of  the  past.  Conceding  readily  that  the  dangerous  offender  requires 
imprisonment,  one  must  demand  explanation  why  community-based  programs 
which  do  offer  a  hope  for  rehabilitation  of  the  non-violent  offender  are  so  com- 
pletely minimized  in  the  sentencing  philosophy  that  permeates  S.  1437.  AVhen 
the  specific  sentencing  provisions  of  S.  1437  are  analyzed,  they  come  down  to 
no  more  than  determinate  sentencing,  mandatory  minimum  sentences,  and  severe 
(and  unjustified)  restrictions  upon  the  grant  of  probation  and  parole.  Just  as  the 
child  in  Hans  Christian  Anderson's  tale  of  the  Emperor's  New  Clothes  saw  with 
clear  vision  (and  said  so  publicly)  that  the  emperor  was  naked,  so  it  must  be 
stated  with  candor  that  S.  1437  offers  little  in  its  sentencing  scheme  other  than 
incarceration  of  offenders  under  guidelines  to  be  established  by  appointees  of  a 


9404 

Judicial  Conference  dominated  by  Chief  Justice  Warren  Burger.  The  decisions 
of  the  Burger  Court  majority  which  have  virtually  raped  the  Constitution  and 
have  precipitously  retreated  from  the  decisions  of  the  Warren  Court  protecting 
the  legal  rights  of  defendants  in  criminal  trials  stand  as  ominous  omens  of  the 
hardiif)sed  guidelines  for  sentencing  which  may  reasrmably  be  expected  to  be 
promulgated  by  a  Sentencing  Commission  appointed  and  created  in  Warren  Bur- 
ger's image. 

Admittedly,  the  claims  made  for  the  Sentencing  Coramis.sion  and  the  emo- 
tional impact  upon  a  populace  fearful  of  street  crime  to  be  assured  that  criminal 
offenders  will  go  to  pi'ison  for  determinate  sentences  will  have  political  advan- 
tage. That  is  hardly  a  valid  reason  for  justification  of  a  federal  criminal  code 
that  demonstrably  turns  its  back  on  virtually  all  advances  made  in  penology 
and  correction.  It  appears  clear  that  a  legitimate  concern  about  disparity  in 
.sentencing  is  being  skillfully  manipulated  to  minimize  or  reject  hand-won  lessons 
that  diversion  of  the  offender  to  carefully  supervised  community  programs  offers 
real  hope  for  winning  the  offender  away  from  a  life  of  crime  and  recidivism. 

The  innumeralile  fallacies  inherent  in  the  sentencing  .scheme  of  S.  1437  become 
readily  apparent  when  the  correct  questions  are  asked.  What  happens  to  unclog- 
ging  the  already  overcrowded  courts,  particularly  the  appellate  courts  in  the 
federal  judiciary,  if  there  is  to  be  appeal  of  any  sentence  exceeding  the  Sentencing 
Commis.sion  giiidelines?  Either  the  courts  will  be  flooded  with  appeals  and  further 
clogged,  or  the  district  courts  will  be  coerced  into  abandoning  individual  sen- 
tencing and  appraising  the  likelihood  of  rehabilitation  of  the  particular  defend- 
ant, and  imposing  instead  the  sentence  coming  within  the  Sentencing  Commission 
standards.  That  will  of  necessity  mean  that  the  Sentencing  Commission  becomes 
the  ultimate  arbiter  of  sentencing  in  the  federal  system,  and  that  it  will  be  the 
Sentencing  Commission,  not  Congress,  which  makes  iwlicy  in  this  important  area 
of  criminal  law.  Can  there  be  economy  in  prison  costs  if  incarceration  (another 
term  for  simple  storage  of  human  beings)  is  to  be  the  norm  for  non-violent  as 
well  as  violent  offenders?  Are  we  to  engage  in  an  ever-increasing  program  of 
building  prisons  to  house  the  inmates  sent  to  prison  to  meet  the  S.  1437  and 
Sentencing  Commission  guidelines  of  Sec.  2003(a)(2)(C) — the  claimed  need  of 
the  sentence  "to  reflect  the  seriousness  of  the  offense,  to  promote  respect  for 
law,  and  to  provide  just  punishment  for  the  offense"? 

Is  this  not  simply  the  law  and  order  approach  voiced  by  former  President 
Richard  M.  Nixon,  who  decried  the  "sense  of  permissiveness"  that  characterize*! 
America  in  the  IDGO's  and  who  contended  that  "the  only  way  to  attack  crime  in 
America  is  the  way  crime  attacks  our  people — without  pity."? 

And  is  effective  control  of  the  ^?ntoncing  policies  of  this  country  to  be  dele- 
gated to  the  ai)pointees  of  a  secret,  all-powerful  group  of  jurists  chaired  and 
dominated  by  a  chief  justice  who  has  presided  over  a  Supreme  Court  majority 
which  hns  steadily  dismantled  the  constitutional  protections  laboriously  erected 
by  the  Warren  Court  V 

It  appears  clear  that,  desjiite  the  overwhelming  pul)lic  opposition  that  ))locked 
enactment  of  Senate  Bill  No.  1  in  the  last  Congress,  there  is  now  an  attempt 
l)eing  made  to  form  a  wholly  impi-obable  alliance  between  liberals  and  consei'va- 
tives  hinder  the  claim  of  compromise  of  oi>posing  positions)  that  will  in  aclualit.v 
effectively  surrender  meaningful  power  over  sentencing  policies  to  Chief  Justice 
Burger  and  a  Supreme  Court  majority  whose  restrictive  views  of  constituti<uial 
rights  have  l>y  now  been  made  shockingly  iilain  to  those  who  value  constitutional 
freedoms. 

Professor  Car(»le  E.  Coldberg  of  UCLA's  Law  Scliool,  Co-Chairperson  of 
Southern  California  ACLUs  National  Legislation  Committee,  has  warned  that 
S.  1437  is  "fraught  with  serious  omissions,  uncertainties,  deferrals,  lost  oppor- 
timities,  and  reductions  in  civil  liberties,"  Those  sime  defects  permeate  the 
sentencing  provisions  of  tlie  bill. 

XIV.     THF:     PROVISTOXS     FOK     JIUI/nPI.E     SENTENCES     OF     I^rPRIS0NMENT 

Sec.  2304.  dealing  with  mul1ii)l(>  sentences  of  imprisonment,  provides  that 
where  niullii)le  terms  of  imprisonment  are  imposed  on  a  defendant  at  the  same 
time,  or  where  a  term  of  imprisonment  is  imi)osed  on  a  defendant  who  is  already 
subject  to  an  tuidi.scharged  term  of  imju-isonment,  the  terms  may  run  concur- 
rently or  consecutively,  except  that  the  terms  ma.v  not  run  consecutivel.v  (1)  if 
the  offense  consists  of  a  Cbiii)ter  10  offense   (criminal  contempt,  criminal  con- 


9405 

spiraov  or  criminal  solicitation,  and  another  offense  that  was  the  sole  objective 
of  the  attempt,  conspiracy  or  solicitation,  and  (2)  for  an  oftense  mvolviug  a 
violation  of  a  general  prohibition  and  for  an  offense  involving  a  violation  of  a 
specific  prohibition  encompassed  within  the  general  prohibition. 

Multiple  terms  of  imprisonment  run  concurrently  unless  the  court  affirma- 
tivelv  orders  otherwise.  If  multiple  terms  of  imprisonment  are  ordered  to  run 
consecutively  and  included  terms  of  parole  ineligibility  also  run  concurrently. 
It  the  terms'  are  ordered  to  run  consecutively,  the  maximum  aggregate  term 
may  not  exceed  the  maximum  authorized  term  for  an  offense  one  class  higher 
than  that  of  the  most  serious  offense  of  which  the  defendant  was  convicted. 
/  s^PP  '^304 (c) ) 

"sec."2304  of  H.R.  2811  while  closely  paralleling  Sec.  2304  of  S.  1347,  does  never- 
theless vary  in  important  resi^ects,  most  notably  the  fact  that  it  does  not  in 
every  instance  permit  aggregation  of  all  offenses  to  create  a  maximum  term  one 
class  higher  than  the  most  serious  offense  for  which  the  defendant  was  con- 
victed. As  explained  by  Congressman  Kastenmeier,  setting  forth  the  terms  of 
the  predecessor  House"  bill.  H.R.  10850.  a  person  found  guilty  of  two  or  more 
Class  C  felonies  may  be  sentenced  to  the  maximum  authorized  for  a  Class  B 
felony  //  each  offense  was  committed  as  part  of  a  different  course  of  conduct  or 
if  each  involved  a  substantially  different  criminal  objective.  Class  D  felonies 
may  be  similarly  aggregated  to  the  maximum  authorized  for  a  Class  C  felony, 
and  Class  A  misdemeanors  may  be  aggregated  to  the  maximum  authorized  for 
a  Class  D  felony.  No  other  offenses  are  subject  to  aggregation  beyond  the 
maximum  authorized  for  the  most  serious  offense  involved.  This  approacli  was 
recommended  by  the  Brown  Commission.  See,  Kastenmeir,  Cong.  Record,  Feb- 
ruary 24,  1976,  H  1275 ; H.R. 2304(c). 

The  criteria  imposed  by  S.  1438  on  courts  in  determining  whether  consecu- 
tive or  concurrent  sentences  should  be  imposed  are  the  same  harsh  criteria  used 
in  determining  the  lengths  of  sentences  and  the  appropriateness  of  probation, 
i.e.,  Sec.  2304(b)  dealing  with  factors  to  be  considered  mandates  the  district 
court  to  consider  the  factors  set  forth  in  Section  2003(a).  Here  again,  the 
court  is  referred  to  criteria,  which  include  the  "need  ...  to  reflect  the  serious- 
ness of  the  offense,"  and  to  "promote  respect  for  law"  (Sec.  2003(a)(2)(C)). 
These  fail  sufficiently  to  restrain  federal  courts  from  aggregating  sentences  to 
the  point  of  injustice.  See  Crystal,  The  Proposed  Federal  Criminal  Justice  Act 
of  1975:  Sentencing — Law  and  Order  With  a  Vengeance,  7  Seton  Hall  Law  Rev. 
at  49-52. 

It  is  the  ABA's  position  that  "[c]onsecutive  sentences  are  rarely  appropriate. 
(ABA  Project  on  Minimum  Standards  for  Criminal  Justice,  Standards  Relating 
to  Sentencing  Alternatives  and  Procedures.  §3.4 (b)    (Approved  Draft  1968). 

Such  sentences  can  ordinarily  only  be  justified  in  cases  involving  habitual 
offenders  because  of  the  risk  such  offenders  pose  to  the  public. 

It  should  also  be  noted  that,  in  addition.  Section  1823(b)  of  S.  1437  over- 
rides the  discretion-granting  provisions  of  Section  2304  by  compelling  the  im- 
position of  consecutive  sentences  for  any  other  term  of  imprisonment  imposed 
upon  the  defendant,  unless  the  defendant  meets  specified  criteria,  i.e.,  that  at 
the  time  of  the  offense  he  was  under  eighteen  years  of  age :  his  mental  capacity 
was  significantly  impaired  although  not  sufficiently  to  constitute  a  defense  to 
prosecution ;  he  was  under  unusual  or  substantial  duress,  although  not  sufii- 
cient  duress  to  constitute  a  defense  to  prosecution  or  he  was  an  accomplice, 
the  conduct  constituting  the  offense  was  principally  the  conduct  of  another  per- 
son;  and  his  participation  was  relatively  minor  (Sec.  1823(a),  p.  157). 

S.  1437  is  wholly  remiss  in  its  failure  to  limit  by  statute  cumulative  sentencing 
to  only  those  truly  exceptional  cases  where  the  protection  of  the  public  requires 
the  long-term  sequestration  of  an  offender.  Under  no  circumstances  should  the 
sentencing  be  mandatory,  viz..  Sec.  1823(a).  S.  1437  is  deficient  in  this  impor- 
tant aspect  of  sentencing. 

XV.   SURREPTITIOUS   OVERRIDING  OF  FEDERAL  TOUTH   CORRECTIONS   ACT  BY  S.    1437 

One  of  the  far  from  obvious  booby-traps  of  S.  1437  is  that  it  effectively  over- 
rides the  Federal  Youth  Corrections  Act  of  1950  (IS  U.S.C.  5005-5026).  The 
Sentencing  Commission  is  given  power  to  make  guidelines,  including  consider- 
ation of  the  age  of  the  offender.  Sec.  994(d)  (1)  et  seq.  of  Chapter  58  of  S.  1437. 
The  bill  does  not  include  the  Federal  Youth  Corrections  Act,  so  that  it  appears 


9406 

clear  that  the  Sentencing  Commission  provisions  will  preempt  the  earlier  Fed- 
eral Youth  Corrections  Act. 

The  latter  act,  adopted  in  1950,  was  one  of  the  great  experiments  in  federal 
sentencing.  It  was  initiated  to  provide  "treatment  and  supervision"  rather  than 
imprisonment  for  youthful  offenders  committed  to  the  Attorney  General.  18 
U.S.C.  5005-5026.  See  also,  Dorszynski  v.  Unitea  States,  418  U.S.  424  (1974). 
The  Great  experiment  has  not  worked  as  well  as  was  hoped,  but  it  nevertheless 
does  permit  some  specialized  consideration  and  even  possible  treatment  for 
youthful  offenders,  a  person  under  the  age  of  22  years  at  the  time  of  conviction 
(18  U.S.C.  5005(e)),  and  such  treatment  can  even  he  extended  to  persons  who 
have  not  yet  obtained  their  26th  birthday  at  the  time  of  conviction  (IS  U.S.C. 
4209).  This  is  of  particular  importance  since  the  unemployment  of  youth,  par- 
ticularly of  minority  youth  in  the  Inner  Cities,  is  a  disturbing  cause  of  crime. 
A  youthful  offender  may  be  granted  probation  or  sentenced  to  an  indefinite 
term  of  confinement  not  to  exceed  four  years'  custody  followed  by  two  years' 
special  parole  which  could  in  effect  be  a  total  of  six  years'  confinement.  Tlie 
average  sentence  now  spent  by  a  jierson  under  the  Federal  Youth  Corrections 
Act  is  approximately  18  to  24  months  in  confinement.  The  Special  Committee 
on  S.  1  of  the  California  State  Bar  Association  observed  that  because  of  the 
inadequate  Bureau  of  Prisons'  facilities,  these  youths  are  not  isolated  and  are 
handled  with  the  general  adult  prison  population.  (It  may  be  noted  that  since 
homosexual  abuse  of  young  prisoners  is  a  problem  in  a  prison  community  this 
presents  a  serious  threat).  The  committee  further  noted  that  one  very  serious 
defect  of  this  legislation  is  that  it  can  be  applied  to  a  misdemeanor  offense  as 

well  as  a  felony.   United  State.9  v.  Lcming,  F.  2d  (9th  Cir.  1975)  : 

United  States  v.  LaRue.  F.2d  (9th  Cir.  1975).  The  committee  found 

the  principal  asset  of  this  important  legislation  to  be  a  provision  for  a  certifi- 
cate to  set  aside  conviction  upon  completion  of  the  expiration  of  sentence 
or  completion  of  probation.  18  U.S.C.  5021.  The  certificate  setting  aside  sentence 
has  somewhat  dubious  effect  on  state  law.  However,  it  has  given  an  important 
advantage  for  legally  admitted  alien  residents  who  have  been  involved  in  a 
narcotics  transaction  involving  a  small  amount  of  narcotics.  These  defendants 
have  been  granted  an  exception  to  the  general  rule  requiring  automatic  deporta- 
tion for  trafficking  in  narcotics.  In  Tatum  v.  United  States,  310  F.2d  8.54  (D.C. 
Cir.  1962).  the  court  (which  included  Chief  Justice  (then  Circuit  Judge)  Berger 
as  a  member  of  the  panel)  held  that  such  a  certificate  was  an  expungement  and 
better  than  a  pardon.  If  the  Federal  Youth  Corrections  Act  is  permitted  to  be 
utilized,  the  future  may  witness  achievement  of  the  beneficial  Congressional 
purpose  in  enacting  this  important  statute. 

However,  S.  14.37  (like  its  predecessor  bill,  S.  1)  completely  eliminates  the 
provisions  for  the  Federal  Youth  Corrections  Act. 

Considering  the  legal  effect  of  the  failure  of  S.  1  to  provide  for  continuation 
of  the  Federal  Youth  Corrections  Act.  the  Special  Committee  on  S.  1  of  the 
California  State  Bar  Association  advised  that  Association  that  its  opinion  and 
recommendation  on  this  issue  was  as  follows  : 

"In  light  of  the  Draconian  range  of  penalities  in  S.  1.  the  provisions  of  the 
Federal  Youth  Corrections  Act  merely  affords  an  option  to  the  sentencing  .nidcre 
who  may  impose  tlie  regular  sentence.  IS  U.S.C  5010fd).  The  oliiiiination  of  this 
worthwhile  legislation  for  youthful  offenders  is  a  serious  deficit,  and  no  alterna- 
tive for  youthful  offenders  is  a  .serious  deficit,  and  no  alternative  is  offered  by 
S.  1.  The  Committee  recommends  against  the  sentencing  provision  of  S.  1  for 
failure  to  include  such  a  provision." 

The  recommendation  has  continuing  validity.  Xo  more  tbnu  S.  1  did  dnes 
S.  14.37  provide  for  continuation  of  this  iiniovative  and  creative  legislation  wliich 
affords  real  hojje  for  youth  which  has  come  into  conflict  with  the  criminal  law 
s.vstem.  Instead,  this  legi.slation  is  obviously  to  be  subsumed  into  the  lurisdiction 
of  the  Sentencing  Commission.  And  once  again,  it  becomes  clear  that  the  ultimate 
determination  is  to  lie  made  by  aupointees  of  a  .Tndicinl  Conference  eontrolled 
and  dominated  by  Chief  Justice  Warren  Burger,  and  who  can  be  Itandpickod  to 
reflect  his  views,  similarly  to  the  manner  in  which  the  four  Xixon  annointees 
on  the  Supreme  Court  were  carefull  chosen  by  that  disgraced  former  President 
to  represent  his  "strict  construction"  views  of  law  and  the  Constitution. 

C0NCT.USI0N 

The  foregoing  analysis  has  attempted  to  deal  in  some  depth  with  the  major 
sentencing  provisions  of  S.  1437.  Of  equal  importance,  it  lias  .sought  to  confront 


9407 

the  underlying  sentencing  philosophy  of  this  omnibus  proposed  federal  criminal 
code.  What  has  turned  up  in  instance  after  instance  has  been  retrogression,  over- 
kill, zeal  for  imprisonment,  and  a  harsh,  retributive  sentencing  philosophy  totally 
at  odds  with  the  approach  v^hich  holds  out  real  hope  for  an  end  to  the  vicious 
cycle  of  arrest,  incarceration,  release  to  the  streets  without  hope  of  employment 
or  inner  motivation,  recidivism,  and  re-arrest  and  re-iuearceration. 

There  is  nothing  wrong  with  the  concept  of  assured  punishment  as  a  deterrent, 
but  the  bias  and  prejudices  which  permeates  S.  1437,  just  as  it  did  S.  1,  is  for 
retribution,  revenge,  simple  storage  and  incarceration  of  law  breakers,  and  an 
unfounded  hope  that  such  imprisonment  will  somehow  teach  the  offender  a  lesson, 
or  at  least  "reflect  the  seriousness  of  the  offense,"  "promote  respect  for  law"  and 
"provide  just  punishment  for  the  offense."  Sec.  2003(a)  (2)  (C).  Simple  imprison- 
ment has  not  worked  in  the  past.  S.  1437  offers  no  real  hope  it  will  work  in  the 
future.  The  sentencing  provisions  of  S.  1437  are  simplistic  and  bottomed  essen- 
tially upon  the  premise  that  the  crime  problem  of  this  country  will  somehow  be 
alleviated  if  enough  persons  are  incarcerated.  The  approach  is  self-defeating. 
Existing  prisons  can  be  filled  past  capacity  (inviting  a  future  Attica).  More 
prisons  can  be  built  (and  undoubtedly  will  be  if  S.  1437  becomes  law).  Yet  so 
long  as  the  mechanical  concept  of  false  unformity  implicit  in  S.  1437,  and 
equally  so  in  the  Sentencing  Commission  it  envisages,  are  accepted  as  guidelines 
for  sentencing  policy  in  the  federal  criminal  law  system,  there  will  be  no  real 
alleviation  of  the  problem  of  crime.  The  difficulty  is  that  there  is  a  seemingly 
inexhaustible  supply  of  fresh  candidates  for  incarceration  in  the  federal  (and 
state)  prisons  and  jails  as  long  as  the  social  problems  that  are  the  root  causes  of 
crime  remain  unsolved. 

There  is  no  disagreement  here  with  the  wisdom  of  incarceration  for  a  long 
prison  term  of  the  truly  dangerous  offender.  Society  must  be  adequately  protected. 
However,  that  is  not  what  S.  1437  limits  itself  to.  All  offenders  are  to  be  swept 
up  in  its  mechanical,  juggernaut  approach.  The  all-powerful  Sentencing  Com- 
mission is  to  establish  guidelines.  The  overwhelming  probability  is  that  those 
guidelines  wiU  reflect  the  harsh,  vindictive  views  of  sentencing  and  of  the  Con- 
stitution that  may  be  expected  from  the  architect  of  the  Burger  Court  majority 
and  its  startling  view  of  the  Bill  of  Rights  and  constitutional  freedoms. 
"S.  1  cannot  be  adequately  amended  to  avoid  creating  serious  voids  and  retro- 
gressions in  existing  federal  criminal  practice,  and  the  Committee  recomends 
that  the  State  Bar  make  every  attempt  to  defeat  this  unwise  proposed  legislation." 
That  conclusion  is  equally  applical)le  to  S.  1437.  The  legislative  "compromise" 
which  has  converted  S.  1  into  S.  1437  has  failed  to  remove  the  taint  of  the  anti- 
democratic, repressive  approach  toward  criminal  law  and  civil  liberties  which 
permeated  S.  1,  and  which  still  infects  S.  1437.  And  that  taint  is  equally  prevalent 
in  the  sentencing  provisions,  as  the  foregoing  analysis  has  made  clear. 

The  sentencing  provisions  of  S.  1437  emerge,  upon  analysis,  as  retrogressive, 
unworkable,  illusory,  and  unwise.  The  concern  of  the  public  about  violence  and 
crime,  particularly  street  crime,  is  concern  over  a  serious  national  problem. 
However,  S.  1437.  like  S.  1  before  it,  offers  simplistic  panaceas,  in  the  form  of 
determinate  sentencing,  restrictions  on  probation  and  parole,  a  skewing  of  correc- 
tional approaches  away  from  such  hopeful  concepts  as  diversion  of  the  offender 
to  carefully  supervised  community  programs.  The  seemingly  "tough"  approach 
exemplified  by  S.  1437  will  work  no  better  than  did  the  incarceration  of  the 
prisonei-s  sent  to  Attica.  Rahway,  Trenton  State  Prison,  or  any  of  the  other 
gloomy  cages  for  men  and  women  that  have  utterly  failed  to  do  anything  more 
than  put  those  convicted  of  crime  out  of  sight  and  mind  for  a  certain  period 
of  time. 

But  beyond  even  the  harshness  and  vindictive  approach  which  mar  S.  1437, 
and  which  will  unquestionably  mold  the  guidelines  to  be  promulgated  by  the 
Sentencing  Commission  which  is  touted  as  the  major  reform  of  S.  1437  lies  a 
constitutional  crisis  of  unprecedented  dimensions. 

Congress  has  the  constitutional  obligation  to  formulate  legislation.  The  Con- 
stitution does  not  provide  for  delegation  of  that  authority  to  the  judiciary,  where 
the  important  area  of  a  national  policy  about  sentencing  is  concerned.  Yet  that 
is  what  is  squarely  involved  in  the  indefensible  provision  of  the  Sentencing 
Commission  provisions  of  S.  1437  (Sec.  991(a)  (p.  301) ),  that  the  Sentencing  Com- 
mission "shall  consist  of  nine  members  designated  hy  the  Judicial  Conference  of 
the  United  States."  To  enact  this  proposal  will  be  to  surrender  control  over  sen- 
tencing policy  to  a  tight,  secretive  group  of  jurists,  the  Judicial  Couference, 
dominated  by  their  chairman,  Chief  Justice  Warren  Burger,  and  who  will  have 


9408 

the  opportunity  to  designate  as  members  of  the  Sentencing  Commission  those 
who  will  reflect  his  views,  and  those  of  his  colleagues  comprising  the  Burger 
Court  majority.  This  abdication  of  legislative  responsibility  will,  if  enacted, 
effectively  delegate  to  the  most  repressive  element  in  the  federal  judiciary  policy- 
making which  is  constitutionally  the  province  and  the  responsibility  of  Congress. 

This  is  not  legislation.  It  is  instead  indefensible  capitulation  to  the  type  of 
stilling  of  Bill  of  Right  protections  which  has  typified  the  decisions  of  the  Burger 
Court  majority.  The  purported  compromise  of  S.  1  is  thus  seen  to  emerge  as  an 
unprecedented  grant  of  delegated  power  to  the  Burger  Court  majority  througli 
the  device  of  delegating  authority  over  sentencing  and  the  making  of  binding 
guidelines  upon  a  Judicial  Conference  answerable  only  to  itself  and  tightly  con- 
trolled by  Chief  Justice  Warren  Burger. 

Nowhere  in  the  Constitution,  our  great  charter  of  freedom,  is  such  delegation 
of  legislative  power  to  the  judiciary  sanctioned.  And  this  Congress  should  defeat 
this  startling  power  grab  by  the  judiciary. 


Dark  Doings  Among  the  Judges 
(By  John  P.  MacKenzie^) 

"Sunlight,"  said  Justice  Louis  D.  Brandeis,  "is  the  best  of  all  disinfectants." 
Yet  one  enormously  influential  body  of  high-level  jurists,  the  Judicial  Conference 
of  the  United  States,  has  been  meeting  in  the  dark  for  so  many  decades  that  by 
now  one  almost  hesitates  to  throw  its  proceedings  open  to  the  cleansing  sunlight 
and  fresh  air. 

Twice  a  year,  this  government-financed  body  meets  secretly  in  a  large,  rarely 
used  room  in  the  cavernous  Supreme  Court  Building — that  awesome  edifice  in 
which  even  the  great  Brandeis  said  he  felt  uncomfortable,  and  where.  Justice 
Harlan  Fiske  Stone  complained,  the  Justices  perch  like  "nine  black  beetles  in 
the  temple  of  Karnak." 

But  why  should  the  public  care  aljout  this  secret  society  of  a  few  dozen 
eminent  judges?  Why  not  just  let  the  judicial  "beetles"  doze  away  on  their 
perches,  safe  from  the  glare  of  publicity? 

The  answer  is  that,  whatever  its  original  intended  functions,  this  conference 
of  respected  jurists,  chaired  and  guided  by  Chief  Justice  Warren  Burger,  has 
.slowly  become  a  secret  lobby,  a  powerful  policy-shaping  instrument  that  is  in  no 
way  accountable  for  its  often  (piestionable  actions. 

Not  content  with  lobbying  for  higher  salaries  for  judges  (a  perhaps  under- 
standable preoccupation),  the  group  has  lately  gone  on  to  influencing  cougres- 
sion:!l  deliberations  on  wiretap  legishition  and  similar  key  policy  matters.  As 
things  stand,  the  Judicial  Conference  is  fast  becoming  a  secret  governmental 
force  to  be  reckoned  with. 

Both  the  conference  and  the  edifice  in  which  it  meets  are  monuments  to  William 
Howard  Taft,  who  was  Chief  Justice  from  1021  until  he  died  in  1930,  too  soon  to 
see  the  shrine  built,  but  not  too  soon  to  launch  the  judicial  organization  and  be- 
come its  first  presiding  officer.  Taft  was  an  activist  Chief  .fustice,  though  an 
advocate  of  what  is  called  "judicial  restraint"  in  de<  iding  whether  courts  should 
intervene  in  any  but  the  most  conventional  kinds  of  legal  disputes.  Until  recently, 
Taft  was  probably  the  undisputed  titleliolder  of  "foremost  empire  builder"  in 
American  judicial  history  since  the  Founding  Fathers.  A  modern  challenger  is 
the  current  iuid  fifteenth  Chief  Justice,  Warren  E.  Burger,  whose  designs  for  a 
more  "efficient"  and  less  activist  federal  bench  often  are  first  aired — if  that  word 
can  be  applied  to  the  hermetically  scaled  mecting.s — before  the  U.S.  Judicial 
Conference. 

Chief  Justices  have  many  collateral  duties  thrust  upon  llieni,  Itut  Burger,  who 
has  sought  and  gained  more  renown  as  a  judicial  administrator  than  as  a  juri.-;t, 
has  accepted  the  conference  chairmanshi))  with  gusto  and  spends  long  hours  on 
its  work.  The  members  (11  chi(>f  judges  of  the  regional  I'.S.  courts  of  ai)peals,  11 
federal  district  judges  el(>cted  by  their  peers  from  those  same  regions,  and  repre- 
sentatives from  claims  nad  patents  conrts)  often  are  no  match  for  a  well-pre- 
pared presiding  officer,  even  if  the  judges  were  inclined  to  resist  his  leader.ship. 


'  John  r.  AIncKenzio,  former  Supreme  Court  reporter  for  The  Washington  Post.  Is  cur- 
rently studying  clients  of  legal  services  programs  under  a  grant  from  the  Edna  McConnell 
Clark  Foundation. 


9409 

What  does  the  conference  actualy  do?  An  attempt  to  help  outsiders  find  out 
was  quietly  launched  a  few  years  ago — and  just  as  quietly  buried  last  year, 
James  E.  Doyle,  a  U.S.  district  judge  in  Madison,  Wisconsin,  advanced  the  modest 
proposal  that  the  conference  meetings  be  thrown  open  to  the  public.  He  told  his 
colleagues  that  after  attending  a  number  of  these  meetings  as  a  conference  mem- 
ber, he  couldn't  think  of  any  discussion  he  had  heard  that  couldn't  have  been  held 
in  the  open.  His  proposal  was  drowned  in  apathy  and  opposition  led  by  Burger. 
The  subject  itself  became  classified.  Burger  refused  to  discuss  the  details.  Terri- 
fied staff  members,  taking  that  cue,  were  struck  dumb  when  questioned.  Judge 
Uoyle  himself  found  the  topic  too  hot  to  talk  about.  "No  comment."  he  replied 
to  inciuiries.  Was  he  the  initiator  of  such  a  proposal".'  "No  comment  on  that 
either,"  he  answered. 

The  closest  to  a  reasonable  explanation  was  an  on-the-cufE  remark  by  Burger 
to  a  group  of  news  reporters.  Asked  what  prevented  the  opening  of  the  confer- 
ence to  the  public,  he  replied,  "Would  you  open  up  the  editorial  conference  of 
your  newspaper  to  all  members  of  the  public?"  Tlie  questioner  protested  that  the 
press  was  not  part  of  the  government  (and  thus  not  bound  to  do  what  the  Con- 
stitution might  require  of  government  institutions).  "Oh,  you're  not  govern- 
ment?" Burger  quipped,  "I  thought  you  were  the  fourth  branch  of  government." 
It  was  reminiscent  of  Burger's  frequent  comments  from  tlie  bench  during  a 
recent  series  of  First  Amendment  cases.  He  never  tired  of  noting  the  irony  that 
the  press  was  seeking  confidentiality  for  its  informants  but  was  unwilling  to  let 
the  government  take  "effective  steps"  to  protect  its  secrets  from  the  prying  press. 

Whether  or  not  the  press  can  be  likened  to  government,  there's  little  doubt 
that  tlie  Judicial  Conference  performs  important  governmental  tasks — judicial, 
legislative,  and  executive.  It  has  come  a  long  way  since  1922,  when  Congress 
heeded  Taft's  call  for  a  body  to  cope  with  case-load  arrears  and  possibly  do 
something  about  the  disparity  among  courts  in  their  sentencing  of  convicted 
criminals.  Those  tv^'O  problems  remain  as  lia filing  as  ever,  but  the  conference  has 
branched  out  into  other  fields.  One  is  lobliying.  and  not  just  for  higher  federal- 
court  payrolls.  One  recalcitrant  congressman  predicted  early  that  the  conference 
would  become  "a  legally  constituted  and  publicly  financed  propaganda  organiza- 
tion on  behalf  of  the  federal  judiciary."  His  predictions  have  been  borne  out 
several  times. 

One  notable  instance  occurred  in  1967.  when  the  conference,  then  led  by  the  late 
Chief  Justice  Earl  Warren,  voted  to  volunteer  its  views  to  Congress  on  the  wis- 
dom of  then  pending  wiretap  bills.  It  was  an  odd  stance,  one  that  came  to  light 
only  in  the  fine  print  of  the  conference'^s  report  and  the  satisfied  reactions  of  wire- 
tap advocates.  The  conference,  with  its  roster  of  senior  and  prominent  jurists, 
could  be  expected  to  properly  comment  on  the  practicality  of  specific  provisions 
in  a  bill,  but  this  body  wont  beyond  that:  it  chose  a  iiro-tap  bill  in  preference  to 
a  bill  banning  all  wiretapping,  and  it  favored  a  bill  that  was  clearly  unconstitu- 
tional under  existing  Siiiireme  Coui't  precedents.  Activists  and  advocates  of  judi- 
cial restraint  alike  let  the  resolution  pass,  since  there  was  no  recorded  dissent. 
Subsequent  inquiries  by  several  members  of  the  Judicial  Conference  as  to  what 
had  happened  yielded  the  inescapable  conclusion  that  many  of  them  had  no  idea 
of  what  they  had  done. 

Chief  Justice  Warren  and  Chief  Justice  Burger  have  inspired  many  studies 
in  contrast,  but  they  are  alike  in  their  passion  for  conference  secrecy.  Congress 
could  cool  that  passion  by  bringing  the  conference  under  the  lash  of  disclosure 
and  public  access  now  required  of  government  advisory  committees  and  agencies 
by  tlie  Freedom  of  Information  Act.  The  judicial  branch  is  not  covered  by  the 
information  law — indeed,  the  alarming  fact  is  that  these  same  secretive  jurists 
ai'e  the  ones  with  power  to  say  what  that  law  means — but  there  is  little  reason 
to  exempt  the  conference,  especially  when  it  is  not  performing  strictly  judicial 
work. 

That  was  the  view  of  former  senator  Sam  J.  Ervin,  Jr.  (D-N.C).  Like  many 
other  lawmakers.  Ervin  found  other  fields  to  conquer  than  the  Judicial  Con- 
ference. But  he  said  this  in  1970: 

"Tliey  certainly  do  not  act  as  judges  when  they  vote  to  approve  or  disapprove 
of  pending  legislation,  or  adopt  rules  of  financial  disclosure  for  their  colleagues. 
Why.  then,  should  the  conference  meet  in  secret?  I  believe  that  when  judges  act 
as  policy  makers  and  lobbyists  it  follows  that  their  discussions  should  be 
public.  If  the  conference  supports  or  opposes  a  bill,  the  Congress  and  the  public 
shnnld  have  free  access  to  the  conference's  debate  on  that  proposal.  The  Congress 
should  know  how  carefully  the  Judicial  Conference  researches  its  positions  so 
that  it  can  attach  relative  weights  to  them." 


9410 

Women's  International  League  for  Peace  and  FREacooii. 

Cottage  Grove,  Oreg.,  July  6, 1977. 
Senator  John  McClellan, 

Chairman,  Senate  Judiciary  Suhcommittee  of  Criminal  Law  and  Procedures, 
Senate  Office  Building,  Washington.  D.C. 

Be  it  Resolved,  That 

The  Cottage  Grove  Branch  of  the  Women's  International  League  for  Peace 
and  Freedom  urges  defeat  of  S.  1437  because  we  feel  it  contains  many  elements 
of  the  universally  opposed  S.  1. 

Specifically,  we  oppose  the  immunity  provision  which  effectively  subverts  the 
Fifth  Amendment  by  forcing  testimony.  We  also  oppose  the  wiretapping  provi- 
sion which  requires  and  pays  landlords  and  custodians  to  cooperate. 

As  a  peace  organization,  we  are  especially  concerned  with  the  section  entitled 
"Leading  a  Riot"  which  could  be  used  against  speakers  crossing  state  lines. 

We  firmly  believe  in  our  right  to  peacefully  assemble  and  peacefull.v  demon- 
strate and  the  sections  on  demonstrations  would  infringe  upon  our  rights  guar- 
anteed by  the  Constitution. 

Our  criticisms  of  S.  1437  are  numerous.  Therefore,  we  suggest  that  the  sub- 
committee table  S.  1437  and  substitute  it  with  the  scholarly  criminal  code  re- 
vision written  by  constitutional  lawyers  on  the  Brown  Commission. 

We  ask  that  this  statement  be  made  a  part  of  the  public  record  of  the  June  1977 
hearings  on  S.  1437. 
Sincerely, 

BiRDY  Hoelzle, 
Corresponding  Secretary. 

Report  With  Recommendations  to  the  Criminal  Justice  Section  Council 
From  the  Committee  on  Criminal  Code  Revision,  American  Bar  Associa- 
tion— August  1977 

recommendation 

The  Committee  on  Criminal  Code  Revision,  joined  by  the  chairperson  and 
vice  chairperson  of  the  CJS  Committee  on  Sentencing.  Probation.  Parole  and 
Reintegration  of  Offenders,  request  Council  approval  of  the  following  resolution  : 

BE  IT  RESOLVED,  That  the  Criminal  Justice  Section— building  on  ABA 
positions  already  taken  on  S.  1  (94th  Congress)  and  in  the  ABA  Standards  for 
Criminal  Justice — support  sentencing  provisions  in  S.  1437  (95th  Congress),  the 
pending  Federal  criminal  code  bill,  to  the  following  extent: 

1.  A  Sentencing  Commission  should  be  created,  but  should  be  composed  of  5 
members — not  9,  as  the  bill  provides.  Three  members  sliould  be  designated  by 
the  Judicial  Conference  of  the  United  States  and  2  appointed  by  the  President 
with  advice  and  consent  of  the  Senate.  (The  bill  provides  that  all  members  would 
be  designated  by  the  Judicial  Conference.)  Further,  not  more  than  2  members 
should  be  judges;  the  other  3  should  be  broadly  representative  of  the  criminal 
justice  system.  (The  bill  provides  no  restrictions  on  the  Commission's  make-up.) 

2.  The  committee  approves  the  concept  of  guidelines  which  the  Sentencing 
Commission  would  promulgate  for  use  by  sentencing  courts  in  determining  what 
sentence  to  impo.se.  For  the  foreseeable  future,  however,  these  guidelines  should 
only  be  advisory.  Until  reliable  empirical  data  and  experience  have  been  gathered 
and  examined,  and  until  the  content  of  the  guidelines  is  known,  drastic  revision 
of  present  procedures  should  be  implemented  cautiously.  While  the  committee 
does  not  supiwrt  the  guidelines  enforcement  mechanism  in  S.  1437 — a  defendant 
can  appeal  any  sentence  above  the  guidelines  and  the  government  any  sentence 
below — it  does  support  the  already-existing  ABA  policy  favoring  appellate  review 
of  sentences. 

3.  S.  1437  provides  the  sentencing  judge  with  the  option  of  applying  either 
an  ind(>terniinate  or  a  determinate  sentence.  The  coinmittoe  supports  this  ap- 
]troach.  AVlien  an  indeterminate  sentence  is  given,  however,  the  conmiittee  believes 
that  the  sentencing  judge — and  not  the  Parole  Commission— should  arrive  at  a 
release  date.  The  committee  recognizes  problems  which  have  occurred  with  the 
existing  parole  system.  The  Committee  proposes  that  the  Parole  Connnission 
have  the  initial  responsibility  for  undertaking  a  review  of  the  release  question 
and  then  prepare  reconunendations  for  presentation  to  the  judge  who  handled 
the  original  sentencing  decision.  If.  however,  the  parole  commi.ssion  does  not 
act  within  a  set  period  of  time,  or  if,  once  having  initiated  an  inquiry  it  decides 


9411 

not  to  proceed,  the  judge  can  initiate  action  sua  sponte.  Action  by  the  judge  and 
by  counsel  would  necessarily  be  governed  in  such  circumstances  by  the  Code  of 
Judicial  Conduct  and  the  Code  of  Professional  Responsibility. 

REPORT 

Background 

The  Committee  on  Criminal  Code  Revision  has  followed  developments  with 
respect  to  the  introduction  May  2  of  the  new  federal  criminal  code  bill  ( S.  1437, 
95th  Congress),  which  represents  a  carefully-structured  compromise  between 
conservative  and  liberal  supporters.  As  the  Council  is  aware,  the  section  has 
been  deeply  involved  in  study  of  the  proposed  code  since  the  initial  drafts  of 
the  Brown  Commission  were  available  some  eight  years  ago.  The  committee 
chairperson  attended  a  series  of  hearings  in  June  held  by  the  Senate  Judiciary 
Subcommittee  on  Criminal  Laws  and  Procedure.  These  focused  almost  exclusively 
on  the  sentencing  proposals  in  the  bill — which  would  dramatically  revamp  exist- 
ing federal  sentencing  procedures. 

The  committee  has  also  reviewed  S.  14.37  vis-a-vis  already-established  ABA 
policies,  including  policy  formulated  in  1975  on  S.  1  and  positions  contained  in 
the  ABA  Standards  for  Criminal  Justice.  These  policies  already  cover  many 
key  areas  in  the  bill.  The  committee  has  also  alerted  other  section  committees 
to  areas  in  the  legislation  covering  subjects  within  their  jurisdictions. 

The  ABA'S  present  policies  on  sentencing  (largely  contained  in  the  ABA 
Standards  Relating  to  Sentencing  Alternatives  &  Procedures)  do  not  address 
the  question  of  a  sentencing  commission,  nor  the  concept  of  sentencing  guide- 
lines. The  committee  thus  decided  to  focus  on  these  provisions.  Three  committee 
members  (8  were  invited,  but  due  to  conflicts  five  were  unable  to  attend)  met 
July  9  with  representatives  of  the  CJS  Committee  on  Sentencing,  Probation, 
Parole  and  Reintegration  of  Offenders.  Staff  from  the  Senate  and  House  Judi- 
ciary Committees  and  the  .Justice  Department  also  attended.  The  committee 
carefully  reviewed  and  discussed  S.  1437's  provisions  proposing  a  Sentencing 
Commission  and  other  sentencing  sections.  [Relevant  pages  of  the  legislation 
are  attached  to  this  report,  as  is  a  chart  comparing  ABA  policy  with  S.  1  and 
S.  1437.] 

Sentencing  Commission 

The  bill  provides  dramatic  revisions  in  the  present  federal  .sentencing  system, 
aimed,  according  to  its  sponsors,  at  bringing  fairness  and  certainty  to  the  sen- 
tencing process  and  reducing  disparities.  S.  1437  would  create  a  9-person  Sen- 
tencing Commission,  with  members  designated  by  the  Judicial  Conference,  and 
created  as  a  part  of  the  judicial  branch.  The  Commission  would  establish  guide- 
lines to  cover  both  offender  and  offense  characteristics — including  such  factors 
as  the  nature  and  degree  of  the  harm  caused,  the  offender's  role  in  the  offense, 
the  community  view  of  the  gravity  of  the  offense,  and  the  offender's  family  ties 
and  responsibilities.  [See  attached  Xerox  of  bill's  provisions  for  complete  list.] 
Judges  would  be  obliged  to  consider  the  guidelines— but  not  necessarily  to  follow 
them.  If  the  judge  sentenced  above  the  range  or  below  it,  however,  reasons  for 
doing  so  would  have  to  be  spelled  out,  and  sentence  appeal  would  be  available  to 
the  offender  (if  above  the  range)  and  to  the  government  (if  below).  Govern- 
ment appeals  would  have  to  be  approved  by  the  Attorney  General  or  his  designee. 

The  present  draft  of  S.  1437  retains  the  parole  system ;  but  remarks  by  At- 
torney General  Bell  and  others  who  have  urged  abolition  of  the  system  appear 
to  have  made  it  likely  that  the  bill  will  be  amended  to  phase  out  parole. 

Comments  on  committee  recommendations 

At  its  July  9  meeting,  the  committee  carefully  examined  the  bill's  provisions 
for  a  Sentencing  Commission  and  related  features.  Many  members  had  serious 
doubts  about  the  workability  and  effectiveness  of  a  sentencing  g-uidelines  system. 
While  recognizing  that  sentencing  disparities  exist,  the  committee  felt  that  in- 
dividualized treatment  of  persons  coming  before  the  sentencing  court  is  essen- 
tial—and that  a  guidelines  system  could  lead  to  a  mechanized  decisionmaking 
process.  Use  of  alternatives  to  imprisonment,  in  particular,  do  not  appear  to  be 
sufficiently  recognized  in  the  legislation.  After  much  debate,  the  committee  ar- 
rived at  the  recommendations  outlined  at  the  beginning  of  this  report. 

The  committee  supports  the  concept  of  a  Sentencing  Commission  but  feels 
this  body  would  be  more  workable  if  reduced  to  5  members.  Nine  members  would 


9412 

pei'petuate  the  numerical  make-up  of  the  Parole  Commission,  perhaps  inappro- 
priate in  light  of  the  new  approaches.  The  committee  feels  strongly  the  Commis- 
sion must  repres^ent  all  segments  of  criminal  justice  and  not  reflect  only  a  judicial 
voice.  It  recommends  that  the  bill  specify  that  no  more  than  2  members  may  be 
judges,  and  that  the  remainder  be  named  from  diverse  .segments  of  tlie  system — 
such  as  defense  lawyers,  prosecutors,  penologists,  and  correctional  personnel. 
S.  1437  further  provides  that  the  Judicial  Conference  of  the  U.S.  name  all  mem- 
bers. The  committee  is  aware  of  the  sentiment  widely  expressed  during  the  June 
hearings  that  all  members  of  the  Commission  be  Presidentially-appointed.  The 
Committee  suggests  that  a  mixture  of  selection  method.s — with  3  designated  by 
the  Conference  and  2  appointed  by  the  President  witli  advice  and  consent  of 
the  Senate— will  increase  the  body's  repre.sentativeness  and  lessen  its  becoming 
a  political  vehicle. 

The  committee  debated  at  length  the  desirability  of  sentencing  guidelines. 
Several  members  were  deeply  concerned  over  the  ability  of  guidelines  to  cover 
all  offenders.  Some  questioned  whether  guidelines  would  depersonalize  the  sen- 
tencing process  and  institutionalize  decisionmaliing. 

The  committee  finally  agreed,  however,  that  a  sentencing  guidelines  sy.stem 
shou'd  be  tried — but  only  on  an  advisory  basis  for  the  foreseeable  future.  This 
is  particularly  critical  because,  until  the  legislation  is  enacted  and  the  Sentenc- 
ing Commission  created  and  operational,  no  one  knows  what  the  guidelines  will 
contain.  Further,  if  instituted  initially  on  an  advisory  basis,  empirical  data  can 
be  compiled  on  experience  with  their  use.  Until  then,  the  committee  does  not  be- 
lieve the  guidelines  shou'd  be  enforced,  as  S.  1437  provides,  by  appellate  review 
of  sentences  outside  the  guidelines. 

The  question  of  determinate  sentences  was  also  examined  by  the  committee. 
It  agrees  that  the  indeterminate  sentence  has  received  deserved  criticism.  There 
is  a  lack  of  certainty  for  both  the  offender  and  for  society.  However,  the  com- 
mittee supports  the  approach  contained  in  S.  1437,  wherein  both  options  are 
available  to  the  sentencing  judge.  ^Vhen  an  indeterminate  sentence  is  given,  the 
committee  does  not  favor  the  Parole  Commission's  setting  the  release  date,  since 
it  recognizes  the  host  of  problems  which  have  plagued  the  present  parole  system. 
The  sentencing  judge  should  make  the  release  decision,  based  on  investigation 
and  recommendations  of  the  Parole  Commission.  If  the  Commission  refuses  to 
initiate  this  proce-^^s  by  a  set  time,  or  having  started  it  refuses  to  carry  it  for- 
ward, tlie  judge  would  be  authorized  to  act  st(a  sponfe.  Recognizing  potential 
problems,  the  committee  has  also  made  special  note  of  the  fact  that  behavior  of 
both  judge  and  counsel  under  such  cireumstances  must  be  governed  by  the  Codes 
of  Judicial  Conduct  and  of  Professional  Responsibility. 

The  committee  also  supports  provision  of  sufficient  research  monies  to  tlie 
Justice  Department's  new  Office  for  Improvements  in  the  Administration  of 
Justice  to  permit  it  to  undertake  badly-needed  empirical  research  on  the  federal 
level  on  use  of  the  proposed  sentencing  guidelines  system.  If  the  Department  is 
unable  to  undertake  this  or  if  such  is  not  available,  ix^rhaps  other  public  monies 
or  private  foundations  may  be  applied  to  for  grants  to  accompli-sh  these  ends. 

The  committee  discussed  additional  areas  which  are  not  presented  to  the  Coun- 
cil for  action,  since  they  represent  subjects  on  which  the  Association  ha«  already 
taken  a  position.  For  example,  the  committee  strongly  reasserts  tlie  ABA's  i)rior 
objection  Hn  l!t7r)  S.  1  policy)  to  the  fact  that  the  bill  contains  no  presumiition 
for  probation.  The  u.se  of  probation  and  alternatives  to  impri.sonment  is  an  under- 
lying concept  of  the  ABA  Standards  on  Sentencing  Alternatives  and  Procedures. 
The  committee  also  reasserted  ABA  support  for  appellate  review  of  sentences, 
policy  spelled  out  in  the  ABA  Standards  for  Appellate  Review  of  Sentences. 

Conrjr'essifmal  timetable 

It  would  appear  that  full  Senate  Judiciary  Committee  action  on  S.  1437  will 
not  occur  until  after  the  August  recess.  Senate  floor  action  by  October  seems  de- 
batable. Even  if  passed  by  the  Senate,  Hou-e  consideration  is  unlikely  to  bv'gin 
before  the  Second  Session  of  the  95th  Congre.ss.  There  is  thus  opportunity  for 
timely  Section  and  ABA  action  on  these  provisions  of  the  proposed  federal 
crimina'  code. 

Respectfully  submitted. 

WlLLIA\f    GRKEXIIAI.Gir. 

Cliairijcrfion.  C(>»i>iiittee  on 

Criminal  Code  Revision. 


9413 

University  of  California,  Berkeley, 

School  of  Law  (Boalt  Hall), 
Berkeley,  Calif.,  December  30,  1975. 
Senator  Philip  A.  Hart, 
r.S.  Senate, 
Washington,  D.C. 

Dear  Senator  Hart  :  I  am  responding  to  your  letter  of  December  15  concern- 
ing section  1302  of  S.  1. 

I  agree  with  your  staff  that  the  courts  could  construe  this  offense  as  not 
applying  to  protected  first  amendment  rights  to  assemble  and  petition  the  gov- 
ernment. The  crux  is.  as  your  letter  suggests,  that  the  conduct  must  be  "inten- 
tional"' to  constitute  the  offense.  As  the  committee  report  points  out,  and  as 
apparently  specified  by  §  1302(a)  in  the  bill,  this  means  that  to  establish  the 
specified  offense  the  government  would  have  to  prove  "that  the  offender  had  a 
conscious  objective  or  desire  to  obstruct  or  impair  a  function  and  to  do  so  by 
physical  interference  or  obstacle."  Particularly  in  light  of  the  first  amendment 
concerns,  this  would  seem  to  be  the  appropriate  construction  of  the  statute 
by  its  own  terms.  Buttressed  by  the  explicit  statement  in  the  committee  report, 
this  outcome  seems  to  be  as  clear  as  possible  at  this  stage.  On  this  basis,  I  be- 
lieve that  the  passage  of  the  ACLU  Statement  which  you  quote  in  your  letter 
is  wronjr. 

On  this  basis  also  I  believe  that  this  offense  would  not  be  subject  to  a  valid 
vagueness  or  overbreadth  attack.  As  to  vagueness,  the  terms  used  in  the  section 
seem  to  me  sufficiently  clear  and  specific,  both  to  give  notice  to  individuals  who 
may  be  involved  and  to  provide  the  means  for  judicial  check  on  arbitrariness  of 
officials.  Indeed,  I  find  it  hard  to  conceive  what  more  specific  terms  could  be 
used  to  accomplish  the  legitimate  purposes  of  this  section.  As  to  overbreadth, 
while  I  suppose  that  one  could  not  be  certain  that  the  provision  by  its  terms 
could  not  encompass  some  protected  activity,  it  does  not  seem  to  me  that  the 
section  is  vulnerable  to  a  charge  of  "substantial  overbreadth''  such  as  would  be 
necessary  to  invalidate  it  on  its  face.  This  is  particularly  true  because  the  thrust 
of  the  provision  as  drafted  is  not  directed  toward  speech  or  assembly  activity. 
(Of  course,  if  in  particular  circumstances  there  was  an  effort  to  use  this  provi- 
sion to  prosecute  individuals  for  conduct  which  is  protected  under  the  first 
amendment,  the  courts  would  presumably  hold  that  the  statute  could  not 
validly  apply  to  such  conduct.  But  that  of  course — desirably — is  true  for  any 
statute. ) 

I  hope  you  find  this  helpful. 
Sincerely, 

Paul  J.  Mishkin, 
Emanuel  S.  Heller,  Professor  of  Law. 


University  of  Pittsburgh,  School  of  Law,  June  9, 1977. 
Hon.  John  McClellan, 
U.S.  Senate,  Washington,  D.C. 

Dear  Senator  McClellan  :  I  have  recently  had  the  opportunity  to  review  the 
Criminal  Code  Reform  Act  of  1977,  S.  1437,  H.R.  G869,  and  believe  it  to  be  a 
substantial  improvement  over  S.  1  introduced  in  the  94th  Congress.  Your  per- 
sonal commitment  to  the  concept  and  necessity  for  recodification  of  our  Federal 
criminal  laws  is  highly  commendable,  and  your  perseverance  and  hard  work 
m  preparation  of  S.  1437,  H.R.  6869  is  greatly  appreciated  by  all  those  who 
understand  the  magnitude  of  the  political  and  intellectual  labors  vou  undertook 
to  perform. 

Obviously,   however,   no   individual    will   agree   with    all   details   of  the  new 
proposed  Code.  Hence,  I  must  note  that  I  have  serious  concern  about  delegating  to 
the  proposed  United  States  Sentencing  Commission  decisionmaking  authority  oVer 
sentencing  norms  which,  it  appears  to  me,  is  essentiallv  legislative  in  nature 
Moreover,  I  am  troubled  by  the  vagueness  of  the  language  of  the  "Impairing  Afiii- 

r.T^^  .^^^T.^"^^'^"  ""^"'^^  ^§  ^1^-^'  '^'i^^^  "^^  «^'«^rly  severe  grading  of  the  offense 
ot  Obstructing  a  Proceeding  by  Disorderly  Conduct"  (§  1334),  with  the  equivo- 
cation as  to  the  necessity  for  compulsorv  notice  to  affected  parties  previouslv  sub- 
jected to  lawful  wire  interception  (§  3105(b)  (1)  ),  and  with  retention  of  the 
partially  unconstitutional  and  wholly  undesirable  sections  on  the  admissability 
of  confessions  (§§3713-3714). 


9414 

However,  the  provision  which  causes  me  the  most  concern  in  S.  1437,  H.R. 
6S69,  is  the  section  "creating"  a  federal  obscenity  offense — §  1842.  In  brief,  there 
is  absolutely  no  reason  to  have  a  Federal  obscenity  statute  on  the  books  and  there 
are  a  number  of  reasons  why  such  a  statute  is  undesirable.  The  regulation  and 
scope  of  nonprotected  speech  in  a  local  community,  if  arguably  of  legitimate 
concern  to  any  governmental  body  (a  proposition  I  would  disavow),  are  certainly 
not  the  regulatory  business  of  the  Federal  Government.  Isn't  that  what  federal- 
ism is  all  about?  Let  the  States  deal  with  obscenity  within  permissible  consti- 
tutional perimeters. 

Section  1842.  questionable  in  and  of  itself  due  to  its  reliance  upon  the  shaky 
Miller  standards  and  its  antiquated  supporting  policies,  encourages  the  land 
of  Federal  prosecutorial  abuses  which  we  observed  in  Tennessee  during  the 
past  2  years.  Furthermore,  as  the  recent  Supreme  Court  case,  Sinith  v.  United 
lStates,'4o  L.W.  4495  (No.  75-1439.  May  23,  1977),  demonstrates,  the  mere  exist- 
ence of  a  Federal  obscenity  statute  totally  nullifies  an  individual  state's  (Iowa 
in  the  Smith  case)  efforts  to  tailor  its  own  obscenity  laws  to  the  demands  and 
mores  of  the  community.  Smitli,  was  a  case  where  "[t]he  transaction  offended  no 
one  and  violated  no  Iowa  law.  Nonetheless,  because  the  materials  proves  'offensive' 
to  third  parties  [on  a  national  level]  who  were  not  intended  to  see  them,  a 
federal  crime  was  committed."  45  L.W.  at  4500  (Dissenting  Opinion  of  Justice 
Stevens).  Again,  it  is  neither  necessary  nor  desirable  to  have  the  Federal  Gov- 
ernment overruling  the  will  of  the  States  in  this  area.  There  should  not  be  a 
Federal  obscenity  statute. 

Let  me  note,  again,  in  closing,  that  the  foregoing  vigorous  objections  notwith- 
standing, I  think  S.  1437,  H.R.  GS69,  on  the  whole,  a  masterful  job.  (^edification 
is  urgently  needed  land  the  present  vehicle,  if  it  can  withstand  additional  sub- 
stantive compromise  and  alteration  (other,  of  course,  than  the  compromises  I 
propose!),  is  an  extremel.v  workable  and  atti'acfive  piece  of  legislation. 

Thank  you  very  much  for  your  personal  efforts  in  getting  it  introduced. 
Sincerely  yours, 

.John  M.  Btrp.KOFF, 
Assistant  Professor  of  Law. 


Harvard  Law  School. 
Caml)ridge,  Mass.,  January  7, 1976. 
Hon.  Philip  A.  Hart, 
U.S.  Senate, 
Washington,  B.C. 

Dear  Senator  Hart  :  I  am  sorry  that  the  holidays  delayed  my  response  to 
your  letter  of  December  15  inquiring  about  Section  1302  of  S.  1,  the  bill  to  reform 
the  Criminal  Code. 

The  ACLU  criticism  of  Section  1302  is,  in  my  opinion,  a  forced  and  false  in- 
terpretation which  would  appear  plausible  only  to  one  determined  to  find  reasons 
for  seeking  to  defeat  the  bill.  I  am  quite  sure  that  the  Committee  Report  and  line 
of  authorities  exemplified  by  Screws  v.  U.S.,  325  U.S.  91,  would  lead  to  a  narrow 
and  constitutional  intei-pretation. 

An  "influx  of  cars  carrying  demonstrators  to  the  chosen  site"  would  violate 
Section  1302  only  if  tlie  site  were  consciously  chosen  in  such  a  way  as  to  inter- 
fere with  the  performance  of  governmental  functions.  My  imagination  is  not 
quite  up  to  visualizing  a  realistic  example,  but  one  can  abstractly  conceive  a 
situation  in  wliich  tlie  accused  plan  to  liave  a  long  cavalcade  of  traffic  l)lock 
a  necessary  movement  of  the  National  Guard  despite  normal  traflic  controls. 

It  sliould  be  noted  that  conduct  is  criminal  under  Section  1302  only  when 
physical  interference  with  the  government's  performance  of  its  functions  con- 
joins with  a  specific  intent  thus  to  interfere.  The  right  to  demonstrate  or  to  speak 
at  a  time  aiHl  i)lar(>  causing  large  crowds  to  assemble  is  subject  to  regulation 
wbere  tlie  ])uhlic  coiu'ern  is  witli  the  pliysical  consequences  of  the  demonstration 
or  tlie  selection  of  tlie  particular  time  and  ])lace,  rather  than  with  the  ideas  ex- 
pressed or  the  consequences  of  their  expression.  Section  1302  falls  in  this  cate- 
gory ber-ansp  it  is  concerned  only  with  physical  interference  or  olistacles :  it  is 
sul)ject  to  the  further  safeguard  Miat  jiliysical  olistruction  must  be  tlie  specific 
purpose  of  the  di'fendanf.  T  catniot  say  that  there  is  no  conceivable  circnuistance  in 
wliich  tlie  apTilication  of  Section  1302  might  be  unconstitutional,  but  I  feel  quite 
sure  that  it  is  not  subject  to  attack  upon  grounds  of  vagueness  or  overbreadth. 
Being  confined  to  the  intentional  use  of  physical  obstacles,  the  relevant  test  for 


9415 

overbreadth  is  less  stringent  than  with  a  statute  proscribing  words  alone.  Broad- 
rick  V.  Oklahoma,  413  U.S.  601  (1973) . 

May  I  take  the  occasion  to  say  that  it  is  a  pleasure  to  hear  from  you  again. 

With  best  wishes. 

Sincerely,  .  ^^^ 

Archibald  Cox. 


District  of  Columbia  Bail  Agenct, 

Office  of  the  Director, 
Washington,  D.C.,  June  1977. 

Hon.  Theodore  Kennedy. 

U.S.  Senate,  Chairman,  Suhcommittce  on  Antitrust  and  Monopolies, 

Russell  Senate  Office  Building,  Washington,  D.C. 

Hon.  John  L.  McClellan, 

Chairman,  Subcommittee  on  Criminal  Laws, 

Russell  Senate  Office  Building,  Washington,  D.C. 

Dear  Senators  Kennedy  and  McClellan  :  I  would  like  to  offer  for  your 
consideration  some  comments  on  portions  of  S.  1437  (Criminal  Code  Reform 
Act  of  1977)  recently  introduced  by  you.  I  am  particularly  interested  in  the 
provisions  that  address  questions  of  release  or  detention  of  persons  charged 
with  offeuserj  and  awaiting  trial.  I  would  respectfully  ask  that  my  comments 
be  entered  as  a  portion  of  the  Hearing  Record  should  that  be  appropriate. 

The  provision  which  causes  me  the  most  concern  is  §  3503  of  Chapter  35.  This 
section  as  it  stands  mandates  pretrial  detention  of  those  charged  with  capital 
offenses  if  "Such  a  risk  of  flight  or  danger  is  helieved  to  exist  .  .  .  [the  .judge 
has  reason  to  believe  that  no  conditions  of  release  will  reasonably  assure  that 
the  person  will  not  flee  or  will  not  pose  a  danger  to  any  other  person  or  to  the 
community  ...]...  the  person  shall  he  ordered  detained."  (Emphasis 
supplied.) 

The  debates  over  pretrial  detention  and  the  injection  of  considerations  of 
danger  into  the  bail  hearing  have  raged  for  years.  On  the  one  hand,  subsequent 
to  the  Judiciary  Act  of  1789  and  the  Eighth  Amendment  to  the  Constitution, 
no  American  could  be  denied  Bail  (pretrial)  in  noncapital  cases. 

Many  offenses  carried  capital  punishment  then  and  do  not  today,  e.g.,  burglary, 
rape,  murder,  armed  robbery,  etc.  Just  as  clearly,  however,  the  theory  on  which 
Bail  was  denied  was  one  which  presumed  that  a  defendant  facing  the  ultimate 
in  punishment  (death)  if  convicted  would  be  so  motivated  to  flee  that  no  Bail 
could  be  set  that  would  insure  appearance. 

On  the  other  hand,  despite  the  lip  service  paid  to  the  principle  that  "risk  of 
flight  is  the  only  proper  purpose  for  Bail,"  every  magistrate  who  has  ever  set 
Bail  has  done  so  with  at  least  a  concern  about  danger.  Although  unarticulated. 
danger  has  played  and  continues  to  play  the  most  significant  role  in  the  fixing 
of  Bail.  Your  efforts  in  this  bill  to  put  the  issue  of  danger  in  the  open  and  on 
the  record  is  commendable.  I  believe,  however,  that  some  additional  provisions 
might  be  appropriate. 

To  change  a  legal  principle  which  is  considered  a  traditional  if  not  a  Con- 
stitutional one  with  a  short  paragraph  may  provide  short  shrift  to  some  of  the 
serious  issues  that  need  resolution.  Were  it  not  for  six  (G)  years  of  experience 
with  both  the  detention  and  danger  issues  in  the  District  of  Columbia,  nearly 
ten  (10)  years  of  experience  around  the  nation  in  providing  Technical  Assistance 
to  other  jurisdictions  experiencing  problems  with  pretrial  detention  and  release, 
and  nearly  fifteen  (15)  years  of  experience  arguing  and  debating  the  principles 
involved  in  the  bail  setting  process  I  would  not  have  proposed  these  suggestions. 
I  sincerely  hope  they  will  aid  you  and  your  colleagues  and  staffs. 

I  recommend  to  your  attenion  D.C.  Code  §23-1321-1332  (particularly  §1322- 
1332).  These  statutory  sections  provide  a  comprehensive  release  law  that  in- 
cludes the  presumption  of  release,  consideration  of  danger,  protection  of  the 
rights  of  those  accused  held  in  pretrial  detention  without  bail,  and  a  total 
approach  to  the  problem  posed  by  trying  to  predict  danger,  flight,  appearance, 
etc. 

To  be  perfectly  candid,  when  the  law  was  first  proposed  in  1909  and  1970 
I  was  adamantly  opposed  to  the  idea  of  openly  permitting  detention  without 
Bail  and  to  allowing  danger  to  be  a  criterion  in  fixing  conditions  of  release. 
My  reasons  included :  a  belief  in  a  Constitutional  right  to  release  (this  right 
derived  from  a  combined  treatment  of  the  Judiciary  Act  of  1789,  the  Eighth 
92-465—77 54 


9416 

Amendment  to  the  Constitution,  and  the  words  of  the  United  States  Supreme 
Court  in  Curli^on  v.  Laudon  and  ^7«eA•  v.  Boyle.)  ;  a  then  recent  study  com- 
missioned by  the  Department  of  Justice  of  the  United  States  at  a  cost  of 
$360,000  which  concluded  that  danger  could  not  be  predicted ;  and  a  belief  that 
wholesale  detention  without  Bail  would  occur.  Experience  has  proved  otherwise 
and  reflection  has  convinced  me  that  althoujih  there  are  some  minor  tiaws  in 
tiie  law.  for  the  most  part,  it  is  a  good  one.  It  is  the  only  statute  I  have  seen 
tliat  provides  the  means  to  eliminate  the  hyprocrisy  that  permits  the  unfettered 
pretrial  detention  of  the  poor  under  the  fiction  of  a  money  bond  "high  enough 
to  insure  appearance."'  And,  at  the  same  time,  it  permits  magistrates  to  detain 
those  who  pose  a  serious  risk  of  either  flight  or  danger. 

Specifically,  the  D.C.  law  has  the  following  provisions  which  could  enhance 
S  1437 : 

A  proscription  against  the  use  of  financial  conditions  to  assure  safety  (1321). 
(I  believe  financial  conditions  should  be  eliminated  altogether.  Both  the  Amer- 
ican Bar  Association  in  its  Project  on  ^Minimum  Standards  for  Criminal  Justice. 
Standards  Relating  to  Pretrial  Release,  and  the  National  Advisory  Commission 
on  Criminal  Justice  Standards  and  Goals  recommend  the  abolition  of  Bail  Bonds- 
men and  suggest  that  dollar  amounts  hear  little  or  no  relationship  to  risk  of  flight 
or  appearance.  I  think  that  if  finaiicial  condition.s  can  be  eliminated  the  decision 
becomes  simply  release  or  detention.  If  release  is  appropriate  then  considera- 
tion of  those  conditions  best  designed  to  effect  return  to  court  or  .safety  can  com- 
mence. Under  such  a  system  no  one  would  i)e  detained  because  of  financial 
inability  to  post  l)ond  and  conversely  the  very  wealthy  who  should  be  detained 
would  not  be  able  to  secure  release.)  ; 

A  direction  to  confine  thase  detained  in  facilities  other  than  those  where 
convicted  criminals  are  housed  (1321)  (h)  (1) )  ; 

Three  very  precise  deHnitions  of  the  type  defendant  who  may  qualify  for  a 
detentiim  hearing  (1322(a))  ; 

A  precise  definition  of  the  kind  of  hearing  prerequisite  to  the  issuance  of  a 
detention  order  (1322(b)&(c) )  ; 

A  provision  for  si)eedy  trial  (within  60  days)  or  release  of  a  pretrial  detainee 
(1322(d))  ; 

A  separate  provision  for  treatment  of  those  on  probation  or  parole  (1322(e)  )  ; 

Provisions  for  appeal  (1324)  ; 

Penalties  (1327-1329)  ;  and 

Defiiiiticns  of  crimes  that  (pialify  by  crime  rather  than  by  puni.'Jhment  (1330). 

I  urge  you  to  consider  providing  the  safeguards  and  protections  alTorded  by 
the  D.C.  law  to  those  who  may  be  detained.  §  3503  does  not  provide  any  of  the 
protections  afforded  in  the  D.C.  law  nor  do  any  of  the  other  provisions.  At  the 
same  time  5)3.504  (Relea.se  Pending  Sentence  or  Api)eal)  is  infinitely  more  sen- 
sible than  its  D.C.  counterpart. 

I  appreciate  your  attention  to  these  matters  and  would  be  most  willing  to 
answer  any  questions  you  may  have. 


Yours  truly, 


Bruce  D.  Beaudin, 
Director,  District  of  Columbia  Bail  Agcncif. 


Prkpared  Statemknt  of  the  American  Library  Association 

Founded  in  1X76.  the  American  Li!)rary  A.ssociation  is  the  oldest  and  largest 
library  association  in  th(>  world.  It  is  a  nonprofit,  educational  organization 
representing  over  3r).000  librarians,  lilirary  trustees,  and  other  individuals  and 
groups  interested  in  promoting  library  service.  The  Association  is  tiie  leader  of 
th(>  modern  li»)rnry  movement  in  the  United  States  and,  to  a  (•onsi(]erable  extent, 
tlirougbont  tlie  world.  It  seeks  to  improve  libraries  and  lil)rarianship  and  to 
ireate  and  pulilisb   literature  in  aid  of  this  objective. 

THE    RIGHT    TO    KNOW:    LIBRARY    SERVICE    IN    THE    UNITED    STATES 

Libraries  are  rejiositories  of  knowledge  and  information,  and  are  established 
to  Iireserve  tbe  reconls  of  the  world's  cultures.  In  the  T'nited  States,  under  the 
First  Amendment,  libraries  play  a  unique  role  by  fulfilling  the  right  of  all  citizens 
to  have  unrestricted  access  to  these  records  for  whatever  purpose  they  might 


9417 

have.  The  Association's  interpretation  of  the  First  Amendment  as  it  applies 
to  library  service  is  set  forth  in  the  Lilirary  Bill  of  Rights  (attached).  Under 
this  interpretation,  it  is  the  responsibility  of  the  library  to  provide  books  and 
other  materials  presenting  all  points  of  view  concerning  the  problems  and 
issues  of  our  times.  The  Lilirary  Bill  of  Rights  further  states  that  no  library 
materials  should  be  proscribed  or  removed  because  of  partisan  or  doctrinal 
disapproval,  and  that  the  right  of  an  individual  to  the  use  of  the  library  should 
not  be  denied  or  abridged  because  of  age,  race,  religion,  national  origin  or  social 
or  political  views. 

In  sum.  libraries  foster  the  wellbeing  of  citizens  by  making  information  and 
ideal  available  to  them.  It  is  not  the  duty  of  librai'ians  to  inquire  into  the 
private  lives  of  library  patrons,  nor  is  it  their  duty  to  act  as  mentors  by  im- 
posing the  patterns  of  their  own  thoughts  on  their  collections.  Citizens  must 
have  the  freedom  to  read  and  to  consider  a  broader  range  of  ideas  than  those 
that  may  be  held  or  approved  by  any  single  librarian,  or  publisher  or  govern- 
ment or  church. 

CURRENT   ANTIOBSCENITY   LAWS 

In  general  terms,  the  American  Libi-ary  Association  rejects  antiobscenity 
laws  as  unwarranted  intrusions  upon  those  basic  freedoms  which  Justice  Cardozo 
once  described  as  the  matrix  of  all  our  other  freedoms.  Antiobscenity  laws, 
which  are  directed  not  at  the  control  of  anti-social  action  but  rather  at  the 
control  of  communication,  represent  a  form  of  censorship  ultimately  aimed  at 
the  control  of  the  thoughts,  opinions,  and  basic  beliefs  of  citizens  in  a  free 
democracy. 

Antiobscenity  laws  confront  American  librarians  with  a  very  special  dilemma. 
Under  the  most  recent  rulings  of  the  U.S.  Supreme  Court  (including  Smith,  dha 
Intrigue  v.  U.S.,  decided  May  23,  1977)  the  "community  standards"  by  which 
the  obscenity  of  a  work  will  be  determined  cannot  be  ascertained  until  after 
the  prosecution  has  been  initiated  and  the  jury  impaneled. 

This  means  that  librarians  disseminating  works  having  sexual  content  must 
do  so  at  their  peril.  On  the  one  hand,  if  they  refuse  to  disseminate  a  work 
because  they  believe  it  to  be  obscene,  librarians  infringe  the  First  Amendment 
rights  of  their  patrons  if  that  belief  is  wrong.  On  the  other  hand,  if  they  dissemi- 
nate a  work  having  sexual  content,  they  are  subject  to  criminal  prosecution, 
fine,  and  imprisonment  if  a  jury  ultimately  deems  the  work  obscene. 

The  American  Library  Association  believes  that  librarians  must  have  the 
absolute  right,  free  from  the  chilling  effect  of  the  threat  of  criminal  prosecu- 
tion, to  procure  and  disseminate  all  works  and  materials  which  have  not  been 
held  obscene  liy  a  court  of  competent  jurisdiction,  and  the  right  to  continue  to 
do  so  with  immunity  until  they  are  so  held. 

This  right  becomes  even  more  essential  to  the  fair  and  honest  performance 
of  libraries  and  librarians  because  of  those  rulings  of  the  Supreme  Court  which 
make  clear : 

First,  that  any  librarian  disseminating  any  M'ork  describing  or  depicting  normal 
or  abnormal  intercourse,  excretion,  masturbation,  or  the  genitals,  is  vulnerable 
to  federal  criminal  prosecution,  notwithstanding  express  exemption  from  such 
prosecution  under  state  law. 

Sppond.  that  the  determination  of  a  jury  that  a  work  is  obscene  is  a  question 
of  fact  which  is  substantially  unreviewalile  on  appeal. 

Third,  that  the  general  existence  and  ready  availaliility  of  other  work^  suli- 
stantially  comparable  in  nature,  content,  descriptions,  and  repre>:entations  to  the 
work  which  prompts  the  ))rosccution  does  not  establish  that  the  woi'k  in  question 
satisfies  community  standards. 

Fourth,  "guilty  knowledge."  that  is.  knowledge  of  the  obscenity  of  the  work,  is 
not  required  for  conviction  so  long  as  the  disseminator  is  aware  that  the  work 
includes  the  descriptions  or  depictions  which  the  jury  ultimately  determines  to 
be  obscene. 

SECTION     18  42     OF     S.     14.37 

Allhough  Section  1842  would  apply  to  the  non-commercial  dissemination  of 
materials  in  only  certain  cases,  none  of  the  above  concerns  generated  by  the 
mlinss  of  the  Supreme  Court  is  eliminated  for  librarians.  Section  1S42  applies 
to  dissemination  to  minors,  and  library  service  to  minors  employs  more  librari- 
ans today  than  all  other  forms  of  library  service  combined. 

Accordingly,  Section  1842  of  S.  1437  should  be  ameiided  to  exempt  librarians 
or,  alternatively,  to  provide  that  no  criminal  prosecution  for  disseminating  an 


9418 

obscene  work  shall  be  initiated  until  the  work  has  first  been  adjudged  obscene 
in  a  prior  in  rem  proceeding. 
Attachment. 

Library  Bill  of  Rights 

THE  council  of  THE  AMERICAN  LIBRARY  ASSOCIATION  REAFFIRMS  ITS  BELIEF  IN 
THE  FOLOWING  BASIC  FOLICIES  WHICH  SHODXD  GOVERN  THE  SER\'ICES  OF  ALL 
LIBRARIES 

1.  As  a  responsibility  of  library  service,  books  and  other  library  materials 
selected  should  be  chosen  for  values  of  interest,  information  and  enlightenment 
of  all  the  people  of  the  community.  In  no  case  should  library  materials  be  ex- 
cluded because  of  the  race  or  nationality  or  the  social,  political,  or  religious  views 
of  the  authors. 

2.  Libraries  should  provide  books  and  other  materials  presenting  all  points  of 
view  concerning  the  problems  and  i.«ues  of  our  times  ;  no  library  materials  should 
be  proscribed  or  removed  from  libraries  because  of  partisan  or  doctrinal 
disapproval. 

3.  Censorship  should  be  challenged  by  lil>raries  in  the  maintenance  of  their 
responsibilty  to  provide  public  information  and  enlightenment. 

4.  Libraries  should  cooperate  with  all  persons  and  groups  concerned  with 
resisting  abridgment  of  free  expression  and  free  access  to  ideas. 

5.  The  rights  of  an  individual  to  the  use  of  a  library  should  not  be  denied 
or  abridged  because  of  his  age,  race,  religion,  national  origins  or  social  or  political 
Tiews. 

6.  As  an  institution  of  education  for  democratic  living,  the  library  should  wel- 
come the  use  of  its  meeting  rooms  for  socially  useful  and  cultural  activities  and 
discussion  of  current  public  questions.  Such  meeting  places  .should  be  available 
on  equal  terms  to  all  groups  in  the  community  regardless  of  the  beliefs  and 
affiliations  of  their  members,  provided  that  the  meetings  be  opened  to  the  public. 

Adopted  June  18,  1948. 

Amended  February  2,  1961,  and  June  27, 1967,  by  the  ALA  Council. 


Prepared  Statement  of  Prof.  John  Monahan  *  on  the  Criminal  Code  Reform 

Act  of  1977    (S.  1437) 

I  have  for  some  time  been  involved  with  the  application  of  behavioral  science 
research  to  the  problems  of  crime  and  criminal  law,  especially  as  that  research 
relates  to  tlie  disposition  of  criminal  and  mentally  disordered  offenders.  It  is  my 
belief  that  the  provisions  of  the  Criminal  Code  Reform  Act  of  1977  dealing  with 
criminal  sentencing  (sections  2001-200S)  and  with  mentally  disordered  offenders 
(sections  3611-3617)  reflect  the  most  sophisticated  and  current  empirical  research 
in  these  areas  and  represent  a  marked  advance  over  current  law. 

My  reasons  for  supporting  the  sentencing  provisions  were  set  forth  in  nn  artif^le 
In  The  Washinrjfov  Po/^f  on  April  ."^O,  2977,  which  I  would  like  to  submit  for  the 
record.  In  brief,  l)(>havioral  scientists  have  not  dii-tinguished  themselves  at  the 
task  of  forcing  rehabilitation  on  those  offenders  they  predict  will  be  dangerous. 
Indeterminate  sentences  have  failed  a  fair  test  of  their  usefulness,  and  should 
be  replaced  by  strict  guidelines  promulgated  by  a  Sentencing  Commission  and 
reflf^ctefl  in  this  bill. 

The  right  of  appeal  from  excessively  onerous  or  excessively  lenient  sentences, 
as  well  as  the  establishment  of  a  federal  Victim  Compensation  Fund,  are  addi- 
tional factors  to  recommend  passage  of  S.  1437. 

The  one  i)oint  T  would  like  to  stress  to  the  Subcommittee  is  that  abandoning 
forced  rehabilitation  as  a  purpose  of  criminal  sentencing  does  not  imply  a  less- 
ened commitment  to  provide  increased  access  to  voluntar-u  rehabilitative  serv- 
ices to  those  federal  prisoners  who  wish  to  avail  tliemselves  of  them.  I  have 
dealt  with  tliis  issue  in  a  June  3,  1977  article  in  The  Los  Angeles  Times,  which  I 
would  also  like  ot  submit  for  the  record. 

My  sole  reservation  regarding  the  provisions  of  S.  1437  concerning  mental 
disease  or  defect  is  that  I  believe  the  time  limits  for  examination  and  treatment 
are  grossly  excessive.  Sixty  days  for  a  psychiatric  or  psychological  examination 
(section  .3617)    is  at  least  30,  and  probably  50,  days  too  many.  A  second  six- 


1  .John   Monalmn.  T'h.  T).   is  n   Ffllow  in  T,nw  nnd  Psycliolofry  nt  Harvard   Law   SJohool, 
and  Assistant  Professor  in  tlie  Program  in  Social  Ecology,  University  of  California,  Irvine. 


9419 

month  commitiiieiit  for  persons  found  incompetent  to  stand  trial  (section  3011)  is 
likewise  unnecessary  and  subject  to  abuse.  I  would  urge  the  Subcommittee  to 
reduce  the  time  limits  substantially. 

[From  the  Los  Angeles  Times,  June  3,  1977] 
Peisons  :  A  Retreat  From  Rehabilitation 

PUNISHMENT  MAKES   STRONG  C0MEB|A.CK,  BUT  THERE  ARE  REASONS  FOR  CAUTION 

(By  John  Monahan) 

Across  country,  the  death  knell  is  being  sounded  for  rehabilitation  programs  in 
our  prisons. 

Conservatives,  who  have  always  opposed  the  concept  of  rehabilitation,  are 
watching  in  silent  satisfaction  as  liberals  and  academics  rush  to  recant  their 
faith  iu  the  ability  of  psychiatrists  and  psychologists  to  alleviate  prisoners'  anti- 
social tendencies.  Once  derided  as  barbaric  and  ineffectual,  punishment  is  making 
a  strong  comeback  as  the  radical-chic  answer  to  the  problem  of  crime  in  America. 

The  reasons  for  this  new  negativism  toward  prisoner  rehabilitation  are  not 
hard  to  ascertain.  Research  projects  by  the  hundreds  have  failed  to  document 
any  positive  effect  of  even  the  most  intensive  therapy  on  the  attitudes,  let  alone 
the  behavior,  of  offenders  once  they  are  released  from  prison. 

Meanwhile,  prisoner-rights  groups  complain  that  existing  rehabilitation  pro- 
grams are,  more  often  than  not,  forced  on  them.  Such  programs,  they  also  charge, 
have  turned  prison  life  into  an  Orwellian  nightmare  where  inmates,  denied  a  firm 
date  for  getting  out,  are  reduced  to  playing  endless  games  to  prove  that  they  have 
achieved  "insight''  into  the  psychic  causes  of  their  crime. 

Given  the  lack  of  evidence  that  forced  rehabilitation  works  and  the  ever-rising 
crime  rate,  the  patience  of  even  the  most  tolerant  community  is  bound  to  wear 
thin.  It  was  not  surprising,  then,  that  Sens.  Edward  M.  Kennedy  (D-Mass. )  and 
John  L.  McClellan  (D-Ark.)  last  month  introduced  a  new  federal  criminal- 
sentencing  bill  that  omitted  any  mention  of  "treatment"  or  "rehabilitation." 

True,  the  time  is  long  overdue  to  limit  this  power  of  psychiatrists  and  psy- 
chologists in  deciding,  almost  single-handedly,  who  goes  to  prison  and  how  long 
they  stay  here.  These  "experts"  should  also  be  deterred  from  forcing  their  wares 
on  a — quite  literally — captive  audience. 

However,  it  should  be  clearly  understood  that  treatment  has  always  been  the 
exception  in  prison  rather  than  the  rule.  Most  of  the  time  "rehabilitation"  has 
just  been  a  convenient  excuse  for  placing  enormous  discretion  in  the  hands  of 
prison  administrators.  Not  infrequently,  it  has  also  served  as  a  way  of  rational- 
izing actions  taken  against  prisoners — such  as  administering  painful  drugs — that 
would  plainly  be  viewed  as  "cruel  and  unusual"  if  they  were  labeled  punishment. 
Indeed,  fewer  than  100  full-time  psychologists  work  in  the  entire  federal  penal 
system,  which  gives  some  indication  of  the  priority  actually  accorded 
rehabilitation. 

Yet  our  hasty  retreat  from  the  excesses  and  overpromises  of  the  "rehabilitative 
ideal"  poses  a  .serious  danger  not  only  for  prisoners  after  their  release  but  also 
for  the  larger  society.  The  danger  is  that  legislators  at  both  federal  and  state 
levels  will  seek  to  cut  expenditures  and  balance  budgets  by  seizing  on  the  current 
climate  of  pessimism  about  rehabilitation  to  justify  eliminating  even  the  woefully 
inadequate  amount  of  treatment  now  being  provided. 

Though  research  shows  that  coerced  participation  in  rehabilitation  programs 
fails  to  change  prisoners'  behavior  once  they  leave  the  institution,  that  does  not 
mean  rehabilitation  efforts  are  wholly  worthless.  Voluntary  treatment  may  well 
help  many  prisoners  control  their  behavior,  especially  if  participation  in  therapy 
could  be  divorced  from  parole  consideration  and  if  prisoners  were  afforded  the 
same  confidentiality  that  exists  in  private  practice.  Even  if  it  could  be  proved  that 
such  treatment  does  nothing  to  reduce  future  crime,  inmates  should  at  least  have 
ready  access  to  psychological  care — just  as  the  courts  have  ruled  they  have  the 
right  to  adequate  medical  and  dental  services. 

The  resurrection  of  deterrence  and  retribution  as  the  guiding  principles  of 
penal  policy  in  this  country  will  surely  please  those  who  have  long  favored  throw- 
ing away  the  key  and  letting  prisoners  rot  in  their  cells — and  "rot,"  unfortunately, 
is  exactly  the  right  word. 

Conditions  in  many  of  our  prisons  would  disgrace  any  self-resi)ecting  kennel 
owner.  No  judge  would  purposely  sentence  a  man  to  serve  time  in  a  place  where 


9420 

repeated  homosexual  rapes  and  other  forms  of  violence  are  the  norm,  and  yet 
that  Ls  precisely  what  a  prison  term  often  means. 

In  a  recent  civil  suit  in  Alahama,  state  officials  admitted  that  all  hut  30  of 
1.100  inmates  in  one  prison  had  been  physically  or  sexually  assaulted.  When  Gov. 
George  C.  Wallace  char.sed  that  court-ordered  reforms  of  the  state  prison  system 
had  created  a  "hotel  atmosphere,"  .Tudge  Frank  Johnson — the  man  who  mandated 
the  changes — replied  this  way  :  "The  elimination  of  conditions  that  will  permit 
maggots  in  a  patient's  wound  for  over  a  mouth  before  his  death  does  not  con- 
stitute creation  of  a  hotel  atmosiihere." 

By  all  means  Americans  should  .stop  telling  criminal  offenders  that  we  put  them 
in  pri.^on  for  their  own  good  :  It  is  for  our  good,  not  theirs,  that  prisons  exist.  But 
we  .should  think  twice  before  eliminating  psychological  services  from  prison 
l)udgets,  and  at  all  costs  we  must  avoid  becoming  complacent  about  what  goes  on 
in.side  iirison  walls. 

As  Dostoevsky  observed  in  ":Memoirs  From  the  House  of  the  Dead,"  '"The  degree 
of  civilization  in  a  society  can  l)e  judged  by  entering  its  prisons." 

[From  the  Washington  Post,  April  30,  1977] 

Prisons  :  A  Wary  Verdict  on  Rehabilitation 

(By  John  Monahan) 

It  was  only  a  few  years  ago  that  psychiatrist  Karl  Menninger  declared  that 
the  real  "crime"  in  criminal  justice  was  society's  punishing  offenders  rather 
than  offering  them  i>sychiatrie  tre  itment.  Ramsey  Clark  more  recently  annoimced 
that  "weknow  corrections  can  rehabilitate." 

Yet  a  bill  to  totally  restructiire  criminal  sentencing,  introduced  by  Sen.  Edward 
Kennedy  (D-Mass. ),  does  not  once  mention  the  words  "treatment"  or  "rehabili- 
tation." Instead,  prison  is  now  to  provide  "just  punishment  for  the  offense"  and 
"to  afford  adequate  deterrence  to  criminal  conduct,"  notions  anathema  to  lib- 
erals only  a  few  years  ago. 

What  has  happened  to  cause  such  a  rapid  change  of  heart  on  the  basic  purpose 
of  imprisonment? 

For  one  thing,  rehabilitation  by  almost  all  accounts  has  failed  to  live  up  to 
the  promises  of  IMenninger,  Chirk  and  others.  Literally  hundreds  of  researcli 
studies  of  pri.son  treatment  programs  have  reached  the  same  conclusion:  There 
is  no  difference  in  tlie  future  crime  rates  of  inmates  given  treatment  and  those 
in  the  control  group,  who  simjily  sat  in  their  cells.  And  this  holds  whether  the 
treatment  in  question  is  psychotherapy,  "behavior  modification,"  job  training  or 
education.  "The  cage,"  Norval  Morris  and  Gordon  Hawkins  conclude  in  their 
new  book.  "Letter  to  the  President  on  Crime  Control,"  "is  not  a  sensible  place 
in  which  to  cure  the  criminal." 

Even  if  prison  treatment  is  ineffective,  the  "rehabilitative  ideal"  could  be 
partly  salvaged  if  it  could  be  shown  that  psychologists  and  psychiatrists  could 
predict  which  offenders  were  so  dangerous  they  needed  to  be  isolated  from 
society.  The  rest  could  then  lie  kept  out  of  prison  and  given  social  services  in  the 
community.  Yet  here  too  research  has  popped  the  rehabilitative  balloon,  finding 
that  for  every  correct  prediction  of  future  criminality  there  are  at  least  two 
mistakes. 

As  if  the  data  weren't  bad  enough,  pri.soner  groups  and  prisoner  advocates 
such  as  Jessica  Mitford  have  charged  that  the  snpiioscdly  humane  and  enlight- 
ened rehabilitation  apjiroach  actually  has  resulted  in  b)iiger  sentences  and  worse 
prison  conditions  than  the  "eye  for  an  eye"  justice  it  was  meant  to  replace. 
Many  unusual  if  not  cruel  procedures  have  been  fobbed  oft'  as  "treatment,"  while 
the  indeterminate  sentence  has  made  archaic  the  movie  stereotyjie  of  the  convict 
chalking  off  the  remaining  days  of  his  sentence  on  the  cell  wall  :  You  never  know 
when  you're  getting  out.  Dissatisfaction  with  such  ambiguity  was  cited  by  the 
iMcKay  Commission  as  a  major  cause  of  the  Attica  uprising. 

As  C.  S.  Lewis  put  it  :  "To  be  re-made  after  some  pattern  of  'normality' 
hatched  in  a  Viennese  laboratory  to  which  I  never  paid  allegiance  to  know  that 
this  process  will  never  end  until  either  my  captors  have  succeeded  or  I  have 
grown  wise  enough  to  cheat  them  with  ajiparent  success— who  cares  whether 
this  is  called  Punishment  or  not'/" 

Add  to  these  concerns  a  steadily  rising  crime  rate,  and  it  is  not  diflicult  to 
see  why  the  "justice  model"  is  gaining  on  the  "treatment  model"  of  imprisonment. 


9421 

The  Kennedy  bill — on  which  hearings  will  be  held  shortly — would  establlsli 
a  sentencing  commission  to  promulgate  strict  guidelines  for  judges  to  use  in 
sentencing  convicted  offenders.  Judges  could  sentence  outside  the  guidelines, 
but  they  would  have  to  put  their  reasons  in  writing.  If  the  sentence  were  higher 
than  the  maximum  prescribed  by  the  guidelines,  the  defendant  would  have  the 
right  to  appeal.  If  it  were  lower  than  the  minimum  given  in  the  guidelines,  the 
government  could  do  likewise. 

Tlie  bill  would  not  eliminate  treatment  services  in  prison,  but  rehabilitation 
would  no  longer  be  a  purpose  of  incarceration.  If  a  convict  wanted  to  participate 
in  treatment  programs,  that  would  be  encouraged.  But  if  not,  that  would  be 
acceptable  too,  since  in  neither  case  would  it  affect  his  or  her  release  date,  which 
would  have  been  set  by  the  judge  at  the  time  of  conviction. 

Several  states,  inchiding  Maine  and  California,  have  already  abolished  indeter- 
minate sentences  and  eliminated  rehabilitation  as  a  purpose  of  imprisonment. 
There  is  little  doubt  that  the  pendulum  is  on  the  move  and  that  prisons  will  once 
again  be  a  place  where  people  go  to  be  punished  rather  than  cured.  Enforced 
rehabilitation  and  indeterminate  sentences  were  noble  social  experiments.  But, 
like  px-ohibition,  their  time  has  come  and  gone. 


State  of  New  Jersey. 
Department  of  Law  and  Public  Safety, 

Trenton,  N.J.,  June  16,  1977. 
Hon.  John  L.  McClellan. 
Dirkscn  Senate  Office  Building, 
Washington,  D.C. 

Dear  Senator  McCleli.an  :  I  am  writing  to  inform  you  that  at  a  regular 
meeting  of  the  National  Association  of  x\ttorneys  General  held  in  Indianapolis 
earlier  this  week,  the  Association  unanimously  adopted  in  principle  rhe  Criminal 
Code  Reform  Act  of  1977  (S.  1437).  A  copy  of  the  resolution  is  attached  for  your 
information. 

The  Association  also  authorized  the  creation  of  a  subcommittee  of  its  Com- 
mittee on  Criminal  Law  and  Procedure  to  monitor  the  progress  of  the  legislation, 
to  report  to  the  membership  on  significant  developments,  and  to  take  positions 
on  behalf  of  the  membership  in  the  course  of  the  legislative  process. 

I  have  been  appointed  Chairman  of  this  subcommittee.  The  balance  of  the 
membership  consists  of  Attorneys  General  Diamond  of  Vermont.  Edmisten  of 
North  Carolina,  Hansen  of  Utah,  La  Follette  of  Wisconsin,  MacFarlane  of 
Colorado,  and  Mendicino  of  Wyoming. 

Our  subcommittee  will  endeavor  to  complete  its  analysis  of  the  bill  at  the 
earliest  possible  date  so  that  your  staff  can  be  advised  of  any  proposed  amend- 
ments or  supplements  to  the  bill.  We  will  also  decide  at  an  early  date  whether 
one  or  more  members  of  the  committee  will  be  asked  to  testify. 

I  will  appreciate  being  advised  of  the  member  of  your  staff  with  whom  any 
necessary  contacts  can  be  made,  and  will  also  want  to  be  advised  of  significant 
developments  that  may  affect  the  work  of  our  committee. 

You  and  Senator  Kennedy  are  to  be  congratulated  for  the  significant  accom- 
modations that  have  been  made  in  drafting  S.  1437.  I  anticipate  that  the  final 
legislative  product  will  be  a  significant  step  in  the  advancement  of  the  federal 
criminal  justice  system,  and  the  NAAG  is  anxious  to  assist  in  the  final  enact- 
ment of  a  measure  that  will  advance  your  purposes,  and  at  the  same  time  be 
mindful  of  the  responsibilities  of  the  states  in  the  area  of  criminal  justice. 

Sincerely  yours, 

William  F.  Hyland, 

Attorney  General. 
Attachment. 

Resolution  concerning  the  Criminal  Code  adopted  by  the  National  Associa- 
tion of  Attorneys  General.  Larry  Derryberry,  Attorney  General  of  Oklahoma, 
Committee  on  Criminal  Law  and  Law  Enforcement. 

Resolution  XVI. — Revision  of  Federal  Criminal  Code 

Whereas  the  Congress  of  the  United  States  is  considering  Senate  Bill  1437 
and  House  of  Representatives  Bill  6869,  which  would  revise  the  federal  criminal 
code ;  and 


9422 

Whereas  a  majority  of  the  states  have  enacted  modernized  criminal  codes; 

and 

Whereas  the  Congressional  proposals  represent  the  culmination  of  a  ten- 
year  effort  to  enact  a  comprehensive  and  simplified  criminal  code  to  replace  the 
present  complex,  inconsistent  and  often  archaic  statutes  ;  and 

Whereas  previous  objections  of  National  Association  of  Attorneys  General 
to  portions  of  the  earlier  version  of  the  code  have  substantially  been  addressed 
in  the  present  version  :  Now,  therefore,  be  it 

Resolved  by  the  National  Association  of  Attorneys  General  at  its  71st  Annual 
Meeting,  in  Indianapolis,  Indiana,  June  12-15, 1977,  That  its  membership  endorse 
in  principle  the  concept  of  a  comprehensive  Federal  criminal  code;  and  be  it 
further 

Resolved,  That  a  subcommittee  of  the  National  Association  of  Attorneys  Gen- 
eral Committee  on  Criminal  Law  and  Procedure  be  appointed  by  the  Chairman 
of  that  committee  to  monitor  the  progress  of  SB  1437  and  HR  6S69,  and  to  report 
to  the  membership  on  significant  developments ;  and  that  said  subcommittee  be 
authorized  to  take  positions  on  behalf  of  the  National  Association  of  Attorneys 
General  membership  concerning  these  proposals  except  in  respect  to  issues  con- 
cerning which  the  subcommittee  determines  there  is  substantial  controversy 
among  the  National  Association  of  Attorneys  General  membership. 


Public  Defender  Service, 
FOR  THE  District  of  Columbia, 
WasJiington,  D.C.,  July  I4,  1977. 
Hon.  John  L.  McClellan, 

Chairman,  Subcommittee  on  Criminal  Laics  and  Procedures,  Committee  on  the 
Judiciary,  U.S.  Senate,  Washington,  B.C. 
Dear  Senator  McClellan  :  I  am  writing  to  request  your  assistance  in  ob- 
taining an  amendment  to  the  Criminal  Justice  Act  (18  U.S.  Code  §  3006A)  which 
would  permit  the  District  of  Columbia  Public  Defender  Service  to  provide  de- 
fense services  in  the  United  States  District  Court  for  the  District  of  Columbia 
and  the  United  States  Court  of  Appeals  for  the  District  of  Columbia  Circuit, 
with  the  approval  of  the  Judicial  Conference  of  the  United  States  and  with  the 
permission  of  the  federal  judges  in  this  jurisdiction.  The  proposed  amendment 
would  delete  from  subsection   (l)   18  U.S.  Code  §  3006A  the  language  ",  other 
than  subsection  (h)  of  section  1,".  This  would  then  provide  to  the  federal  courts 
in  the  District  of  Columbia  the  same  options  that  are  available  to  federal  courts 
in  the  rest  of  the  country.  The  brief  memorandum  enclosed  explains  the  back- 
ground of  the  problem  and  the  need  for  the  amendment.  I  would,  of  course,  be 
happy  to  provide  any  additional  information  which  you  might  think  desirable. 
We  would  greatly  appreciate  your  support  in  this  matter. 
Respectfully, 

J.  Patrick  Hicket,  Director. 
Enclosure. 

Proposed  Amendment  to  18  U.S.  Code  §  3006A  (Federal  Criminal  Justice  Act) 

The  Criminal  Justice  Act,  which  authorizes  payment  to  private  attorneys  who 
represent  indigent  defendants  in  criminal  cases  in  the  federal  courts,  also  gives 
all  federal  courts  except  those  located  in  the  District  of  Columbia  the  option  of 
establishing  a  defender  office  to  furnish  representation  in  a  jwrtion  of  the  criminal 
cases.  This  option  is  contained  in  subsection  (h)  of  18  U.S.C.  §  SOOfiA  which, 
by  virtue  of  subsection  (Z),  is  made  inapplicable  to  the  District  of  Columbia. 
Tlie  District  of  Columbia  I'ublic  Defender  Service  has,  with  the  agreement  of 
the  Chief  .Judges  of  the  United  States  District  Court  for  the  District  of  Colum- 
bia and  the  T'nited  States  Court  of  Appeals  for  the  District  of  Columbia  Circuit, 
suggested  the  deletion  of  this  language  in  subsection  (l)  to  allow  those  courts  to 
establish  a  defender  ofllce  if  they  so  desire. 

background 

Prior  to  the  1970  reorgnnization  of  the  court  system  in  the  District  of  Cohim- 
l»ia,  nearly  all  criminal  cases  were  handled  in  the  Thiited  Stntes  District  Court 
here.  Representation  wa.s  provided  to  indigent  defendants  in  those  cases  by  staff 
attorneys  employed  by  the  Legal  Aid  Agency  and  by  private  attorneys  appointed 


9423 

by  the  court.  The  Legal  Aid  Agency  was  a  defender  office  established  for  the 
District  of  Columbia  by  Congress  in  1960  (Public  Law  86-531,  74  Stat.  229)  ;  its 
funds  were  part  of  the  appropriation  for  the  District  of  Columbia. 

In  1970,  Congress  amended  the  Federal  Criminal  Justice  Act,  the  statute 
autliorizing  payment  to  private  attorneys  who  represent  indigent  defendants,  to 
allow  federal  courts  with  sufficient  volume  of  criminal  cases  to  establish  defender 
offices.  Howe^'er,  the  amendments  provided  that  the  authorization  to  establish 
defenders  would  not  apply  in  the  District  of  Columbia  because  the  District 
already  had  its  own  defender  office,  the  l^egal  Aid  Agency.  See  H.  Rep.  91-1546, 
91st  Cong.,  2d  Sess.  3(1970).  (The  Public  Defender  Service  is  the  statutory 
successor  to  the  Legal  Aid  Agency,  created  by  Congress  as  part  of  the  District  of 
Columbia  Court  Reform  and  Criminal  Procedure  Act  of  1970,  Public  Law  91-358.) 

However,  as  much  of  the  criminal  jurisdiction  previously  handled  by  the 
United  States  District  Court  was  transferred  to  the  local  courts  pursuant  to  the 
Court  Reform  and  Criminal  Procedure  Act  of  1970,  the  Public  Defender  Service 
lilvewi.se  transferred  most  of  its  attorneys  to  the  local  courts  and  ceased  to  pro- 
vide any  significant  amount  of  legal  services  in  cases  in  the  United  States  District 
Court  or  the  United  States  Court  of  Appeals.  These  courts  have  been  left  to 
rely  almost  exclusively  on  private  appointed  counsel  to  furnish  representation. 

The  proposed  amendment  would  enable  the  Public  Defender  Service  to  become 
in  part  a  community  defender  with  the  approval  of  the  Judicial  Conference  of 
the  United  States.  If  that  approval  is  forthcoming,  the  Public  Defender  Service 
would  create  a  unit  to  provide  legal  services  in  the  United  States  District  Court 
and  the  United  States  Court  of  Appeals  for  the  District  of  Columbia  Circuit 
which  would  be  financed  by  grants  from  the  Criminal  Justice  Act  appropriation. 
Furtliermore.  the  chief  judges  of  the  federal  courts  in  this  jurisdiction  to  which 
services  would  be  available  would  continue  to  participate  in  the  appointment  of 
the  governing  board  of  the  Public  Defender  Service. 

Attorneys  and  other  personnel  employed  with  these  funds  by  the  Public  De- 
fender Service  would  only  be  utilized  to  provide  representation  in  the  District 
of  Columbia  federal  courts,  after  appointment  by  the  federal  judges  and  magis- 
ti-ates  here,  who  v\ould  :ilso  continue  to  have  the  authority  to  appoint  private 
counsel  under  the  Criminal  Justice  Act. 


[Hastings  Law  Center] 

A  Consumer's  Guide  to  Sentencing  Reform — Making  the  Punishment  Fit 

The  Crime 

(By  Franklin  E.  Zimring) 

In  its  current  crisis  the  American  system  of  criminal  justice  has  no  friends. 
Overcrowded,  unprincipled,  and  ill-coordinated,  the  institutions  in  our  society 
that  determine  whether  and  to  what  extent  a  criminal  defendant  should  be  pun- 
ished are  detested  in  equal  measure  by  prison  wardens  and  prisoners,  cab  drivers 
and  college  professors.  What  is  more  surprising  (and  perhaps  more  dangerous), 
a  consensus  seems  to  be  emerging  on  the  shape  of  desirable  reform — reducing 
discretion  and  the  widespread  disparity  that  is  its  shadow,  abolishing  parole 
decisions  based  on  whether  a  prisoner  can  convince  a  parole  board  that  he  has 
been  "reformed."  and  creating  a  system  in  which  punishment  depends  much 
more  importantly  than  at  present  on  the  seriousness  of  the  particular  offense. 

A  number  of  books  and  committee  reports  that  have  endorsed  the.se  goals  and 
proposed  various  structural  reforms  to  achieve  them  are  the  stimulus  for  this 
essay.  While  diverse  in  style,  vocabulary,  and  emphasis,  at  least  six  books  in  the 
past  two  years  have  proposed  eroding  the  arenas  of  discretion  in  the  system.^ 

1  Nerval  Morris,  The  Fiifnre  of  Imprisonment  fChicaeo  :  University  of  Chicago  Press, 
1974)  :  James  Q.  Wilson,  Thinkinp  Ahout  Crime  (New  York:  Basle  Books,  1975)  •  Ernest 
van  den  Haag,  PunisMnq  Criminals  (New  York:  Basle  Books,  1975)  :  Andrew  von  Hlrsch, 
Doing  Justice — The  Choice  of  Punishments,  the  Report  of  the  Committee  for  the  FItudy  of 
Tncarceration  (New  York:  Hill  and  Wang,  1976)  ;  David  Fogel,  We  are  the  Livinq  Proof- 
The  Justice  Model  of  Corrections  (Cincinnati:  W.  H.  Anderson,  1975)  :  Task  Force  on 
Criminal  Sentencing,  Fair  and  Certain  Punishment — Report  of  the  Ticentieth  Century 
Task  Force  on  Criminal  Flentencinq  (New  York  :  McGfraw-Hlll,  1976). 

The  central  concern  of  these  books,  the  coercive  control  of  convicted  offenders,  is  very 
much  an  issne  for  hloethlcs.  Imprisonment,  while  centuries  old.  is  essentlallv  a  form  of 
experimentation  with  human  subjects.  Various  new  treatment  technologies  available  to  the 
^"^''I'.^^-^^^'" ,  '"^^'^  ^'^^^  widely  discussed  among  those  concerned  about  the  impact  of 
scientific  knowledsre  on  social  institutions;  but  the  basic  problems  posed  by  Imprisonment 
Itself  have  been  less  widely  recognized. 


9424 

Some  authors,  such  as  James  Q.  Wilson  and  Ernest  van  den  Haug.  see  reform 
as  a  path  to  enhancing  crime  control.  Others,  such  as  Andrew  von  Hirsh.  the 
Twentieth  Centurv  Fund  Committee,  and  David  Fogel,  advocate  reform  for  less 
utilitarian  reasons,  with  titles  or  subtitles  such  as  "Doing  Justice,"'  "A  Justice 
Model  of  Corrections,"  and  "Fair  and  Certain  Punishment."' 

This  essay  cannot  comprehensively  review  such  a  rich  collection  of  literature, 
nor  is  it  politic  for  me  to  oppose  ju.stice,  fairness,  or  certainty.  Rather,  I  propose 
to  summarize  the  present  allocation  of  sentencing  power  in  the  criminal  justice 
system  and  discuss  some  of  the  implications  of  the  "structural  reforms"  advo- 
cated in  some  current  literature. 

MULTIPLE    DISCRETION    IN    SENTENCING 

The  best  single  phrase  to  describe  the  allocation  of  sentencing  power  in  state 
and  federal  criminal  justice  is  "multiple  discretion."  Putting  aside  the  enormous 
power  of  the  police  to  decide  whether  to  arrest,  and  to  select  initial  charges, 
there  are  four  separate  institutions  that  have  the  power  to  determine  criminal 
sentences — the  legislature,  tlie  prosecutor,  the  judge,  and  the  parole  board  or  its 
equivalent. 

The  Icyislaturc  sets  the  range  of  sentences  legally  authorized  after  conviction 
for  a  particular  criminal  charge.  Criminal  law  in  the  United  States  is  noted  for 
extremely  wide  ranges  of  sentencing  power,  delegated  by  legislation  to  discre- 
tionary agents,  with  extremely  high  maximum  penalties  and  very  few  limits  on 
how  much  less  than  the  maximum  can  be  imposed.  In  practice,  then,  most  legis- 
latures delegate  their  sentencing  powers  to  other  institutions.  For  example, 
.second-degree  murder  in  Pennsylvania,  prior  to  1973,  was  punishable  by  "not 
more  than  20  years"'  in  the  state  penitentiary.^  Any  sentence  above  twenty  years 
could  not  be  imposed :  any  sentence  below  twenty  years — including  probation — 
was  within  the  power  of  the  sentencing  judge. 

The  prosecutor  is  not  normally  thought  of  as  an  official  who  has.  or  exercises, 
the  power  to  determine  punishment.  In  practice,  however,  the  prosecutor  is  the 
most  important  institutional  determinant  of  a  criminal  sentence.  He  has  the  legal 
authority  to  drop  criminal  charges,  thus  ending  the  possiliility  of  punishment, 
lie  has  the  legal  authority  in  most  systems  to  determine  the  specific  offense  for 
which  a  person  is  to  be  prosecuted,  and  this  ability  to  select  a  charge  can  also 
broaden  or  narrow  the  range  of  sentences  that  can  be  imposed  upon  conviction. 
In  congested  urban  court  systems  (and  elsewhere)  he  has  the  absolute  power 
to  reduce  charges  in  exchange  for  guilty  pleas  and  to  recommend  particular 
sentences  to  the  court  as  part  of  a  "plea  bargain" :  rarely  will  his  recommenda- 
tion for  a  lenient  sentence  be  refused  in  an  adversary  system  in  which  he  is 
supposed  to  represent  the  punitive  interests  of  the  state. 

The  judf/e  has  the  i>ower  to  select  a  sentence  from  the  wide  range  made 
available  by  the  legislature  for  any  charge  that  produces  a  conviction.  His 
])owers  are  discretionary — within  this  range  of  legally  authorized  sanctions 
his  selection  cannot  ))e  appealed,  and  is  not  reviewed.  Thus,  under  the  Penn- 
sylvania system  we  studied,  a  defendant  convicted  of  second-degree  nuu'der 
can  be  sentenced  to  probation,  one  year  in  the  penitentiary,  or  twenty  years. 
On  occasion,  the  legislature  will  provide  a  mandatory  minimum  sentence,  such 
as  life  imprisonment  for  first-degree  murder,  that  reduces  the  judge's  options 
once  a  defendant  has  been  convicted  of  tliat  particular  offense.  In  such  ca.'jes 
the  pro.secutor  and  judge  retain  the  option  to  charge  or  convict  a  defendant 
for  a  lesser  offense  in  order  to  retain  their  discretionary  power.''  ]\Iore  often  the 
judge  has  a  wide  range  of  sentencing  choices  and.  influenced  b.v  the  prosecutor's 
recommendation,  will  select  either  a  single  sentence  (such  as  two  years)  or  a 
minimum  and  maximum  sentence  (not  less  than  two  nor  more  than  five  years) 
for  a  particular  offender. 

The  pnrnle  or  rorrcctiotwl  autJwrifii  normally  has  the  power  to  modify  judicial 
sentences  to  a  con."5iderable  degree.  When  the  judge  pronounces  a  single  sentence, 
such  as  two  years,  usually  legi.slation  authorizes  release  from  prison  to  parole 
after  a  specified  proportion  of  the  sentence  has  been  served.  When  the  judge 


-  TliP  old  Ponnsylvania  statnto  Is  used  as  an  oxaniplp  becausp  wp  Tiavp  rpopntly 
stmlipfl  thp  f1istriI>iition  of  iiiinl«limpnt  in  Plina(lolp}iin  for  tliosp  ponvif-tpd  of  friminal 
honiiridps  oofiirrinp  dnrinir  tlio  first  fivp  months  of  1070.  Sre  Franklin  E.  Zimrlnjr.  .Topi 
Ki'-'pn,  and  Slipiln  0'^r{lll(\v,  "T'linisliinff  TTnniioidp  in  Pliilndoinhia  :  Perspectives  of  the 
Death  Penaltv."  T'uiversif;/  of  Chicago  Law  Review  43  (197G),  227. 

^Ihid.,  pp.  229-41. 


9425 

has  provided  for  a  minimnra  and  maximum  sentence,  such  as  two  to  five  years, 
the  relative  power  of  tlie  correctional  or  parole  authority  is  increased,  hecause 
it  has  the  responsibility  to  determine  at  what  point  in  a  prison  sentence  the 
offender  is  to  be  released.  The  parole  board's  decision  is  a  discretionary  one, 
traditionally  made  without  guidelines  or  principles  of  decision. 

This  outline  of  our  present  sentencing  system  necessarily  misses  the  range 
of  variation  among  jurisdictions  in  the  fifty  states  and  the  federal  system,  and 
oversimplifies  the  complex  interplay  among  institutions  in  each  system.  It  is 
useful,  however,  as  a  context  in  which  to  consider  specific  proposed  reforms ; 
it  a^so  helps  to  explain  why  the  labyrinthine  status  quo  has  few  articulate 
defenders.  With  all  our  emphasis  on  due  process  in  the  determination  of  guilt, 
our  machinery  for  setting  punishment  lacks  any  sanctioned  principle  except  un- 
guided  discretion.  Plea  bai-gaining,  disparity  of  treatment,  and  uncertainty  are 
all  symptoms  of  a  larger  malaise — the  absence  of  rules  or  even  guidelines  in 
determining  the  distribution  of  punishments.  Other  societies,  less  committed 
to  the  rule  of  law,  or  less  infested  with  crime,  might  suffer  such  a  system.  Power- 
ful voices  are  beginning  to  tell  us  we  cannot. 

PAROLE   tTNDER   ATTACK 

Of  all  the  institutions  that  comprise  the  present  system,  parole  is  the  most 
vulnerable — a  practice  that  appears  to  be  l>ased  on  a  now-discredited  theoretical 
foundation  of  rehabilitation  and  individual  predictability.  The  theory  was  that 
penal  facilities  rehabilitate  prisoners  and  that  parole  authorities  could  select 
which  inmates  were  ready,  and  when  they  were  ready,  to  reenter  the  community. 
The  high-water  mark  of  such  thinking  is  the  indeterminate  sentence — a  term 
of  one-year-to-life  at  the  discretion  of  the  correctional  authority  for  any  adult 
imprisoned  after  conviction  for  a  felony.  Ironically,  while  this  theory  was  under 
sustained  (and  ultimately  successful)  attack  in  California,  New  Yorlc  was  pass- 
ing a  set  of  drug  laws  that  used  the  one-year-to-life  sentence  as  its  primary 
dispositive  device.  Yet  we  know  (or  think  we  know)  that  prison  rehabilitation 
programs  "don't  work."  and  our  capacities  to  make  individual  predictions  of 
future  behavior  are  minimal. 

So  why  not  abolish  parole  in  favor  of  a  system  where  the  sentence  pronounced 
by  the  judge  is  that  which  is  served  by  the  offender?  The  cost  of  post-imprison- 
ment sentence  adjustments  are  many  :  they  turn  our  prisons  into  "acting  schools," 
promote  disparity,  enrage  inmates,  and  undermine  both  justice  and  certainty.* 

There  are.  however,  a  number  of  functions  performed  by  parole  that  have 
little  to  do  with  the  theory  of  rehabilitation  or  individual  predictability.  A  parole 
system  allows  us  to  advertise  heavy  criminal  sanctions  loudly  at  the  time  of  sen- 
tencing and  later  reduce  sentences  quietly.  This  "discounting"  function  is  evi- 
dently of  some  practical  importance,  because  David  Fogel's  plan  to  substitute 
"flat  time"  sentences  for  parole  is  designed  so  that  the  advertised  "determinate 
sentences"  for  each  offense  are  twice  as  long  as  the  time  the  offender  will  actually 
serve  (since  each  prisoner  gets  a  month  off  his  .sentence  for  every  month  he 
serves  without  a  major  disciplinary  infraction).  In  a  system  that  seems  addicted 
to  barking  louder  than  it  really  wants  to  bite,  parole  (and  "good  time"  as  well) 
can  help  protect  us  from  harsh  sentences  while  allowing  the  legislature  and 
judiciary  the  posture  of  law  and  order. 

It  is  also  useful  to  view  the  abolition  of  parole  in  terms  of  its  impact  on  the 
distribution  of  sentencing  power  in  the  system.  Reducing  the  power  of  the  parole 
board  increases  the  power  of  the  legislature,  prosecutor,  and  judge.  If  the  aboli- 
tion of  parole  is  not  coupled  with  more  concrete  legislative  directions  on  sentenc- 
ing, the  amount  of  discretion  in  the  system  will  not  decrease ;  instead,  discre- 
tionary power  will  be  concentrated  in  two  institutions  (judge  and  prosecutor) 
rather  than  three.  The  impact  of  this  reallocation  is  hard  to  predict.  Yet  parole 
is  usually  a  statewide  function,  while  judges  and  prosecutors  are  local  officials  in 
most  states.  One  function  of  parole  may  be  to  even  out  disparities  in  sentencing" 
behavior  among  different  localities.  Abolishing  parole,  by  decentralizing  dicre- 
tion,  may  increase  sentencing  disparity,  at  least  as  to  prison  sentences,  because 
the  same  crime  is  treated  differently  by  different  judges  and  prosecutors.  Three 
discretions  may  be  better  than  two ! 

There  are  two  methods  available  to  avoid  the«e  problems.  Norval  Morris  argues 
for  retaining  a  parole  function  but  divorcing  it  from  rehabilitation  and  individual 


iFogel,  pp.  196-99. 


9426 

prediction  by  proviriinjj  that  a  release  date  be  set  in  the  early  stagces  of  an  of- 
fender's prison  career.  This  would  continue  the  parole  functions  of  "discounting" 
and  disparity  reduction,  while  reducing  uncertainty  and  the  incentive  for  pris- 
oners to  "act  reformed."  It  is  a  modest,  sensible  proposal,  but  it  is  not  meant  to 
address  the  larger  problems  of  discretion  and  disparity  in  the  rest  of  the  system.' 

LEGISLATIVE     SENTENCING 

A  more  heroic  reform  is  to  reallocate  most  of  the  powers  now  held  by  judges 
and  parole  authorities  back  to  the  legislature.  Crimes  would  be  defined  with 
precision  and  specific  offenses  would  carry  specified  sentences,  along  with  lists 
of  aggravating  and  mitigating  circumstances  that  could  modify  the  penalty.  Tlie 
three  books  with  "justice"  or  "fairness"  In  tlieir  titles  advocate  this  "price  list" 
approach,  albeit  for  different  reasons  and  with  different  degrees  of  sophistication. 
The  Twentieth  Century  Fund  study  goes  beyond  advocating  this  approach  and 
sets  out  sections  of  a  sample  penal  code,  although  all  members  of  the  committee 
do  not  agree  on  the  specific  "presumptive  sentences"  provided  in  the  draft. 

There  is  much  appeal  in  the  simple  notion  that  a  democratically  elected  legis- 
lature sliould  be  capable  of  fixing  sentences  for  crimes  against  the  community. 
Yet  this  is  precisely  what  American  criminal  justice  has  failed  to  do.  and  tlie 
barriers  to  a  fair  and  just  system  of  fixed  sentences  are  imposing.  The  Twentieth 
Century  Fund  scheme  of  "presumptive  sentences."  because  it  is  the  most  sophisti- 
cated attempt  to  date,  will  serve  as  an  illustration  of  the  formidable  collection 
of  prol)lems  that  confront  a  system  of  "fair  and  certain"  legislatively  determined 
punisliments.  In  brief,  the  proposal  outlines  a  scale  of  punishments  for  those  first 
convicted  that  ranges  (excluding  murder)  from  six  years  in  prison  (aggravated 
assault)  to  probation  (shoplifting).  Premeditated  murder  is  punished  with  ten 
years'  imprisonment. 

Burg'ary  of  an  empty  house  by  an  unarmed  offender  has  a  presumptive  sen- 
tence of  six  months ;  burglary  of  an  abandoned  dwelling  yields  a  presumptive 
sentence  of  six  months'  probation.  The  sample  code  clearly  aims  at  singling  out 
violent  crimes  such  as  armed  robbery  for  heavier  penalties,  while  the  scale  for 
nonviolent  offenders  led  two  of  the  eleven  Task  Force  members  to  argue  that 
the  "range  .  .  .  appears  to  be  unrealistically  low  in  terms  of  obtaining  public 
or  legislative  support."  Repeat  offenders  receive  higher  presumptive  sentences, 
under  specific  guidelines. 

The  Task  Force  proposal  produces  in  me  an  unhappily  schizophrenic  response. 
I  agree  with  the  aims  and  priorities  of  the  report,  at  the  same  time  that  I  suspect 
the  introduction  of  this  (or  many  other)  reform  proposals  into  the  legislative 
process  might  do  more  harm  than  good, 

ROADBLOCKS    TO    REFORM 

Why  so  skeptical?  Consider  a  few  of  the  obstacles  to  making  the  punishment 
fit  the  crime : 

1.  The  incoherence  of  the  criminal  law.'^  Any  system  of  punishment  that  at- 
taches a  single  sanction  to  a  particular  olfense  must  define  offenses  with  a  morally 
persuasive  precision  that  present  laws  do  not  possess.  In  my  liome  state  of  Illi- 
nois, burglary  is  defined  so  that  an  armed  housebreaker  is  guilty  of  the  same 
offense  as  an  eighteen-year-old  who  opens  the  locked  glove  compartment  of  my 
unlocked  station  wagon.  Obviously,  no  single  imnishinent  can  be  assigned  to 
crimes  defined  in  such  sweeping  terms.  But  can  we  be  precise?  The  Taslc  Force 
tried,  providing  illustrative  definitions  of  five  different  kinds  of  night-time  house- 
breaking with  presumptive  sentences  from  two  years  (for  armed  burglary, 
where  the  defendaiit  menaces  an  occupant)  tlirough  six  months'  probation.  The 
Task  Forco  did  not  attempt  to  deal  with  daylight  or  nonresidential  burglary. 

The  problem  is  not  simply  that  any  such  penal  code  will  make  our  present 
statutes  look  lilce  Reader's  Digest  Condensed  Books;  we  lack  the  capacity  to 
define  into  formal  law  the  nuances  of  situation,  intent,  and  social  harm  that 
condition  tlie  seriousness  of  particular  criminal  acts.  For  example,  the  sample 
code  provides  six  years  in  prison  for  "premeditated  assault"  in  which  harm  was 
intended  and  two  years  for  .serious  assaults  where  vital  harm  was  not  intended. 
While  there  may  be  some  conceptual  distinction  between  these  two  mental  states, 
one  cannot  confidently  divide  hundreds  of  thousands  of  gun  and  knife  attacks 


>>  Morris,  pp.  47-50. 

•  Task  Force  Report,  pp.  55-56. 


9427 

into  these  categories  to  determine  whether  a  "fair  and  certain  punishment"  is 
six  years  or  two. 

Rape,  an  offense  that  encompases  a  huge  variety  of  behaviors,  is  graded  into 
three  punishments:  six  years  (when  accompanied  by  an  assault  that  causes 
bodily  injury)  ;  three  years  (when  there  is  no  additional  bodily  harm)  ;  and  six 
months  (when  committed  on  a  previous  sex  partner,  with  no  additional  bodily 
harm).  Two  further  aggravating  conditions  are  also  specified.'  Put  aside  for  a 
moment  the  fact  that  prior  consensual  sex  reduces  the  punishment  by  a  factor  of 
six  and  the  problem  that  rape  with  bodily  harm  has  a  "pres^umptive  sentence" 
one  year  longer  than  intentional  killing.  Have  we  really  defined  the  offense  into 
its  penologically  significant  categories  V  Can  we  rigorously  patrol  the  border  be- 
tween foi-cible  rape  without  additional  bodily  harm  and  that  with  further 
harm — when  that  distinction  can  mean  the  difference  between  six  months  and 
six  years  in  the  penitentiary? 

I  am  not  suggesting  that  these  are  problems  of  sloppy  drafting.  Rather,  we 
may  simply  lack  the  ability  to  comprehensively  define  in  advance  those  elements 
of  an  offense  that  should  be  considered  in  fixing  a  criminal  sentence. 

2.  The  paradox  of  prosecutorial  power.  A  system  of  determinate  sentences  re- 
allocates the  sentencing  power  shared  by  the  judges  and  parole  authorities  to  the 
legislature  and  the  prosecutor.  While  the  judge  can  no  longer  select  from  a  wide 
variety  of  sanctions  after  conviction,  the  prosecutor's  powers  to  select  charges  and 
to  plea-bargain  remain.  Indeed,  a  criminal  code  like  that  proposed  by  the  Twen- 
tieth Century  Fund  Task  Force  will  enhance  the  relative  power  of  the  prosecutor 
by  removing  parole  and  restricting  the  power  of  judges.  The  long  list  of  different 
offenses  proposed  in  the  report  provides  the  basis  for  the  exercise  of  prosecutorial 
discretion  :  the  selection  of  initial  charges  and  the  offer  to  reduce  charges  (charge- 
bargaining)  are  more  important  in  a  fixed-price  system  precisely  because  the 
charge  at  conviction  determines  the  sentence.  The  prosecutor  files  a  charge  of 
"premeditated"  killing  (ten  years)  and  offers  to  reduce  the  charge  to  "intentional" 
killing  (five  years)  in  exchange  for  a  guilty  plea.  In  most  of  the  major  crimes 
defined  by  the  Task  Force — homicide,  rape,  burglary,  larceny,  and  robbery — a 
factual  nuance  separates  two  grades  of  the  offense  where  the  presumptive  sentence 
for  the  higher  grade  is  twice  that  of  the  lower  grade.* 

This  means  that  the  disparity  between  sentences  following  a  guilty  plea  and 
those  following  jury  trial  are  almost  certain  to  remain.  Similarly,  disparity  be- 
tween different  areas  and  different  prosecutors  will  remain,  because  one  man's 
"premeditation"  can  always  be  another's  "intention."  It  is  unclear  whether  total 
disparity  will  decrease,  remain  stable,  or  increase  under  a  regime  of  determinate 
sentences.  It  is  certain  that  disparities  will  remain. 

The  paradox  of  prosecutorial  power  under  determinate  sentencing  is  that 
exorcising  discretion  from  two  of  the  three  discretionary  agencies  in  criminal 
sentencing  does  not  necessarily  reduce  either  the  role  of  discretion  in  sentence 
determination  or  the  total  amount  of  sentence  disparity.  Logically,  three  discre- 
tions may  be  better  than  one.  The  practical  lesson  is  that  no  serious  program  to 
create  a  rule  of  law  in  determining  punishment  can  ignore  the  pivotal  role  of  the 
American  prosecutor. 

3.  The  lepislative  law-avd-order  syndrome.  Two  members  of  the  Twentieth 
Century  Fund  Task  Force  express  doubts  that  a  legislature  will  endorse  six-month 
sentences  for  burglary,  even  if  it  could  be  shown  that  six  months  is  above  or  equal 
to  the  present  sentence  served.  I  share  their  skepticism.  When  the  legislature 
determines  sentencing  ranges,  it  is  operating  at  a  level  of  abstraction  far  removed 


7  The  aesrravatinj;  fnctors  are  d)  "the  victim  was  lender  1.5  or  over  70  years  of  age" 
and    (2)   tlie  victim  was  held  captive  for  over  two  hours.  Task  Force  Report,  p.  .59. 

8  The  presumptive  sentence  for  rape  doubles  with  an  assault  causing  bodily  injury.  The 
penalty  for  armed  robbery  where  the  offender  discharges  a  firearm  is  three  years  if  the 
offender  did  not  intend  to  injure  and  five  years  if  intent  can  be  established.  The  pre- 
sumptive sentence  is  two  years  if  the  weapon  is  discharired  but  the  prosecutor  cannot 
or  does  not  establish  that  "the  likelihood  of  personal  Injury  is  high."  The  penalty  for 
armed  burglary  doubles  when  the  dwelling  is  occupied.  An  armed  burglar  who  "brand- 
ishes a  weapon"  in  an  occupied  dwelling,  receives  twenty-four  months  while  a  nonbrand- 
ishing  armed  burclar  receives  eighteen.  Assault  is  punished  with  six  years  when  "pre- 
meditated" and  committed  with  intent  to  cause  harm.  Without  intent,  the  presumptive 
sentence  is  two  years.  See  Fair  and  Certain  Punishment,  pp.  .SS-39.  50-59.  Threat  of 
force  in  larceny  means  the  difference  between  six  and  twenty-four  months.  As  I  read 
the  robbery  statute,  armed  taking  of  property  by  threat  to  use  force  is  punished  with  a 
presumptive  sentence  of  six  months  on  page  40  of  the  report,  while  the  same  behavior 
receives  twenty-four  months  on  pages  60-61. 


9428 

from  individual  case  dispositions,  or  even  the  allocation  of  resources  to  courts 
and  correctional  agencies.  At  that  level  of  abstraction  the  symbolic  quality  of  the 
criminal  sanction  is  of  great  importance.  The  penalty  provisions  in  most  of  our 
criminal  codes  are  symbolic  denunciations  of  particular  behavior  patterns,  rather 
than  decisions  about  just  sentences.  This  practice  has  been  supported  by  the  multi- 
ple ameliorating  discretions  in  the  present  system. 

It  is  the  hope  of  most  of  the  advocates  of  determinate  sentencing  that  the  re- 
sponsibilities thrust  on  the  legislature  by  their  reforms  will  educate  democratically 
elected  officials  to  view  their  function  with  realism  and  responsibility — to  recog- 
nize the  need  for  priorities  and  moderation  in  fixing  punishment.  This  is  a  hope, 
not  firmly  supported  by  the  history  of  penal  policy  and  not  encouraged  by  a  close 
look  at  the  operation  and  personnel  of  the  state  legislatures. 

Yet  reallocating  power  to  the  legislature  means  gambling  on  our  ability  to 
make  major  changes  in  the  way  elected  officials  think,  talk,  and  act  about  crime. 
Once  a  determinate  sentencing  bill  is  before  a  legislative  body,  it  takes  only 
an  eraser  and  pencil  to  make  a  one-year  "presumptive  sentence"  into  a  six-year 
sentence  for  the  same  offense.  The  delicate  scheme  of  priorities  in  any  well-con- 
ceived sentencing  proposal  can  be  torpedoed  by  amendment  with  ease  and  political 
appeal.  In  recent  history,  those  who  have  followed  the  moral  career  of  the  sen- 
tencing scheme  proposed  by  Governor  Edmund  Brown  Sr.'s  Commission  on  Law 
Keform  through  the  Senate  Subcon)mittee  on  Crime  can  testiy  to  the  enormous 
impact  of  apparently  minor  structural  changes  on  the  relative  bite  of  the 
sentencing  system." 

If  the  legislative  response  to  detenninate  sentencing  proposals  is  penal  infla- 
tion, this  will  not  necessarily  lead  to  a  reign  of  terror.  The  same  powerful  prose- 
cutorial discretions  that  limit  the  legislature's  ability  to  work  reform  also  prevent 
the  legislature  from  doing  too  much  harm.  High  fixed-sentences  could  be  reduced ; 
discretion  and  disparity  could  remain. 

4.  The  lack  of  conscnstis  and  principle.  But  what  if  we  could  trade  disparity  for 
high  mandatory  sentences  beyond  those  merited  by  utilitarian  or  retributive 
•demands  of  justice?  Would  it  be  a  fair  trade?  It  could  be  argued  that  a  system 
which  treats  some  offenders  unjustly  is  preferable  to  one  in  which  all  are  treated 
unjustly.  Equality  is  only  one,  not  the  exclusive,  criterion  for  fairnes.s. 

This  last  point  leads  to  a  more  fundamental  concern  about  the  link  between 
structural  reform  and  achieving  justice.  The  Task  Force  asks  the  question  with 
eloiiuent  simplicity  :  "How  long  is  too  long?  How  short  is  too  short?"  "'  The  ques- 
tion is  never  answered  in  absolute  terms ;  indeed,  it  is  unanswerable.  We  lack 
coherent  principles  on  which  to  base  judgments  of  relative  social  harm.  Current 
titles  of  respectable  books  on  this  subject  range  from  Punixhing  Criminals  to 
The  End  of  Impris-onmcnt,  and  the  reader  can  rest  assured  that  the  contents 
vary  as  much  as  the  labels.  Yet  how  can  we  mete  out  fair  punishment  \\ithout 
agreeing  on  what  is  fair?  How  can  we  do  justice  before  we  define  it? 

Determinate  sentencing  may  do  more  good  than  harm;  the  same  can  be  said 
for  sharp  curtailment  of  judicial  and  parole  discretion.  Such  reforms  will,  how- 
ever, be  difficult  to  implement,  measure,  and  judge.  Predicting  the  impact  of  any 
of  the  current  <'iop  of  reform  proposals  with  any  degree  of  certainty  is  a  hazard- 
ous if  not  foolhardy  occupation. 

Not  the  least  of  the  vices  of  our  present  lawless  structures  of  criminal  sentenc- 
ing is  that  they  mask  a  deeper  moral  and  intellectual  bankruptcy  in  the  criminal 
law  and  the  society  it  is  supposed  to  serve.  The  paiamount  value  of  these  books 
and  reform  proposals  is  not  the  "structural  reforms"  that  e.-ich  proposes  or 
opposes.  It  is  the  challenge  implicit  in  all  current  debate:  no  matter  what  the 
problems  with  particular  reforms,  the  present  system  is  intolerable.  The  prob- 
lems are  deeper  than  overcro\^ding  or  lack  of  coordination,  more  profound  than 
the  structure  of  the  sentencing  system.  Tliese  problems  are  as  closely  tied  to 
our  culture  as  to  our  criminal  law.  They  are  problems  of  principle  that  have 
been  obscure  d  by  the  tactical  inadequacies  of  the  present  system. 


"  roinparo  tlio  Fiiinl  Kfiiort  of  llip  National  roinmisslon  on  Reforms  of  Ferlornl  Crinii- 
nnl  T>a\vs  (Oovorunicnt  rriiitin;;  Ollice.  1<)71)  willi  .Scnnlo  Rill  1.  i)4tli  ("onjr.  1st  Session 
(1!)7.">).  AiM<>i);r  (itlicr  lliin^rs,  the  Semite  Mil  clmnses  a  i)resunii)tinn  in  favor  of  probation 
to  a  presunij)tio;i  against  inolmtion,  increases  the  ninnher  o!"  felonies  in  the  nroixised 
c-O'le  and  increases  the  length  of  anthorized  seiitences  hv  n  considerable  marcin.  See  Txinls 
Scliwnrtz.    "The    Proposed    Criminal   Code,"    Criminal  Laic   Reporter,   17    (1975).    3203. 

">  Task  Force  Report,  p.  4. 


9429 

Consumer  Protection  and  Recent  Versions  of  the  Proposed  New  Federal 

Criminal  Code 

(By  the  Special  Committee  on  Consumer  Affairs) 

In  1971,  the  National  Commission  on  Reform  of  Federal  Criminal  Laws  sub- 
mitted its  report  proposing  a  new  federal  criminal  Code.  A  number  of  provisions 
of  this  draft  were  criticized  by  this  Committee  and  others  as  injurious  to  con- 
sumer protection,  principally  the  weakening  of  the  mail  fraud  statute  (18  U.S.C. 
1341)  by  substitution  of  a  mei'e  larceny  law.^  The  subsequent  versions  of  the 
Code  eliminated  the  features  found  objectionable  in  these  respects."  In  other 
respects,  however,  there  have  been  wide  differences  of  opinion  in  regard  to  vary- 
ing provisions  of  the  proposed  new  criminal  Code."  The  principal  rival  versions 
are  S.  1,  94th  Cong.,  1st  Sess.  (1975)  as  repoited  by  the  Subcommittee  on  Crimi- 
nal Laws  and  Procedures  of  the  Senate  Judiciary  Committee,  and  H.R.  12504, 
94th  Cong.,  2d  Sess.  (1976)  sponsored  by  Representative  Kastenmeier  and  twenty 
other  Members  of  the  House  of  Representatives  as  an  alternative  to  S.  1. 

S.  1  and  the  Kastenmeier  bill  are  identical  in  regard  to  the  i)rincipal  features 
which  would  affect  consumer  protection.  These  features  are  aimed  at  remedies 
against  deliberately  fraudulent  schemes  of  the  type  injurious  to  both  the  con- 
sumer and  legitimate  business.  We  recommend  that  these  features  be  adopted 
as  part  of  any  proposed  new  federal  criminal  code,  or  separately  in  the  event  that 
action  on  the  balance  of  the  Code  is  signihcantly  delayed  because  of  controversies 
over  other  issues. 

The  principal  provisions  contained  in  both  rival  versions  of  the  Code,  desig- 
nated by  the  same  section  numbers  in  both  bills,  are  as  follows  : 

Section  17.84,  entitled  "Executing  a  Fraudulent  Scheme,"  re-enacts  the  sub- 
stance of  the  present  mail  fraud  section  (18  U.S.C.  1341)  with  the  significant 
extention  that  it  applies  to  the  use  of  any  interstate  or  foreign  communication 
facility  as  well  as  the  mails,  by  virtue  of  the  jurisdiction  set  forth  in  subsection 
(e).  This  is  somrwhat  broader  than  the  present  wire  fraud  statute  (18  U.S.C. 
1343),  which  refers  to  the  transmission  of  sound  signals  in  interstate  commerce. 
Section  1734  also  expressly  covers  "pyramid  sales  schemes,"  involving  endless 
chain  promotions  whereby  each  victim  can  make  money  by  inducing  others  to 
join  in  the  scheme  on  the  promise  that  they  can  do  likewise,  etc.  Such  schemes 
have  been  repeatedly  held  illegal  under  the  mail  fraud  statute.*  However,  prose- 
cution lias  often  been  ditticult  and  consequently  more  specific  legislation  was 
passed  by  the  Senate  and  unanimously  approved  by  this  Committee.^  Pyramid 
sales  frauds  seriously  injure  both  legitimate  franchisers  who  are  hurt  by  the 
fear  generated  and  the  public,  and  warrant  specific  prohibition. 

Section  2201(c)  of  both  bills  authorizes  a  fine  not  to  exceed  twice  the  gross 
gain  derived  or  the  gross  loss  caused,  whichever  is  greater,  in  case  of  an  offense 
through  which  pecuniary  gain  is  directly  or  indirectly  derived,  or  liy  which 
pergonal  injury  or  property  damage  or  other  loss  is  caused.  Tliis  is  far  more 
realistic  than  existing  maximum  fines,  such  as  the  ,$1,000  maximum  authorized 
by  the  present  mail  fraud  section  (18  U.S.C.  1341).  Since  the  mail  fraud  statute 
is  the  principal  criminal  sanction  against  deliberately  fraudulent  schemes,®  a 
realistic  maximum  fine  is  important. 


1  S'necinl  f'ommittpp  on  Consumer  Affairs,  "The  Proposed  New  Federal  Criminal  Code 
and  Consumer  PTotection."  27  Record  of  The  Association  of  the  r>ar  of  The  Cit.v  of  New 
York  7.^4  Ota.v  1072)  :  Reform  of  the  Federal  Criminal  Laws,  PTearinf!:  F.efore  the  Sub- 
coniniittoe  on  Criininnl  Laws  and  Procedures  of  the  .Senate  Judiciary  Committee,  02nd 
Cons.,  2d   Sess.,  Part  TIT    (B)   at  l.'5.^).S-5S.  1827-20    (1072). 

2F.?.,  S.  1.  0-ith  Cons..  1st  Sess,  §  17.S4  (1075):  H.R.  12.504,  04th  Cons.,  2d  Sess. 
§  17r'.4  (10fi7).  See  Reform  of  the  Federal  Criminal  Laws.  Hearin.ars  Before  the  Sub- 
committee on  Criminal  Laws  and  Procedures  of  the  Senate  Judiciary  Committee,  92nd 
Cone-.,  1st  Sess.,  Part  IX  at  0470  (107?.). 

"  See  generally  Association  of  the  Bar  of  The  City  of  New  York.  Special  Committee  on 
the  Proposed  New  Federal  Criminal  Code,  "The  Criminal  Code  Proposed  hv  the  National 
Commission  on  Reform  of  Federal  Criminal  I-aws"  (1972)  :  "Three  Versions  of  the 
Pronosed    New    Federal    Criminal    Code    LTuly    1074). 

*'^.ir..   TTnifp/J   Siiates  v.    \rmrnfroiit.  411    F.2d  CO    (2d   Cir.   lOfiO)    and   cases  cited. 

"  S.  19:',9.  O.^d  Cons..  2d  Sess.  (1074)  :  S.  Rept.  No.  9:^-1114.  O.-^.d  Cons.  2d  Sess.  (T07<)  ; 
"Report  on  Lesislation  To  Prohibit  Pyramid  Sales  Transactions."  .SO  Record  of  The 
Association  of  the  P.ar  of  the  City  of  New  York  200  (March  1075). 

"E.".,  Tnited  l^'fnte.<i  y.  Armentronf.  supra:  Zovhick  v.  United  ^fafex,  4-lS  F.2d  2.'^9 
\p'\  ^'''■.-  10"1)  (fraudulent  health  seryice)  :  Aflam.i  \.  Vnitcd  Slinfes.  .347  F.2d  (165,  6R(5 
(.itn  Cir.  1905)  (misrepresentation  of  value  of  nurses  training  conr.se)  ;  WiUiomn  y. 
Tmfed  f^fntrs.  2fi.S  F.2d  072.  074  (lOth  Cir.  1000)  (misleadins  solicitation  l.y  telephone 
solicitors)  :Fr;cf/mfl»  y.  Ur.itcd  Stnte-'^,  ?A7  F.2d  007,  000,  700  (Sth  Cir.  1065)  (subtle 
physical    detention    until    unconscionable   contracts   for   dance   lessons    signed). 


9430 

Part  V,  Chapter  40,  subchapter  C,  section  4021  of  both  bills  provides  authority 
to  the  Attorney  General  to  sue  for  injunctive  relief  \vhere  the  antifraud  pro- 
vision (section  1734)  is  violated."  This  is  in  accord  with  the  unanimous  recom- 
mendations of  the  Special  Committee  on  the  Proposed  New  Federal  Criminal 
Code  of  this  Association,  which  has  recommended  general  authority  for  equitable 
relief  as  a  sanction  against  criminal  conduct  in  fraud  and  other  cases.*  Such  a 
provision  is  vital  to  prevent  continuation  of  serious  criminal  conduct  detrimental 
to  the  public' 

We  recomend  that  these  important  improvements  in  federal  sanctions  against 
deliberately  fraudulent  schemes  be  adopted  as  expeditiously  as  practical  either 
as  part  of  the  proposed  new  Code  if  one  is  agreed  upon,  or  by  separate  legislation 
if  it  is  not. 
Respectfully  submitted. 

Special  Committee  on  Consumer  Affairs :  Rhoda  H.  Karpatkin,  Chair- 
person; Dougals  Y.  Ackerman  ;  Sheila  G.  Birnbaum ;  David  Cap- 
lowitz ;  Martin  Cole ;  Evan  A.  Davis ;  Jane  Detra ;  James  D. 
Dougherty  ;  Albert  W.  Driver,  Jr. ;  Robert  J.  Egan  ;  Carl  Felsen- 
feld ;  Emilio  Gautier ;  Richard  A.  Givens ;  John  H.  Hall ;  Leon 
Harris ;  Carol  H.  Katz ;  James  J.  Lack ;  Michael  B.  Maw ;  Sheila 
Rush  Okpaku ;  Barbara  B.  Opotowsky :  John  B.  O'Sullivan ; 
David  Paget ;  Don  Allen  Rosnikoff  ;  Donald  K.  Ross  ;  Irving  Scher  ; 
Philip  Sclirag ;  Andrew  B.  Schultz  ;  Paul  S.  Shemin  ;  Hon.  Edward 
Thompson  ;  Joseph  L.  Torres. 


Citizens   Committee  for  a  Just   Criminal   Code. 

June  30,  1977. 
John  L.  McClellan, 

Chairmun,  Suhcntnniittce  on  Criminal  Lmcs  and  Procedures,  Committee  on  the 
Judiciary,  U.S.  Senate,  WasJiington,  D.C. 
Dear   Senator  McClellan  :   The  enclosed   is   the  written   testimony  of  the 
Citizens  Committee  for  a  Just  Criminal  Code  on  S.  1437,  the  "Criminal  Code 
Reform  Act  of  1977". 

We  thank  you  for  the  opportunity  to  testify  in  these  hearings  and  vrould 
appreciate  receiving  a  copy  of  the  proceedings  as  soon  as  it  is  available. 
Sincerely  yours, 

Shelvin  Singer,  Chairperson. 

Prepared  Testimony  of  Shelvin  Singer  on  S.  1437 

The  Citizens  Committee  for  a  Just  Criminal  Code  is  dedicated  to  the  single 
issue  of  securing  passage  of  a  federal  criminal  code  which  is  consistent  with 
the  open  and  free  spirit  upon  which  American  freedoms,  the  Constitution  and 
the  Bill  of  Rights  are  based ;  and  to  defeat  all  attempts  by  Congress  to  enact 
a  repressive  criminal  code.  The  CCJCC  is  an  outgrowth  of  the  "Greater  Chicago 
Town  Meeting  on  Senate  Bill  One"',  held  on  January  18th,  1976,  which  was 
attended  by  over  500  representatives  of  135  co-sponsoring  groups  who  came  to 
"alert  and  inform  the  community  of  the  dangers  of  the  bill  and  to  encourage 
communication  from  constituents  to  Senators  and  Representatives".  At  this 
writing,  44  organizations  and  many  more  individuals  officially  participate  in 
tlie  CCJCC. 

At  the  June  2ord,  3977  meeting  of  the  Citizens  Committee  for  a  Just  Criminal 
Code,  guidelines  and  principles  for  the  following  statement  on  S.  1437,  "The 
Criminal  Code  Reform  Act  of  1977",  were  apjiroved  for  submission  to  the  Sub- 
committee on  Criminal  Laws  and  Procedures  for  consideration  and  action: 

In  1970,  the  CCJCC  advised  participating  and  other  interested  organizations 
and  individuals  that  a  "bias  toward  authoritarian  government  permeates  S.  1" 


"TI.K.    12.">04   nlso    anthorl'/ps   similar   rcliof   in    certain    ntlier   cnses. 

*  Thp  Associntion  of  tlio  Bar  of  Tlic  City  of  Now  York.  Spofinl  Conimittop  on  Proposed 
New  Federal  rriminal  Code,  the  New  Criminal  Code  I'roposed  by  the  National  Commission 
on  Reform  of  Federal  Criminal  Laws  SI  (1072)  ;  Three  Versions  of  A  Proposed  New 
Criminal  Code  71  (1!I74):  Reform  of  the  Federal  Criminal  Laws.  Hoarinps  Before  the 
Piiheoi'imittee  on  Criminal  Laws  and  Procedures  of  tlie  Committee  on  the  Senate  .Tudiciarv 
Compiitte...  O.Sd  Coni.'..  1st  Sess..  Part  IX  nt  64S2-S4  (1973)  :  see  also  Pugach  v.  Dollingcr, 
27.5  F.2d  .'-.O;^,  ,^07  (2d  Cir.  litfiO). 

°  See  Brief  for  the  T'nited  States  at  7-S,  ZnrJiirk  v.  T'nitrd  FHatrs.  44S  F.2d  ."^."^n.  .?42 
(;2d  Clr.  1071):  Comment.  "Roadblocks  to  Remedy  in  Consumer  Fraud  Litigatoin,"  24 
Case- Western  Reserve  L.  Rev.  144,  147  (1072). 


9431 

and  that  an  alternative  code  introduced  in  the  House  as  H.R.  10S50  "seeks  to 
restore  the  balance  between  the  rights  and  liberties  of  citizens  and  powers  of 
government". 

On  June  23rd,  1977,  a  full  meeting  of  the  CCJCC  approved  a  statement  by 
Professors  Thomas  Emerson,  Vern  Countryman,  and  Carole  Goldberg^  entitled, 
"Analysis  of  S.  1437,  the  McClellan-Keunedy  Criminal  Code  Reform  Act  of 
1977",  in  which  it  was  succinctly  stated :  "We  continue  to  support  revision  and 
codification  of  the  Federal  Criminal  Code.  But  we  do  not  believe  that  such 
reform  should  be  achieved  at  the  price  of  sacrificing  our  civil  liberties." 

This  statement  sums  up  the  commitment  and  belief  of  the  CCJCC  and  we 
urge  the  Subcommittee  on  Criminal  Laws  and  Procedures  to  adopt  this  same 
standard  in  their  consideration  of  any  bill  purporting  to  reform  and  codify 
federal  criminal  laws.  Despite  changes  from  the  text  of  Senate  Bill  One  in  the 
94th  Congress,  we  do  not  believe  that  Senate  Bill  1437  meets  this  standard. 

OUTLINE   OF   REPRESSIVE   PROVISIONS 

The  Emerson/Countryman/Goldberg  statement  outlines  twelve  repressive  and 
potentially  repressive  features  of  S.  1437  that  contribute  to  the  assessment  of 
the  likely  unamendability  of  the  bill.  In  brief  these  are:  (1)  the  inchoate  of- 
fenses which  are  dangerously  vague  and  overbroad  so  as  to  criminalize  innocent 
behavior;  (2)  "official  secrets  act"  provisions  in  the  bill  as  well  as  those  left 
intact  in  present  law;  (3)  provisions  attempting  to  protect  the  executive  branch 
of  government  from  political  opposition;  (4)  provisions  infringing  upon  First 
Amendment  rights  to  demonstrate  and  protest  with  regard  to  proceedings  of  the 
judicial  branch;  (5)  provisions  to  shield  military  and  defense  operations  from 
political  opposition;  (6)  provisions  dangerously  limiting  the  right  of  assembly 
and  demonstrations  in  general;  (7)  provisions  that  will  increase  the  dangers 
inherent  in  political  investigations  and  political  surveillance;  (8)  provisions 
that  would  provide  for  overbroad  extensions  of  police  powers;  (9)  provisions 
that  will  endanger  legitimate  union  activities;  (10)  provisions  aimed  at  obscen- 
ity, but  which  are  so  broad  as  to  endanger  legitimate  free  speech;  (11)  reforms 
of  the  penalty  and  sentencing  procedures  that  do  not  address  the  deficiencies  of 
the  present-day  criminal  justice  system,  and  which  remove  legitimate  law- 
maldng  discretion  from  the  Congress ;  (12)  probation  and  parole  provisions  which 
do  not  conform  to  the  reforms  recommended  by  the  Brown  Commission. 

A  broad,  national  citizens  movement,  of  which  the  CCJCC  was  a  part,  grew 
up  last  year  to  oppose  S.  1  and  criticize  its  anti-democratic  provisions.  This 
movement  was  instrumental  in  preventing  passage  of  the  bill  by  our  Bicen- 
tennial Congress.  It  is  apparent  that  some  of  the  specific  criticisms  of  that  move- 
ment led  to  changes  in  text  which  were  unsuccessfully  proposed  as  amendments 
last  year,  and  carried  over  into  the  text  of  S.  1437  this  year.  However,  a  study 
of  the  total  impact  of  these  changes  reveals  that  in  large  part  they  are  token 
and  illusory  and  do  not  address  the  fundamental  repressive  character  of  the  bill. 

The  CCJCC  is  especially  cognizant  of  the  failure  of  the  drafters  of  the  bill  to 
propose  reform  in  important  areas  of  present  law,  particularly  espionage,  elec- 
tronic eavesdropping,  lal)or  rights,  and  codification  of  general  defenses. 

The  piecemeal  introduction  of  S.  1382  and  S.  15G6,  bills  providing  for  an 
expanded  federal  death  penalty  and  a  legitimizing  of  government  wiretapping 
abuses,  betray  the  original  mandate  given  to  the  National  Commission  on 
Reform  of  Federal  Criminal  Laws  (Brown  Commission)  to  "improve  the 
federal  system  of  criminal  justice". 

AN   ALTERNATIA'E 

The  CCJCC  urges  that  H.R.  2311,  "The  Federal  Criminal  Law  Revision  and 
Constitutional  Rights  Preservation  Act  of  197G",  be  considered  as  a  basis  for 
writing  a  just  criminal  code.  The  only  satisfactory  procedure  in  consideration  of 
such  omnibus  legislation  is  to  start  the  legislative  process  with  an  acceptable 
bill.  H.R.  2311,  a  revision  of  H.R.  108.50  in  the  94th  Congress,  is  based  upon 
sound  democratic  principles  and  such  defects  as  appear  can  be  cured,  or  changes 
made,  in  the  course  of  the  regular  legislative  process. 

NEED   FOR   FURTHER    HEARINGS 

The  democratic  process  requires  that  bills,  such  as  S.  1437  and  H.R.  2311. 
which  will  have  far-reaching  consequences  for  the  American  people,  should  re- 

1  Statement  submitted  as  testimony  before  this  Subcommittee  on  June  21.  1977. 
92-465—77 55 


9432 

,ceive  the  fullest  possible  public  scrutiny  and  input  prior  to  passage.  The  five 
days  of  hearings  on  S.  1437  which  have  already  taken  place  are  worefully  inade- 
quate to  meet  this  basic  requirement.  This  is  particularly  evident  in  light  of 
the  fact  that  the  majority  of  these  hearings  was  devoted  to  a  very  small  part 
of  the  bill,  the  sentencing  provisions,  almost  totally  ignoring  the  imiK)rtant 
iivil  rights  and  civil  liberties  provisions  which  aroused  wdespread  public  pro- 
test last  year. 

The  CCJCC  urges  the  Subcommittee  on  Criminal  Laws  and  Procedures  to 
hold  fruther  extensive  hearings  on  proposals  to  reform  and  revise  the  criminal 
code.  We  urge  that  the  text  of  H.R.  2311  bo  considered  in  these  hearings  as  a 
basis  for  a  constructive  and  democratic  alternative  to  S.  1437. 


University  of  Colorado  at  Bovlder. 

School  of  Law, 
Boulder,  Colo.,  June  3G,  1977. 
Kenneth  R.  Feinberg, 
Office  of  Senator  Edivard  M.  Kennedy, 
U.S.  Senate,  Wofihingfon,  D.C. 

Dear  Ken  :  I  like  the  sentencing  provisions  of  your  bill  very  much,  land  you 
are  right  that  plea  bargaining  in  the  federal  courts  is  sufficiently  dilTerent 
from  that  in  the  state  courts  that  the  concerns  which  I  expressed  in  my  Cali- 
fornia talk  are  substantially  less  applicable.  Of  course  the  bill  does  pass  the 
most  critical  sentencing  issues  on  to  the  Commission.  I  believe,  however,  that 
this  approach  is  not  only  'ix)litic"  but  exactly  right  on  the  merits  in  light  of 
our  limited  knowledge. 

It  was  good  to  see  you,  if  only  briefly.  I  wish  that  I  could  persuade  you  to 
build  on  the  sensible  base  that  your  sentencing  bill  establishes  by  starting  work 
on  the  Anti-Plea-Bargaining  Act  of  19S2.  Who  knows?  It  might  be  i)Ossible  to 
turn  the  criminal  justice  system  into  something  vaguely  rational. 

Anyway,  congratulations  on  a  nice  job.  If  you're  making  a  list  of  legal  aca- 
, demies  who  endorse  the  sentencing  reforms  of  S.  1437,  please  add  my  name. 
Sincerely  yours, 

Albert  W.  Alschuleb, 

Professor  of  Law. 


In  the  United  States  District  Court  for  the  Western  District  of  Wisconsin 

75-C-493,  decided  May  6. 1977  ( W.  D.  Wis.) 

Hayward  Brown,  petitioner 

V. 

Norman  Carlson  and  George  Ralston,  respondents 


75-C-607 


Harold  Louis  Walts,  petitioner 

r. 

George  Ralston  and  Norman  Carlson,  respondents 


75-C-544 


Norman  Weaver,  petitioner 

r. 

George  Ralston  and  Norman  Carlson,  respondents 

order 

The.se  are  i)et5tions  for  writs  of  habeas  corpus  proper! v  before  this  cnur^  bv 
virtue  of  28  V.?^.C.  §2241  n070).  Petitioners  are  currontiy  inmates  at  the  Fed- 
eral Correctionnl  Iiistitntion.  Oxford.  Wisconsin.  They  w(>re  sentenced  pursuant 
to  IS  T^S.C.  §.")niO(c).  which  is  a  part  of  the  Federal  Youth  Corrections  Act 
(YCA).  18  U.S.C.  §§  G00r)-r.n20.  Each  petitioner  alleges  that  Oxford  is  not  the 


9433 

type  of  institution  specified  in  the  YCA  for  liis  confinement.  In  addition,  peti- 
tioner Brown  alleges  tliat  he  has  not  been  sent  to  a  classification  center  or 
agency  before  being  sent  to  a  designated  institution  despite  the  requirements  of 
18  U.S.C.  §  5014.  Because  the  issue  presented  in  each  of  these  petitions  regard- 
ing the  propriety  of  each  petitioner's  confinement  at  ()xf()i-d  is  identical,  I  have 
consolidated  the  petitions  for  the  purposes  of  tliis  opinion.  I  now  "dispose  of 
.the  matter  as  law  and  justice  require."  28  U.S.C.  §  2243. 

FACTS 

On  the  basis  of  the  entire  record  in  each  case,  I  find  as  fact  those  matters  set 
"forth  in  this  section  of  this  oi)inion. 

On  January  19,  1954,  the  Deputy  General  of  the  United  States  issued  a  memo- 
randum (memo  no.  64)  to  the  clerks  of  the  United  States  District  Courts,  the 
United  States  Attorneys,  the  United  States  Marshals,  and  the  United  States 
Probation  Officers,  informing  them  that  the  Director  of  the  Bureau  had  certified, 
pursuant  to  18  U.S.C.  §  5012,  that  proper  and  adequate  treatment  facilities  and 
personnel  were  available  for  the  implementation  of  the  YCA  for  the  judicial 
districts  of  the  First,  Second,  Third,  Fourth,  Fifth  (except  for  districts  in  Texas 
and  Louisiana),  Sixth  and  Seventh  Circuits.  The  memorandum  stated  that  the 
availability  of  facilities  for  commitment  of  youths  from  the  remaining  districts 
would  be  announced  as  soon  as  possible.  The  memorandum  continued  : 

"The  Federal  Correctional  Institution  at  Ashland,  Kentucky,  is  being  con- 
verted into  a  Classification  Center  and  treatment  facility  for  youth  offenders  as 
contejnplated  by  the  Act,  and  most  youths  between  the  ages  of  18  and  22  will  be 
committed  to  this  institution.  The  National  Training  School  for  Boys,  Wash- 
ington, D.C.,  will  be  designated  for  selected  youth  offenders.  Under  exceptional 
circumstances  and  where  the  youth  presents  an  unusual  custody  risk,  the  Fed- 
eral Reformatory,  Chillicothe,  Ohio  may  be  designated  initially." 

On  October  4,  1956.  the  Attorney  General  issued  another  memorandum  (memo 
no.  62,  supplement  No.  1)  to  the  same  addressees,  informing  them  that  the  Di- 
rector had  certified  tliat  proper  and  adequate  treatment  facilities  and  personnel 
were  available  for  the  implementation  of  the  YCA  for  the  judicial  districts  of 
the  Eighth,  Ninth  (except  for  Alaska,  Hawaii,  and  Guam),  and  Tenth  Circuits, 
and  for  the  districts  of  Texas  and  Louisiana.  The  memorandum  continued: 

"The  Federal  Correctional  Institution  at  Englewood,  Colorado,  is  being  con- 
verted into  a  classification  center  and  treatment  facility  for  youth  offenders  as 
contemplated  by  the  Act,  and  most  youths  between  the  ages  of  18  and  22  sen- 
tenced under  the  provisions  of  the  Act  from  the  districts  listed  above  will  be 
committed  to  this  institution.  Under  exceptional  circumstances  and  particularly 
where  the  youth  presents  an  unusual  custody  risk,  the  Federal  Reformatory, 
El  Reno.  Oklahoma,  may  be  designated." 

On  June  16,  1975.  the  Director  issued  a  policy  statement  (number  7300.18E) 
on  the  subject  of  "delegation  of  transfer  authority."  By  this  statement,  the  Di- 
rector delegated  to  the  chief  executive  officer  of  each  federal  facility,  and  to 
the  Bureau's  regional  director  of  the  appropriate  region,  the  power  to  transfer 
offenders  from  one  federal  institution  to  another  or  to  an  approved  non-federal 
facility.  The  policy  statement  included  general  guidelines,  a  statement  of  limita- 
tions and  regulations,  a  statement  on  relationship  with  other  governmental  agen- 
cies, and  a  statement  of  procedures,  to  assist  those  to  whom  the  transfer  au- 
thority was  being  delegated.  Also,  attached  to  the  policy  statement  was  an  aiJ- 
pendix  which  provided  current  information  as  to  the  mission  of  each  federal 
correctional  institution  and  described  the  population,  characteristics,  commit- 
ment areas,  security  limitations,  and  significant  program  resources  of  each  in- 
stitution. The  delegates  were  instructed  to  preserve  the  integrity  of  the  mis- 
sions of  the  respective  institutions  when  selecting  an  institution"  as  the  place 
to  which  a  particular  offender  was  to  be  transferred. 

The  policy  statement's  guidelines  provide  that  a  "significant  number  of  trans- 
fers will  be  for  the  purpose  of  placing  newly  committed  offenders  in  institutions 
for  which  they  more  properly  classify."  They  provide  that  at  "an  iiimnte's 
initial  classification,  the  staff  should  attempt  to  plan  a  complete  program  for  the 
entire  period  of  confinement,  including  both  institutional  and  post-release 
phases,"  and  that  in  making  the  nlan.  "all  of  the  resources  of  the  Federal  Prison 
System  should  be  considered."  Also,  they  state  that  generally,  "transfer  consid- 
eration IS  most  appropriately  given  at  the  time  of  intake  screening,  initial  classi- 
fication, or  at  regularly  scJieduled  interviews."  Thev  instruct  'that  transfer 
should  be  considered  when  it  becomes  apparent  that  the  offender's  program  or 


9434 

other  needs  will  be  best  served  by  the  programs  at  another  facility,  when  the 
continuity  of  a  training  program  or  treatment  program  or  both  requires  it,  and 
when  the  resources  of  the  present  institution  are  inadequate  to  meet  the  of- 
fender's needs.  It  appears  from  the  policy  statement  that  more  particular  reasons 
for  transfers  may  include:  that  the  transferee  institution  is  geographically 
closer  to  the  point  at  which  the  offender  is  to  be  released ;  that  poor  institutional 
adjustment  or  attempts  at  escape  indicate  the  need  for  closer  supervision  and 
controls ;  that  medical  attention  is  required  or  that  it  has  been  completed ;  that 
work  release  or  study  release  is  possible  at  the  transferee  institution ;  that  the 
transferee  is  a  community  center ;  that  overcrowding  at  the  transferor  institu- 
tion requires  it ;  or  that  there  is  a  need  to  build  up  the  jwpulation  at  the  trans- 
feree institution. 

With  specific  reference  to  the  YCA,  policy  statement  7300.13E  provides: 

"Youth  Corrections  Act  commitments  shall  be  classified  at  the  receiving  insti- 
tution, where  the  initial  parole  hearing  will  also  be  given.  Following  tliis 
hearing,  or  any  appropriate  time  thereafter,  the  youth  offender  may  be  trans- 
ferred by  delegated  authority  to  another  more  appropriate  youth  institution, 
without  referral  to  the  Regional  Case  Management  Brunch.  Youth  offenders 
recommended  for  an  adult  correctional  facility  at  the  time  of  initial  classifica- 
tion or  at  any  later  date,  shall  be  referred  to  the  Regional  Administrator,  Case 
Management  Branch  for  approval.  [At  this  point  reference  is  made  to  another 
portion  of  policy  statement  7000.13E  relating  to  the  timing  of  transfers  in 
relation  to  initial  parole  hearings  for  YCA  offenders.  The  reference  does  not 
appear  to  be  pertinent  to  the  issues  in  the  present  cases.] 

"Any  youth  offender,  having  once  been  authorized  for  transfer  to  an  adult 
Federal  Correctional  Institution,  may  be  transferred  under  delegated  authority 
to  some  other,  more  appropriate,  adult  FCI.  However,  any  youth  offender 
authorized  for  transfer  to  a  penitentiary  by  the  Regional  Oflice  may  not  be 
transferred  to  another  penitentiary  under  delegated  authority  ;  each  transfer 
of  this  nature  must  be  approved  by  the  Regional  Case  Management  Branch." 

In  the  descriptions  of  individual  correctional  institutions  embodied  in 
Appendix  A  to  policy  statement  7300.13E,  there  are  occasional  references  to 
YCA,  but  there  is  no  systematic  statement  of  those  to  which  YCA  olTenders 
may  or  may  not  be  committed  initially  or  transferred.  As  to  Oxford  specifically, 
there  is  no  reference  to  YCA ;  it  is  said  that  the  "population  is  composed  of" 
medium  to  long  term  young  male  adults."'  that  Oxford  is  not  suitable  for  juvenile 
offenders  and  that  the  age  range  is  "21  to  2S  at  time  of  commitment." 

Among  the  56  institutions  operated  by  the  Bureau  of  Prisons,  there  are  12 
facilities  which  are  classified  either  as  juvenile  and  youth  institutions  (4)  or 
as  young  adult  institutions  (8). 

Apparently  as  a  matter  of  operating  policy,  not  made  exphcit  in  memorandum 
no.  64,  memorandum  no.  62  (supplement  no.  1),  or  policy  statement  number 
7.300.13E,  above,  the  Bureau  has  designated  these  12  institutions  as  the  standard 
institutions  for  initial  commitment  of  prisoners  sentenced  under  the  YCA. 

The  Bureau  does  not  maintain  any  institution  which  is  used  exclusively  for 
prisoners  serving  YCA  sentences  (hereafter  referred  to  as  "YCA  offenders"). 
At  least  27  percent  of  the  population  of  each  Bureau  of  Prisons  institution  is- 
composed  of  prisoners  serving  adult  sentences  (that  is,  sentences  not  imposed 
under  YCA). 

The  Federal  Correctional  Institution.  Oxford.  "Wisconsin,  is  classified  as  a 
medium  .security  young  adult  institution.  The  inmates  at  Oxford  are  persons 
who  have  been  committed  to  medium  and  long-term  sentences,  and  they  have 
an  age  range  of  21  to  2S  years  at  the  time  of  commitment.  The  average  age  of 
all  inmates  at  Oxford  on  May  5, 1976.  was  24.08  years. 

Among  the  May  T),  1076.  population  at  Oxford,  12  percent  of  the  inmates  were 
serving  commitments  under  YCA  sentencing  provisions  and  the  remaining  in- 
mates were  serving  commitments  under  adult  sentencing  provisions.  Persons  serv- 
ing YCA  sentences  at  Oxford  are  not  separated  from  those  serving  adult  sen- 
tences, either  in  their  treatment  programs  or  in  their  housing  units. 

The  Bureau  does  not  maintain  any  institutions  wliicli  are  used  exclusively 
as  centers  for  initial  study  or  classification  of  prisoners,  but  instead  uses  each 
of  its  institutions  as  the  site  of  a  classification  center  for  prisoners  designated 
to  serve  sentences  tliere.  It  is  an  infrequent  occasion  on  which,  either  before 
or  after  the  admission  and  orientation  program  at  such  institution  has  been 
completed,   the  initial  designation  of  an  institution  for  service  of  sentence  is 


9435 

changed  because  it  has  been  determined  that  an  improper  designation  has  been 
made. 

Upon  arrival  at  Oxford,  now  inmates  are  placed  in  an  admission  and  orientation 
program,  whieli  lasts  approximately  three  weeks  and  whicli  provides  new  inmates 
with  information  about  the  treatment  programs  available  at  the  institution. 
The  new  inmates  are  given  physical  and  dental  examinations,  and  undergo  edxi- 
cational  and  psychological  testing. 

At  the  conclusion  of  the  admission  and  orientation  period  at  Oxford,  an  inmate 
is  assigned  to  one  of  three  functional  units  there,  on  the  basis  of  an  evaluation  by 
the  institution's  psychology  department  of  the  personality  traits  observed  and 
studied  by  the  case  manager,  correctional  counselor,  and  unit  officer  during 
the  admission  and  orientation  i)eriod.  The  three  functional  units  at  Oxford  are 
divided  into:  (1)  the  most  manipulative  and  criminally  oriented  inmates;  (2) 
the  inmates  least  likely  to  revert  to  crime  when  released;  and  (3)  an  intermedi- 
ate group  of  inmates.  About  two  weeks  after  an  inmate  has  been  assigned  to  one 
of  tlie  three  functional  units,  a  classitication  interview  is  provided  Iiim  by  four 
staff  members  to  discuss  his  treatment  needs,  goals,  and  institutional  program 
preferences.  No  distinction  is  made  between  YCA  and  non-YCA  olfenders  in  the 
course  of  this  admission,  orientation,  and  assignment  pi'ocedure. 

Oxford  was  originally  designed  architecturally  by  the  State  of  Wisconsin  as 
an  institution  for  youth  offenders,  and  since  its  acquisition  by  the  Federal  Bureau 
of  Prisons  it  lias  always  been  used  by  the  Bureau  as  an  institution  for  youthful 
offenders.  The  ratio  of  inmates  to  case  managers  is  63  to  1,  and  to  counseloi's 
75  to  1.  At  federal  adult  institutions,  equivalent  ratios  on  the  average  are  100  to 
1,  and  85  or  90  to  1. 

The  rehabilitative  programs  available  to  inmates  at  Oxford  include  adult 
basic  education,  general  educational  development.  11  college  courses  (for  the 
spring  semester  of  1976)  taught  by  the  faculty  of  tlie  University  of  Wisconsin 
at  Baraboo,  one  group  counselling  program  conducted  by  a  clinical  psychologist, 
additional  group  counselling  programs,  vocational  tmining  in  food  management 
leading  to  an  assoc-iate  of  arts  degree,  vocational  training  in  drafting,  trans- 
actional analysis  group  thereapy,  a  self-improvement  organization  seminar  con- 
ducted by  inmates,  a  self-improvement  seminar  conducte<:l  by  outside  consultants, 
and  federal  prison  industries  training  in  plastic  products  manufacturing  and 
electronic  cable  assembly. 

Inmates  are  not  assigned  to  the  various  programs.  The  inmates  are  responsible 
for  voluntary  selection  and  participation  in  programs.  YCA  offenders  are  given 
no  priority  in  these  programs. 

The  Bureau  has  determined  that  the  12  institutions  which  it  designates  for 
the  confinement  of  YCA  offenders  and  the  treatment,  programs  made  available 
there  to  YCA  offenders,  meet  the  requirements  of  the  YCA.  Based  upon  criteria 
of  age,  offense,  prior  record,  security  requirements,  and  special  treatment  needs, 
the  Bureaii  has  determined  that  many  other  ofTendei-s  not  sentenced  under  YCA, 
will  also  benefit  from  confinement  in  the  same  institutions,  and  from  the  oppor- 
tunity to  participate  in  tlie  same  treatment  programs.  Therefore,  the  members 
of  the  latter  category  (which  is  far  more  numerous  than  the  YCA  offender  cate- 
gory) are  confined  in  the  same  institutions  and  are  given  the  opportunity  to 
participate  in  the  same  treatment  programs  as  those  designated  for  YCA 
offenders. 

As  of  spring  1976,  there  were  approximately  2700  YCA  offenders  in  confine- 
ment in  the  United  States.  If  they  were  confined  in  a  tew  institutions,  perhaps 
five,  from  which  all  other  ofi'enders  were  excluded,  it  would  be  more  difficult  in 
some  degree  to  maitain  ties  with  their  families  and  communities  than  it  is  when 
YCA  offenders  are  distributed  among  12  institutions. 

AVith  respect  to  administrative  remedies,  although  the  records  in  these  cases 
are  not  explicit,  the  parties  appear  to  agree,  and  I  find,  that  the  administrative 
procedures  available  to  these  petitioners  are  as  they  are  described  in  Craimtt  v. 
Thomas,  399  F.  Supp.  956,  961  (W.D.  Wis.  1975). 

75-C-'ifl3 

On  July  30,  1975,  petitioner  Brown  was  convicted  of  possession  of :  3  un- 
registered destructive  devices  (Molotov  cocktails)  ;  destruction  by  explosion  of  a 
Planned  Parenthood  clinic  in  Detroit,  Michigan  :  and  causing  personal  injury  to 
a  doctor.  On  the  date  of  conviction,  petitioner  Brown  was  20  years  old.  He  has 
no  other  adult  convictions.  He  has  seiwed  one  juvenile  commitment  for  break- 
ing and  entering,  and  has  been  arrested  several  times.  On  July  30,  1975,  he  was 


9436 

sentenced  by  the  United  States  District  Court  for  the  Eastern  District  of  Michi- 
gan to  an  S-year  commitment  "for  treatment  and  supervision  pursuant  to  Title 
IS,  U.S.C.  §  5010(c)." 

After  being  temporarily  detained  one  day  at  the  Oakland  County  Jail,  Pontiac,. 
Michigan,  and  eight  days  at  the  Federal  Correctional  Institution.  Milan,  Michi- 
gan, petitioner  was  transported  to  the  Federal  Correctional  Institution,  Oxford, 
which  was  designated  by  the  Bureau  of  Prisons  as  the  place  for  service  of  peti- 
tioner's sentence.  At  no  time  prior  to  incarceration  at  Oxford  was  petitioner 
committed  to  any  classification  center  or  agency  for  study  and  analysis. 

Upon  arrival  at  Oxford,  petitioner  was  placed  in  the  institution's  admission 
and  orientation  program.  At  the  conclusion  of  that  program  petitioner  was  placed 
in  the  functional  unit  provided  for  those  inmates  considered  to  be  most  manip- 
ulative and  criminally  oriented. 

Petitioner  Brown  has  participated  in  several  educational  programs  since  his 
arrival  at  Oxford.  He  has  not  been  separated  from  inmates  serving  adult  sen- 
tences in  either  his  treatment  programs  or  in  his  housing  unit. 

15-0-51,1, 

Petitioner  Weaver  was  found  guilty  of  armed  hank  robbery.  On  the  date  of 
conviction,  petitioner  Weaver  was  23  years  old.  The  United  States  District  Court 
for  the  Northern  District  of  Ohio,  Eastern  Division,  found  that  he  was  "suitable 
for  handling  under  the  Federal  Youth  Correction  Act  as  a  young  adult  offender. 
Title  18,  Section  4209,  U.S.C."  and  on  June  IS,  1975.  sentenced  him  to  a  term  of 
imprisonment  of  eight  and  one-half  years,  pursuant  to  18  U.S.C.  §  5010(c). 

On  July  1,  1975,  petitioner  Weaver  was  delivered  to  the  Federal  Correctional 
Institution  at  Milan,  JNlichigan.  On  August  20,  1975,  he  was  transferred  to  the 
Federal  Correctional  Institution,  Oxford.  Petitioner  has  not  been  separated  from 
inmates  serving  adult  sentences  in  either  his  treatment  programs  or  his  housing 
unit. 

15-C-GOl 

On  April  7,  1975.  petitioner  Walls  was  sentenced  by  the  United  States  District 
Court  for  the  District  of  Minnesota  pursuant  to  18  U.S.C.  §  5010(c).  On  April  17, 
1975,  he  was  delivered  to  the  Federal  Correctional  Institution  at  Oxford,  Wis- 
consin. He  has  not  been  separated  from  inmates  serving  adult  sentences  in 
either  his  treatment  programs  or  his  housing  luiit. 

OPINION 

In  75-C-493  nnd  7.5-C-.544  respondents  contend  that  since  petitioners  have  not 
exhausted  their  administrative  remedies,  their  claims  should  not  be  considered  by 
this  court  at  this  time.^ 

In  the  absence  of  a  statutory  requirement,  the  application  of  the  exhaustion 
doctrine  to  a  particular  case  is  within  the  court's  discretion.  Crnraft  v.  Tho»ia)^. 
.390  F.  Supp.  9.56.  9GS  (W.D.  Wis.  1975).  The  more  closely  the  particular  admin- 
istrative procedures  resemble  court  procedures,  the  more  forceful  the  argument 
that  the  aggrieved  party  should  be  required  to  exhaust  those  procedures.  Inmate 
grievance  procedures  differ  from  court  proceduri's  In  significant  respects.  Accord- 
ingly, resjtondents  in  cases  such  as  these  must  "make  a  showino-  of  particularized 
need"  that  an  himate  should  be  required  to  exhaust  the  inmate  grievance  proce- 
dures. Craratt  at  969.  Respondents  liave  failed  to  make  this  showing. 

Re.spondents  make  two  somewhat  contradictory  arguments.  The  first  is  that 
since  the  petitioners  are  seeking  a  transfer  to  another  institution  which  is  more 
suitable  for  service  of  their  sentence,  the  issue  is  factual,  and  the  Bureau  should 
be  given  the  opportunity  to  consider  whether  the  facts  of  each  i>etitioner's  par- 
ticuhir  case  warrant  a  trnnsfer.  This  argument  view-s  the  i>etitions  ton  narrowly. 
Tliey  are  not  simply  cl;iims  by  meml)ers  of  the  general  i)oiiulation  of  the  fediM'al 
correctional  institutions  system  tliat  in  their  particular  cases  one  existing  correc- 
tional institution  is  more  suitable  than  another.  l)ut  rather  they  are  claims  th.it 
respondents  are  failing  to  cotifine  them  as  YC.\  offenders  in  the  kind  of  institution, 
and  to  Jifford  them  th(>  Idnd  of  jjrogr.sms.  which  C<ingress  direct cd.  Even  were  I  to 
view  ])eritioners'  claims  so  narrowly,  respondents  have  made  no  showing  that  the 
procedures  avjiilable  to  petitioners  would  serve  as  adequate  fact-finding  vehicles, 
or  that  the  administrative  record  would  provide  any  as.sistance  in  the  course 
of  subsequent  .iudicial  inquiry. 


1 1  coiifliiilp  tliiit  tlie  coiitrovprsles  in  these  cnses  s.itisfy  the  criteria  for  ripeness  set  fortlu 
in  Crnvatt  v.  Thomas,  399  F.  Supp.  956,  9G5-966   (W.D.  Wis.  1975). 


9437 

Respondents'  second  argument  is  that  even  though  this  court  might  generally 
be  reluctant  to  require  exhaustion  absent  a  more  formal  administrative  proce- 
dure, a  more  formal  procedure  is  not  necessary  in  these  cases  because  the  "thrust 
of  petitioner [s]'  contentions  before  the  Court  are  directed  not  at  factual  deter- 
minations by  the  Bureau  in  [their]  cases [s]  but  rather  at  the  legality  of  a  general 
Bureau  policy."  But  if  the  issue  in  question  in  these  cases  is  purely  legal,  a  require- 
ment of  exhaustion  is  inappropriate.  Cravaft,  supra,  at  970. 

I  conclude  that  exhaustion  of  the  Bureau's  grievance  procedures  should  not  be- 
required  in  these  cases. 

A.  The  statutory  scheme 

Section  4082  of  Title  18.  which  was  enacted  long  before  1950,  when  the  YCA 
became  law,  provides  in  part : 

"(a)    A  person   convicted  of  an  offense  against  the  United   States  shall  be 
committed,  for  such  term  of  imprisonment  as  the  court  may  direct,  to  the  custody 
of  the  Attorney  General  of  the  United  States,  who  shall  designate  the  place  of 
confinement  where  the  sentence  shall  be  served. 

"(b)  The  Attorney  General  may  designate  as  a  place  of  confinement  any  avail- 
able, suitable,  and  appropriate  institution  or  facility,  whether  maintained  by  the- 
Federal  Government  or  otherwise,  and  whether  within  or  without  the  judicial 
district  in  v.'hich  the  person  was  convicted,  and  may  at  any  time  transfer  a  person 
from  one  place  of  confinement  to  another." 

Tlie  Attorney  General  has  delegated  to  the  Director  of  the  Bureau  of  Prisons 
the  power  to  designate  places  of  confinement  conferred  by  §  4082.  28  C.F.R. 
§  0.96(c). 

The  YCA  sets  forth  for  the  discretionary  use  of  federal  judges  a  system  for 
the  sentencing  and  treatment  of  eligible  young  offenders.  As  defined  in  18  U.S.C. 
§§  5006(e)  and  (f),  a  "youth  offender"  is  a  person  under  the  age  of  twenty-two 
at  the  time  of  conviction,  and  a  "committed  youth  offender"  is  one  who  is  .sen- 
tenced pursuant  to  18  U.S.C.  §§  5010(b)  or  (c)  : 

"(b)  If  the  court  shall  find  that  a  convicted  person  is  a  youth  offender,  and 
the  offense  is  punishable  by  imprisonment  under  applicable  provisions  of  law 
other  than  this  subsection,  the  court  may.  in  lieu  of  the  penalty  of  imprisonment 
otherwise  provided  by  law,  sentence  the  youth  offender  to  the  custody  of  the 
Attorney  General  for  treatment  and  sui>ervision  pursuant  to  this  chapter  until 
discharged  by  the  Commission  as  provided  in  section  5017(c)  of  this  chapter;  or 

"(c)  If  the  court  shall  find  that  the  youth  otTender  may  not  be  able  to  dei'ive' 
maximum  benefit  from  treatment  by  the  Conunission  prior  to  the  expiration  of 
six  years  from  the  date  of  conviction  it  may.  in  lieu  of  the  ])enalty  of  imprison- 
ment otherwise  provided  by  law,  sentence  the  youth  offender  to  the  custody  of 
the  Attorne.v  General  for  treatment  and  supervision  pursuant  to  this  chaj)ter 
for  any  further  period  that  may  be  authorized  by  law  for  the  offense  or  offenses 
of  which  he  stands  convicted  or  until  discharged  by  the  Commission  as  provided 
in  section  5017(d)  of  this  chapter." 

Sections  5017(c)  and  (d)  provide: 

"(c)  A  youth  offender  committed  under  section  5010(b)  of  this  chapter  shall  be 
released  conditionally  under  sui>ervision  on  or  before  the  expiration  of  four  years 
from  the  date  of  his  conviction  and  shall  be  discharged  imconditionally  on  or 
before  six  years  from  the  date  of  his  conviction. 

"(d)  A  youth  offender  committed  under  section  5010(c)  of  this  chapter  shall 
be  released  conditionally  under  sujiervision  not  later  than  two  years  before  the 
expiration  of  the  term  imposed  by  the  court.  He  may  be  discharged  unconditionally 
at  the  expiration  of  not  less  than  one  year  from  the  date  of  his  conditional 
release.  He  shall  be  discharged  unconditionally  on  or  befoi-e  the  expiration  of 
the  maximum  sentence  imposed,  computed  vininterruptedly  from  the  date  of 
conviction." 

Under  certain  circumstances  a  federal  judge  may  also  sentence  young  adult 
offenders  (offenders  between  the  ages  of  22  and  25,  inclusive,  at  the  time  of 
conviction)  pursuant  to  the  provisions  of  the  YCA.  18  U.S.C.  §  4216. 

Section  5014  states,  in  i)art : 

"Classification  studies  and  reports 

"The  Director  shall  provide  classification  centers  and  agencies.  Every  com- 
mitted youth  offender  shall  first  be  sent  to  a  classification  center  or  agency. 
The  classification  center  or  agency  shall  make  a  complete  study  of  each  com- 
mitted youth  offender,  including  a  mental  and  physical  examination,  to  ascer- 
tain his  personal  traits,  his  capabilities,  pertinent  circumstances  of  his  school, 
family  life,  any  previous  delinquency  or  criminal  experience,  and  any  mental 


9438 

or  physical  defect  or  other  factor  contributing  to  his  delinquency.  In  the  absence 
of  exceptional  circumstances,  such  study  shall  be  completed  within  a  period 
of  thirty  days." " 

Section  5015(a)  states: 

'•(a)  On  receipt  of  the  report  and  recommendations  from  the  classification 
agency  any  Director  may — 

•■(1)  recommend  to  the  Division  [now  to  the  Tarole  Commission]  that  the 
committed  youth  offender  be  released  conditionally  under  supervision ;  or 

"(2)  allocate  and  direct  the  transfer  of  the  committed  youth  offender  to  an 
agency  or  institution  for  treatment ;  or 

"(3)  order  the  committed  youth  offender  confined  and  afforded  treatment 
under  such  conditions  as  he  believes  best  designed  for  the  protection  of  the 
public." 

Section  5011  provides : 

"tkeatment 

"Committed  youth  offenders  not  conditionally  released  shall  undergo  treat- 
ment in  institutions  of  maximum  security,  medium  security,  or  minimum  .security 
types,  including  training  schools,  hospitals,  farms,  forestry  and  other  camps, 
and  other  agencies  that  will  provide  the  essential  varieties  of  treatment.  The 
Director  .shall  from  time  to  time  designate,  set  aside,  and  adapt  institutions  and 
agencies  under  the  control  of  the  Department  of  Justice  for  treatment.  Insofar 
as  practical,  such  institutions  and  agencies  shall  be  used  only  for  treatment 
of  committed  youth  offenders,  and  such  youth  offenders  shall  be  segregated  from 
other  offenders,  and  classes  of  committed  youth  ofl'enders  shall  be  segregated 
according  to  their  needs  for  treatment." 

Section  5012  provides  : 

"No  youth  offender  shall  be  committed  to  the  Attorney  General  under  this 
chapter  until  the  Director  shall  certify  that  proper  and  adequate  treatment 
facilities  and  personnel  have  been  provided." 

Other  pertinent  provisions  of  the  YCA  will  be  referred  to  in  the  following 
■discussion. 

B.  The  congressional  history 

The  legislative  history  reveals  that  the  YCA  was  the  outgrowth  of  studies 
which  concluded  that  the  period  of  life  between  10  and  22  years  of  age  is  the 
time  when  special  factors  operate  to  produce  habitual  criminals.^  Then  existing 
methods  of  dealing  with  criminally  inclined  youths  were  found  inadequate 
in  avoiding  recidivism. 

'•I>y  herding  youth  with  maturity,  the  novice  with  the  sophisticate,  the  im- 
pressionable with  the  hardened,  and  by  subjecting  youth  offenders  to  the  evil 
influences  of  older  criminals  and  their  teaching  of  tTiminal  techniques,  without 
the  inhibitions  that  come  from  normal  contacts  and  counteracting  prophylaxis, 
many  of  our  penal  institutions  actively  spreiad  the  infection  of  crime  and 
foster,  rather  than  check  it."  H.R.  Hep.  No.  2979,  Slst  Cong.,  2d  Sess.  (1950) 
(hereinafter  II. R.  Uep.  No.  2979)  :  1950  U.S.  Code  Cong.  Service,  p.  3985. 

As  a  result  of  this  dissatisfaction  with  existing  methods  of  dealing  with 
young  offenders,  Congress  established  a  system  of  sentencing  and  treatment 
designed  to : 

".  .  .  promote  the  rehabilitation  of  those  who  in  the  opinion  of  the  sentencing 
judge  show  i)roniise  of  liecoming  useful  citizens,  and  so  will  avoid  the  degener- 
ative and  needless  transformation  of  many  of  those  persons  into  habitual  crimi- 
nals. .  .  .  The  underlying  theory  of  the  bill  is  to  substitute  for  retributive 
punishment  methods  of  training  and  treatment  designed  to  correct  and  prevent 
antisocial  tendencies.  It  departs  from  tlie  more  punitive  idea  of  dealing  with 
criminals  and  looks  primarily  to  the  objective  idea  of  rehabilitation."  II. K.  Rep. 
No.  2979  :  19.-)0  U.S.  Code  Cong.  Service,  pp.  3983,  3985. 

-  At  the  timo  o.ich  of  these  petitioners  was  sentenced,  the  remainder  of  Section  ."014  read  : 
"Tlie  af,'ency  .shall  proni|itly  forward  to  the  Director  and  to  the  Di\ision  a  report  of  Its 
findings  with  respect  to  the  youth  offender  and  its  recommendations  as  to  his  treatment.  At 
least  one  member  of  the  Division,  or  an  examiner  designated  by  the  I>lvislon,  shall,  as  soon 
as  practicable  after  commitment,  interview  the  youth  offender,  review  all  reports  conceru- 
ins  him,  and  make  such  recommendations  to  the  Director  and  to  the  Division  as  may  be 
Indicated."  These  provisions  have  since  been  modified  to  provide  that  the  agency  report  go 
to  the  I'arole  Commission  and  that  the  youth  offender  receive  a  parole  Interview  promptly 
after  commitment. 

3  Although  tl'.e  YCA  has  been  amended  a  number  of  times  since  1950,  the  amendments  are 
not  relevant  to  the  issues  presented  in  these  cases. 


9439 

Thus,  by  enactment  of  the  YCA,  Congress  hoped  to  provide  a  better  method 
for  treating  certain  young  offenders  to  be  selected  by  the  sentencing  judges,  and 
thereby  to  rehabilitate  these  offenders.  Dorszynski  v.  United  States,  418  U.S. 
424.  433  (1974).  Rehabilitation  is  the  "underlying  theory"  of  the  YCA  (H.R. 
Kep.  No.  2970;  1950  U.S.  Code  Cong.  Service,  p.  3985).  This  House  committee 
report,  as  well  as  Senate  Report  No.  1180,  81st  Congress,  1st  Session,  1949, 
emphasize  the  objective  of  rehabilitation  as  contrasted  with  what  were  per- 
ceived as  traditional  goals  in  the  continement  of  non-YCA  offenders.  They 
include  pointed  discussion  of  the  programs  of  individualized  treatment  em- 
bodied in  the  English  Borstal  system,  on  which  the  YCA  was  said  to  have  been 
modeled. 

C.  The  meHts 

The  general  and  pronounced  pattern  in  the  federal  correctional  scheme  is  that 
sentencing  judges  decide  whether  an  offender  is  to  be  imprisoned,  but  "imprison- 
ment" is  left  undefined  by  Congress  and  by  the  court's  judgment.  The  word  is 
defined,  and  the  everyday  reality  of  life  in  confinement  is  determined  admin- 
istratively by  the  Bureau  of  Prisons.  The  Bureau  decides  where  the  offender  is 
to  be  confined  and  to  what  regimen  he  or  she  is  to  be  subjected.  If  changes  in 
the  places  or  the  forms  of  confinement  are  to  occur,  either  for  a  particular 
offender  during  a  particular  term  or  for  offenders  generally  throughout  the 
system,  the  decisions  are  to  be  made  by  the  Bureau. 

The  YCA  represents  a  sharp  departure  from  this  pattern  of  remarkably  wide 
administrative  discretion.  The  harsh  question  for  the  court  in  the  present  cases 
is  how  to  respond  when  it  appears  that  an  executive  agency  is  failing  to  obey 
a  legislative  command.  Congress  has  said  rather  bluntly  that  offenders  aged 
IS  through  25,  sentenced  by  courts  under  YCA,  are  to  be  segregated  from  other 
offenders  for  purposes  of  classification  and  then  treatment.  The  fact  appears  to 
be  that  the  Bureau  is  not  segregating  them. 

Wlien  the  question  is  put  so  baldly,  the  answer  may  appear  easy.  It  is  not. 
The  reason  it  is  not  is  that  the  Bureau  has  been  left  to  struggle  with  painful 
anomalies.  The  source  of  these  anomalies  is  that  the  Congressional  departure 
from  the  general  pattern  of  administrative  discretion  is  limited  to  a  single  group 
of  offenders.  The  result  is  that  the  Bureau  is  called  upon  to  reconcile  a  relatively 
rigid  institutional  arrangement  reflecting  a  relatively  specific  correctional  theory, 
imposed  by  the  Congress  as  to  one  group  of  offenders,  with  a  highly  flexible 
institutional  arrangement  responsive  to  a  variety  of  correctional  theories  admin- 
istratively developed  for  all  other  offenders.  It  is  not  for  me  to  evaluate  the 
wisdom  of  either  the  general  pattern  of  administrative  di.^cretion  or  the  YCA 
departure  from  the  pattern.  But  some  comments  on  the  anomalies  arising  from 
their  co-existence  may  illuminate  the  issue.* 

A  core  difficulty  lies  in  assigning  a  workable  meaning  to  the  term  "rehabilita- 
tion," and  thus  in  prescribing  the  ingredients  of  a  rehabilitative  treatment 
program. 

There  is  no  doubt  that  in  enacting  the  YCA,  Congress  had  in  mind  some  rather 
.specific  kind  of  program.  Under  the  provisions  of  §§  5010(b),  .5017(c)  and  5020. 
if  one  is  convicted  of  a  crime  for  which  the  maximum  sentence  is  two  years,  for 
example,  and  if  the  sentencing  judge  chooses  to  impose  sentence  under  the  YCA, 
one  may  be  confined  for  as  long  as  six  years.  Tlie  hoped  for  rehabilitation  ob- 
viously comprises  "the  quid  pro  quo  for  a  longer  confinement  but  under  different 
conditions  and  terms  than  a  defendant  would  undergo  in  an  ordinary  prison." 
Carter  v.  Vnlted  States,  306  F.  2d  283,  285  (D.C.  Cir.  1962).  In  accord,  Cunning- 
ham V.  United,  States,  256  F.  2d  467.  472  (5th  Cir.  1958)  ;  Sero  v.  Oswald,  351 
F.  Supp.  522,  526,  n.  4  (S.D.N.Y  1972).  Also,  under  §  5010(d),  if  the  offender 
is  under  22  years  of  age  at  the  time  of  conviction,  the  court  must  impose  a  YCA 
sentence  unless  the  court  affirmatively  finds  that  the  offender  "will  not  derive 
benefit  from  treatment  under  subsection  (b)  or  (c).  *  *  *  "  And  under  §  4216,  if 
the  offender  is  22  years  of  age  or  older  but  not  yet  26,  the  court  may  impose  a 
YCA  sentence  if  it  affirmatively  finds  reasonable  grounds  to  believe  that  the 
offender  "will  benefit  from  the  treatment  provided  under  the  [YCA]  *  *  *" 
These  provisions  of  the  YCA  would  be  inexplicable  had  not  Congress  intended 


*  My  reservations  about  the  verv  institution  of  prisons,  and  my  belief  that  they  lie  as  a 
dark  continent  in  federal  constitutional  law.  have  been  expressed.  Morales  v.  Sclimidt.  .340 
P.  Supp.  M4  (W.D.  Wis.  1972).  But  in  the  present  cases,  there  is  no  challenge  to  the  federal 
constitutionality  of  any  particular  attribute  of  confinement,  such  as  censorship,  limits  on 
visitations,  and  so  on. 


9440 

the  treatment  of  YCA  offenders  to  differ  from  what  it  understood  to  be  the 
prevailiui?  treatment  of  non-YCA  offenders,  younji  and  old. 

Yet  the  term  "treatment'"  which  appears  throughout  the  Act.  §§5010ni), 
501()(c),  nOlOfd).  r,010(e),  5011,  r)012,  .-,014.  ."lOirxai,  .lOUO  .■;02.-(a),  r,025(b), 
and  ")'>2.-(c),  is  defined  no  more  precisely  than  "corrective  and  preventive  guid- 
ance and  training  designed  to  protect  the  public  by  correcting  the  antisocial 
tendencies  of  youth  offenders  *  *  *"  §r.006(f).  If  the  Federal  Correctional 
Institution  at  Oxford  housed  only  YCA  offenders,  and  if  the  program  or  pro- 
grams offered  were  identical  to  tho^e  now  offered  to  all  inmates  there,  I  could 
not  conclude  that  the  Bureau  was  failing  to  provide  the  "treatment"  required 
by  the  YCA.  Xo  doubt,  there  is  a  wide  array  of  rehabilitatively  oriented  treat- 
ment programs,  all  of  which  would  fall  within  the  range  permitted  by  the  Y'CA. 
I  will  refer  to  such  programs  in  this  opinion  as  "YCA-type"  treatment  jirograms." 

A  second  difficulty  in  dealing  with  this  Congressional  intervention  with  resi>ect 
to  only  one  segment  of  the  population  of  federal  correctional  institutions  is  re- 
lated 'to  the  first.  The  legislative  history  of  the  YCA  suggests  that  in  19.10  Con- 
gress viewed  the  federal  correctional  institutions  as  a  monolith  of  retribution 
in  AAhich  it  was  necessary  to  carve  legislatively  a  niche  of  rehabilitation  for  a 
certain  category  of  young  offenders.  I  doubt  that  this  view  was  accurate  in  IO-jO, 
but  if  so,  it  is  no  longer  accurate.  For  some  time,  the  theory  and  practice  of  cor- 
rections have  been  in  a  highly  volatile  state.  See,  generally,  for  example.  Norval 
Morris.  The  Future  of  Imprisonment  (University  of  Chicago  Press.  1074)  :  II 
Corrections  Magazine.  March  1070,  at  3-S.  21-20.  Considerable  flexibility  has 
developed  within  the  federal  correctional  institutions — as  well  as  within  many 
state  institutions — with  varying  degrees  of  emphasis  upon  retribution,  rehabili- 
tation, specific  and  general  deterrence,  and  simple  physical  incapacitation,  with 
yet  more  variety  in  techniques  and  methods  intended  to  achieve  one  or  more  of 
these  goals.  Although  controversy  persists  particularly  whether  rehabilitation 
can  be  coerced  during  physical  confinement,  and  although  the  quantity  and 
quality  of  rehabilitative  opportunities  avai'able  on  a  voluntary  basis  leave  much 
to  be  desired,  nevertheless  such  opportunities  in  the  form  of  education  and 
counseling  and  psychiatry,  among  others,  do  exist  for  older  as  well  as  younger 
offenders,  for  those  with  much  criminal  experience  as  well  as  for  those  with  little. 
I  have  no  doubt  that  there  remain  in  the  federal  correctional  system  certain 
ph.vsical  facilities  and  certain  treatment  in'ograms  that  would  fall  clearly  outside 
the  permissible  range  for  Y'CA  offenders  generally.  Rut  the  current  reality  is 
that  YCA-type  physical  facilities  and  Y'CA-type  treatment  programs  are  being 
afforded  to  many  confined  offenders  who  were  not  sentenced  under  Y'CA.  It  would 
surely  be  unreasonable  to  assume,  and  so  to  construe  the  YCA.  that  Congress  in- 
tended to  bar  from  YCA-type  treatment  programs  all  offenders  not  sentenced 
under  the  YCA. 

This;  brings  us  to  a  third  and  related  difficulty:  that  the  responsibility  for 
deciding  whether  certain  offenders  shouVl  participate  in  YCA-type  treatment 
programs  has  btHMi  divided  between  sentencing  judges  and  the  Bureau."  It  is  true 
that  for  those  undt^r  22  years  at  the  time  of  conviction,  and  for  those  22  or  older 
but  under  20  years,  the  resT)onsibility  for  the  initial  decision  is  assigned  to  the 
sentencing  judges,  and  that  if  the  sentencing  judces  decide  affirmatively,  the 
Bureau  may  not  disi-egard.  initially  at  least,  the  judicial  command  that  the  of- 
fenders particijiate  in  YCA-tyiie  treatment  in-ograms.  But  even  for  those  under 
22  whom  the  sentencing  judges  have  decided  will  not  derive  benefit  from  YCA- 
tyne  treatment  programs  (§  ."iOIOfd) ),  the  Bureau  is  not  foreclosed  from  pro- 
viding the  opportunity  to  participate  in  such  programs.  This  is  more  clearly  true 
for  those  22  or  older  but  under  20  as  to  whom  the  sentencinc:  judges  have  re- 
frained from  affirmative  findings  that  the  offenders  will  benefit  from  YCA-type 
treatment  programs  (§  4210).  It  is  yet  more  flearly  true  of  those  for  whom  sen- 
tencing judges  are  powerless  to  prescribe  Y'CA-type  treatment  programs,  namely, 
all  those  20  or  older  at  time  of  conviction.  During  the  period  of  confinement,  the 
Bureau  has  abundant  onportunity  to  observe  from  offenders'  attitudes  and  per- 
formances whether  particiy)atiou  in  YC.\-tyne  treatment  ))rograms  is  indicated. 
In  any  given  case,  this  opportunity  for  the  Bureau  persi.sts  long  after  the  brief 
moment  at  which  the  sentencing  judge  makes  his  or  her  evaluation.  Whether 


^Thf  nnrprtalntios  conrprninsr  tho  kiinl  of  troatnlpn^  nrosrr.im  callori  for  hy  tlip  YCA  .nre 
sliarnlv  rovonlpd  in  tlio  sovpriil  opinions  bv  members  of  the  court  In  Harinn  v.  United  States, 
44.->  r.'2(]  G7r.  (DC.  Cir.  1071). 

*This  (llsrnssinn  of  Hip  pomparativp  rolps  of  thp  spntpncinjr  courts  and  tlie  Rnrpan  l.<!  lim- 
Itert  to  casps  in  wliioh  (Iiptp  is  to  bp  physioal  eonfinpmpnt.  Nor  doos  it  rpach  the  matter  of 
the  opportunity  under  the  YCA  for  the  setting  aside  of  convictions.  §  5021. 


9441 

similar  or  divergent  standards  are  used  l).y  sentencinj;  judges,  on  the  one  hand, 
and  tlie  Bureau,  on  the  other,  in  discharging  the  divided  responsibility  for  deci- 
sion lias  not  been  shown  and  is  a  question  probably  not  amenable  to  empirical 
determination.  The  sjime  may  be  said  of  a  comparison  of  the  degrees  of  care 
exercised  in  the  judicial  and  administrative  processes.  But  it  is  reasonable  to 
suppose  that  the  standards,  vague  as  they  no  doubt  are,  are  highly  similar,  and 
it  seems  necessary  to  presume  that  an  adequate  degree  of  care  marks  both  the 
judicial  and  the  administrative  processes. 

Thus,  absent  the  enactment  of  the  YCA,  it  would  appear  that  the  following 
would  be  a  rational  arrangement :  The  Bureau  would  classify  initially  all  com- 
mitted offenders  18  years  of  age  or  older,  and  would  reexamine  their  classifica- 
tions from  time  to  time,  in  order  to  identify  those  for  whom  YCA-type  treat- 
ment programs,  that  is,  rehabilitatively  oriented  programs,  should  be  provided. 
The  Bureau  would  determine  the  content  of  such  programs  and  the  physical  facili- 
ties witliin  which  they  would  be  provided,  and  would  make  such  changes  in  man- 
ner and  places  of  treatment  as  might  appear  necessary  or  desirable  from  time  to 
time.  With  respect  to  the  grouping  of  those  deemed  eligible  for  YCA-type  treat- 
ment, the  Bureau  would  exercise  its  discretion.  If  the  Bureau  considered  it  sound 
theory  and  practice  to  avoid  "herding  youth  with  maturity,  the  novice  with  the 
sophisticate,  the  impressionable  with  the  hardened."  as  Congress  apparently 
believed  in  1950,  the  Bureau  could  deve'op  standards  to  effect  such  segregation. 
However,  it  is  not  graven  in  stone  that  confinement  exclusively  with  one's  peers 
in  age  is  more  effective  or  desirable  than  confinement  in  an  institutional  com- 
munit.v  whose  membership  more  closely  reflects  the  age  variations  encountered 
oiitside  correctional  institutions.  If  the  Bureau  considered  it  sound,  it  could 
effect  integration  among  the  young  and  the  mature,  the  novice  and  the  sophisti- 
cate, the  impressional)le  and  the  hardened,  or,  more  sensibly,  it  could  attempt 
evaluations  of  the  quality  of  the  maturity,  soi)liistication,  and  hardness  of  par- 
ticular offenders  in  determining  the  groups  within  which  they  should  reside.'' 

Against  the  background  I  have  described  and  in  view  of  the  specific  language 
of  the  YCA,  there  must  be  decided  the  central  question  in  this  case :  how  much 
discretion  remains  in  the  Bureau  in  the  cases  of  offenders  committed  b.v  sen- 
tencing judges  under  the  YCA  (to  whom  I  will  continue  to  refer  as  "Y'CaA 
offenders")?  More  particularly,  the  questions  are:  (1)  whether  a  Y^CA  offender 
must  be  the  subject  of  special  classification  procedures  ;  and  (2)  whether,  once  it 
has  been  determined  through  the  classification  procedures  that  he  or  she  is  to  be 
physically  confined,  the  YCA  offender  niust  be  segregated  from  non-YCA  offenders 
for  treatment. 

d)    Clafimfication. 

Following  the  decision  b.v  a  sentencing  judge  to  commit  a  young  person  for 
treatment  under  the  YCA,  the  Bureau  is  called  tipon  by  the  Act  to  engage  in  a 
special  classification  process  in  special  classification  centers  or  agencies.  This 
classification  study  is  clearly  required  to  precede  a  decision  by  the  Director  as 
to  the  appropriate  treatment  in  a  particular  case  and.  therefore,  clearly  to  pre- 
cede the  designation  of  the  particular  institution  within  which  the  offender  is  to 
be  confined.  §  501.'^ (a).  From  IMemo  No.  64  dated  January  If),  10.54  and  Memo  No. 
62  (supplement  no.  1)  dated  October  4.  1956,  it  appears  that  the  Bureau  shared 
this  understanding  in  the  years  closely  following  upon  the  enactment  of  the  YCA. 
The  institution  at  Ashland,  Kentucky,  was  "being  converted  into  a  classifica- 
tion center  and  treatment  facility  as  contemplated  by  the  Act,"  as  was  the 
institution  at  Englewood,  Colorado,  and  "most  youths  between  the  ages  of  18 
and  22  will  be  committed  to"  one  or  the  other  of  these  institutions,  depending 
upon  geosranhy.  The  administrative  history  between  about  19.56  and  about  1975 
is  unrevealed  in  this  record,*  but  it  dops  reveal  that  there  is  presently  no  comnli- 
ance,  save  only  that  there  is  o]ierative  some  generalized  Bureau  decision  that 
one  or  another  of  a  group  of  12  institutions  will  be  desisrnated  as  the  initial  place 
of  confinement  and  the  place  at  which  the  classification  pi-Of^ess  will  occur  in 
the  cases  of  YCA  offenders,  and  that  none  of  another  group  of  44  institutions  will 
be  so  designated. 


'  Tlie  present  reoorrt  does  not  reveal  the  oivality  of  the  matnrity.  snnhistication.  or  haril- 
ness  of  the  nartienlar  non-YCA  offendfrs  who  .ire  nressentlv  eonflnert  with  the  petitioners  at 
-Oxford.  Petitioners  have  presented  their  cases  on  the  flat  contention  th.nt  no  such  inte- 
jrnition  is  nermissihle.  without  regard  to  the  characteristics  of  the  particular  non-YCA 
orronders  wi*^h  whom  tlTev  are  confined. 

*"  Some  difficulty  has  arisen  from  tlie  apparent  ahsence  of  a  contlnnlnar  and  formalized  pro- 
cedure for  the  certification  hy  the  Director  that  nroper  and  adeouate  YCA  treatment  fticili- 
-ties  and  nersonnel  are  In  nlnce.  ?  .5012.  See  Rohinf<on  v.  TJnifpd  $!fnfps.  474  F.2d  1085,  1090- 
1091   (10th  Cir.  1973)  ;  United  States  v.  Lowery.  SSo  F.  Supp.  519  (D.D.C.  1971). 


9442 

I  do  not  suggest  that  this  record  supports  a  finding  that  the  designation  of 
the  place  of  confinement  is  not  performed  YCA  case  by  YCA  case,  or  that  it  is 
not  performed  sensitively  and  intelligently.  But  the  record  does  compel  a  find- 
ing that  the  designation  does  not  involve  or  await  the  special  classification 
studies  for  YCA  offenders  provided  for  in  §  5014,  and  apparently  intended  in 
1954  and  195G  to  be  performed  at  Ashland  and  Englewood  when  they  had  been 
converted  into  "classification  centers  ...  as  contemplated  by  the  Act." 

Conceivably  the  12  institutions  currently  designated  as  the  places  of  confine- 
ment for  YCA  offenders  could  be  viewed  as  the  modern  counterparts  of  the  YCA 
classification  centers  to  which  Ashland  and  Englewood  were  to  be  converted. 
Thus,  rather  than  only  two  such  YCA  classification  centers,  12  would  now  be 
available.  But  this  theory  would  be  vindicated  only  if  it  were  shown  that  each 
of  the  12  centers  performs  a  special  YCA  classification  process  for  the  YCA 
offenders,  after  which  each  YCA  offender  is  promptly  committed  for  confine- 
ment to  that  one  of  the  12  institutions  most  appropriate  in  his  or  her  case.  It  is 
true  that  in  policy  statement  7300.13E,  issue  June  16.  1975,  on  the  subject  of 
interinstitutional  transfers  of  all  offenders,  YCA  and  otherwise,  there  is  a  sug- 
gestion that  the  initial  designation  is  to  be  viewed  as  rather  tentative — as 
simply  a  designation  to  a  "classification  center,"  so  to  speak,  physically  located 
within  a  particular  institution  at  which  the  classification  process  is  to  be 
engaged  in,  followed  by  a  determination  as  to  which  one  of  the  56  institutions 
would  be  most  appropriate  and  by  a  prompt  transfer  thereto.  But  no  showing 
has  been  made  in  this  record  that  this  is  how  the  classification  and  designation 
system  actually  works  nationwide  or  at  Oxford,  or  that  there  is  anything  special 
about  how  it  works  in  the  cases  of  YCA  offenders  either  nationwide  or  at 
Oxford.  Rather,  it  appears  that  at  Oxford,  for  YCA  offenders  and  non-YCA 
offenders  alike,  the  admission  and  orientation  program  looks  to  a  decision  as 
to  which  one  of  the  three  functional  luiits  at  Oxford  is  appropriate  to  the  case. 

It  is  plain  that  the  classification  procedure  afforded  YCA  offenders  as  a  cate- 
gory is  not  distinct  and  segregated  from  that  afforded  many  non-YCA  offenders 
as  another  category.  This  lack  of  discrimination  between  the  two  categories 
was  not  contemplated  by  Congress  when  it  enacted  the  YCA.^ 

(2)    Treatment. 

Subject  only  to  the  qualifying  phrase  "insofar  as  practical,"  Congress  has 
expressly  commanded  the  Director  to  designate,  set  aside,  and  adapt  institu- 
tions and  agencies  to  be  used  only  for  treatment  of  YCA  offenders,  and  to 
segregate  youtli  offenders  from  other  offenders.  §  5011.  From  this  language  it 
appears  that  Congress  views  segregation  itself  as  an  essential  element  of  the 
treatment  to  be  afforded  those  offenders  committed  bv  sentencing  judges  under 
the  YCA. 

But  there  is  not  a  single  Bureau  institution  which  is  used  only  for  the  treat- 
ment of  YCA  offenders.  Whether  there  is  any  institution  housing  both  YCA 
offenders  and  non-YCA  oft'enders  within  which  these  two  categories  are  segre- 
gated is  not  clear  from  this  record,  but  it  is  clear  that  tliey  are  not  .'segregated 
at  Oxford. 

Faced  with  this  apparent  discrepancy  between  the  statutory  command  and 
the  actual  practice,  I  understand  respondents  to  argue,  first,  that  despite  §  5011 
tho  Bureau  enjoys  unlimited  discretion  in  deciding  tlie  places  of  confinement 
and  the  treatment  programs  for  all  offenders.  YCA  and  otlierwise :  and,  second, 
that  in  fact,  "insofar  as  practical,"  institutions  and  agencies  have  been  desig- 
nated, set  aside,  and  adapted  for  use  only  for  treatment  of  YCA  offenders,  and 
YCA  offenders  are  segregated  from  other  offenders. 

It  is  true  that  38  U.S.C.  §40Sl>(b)  coTifers  l)road  authority  ujion  the  Attorney 
General  to  designate  "any  available,  suitable,  and  appropriate  institution  or 
facility"  for  the  confinement  of  i)ersons  committed  to  his  or  her  custody  b.v 
sentencing  courts  and  for  the  transfer  of  such  persons  from  institution  to  institu- 
tion, and  that  the  Attorney  General  has  elegated  this  authority  to  the  Director. 
28  C.F.R.  §  0.96(^c).  Also,  §  5m5(a)  of  the  YCA  itself  provides  "that  upon  receipt 
of  the  report  and  recommendation  from  the  clas.«;ification  agency  the  Director 
may:  recommend  to  the  Commission  that  the  offender  be  conditionally  released: 
transfer  the  offender  to  an  agency  or  institution  for  treatment:  or  order  the 
offender  "confined  and  afforded  treatment  under  such  conditions  as  he  believes 
best  designed  for  the  protection  of  the  public."  Section  5011  of  the  Act  provides 


"  Tt  slioiild  ho  notofl  that  with  rpspeot  to  classification  proc*Hiurps,  as  distinct  from  treat- 
mont.  tlip  Act  contains  no  saving  provision  to  the  effect  tliat  there  be  segregation  only 
insofar  as  practical. 


9443 

that  treatment  shall  be  uudergone  "in  institutions  of  maximum  security,  medium 
security,  or  minimum  security  types,  including  training  schools,  hospitals, 
farms,   forestry   and  other  camps,   and  other  agencies   that  wiU  provide  the 

essential  varieties  of  treatment."  „„,,„,  .^«  ,„.,   ^.     inn-.\ 

I  am  aware,  also,  that  in  Sonnenherg  v.  Marklcy,  289  F.2d  126  (7ih  Cir.  1961), 
it  was  held  that  the  choice  of  the  place  of  confinement  of  a  person  committed 
to  the  custody  of  the  Attorney  General  under  the  Juvenile  Delinquency  Act  (18 
U.S.C.  §5031  et  seq.)  lay  so  wholly  within  the  discretion  of  the  Attorney  Gen- 
eral  that  a  penitentiary  might  be  chosen.  However,  at  that  time  the  Juvenile 
Delinquency  Act  contained  no  requirement  that,  following  a  finding  of  dehn- 
queucy,  juvenile  delinquents  were  to  be  confined  separately  from  other  persons. 
In  1974.  the  Act  was  amended  to  require  such  segregation.  18  U.S.G.A.  §  5039 
(1976).^°  ^  .      ,   . 

Familiar  rules  of  construction  require  that  the  authorization  contained  in 
the  broad  sweep  of  §  4082(b)  be  considered  limited  by  the  later  enacted  YCA 
which  was  directed  to  a  particular  category  of  offenders.  Also,  the  broad  lan- 
guage of  §§  5015(a)  and  5011  must  be  construed  within  the  narrowing  and 
interrelated  provisions  of  YCA  which  so  clearly  confine  the  Director's  exercise 
of  discretion  as  to  choice  of  institutions  and  choice  of  treatment. 

I  conclude  that  the  Bureau  does  not  enjoy  complete  discretion  in  designating 
the  place  of  confinement  of  YCA  offenders.  On  the  contrary,  subject  to  an  im- 
portant quaUfication,  §  5011  plainly  requires  that  institutions  and  agencies  be 
designated,  set  aside,  adapted,  and  used  only  for  the  treatment  of  YCA  offenders, 
and  that  YCA  offenders  be  segregated  from  non-YCA  offenders. 

Therefore,  the  ultimate  question  must  be  answered :  whether  the  Bureau's 
practice  is  permissible  because  the  words  "insofar  as  practical"  appear  in  §  5011, 
which  reads : 

"treatment 

"Committed  youth  offenders  not  conditionally  released  shall  undergo  treat- 
ment in  institutions  of  maximum  security,  medium  security,  or  minimum  secu- 
rity types,  including  training  schools,  hospitals,  farms,  forestry  and  other  camps, 
and  other  agencies  that  will  provide  the  essential  varieties  of  treatment.  The 
Director  shall  from  time  to  time  designate,  set  aside,  and  adapt  institutions  and 
agencies  under  the  control  of  the  Department  of  .Justice  for  treatment.  Insofar 
as  practical,  such  institutions  and  agencies  shall  be  used  only  for  treatment  of 
committed  youth  offenders,  and  such  youth  offenders  shall  be  segregated  from 
other  offenders,  and  classes  of  committed  youth  offenders  shall  be  segregated 
according  to  their  needs  for  treatment." 

It  is  not  easy  to  find  a  construction  of  §  5011  which  gives  effect  to  its  arrange- 
ment and  its  punctuation,  and  also  gives  common  sense  effect  to  "insofar  as 
practical." 

One  conceivable  construction  is  easy  to  discard.  In  this  opinion  I  have  dis- 
cussed at  length  several  anomalies  resulting  from  a  Congressional  departure, 
with  respect  to  a  certain  group  of  offenders,  from  the  dominant  and  general 
pattern  of  remarkably  \\ide  administrative  discretion.  But  it  cannot  be  supposed 
reasonably  that  by  inserting  the  words  "insofar  as  practical"  in  §  5011.  Congress 
intended  to  permit  the  Bureau  to  decide  that,  by  reason  of  these  anomalies  or 
by  reason  of  added  costs  in  facilities  and  staff,  the  entire  statutory  scheme  of 
segregation  is  impractical  and  then  simply  to  refrain,  wholesale,  from  imple- 
menting the  scheme.  So  to  construe  the  Act  would  be  to  infer  Congressional 
willingness  that  its  major  command  be  nullified  by  the  executive.  That  is,  it 
would  be  to  infer  Congressional  acquiescence  in  executive  recalcitrance  similar 
to  the  practice  of  executive  impoundment  of  Congressionally  appropriated  funds, 
a  practice  so  vigorously  and  recently  criticized  by  Congress.  Such  a  radical  con- 
struction must  yield  to  a  more  reasonable  view. 

The  last  sentence  of  §  5011,  which  opens  with  "insofar  as  practical"  consists 
of  three  clauses:  (1)  "such  institutions  and  agencies  shall  be  used  only  for 
treatment  of  committed  youth  offenders."  (2)  "and  such  vouth  offenders  shall 
be  segregated  from  other  offenders,"   (3)   "and  classes  of  committed  youth  of- 

.Z^'^S''"^'  ""■  ^'■"'■'■•'«'?'-  200  F  .Snpp.  fiR7  fS.  D.  Ind.  inR2),  it  was  held,  with  hoaw  reli. 
fi?  V<^T"/^'"'rrf'"''""'  •'/""^"-  ^'^^*  '"  ^^'-  f'^io''''^  "f  confinpnient  of  a  person  spnt<>noed  iinrier 
I;,^.^^/•  ,  Attorney  OPiieral  enjoys  discretion  as  complete  as  that  the  Attorney  General 
fllolfll^  T'^rln}^^ ,^''^''''^K  r^P'liqi'en'-y  Act.  as  the  latter  act  read  when  l^onnenherq  was 
riecided.  In  Conts.  the  court  made  no  reference  to  the  explicit  provisions  of  the  YCA.  callins 
for  segregated  confinement.   I  consider  it  necessary  to  attempt  a  fresh  analysis 


9444 

fenders  .shall  be  segregated  according  to  their  needs  for  treatment."  Clanse  {3V 
amx-ars  to  have  no  bearing  on  the  present  cases.  Tavo  initial  qnestions  concerning 
clauses  (1)  and  (2)  are:  whether  "insofar  as  practical"  modifies  only  (1)  or 
both  (1)  and   (2)  :  and  whether  (1)  and  (2)  can  be  rescued  from  redundancy. 

I  conclude  that  "insofar  as  po.ssiblo"  modifies  both  (1)  and  (2)  :  there  seems 
no  reason  to  attach  this  safety  valve  to  the  requirement  that  the  institutions  and 
agencies  be  used  only  for  YCA  offenders,  but  to  withhold  it  from  the  requirement 
that  YCA  offenders  be  segregated  from  other  offenders. 

The  apparent  redundancy  between  (1)  and  (2)  is  more  difficult  to  solve. 
If  a  group  of  YCA  olfenders  are  housed  in  an  institution  used  only  for  the 
treatment  of  YCA  offenders,  it  follows  that  they  have  been  segregated  from 
non-YCA  offenders.  But  I  am  obliged  to  give  meaning  to  each  clause  and  thus 
to  avoid  redundancy,  if  I  reasonably  can,  and  this  seems  possible.  That  is,. 
I  conclude  that  if  and  when  it  is  not  practical  to  house  one  or  more  YCA 
offenders  in  an  institution  or  agency  used  only  for  the  treatment  of  YCA 
ofl'enders,  and  the  said  YCA  offender  or  YCA  offenders  are  housed  with  non-YCA 
offenders,  then,  insofar  as  practical,  the  two  categories  of  offenders  are  to  be 
segregated  from  one  another  within  the  institution  or  agency  in  which  tliey 
are  l»oth  housed.  An  example  might  be  a  training  program  in  a  particular  skill 
whicli  the  Bureau  desires  to  make  available  botli  to  YCA  offenders  and  to  non- 
Y'CA  offenders  and  for  which  unusually  expensive  equipment  and  high  sahiried 
instructors  are  retpiired.  Practical  considerations,  particularly  the  conservation 
of  funds,  might  dictate  that  a  single  physical  facility  be  maintained  for  this 
particular  training  program,  and  that  tliere  he  brought  successively  to  that 
facility  for  the  necessary  training  periods  "classes"  consisting  of  some  YCA 
ofl'enders  and  some  non-YCA  offenders.  While  it  might  be  impractical  for  the 
two  categories  to  attend  segregated  classes  and  laboratories,  it  might  never- 
theless be  practical  to  segregate  them  for  all  other  purposes  within  the  single 
facility  during  tlie  training  period. 

I  have  undertaken  to  analyze  the  last  sentence  of  §  oOll.  There  remains  the 
need  tf>  synthesize  that  last  sentence  with  the  two  sentences  which  pre<ede  it. 

The  first  sentence  reads:  "Committed  youth  offenders  not  conditionally  re- 
leased shall  undergo  treatment  in  institutions  of  maximum  security,  medium 
security,  or  minimum  security  types,  including  training  schools,  hospitals,  farms, 
forestry  and  other  camps,  and  other  agencies  tliat  will  provide  the  essential 
varities  of  treatment."  In  this  sentence,  no  mention  is  made  of  segregation  of 
YCA  offenders  from  non-YCA  offenders,  and  the  references  to  maximum  security 
institutions  and  to  hosititals,  for  example,  may  be  thought  to  imi)ly  non- 
segregntion. 

The  second  sentence  reads:  "The  Direclor  shall  from  time  to  time  designate, 
set  aside,  and  adapt  institutions  and  agencies  under  the  control  of  the  Depart- 
ment of  .Justice  for  treatment."  Obviously,  this  must  be  read  in  conjunction 
with  tlie  first  sent(>nce.  and  it  seems  to  imply  that  from  the  universe  of  all  fhe 
"institutions  of  maximutn  security,  medirnn  security,  or  minimum  security  types, 
including  training  schools,  hospitals,  farms,  forestry  and  other  camps,  and  other 
agencies,"  then  existing  or  later  to  come  into  existence,  the  Bureau  was  to 
designate  certain  ones,  set  them  aside  for  YCA  offenders.  ;ind  adai't  tliem  for 
treatment  of  YCA  offenders.  Read  together,  the  first  two  sentences  imply  at 
least  some  degree  of  segregation  of  Y<^^A  offenders  because  they  would  be  housed 
within  those  institutions  and  agencies  set  aside  ;ind  adapted  for  tlie'r  treatment. 

Then,  of  course,  tlie  first  clause  of  the  third  and  final  sentence  m.akes  e\))1icit 
what  was  imiilieit.  n-imely.  that  thos(^  institutions  and  jigencies  desisrnnted  ajid 
.set  aside  fnmx  the  all-encompassing  universe  of  institutions  and  agencies,  and 
adanted  by  the  Bureau  for  the  treitment  of  Y'CA  offenders,  are  to  be  used  only 
for  that  purpose,  "insofar  as  practical." 

Froui  nil  this.  1  can  ( oncbide  only  that  Cf)ngress  hns  conimanded  that  widiin 
a  universe  consisting  <if  all  the  institutions  and  agencies  housinsr  ;tll  offenders 
sentenced  to  <onfinement  by  federal  courts,  there  was  to  be  created  and  there 
is  now  to  be  maintained  a  snuiller  universe  consisting  of  thos(»  institutions  and 
a"encies  designated,  set  asWle.  :uid  jidaptid  for  the  tr(>atnu'nt  of  fhe  YCA 
offenders.  And  I  c.-in  conclude  oidy  that  the  institution:-;  jiml  agencies  within 
th's  sni.-iller  universe  are  to  lie  used  exclusively  for  the  treatment  of  Y'CA 
offenders.  To  speak  more  concretely,  I  conclude  that  the  YCA  retpiires  that  the 
2700  or  so  VCA  olienders  in  confinement  (to  u.se  the  si)ring  1970  figure)  are  to 
be  distributed  v/ithin  a  segregated  network  of  mjiximum  semrity.  UHMlium 
.security,   ajul   minimum   security   institutions,   some  of   whi<-h    (presumably   the 


9445 

miuimnm  security  institutions)  would  he  hospitals,  farms,  and  forestry  camps, 
and  some  of  which  (perhaps  maximum  and  medium,  as  Well  as  minimum 
security  institutions)  would  he  training  schools,  and  some  of  which  (with 
provision  for  whatever  degree  of  security  may  he  appropriate)  would  he  yet 
"other  iigencies  tliat  will  provide  the  essential  varieties  of  treatment." 

However,  this  segregation  of  YCA  offenders  v.ithin  the  smaller  universe  of 
YCA  institutions  and  agencies  need  he  maintained  only  "insofar  as  practical." 

It  is  conceivable  that  because  Congress  envisaged  a  transitional  period  in  the 
wake  of  enactment  of  the  YCA,  the  phrase  "insofar  as  practical"  was  inserted  in 
part  to  ease  the  transition.  But  it  is  unlikely  that  this  was  the  exclusive  reason, 
particularly  in  light  of  §  5012,  which  defers  the  time  at  which  .judges  might  com- 
mence to  commit  offenders  under  YCA  until  the  time  at  which  the  Director  should 
certify  "that  proper  and  adequate  treatment  facilities  have  l)een  provided." 

I  conclude  that  the  presence  of  the  phrase  "insofar  as  pos.sihle"  in  §  5011  means 
that  the  Bureau  is  free  to  depart  from  the  statutory  norm  of  segregation  occa- 
sionally, in  the  presence  of  unusual  and  unforeseen  circumstances,  and  for  only  so 
long  as  may  be  necessary.  I  construe  it  to  mean,  also,  that  the  Bureau  is  free  to 
depart  from  the  statutory  norm  for  longer  periods  of  time,  even  semi-permanently, 
with  respect  to  limited  numbers  of  Y^CA  offenders.  One  example  of  such  an  excep- 
tion might  be  the  need  for  an  unusually  expen.sive  and  specialized  training  facil- 
ity of  the  sort  I  have  mentioned.  Another  example  might  be  that  if  experience 
reveals  that  at  any  given  time  a  number  of  YCA  offenders  require  confinement 
under  mf.ximum  security  conditions,  but  that  this  number  is  consistently  small 
(50  to  100,  for  example),  the  Bureau  would  be  free  to  house  them  in  existing 
maximum  security  institutions  in  which  non-YCA  offenders  are  also  housed :  pro- 
vided, however,  that  within  such  maximum  security  institutions,  the  YCA  offend- 
ers are  segregated  from  the  other  offenders  "insofar  as  practical." 

By  1977,  of  course,  any  reasonable  transition  period  under  YCA  is  long  past.  In 
the  pre.sent  cases  there  has  been  no  showing  that  the  departures  from  a  scheme  of 
segregation  are  only  occasional,  that  they  are  compelled  by  unusual  circumstances, 
or  that  they  have  been  brief.  Nor  has  there  been  a  showing  that  in  the  particular 
case  of  any  of  these  petitioners,  the  Bureau  has  concluded,  either  at  the  time  of 
the  initial  designation  of  a  place  of  confinement  or  subsequently  by  reason  of  his 
behavior  during  confinement,  that  it  is  neces.sary  that  he  be  specially  expected 
from  a  scheme  of  segregation.  On  the  contrary,  the  record  shows  that  the  Bureau 
has  made  non-segregation  the  continuing  norm. 

I  conclude  that  in  the  case  of  petitioner  Brown,  the  Youth  Corrections  Act  has 
been  violated  It.v  the  Bureau's  failure,  prior  to  the  designation  of  Oxford  as  his 
placp  of  confinement,  to  perform  a  separate  and  distinct  classification  procedure 
in  the  kind  of  classification  center  contemplated  by  the  Act.  In  the  case  of  ea^-h  of 
the  three  petitioners,  I  conclude  that  the  Youth  Corrections  Act  has  been  violated, 
and  is  being  violated,  by  confinement  in  an  institution  not  used  only  for  youth 
offendei's  committed  muler  the  Act  and  by  confinement  in  which  petitioners  are 
unsegregated  from  offenders  not  committed  under  the  Act. 

Order 

It  is  ordered  that  the  petition  for  habeas  corpus  in  each  of  the  above-entitled 
cases  is  granted,  and  that : 

1.  Petitioner  Brown  in  75-C-493  is  to  be  released  unconditionall.v  on  the  91st 
day  following  entry  of  this  order  luiless,  prior  to  that  time,  he  is  placed  in  a  center 
used  solely  for  the  classification  of  offenders  committed  by  sentencing  court.s^ 
pursuant  to  the  Youth  Corrections  Act:  and  unless  he  is  thereupon  accorded  a 
procedure  separatel.v  and  distinctly  designed  for  the  classification  of  offenders  so- 
committed:  and  Tuiless,  if  the  Director  then  orders  him  to  he  confined,  ho  is  then 
confined  in  an  institution  used  only  for  offenders  so  committed. 

2.  Petitioner  Walls  in  75-C-607  is  to  be  released  unconditionally  on  the  91  st  day 
followins:  entry  of  this  order  unless,  prior  to  that  time,  he  is  confined  in  an  institu- 
tion used  only  for  offenders  committed  by  sentencing  courts  pursuant  to  the  Y^outh 
Co'-rections  Act. 

3.  Petitioner  AVeaver  in  75-C-5'^4  is  to  be  released  unconditionally  on  thf  9''st 
day  following  entry  of  this  order  unless,  prior  to  that  time,  he  is  confined  in  ;in 
institution  used  only  for  offenders  committed  by  sentencing  courts  pursuant  to  the 
Youth  Corrections  Act. 

Entered  this  6th  day  of  May,  1977. 
By  the  Court : 

.Iames  R.  Doylk. 

District  Judge. 


9446 

Statement  of  the  Associated  Builders  and  Contractors,  Inc.,  Presented  to 
THE  Senate  Judiciary  Subcommittee  on  Criminal  Laws  and  Procedures 

My  name  is  Gerald  Oliver.  I  am  President  of  the  Associated  Builders  and 
Contractors.  Inc.  I  am  pleased  to  have  this  opportunity  to  present  this  state- 
ment on  behalf  of  the  Association.  "We  wish  to  thank  the  Subcommittee  for  the 
opportunity  to  present  our  views  on  S-1437,  a  bill  to  revise  the  Federal  Criminal 
Code. 

To  begin,  the  Subcommittee  and  the  sponsors  of  this  legislation  are  to  be 
credited  for  a  most  worthy  purpose  in  their  efforts  to  revise  and  reform  the 
Federal  Criminal  Code.  Specifically,  we  will  restrict  our  remarks  to  Chapter  15, 
offenses  involving  individual  rights  (Sub-Chapter  A)  and  Chapter  17,  offenses 
involving  property  (Sub-Chapters  A  and  C).  Property  destruction  during  a  labor 
dispute  has  been  a  matter  of  long  concern  to  our  members.  At  present,  uncon- 
trolled willful  labor  violence  can  result  in  many  thousands  of  dollars  damage  to 
property  at  a  factory,  construction  site  or  elsewhere  but  in  the  absence  of  bomb- 
ing or  as  an  objective  of  robbery  or  extortion,  there  is  no  crime  under  federal 
law.  This  situation  arises  from  an  unfortunate  Supx-eme  Court  decision  in  the 
Enniops  case  in  which  the  Court  ruled  in  a  5-4  decision  that  federal  law  (Hobbs 
Act)  did  not  pertain  to  violent  destruction  of  an  employer's  property  if  the  dam- 
age was  done  to  promote  "legitimate  collective  bargaining  objectives".  This 
decision  has  left  employers  almost  totally  vulnerable  to  parties  who  resort  to 
violent  destruction  of  property  to  win  collective  bargaining  demands  or  to  drive 
an  employer  out  of  business  or  to  compel  him  to  discontinue  certain  business 
connections. 

It  is  appropriate  here  to  point  out  the  history  of  this  labor  unrest.  In  the  late 
1960's  wage  settlements  in  the  construction  industry  were  exorbitant.  Inflation 
became  rampant  and,  in  response,  owners  sought  alternative  methods  of  construc- 
tion. For  the  most  part,  this  meant  using  Merit  Shop  and  open  shop  cojitractors. 
And,  as  more  and  more  work  went  to  these  firms,  the  Building  Trades  Unions 
became  increasingly  frustrated  and  numerous  violent  confrontation  took  place. 
These  incidents  most  often  occur  on  the  actual  construction  site  but  at  times  spill 
over  into  nearby  areas  where  construction  workers  reside  and  conmiute  to  work. 
The  violence  lias  been  carried  out  by  both  large  groups  of  persons  and  by  a 
handful  of  individuals.  The  nature  of  the  violence  ranges  from  destruction  of 
the  physical  site  and  to  equipment  and  machinery. 

Employers  who  became  the  targets  of  this  violence  sought  protection  from 
the  courts  but  found  little  relief.  The  National  Labor  Relations  Act  as  now  written 
does  view  labor  violence  as  an  unfair  labor  practice  but  the  remedy  is  not  one 
of  criminal  prosecution.  An  employer  can  sue  for  damages  but  such  action  is 
long  after  the  fact  and,  more  inijjortautly,  the  Act  fails  to  provide  immediate 
relief  to  restore  order  on  a  job  site.  In  this  same  vein,  state  and  local  laws  have 
proved  eaually  ineffective  for  several  reasons.  Tlie  very  nature  of  labor  unrest 
often  divides  community  feeling  and  tiers  of  law  enforcement  buck  passing  most 
often  result  in  nonenforcement.  Moreover,  labor  violence  usually  occurs  in  such 
locations  and  either  at  night  or  with  such  size  and  ferocity  that  local  and  state 
officials  are  unable  to  cope  with  them. 

In  short,  there  is  an  imniodiate  and  justifiable  need  for  federal  involvement 
to  provide  adequate  jjrotection  for  employers,  employees  and  the  general  ])nblic. 
Surely,  it  cannot  be  the  will  of  Congress  to  exclude  from  federal  law  terrorists 
and  racketeers  who  hide  out  in  unions  and  engage  in  supposedly  legitimate  labor 
activities.  "Willful  ])roperty  destruction  is  in  every  sense  of  the  word  a  means  of 
extortion  and  we  are  pleased  to  see  that  it  is  inter  alia,  the  intent  of  S-1437  to 
reverse  the  Enniona  decision. 

In  this  connection,  we  believe  there  are  certain  aspects  of  S-1437  that  should  be 
clarified  to  provide  adequate  federal  jurisdiction  relating  to  property  destruction. 
Since  this  clement  of  violence  is  the  main  one  to  prescribe,  we  propose  that  the 
word  "violence"  bo  substituted  for  "force  or  the  threat  of  force"  under  Section 
1500  so  the  .section  wotild  read:  "A  person  is  guilty  of  an  offense  if,  hy  violence 
or  threat  of  violence,  he  intentionally  obstructs  or  interferes  with:  1)  peaceful 
picketing  employees  in  the  course  of  a  bona  fide  labor  dispute  nffecting  wages, 
hours,  or  conditions  of  labor;  or  2)  the  exercise  by  employees  of  rights  of  self- 
organization  or  collective  bargaining."  We  also  propose  that  unions  do  not  cloak 
extortionate  demands  under  the  guise  of  an  o!\iective  which  can  be  legimately 


9447 

soufflit  throush  collective  liargaiiiing.  Therefore  while  we  support  the  inclusion 
of  Section  1722,  we  propose  that  the  affirmative  defense  to  prosecution  under 
Subsection  (a)(1)  be  amended  to  read:  "that  the  threatened  or  feared  injury 
was  an  ordinary,  customary,  or  reasonably  likely  result  of  conduct  flowing  from 
an  incidental  to  peaceful  picketing  or  other  concerted  activity  in  the  course  of 
a  bona  fide  labor  dispute." 

We  believe  it  is  questionable  under  Sub-Chapter  A  of  Chapter  17  (damages  by 
arson  and  explosion)  whether  construction  site  projects  would  be  covered  when 
"the  property  that  is  the  subject  of  the  offense  is  used  in  actively  affecting  inter- 
state or  foreign  commerce,  and  is  damaged  by  a  destructive  device."  It  appears 
arguable  that  property  under  construction  is  not  "used  in  an  activity  aflecting 
interstate  or  foreign  commerce."  A  motel,  for  instance,  is  used  in  an  activity  af- 
fecting interstate  commerce,  but  might  not  be  considered  as  used  when  "under 
construction."  This  should  be  clarified.  Moreover,  a  potential  loophole  arises  by 
the  use  of  language  which  calls  for  damage  "by  a  destructive  device."  Suppose  a 
valuable  piece  of  machinery  is  set  on  fire  by  hand  rather  than  a  boml),  or  me- 
chanic;il  device.  A\'uuld  the  law  not  apply  because  no  destructive  device  were 
used?  We  feel  such  activity  should  be  covered. 

Under  the  sections  covering  cxtortlnn.  it  appears  to  be  the  unmistakable  intent 
to  rever.se  the  En)H(>ns  decision  while  at  the  same  time  preserving  the  right  to 
peaceful  picketing.  We  wish  to  point  out  that  the  Ennions  case  did  nf)t  involve 
a  construtciou  site  but  rather  an  operating  utility  and  question  whether  a  re- 
versal of  that  decision  would  necessarily  make  it  applicable  to  construction  site 
property. 

Finally,  we  note  that  construction  work  would  be  covered  for  extortion  under 
S-1437  if  to  any  degree  the  job  received  federal  financing.  This  form  of  protection 
is  highly  desirable  but  should  be  broadened  to  protect  a  building  which  is  100 
percent  privately  financed. 

In  conclusion,  we  belicA'e  that  S-1437  is  a  move  in  the  proper  direction.  If  the 
courts  give  it  favorable  interpretation  it  could  substantially  solve  the  problem 
with  respect  to  damage  to  property.  However,  we  strongly  urge  that  the  Sub- 
committee favorably  view  the  strengthening  amendments  suggested  by  this 
Association. 

Statement  of  Glenn  King,  Executive  Dikector,  International  Association 

OF  Chiefs  of  Police  (IACP) 

I  appreciate  the  opportunity  to  submit  a  statement  to  the  Senate  Subcommittee 
on  Criminal  Laws  and  Procedures  to  express  the  beliefs  of  the  International  As- 
sociation of  Chiefs  of  Police  (IACP)  regarding  the  Criminal  Code  Reform  Act  of 
1977. 

The  IACP  is  a  membership  organization  with  more  than  11,000  members  from 
sixty-four  nations.  The  majority  of  its  membership,  however,  is  from  the  United 
States  and  is  directly  affected  by  the  proposed  legislation. 

The  IACP  supports  the  enactment  of  S.  1437  with  the  exceptions  and  suggestions 
that  I  will  detail  in  my  testimony.  These  exceptions  and  suggestions  are  neces- 
sary to  enable  state  and  local  law  enforcement  agencies  to  protect  the  citizens  of 
our  country. 

As  you  know,  the  purpose  of  S.  1437  is  to  establish  justice  in  the  context  of  a 
federal  system  by : 

(a)  Defining  and  providing  notice  of  conduct  that  indefensibly  causes  or 
threatens  harm  to  those  individuals  or  public  interests  for  which  federal  protec- 
tion is  appropriate ; 

(b)  Prescribing  appropriate  sanctions  for  engaging  in  such  conduct  that  will: 

( 1 )  Deter  such  conduct ; 

(2)  Protect  the  public  from  persons  who  engage  in  such  conduct; 

(3)  Assure  just  punishment  for  such  conduct; 

(4)  Promote  the  correction  and  rehabilitation  of  persons  who  engage  in  such 
conduct ;  and 

(c)  Establish  a  system  of  fair  and  expeditious  procedures  for: 

(1)  investigating  such  conduct  by  means  that  will  lead  to  the  indentification 
of  persons  engaged  in  such  conduct ; 

(2)  Determining  the  guilt  or  innocence  of  persons  charged  with  engaging  in 
such  conduct;  and 

92-465 — 77 56 


9448 

(3)  Imposing  sanctions  upon  persons  found  guilty  of  such  conduct. 

If  enacted  S.  1437  would  codify  all  the  criminal  law  provisions  contained  in 
the  different  titles  of  the  United  States  Code  into  one  orderly  title  within  the 
Code. 

The  lACP  supports  the  purpose  of  S.  1437.  If  enacted,  S.  1437  would  provide 
remedies  for  the  confusion  present  in  the  varying  statutes.  S.  1437  would  estab- 
lish, for  the  first  time,  an  integrated  Code  of  virtually  all  statutes  and  rules 
concerning  federal  crimes  and  the  federal  criminal  justice  process.  Probably  the 
single  most  important  contribution  is  the  setting  forth  of  the  law  in  a  far  more 
comprehensive,  orderly,  and  simple  manner  than  the  existing  statutes. 

EFFECT  ON  STATE  AND  LOCAL  LAW  ENFORCEMENT 

The  bill  as  drafted  does  nothing  to  impair  the  availability  or  terms  of  any 
civil  or  administrative  remedy  or  penalty.  Court  powers  remain  unrestricted  in 
civil  proceedings  to  compel  compliance  with  an  order,  decree,  process,  writ  or 
rule,  or  to  direct  compensation  to  a  complainant  for  loss. 

Federal  jurisdiction  over  an  offense  includes  jurisdiction  over  those  offenses 
committed  in  the  general,  special,  and  extraterritorial  jurisdictions  of  the  United 
States.  General  jurisdiction  covers  that  territory  within  the  United  States. 
Special  jurisdiction  covers  such  territories  as  government-owned  lands  or 
land  leased  to  the  government ;  organized  territories  or  possessions  of  the 
United  States,  Indian  lands;  or  an  island,  rock  of  key  that,  at  the  discretion 
of  the  Pi-esident,  appertains  to  the  United  States:  and  a  facility  for  exploration 
or  exploitation  of  natural  resources  constructed  or  operated  on  or  above  the 
outer  continental  shelf.  The  federal  government  also  maintains  jurisdiction  over 
the  special  maritime  jurisdiction  and  the  special  aircraft  jurisdiction. 

Extraterritorial  jurisdiction  includes  jurisdiction  over  an  offense  committed 
outside  the  general  or  specific  jurisdictions  if  the  victim  or  intended  victim  is  a 
United  States  official,  federal  public  servant  outside  the  United  States  for  the 
purpose  of  performing  his  official  duties,  or  the  offense  is  treasonous  in  nature. 

The  proposed  legislation  provides  that  Federal  jurisdiction  over  an  offense 
does  not  generally  'preclude  a  state  or  loeal  government  from  exercising  its  con- 
current jurisdiction  to  enforce  its  laics  applicable  to  the  same  criminal  conduct. 
Therefore,  state  and  local  governments  would  maintain  their  present  power  to 
enact  and  enforce  laws  to  protect  the  health,  safety,  and  welfare  of  their  citizens. 
The  exception  is  that  the  United  States  Attorney  General  may  order  exclusive 
jurisdicion  over  an  offense  where  the  victim  is  a  United  States  official,  a  foreign 
official  or  a  member  of  his  immediate  family,  or  an  official  guest  of  the  United 
States  and  tlie  crime  is  specified  in  Chapter  10  or  Chapter  IG  of  the  lull  (serious 
crimes  against  the  person). 

The  lACP  supports  this  concept  in  that  the  Association  believes  it  is  vital  for 
effective  law  enforcement  to  permit  state  and  localities  flexibility  in  enforcing 
laws  and  protecting  the  health,  safety,  and  welfare  of  their  citizens. 

CULPABLE  STATE  OF  MIND  DEFINED 

Chapter  3  sets  forth  and  defines  the  eulpahle  states  of  mind  required  to  be 
proved  with  respect  to  conduct.  The  terms  used  to  describe  the  different  states  of 
mind  are  "intentional,"  "knowing,"  "reckless,"  and  "negligent"  and  variants 
thereof. 

The  International  Association  of  Chiefs  of  Police  supports  this  Chapter  in  that 
by  defining  the  culpable  state  of  mind  and  the  requisite  proof  for  conviction, 
much  of  the  confusion  that  currently  exists  will  be  clarified. 

CAPITAL   PUNISHMENT 

Federal  crimes  would  be  completely  reclassified  under  S.  14?.7.  The  death  penalty 
as  punishment  for  conviction  for  certain  crimes  would  be  al)ohshed  and  replaced 
with  life  imprisonment.  However,  the  penalty  provisions  of  49  U.S.C 
1472(1)  (1)  (B)  (Aircraft  Piracy)  will  remain  in  place.  Under  the  aforementioned 
section  anyone  who  commits  or  attempts'  to  commit  aircraft  piracy  and  if  the 
death  of  aiaother  person  results  from  the  commission  or  attempted  conunission  of 
the  offense,  the  offender  may  be  punislied  by  death  or  by  imprisonment  for  life. 


9449 

The  lACP  velieinently  opposes  the  abolishment  of  the  death  penalty.  We 
believe  that  the  abolition  of  capital  punishment  would  endanger  tlie  lives  of 
many  innocent  victims  of  criminal  depredations.  The  Association  believes  that 
the  death  penalty  should  be  imposed  for  premeditated  murder,  murder  committed 
during  the  perpetration  of  a  crime,  and  the  killing  of  a  law  enforcement  officer 
o.'  corrections  officer  during  the  perfomance  of  his  or  her  duties. 

Under  the  reclassiflcation  of  crimes  there  would  be  five  classes  of  felony, 
three  classes  of  misdemeanor,  and  one  class  of  infraction.  The  classifications 
are  set  forth  as  follows : 

CLASSIFICATION   OF  FELONIES 

Class  A  felony,  punishable  by  life  imprisonment  or  any  period  of  time,  possibil- 
ity of  fine  up  to  $100,000. 

Class  B  felony,  punishable  by  imprisonment  for  not  more  than  25  years ;  pos- 
sibility of  fine  up  to  $100,000. 

Class  C  felony,  punishable  by  imprisonment  for  not  more  than  12  years ;  pos- 
sibility of  fine  up  to  $100,000. 

Class  D  felony,  punishable  by  imprisonment  for  not  more  than  6  years ;  pos- 
sibility of  fine  up  to  $100,000. 

Class  E  felony,  punisluible  by  imprisonment  for  not  more  than  3  years ;  possi- 
bility of  fine  up  to  $100,000. 

CLASSIFICATION   OF   MISDEMEANORS 

Class  A  m'dsdemeanor.  punishable  by  imprisonment  for  not  more  than  1  year; 
possibility  of  fine  up  to  $10,000. 

Class  B  misdemeanor,  punishable  by  imprisonment  for  not  more  than  6  months ; 
possibility  of  fine  up  to  $10,000. 

Chiss  C  iiiisrieir.eanor.  iiunishable  by  imprisonment  for  not  more  than  30  days; 
possibility  of  fine  up  to  $10,000. 

CLASSIFICATION    OF   INFRACTION 

An  offense  punishable  by  imprisonment  for  not  more  than  5  days ;  possibility 
of  fine  up  to  $1,000. 

The  legislation  eliminates  the  Federal  Youth  Offenders  Act  as  well  as  the  Nar- 
cotics Addict  Rehabilitation  Act.  Both  of  these  pieces  of  legislation  provide  for 
special  treatment  of  certain  qualifying  individuals.  Through  these  acts  certain  in- 
dividuals were  afforded  leniency  by  the  courts. 

The  lACP  supports  the  elimination  of  these  acts.  While  both  of  the  acts  were 
needed  and  appropriate  at  the  time  of  their  passage,  subsequent  experience  while 
operating  under  their  provisions  has  raised  significant  questions  as  to  whether 
they  should  be  continued.  Specifically,  most  individuals  involved  in  the  adminis- 
tration of  Criminal  Justice,  including  judges,  prosecutors,  attorneys,  and  correc- 
tional administrators,  have  abandoned  the  so-called  "medical  model",  based 
upon  research  and  experience  which  clearly  indicate  that  change  in  a  criminal  of- 
fender cannot  be  coerced.  This  does  not  mean,  however,  that  offenders  should  not 
be  provided  the  maximum  opportunity  to  change  their  pattern  of  behavior 
through  the  provision  of  educational,  vocational  and  other  kinds  of  correctional 
programs. 

ELIMINATION    OF   GOOD  TIME   CREDITS 

Another  significant  provision  of  S.  1437  is  the  elimination  of  good  time  credits 
which  operate  under  present  law  to  reduce  the  time  the  offender  must  serve  if 
he  is  not  previously  released  on  parole.  Provision  is  made  for  parole  release,  but 
the  elimination  of  good  time  will  mean  that  if  an  offender  fails  to  gain  parole 
release,  he  will  serve  the  entire  sentence  imposed. 

The  lACP  supports  the  elimination  of  good  time  credits.  However,  the  Associa- 
tion does  see  a  need  for  an  incentive  to  the  offender.  Consequently,  the  lACP  sup- 
ports the  parole  provision  of  Subchapter  D  of  Chapter  38— Post  Sentence 
Administration. 

We  believe  that  it  must  also  be  noted  that  under  present  law,  good  time  oper- 
ates in  a  significant  percentage  of  cases  to  reduce  the  actual  time  served  by  of- 
fenders. Thus  the  "hard  time"  served  under  the  maximum  statutory  sentences 


9450 

provided  by  S.  1437  without  good  time  may  be  longer  than  the  "hard  time"  served 
under  the  h)iiger  termed  .sentence  under  present  law.  Consequently,  we  believe 
that  judges  should  take  this  into  account  in  sentencing  offenders  under  the  pro- 
posed legislation. 

SENTENCIKQ   COMMISSION 

Probably  one  of  the  most  significant  provisions  of  S.  1437  is  the  establishment 
of  a  Sentencing  Commission  to  promulgate  sentencing  guidelines  for  federal  dis- 
trict court  judges.  As  drafted  the  legislation  provides  that  the  Sentencing  Com- 
mission will  consist  of  nine  members  chosen  by  the  Judicial  Reform  Commission. 
The  Sentencing  Commission  will  be  charged  with  establishing  sentencing  guide- 
lines to  eliminate  the  indiscriminate  discrepancies  that  exist  in  sentences  cur- 
rently imposed  by  federal  judges.  In  determining  the  particular  sentence  to  be 
imposed  under  Section  2003(a),  the  court  must  consider  the  nature  and  circum- 
stances of  the  nttense  flnd  the  history  and  characteristics  of  the  defendant ;  what 
punishment  will  afford  adequate  deterrence  as  well  as  protect  the  public  from 
fnrthei-  criiiies  of  tne  deren.!'."!  :  the  s'tIousu'^ss  of  the  offense:  nnd  the  educa- 
tional, vocational,  and  medical  needs  of  the  offender  that  will  be  most  effective  in 
•dealing  with  the  offender. 

The  court  may  impose  a  sentence  outside  the  guidelines  promulgated  by  the 
Sentencing  Commission.  At  the  time  of  sentencing  the  court  must  state,  in  open 
court,  the  general  reasons  for  the  imposition  of  a  particular  sentence,  and.  if  the 
Hontcnce  is  outside  the  range  desr-ril>ed  liy  the  Sentencing  Commission,  the  reason 
for  the  imposition  of  a  sentence  outside  such  range. 

After  the  court  hands  down  a  sentence,  either  the  defendant  or  the  govern- 
ment mny  seek  review.  In  ntl^er  words,  if  the  defendiint  Fe>ls  that  the  imjtosition 
of  a  particular  sentence  is  outside  the  commission's  guidelines,  i.e.,  the  sentence 
is  too  harsh,  he  may  seek  appeal ;  or  if  the  government  feels  that  the  imposition 
of  a  particular  sentence  is  too  lenient,  it  may  seek  appeal. 

The  court,  in  imposing  a  sentence  on  a  defendant  who  has  been  found  gTiilty 
of  an  offense  causing  bodily  injury,  property  damage  or  other  loss,  may  order,  in 
addition  to  the  sentence,  the  defendant  to  make  direct  restitution  to  a  victim  of 
the  offense  in  an  amount  and  manner  set  by  the  court.  Although  there  is  a  similar 
provision  tinder  current  law,  the  court  may  only  order  direct  restitution  if  the 
defendant  is  placed  on  probation. 

The  International  Association  of  Chiefs  of  Police  supports  the  concept  of  a 
Sentencing  Commission.  The  association  believes  that  the  irrational  variation  in 
sentence  under  present  law  raises  questions  as  to  the  rationality  of  the  Federal 
criminal  justice  system.  However,  the  Association  believes  that  the  statute  should 
prescribe  certain  members  for  the  Commission.  These  prescribed  members 
include : 

I .  The  Attorney  General  of  the  United  States  ; 
9..  Tlie  head  of  the  Correct'ons  System  ; 

3.  The  head  of  the  Parole  System  ; 

4.  Peprosentatives  from  the  law  enforcement  arms  of  the  Department  of  .Jus- 
tice nnd  the  Treasury  Department;  and 

r,.  Four  Federal  Judges. 

The  aforementioned  composition  would  provide  the  bnlnnce  required  to  estab- 
lish workable  sentencing  guidelines  in  that  it  would  provide  representation  from 
all  aspects  of  law  enforcement. 

PAROLE  INELIGIBILITY 

If  the  court  imposes  a  term  of  imprisonment  it  must  desiarnate  the  portion,  if 
any,  of  the  term  to  be  served  as  a  term  of  parole  ineligibility.  The  authorized 
term  of  imprisonment  that  the  court  may  require  to  be  served  prior  to  the  eli- 
gibility for  parole  is  any  term  found  appropriate  by  the  court  in  light  of  the  to- 
tsilitv  f)f  the  r-irf'iniistnncps  surronnding  the  commission  of  the  crime.  However,  no 
term  of  parole  ineligibility  may  extend  into  the  last  one  tenth  of  tlie  sentence. 

Upon  motion  of  the  Director  of  the  Bureau  of  Prisons  "for  extraordinary  and 
comnelling  rensons,"  the  cnnrt  "may  reduce  an  imnosed  term  of  imprisonment 
or  term  of  pnrole  ineligibility  to  the  time  that  the  defendnnt  hns  served  in 
imprisonment."  Tin's  provision  expands  the  present  l.nw  wliich  perniils  the  conrt. 
unon  motion  of  tlie  Pureau  of  Prisons,  to  make  an  offender  immediately  eligible 
for  parole  by  reducing  any  minimum  term  to  the  time  the  defendant  has  served. 


9451 

The  lAO'P  supports  the  concept  of  parole  ineligibility.  However,  the  associa- 
tion opposes  the  restriction  against  extending  parole  ineligibility  to  the  last 
tenth  of  the  sentence. 

The  association  supports  the  concept  providing  the  Director  of  the  Bureau  of 
Prisons  authority  to  motion  the  court  if  he  feels,  for  compelling  reasons,  that 
an  injustice  has  been  done. 

MANDATORY    SENTENCING 

S.  1437  provides  for  an  indeterminate  sentence  system  with  the  maximum  term 
indicated.  Except  for  Traflicking  in  an  Opiate,  section  1811  and  Using  a  Weapon 
in  the  course  of  a  Crime,  section  1823,  no  mandatory  prison  terms  are  provided. 
Under  section  1811  the  court  may  not  sentence  the  defendant  to  probation  but 
must  sentence  him  to  a  term  of  imprisonment  of  not  less  than  2  yeai'S  and  to  a 
term  of  parole  ineligibility  of  not  less  than  2  years,  with  the  sentence  to  run 
consecutively  to  any  other  imprisonment  imposed. 

Section  1823(a)  (1)  provides  if  a  person  is  guilty  of  an  offense  and  displays 
or  uses  a  firearm  or  a  destructive  device,  the  court  may  not  sentence  the  de- 
fendant to  probation  hut  must  sentence  him  to  a  term  of  imprisonment  of  not 
less  than  2  years  with  a  term  of  parole  ineligibility  of  2  years.  If  a  person  is 
guilty  of  possessing  a  firearm  or  destructive  device  dui-ing  the  commission  of  a 
crime,  the  court  must  sentence  the  defendant  to  a  term  of  imprisonment  of  1 
year  with  a  term  of  parole  ineligibility  of  one  year.  Again,  as  in  the  offense  of 
Trafficking  in  an  Opiate,  the  sentence  must  run  consecutively  to  any  other  sen- 
tence imposed. 

The  lACP  supports  the  concept  of  mandatory  minimum  prison  sentences.  The 
association  believes  that  mandatory  minimum  sentences  are  the  best  method  of 
dealing  with  the  above-mentioned  crimes.  We  believe  that  mandatory  sentences 
for  these  serious  crimes  is  the  only  method  to  provide  the  protection  our  citi- 
zens deserve  and  the  deterrence  necessary  to  minimize  the  commission  of  these 
offenses. 

MULTIPLE    SENTENCE 

Section  2304,  Multiple  Sentences  of  Imprisonment,  provides  that  multiple  terms 
of  imprisonment  run  concurrently  unless  the  court  orders  that  the  terms  are 
to  run  consecutively.  This  codifies  the  presumption  of  current  sentencing  laws 
where  a  subsequent  Federal  sentence  is  imposed  on  an  offender  presently  serv- 
ing a  prior  Federal  sentence.  However,  the  reverse  is  true  when  a  Federal 
sentence  is  imposed  upon  an  offender  presently  serving  a  State  sentence.  In 
this  case,  if  the  Federal  judge  remains  silent,  case  law  and  the  application  of 
statutory  law  dictate  that  the  Federal  sentence  will  be  computed  to  run 
consecutively. 

Section  2304(c)  provides  that  the  aggregate  of  consecutive  terms  of  imprison- 
ment to  which  a  defendant  may  be  sentenced  may  not  exceed  such  term  as  is 
authorized  by  the  proposed  legislation  for  an  offense  one  grade  higher  than  the 
most  serious  offense  for  which  he  was  found  gtulty. 

The  lACP  supports  the  concept  of  multiple  sentences.  It  is  not  clear,  how- 
ever, whether  this  aggregate  sentencing  limitation  applies  only  to  sentences 
imposed  at  the  same  time,  or  for  any  subsequent  sentencing  situation.  If  the 
limitation  is  applied  to  any  subsequent  sentencing  situation,  offenders  who  com- 
mit a  series  of  crimes  for  which  the  maximum  penalty  is  no  greater  than  that 
for  which  they  are  presently  incarcerated  would  achieve  a  certain  degree  of  un- 
warranted immunization  from  possible  criminal  sanctions.  The  most  they  could 
get  in  terms  of  a  new  prison  term  is  the  difference  between  their  present  sen- 
tence and  the  maximum  penalty  for  the  next  grade  higher.  If  the  limitation  is 
only  intendetl  to  apply  to  sentences  imposed  at  the  same  time,  we  are  not  opposed 
to  this  provision.  But,  we  do  urge  that  the  aforementioned  ambiguity  be  cleared 
up. 

JUVENILES 

Under  S.  1437,  the  provisions  for  placing  committed  juveniles  are  much  more 
restrictive  than  present  law.  Under  ciirrent  law,  "no  juvenile  committed  to  the 
custody  of  the  Attorney  General  may  be  placed  or  retained  in  an  adult  jail  or 
correctional  institution  in  which  he  has  regular  contact  with  adults  incarcer- 
ated because  they  have  been  convicted  of  a  crime  or  are  awaiting  trial  on 


9452 

criminal  charges."  S.  1437  proposes  that  a  juvenile  cannot  be  held  "in  an  official 
detention  facility  in  which  an  adult  convicted  of  an  offense  or  awaiting  trial  on 
a  charge  of  an  offense  is  held  in  official  detention." 

The  lACP  opposes  this  provision.  It  places  an  unnecessary  burden  on  the 
states  to  provide  separate  detaining  facilities.  Many  States  simply  do  not  have 
juvenile  facilities  for  these  individuaLs.  If  tliese  juveniles  cannot  be  placed  in 
a  State  facility,  and  this  provision  will  significantly  reduce  the  number  of 
'State  facilities  available,  we  may  be  forced  to  establish  one  or  two  Federal 
juvenile  facilities,  which  means  that  most  of  the  offenders  placed  there  will 
be  thousands  of  miles  away  from  their  families. 

TREATMENT    OF    NARCOTICS 

Pursuant  to  section  1813(a),  it  is  no  longer  a  Federal  offense  for  a  person 
to  possess  10  grams  or  less  of  marihuana. 

The  lACP  opposes  the  decriminalization  of  marihuana.  We  are  trying  to 
hold  the  line  State  by  State  and  we  believe  that  the  decriminalization  of  mari- 
huana will  severely  weaken  the  position  of  the  States. 

S.  1437  also  modifies  current  law  in  the  regulation  of  opiates.  The  proposed 
legislation  sets  forth  different  grades  of  offenses  for  the  possession  of  an  opiate, 
depending  on  rpiantity,  as  well  as  different  grades  of  offenses  for  trafficking  in 
an  opiate.  If  an  individual  is  found  guilty  of  possessing  less  than  100  grams  of 
an  opiate,  he  is  guilty  of  a  class  A  misdemeanor  punishable  by  imprisonment 
for  not  more  than  1  year.  If  an  individual  is  found  guilty  of  possession  of  100 
grams  or  more,  he  is  guilty  of  a  class  D  felony,  punishable  by  imprisonment  for 
not  more  than  6  years. 

Under  current  law  there  is  no  delineation  drawn  as  to  the  quantity  possessed. 
An  individual  found  guilty  of  possession  of  an  opiate  shall  be  sentenced  to  a 
term  of  imprisonment  of  not  more  than  1  year  for  the  first  offense  and  2  years 
for  subsequent  offenses. 

S.  1437  differentiates  the  possible  penalties  for  trafficking  in  an  opiate  based 
on  the  quantity  of  tlie  opiate  trafficked  in.  If  an  individual  is  found  guilty  of 
trafficJving  in  less  than  100  grams  of  an  opiate  he  is  guilty  of  a  class  C  felony, 
punisliable  by  imprisonment  of  not  more  than  12  years.  Whereas,  if  an  individual 
is  convicted  of  trafficking  in  100  grams  or  more  of  an  opiate,  he  is  guilty  of  a 
class  B  felony,  punishable  by  imprisonment  of  not  more  than  2~>  years. 

Under  current  law  if  an  individual  is  found  guilty  of  trafficking  in  an  opiate, 
he  may  be  sentenced  to  a  term  of  imprisonment  of  not  more  than  15  years  re- 
^gardless  of  the  quantity  involved. 

RECOMMENDATION 

The  lACP  supports  the  concept  treating  traffickers  of  large  quantities  of  opiates 
more  severely  than  traffickers  of  small  (luantities.  However,  due  to  the  serious- 
ness of  the  aforementioned  offense,  and  the  societal  problems  as  a  result  of  traf- 
ficking in  opiates,  the  IA(^P  believes  that  the  quantity  stipulation  of  100  grams 
is  nuu'li  too  high.  Tlio  association  believes  tbat  tho  quantity  stipulation  for  both 
possession  and  trafficking  in  an  opiate  should  be  30  grams.  Thirty  grams  of  pure 
heroin  has  a  value  of  ,*2,000.  Only  then  will  society  be  able  to  reach  the  level 
of  deterrence  necessary  to  reduce  the  occurrences  of  this  offense. 

Furthermore,  the  TACP  Ix'lieves  that  with  the  possession  of  30  grams  or  more 
of  an  opiate  that  the  intent  to  traffic  need  not  be  proved  ;  but  rather  may  be  pre- 
sumed, relieving  tbe  Government  of  its  burden  of  proof.  AVe  believe  that  it  is 
evident  that  an  individual  possessing  30  or  more  of  an  opiate  does  not  intend  to 
keep  the  substance  for  his  personal  use. 

RIOTING 

Subchapter  D  of  chapter  18  provides  a  uniform  set  of  offenses  for  rioting,  with 
increased  penalties  for  rioting  in  a  prison  .setting.  Section  l.'JM  provides  that  it 
is  a  class  D  felony  for  a  person,  during  a  riot  in  a  correctional  facility,  to  urge 
participation  in,  lead,  give  commands,  instructions  or  directions  in  furtherance 
of  tbe  riot.  It  is  a  class  A  misdemeanor  for  persons  who  participate  in  a  riot 
within  a  correctional  facility. 


9453 

The  lACP  supports  the  special  pennlty  provision  for  prison  riotinj?.  The  asso- 
ciation feels  however,  that  the  disparity  between  leading  a  riot  and  participating 
in  a  riot  is  unwarranted.  The  association,  therefore,  suggests  that  the  penalty  for 
participating  in  a  riot  should  be  raised  to  a  class  B  felony. 

Chapter  10  pertains  to  tlie  crimes  of  Criminal  Attempt,  Criminal  Conspiracy, 
and  Criminal  Solicitation.  Section  1001  defines  Criminal  Attempt  as  an  offense 
where  the  actor  is  acting  with  the  State  of  mind  otherwise  required,  for  the  com- 
mission of  a  crime  and  he  intentionally  engages  in  conduct  that,  in  fact,  amounts 
to  more  than  mere  preparation  for  the  commission  of  the  crime. 

Criminal  attempt  is  an  offense  of  the  same  class  as  the  crime  attempted,  ex- 
cept that,  if  the  crime  attempted  is  a  class  A  felony,  the  attempt  is  a  class  B 
felony. 

Criminal  conspiracy  is  defined  in  section  1002  as  an  offense  where  one  person 
agrees  with  one  or  more  persons  to  engage  in  conduct,  the  performance  of  which 
would  constitute  a  crime  or  crimes,  and  he  or  one  of  the  persons  in  fact  engages 
ill  any  conduct  with  intent  to  effect  any  objective  of  the  agreement. 

Criminal  conspiracy  is  an  offense  of  the  same  class  as  the  most  serious  crime 
that  was  an  objective  of  the  conspiracy,  except  that  if  the  most  serious  crime 
that  was  the  objective  of  the  conspiracy  is  a  class  A  felony,  the  conspiracy  is 
a  class  B  felony. 

Criminal  solicitation,  a  new  crime  under  S.  1437,  is  defined  in  section  1003.  A 
person  is  guilty  of  such  an  offense  if.  with  intent  that  another  person  engage 
in  criminal  conduct,  and,  in  fact,  under  circumstances  strongly  corroborative 
of  that  intent  he  commands,  entreats  induces  or  otherwise  endeavors  to  per- 
suade such  other  person  to  engage  in  such  conduct. 

The  offense  of  criminal  solicitation  is  of  the  class  next  below  that  of  the 
crime  solicited. 

The  lACP  supports  the-concept  of  the  addition  of  the  offense  of  criminal 
solicitation  in  that  it  enables  law  enforcement  agencies  to  prosecute  individuals 
more  readily  than  the  current  conspiracy  statutes.  Under  current  conspiracy 
statutes  if  a  higher  up  in  an  organized  crime  syndicate  orders  a  person  in  the 
lower  ranks  to  commit  a  crime  and  that  individual  is  arrested  prior  to  com- 
mission of  the  crime,  there  is  no  conspiracy  in  tiiat  no  agreement  exists  between 
the  two  parties  to  the  crime.  Whereas,  with  the  new  offense  of  criminal  solicita- 
tion the  higher  up  may  be  reached  for  ordering  another  to  commit  a  crime.  This 
addition  compliments  the  range  of  conspiracy. 

S.  1437  substantively  leaves  the  current  law  provisions  for  the  interception 
of  a  private  oral  communication  and  immunity  intact.  The  lACP  wholeheartedly 
supports  these  practices.  We,  in  law  enforcement,  realize  the  need  for  such  opera- 
tions and  capabilities  in  the  fight  against  crime.  Without  the  ability  to  intercept 
communications  and  offer  immunity  much  of  law  enforcement's  intelligence 
capabilities  to  detect  crime  prior  to  the  commission  as  well  as  solving  crime 
after  commission  will  be  greatly  hindered. 

With  the  aforementioned  exceptions  and  suggestions,  the  International  As- 
sociation of  Chiefs  of  Police  urges  passage  of  S.  1437.  There  is  an  urgent  need 
for  reform  in  the  present  structure  of  the  law.  S.  1437  embodies  the  needed 
reform  and  its  passage  will  significantly  reduce  the  irrationality  of  the  present 
system,  and  will  enable  the  federal  sentencing  system  to  function  swiftly  and 
with  more  certainty.  Passage  of  S.  1437  would  result  in  a  fair  and  workable 
Federal  Criminal  Code.  Furthermore,  the  enactment  of  the  proposed  legislation 
would  give  law  enforcement  agencies  at  all  levels  the  guidelines  and  direction 
necessary  for  efficient  law  enforcement. 

Attached  you  will  find  a  chart  that  the  lACP  drew  up  comparing  maximum 
allowable  sentences  under  current  law  with  those  provided  under  S.  1437. 

Thank  you. 

The  following  is  a  cliart  comparing  maximum  punishment  for  major  crimes 
between  S.  1437  and  existing  Federal  law.  It  must  be  noted  that  under  Section 
1823  of  S.  1437  (Using  a  Weapon  in  the  Course  of  a  Crime)  a  mandatory  prison 
sentence,  of  not  less  than  2  years  to  run  consecutively  to  any  other  term  of 
imprisonment,  is  pro^aded  if  a  person  displays  or  otherwise  uses  a  firearm  or 
destructive  device  during  rhe  commission  of  a  crime.  Consequently,  an  additional 
lienalty  may  be  tacked  onto  many  of  the  offenses  listed  below. 


9454 


Crime  Present  law  S.  1437 

Murder  1 - Death  (life)  invalidated  by  decisional    Life,  number  degrees,  includes  felony 

law.  murder. 

Murder  2 Life 

Voluntary  manslaughter 10  yr 12  yr. 

Involuntary  manslaughter. 3  yr Negligent  homicide,  6  yr. 

Mayhem 7yr Punishable  as  maiming,  12  yr. 

Assault  with  a  deadly  weapon 5  yr Punishable   as   menacing,    1    yrilus; 

provided  weapon  was  firearm  sec. 
1823  applies. 

Assault   with    a    deadly   weapon   on    10  yr. ..Same  as   above   no   special   provision 

Federal  officer  or  employee.  may    be    punished    as    aggravated 

battery  if  serious  bodily  injury,  6  yr. 

Kidnapping Life Life  if  actor  does  not  voluntarily  release 

victim  alive,  12  yr  in  other  cases. 

Aircraft  hijacking 20  yr 25  yr. 

Aircraft  hijacl<ing  with  death  resulting.  Death Death  penalty  provisions  of  49  U.S.C. 

1472(i)(l)(B)  apply. 

Rape Death  invalidated  by  decisional  law,    12  yr.  Sec.  1823  may  apply  if  firearm 

life.  involved  in  threat. 

Arson: 

Unoccupied  structure 5  yr 12  yr. 

Occupied  structure 20  yr Do. 

Burglary do Do. 

Robbery: 

Person 15  yr Do. 

Banl< 20  yr Do. 

Drug  offenses: 

Trafficking  In  an  opiate 15  yr If  100  g  or  more  or  distributing  to  a 

minor— 25  yr — 12  yr  in  other  cases. 

Possession  of  an  opiate 1  yr Less  than  100  g  1  yr  more  than  100  g 

6  yr. 

Trafficking  in  drugs 15  yr 12  yr  if  drug  is  a  schedule  I  or  II  drug 

(21  U.S.C.  812)  6  yr  if  other  than 
above  or  less  than  300  gof  marihuana; 
3  yr  if  drug  is  a  schedule  IV  drug  1 
yr  if  drug  is  schedule  V. 

Possession  of  a  drug 1  yr 1  yr  if  substance  is  other  than  opiate 

or  marihuana. 

Trafficking  In  marihuana 5  yr 6  yr  if  more  than  300  g,  1  yr  if  between 

100  and  300  g,  6  mo  if  less  than  100  g. 

Possession  of  marihuana 1  yr. No  offenses  if  10  g  or  less,  30  days  or 

$500  fine,  if  more  than  10  g. 


Citizens  Commissions  ox  Human  Rights, 

Washington,  B.C.,  July  15,  19111. 

Deak.  Senator  :  This  submission  is  presented  to  tlie  members  of  the  Judiciary 
Committee  in  regards  to  Sub-Chapter  B  of  Chapter  36,  Senate  Bill  1437,  involv- 
ing offenders  with  mental  disease  or  defect. 

We  ai'e  concerned  with  the  provisions  of  this  Sub-Chapter  which,  if  enacted, 
would  empower  the  State  to  deny  American  citizens  basic  freedoms  guaranteed 
by  the  United  States  Constitution  and  provided  for  under  the  Nuremberg  Code 
and  the  Universal  Declaration  of  Human  Rights. 

Under  this  l)ill,  a  person  could  be  arrested  and  held  involuntarily  in  a  mental 
institution  for  up  to  (JO  days  to  determine  competency  to  stand  trial.  If  found 
incompetent,  the  person  could  then  be  Iield  for  up  to  a  year  in  the  mental 
hospital  without  ever  being  convicted  of  a  crime.  And  if  the  person  is  found 
not  guilty  by  rea.son  of  insanity,  lie  or  she  could  be  detained  indefinitely,  even 
beyond  the  sentence  prescribed  by  the  courts. 

As  will  be  .shown  in  this  submissiim,  "clear  and  convincing"  evidence  from  the 
fields  of  i)!^ychology,  i)sychiatry  and  law  enforcement  technology  does  not  exist 
to  allow  for  the  accurate  as.sessment  of  mental  states  or  the  i)redical>Ie  allevia- 
tion of  the  symptoms  of  mental  illness.  Yet  under  Sub-(^hai)ter  B  even  the 
suspicion  of  mental  illness  becomes  grounds  for  forcible  mental  incarceration 
by  the  State  without  due  process  of  law. 

For  this  reason,  we  recommend  that  Chapter  3(>,  Sub-Chapter  B  be  deleted 
from  Senate  Bill  1437  and  legislation  be  initiated  which  conforms  to  the  human 
rights  codes  mentioned  above,  and  in  addition,  l)y  providing  effective  rehabilita- 
tion programs  for  those  who  are  found  to  l)e  guilty  of  commiting  a  crime. 

We  respectfully  recpiest  that  our  submission  l)e  brought  to  the  attention  of 
the  Judiciary  Committee  with  the  full  expectation  that  this  nation's  fotuuling 
principles  of  life,  liberty  and  the  pursuit  of  happiness  shall  not  be  abridged. 
Sincerely, 

Kathleen  Wiltsey. 

Regional  Director. 


9455 

A  Submission  Kegabding  Senate  Bill  1437  Chapter  36,  Subchapter  B, 

July  15, 1977 

part   I:   a  brief  outline  of   chapter   36,    subchapter   B,   of   S.    1437 

This  Subchapter  is  entitled  "Offenders  with  Mental  Disease  or  Defect."  It 
outlines  the  procedures  involved  in  (1)  the  Determination  of  Mental  Ccnupetency 
to  Stand  Trial,  (2)  the  Determination  of  the  Existence  of  Insanity  at  the  Time 
of  the  Offense,  (3)  the  Hospitalization  of  a  Person  Ac(iuitted  by  Reason  of 
Insanity,  (4)  the  Hospitalization  of  a  Convicted  Person  Suffering  from  Mental 
Disease  or  Defect,  &  (6)  the  Hospitalization  of  a  Person  Due  for  Release  but 
Suffering  from  Mental  Disease  or  Defect. 

This  subchapter  would  include  any  individual,  whether  they  have  a  history 
of  violence,  insanity,  criminality,  or  not. 

Section  3611  of  this  Subchapter  states  that  at  any  time  after  the  commence- 
ment of  a  prosecution  for  an  offense,  and  before  the  sentencing  of  the  defendant, 
a  motion  can  be  made  by  the  attorney  for  the  government  that  a  hearing  be  held 
to  determine  the  mental  competency  of  the  defendant  to  stand  trial.  If  the 
court  grants  this  motion,  the  defendant  must  undergo  a  psychiatric  examination 
for  the  purposes  of  determining  his  mental  competency  to  stand  trial.  This 
psychiatric  examination  may  include  commitment  to  a  mental  institution  for 
up  to  60  days.  This  commitment  takes  place  before  the  defendant  has  been  proven 
guilty,  before  he  has  been  considered  violent  or  dangerous,  before  he  has  been 
considered  mentally  incompetent  to  stand  trial,  and  before  he  is  afforded  a 
hearing. 

The  next  step  is  for  the  hearing  to  be  conducted  for  the  purpose  of  determining 
the  mental  competency  of  the  defendant  to  stand  trial.  If  the  defendant  is 
found  to  be  "mentally  incompetent  to  the  extent  that  he  unable  to  understand 
the  nature  and  consetiuences  of  the  proceeding  against  him  or  to  assist  properly 
in  his  defense,"  he  may  be  committed  to  a  mental  institution  for  up  to  one  year, 
with  or  without  his  consent.  This  additional  commitment  takes  place  before  the 
defendant  is  found  to  be  guilty  or  even  violent  or  dangerous.  It  is  purely  a 
result  of  his  assumed  ignorance  of  the  legal  consequences  facing  him  at  that 
time. 

After  this  commitment,  the  defendant  may  be  given  another  hearing,  at 
which  time,  if  he  is  found  to  be  "presently  suffering  from  a  mental  disease  or 
defect  as  a  result  of  which  his  release  would  create  a  substantial  risk  of  serious 
bodily  injury  to  another  person  or  serious  damage  to  property  of  another,"  he 
may  be  committed  to  a  mental  institution  for  an  indefinite  period  of  time.  This 
commitment  takes  place  before  the  defendant  has  been  found  to  be  guilty  of 
any  crime. 

Section  3612  of  this  subchapter  is  concerned  with  the  procedures  to  be  followed 
if  a  motion  is  made  that  a  psychiatric  examination  be  conducted  for  the  purpose 
of  determining  if  tlie  defendant  was  insane  at  the  time  of  the  offense.  If  this 
issue  of  insanity  is  raised,  the  defendant  is  to  l)e  found  either  (1)  guility,  (2) 
not  guilty,  or  (3)  not  guilty  by  reason  of  insanity. 

Section  3613  of  this  subchapter  deals  with  the  procedure  for  hospitalization 
of  a  person  found  "not  guilty  by  reason  of  insanity"  as  described  above.  Again, 
this  involves  a  psychiatric  examination  which  may  include  commitment  to  a 
mental  institution  for  up  to  60  days. 

Following  this  is  a  hearing  and  then  disposition  of  the  defendant  which  may 
include  commitment  to  a  mental  institution  for  an  indefinite  period  of  time. 
This  prcx'edure,  again,  is  carried  out  before  the  defendant  is  found  to  be  guilty  of 
any  crime. 

Sections  361^  and  3615  of  this  subchapter  deal  with  the  hospitalization  of  con- 
victed persons  and  imprisoned  respectively.  The  procedures  are  similar  to  those 
carried  out  in  the  previous  sections,  requiring  psychiatric  examination,  hearing, 
and  disposition  of  the  person. 

Section  3616  of  this  subchapter  deals  with  persons  due  for  release  but  found 
to  1)6  suffering  from  a  mental  disease  or  defect  at  the  time  of  release.  The  pro- 
cedure followed  in  this  case  is  again  similar  to  that  described  in  the  above 
sections,  including  a  ])sychiatric  examination,  hearing,  and  then  disposition. 

Section  3617  of  this  subchapter  explains  the  general  provisions  for  this  Sub- 
chapter. The  definition  for  "insane"  is  given  in  this  section  and  is  stated  as  "a 
mental  disease  or  defect  of  a  nature  constituting  a  defen.se  to  a  federal  criminal 
prosecution."  The  psychiatric  examinations,  psychiatric  reports,  and  the  hear- 


9456 

ings  are  explained  in  full  in  this  section,  as  well  as  specific  responsibilities  and 
riffhts  of  the  si,£:nificant  parties  involved  in  the  proceedings.  This  is  the  last 
section  in  Subchapter  B  of  Chapter  36. 

Part  II :  The  Fuxctioiv  of  the  Psychiatrist  Under  S.  1437,  Chapter  36, 
Subchapter  B,  Versus  Psychiatric  Qualifications  to  Carry  Out  This 
Function. 

The  psychiatrist  or  clinical  psychologist  under  the  authority  of  S.  1437.  has 
an  important  function  in  determining  the  past,  present,  and  future  mental  state 
of  the  individual  under  consideration.  This  determination  is  arrived  at  through  a 
psychiatric  examination.  The  individual,  if  he  is  not  already  incarcerated  in 
prison  or  in  a  mental  hospital  or  other  facility,  may  be  committed  to  a  mental 
hospital  for  up  to  60  days  for  the  purpose  of  this  examination.  The  final  para- 
graph of  section  3617  reads  as  follows : 

"For  the  purpose  of  an  examination  pursuant  to  an  order  under  section  3611, 
3612.  3613.  or  3614,  the  court  may  commit  the  person  to  be  examined  for  a  rea- 
sonable pei'iod,  but  not  more  than  sixty  days,  to  the  custody  of  the  Attorney  Gen- 
eral for  placement  in  a  suitable  mental  hospital  or  another  facility  designated 
by  the  court  as  suitable." 

The  commitment  and  examination  procedure  should  be  considered  in  light  of 
the  possible  consequences  of  foi-ced  commitment  and  in  light  of  statistical  evi- 
dence of  psvchiatrists  ability  to  determine  the  mental  state  of  individuals.  To 
commit  an  individual  to  a  mental  institution  for  any  purpose,  on  the  word  of  a 
psychiatrist  amounts  to  a  blatant  denial  of  the  right  to  freedom  and  due  process. 
Evidence  of  this  is  presented  in  a  study  by  D.  L.  Rosenhan  \  professor  of  psy- 
chology and  law  at  Stanford  University.  In  this  study.  S  sane  individuals  liad 
tliemselves  committed  to  12  mental  institutions  in  order  to  determine  if  the 
staff  could  detect  their  sanity.  During  their  entire  stay  (length  of  commitment 
ranged  from  7  to  52  days;  the  average  being  19  days)  none  of  the  "pseudo- 
patients"  were  detected  as  being  sane  by  the  staif  or  psychiatrists. 

This  same  study  also  exemplified  the  detrimental  effects  of  commitment  to  a 
mental  institution.  Dr.  Rosenhan  describes  some  of  the  observations  of  the 
"pseudopatients" : 

"The  data  I  have  presented  does  not  do  .pistice  to  the  rich  daily  encounters  that 
grew  up  around  matters  of  depersonalization  and  avoidance.  I  have  records  of 
patients  who  were  beaten  by  staff  for  the  sin  of  having  initiated  verbal  contact. 
During  my  own  experience,  for  example,  one  patient  was  beaten  in  tlie  presence 
of  other  patients  for  having  approached  an  attendant  and  told  him,  'I  lilve  you.' 
Occasionally,  punishment  meted  out  to  patients  for  misdemeanors  seemed  so 
excessive  that  it  could  not  be  justified  by  the  most  radical  interpretations  of 
psycliiatric  canon.  Nevertlieless,  they  ap)ieared  to  go  unquestioned.  Tempers  were 
often  short.  A  patient  who  had  not  heard  a  call  for  medication  would  l)e  roundly 
excoriated,  and  the  morning  attendants  would  often  wake  patients  with,  'Come 
on,  you ,  out  of  bed !'  " 

Rosenhan  concludes:  "The  consequences  to  patients  hospitalized  in  such  an 
environment — the  powerlessness.  depersonalization,  segregation,  mortification, 
and  sclf-labellng-seem  undoubtedly  count ertherapeutic." 

The  beatings  of  patients  by  staff  and  countertherapeutic  atmosphere  in  the 
institutions  is  not  unique  to  the  Rosenhan  study.  In  California  in  January  1976, 
.iust  prior  to  reports  of  many  suspicious  patient  deallis  in  the  State  lio.spitals 
there,  the  Commission  on  California  State  Government  Organization  and  Econ- 
omy published  a  report"  after  their  review  of  the  State  Department  of  Health 
facilities.  They  described  what  they  found  on  one  ward  of  Sonoma  State 
Hospital : 

"In  summary,  the  facilities  on  the  Phoenix  Ward  not  only  woro  physically 
unfit  for  human  habitation  but  provided  conditions  hazardous  to  the  pntients' 
health.  The  iinsatisfactory  environment  wns  not  offset  by  any  obvious  treatment 
programs  or  by  warm,  personal  patient-staff  relationships." 

Investigations  were  done  in  March  of  this  year  amidst  eharcfes  of  n^glf^f^t  and 
violence   at   Creedmoor   Hospital   in   New   York.^  The   following   ]May.    District 


'  T^  T;.   T?nsf»nh(in.   "On  T?oinc  SnriP  In  Tnsnro  Plnros."  S(>ionro.  vril.   170,  p.   I'd.  107-'^. 
*  Conimlssion  on  California  Stato  Govornnient  Organization  and  Economy,  .Tannary  1076 
■Rpport. 

'Sunday  Newsday,  the  Long  Island  Newspaper,  Queens  Edition,  Mar.  C.  1077. 


9457 

.Attorney  John  Sautucci  ordered  another  investigation  of  Creedmoor  as  a  result 
of  180  allegations  of  patient  abuse  or  neglect,  including  six  deaths.'* 

In  Massachusetts,  Worcester  State  Hospital  Superintendant  David  J.  Myerson 
described  the  state  hospital  system  as  one  of  "If  you  squeal,  we'll  beat  you 
up."  Such  are  the  cruel  and  unusual  punishments  which  a  psychiatric  examination 
under  S.  1437,  Chapter  36,  Subchapter  B  would  inflict  upon  defendants  not  yet 
convicted  of  any  crime. 

The  stigma  attached  to  being  committed  to  a  mental  hospital  for  examination, 
should  also  be  examined.  If  the  diagnosis  comes  out  negative,  the  individual  still 
has  the  stigma  of  being  put  in  the  mental  institution,  to  carry  with  him  into 
his  trial  or  later  in  life.  As  a  'stigma'  can  be  a  difficult  thing  to  classify  statistic- 
ally, the  reader  should  subjectively  monitor  his  response  to  a  somewhat  unlikely 
but  communicative  statement  such  as  the  following :  "Gentlemen,  I  would  like 
to  present  our  next  nominee  for  I'resident  of  the  Elks  Club,  John  Doc,  just  re-, 
leased  from  Metropolitan  State  Psychiatric  Hospital  with  a  clean  bill  of  health." 
And  if  the  individual  is  diagnosed  as  mentally  ill,  the  stigma  is  even  more  far 
reaching. 

In  the  Rosenhan  study,  each  of  the  'sane'  individuals  was  released  with  a  diag- 
nosis of  "schizophrenia  in  remission."  Rosenhan  believes  that  this  indicates,  in 
.the  institution's  eyes,  the  individual  was  not  sane,  nor  had  he  ever  been  sane. 
.For  an  individual  to  carry  a  label  of  "schizophrenia  in  remission",  or  any  psy- 
'chiatric  label,  for  the  rest  of  his  life,  could  be  damaging  and  also  could  effect 
a  court  trial,  if  this  information  were  known  by  the  judge  or  jury. 

Since  the  psychiatrist  or  clinical  psychologist  will  be  examining  the  individual 
to  determine  their  mental  state,  the  current  statistics  of  success  or  failure  in 
his  area  should  be  examined. 

In  a  1972  study  by  Wenk,  Robinson,  and  Smith,^  7000  parolees  were  assigned 
to  categories  of  potential  aggressiveness  based  on  their  case  histories  and  psy- 
chiatric reports.  In  a  one  year  follow  up  study,  it  was  found  that  for  every 
correct  identification  of  a  potentially  aggressive  individual,  there  were  326  in- 
correct ones.  Another  1972  study  by  Kozol,  Boucher  and  Garofalo "  lasted  10 
years  and  involved  almost  six  hundred  previous  offenders.  Each  offender  was 
examined  by  two  psychiatrists,  two  psychologists  and  a  social  worker.  A  com- 
plete case  history  was  compiled  and  a  full  battery  of  p.syehological  tests  were 
administered.  During  a  five  year  follow-up  period,  it  was  found  that  65  percent 
of  individuals  identified  as  dangerous  did  not  commit  a  dangerous  act. 

Steadman  and  Keveles "  followed  121  patients  upon  their  release  from  two 
hospitals  for  the  criminally  insane  in  New  York  State.  These  patients  were  be- 
lieved to  be  some  of  the  most  dangerous  mental  patients  in  the  state  of  New 
York.  Steadman  and  Keveles  followed  the  patients  for  an  average  of  2^2  years 
of  freedom.  In  that  time,  only  one  patient  was  convicted  for  a  violent  act  and 
eight  others  were  convicted  for  non-violent  crimes. 

In  an  article  published  in  January  19T5,®  Steadman  (the  same  as  above)  and 
Concozza,  after  completing  studies  of  their  own  and  analysing  other  studies  were 
led  to  the  conclusion  that : 

"Because  Americans  continue  to  support  statutes  that  permit  and  demand 
preventive  detention,  they  should  become  aware  of  how  such  laws  actually 
operate  and  of  the  consequences  of  the  misleading  assumptions  upon  v.hich  the 
laws  are  based.  They  should  know  that  we  cannot  define  or  predict  dangerousness, 
and  that  there  is  no  correlation  between  it  and  mental  illness." 

Based  on  this  data,  it  is  apparent  that  psychiatric  examinations  and  diagnoses 
are  unreliable  indicators  of  the  individuals  mental  state  and  his  potential  for 
"violence. 

Another  function  designated  to  the  psychiatrist  under  S.  1437,  is  to  treat  the 
Individual  who  is  committed  to  the  psychiatric  hospital.  The  statistics  of  this 
type  of  treatment  should  be  examined  before  it  is  assumed  that  commitment  to  a 
mental  ho.spital  and  psychiatric  care  will  assist  in  the  individual's  competency  to 
stand  trial  or  reduce  his  potential  for  causing  serious  bodily  injury  or  damage. 


*  Newsday,  the  Long  Island  Newspaper.  ;May  7.  1977. 

s  E.  Wenk,  J.  Robinson,  G.  Smith,  "Can  Violence  Be  Predicted,"  Crime  &  Delinquency, 
vol.  IS,  p.  303.  lf>72. 

8  H.  Kozol,  R.  Boucher,  and  R.  Garofalo,  "The  Diagnosis  and  Treatment  of  Dangerous- 
ness," Crime  &  Delinquency,  vol.  ]9.  p.  371.  1972. 

■^  H.  Steadman  and  G.  Keveles.  "The  Community  Adjustment  and  Criminal  Activity  of  the 
Baxtrom  Patients:   1966-1970,"  American  Journal  of  Psychiatry,  vol.   129,  p.   304.   1972. 

8  H.  Steadman  and  J.  Concozza,  "We  Can't  Predict  Who  Is  Danderous."  Psychology 
Today,  1975. 


9458 

The  current  methods  of  treatment  employed  by  psychiatrists  are  chemotherapy 
(druggins).  aversion  therapy,  psychotherapy,  Electro  Shock  Therapy,  and  psycho- 
surgery. Each  of  these  methods  has  inherent  in  it  the  potential  for  seriously 
harming  the  individual.  In  a  January  1977  study  published  in  the  American 
Journal  of  P.sychiatry  by  Dr.  Frederic  Quitkin,^  it  was  found  that  tardive 
dyskinesia,  a  serious  and  sometimes  irreversible  etTect  of  antipsychotic  drug 
use  was  becoming  more  and  more  common  among  chronically  hospitalized  psy- 
chiatric patients.  The  existence  of  the  disease  was  found  to  vary  among  hospitals 
and  ranged  from  2%  to  56%  of  the  patients.  The  disease  consists  of  "repetitive, 
involuntary  movements  of  the  mouth,  lips,  and  tongue  and  is  sometimes  accom- 
panied by  choreiform  movements  of  the  limbs  or  trunk."  In  a  197.5  study  appear- 
ing in  the  American  Journal  of  Psychiatry^"  by  Drs.  Carpenter,  McGlashan,  and 
Strauss,  it  was  foimd  that  the  u.se  of  antipsychotic  drugs  increased  the  chances 
for  a  schizophrenic  patient  to  have  future  relapses :  "In  any  case,  in  an  illness 
with  so  many  paradoxes,  we  raise  the  possibility  that  antipsychotic  medication 
may  make  some  schizophrenic  patients  more  vulneralile  to  future  relapse  than 
would  lie  the  ca.se  in  the  natural  cour.se  of  their  illness." 

Wade  Hudson  a  former  mental  patient  desci*ibes  the  effects  of  the  psychotropic 
drug  prolixin " :  "One  injection  every  week  or  two  and  you  have  a  nation  of 
zombies,  ea.sily  controlled.  *  *  *  My  entire  body  felt  like  it  was  being  twLsted 
up  in  contortions  inside  some  unseen  wringer." 

Aversion  therapy  consists  of  puni.shing  the  patient,  either  physically  or  so- 
cially, for  conduct  considered  wrong.  In  the  Commission  on  California  State 
Government  Organization  and  Economy's  January  1976  report,  the  observers 
were  led  to  the  following  conclusion  about  this  type  of  therapy  : 

"Aversive  conditioning,  however,  seems  to  be  an  inhuman  type  of  practice, 
regardless  of  the  conditions  under  which  it  is  administered.  Hospitals  may 
utilize  a  variety  of  battery-generated  devices  including  cattle  prods  and  electric 
belts.  Even  if  such  therapy  is  considered  as  a  last  resort,  if  consent  is  obtained 
from  a  parent  or  guardian,  and  if  trained  personnel  are  utilized  in  such  treatment, 
we  question  the  legitimacy  of  this  treatment  as  substitutes  for  other  more  humane 
and  personal  treatment  modalities." 

The  effects  of  Electric  Shock  Treatment  (sometimes  called  ECT — Electrocon- 
vulsive Therapy)  are  in  many  cases  permanently  damaging  to  the  individual. 
ECT  causes  l>rain  damage,  memory  loss,  and  the  inability  to  learn  new  informa- 
tion. In  a  study  done  by  I.  ^I.  Allen  in  1959  and  published  in  the  New  Zealand 
INIedical  Journal,^"  he  found  that  damage  was  done  to  brain  tissue  as  a  re.sult 
of  ECT.  He  states  that : 

"The  various  physical  .signs  and  disturbances  of  function  following  electric 
shock  treatment  reiK)rted  in  the  literature  and  found  in  the  cases  on  whicli  this 
paper  is  based,  left  no  doubt  tliat  definite  neurological  variations,  which  could 
be  found  on  detailed  examination  and  many  of  which  were  irreversible,  were 
left  after  electric  shock  treatment." 

Dr.  Allen  also  stated  : 

"The  observations  recorded  in  this  paper  left  no  doubt  aliout  the  conclusions 
to  lie  drawn  from  them  and  call  for  little  comment.  Their  clinical  implications 
demand,  however,  the  most  careful  consideration. 

"They  confirmed  the  ai)pearance  of  irreversible  physical  changes  in  the  brain 
after  and  as  a  result  of  electric  shock  treatment.  Tliey  gave  no  iTidication  of 
the  fretiuency  with  which  these  changes  occurred:  but  suggested  that  physical 
changes,  some  of  which  miglit  be  irreversible  with  increase  in  the  innnber  and 
frequency  of  treatments,  but  showed  at  the  same  time  that  they  could  appear  and 
lie  irrev(>rsil)le  .'ifter  very  few  treatments." 

Dr.  Karl  Priliam.  head  of  Stanford  I"fniversity's  Neuropsychology  Institute 
was  quoted  in  the  Sept/Oct  1974  issue  of  the  American  Psychiatric  Associati(m 
^Monitor  as  saying:  "I'd  rather  have  a  small  lobotomy  than  a  S'^ries  of  electro- 
convulsive shock  .  .  .  T  .iust  know  what  the  ])rain  looks  like  after  a  series  of 
shock — and  it's  not  very  pleasant  to  look  at."  " 


•Prodorlr  Qnltkln.  M.D..  et  fil..  "Taidivo  Dvskinpsla  :  Arc  First  Siciis  Reversible?". 
Aniorifnn  .Tonrii.'il  of  Psvohintrv.  vol.  1.^4.  .Tnnnnrv  1077. 

'"Williiini  T.  Carix-ntpr.  et  al..  "Tlie  Treatment  of  Acute  Seliizoiilireni.i  "Without  Drnci=  : 
An  Inve^tljrnffnn  of  Some  Current  Assumptions."  .\nierican  Journal  of  r'sycliiatry.  vol. 
I.'i4.  n.   14.  1077. 

"  Los  An"eies  Times.  Anp.  13.  197.').  Pnrt  1.  p.  20. 

"T.  M.  Allen,  "rerehr.-il  I^esions  From  Electric  Shock  Treatment."  New  Zealand  IMedlcal 
.loiirml.  vol.  .-.s.  p.  :m<\.  10.">0. 

'•'Karl   Prihnm.   American   Psvcliiatrlc  Association  Monitor,   September-October  1074. 


9459 

A  study  published  in  the  New  Enghmd  Journal  of  Medicine  in  1946  by  Norman 
.-and  Shea,"  as  well  as  documenting  prolonged  memory  impairment  as  a  result 
of  ECT,  stated  that  some  cases  where  .lO  treatments  were  given  showed  symi)tom.s 
indicating  organic  brain  damage. 

A  more  recent  study  on  patients  receiving  50  or  more  shock  treatments  was 
published  in  the  Journal  of  Clinical  I'sychology  in  1972  by  Goldman,  Gomer, 
and  Templer.^"  This  study  led  them  to  the  following  conclusion  : 

"The  significantly  greater  error  scores  obtained  by  the  ECT  Ss  (subjects)  on 
both  the  Bender-Gestalt  and  the  Benton  (tests)  after  a  relatively  long  time 
period  since  the  last  course  of  treatment  suggest  that  ECT  causes  irreversible 
brain  damage." 

It  is  a  well  known  fact  among  tho.se  who  have  studied  it,  that  memory  loss 
occurs  as  a  result  of  electric  shock  treatment.  In  a  I!)!;")  study  done  by  Squire 
and  Chace  and  published  in  the  Archives  of  General  Psychiatry,"  it  was  found 
that : 

'"The  percentage  of  subjects  with  memory  complaints  was  63  percent  after 
bilateral  ECT,  30  percent  after  unilateral  ECT,  and  17  percent  after  hospitaliza- 
tion without  ECT.  Subjects  with  complaints  related  only  to  the  period  of  ho.s- 
pitalizatiou  were  not  scored  as  having  perceived  memory  impairment." 

Exactly  why  the  authors  decided  to  ignore  memory  complaints  related  to  the 
period  of  hospitalization  is  not  known,  although  to  consider  this  time  period 
would  certainly  increase  the  percentages  of  those  complaining  of  memory  loss. 
The  memory  complaints  were  made  from  6  to  9  months  after  receiving  electric 
shock. 

Instances  of  learning  impairment  as  a  result  of  ECT  are  i)articularly  plentiful. 
In  a  bibliography  of  500  studies  on  ECT  done  between  1939  and  1963  and  pub- 
lished by  the  Department  of  Health,  Education,  and  Welfare,^"  all  of  the  studies 
regrading  learning  showed  an  impairment  in  the  ability  to  learn. 

Some  of  the  effects  of  ECT  cannot  be  accurately  described  by  statistics.  In  the 
book  SJiock  Treatment  Is  Not  Good  For  Your  Brain,  written  by  John  Friedberg 
and  published  in  1976,  the  author  interviews  people  who  have  undergone  electric 
shock  treatment.  Some  excerpts  of  these  interviews  appear  below  : 

"A.  The  last  thing  I  remember  is  graduating  high  school  in  June  of  1964.  I 
was  seventeen,  and  the  next  thing  I  remember  is  being  in  the  hospital  (at  nine- 
teen). I  mean  I  have  no  memory  of  anything,  it's  just  what  I've  been  told.  And 
some  of  the  things  I  can  reconstruct — I  went  back  to  the  same  college.  I  don't 
have  any  idea — I  mean  I've  read  on  my  transcript  what  classes  I  took." 

"Dorothy  Molinare'' 

"Q.  Just  a  little  more  about  the  effects  of  shock  treatment.  Were  any  of  your 
skills  affected,  like  reading? 

A.  It  slowed  my  reading  way  down.  Those  things  are  horrible,  man. 

Q.  Do  you  ever  have  dreams  about  the  shock  treatments'? 

A.  Yes.  In  fact,  I  can  close  my  eyes,  and  think  about  it,  and  I  can  relive  it  up 
to  the  point  of  the  electricity  and  I  have  to  open  my  eyes.  Well,  that's  the  horror 
in  my  life." 

William  Freeman 

"Q.  Try  to  (describe  the  shock)  in  words  if  you  can. 

A.  It's  like  an  atomic  bomb  that  runs  horizontally  through  your  brain." 

"Q.  And  when  you  woke  up  what  did  it  feel  like? 

A.  That  pain  right  through  your  head.  And  all  you  know,  all  you're  aware  of 
is  that  pain.  That's  all  you're  aware  of  is  this  jolting  pain  going  through  your 
mind.  You  know.  And  you  can't  remember  anything.  You  don't  know  why  you're 
alive,  how  you  got  there,  your  mother's  name —  all  you  know  is  the  pain,  tliat  all 
you  are  is  this  brain  with  a  pain  going  through  it.  And  if  you're  depressed  then 
that's  the  reason." 
"Alan  Rogers" 

"Jacob  Norm.in  and  John  T.  Shea,  "Three  Years  Experience  With  Electric  Convulsive 
Therapy,"  New  I'^njrlanil  Journal  of  Medicine,  vol.  234.  p.  8.57,  1046. 

15  H.  Goldman,  F.  Gomer,  and  D.  Templer,  "Long  Term  Effects  of  Electroconvulsive 
Therapy  Upon  Memory  and  Perceptual  Motor  Performance,"  Journal  of  Clinical  Psvcholosrv, 
vol.  28,  p.  .'52,  1972.  .V  ^j., 

18  Larry  Squire,  Ph.  D.,  Paul  M.  Chase,  "Memory  Functions  Six  to  Nine  Months  After 
Pllectroconvulsive  Therapy,"  Archives  of  General  Psychiatry,  vol.  32,  p.  1557,  December 
197;). 

"  "Studies  on  Electroconvulsive  Therapy  1939-1963.  A  Selected  Annotated  Bibliography  " 
U.S.  Dept.  of  H.E.W.  Public  Health  Service,  No.  1447,  Series  No.  64.  »     i-   j. 


9460 

There  is  evidence  that  shock  is  used  as  a  form  of  punishment  by  psychiatrists,, 
as  presented  in  a  paper  by  Robert  R.  Dies  in  1968.'®  Dies  concludes  that  the- 
patient  is  being  punished  for  his  supposed  "ilhiess."  "The  patient  is  punished 
for  his  pathology  and  the  psychological  rug  is  virtually  pulled  out  from  under 
him.  Upon  release  from  the  hospital  the  jjatient  usually  encounters  the  same 
environment  in  which  his  pathology  developed.  Without  alternative  solutions 
it  is  to  be  expected  that  many  patients  will  again  develop  the  same  symptomatic 
methods  of  responding."  Also,  it  was  found  in  a  study  published  in  the  Archives 
of  Neurology  and  Psychiatry,  in  1959  by  Rabiner  and  Gralnick.'"  that  the  most 
accurate  predictor  of  whether  shock  would  be  prescribed  for  the  patient,  was  a 
lack  of  rapport  between  the  doctor  and  the  patient.  The  patient's  diagnosis  and 
symptomatology  played  no  part  in  the  choice  of  shock  by  the  psychiatrist.  Cur- 
rently, money  appears  to  be  the  greatest  motivation  for  giving  shock.  In  a  1975 
letter  to  Representative  John  Yasconcellos  of  California,  from  Drs.  Thomas 
Rusk  and  Randold  Read,  they  stated  that : 

"The  abuses  of  ECT,  as  they  exist  now,  seem  to  fall  into  two  major  categories; 
first  is  the  financial  abu.se.  ECT  in  California  is  extremely  lucrative  and  this- 
encourages  its  overuse.  In  Canada,  and  especially  in  Quebec  where  the  amount 
of  money  paid  the  p.sychiatrist  for  giving  ECT  has  dropped  to  somewhere  be- 
tween §5  and  .$10  a  treatment  as  opposed  to  the  $40  to  .$50  here,  the  use  of  ECT 
has  dropped  precipitously.  It  is  no  secret  that  psychiatrists  who  heavily  use 
ECT  and  medications  for  that  matter,  treatments  that  can  be  exploited  for 
maximum  earning  per  hour,  frequently  have  incomes  in  excess  of  $100,000  to- 
$200,000  per  year.  On  the  other  hand,  psychiatrists  who  restrict  their  practices 
to  mild  to  moderate  use  of  medication,  rarely  have  incomes  in  excess  of 
,$60,000  *  *  *  The  other  abuse  of  ECT,  less  frequent  but  still  present,  is  its 
use  as  punishment  for  patients  in  hospitals.  Although  not  as  common  as  it  was 
previously,  ECT  is  often  used  as  a  threat  to  induce  patients  to  change  their 
behavior.  If  this  were  occurring  in  prisons,  public  outcry  would  definitelj'  arise; 
and  yet,  the  subtle  means  of  control  such  as  telling  an  unruly  patient  "you're 
very  depressed  today  and  will  need  some  more  shock  treatment"  nuist  raise 
questions  of  cruel  and  unusual  punishment." 

Psychosurgery  is  a  process  whereby  healthy  brain  tissue  is  destroyed  in 
order  to  alter  behavior.  In  a  publication  by  the  National  Institute  of  Mental 
Health  in  1973  ^°  psychosurgery  was  defined  thusly  : 

"Psychosurgery  can  be  defined  as  surgical  removal  or  destruction  of  brain 
tissue  or  the  cutting  of  brain  tissue  to  disconnect  one  part  of  the  brain  from 
another  with  the  intent  of  altering  behavior." 

The  adverse  effects  of  this  type  of  treatment  include  grand  mal  seizures,  de- 
pendence on  drugs,  loss  of  emotion  and  drive,  postoperative  seizures,  and  a 
cognitive  deficit  (reduced  ability  to  think).  This  information  comes  from  the 
findings  of  the  National  Commission  for  the  Protection  of  Human  Subjects  of 
P>iomedical  and  Behavioral  Research  as  summarized  in  a  1977  paper  by  Gerald  S. 
Coles  and  published  in  "State  and  Mind."  ^ 

There  is  sufficient  evidence  to  conclude  that  psychiatric  treatment  is  damaging 
to  the  individual.  His  condition  is  complictaed  by  the  harmful  side-effects  of  psy- 
chiatric drugs,  he  is  humiliated  through  aversion  thera]iy.  his  ability  to  remem- 
ber, tliink,  and  learn  new  things  is  reduced  through  ECT  nnd  psychosurgery. 
One  of  the  purposes  of  commitment  is  to  increase  the  individual's  competency  to 
stand  trial.  It  can  be  seen  that  his  competency  to  stand  trial,  as  well  ns  do  other 
things,  is  decreased  and  not  increased  through  psychiatric  treatment.  The  other 
reason  for  commitment  under  S.  ]4.']7  is  to  rediice  the  criminal  teudenci(>s  of  the 
individual  so  that  he  can  be  returned  to  society  and  rot  pose  a  threat.  The  effec- 
tiveness of  psychiatric  treatment  on  criminal  behavior  is  discussed  in  the  next 
section. 

The  psychiatrists's  ability  to  treat  criminal  behavior  has  not  been  confirmed  in 
anv  conclusive  studies.  A  result  of  this  is  the  rising  crime  rate  in  th(>  I'nited 


i*<  Uo^>('r^  U.  Dio?^.  "'Rloftroron\-nlsivf>  Thorntiv  :  A  Sotial  Learning  Interpretation."  The 
.Toiirnal  nf  N(>rvo\is  and  ^rental  Disease,  vol.  140,  lOCiS. 

"'!'>' win  ly.  I{;;b1ner  and  Alexander  Gralnielc.  "Transferenee — conntertrnnsference  I)1ip- 
nomena  In  clioiee  of  shoelc,"  AMA  Archives  of  Neurology  and  Psychiatry,  vol.  SI,  p.  HIT, 
19.'T>. 

-^  Brown.  WIenekowsld.  Bivens.  "Psyphosurpery :  Perspective  on  a  Current  Issue," 
National  Institute  of  Mental  Health,  in"."^. 

-1  Gerald  S.  Coles,  "Psychosnrsery — Too  Much  Thinking  Can  Cause  Emotional  Distress," 
State  nnd  Mind.  vol.  5,  p.  12,  1977. 


9461 

states.  From  1955  to  1975,  the  incidence  of  violent  crime  increased  by  nearly 
600  percent  in  tlie  United  States  according  to  the  FBI  Uniform  Crime  Keports." 
The  overall  crime  index  (taking  into  account  tlie  increase  in  population)  also  rose 
during  these  same  years  by  more  than  3S0  percent.  Perhaps  the  most  frightening 
statistic  in  the  crime  rate  is  that  for  offenses  committed  by  those  under  18  years 
of  age ;  f i-om  the  years  1955  to  1975,  the  crime  rate  for  this  age  group  increased 
more  than  2,000  percent  according  to  the  FBI  and  as  tabulated  in  two  Bureau 
of  the  Census  publications."^'  "*  As  the  crime  rate  has  increased  in  recent  years, 
so  has  the  amount  of  money  spent  on  prisoners  in  Federal  institutions,  which 
includes  treatment  of  these  individuals.  From  1969  to  1977,  the  amount  of  money 
spent  on  the  custody,  care  and  treatment  of  prisoners  in  Federal  institutions  has 
increased  by  more  than  250  percent  according  to  the  U.S.  Government  publica- 
tion, Budget  of  the  United  States  Government,  1976.^ 

There  is  evidence  in  existence  that  indicates  psychiatric  treatment  may  cause 
criminal  behavior.  The  following  three  incidents  were  reported  in  the  Los  Angeles 
Free  Press  in  the  June  24-30,  1977,  issue :  Last  April  in  a  Chicago  suburb, 
Thomas  Yenda  brutally  stabbed  a  young  woman  after  being  released  by  the 
Illinois  Department  of  Mental  Health.  Gregory  Canatis  of  Midwest  City,  Okla., 
ate  part  of  his  fathers'  body  after  stabbing  him  and  hitting  him  in  the  head  with 
a  brick.  He  had  been  released  from  the  psychiatric  ward  of  an  Oklahoma  Hos- 
pital in  February  of  1976.  Just  hours  after  seeing  a  psychiatrist,  Freddie  Prinze, 
the  talented  young  comedian,  shot  and  killed  himself.  These  are  of  course  indi- 
vidual cases,  although  incidents  such  as  these  are  not  luacommcn.  The  Citizens 
Commission  on  Human  Rights  ireviewed  over  500  accounts  lof  violent  crimes 
committed  over  the  past  5  years  in  the  United  States.  It  was  found  that  more 
than  half  of  the  crimes  were  committed  by  individuals  who  had  been  previously 
released  from  psychiatric  institutions  as  certifiably  sane.  Upon  release,  these 
individuals  committed  over  250  murders,  rapes,  and  assaults.^* 

There  have  been  studies  done  which  show  that  the  incidence  of  violent  crimes 
increases  after  release  from  a  mental  hospital.  In  a  study  by  Rappeport  and 
Lassen,  published  in  the  American  Journal  of  Psychiatry  in  1966,^''  there  is 
evidence  that  female  patients  (the  only  patients  studied)  were  more  violent 
after  their  release  than  before  entering  the  mental  hospital : 

"The  clear  indication  that  our  women  are  more  assaultive  than  the  general 
population,  particularly  after  hospitalization,  causes  us  much  concern  and  may 
in  some  way  be  related  to  factors  connected  with  persons  who  are  identified  as 
mentally  ill." 

In  a  study  completed  in  1975  and  published  in  the  American  Journal  of  Psychi- 
atry in  February  1976,-®  the  authors  studied  the  arrest  rates  for  867  patients  who 
were  discharged  from  the  psychiatric  division  of  Bellevue  Hospital.  The  author's 
found  the  following  to  be  true  : 

"Arrests  for  violent  offenses  involving  lodily  liarm  (emphasis  added)  occurred 
iy2  times  more  frequently  during  the  2-year  period  after  admission,  but  arrests 
for  violent  offenses  with  potential  for  harm  and  arrests  for  non-violent  offenses 
occurred  at  about  the  same  frequency  before  and  after  admission." 

Under  sections  3613(d)  and  3616(d)  of  S.  1437,  "Determination  and  Disposi- 
tion," if  the  person  is  found  to  be  suffering  from  a  disease  which  may  result 
in  hodilij  harm  (emphasis  added)  or  property  damage,  he  is  to  be  placed  in  a 
mental  hospital.  From  the  evidence  given  above,  this  would  appear  to  be  counter- 
therapeutic.  The  exact  wording  of  the  "Determination  and  Disposition"  sections 
is  given  below  so  that  the  similarity  of  these  situations  can  be  observed : 

"If,  after  the  hearing,  the  court  finds  by  clear  and  convincing  evidence  that  the 
acquitted  person  is  presently  suffering  from  a  mental  disease  or  defect  as  a  result 


23  FBI  Uniform  Crime  Reports,  1955-76. 

23  "Historical  Statistics  of  the  United  States,"  U.S.  Dept.  of  Commerce,  Bureau  of  the 
Census. 

2*  "Statistical  Abstract  of  the  United  States,  1976,"  U.S.  Dept.  of  Commerce,  Bureau 
of  the  Census. 

25  "Budget  of  the  U.S.  Government,  vols.  1969-76. 

-'« Copies  of  this  study  are  available  upon  request  from  the  Citizens  Commission  on 
Human   Rights. 

2T  Jonas  R.  Rappeport  and  George  Lassen,  "The  Dangerousness  of  Female  Patients:  A 
Comparison  of  the  Arrest  Rate  of  Discharged  Psychiatric  Patients  and  the  General 
Ponulation,"  American  Journal  of  Psychiatry,  vol.  12.3.  p.  41.3,  1966. 

28  Arthur  Zitrin,  Anne  Hardesty,  Eugene  Burdoclc,  and  Ann  Drossman,  "Crime  and 
Violence  Among  Mental  Patients,"  American  Journal  of  Psychiatry,  vol.  13.3,  p.  142,  1976. 


9462 

of  whifh  his  release  would  create  a  substantial  risk  of  serious  hodily  injury 
(emphasis  added)  to  another  person  or  serious  damage  to  property  of  another, 
the  court  shall  commit  the  person  to  the  custody  of  the  Attorney  General.  The 
Attorney  General  shall  release  the  person  to  the  appropriate  official  of  the  state 
in  whicii  the  pei-son  is  domiciled  if  such  state  will  assume  responsibility  for  his 
custody,  care,  and  treatment.  If  such  state  will  not  then  assume  such  responsi- 
l)ility.  the  Attorney  General  shall  hospitalize  the  per.son  for  treatment  in  a  suit- 
able mental  hospital,  or  in  another  facility  designated  by  the  court  as  suitable, 
until  such  state  will  assume  such  responsibility  or  until  the  person's  mental 
condition  is  so  improved  that  his  release  would  not  create  a  substantial  risk  of 
serious  IxxlUij  injury  (emphasis  added)  to  another  person  or  serious  damage  to 
property  of  another." 

From  the  above  discussion,  the  statistics  point  to  the  fact  that  the  person's 
mental  condition  upon  release  from  a  mental  hospital  would  create  an  even 
greater  risk  of  serious  bodily  injury  to  another  person  or  serious  damage  to 
property  of  another  than  if  he  were  never  admitted  to  the  hospital. 

There  is  also  evidence  that  the  overall  incidence  of  crime  (taking  into  con- 
sideration all  crimes  and  not  just  violent  crimes)  is  not  reduced  by  reasou  of 
institutionalization  in  a  mental  hospital.  In  the  study  by  Steadman  and  Keveles 
menrinned  earlier.-"  of  1,000  patients  released  from  two  New  York  State  Ho.spitals 
for  the  criminally  insane,  for  the  time  period  1006-70,  it  was  revealed  tha.t 
"There  was  no  relationship  between  the  number  of  arrests  and  the  number  of 
incarcerations  before  the  Baxtrom  institutionalization  and  the  number  of  arrests 
or  number  of  convictions  after  the  patients'  release." 

One  study  by  Guze,  Woodruff,  and  Clayton,™  indicated  that  criminal  activity 
among  mental  patients  is  closely  related  to  sociopathy  (antisocial  personality), 
alcoholism,  and  drug  dependence.  A  1967  study  by  Giovannoni  an  Gruel  ^^  con- 
firmed the  high  incidence  of  alcoholism  among  mental  patients  who  committed 
crimes.  In  their  report  entitled  "Socially  Disruptive  Behavior  of  Ex-Mental 
Patients,"  they  stated  that  65.8  percent  of  the  156  patients  involved  in  at  least 
one  f  ffense,  also  had  a  problem  with  alcohol.  The  1974  study  by  Guze,  Woodruff, 
and  Clayton  concluded  that : 

"The  results  are  consistent  with  those  previously  obtained  from  studies  of 
convicted  felons.  Sociopathy,  alcoholism,  and  drug-dependence  are  the  principal 
psychiatric  disoi-ders  associated  with  serious  crime.'' 

Furthermore : 

"The  implications  of  these  results  are  important.  To  the  degree  that  psychi- 
atrists may  be  involved  in  the  prevention  or  treatment  of  criminality,  they  must 
deal  chielly  with  sociopathy,  alcoholism,  and  drug-dependence.  These  di.sorders 
are  generally  resistant  to  curi-ently  available  treatment.  At  the  same  time, 
because  populations  at  high  risk  for  these  conditions  may  be  easily  identified, 
hope  for  prevention  nuist  depend  on  further  research  with  children  and  adoles- 
cents so  recognized.  Until  more  is  known  about  prevention  of  these  conditions, 
or  until  more  effective  treatments  are  developed,  psychiatrists  should  be  modest 
in  their  claims." 

From  the  evidence  presented  in  this  section,  it  can  be  stated  that  psychiatric 
diagnosis  and  treatment  are  in-accurato  and  ineffective  at  best.  In  many  cases 
the  diagnosis  and  treatment  are  damaging  to  the  individual  and  to  society, 
especially  in  the  case  of  treatment  of  mentally  ill  offenders. 

PART   III  :    VIOLATION    OF    HUMAN   EIGHTS    CODES 

As  S.  1437  involves  the  forced  institutionalization  of  individuals  and  other 
restrictions  of  persons  not  yot  convicted  of  any  offense,  its  correlation  with 
various  codes  of  human   rights  should   be  closely  examined. 

The  Universal  Declaration  of  Human  Rights  was  adopted  by  the  United 
Nations  in  194S  and  is  their  code  of  human  rights  today.  Specific  points  of  this 
declaration  are  violated  by  S.  1437  as  follows  : 

Article  9  of  the  Universal  Declaration  of  Human  Rights  reads  : 


2"  Soo  footnote  7,  p.  9457. 

^  Samiiol  H.  Ouzo,  Rohprt  A.  Woodruff,  Jr.,  Paula  J.  Cl.iyton,  "Psychiatric  Disorders  and 
Crlnitn.ility."  .TAMA.  vol.  '111.  ]n74. 

■■"  .Tcanne  M.  Giovannoni,  Lee  Gruel,  "Socially  Disruptive  Behavior  of  E.K-Mental  Patients," 
1967. 


9463 

"No  one  shall  be  subjected  to  arbitrary  arrest,  detention  or  exile."  The  last 
paragraph  of  section  3617  of  S.  1437  reads  as  follows : 

"For  rlie  purpose  of  an  examination  pursuant  to  an  order  under  section  3611, 
3612,  3613,  or  3614,  the  court  may  commit  the  person  to  l)e  examined  for  a  reason- 
able period,  but  not  more  than  sixty  days,  to  the  custody  of  the  Attorney  General 
for  placement  in  a  suitable  mental  hospital  or  another  facility  designed  by  the 
court  as  suitable." 

The  "order"  referred  to  above  is  based  on  "if  there  is  reasonable  cause  to  be- 
lieve that  the  defendant  nuiy  presently  be  suffering  from  a  luental  disease  or 
defect."  The  detection  of  "mental  disease  or  defect"  rendering  the  individual 
''mentally  incompetent  to  the  extent  that  he  is  unable  to  understand  the  nature 
and  conseijuences  of  the  proceedings  against  him  or  to  assist  in  his  defense,"  or 
"for  the  treatment  of  which  he  is  in  need  of  custody  for  care  or  treatment  in  a 
mental  hospital." 

It  has  been  previously  shown  in  this  report  that  the  detection  of  "mental 
disease"  and  the  "need  of  custody  for  care  or  treatment  in  a  mental  hospital" 
are  uncertain  parameters.  Also,  the  statement  "mentally  incompetent  to  the  ex- 
tent that  he  is  unable  ...  to  assi.st  in  his  defense,"  Is  sufficiently  arbitrary  so 
as  to  violate  Article  9  of  this  Declaration. 

In  addition,  under  section  3617  (c)  of  S.  1437,  "PSYCHIATRIC  REPORTS," 
it  is  stated  "A  psychiatric  report  ordered  pursuant  to  this  subchapter  shall  be 
prepared  by  the  examiner  designated  to  conduct  the  psychiatric  examination, 
shall  be  filed  with  the  court  with  copies  provided  to  the  counsel  for  the  person 
examined  and  to  the  attorney  for  the  government."  The  report  is  to  contain, 
"(4)  the  examiners"  opinions  as  to  diagnosis,  prognosis,  and  .  .  . 

(C)  if  the  examinatifm  is  ordered  under  section  3613  or  3616,  whether  the 
person  is  presently  suffering  from  a  mental  disease  or  defect  as  a  result  of  which 
his  release  would  create  a  substantial  risk  of  serious  bodily  injury  to  another 
person  or  serious  damage  to  proiierty  of  another  ;  or 

(D)  if  the  examination  is  ordered  luider  section  3614  or  3615,  whether  the 
person  is  presently  suffering  from  a  mental  disease  or  defect  as  a  result  of 
which  he  is  in  need  of  custody  for  care  or  treatment  in  a  mental  hospital." 

The  information  required  of  the  psychiatrist  in  this  report,  has  been  shown 
to  be  of  such  a  nature  that  he  is  unqualified  to  provide  it  accurately.  It  is  there- 
fore arbitrary  and,  if  accepted  as  authoritative  or  expert  information  in  the 
hearing,  would  lead  to  an  arbitrary  detention  or  exile  of  the  individual,  for  an 
indeterminate  period  of  time.  Likewise,  section  3613,  part  (d)  : 

"If,  after  the  hearing,  the  court  finds  by  clear  and  convincing  evidence  that  the 
acquitted  person  is  presently  suffering  from  a  mental  disease  or  defect  as  a 
result  of  which  his  release  would  create  a  substantial  risk  of  serious  bodily 
injury  to  another  person  or  serious  damage  to  property  of  another,  the  court 
shall  commit  the  person  to  the  custody  of  the  Attorney  General  .  .  .  the  Attorney 
General  shall  Iiospitalize  the  person  for  treatment  in  a  suitable  mental  hospital, 
or  in  another  facility  designated  by  the  court  as  suitable,  until  such  state  will 
assume  such  responsil>ility  or  until  the  person's  mental  condition  is  so  improved 
that  his  release  would  not  create  a  substantial  risk  of  serious  bodily  injury  to 
anotlier  person  or  serious  damage  to  property  of  another." 

Article  10  of  the  Universal  Declaration  of  Human  Rights  reads: 

"Everyone  is  entitled  in  full  equality  to  a  fair  and  public  hearing  by  an  inde- 
pendent and  impartial  tribunal,  in  tlie  determination  of  his  rights  and  obligations 
and  of  any  criminal  charge  against  him." 

lender  section  3611  part  (a)  of  S.  1437,  the  defendant  may  not  be  given  a 
"fair  and  public  hearing"  "in  the  determination  ...  of  any  criminal  charge 
against  him."  The  statement  which  denies  the  defendant  this  right  reads  as 
follows : 

"At  any  time  after  the  commencement  of  a  prosecution  for  an  otfense  and 
prior  to  "the  sentencing  of  the  defendant,  the  defendant  or  the  attorney  for 
the  government  may  file  a  motion  for  a  hearing  to  determine  the  mental  com- 
petency of  the  defendant." 

This  may  deny  the  defendant  the  right  to  face  criminal  charges  against  him 
and  instead,  his  sanity  or  potential  for  causing  harm  would  be  on  trial. 

Article  11  of  the  Universal  Declaration  of  Human  Rights  reads: 

"(1)  Everyone  charged  with  a  penal  offense  has  the  right  to  be  presumed 
iimoc-ent  until  proved  guilty  according  to  law  in  a  public  trial  at  which  he  has 
had  all   the  guarantees  necessary  for  his  defence." 

92-465 — 77 57 


9464 

PART   IV  :    CHAPTER   36,    SUBCHAPTER  B   OF   S.    1437    WITH  RESPECT  TO  IXTEBXATIOXAI. 

HUMAN    RIGHTS 

Now,  more  than  ever,  the  United  States  needs  to  agree  upon  a  firm  stand  ou 
human  rights.  President  Carter's  recent  statements  regarding  human  rights  in  the 
Soviet  Union  and  elsewhere  were  only  ineffective  to  the  degree  that  no  firm  policy 
regarding  human  rights  had  been  established  or  followed  in  the  United  States. 
Human  rights  and  laws  ensuring  them  must  be  developed  and  adhered  to  in  the 
United  States  l)efore  we  can  criticize  other  countries. 

It  is  now  a  well  known  fact  that  dissidents  and  others  in  the  Soviet  Union  are 
declared  insane  and  committed  to  mental  institutions  for  indeterminate  sentences, 
as  reported  in  the  February  21,  lO'TT  issue  of  Time  ^-  and  the  June  1977  issue  of 
PsychoJogy  Today."^  This  is  more  convenient  than  a  lengthy  court  trial.  esi>ecially 
when  the  individual  has  committed  no  crime.  It  is  also  noteworthy  that  the  length 
of  hospitalization  for  mental  patients  is  indeterminate  in  that  country,  whereas 
if  the  defendant  were  put  on  trial,  his  prison  sentence,  if  he  were  found  guilty, 
would  probably  be  less  than  the  time  spent  in  the  mental  institution.  This  type 
of  violation  of  human  rights  must  be  guarded  against  in  the  United   States. 

In  the  Soviet  Union,  many  psychiatrists  have  prostituted  themselves  by  declar- 
ing many  .sane  individuals  insane.  One  of  tlie  methods  used  in  Russia  to  find  people 
insane  is  described  in  an  interview  with  Soviet  di.ssident  Valdimir  Bukovsky.  and 
p\iblished  in  June  1977  in  Psychology  TotJay.^  In  an  exchange  with  E.  Fuller 
Torrey.  a  Washington  psychiatrist.  Bukovsky  described  the  method  as  follows: 

"Bukovsky :  Most  of  the  political  prisoners  are  diagnosed  as  schizophrenics. 
Anything  they  do,  any  protest  they  make,  even  a  hunger  strike  is  .said  to  be  proof 
of  tlie  diagnosis.  Torrey :  G.  V.  Morozov,  the  head  of  the  Serbsky  Institute,  has 
even  written  that  argumentativeness  is  an  important  symptom  of  schizophrenia. 

Bukovsky  :  Then  I  guess  it's  a  pretty  common  disease  even  in  the  United  States 
If  that  is  its  definition." 

Bukovsky  has  spent  12  years  in  prisons,  labor  camps,  and  internal  exile.  He  was 
diagnosed  as  schizophrenic  by  Soviet  psychiatrists  although  upon  his  release  in 
December  of  1976,  he  was  diagnosed  by  a  group  of  Briti.sh  psychiatrists  and  found 
to  be  completely  sane.  Bukovsky  estimates  that  there  are  at  least  2,000  political 
prisoners  in  Russian  mental  institutions  today. 

The  problem  of  political  exile  to  mental  institutions  is  not  unique  to  the  Soviet 
Union.  In  the  United  States,  Ezra  Pound  was  declared  to  be  insane  and  unfit  to 
stand  trial.  He  was  subsequently  incarcerated  in  Saint  Elizabeth's  Hospital, 
in  Washington,  D.C.,  for  13  years.  Another  case  is  that  of  General  Edwin  Walker 
who  resisted  integration  at  the  University  of  Mis.sissippi  in  19(52.  He  was  hospit- 
alized against  his  will  to  determine  his  sanity  and  was  thereby  discredited. 
Leonard  Frank  was  committed  to  a  California  mental  hospital  because,  "he 
couldn't  or  wouldn't  work  and  spent  mo.st  of  his  time  reading  or  doing  nothing. 
(He)  grew  a  l)eard.  ate  only  A-egetarian  food  and  lived  the  life  of  beatnik."  This 
was  according  to  the  Certificate  of  Medical  Examiners.  His  case  is  documented  in 
the  book,  Shock  Treatment  Is  Not  Good  For  Your  liroin  by  John  Friedberg. 
Frank  is  Jewish,  and  as  a  result  of  his  "religious  preoccupations"  he  was  given 
no  insulin-induced  comas  and  35  electroshock  treatments.  The  confusions  that 
these  .shock  treatments  caused  were  described  as  desirable  by  Dr.  Roltert  E. 
James,  who  wrote  Frank's  father,  "it  helps  him  get  away  from  the  concerns  about 
his  beard,  diet  and  religious  preoccupations." 

If  tlie  individual,  under  S.  1437,  section  3011,  is  "charged  with  a  penal 
offense,''  he  may  not  be  given  a  "public  trial  at  which  he  has  had  all  the 
guarantees  necessary  for  liis  defense."  In  fact,  he  may  not  be  allowed  any  defense 
to  the  charges  at  all  and  simply  found  to  be  mentally  incompetent  to  stand  trial 
and  eonunitted  to  a  mental  institution. 

Arti<'l(>  IfS  of  the  Univer.sal  Declaration  of  Human  Rights  reads: 

"Everyone  has  the  right  to  freedom  of  thought,  conscience  and  religion  :  this 
right  includes  freedom  to  clninge  his  religion  or  b(>lief,  and  freedom,  either  alone 
or  in  conimnuity  with  others  and  in  public  or  private,  to  manifest  his  religion 
or  belief  in  teaching.  i)ractice.  worshii)  and  observance." 

Under  S.  1-137.  Chapter  36.  Subchapter  B.  the  individual's  fredom  of  thought, 
conscience,  or  religion  may  be  denied.  For  instance,  if  the  individual  decides  to 


't' "Tho  Dissidents  V.   Moscow,"  Time,  p.  20.   Fob.   21.   10T7. 
»'  "Tlip  Scrhskv  Treatment,"  Psychology  To(l;iy.  .Tiino  1977.  p.  38. 
»  See  footnote  33. 


9465 

proceed  with  his  defense  in  a  specific  way  (which  may  he  contrary  to  his 
counsel's  advice),  this  may  be  interpereted  as  an  inability  to  assist  in  his  de- 
fense. It  is  stated  in  section  3611  of  S.  1437,  that  the  court  shall  grant  a  motion 
to  conduct  a  hearing  if : 

"There  is  reasonable  cause  to  believe  that  the  defendant  may  presently  be 
BUft'ering  from  a  mental  disease  or  defect  rendering  him  mentally  incompetent  to 
the  exrent  that  he  is  unable  to  *  *  *  assist  in  his  defense." 

If  the  hearing  confirms  this  resistance  to  "assist  in  his  defense,''  the  individual 
may  be  determined  mentally  incompetent  to  stand  trial  and  could  spend  up  to 
1  ye;ir  in  a  menial  hospital  during  which  time  his  thoughts  and  conscience  may 
be  altered  against  his  will  through  the  use  of  psychotropic  drugs,  electric  shock 
treatment,  behavior  modification,  or  psychosurgery,  as  described  in  Part  II  of 
this  report.  Article  22  of  the  Universal  Declaration  of  Human  Rights  reads : 

•'Everyone,  as  a  member  of  society,  has  the  right  to  social  security  and  is 
entitled  to  realization,  through  national  effort  and  international  co-operation 
and  in  accordance  with  tlie  organization  and  resources  of  each  State,  of  the 
economic,  social  and  cultural  rights  indispensable  for  his  dignity  and  the  free 
development  of  Jiis  personality." 

Cliaptcr  36,  Subchapter  B,  of  S.  1437,  in  its  entirety,  violates  this  article  by 
requiring  a  forced  commitment  of  tlie  individual  to  a  mental  hospital.  The  "free 
development  of  his  personality"  can  be  violated  by  forcing  the  individual  to 
undergo  psychiatric  treatment  such  as  psychotropic  drugs,  electric  shock  treat- 
ment, behavior  modification,  or  psychosurgery.  These  forms  of  treatment,  as  dis- 
cussed in  PART  II  of  this  report,  alter  the  development  of  personality  and 
in  many  cases  damage  personality  permanently. 

The  Bill  of  Rights  of  the  United  States  Constitution  has  been  an  accepted 
code  for  human  rights  of  this  country.  One  section  of  the  Bill  of  Rights  is 
severely  violated  by  S.  1437.  This  is  Amendment  VI : 

"In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial,  by  an  impartial  jury  of  the  State  and  district  wherein  the 
crime  shall  have  been  committed,  wliich  district  shall  have  been  previously 
ascertained  by  law,  and  to  l)e  informed  of  the  nature  and  cause  of  the  accusa- 
tion ;  to  be  confronted  with  the  witnesses  against  him ;  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor,  and  to  have  the  assistance  of 
counsel  for  his  defense." 

Another  issue  which  could  lead  to  a  violation  of  human  rights  is  that  of  the 
right  to  a  public  trial  in  lieu  of  a  liearing  where  his  sanity  and  not  his  guilt  is 
on  trial.  The  circumstances  leading  up  to  this  "sanity"  hearing  are  well  covered 
previously  in  this  report. 

Another  issue  which  could  lead  to  a  violation  of  human  right  is  that  of  the 
definition  of  'insanity'  given  in  section  3617.  The  definition  is  as  follows:  "As 
used  in  this  subchapter,  •insanity'  means  a  mental  disease  or  defect  of  a  nature 
constitution  a  defense  to  a  federal  criminal  prosecution."  This  definition  is 
sufficiently  circular  that  it  does  not  describe  what  insanity  is  and  thus  can  be 
misinterpereted. 

S.  1437.  Chapter  36,  Subchapter  B.  gives  free  reign  to  any  political  ixiwer,  to 
have  political  enemies  placed  in  mental  institutions  against  their  will  for  indeter- 
minate periods  of  time.  Although  the  more  basic  issue  here  is  human  rights  for 
all  persons,  whether  politically  oriented  or  not,  the  consequences  of  forsaking 
these  rights  and  allowing  individuals  to  be  committed  to  mental  institutions. 
again!<t  their  will  without  having  committed  any  crime  may  be  as  frightening  as 
Bukovsky  states : 

"Torrey  :  If  we  don't  fight  the  abuse  of  psychiatry  in  the  Soviet  Union  and 
elsewhere,  what  are  the  consequences? 

Bukovsky :  If  the  alnises  begin  in  your  country  then  it  will  be  too  late.  If  you 
try  and  fight  it  once  it  begins  the.y  will  probably  just  call  you  insane  and  put 
you  away." 

PART  V:    SOLUTION 

Instead  of  instituting  Chapter  36,  Subchapter  B.  of  S.  1437,  a  solution  to  this 
complex  problem  can  be  arrived  at  by  initiating  legislation  which  conforms  to 
the  human  rights  codes  mentioned  in  part  IV,  and  in  addition,  by  providing  effec- 
tive  rehabilitation  programs  for  those  who  are  found  to  be  guilty  of  committing 
a  crime.  Amendment  VI  of  the  Bill  of  Rights  is  stated  as  follows : 

"In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial,  by  an  impartial  jury  of  the  State  and  district  wherein  the  crime 


9466 

shall  have  been  committed,  which  district  shall  have  been  previously  ascertanied 
by  law,  and  to  be  informed  of  the  natnre  and  cause  of  the  accusation ;  to  be  con- 
fronted with  the  witnesses  against  him  :  to  have  compulsory  process  for  obtain- 
ing witnesses  in  liis  favor,  and  to  have  the  assistance  of  counsel  for  his  defense." 
In  using  this  as  a  guideline,  the  following  procedure  would  serve  to  conform 
to  this  and  preserve  the  individual's  rights  : 

1.  The  accused  is  to  be  given  a  public  trial  by  an  impartial  jury,  regardless  of 
his  actual  or  supposed  mental  state.  He  is  to  have  the  assistance  of  counsel  for 
his  defense.  He  and  his  counsel  are  to  be  informed  of  the  nature  and  cau.se  of 
the  accusation.  He  is  to  be  confronted  with  the  witnesses  against  him  and  is  to 
have  compulsory  process  for  obtaining  witnesses  in  his  favor.  He  is  to  be  afforded 
all  guarantees  necessary  for  his  defense. 

2.  If  he  is  found  innocent  of  all  charges  against  him.  he  should  be  released, 
regardless  of  actual  or  supposed  mental  state. 

3.  If  he  is  found  guilty,  the  offender  or  his  counsel,  or  the  attorney  for  the 
government  may  file  a  motion  for  a  hearing  to  determine  the  mental  comiietency 
of  the  individual.  The  court  shall  grant  the  motion  or  shall  order  a  hearing 
on  its  own  motion  if  there  is  reasonable  cause  to  believe  that  the  offender  is 
mentally  incompetent  and  in  need  of  specialized  rehabilitation.  A  board  made 
up  of  a  minister,  layman,  medical  doctor,  and  lawyer,  should  carry  out  an  exami- 
nation of  the  individual  and  a  study  of  his  personal  history.  If  he  is  found  to  be 
in  need  of  specialized  rehabilitation  by  reason  of  mental  incompetence,  he  should 
be  given  an  opportunity  for  such  rehabilitation  in  programs  maintained  by  the 
state.  The  individual  shall  be  placed  in  a  secure  environment  in  accordance  with 
already  existing  security  regulations  for  prisoners.  However,  his  safety  and  the 
safety  of  society  or  those  in  his  immediate  environment  shall  not  lie  jeopardized 
by  reason  of  his  mental  incompetency. 

4.  Rehabilitation  facilities  shall  be  established  and  maintained  and  shall 
afford  people  the  opportunity  to  recover  in  a  peaceful  environment,  restore  their 
previous  abilities,  and  release  them  as  confident  individuals,  well  able  to  cope 
with  situations  they  encounter  in  their  environment. 

Rehabilitation  shall  include : 

a.  Basic  educational  training  that  will  assist  the  individual  in  understanding 
the  society  which  he  will  be  returned  to,  and  which  will  assist  him  in  under- 
standing the  magnitude  of  his  crime  and  its  impact  on  that  society. 

b.  Vocational  training  that  will  assist  the  individual  in  contributing  to  and 
surviving  in  the  society  which  he  will  he  returned  to. 

c.  If  the  individual  is  addicted  to  drugs  or  alcohol,  effective  rehabilitation 
programs  shall  be  available  for  him  to  take  part  in. 

d.  Regular  medical  care,  physical  exercise  and  proper  nutrition. 

e.  Freedom  from  psychiatric  experimentation. 

f.  The  right  to  refuse,  after  having  been  given  thorough  information  on  its 
conseciuences  and  possible  side  effects,  hnrmful  psychiatric  troatments  such  as 
forced  drugging,  electric  shock  treatment,  behavior  modification,  aversion 
therapy,  psychotherapy,  and  psychosurgery,  or  any  other  type  of  psychiatric 
treatment.  The  individual  must  understand  the  consequences  and  possible  side 
effects  of  this  treatment  and  consent  to  its  administration,  before  the  treatment 
can  )te  given. 

5.  The  individual's  progress  should  be  reviewed  monthly  by  the  board  re.spon- 
sible  for  his  disposition  to  ensure  that  he  is  making  progress  toward  becoming 
rehnbilitated.  These  recommendations  would  guarantee  a  jury  trial  for  all 
offenders  and  ensure  that  no  psychiatric  or  other  form  of  punishment  is  inflicted 
upon  offenders.  Freedom  from  cruel  and  unusual  punishment  is  guaranteed  under 
Amendment  VIII  of  the  T^.S.  Con.stitution  : 

"Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel  and 
■unusual  punishments  inflicted." 

[From  the  Congressional  Record,  May  2,  1077] 

Bv  Mr.  McTi.ELLAN  (for  himself  and  Mr.  Kennedy)  : 

S.  1437.  A  bill  to  codify,  revise,  and  reform  title  IS  of  the  United  States  Code, 
and  for  other  purposes  ;  to  the  Committee  on  the  Judiciary. 

THE  CRIMINAL  CODE  REFORM  ACT  OF  1077 

Mr.  McCleixan.  Mr.  President,  today  T  introduce  for  myself  and  Senator 
Kennedy,  Uie  Criminal  Code  Reform  Act  of  1977. 


9467 

I  am  very  pleased  to  introduce  this  bill  because  it  marks  a  long  step  toward 
attaining  an  iuiixntant  and  historic  goal  for  which  I  and  many  others  have  been 
working  for  over  10  years — a  truly  modern  Federal  Criminal  Code. 

The  need  for  codification  and  revision  of  the  Federal  criminal  laws  is  uncon- 
troverted.  Our  present  Federal  statutes  have  been  enacted  in  a  haphazard  manner 
over  the  course  of  the  past  200  years.  Many  of  them  have  become  outdated  or 
contain  inconsistent  provisions,  and  others  no  longer  reflect  the  values  and  cul- 
ture of  our  modern  society.  Their  complexity,  their  overlapping  nature,  and 
their  lack  of  uniformity  make  it  difficult  for  both  layman  and  lawyer  to  know 
what  the  law  is,  and  very  difficult,  indeed,  for  courts  to  apply  the  law  with  equal 
and  balanced  justice.  The  obsolescence  of  some  Federal  criminal  statutes  and  the 
cumbersomeness  of  others  often  operate  to  hinder  the  administration  of  justice. 
On  November  8,  1966.  the  Congress  undertook  to  do  something  about  the  pre- 
vailing unsatisfactory  condition  of  our  Federal  criminal  laws.  By  statute,  it  es- 
tablished the  National  Commission  on  Reform  of  Federal  Criminal  Laws.  This 
Commission  was  chaired  by  former  Gov.  Pat  Brown  of  California  and  became 
known  as  the  Brown  Commission.  It  was  mandated  to  make  a  "full  and  com- 
plete review  and  study  of  the  statutory  and  case  law  of  the  United  States"  for 
the  puropse  of  recommending  to  the  Congress  legislation  to  improve  the  Federal 
system  of  criminal  justice.  Pursuant  to  that  mandate,  the  Commission,  on  Jan- 
uary 7,  1971,  issued  its  final  report  in  the  form  of  a  draft  criminal  code  that 
was  to  serve,  in  the  Commission's  words,  as  a  "work  basis"  for  necessary  reform 
by  the  Congress. 

The  Commission's  work  and  report  have  served  as  just  that — a  "work  basis." 
"Within  a  month  or  two  thereafter,  the  Senate  Subcommittee  on  Criminal  Law 
and  Procedures,  which  I  am  privileged  to  chair,  opened  the  first  of  a  4-year  series 
of  hearings  on  the  Brown  Conunission  report  and  on  the  whole  question  of  crim- 
inal law  codification  and  reform. 

During  the  course  of  those  hearings,  testimony  was  received  from  judges,  law- 
yers, bar  associations,  and  from  private  citizens  and  groups  of  every  political 
persuasion  and  point  of  view  culminating  in  over  S,500  pages  of  testimony  and 
exhibits  contained  in  15  volumes  of  printed  hearings. 

After  several  preliminary  drafts  were  studied  and  analyzed,  the  Criminal 
Justice  Reform  Act  of  1975  evolved  and  was  introduced  by  me  on  January  15, 
1075,  with  10  cosponsors.  It  undertook  to  incorporate  the  best  of  the  earlier  ver- 
sions and  the  recommendations  made  by  those  who  submitted  their  view  to  the 
sul>oommittee. 

Obviously,  a  bill  of  that  nature,  covering  the  whole  spectrum  of  criminal  law, 
could  hardly  be  expected  to  receive  unanimous  acceptance  and  approval.  No  one 
would  agree  with  all  that  it  contains.  It  was  not  primarily  drafted  to  please,  nor 
does  it  reflect,  the  exclusive  views,  conclusions,  or  judgments  of  any  one  person — 
not  of  myself,  or  of  any  other  individual  Senator. 

Wlien  I  reported  the  measure  to  the  full  Senate  Committee  on  the  Judiciary 
on  October  21,  1975,  I  said  : 

I  again  assert  that  no  sponsor  or  supporter  of  this  bill  regards  all  of  its 
provisions  as  sacrosanct.  There  are  areas  of  the  bill — provisions  thereof — 
which  no  doubt  may  well  be  improved  by  amendment.  That  is  our  legislative  and 
democratic  procedure  to  which  I  sul)scribe  and  Avliich  I  fervently  respect.  And 
I  shall  have  no  hesitancy  in  supporting  proposed  changes  in  the  bill  which,  in 
my  judgment,  strengthen  and  improve  it. 

Constructive  counsel  and  suggestions  are  certainly  welcome  and  will  be  ap- 
preciated at  all  stages  of  consideration  of  this  measure.  But  efforts  to  slander 
the  bill  or  disseminate  false  information  calculated  to  perpetuate  a  de<*eption 
regarding  its  merits  I  reject  as  being  neither  constructive  nor  in  the  public 
interest. 

We  have  always  known  that  there  would  be  honest  differences  of  opinion 
about  some  of  its  provisions,  and  that,  in  the  snirit  of  compromise,  concessions, 
and  accommodations  would  have  to  be  made  in  order  to  achieve  the  goal  of 
criminal  law  reform  earnestly  sought  by  so  many  for  so  long.  Unfortunately, 
deliberate  consideration  and  debate  of  the  true  merits  of  the  various  provisions 
of  the  bill  were  clouded  and  impedetl  by  an  unprecedented  campaign  of  flagi'ant 
distortions,  half-truths  and  misrepresentations  by  some  groups  and  individuals 
to  defeat  the  measure  at  any  cost. 

Recognizing  the  gravity  of  public  concern  and  also  conscious  of  the  great  need 
for  reform  of  the  Federal  criminal  laws,  on  February  11,  1976,  Senators  Mansfield 


9468 

and' Scott,  majority  and  minority  leaders  of  the  Senate,  respectively,  in  an  effort 
to  effectuate  a  reasonable  conii»romise  and  promote  the  hill's  enactment,  sug- 
gested to  the  four  Senators  then  most  actively  involved  in  the  processing-  of  the 
criminal  code  hill — Senators  Hruska,  Kennedy.  Hart,  and  myself — that  some 
13  controversial  provisions  in  the  bill  either  be  deleted  or  i-eturned  to  current  law. 
We  felt  that  by  excisting  these  controversial  provisions  the  remaining  9~)  percent 
or  more  of  the  bill  could  and  should  he  enacted.  Former  Governor  Brown  joined 
in  this  approach,  writing  that  the  defeat  of  the  bill  "would  be  a  severe  blow  to 
criminal  law  reform  in  this  country." 

Senator  Hruska  and  I  were  willing  to  accept  the  recommendations  of  the 
leadership.  On  March  8,  Senators  Hart  and  Kennedy  responded  to  the  leader- 
ship's initiative  by  submitting  to  Senator  Hruska  and  myself  a  significantly 
expanded  li.-^t  of  provisions  to  be  modified,  deleted,  or  returned  to  current  law. 
The  points  in  controversy  in  the  intervening  weeks  had  grown  from  13  to  22. 
On  ilarch  25,  1975,  Senator  Hruska  and  I  issued  a  response  in  which  we  felt 
we  went  a  long  way  in  meeting  the  letter  and  spirit  of  the  leader.ship's  initiative 
to  deal  with  controversial  parts  of  the  bill  and  tlie  issue  posed  by  the  expanded 
list.  Unfortimately,  it  was  not  possible  to  work  out  all  of  the  details  before 
the  end  of  the  04th  Congress. 

Notwithstanding   the  delay,   this   studied   response   by    Senator   Hruska   and 
myself  with  respect  to  the  controvei'sial  parts  of  the  criminal  code  Itill  has 
continued  to  be  the  basis  for  working  with  Senator  Kennedy  and  the  new  ad- 
ministration-— particularly  Attorney  General  Bell  and  his  staff — to  produce  the 
.bill  I  am  introducing  today. 

Mr.  President,  I  believe  the  bill  introduced  today  is  a  product  of  the  give  and 
take  that  inevital'ly  must  bo  a  part  of  the  legislative  process.  Sixteen  of  the  22 
major  issues  involved  were  resolved  using  the  approach  .suggested  by  the  lead- 
ership last  Congress  of  adopting  a  policy  of  retaining  current  law.  This  was  ac- 
complished in  some  instances,  by  deleting  some  sections  in  favor  of  relying  on 
case  law  rules  developed  by  the  courts  over  the  past  200  years  :^  in  otlier  in- 
stances, by  deleting  certain  modifications  of  current  law  r  and,  in  still  orliers, 
by  retaining  current  statutory  law  verbatim  and  including,  if  anything,  simply 
a  cross-reference  to  the  current  statutes:^  or  by  adopting  language  that  all  agree 
will  duplicate  current  law  with  no  significant  change.* 

Mr.  President,  the  remaining  6  of  the  22  issues  are  resolved  in  such  a  way  as 
to  change  current  law  but  in  a  balanced  approach  recognizing  significant  oppos- 
ing views  in  each  case.  Current  law  is  substantially  strengthened  in  the  bill  by 
adopting  a  carefully  drafted  general  Federal  solicitation  offense  section  1003, 
and  by  providing  new  mandatory  minimum  prison  sentences  for  tliose  who 
traffic  in  herion,  section  1811.  On  the  other  hand,  some  aspects  of  current  law 
were  eliminated  by  deleting  the  so-called  "Smith  Act"  dealing  with  persons  wlio 
advocate  overthrow  of  the  Government  by  unlawful  means,  section  1103.  l>y  de- 
leting the  offen.se  for  malicious  spreading  of  false  information  during  wartime 
with  intent  to  aid  the  enemy,  section  1114,  and  l)y  leaving  to  tlie  various  J^rates 
the  responsibility  of  determining  the  proper  sanction  and  its  enforcement — 
whether  criminal  or  civil — for  simple  possession  of  not  more  than  10  grams  of 
marihuana,  section  1813. 

Mr.  President,  these  latter  three  issues  all  involve  parts  of  current  Federal  law 
that  for  one  reason  or  another  are  no  longer  prosecuted.  Tlie  Supreme  Court 
has  so  severely  restricted  the  applicability  of  the  provisions  of  present  hiw 
with  respect  to  advocacy  of  unlawful  overthrow  of  the  Government  that  no 
prosecutions  have  been  brought  in  more  than  15  years. 

In  the  same  vein,  the  current  version  of  tlie  wartime  offense  of  spreading  fal.se 
statements  concerning  the  war  effort  with  intent  to  aid  the  enemy  is  seldom 
used  and,  when  used,  has  most  often  been  applied  fo  war  dissenters  expressing 
opinions  rather  than  conveying  false  Information.  For  examjile.  Mr.  Presi.lent, 
a  man  was  prosecuted  for  distributing  a  pamphlet  claiming  tliat  World  War  I 
was  fought  to  protect  J.  P.  Morgan  investments.  Other  cases  can  be  cited. 


1  Dpfnnsos   fclinptor  .")   .ind  idontifiontion  tpsfiniony   (softion  ?<~14). 

2  OI)striicfion  or  (Ipl.nyinjr  of  poods  or  sorvicos  tliiit  bnpnlr  inilU.Try  offootivpnosc  ('.■sprtion 
1111    Mild   1112)    .niid  riot  jurisdiction  based  on  interference  with  a  federal  poverninpntal 

.function    (section   18?,1  (c)  (.'U. 

•■!  Esuionace  and  related  offpnsps  (sections  1121-1124)  and  death  pen.ilty  for  causing 
■  dPath  dnrintr  an  aircraft  Iiijjickine  (40  TT.R.r.  1472.  UT."^!. 

*  Treason  (section  1101).  obscenity  (section  1842).  wiretapping  authority  (sections  . ''.101- 
3108),  and  admissibility  of  confessions  (section  3713). 


9469 

Similarly,  Mr.  President,  I  am  informed  that  the  Federal  Government  has 
long  ago  abandoned  efforts  to  prosecute  persons  in  possession  of  small  amounts 
of  marihuana,  preferring  instead  to  defer  to  State  and  local  authorities.  While  I 
have  some  misgivings  about  changing  the  law  in  this  regard,  I  completely  agree 
that  this  minor  offense  should  be  left  to  State  and  local  enforcement,  and  that 
the  limited  Federal  resources  should  be  reserved  for  apprehension  and  convic- 
tion of  those  who  traffic  in  narcotics  and  dangerous  drugs. 

Finally,  Mr.  President,  the  sentencing  system  has  been  revised  In  two  respects 
worth  noting.  A  sentencing  giiideline  system  has  been  adopted  to  attack  the 
problem  of  unwarranted  sentencing  disparity  between  judges.  It  would  not  elimi- 
nate judicial  flexibility ;  but  it  would  provide  guidance  to  the  trial  judge  and 
a  bench  mark  for  a  defendant  or  the  Government  to  appeal  clearly  unreason- 
able sentences.  The  other  substantive  change  involves  creation  of  sentencing 
authority  for  the  trial  judge  to  bar  parole  for  nine-tenths  of  the  term  of 
imprisonment  imposed,  as  a  replacement  for  the  current  law  provision  for 
automatic  parole  eligibility  after  one-third  of  the  sentence.  This  change  justi- 
fied a  concomitant  modest  reduction  of  the  maximum  terms  of  imprisonment 
authorized. 

I  wish  to  say  at  this  time,  Mr.  President,  that  on  some  of  these  issues  I 
thought  the  criminal  code  bill  under  consideration  last  Congress  contained 
better  provisions  than  current  law  or  those  now  proposed.  In  particular,  I  felt 
very  strongly  about  the  provisions  designed  to  provide  the  Federal  system 
with  a  constitutional  procedure  for  imposition  of  the  death  penalty  for  certain 
serious  and  heinous  crimes.  As  an  accommodation  to  facilitate  consideration 
of  the  criminal  code  bill  I  am  willing  to  process  separately  a  capital  punishment 
bill  in  the  Senate  and,  upon  favorable  action  by  the  Senate  on  the  separate  leg- 
islation, to  determine  at  that  time,  whether  it  should  be  added  to  the  code  bill. 
While  I  have  spent  some  time  today  discussing  the  controversial  issues  in  the 
bill,  Mr.  President,  it  is  perhaps  more  important  to  note  that  95  percent  of 
the  bill  has  been  noncontroversial  and  that  it  contains  many  provisions  which 
are  universally  recognized  to  be  clear  and  substantial  improvements. 

The  bill  represents  a  true  codification  that  is,  in  short,  a  modern,  workable 
penal  code.  Some  of  the  general  advantages  flowing  from  this  codification  in- 
clude : 

All  Federal  felonies  presently  scattered  throughout  the  50  titles  of  the  United 
States  Code  are  brought  within  a  single  title. 

Overlapping  offenses  are  consolidatetl.  Present  Federal  law  contains  some  70 
theft  provisions,  80  forgery  and  counterfeit  statutes,  50  false  statement  crimes, 
and  more  than  70  arson  or  property  destruction.  In  contrast,  the  bill  has  one 
basic  theft  section ;  and  perjury  and  false  statement  sections  are  reduced  to 
three.  Similar  reductions  occur  throughout. 

Gaps  in  present  law  are  filled.  For  instance,  the  current  Federal  bank  rob^ 
bery  statute  does  not  cover  extortion,  and  the  Federal  extortion  statutes  do 
Dot  cover  banks.  This  combination  fails  to  protect  against  au  increasingly  com- 
mon extortion  situation  where  a  robber  informs  a  bank  officer  that  their  spouse 
will  be  killed  if  the  officer  does  not  deliver  bank  funds  as  directed.  The  bill 
remedies  this  and  similar  situations. 

Inconsistencies  are  dealt  with  in  a  more  effective  manner.  Current  law  often 
inexplicably  uses  different  language  and  penalties  to  apply  to  essentially  the  same 
conduct.  For  example,  the  penalty  for  making  a  false  statement  to  a  Federal 
agency  may  vary  from  a  minor  penalty  to  5-years  imprisonment,  depending  on 
which  provision  of  current  law  is  invtjked.  By  consolidation,  the  bill  eliminates 
this  and  similar  problems. 

The  bill  is  simpler  than  present  law.  In  current  Federal  law,  no  one  provi- 
sion has  any  necessary  relationship  to  any  other.  One  can  find  theft  offenses 
under  robbery  chapters,  under  extortion  chapters,  under  Indian  chapters,  under 
mail  chapters,  and  so  on.  In  this  bill,  similar  offenses  are  con.solidated  and 
placed  in  a  single  chapter  according  to  the  type  of  criminal  conduct.  For  ex- 
ample, chapter  16  contains  crimes  against  the  person. 

The  bill  standardizes  the  terms  and  requirement  of  "criminal  intent."  Under 
current  law  there  are  dozens  of  terms  denoting  the  mental  states  involved  in 
criminal  offenses,  for  example,  willingly,  knowingly,  maliciously,  willfully,  cor- 
ruptly, et  cetera.  Following  the  example  of  the  Model  Penal  Code  and  the  final 
report  of  the  Brown  Commission,  the  bill  incorporates  only  four  carefully  defined 
culpability  terms. 


9470 

The  bill  provides  an  improved  framework  for  extraditing  criminals  wlio  flee 
the  United  States  by  defining  crimes  solely  in  terms  of  tlie  type  of  criminal 
conduct  involved  and  stating  separately  the  basis  for  Federal  jurisdiction.  In  the 
Vesco  matter,  for  example,  extradition  was  denied  because  the  Federal  jurisdic- 
tional factor  was  incorporated  as  an  element  of  the  offense,  and  the  country  to 
which  Vesco  had  fled  had  no  jurisdictional  element  in  its  fraud  statute.  This 
separation  of  jurisdictional  matters  from  the  elements  of  the  offense  should  also 
simplify  Federal  prosecutions  and  prevent  unjust  multiplication  of  criminal 
charges.  Under  current  mail  fraud  provisions,  for  example,  the  mailing  of  10 
fraudulent  soliciatious  would  lead  to  10  mail  fraud  counts.  Under  the  bill,  the 
charge  would  be  a  single  count  of  fraud  with  Federal  jurisdiction  based  on  use  of 
the  mails. 

Similarly,  under  current  law,  robbery  of  a  Federal  credit  union  located  on 
Federal  property  would  violate  at  least  three  separate  Federal  robbery  statutes 
that  differ  in  the  description  of  the  criminal  conduct,  penalty,  and  bases  for 
Federal  jurisdiction.  Under  this  bill,  a  single  Tobbery  offense  would  be  charged — 
with  the  three  bases  for  Federal  jurisdiction. 

The  bill  thus  provides,  through  codifieation,  numerous  important  general 
advantages  for  every  participant  in  the  criminal  justice  system. 

A  complementary  goal  of  the  codification  process  is  substantive  reform  within 
the  context  of  a  sound  respect  for  past  judgments  of  Congress  and  the  courts. 
Examples  of  reform  efforts  in  the  bill  include  the  following  : 

The  bill  carries  forward  in  an  improved  fashion  those  parts  of  current  law 
desipied  to  protect  and  foster  civil  rights.  Under  existing  law  when  interference 
with  civil  rights  is  by  a  private  party,  the  prosecutor  must  establish  a  conspiracy. 
The  bin  eliminates  that  need.  Under  existing  law  only  citizens  are  protecte<l.  The 
bill  extends  coverage  to  all  per.sons.  Under  existing  law,  when  a  State  official 
deprives  a  person  of  a  constitutional  right,  the  Government  must  estal)lish  that 
that  was  his  specific  intent.  The  bill  imijoses  a  standard  of  recklessness  as  to 
the  effect  on  a  person's  civil  rights. 

One  aspect  of  current  law  forbids  some  forms  of  discrimination  against 
women,  but  where  force  is  used  to  discriminate,  the  law  only  applies  to  racial 
or  (religious  discrimination.  The  bill  expands  the  section  to  forbid  the  use  of 
force,  or  threats  of  force,  to  discrimination  on  the  grounds  of  sex. 

The  bill  contains  improved  provisions  protecting  the  right  to  privacy,  including 
prohibitions  against  private,  nonconsensual  electronic  eavesdropping,  trafficking 
in  eavesdropping  devices,  intercepting  correspondence,  and  governmental  dis- 
closure of  certain  private  information  submitted  to  the  Government  by  citizens. 

The  bill  contains  improved  rape  provisions.  In  line  witli  reforms  being  carried 
out  in  some  StiXtes.  the  bill  expressly  eliminates  the  requirement  of  corroboration 
of  the  victim's  testimony,  and  severely  restricts  inquiry  into  the  past  .sexual 
conduct  of  the  victim.  While  not  applying  criminal  sanctions  to  the  sexual 
conduct  of  consenting  adults,  the  bill  expands  coverage  of  rape  to  cover  homo- 
sexual rapes. 

The  bill  provides  better  coverage  for  white  collar  crimes.  It  coutains  nn 
expanded  statute  of  limitations  for  concealable  crime  sucli  as  fraud.  Realistic 
fine  schedules  insure  that  criminal  penalties  cannot  be  written  off  as  a  mere  cost 
of  doing  business.  An  improved  means  of  fine  collection  is  provided  by  utilizing 
many  of  the  devices  pre.sently  used  to  collect  taxes.  A  new  provision  is  included 
to  outlaw  pyramid  sales  schemes  which  have  bilked  the  public  of  hundreds  of 
millions  of  dollars  over  the  past  few  years.  Under  the  bill  fraudulent  schemes 
may  be  stopped  through  the  use  of  Federal  injunctive  provisions.  Peri>etnitors 
of  such  schemes  may  also  be  require<l  to  give  notice  of  conviction  to  their  victims. 

The  bill  contains  improved  provisions  to  fight  organized  crime.  A  new  .serious 
offense  of  operating  a  racketeering  syndicate  is  included  to  supplement  the 
offenses  in  current  law  direct(^l  at  organized  crime. 

The  bill  provides,  for  the  first  time  in  Federal  law.  n  civil  hosjatalization  pro- 
cedure for  Federal  defendants  who  ,ire  found  not  guilty  by  reason  of  insanity. 

The  bill  contains  an  improved  series  of  provisions  relafinu-  to  governmental 
corruption  to  deal  more  effectively  with  Watergate-typo  situations  Provision 
is  made  for  Federal  prosecution  of  a  person  who  connnits  any  crime  for  the 
purpose  of  influencing  the  outcome  of  a  Federal  election.  These  provisions  would 
reach  the  serious  "dirty  tricks"  that  were  exposed  in  the  course  of  the  Water- 
gate inve.stigations.  The  bill  prohibits  anyone  from  soliciting  a  ixilitical  contribu- 
tion in  a  Fed<>ral  facility.  Uurrent  law  only  covers  pui)lic  servants  and  thus;  would 
not  include  au  official  of  a  political  party.  This  situation  was  discussed  in  the 


9471 

report  of  the  Watersnte  special  prosecution  force.  That  report  called  for  a 
lengthening  Of  the  S-year  statute  of  limitations  created  for  campaign  legislation 
of  1974.  The  bill  does  this.  It  removes  any  doubt  that  grand  juries  may  file 
special  reports  relating  to  governmental  misconduct — with  appropriate  due 
process  safeguards — with  regard  to  all  Federal  officials. 

As  discussed  earlier,  the  bill,  for  the  first  time,  creates  an  orderly  system  of 
sentencing  in  Federal  courts  to  replace  the  chaotic  variety  of  existing  terms  of 
imprisonment  and  penalties  often  applied  to  identical  conduct. 

The  l)ill  places  reasonable  restrictions  on  the  imposition  of  consecutive 
sentences. 

It  provides,  for  the  first  time  in  Federal  law,  for  appellate  review  of  sentences 
to  help  deal  with  unjustifiable  disparity  common  under  current  law. 

Tlie  bill  incorporates  the  progressive  features  of  parole  legislation  recently 
enacted.  Imposition  of  a  prison  sentence  under  the  bill  carries  with  it  an  auto- 
matic parole  component  graduated  according  to  tlie  seriousness  of  the  offense. 

The  bill  would  establish,  for  the  first  time  in  Federal  law,  la  program  to  com- 
pensate the  victims  of  violent  Federal  crimes  with  funds  derived  from  criminal 
fines.  This  program  would  attempt  to  provide  innocent  victims  with  financial 
assistance  to  cover  personal  injuries  resulting  from  specified  crimes. 

Mr.  President,  these  then  are  some  of  the  benefits  long  sought  by  those  who 
would  modernize  and  make  more  effective  the  criminal  justice  system  of  this 
country.  Hoi)efully,  we  can  move  forward  to  enactment  in  due  course  this 
Congress. 

Mr.  President,  I  would  be  remiss  if  I  did  not  mention  and  acknowledge  with 
deep  appreciation  the  long  labors  of  my  former  colleague  and  ranking  minority 
leader  of  the  Subcommittee  on  Criminal  Laws  and  Procedures,  Senator  Roman 
Hruska,  in  the  effort  to  achieve  a  modern  criminal  code.  His  wise  counsel  was 
indispensable  to  the  work  of  the  National  Commission  on  Reform  of  Federal 
Criminal  Laws  on  which  we  both  were  privileged  to  serve  from  19G6  until 
its  final  report  was  made  to  the  President  and  the  Congi'ess  in  January  1971.  In 
the  months  of  hearings  and  study  conducted  by  the  Subcommittee  on  Criminal 
Laws  and  Procedures  spanning  Senator  Hruska's  last  6  years  in  the  Senate,  he 
was  tireless  in  his  dedication  to  make  the  new  criminal  code  a  reality. 

Mr.  President,  without  detracting  from  the  efforts  of  many  others,  I  sincerely 
venture  the  observation  that  we  would  never  have  reached  the  point  of  intro- 
ducing this  bill  today  without  the  efforts  of  Senator  Hi-uska.  He  provided  the 
higliest  example  of  bipartisan  cooperation  that  is  indispensable  for  consideration 
of  a  bill  of  this  magnitude.  I  will  miss  his  assistance  and  advice  as  the  measure 
is  processed. 

I  wish  to  add,  Mr.  President,  that  I  appreciate  the  efforts  and  cooperation  of 
the  distinguished  Senator  from  Massachusetts  in  reaching  this  historic  point.  I 
have  disagreed  with  him  on  some  difficult  issues  on  which  we  both  have  strong 
feelings.  He  did  not  have  to  get  involved.  With  considerable  commitment  of  time 
and  a  willing  acceptance  of  the  risks  that  inevitably  accompany  legislative 
involvement  with  controversial  issiies,  he  accepted  the  responsibility  of  identify- 
ing the  major  issues  and  worked  with  me  in  the  spirit  of  give  and  take  to  attain  a 
bill  thiit  I  believe  will  lie  viewed  from  all  perspectives  as  a  step  forward.  I  know 
that  he  has  been  willing  to  assume  the  responsibility  and  the  accompanying 
risks  out  of  the  conviction — which  I  share  with  him — that  the  bests  interests 
of  this  Nation  is  involved  and  this  legislation  is  urgently  needed. 

Mr.  President,  the  bill  I  introduce  today  contains  all  substantive  provisions 
of  the  proposed  Federal  Criminal  Code.  In  the  near  future  I  will  introduce  an 
amendment  to  the  bill  Avhich  will  add  the  many  technical  changes  which  must  be 
made  in  other  titles  of  the  United  States  Code  in  order  to  conform  them  with  this 
proposed  new  title  18. 

I  ask  unanimous  consent  that  an  outline  of  the  provisions  of  the  bill  be  printed 
in  the  Record. 

The  Proposed  Criminal  Code  Reform  Act  of  1977 

OUTLINE  of  significant  PROVISION'S 

The  bill  provides  for  the  first  time  in  the  history  of  the  Federal  Government 
as  integrated  Criminal  Coda  It  would  replace  existing  Title  18  of  the  United 
States  Code  in  its  entirety. 

The  bill  contains  hundreds  of  improvements.  A  brief  overview  of  the  bill  con- 
taining most  of  the  important  matters  proposed,  is  set  out  below. 


9472 

FORMAT   OF  THE  CODE 

The  bill  is  divided  into  two  titles.  Title  I  would  replace  Title  18  of  the  United 
States  Code.  It  consists  of  five  interlocking  Parts. 

Part  I  embodies  the  general  provisions  and  principles  of  the  Code.  Included  in 
this  part  are  chapters  on  jurisdiction,  culpability,  complicity,  and  defenses. 

Part  II  consists  of  all  the  offenses  defined  in  such  a  way  that  the  reader  knows : 
(1)  the  elements  of  the  offense;  (2)  the  requisite  state  of  mind  (culpability)  ; 
(3)  the  circumstances  under  which  the  Federal  government  can  prosecute  the 
offender  (jurisdiction)  ;  and  (4)  the  authorized  sentence  for  violation  of  the 
offense  (grading). 

In  order  to  determine  whether  criminal  liability  is  to  be  imposed  in  a  given 
situation,  a  reader  must  engage  in  the  following  analysis : 

Are  the  objective  elements  of  some  offense  in  the  Code  satisfied? 

Is  the  necessary  state  of  mind  (i.e.,  mens  rca)  present  with  respect  to  each 
element?  To  determine  this,  one  must  consider  the  definition  of  the  offense  in 
light  of  the  culpability  principles  of  Chapter  3. 

Does  the  accused  have  a  defense  to  the  charge,  or  is  the  prosecution  l)arred 
for  any  reason?  General  defenes  and  bars  applying  to  all  offenses,  are  descrilied 
or  discussed  in  Chapter  5.  Others  are  stated  with  the  definition  of  the  offen.se 
itself  if  peculiarly  applicable  to  a  specific  offense  or  type  of  offense. 

Does  the  Federal  government  have  jurisdiction  to  prosecute?  Determining  the 
extent  of  Federal  jurisdiction  of  an  offense  requires  reference  to  the  general 
provisions  of  jurisdiction  in  Chapter  2  and  the  jurisdictional  subsection.  If  any, 
included  in  the  section  defining  the  offen.se. 

What  is  the  authorized  sentence  upon  conviction  for  the  offense?  Each  section 
defining  an  offense  contains  a  s)il)section  which  describes  the  grade  of  the  rffense, 
or,  in  some  eases,  the  different  grades  which  might  apply  depending  on  the  cir- 
cumstances. The  sentences  available  for  a  given  grade  are  set  out  in  Part  III  of 
the  Code. 

Part  III  embodies  all  the  sentencing  provisions.  Among  other  things,  it  defines 
the  classes  of  grading,  states  what  types  of  sanctions  may  be  imposed  and  man- 
<iates  the  use  of  sentencing  guidelines. 

Part  IV  contains  the  procedural  sections  of  existing  Title  IS. 

Part  V  contains  provisions  on  ancillary  private  civil  remedies,  such  as  civil 
actions  against  racketeering  offenders. 

Title  II  of  the  bill  contains  those  revisions  which  occur  outside  of  Title  1^  of 
the  United  States  Code.  This  includes  such  things  as  estal^lishment  of  a  Sentenc- 
ing Commission  responsible  for  promulgating  sentencing  guidelines,  amendments 
to  the  Federal  Rules  of  Criminal  Procedure,  and  technical  conforming 
amendments. 

PART   I.    GENERAL   PROVISIONS    AND    PRINCIPLES 

Chapter  1.  General  provisions 

This  chapt<^r  sets  forth  fho  general  purposes  of  the  Code,  provides  general 
principles  of  construction,  and  defines  over  one  hundred  terms  that  are  comnionlj' 
used  in  the  Code  and  in  the  Federal  Rules  of  Criminal  Procedure., 

Chapter  2.  Jurisdiction 

The  general  Code  treatment  of  federal  jurisdiction  is  introduced  in  this  chap- 
ter. The  Code  defines  offenses  in  terms  of  the  underlying  misconduct  (e.g..  kid- 
napping) just  as  a  state  penal  code  does,  and  in  a  separate  subsection  of  each 
offense  it  specifies  the  particular  circumstances  under  which  the  federal  govern- 
ment may  exercise  jurisdiction  over  the  criminal  conduct  (e.g..  transportation 
of  tlie  victim  across  a  state  line).  The  I»;isis  for  federal  jurisdiction  is  not  an 
element  of  the  offense,  but  it  will  still  have  to  be  proved  to  the  court  beyond 
a  reasonable  doubt.  This  approach  to  federal  jurisdiction  permits  far  clearer 
definitions  of  offenses,  and  allows  consolidation  of  numei-ous  existing  offen.ses 
into  a  single  offense  with  several  jurisdiction:il  ba.^es  (e.g..  the  Code  contains 
only  one  theft  offense,  with  a  listing  of  several  specifi(>d  circumstances  jiermit- 
ting  the  federal  government  to  prosecute  for  the  theft).  It  also  allows  simplified 
instructions  for  juries. 

The  jurisdictional  bases  in  the  Code  have  been  tailored  to  avoid  unnecevssarjr 
expansion  of  existing  federal  jurisdiction. 


9473 

The  Code  contains  provisions  for  ancillary  federal  jurisdiction  over  certain 
offenses — primarily  violent  offenses — ^committed  in  the  conrse  of  other  federal 
offenses.  For  example,  if  the  federal  government  prosecutes  for  a  civil  rights 
violation  the  Code  will  also  permit  it  to  prosecute  for  an  assault  or  a  murder 
committed  in  the  course  of  the  civil  rights  violation. 

The  chapter  also  sets  forth  principles  of  extraterritorial  jurisdiction.  In  doing 
so  it  fills  several  gaps  in  current  lavp  (e.g.,  it  permits  a  criminal  trial  of  a  former 
serviceman  for  a  murder  he  committed  overseas  prior  to  being  discharged). 

Chapter  3.  CitlpabJe  states  of  mind 

This  chapter  defines  the  specific  mental  states  (the  "mens  rea"  elements)  that 
are  used  throughout  the  Code  in  defining  an  offense.  The  current  Title  18  uses  79 
different  terms  to  define  the  requisite  mental  state.  Like  the  Model  Penal  Code 
and  most  modern  state  codes,  this  chapter  reduces  the  number  of  terms  used 
to  describe  the  state  of  mind  to  four:  intentional,  knowing,  i-eckless  or  negli- 
gent. The  simplification  should  i>ermit  far  more  clarity  and  uniformity  of 
interpi-etation. 

Chapter  ^.  Complicity 

This  chapter  sets  forth  those  circumstances  under  which  a  person  may  be 
criminally  liable  for  the  acts  of  another  individual  or  for  the  acts  of  an  organiza- 
tion. The  accomplice  liability  section  includes  a  codification  of  the  doctrine  of 
I'inkcrton  v.  United  States,  making  a  co-conspirator  guilty  of  each  specific  offense 
committed  in  furtherance  of  the  criminal  conspiracy  if  it  was  reasonably  forsee- 
able  that  the  si>ecific  acts  would  be  performed  in  furtherance  of  the  unlawful 
agreement. 

One  significant  section  in  this  chapter  is  the  organization  liability  provision.  It 
codifies  current  case  law  by  making  an  organization  liable  for  the  acts  of  its 
agent  committed  within  his  express,  implied  or  apparent  authority. 

Chapter  5.  Bars  and  defenses  to  prosecution 

A  general  statute  of  limitations  and  a  bar  to  prosecution  on  grounds  of  imma- 
turity are  set  out  in  this  chapter.  The  generally  recognized  common  law  defenses, 
including  mistake  of  fact  or  law,  insanity,  intoxication,  duress,  exercise  of  public 
authority,  protection  of  persons,  protection  of  property,  unlawful  entrapment,  and 
official  misstatement  of  law,  are  all  left  uncodified  for  further  development  by 
the  coiu'ts  through  case  law.  (It  is  expected  that  sometime  in  the  next  few  years 
the  Congress  may  be  able  to  attempt  a  codification  of  the  basic  elements  of  the 
more  common  defenses. ) 

PART   II.    OFFENSES 

Chapter  10.  Offenses  of  general  applicability 

This  chapter  codifies  the  attempt,  conspiracy  and  solicitation  offenses.  There  is 
under  current  law  no  Federal  attempt  statute  of  general  applicability,  although 
many  of  the  individual  offenses  contain  attempt  provisions.  This  section  makes  it 
an  oft'ense  to  attempt  to  commit  any  Federal  crime.  The  attempted  offense  in 
most  instances  carries  the  same  i>enalty  as  the  completed  offense  on  the  theory 
that  a  defendant  who  begins  to  commit  an  offense  should  not  benefit  from  the 
hapi>enstance  causing  its  interruption.  In  order  to  encourage  the  abandonment  of 
a  criminal  enterprise,  a  voluntary,  complete,  and  effective  avoidance  of  the  offense 
constitutes  an  affirmative  defense. 

The  conspiracy  section  reflects  current  law,  as  developed  through  judicial  inter- 
pretations of  the  present  general  conspiracy  statute. 

With  the  exception  of  subornation  of  perjui'y,  there  is  no  solicitation  offense 
in  current  Federal  law.  The  National  Commission  on  Reform  of  Federal  Criminal 
Laws  recommended  a  general  offense  covering  the  solicitation  of  another  to  com- 
mit any  Federal  offense,  an  approach  adopted  in  this  bill. 

Chapter  11.  Offenses  involving  national  defense 

Three  series  of  offenses  relating  to  treason,  sabotage,  and  espionage  are  set 
out  in  this  chapter. 

The  treason  series  generally  codifies  current  law.  It  adds  a  new  section,  how- 
ever, i)enalizing  use  of  weapons  by  para-military  groups  that  intend  to  take  over 


9474 

a  function  of  frovernment  by  force.  Such  an  offense  was  recommended  by  the 
National  Commission  on  Reform  of  Federal  Criminal  Laws. 

The  Smith  Act  is  repealed  in  its  entirety. 

The  sabotaare  series  of  offenses  generally  codifies  the  current  law  statutes, 
except  tliat  a  current  law  provision  dealing  with  the  spreading  of  false  military 
information  in  wartime  with  intent  to  aid  the  enemy  lias  been  deleted. 

The  current  law  offenses  relating  to  espionage  and  release  of  classified  informa- 
tion have  not  been  revised.  Because  of  the  controversy  surrounding  this  area,  the 
existing  statutes  are  moved,  unchanged,  to  title  HO  of  the  United  States  Code, 
with  the  Code  simply  cross-referencing  to  those  provisions. 

Chapter  12.  Offenses  involving  international  affairs 

This  chapter  is  divided  into  two  subchapters.  The  first  subchapter  encompasses 
those  offenses  that  pertain  to  foreign  relations,  such  as  disclosing  a  foreign  code 
or  engaging  in  an  unlawful  international  transaction.  The  second  subchapter 
covers  offenses  involving  immigration,  naturalization,  and  passports  such  as 
unlawful  entry  into  the  United  States  or  improper  use  of  a  passport.  The  offenses 
covered  here  are  basically  a  codification  of  present  law.  One  major  change,  how- 
ever, would  make  it  an  offense  to  conspire  within  the  United  States  to  assassinate 
a  foreign  official  (Section  1202) . 

The  Logan  Act.  prohibiting  private  communication  with  a  foreign  government 
with  intent  to  influence  its  actions  in  a  dispute  with  the  United  States,  is  reiiealed 
This  was  recommended  by  the  National  Commission  on  Reform  of  Federal 
Criminal  Laws  and  has  been  incorporated  in  all  prior  versions  of  this  bill. 

Chapter  13.  Offenses  involving  government  processes 

The  offenses  encompassed  by  this  calendar  are  those  that  constitute  obstruc- 
tions of  Government  functions,  whether  they  be  obstructions  of  justice,  contempt 
offenses,  offenses  involving  false  statements,  or  offenses  involving  official  corrup- 
tion. For  the  most  part,  the  chapter  reflects  current  law.  However,  certain  reforms 
are  introduced. 

Current  law  contains  an  offense  of  conspiracy  to  defraud  the  Government  but 
no  substantive  offense  of  defrauding  the  Government.  The  current  offense  has 
therefore  been  svibject  to  criticism  for  punishing  a  conspiracy  to  commit  an  act 
that  is  not  in  itself  punishable.  Section  1301  establishes  the  substantive  offense 
of  defrauding  the  Government. 

Section  1312  gears  the  punishment  for  bail  pumping  to  the  nature  of  the  mider- 
lying  offense.  Thus,  it  will  be  punished  as  a  felony  if  the  defendant  is  awaiting 
trial  for  a  felony,  but  as  a  misdemeanor  if  the  underlying  offense  is  a  misde- 
meanor. This  reduces  the  incentive  to  jump  bail  in  the  hope  of  facing  a  reduced 
penalty  after  sufficient  time  has  passed  that  the  Government's  case  has  grown 
stale.  The  section  also  makes  it  an  offense  to  fail  to  surrender  for  service  of 
sentence,  a  possible  loophole  in  current  law. 

Current  law  covers  tampering  with  witnesses  and  informants  by  means  of  force 
or  threats  only  in  a  general  obstruction  of  ju.stice  statute.  Section  1.32.'^  spells 
out  the  prohibited  conduct  in  detail,  lat  the  same  time  including  a  catch-all  clause 
to  insure  that  the  coverage  of  current  law  is  maintained. 

The  contempt  offenses  are  defined  more  clearly,  the  general  criminal  contempt 
statute  is  limited  to  a  six-month  penalty,  and  certain  defenses  are  added  to  cover 
impossibility  of  compliance  with  coiirt  orders  and  non-compliance  with  illegal 
court  orders. 

The  perjury  series  adds  a  new  offense,  false  swearing,  as  a  lesser-included 
perjury  offense  where  the  false  statement  is  not  material.  Like  the  perjury  offense 
now  appearing  in  18  U.S.C.  1(123.  the  "two  witness"  rule  is  abolished  and  a  defense 
of  retraction  is  provided.  A  single  false  statement  offense  consolidates  over  ."0 
false  statement  statutes  appearing  in  current  law;  an  oral  false  statement  to  a 
government  official  is  an  offense  only  if  an  investigator  first  advises  the  declarant 
that  making  such  a  false  statement  is  an  offense  or  if  it  is  volunteered  to  an 
investigator.  A  new  defense  of  retraction  is  added  to  the  false  statement  offense. 

Finally,  under  Section  I3."f)  imblic  servants  are  p'r()hibite<l  from  using  their 
own  official  actions  or  information  gained  because  of  their  position  for  private 
gain  while  tliey  remain  jjublic  servants  or  for  one  year  after  they  leave  public 
service.  As  a  statute  of  general  applicability,  this  offense  is  new  to  Federal  law. 


9475 

Chapter  IJf.  Offenses  involving  taxation 

This  chapter  would  incorporate  Federal  criminal  tax  oiTenses  currently  in  the 
Internal  Revenue  Code  of  1954  (Title  26,  United  States  Code).  This  approach  was 
suggested  by  the  National  Connnissiou  on  Reform  of  Federal  Criminal  Laws. 
This  is  consistent  with  a  fundamental  precept  of  codilication  requiring  that  all 
felony  offenses  be  included  in  Title  18. 

The  chapter  is  divided  into  two  subchapters.  The  first  subchapter  would  cover 
internal  revenue  offenses  and  the  second  subchapter  v^'ould  contain  customs 
offenses. 

Chapter  14  generally  recodifies  existing  law.  However,  one  particularly  signif- 
icant change  is  introduced  with  respect  to  prosecutions  for  tax  evasion  (section 
1401).  Under  existing  law%  a  successful  tax  evasion  prosecution  requires  a  "net" 
tax  deficiency.  Thus,  if  one  were  to  intentionally  understate  his  income  with  the 
intent  to  evade  taxes  but,  due  to  oversiglit  or  neglect,  failed  to  take  available 
deductions  adequate  to  offset  the  undeclared  income,  the  case  against  him  would 
fall  under  existing  law.  Section  1401,  read  together  with  Section  1001  (Attempts), 
eliminates  the  "net"  deficiency  requirement.  Thus  a  taxpayer  could  be  prosecuted 
for  understating  his  income  with  a  criminal  intent,  despite  the  fact  that  no  tax 
was  actually  due  and  owing  because  of  overlooked  deductions. 

It  should  be  noted  that  an  offense  where  there  is  no  "net"  deficiency  is  a  Class 
E  felony  (3  years).  Plowever,  if  there  exists  a  "net"  deficiency  of  $100,000  or  less, 
the  penalty  is  a  Class  D  felony  (G  years).  Where  a  "net"  deficiency  in  excess  of 
$100,000  exists,  the  sanction  is  upgraded  to  a  Class  C  felony  (12  years). 

Chapter  15.  Offenses  involving  individual  rights 

This  chapter  covers  offenses  involving  civil  rights,  political  rights,  and  privacy. 

Civil  Rights.  Basic  coverage  of  present  civil  rights  statutes  is  retained,  but 
language  has  been  added  to  broaden  the  coverage  with  respect  to  sex  discrimina- 
tion. In  addition,  the  coverai;e  is  extended  to  protect  all  persons,  not  just  citizens. 
The  current  statute  covering  conspiracy  to  deprive  a  person  of  his  civil  rights 
under  color  of  law  is  modified  to  cover  an  offense  by  a  single  individual  or  orga- 
nization. Also  the  statute  is  modified  to  make  it  clear  that  the  criminal  state  of 
mind  required  for  the  offense  applies  to  the  conduct  which  deprives  a  person  of  a 
right  under  the  Constitution  and  laws  of  the  United  States  and  does  not  impose  a 
further  requirement  that  the  defendant  specifically  intend  to  infringe  a  federally 
guaranteed  right.  Other  sections  carry  forward  the  coverage  of  the  Civil  Rights 
Act  of  1968. 

The  civil  rights  provisions  also  represent  an  excellent  example  of  use  of 
ancillary  Federal  jurisdiction  as  a  grading  mechanism.  The  basic  offenses  are 
generally  graded  as  Class  A  misdemeanors  (1  year)  ;  however.  Federal  jurksdie- 
tion  also  exists  for  serious  crimes  against  persons  and  property  committed  in  the 
course  of  sucii  offenses.  Thus,  a  civil  rights  offense  involving  a  murder  would 
permit  Federal  prosecution  for  murder.  This  treatment  is  similar  in  concept  to 
the  granting  provided  in  present  18  U.S.C.  245. 

Election  Offenses.  Section  l.")ll  for  the  first  time  in  Federal  law  provides  a 
specific  series  of  statutes  covering  fraud.  Heretofore,  frauds  in  connection  with  a 
Federal  election  could  be  reached  only  inider  the  general  civil  rights  conspiracy 
statute.  In  addition,  the  bill  prohibits  engaging  in  any  criminal  conduct  for 
the  purpose  of  influencing  an  election,  thereby  reaching  serious  "dirty  tricks" 
conduct  sueh  as  the  Watergate  burglary. 

The  basic  offenses  applicable  to  oi)structing  or  influencing  elections  are  pri- 
marilv  directed  at  elections  of  Federal  officers.  However,  the  bill  would  for  the 
first  time  in  Federal  law  permit  Federal  prosecution  for  such  conduct  ostensibly 
directed  at  the  election  of  a  State  or  local  official  if  it  is  a  mixed  election,  that  is. 
on  election  involving  candidates  for  both  Federal  and  State  or  local  offices. 

Privacy.  Section  1.524  protects  from  disclosure  certain  information  required  to 
be  fnrnished  to  the  government  liy  private  citizens  or  to  olitain  a  Federal  benefit. 

Wiretapping.  Due  to  the  recent  vintage  of  the  wiretap  and  surveillance  warrant 
provisions  and  the  controversy  that  surrounds  the  subject,  the  bill  carries  present 
law  provisions  forward  without  substantive  change.  There  is  added  an  offense 
for  possession  of  an  eavesdropping  device  with  intent  that  it  be  used  unlawfully. 
It  might  be  noted  that  due  to  consolidation  and  standardization  of  offenses  flow- 
ing from  codification,  there  may  be  some  contraction  or  expansion  of  the  criminal 
conduct  i]i  different  areas  for  which  a  warrant  could  issue. 

92-465 — 77 58 


9470 

In  additinii,  the  offense  of  mail  interception  is  broatlened  to  protect  all  forms 
of  non-oral  communication. 

Chapter  16.  Offenses  against  the  person 

This  chapter  contains  all  of  the  offenses  which  protect  the  person  as  an  indi- 
vidual. Included  here  are  such  offenses  as  murder,  manslaughter,  maiming,  reck- 
less endangerment,  kidnapping,  aircraft  hijacking,  and  rape.  By  and  large, 
while  the  chapter  clarifies  and  simplifies  the  basic  offenses,  no  substantive 
cliauges  are  made. 

The  offen.se  of  rape,  and  the  other  sexual  offenses  in  the  sections  that  follow, 
apply  without  distinction  as  to  the  sex  of  the  offender  or  of  the  victim :  forcible 
sodomy  is  included  in  the  definition  of  the  offense.  It  might  be  noted  that  the 
statutory  rape  provision  (Section  1643)  can  be  committed  by  females  but  elimi- 
nates consensual  acts  between  peers  from  the  offense.  Xo  particularized  evi- 
dentiary requirements  or  instruction  requirements  are  included.  Corroboration 
requirements  are  expressly  eliminated.  No  defense  or  grading  distinction  is  based 
upon  the  promiscuity  of  the  victim.  Inquiry  into  the  prior  sexual  conduct  of  the 
victim  is  severely  restricted. 

The  reckless  endaugei'ment  provision  is  new  to  Federal  law.  It  was  suggested 
by  the  National  Commission  on  Reform  of  Federal  Criminal  Laws  and  a  similar 
statute  has  been  enacted  in  New  York.  It  provides  for  a  penalty  for  engaging  in 
any  criminal  conduct  which  recklessly  endangers  the  life  of  another. 

Chapter  17.  Offenses  against  property 

Chapter  IT  incorporates  and  consolidates  the  many  varied  property  offenses 
found  throughout  the  United  States  Code  into  some  81  sections.  It  is  in  this  chap- 
ter that  the  provisions  relating  to  a7-son.  burglary,  securities  violations  and  their 
related  offenses  are  found.  It  is  also  in  this  chapter,  perhaps  more  than  in  any 
other,  that  the  consolidation  and  reduction  of  unnecessarily  repetitious  offenses, 
one  of  the  significant  benefits  of  codification,  can  be  found.  By  separating  the 
jurisilictional  element  from  the  definition  of  the  substantive  ofi'ense,  for  example. 
Section  1731  is  able  to  incorporate  the  70-odd  theft  provisions  ur.der  current 
law  in  the  area  of  property  offenses.  But  some  reforms  aro  also  accomplished. 

Section  1722,  defining  the  offense  of  extortion,  is  designed  to  correct  a  "loop- 
hole" arising  out  of  the  recent  Supreme  Court  decision.  United  S!tates  v.  Enmons. 
In  that  ca.se,  the  Court  held  that  the  Ilobbs  Act.  which  prohibits  the  obstruction 
of  interstate  commerce  by  extortion,  was  not  applicable  to  otherwise  extortionate 
conduct  when  that  conduct  was  used  to  extort  property  to  which  the  defendant 
purported  to  have  a  legitimate  claim.  Such  an  interpretation  is  inconsistent 
with  the  construction  under  other  Federal  extortion  px'ovisious  (See  United  States 
V.  Pignatelli.  ]2.")  F.  2d  043  (2d  Cir.  1942))  and  essentially  creates  a  Federal 
"claim  of  right"  defense.  Section  172  focuses  on  the  means  used  rather  than  the 
ends  sought  and  would  bring  such  conduct  within  th"  definition  of  extortion. 
Recognizing  the  serious  nature  of  extortion  an  affirmative  defense  is  provided 
for  minor  incidents  of  violence  that  may  occur  in  the  cause  of  legitimate  picketing. 

Section  1734  makes  it  an  offen.'^e  to  execute  a  schome  to  defraud,  which  in  Ir.rge 
measure  carries  forward  the  existing  law  on  n.iail  and  wire  frauds.  A  new  con- 
sumer fraud  provision  sin-iilar  to  the  measure  that  passed  the  Senate  in  the 
Oltl)  Congress  is  included.  One  of  the  significant  features  of  these  sections  lies 
in  thoir  relationship  to  the  procedure  pai-f  of  the  co;le,  where  a  new  statutory 
injunction  remedy  is  provided  to  r(>strain  violations,  a  remedy  that  should  lie  of 
considerable  importance  in  iirotecting  i)otential  victims  of  "white  coPar"  crime. 
Such  a  remedy  would  parallel  the  effective  injunction  relief  that  has  long  been 
available  for  violations  of  the  fraud  provisiims  of  the  Securities  and  Ex- 
change Act.  Section  1734  also  prohibits  fraud  involving  pyramid  sales  schemes. 

Chapter  IS.  Offenses  involving  public  order,  safety,  health  and  icelfarc 

This  chapter  is  divided  into  seven  subchapters. 

Subchai)ter  A  incorporates  a  series  of  organized  crime  offenses  which  generall.v 
mirror  current  law  under  the  Organized  Crime  Control  Act  of  lf)70.  However, 
several  iiuiovations  are  worthy  of  note.  First,  a  distinction  is  made  between 
simple  "racketeering"  and  "operating"  a  racketeering  syndicate— the  former  is 
punished  at  a  C  felony  level  (12  years)  and  the  latter  nt  a  B  felony  level  (25 
years). 


9477 

Second,  a  new  offense  entitled  "Washing  Rocketeering  Proceeds"  (§  1803) 
is  created  to  ju-oscribe  tlie  takeover  of  legitimate  businesses  with  the  proceeds 
of  a  racketeering  enterprise.  Finally,  Federal  loausharking  laws  are  strengthened 
to  reach  grossly  usurious  credit  transactions,  which  in  present  18  U.S.C.  892  are 
stated  in  terms  of  a  prima  facie  case  for  proving  an  extortionate  extension  of 
credit. 

Subchapter  B  contains  the  various  Federal  drug  offenses.  The  drug  offenses 
are  primarily  a  codification  of  the  1970  statutes  except  that  simple  posses.sion 
of  more  than  100  grams  of  an  opiate  (which  would  carry  a  retail  value  of  at 
least  $4,000)  is  made  a  more  serious  offense  that  a  simple  posses.sion  of  other 
drugs,  and  except  that  simple  possession  of  10  grams  or  less  of  marijuana  left  to 
the  states  to  prosecute.  The  several  provisions  of  current  law  providing  for  a 
doubling  of  the  penalty  for  repeat  offenders  are  eliminated.  There  is  added, 
however,  a  two-year  mandatory  minimum  sentence  for  trafficking  in  an  opiate 
unless  the  offense  w'as  committed,  under  one  of  four  specified  mitigating 
circumstances. 

Subchapter  C  codilies  existing  penal  provision.s  involving  firearms  and  ex- 
plosives. The  offense  of  using  a  firearm  in  the  course  of  committing  a  federal 
crime  is  made  subject  to  a  mandatory  minimum  penalty  of  two  years'  imprison- 
ment, to  be  served  consecutively  within  the  sentence  for  the  underlying  offense, 
unle.ss  one  of  four  specified  mitigating  circumstanc&s  is  pre.sent. 

Subchapter  D  contains  the  riot  offenses.  The  riot  offenses  of  existing  law  are 
substantially  narrowed,  both  in  terms  of  the  definition  of  the  substantive  OxTenses 
and  in  terms  of  the  federal  ability  to  prosecute.  An  incitement  to  riot  may  not 
be  prosecuted  unless  a  riot  actually  occurs.  A  riot  is  defined  to  require  at  least 
ten  participants  instead  of  three  as  in  current  law. 

Subchapter  D  covers  gambling,  obsceiiity.  and  prostitution  offenses.  Section 
1842  contains  a  definition  of  obscene  material  consistent  with  recent  Supreme 
Court  decisions  respecting  obscenity.  The  section  proscribes  any  dissemination  of 
obscene  material  to  a  minor  or  to  any  person  in  a  manner  affording  no  oppor- 
tunity to  avoid  exposure  to  such  material.  In  addition,  it  proscribes  the  commer- 
cial distribution  of  obscene  material  as  defined  in  the  section.  In  general,  Federal 
jurisdiction  applies  to  the  offense  when  the  mails  or  interstate  commerce  is 
involved. 

With  respect  to  gambling  and  prostitution,  the  Code  seeks  to  reach  the  operators 
of  a  gambling  or  prostitution  ring  but  leaves  lesser  offenses  in  this  area  to  State 
law. 

The  balance  of  Chapter  18  covers  public  health  offenses,  certain  other  relatively 
minor  miscellaneous  offen.^es.  such  as  the  assimilated  crimes  act  applicable  in 
Federal  enclaves.  The  assimiliated  crimes  act  is  continued  in  order  to  reach 
minor,  uncodified  offe:ises  committed  in  federal  enclaves,  but  because  of  the 
existence  of  a  complete  federal  Code  there  will  be  less  occasion  for  its  use  than 
has  existed  in  the  past.  Accordingly,  the  penalty  for  assimilated  crimes  is  limited 
to  a  one-year  maximum. 

PART   III.    SENTENCES 

It  is  in  Part  III  that  the  sentencing  scheme  for  the  entire  United  States  Code, 
and  not  merely  Title  18,  is  set  out.  The  sentencing  provisions  are  significantly 
different  from  current  law.  Uniform  grading  categories  are  provided  to  facilitate 
a  penalty  structure  of  consistent  penalties  for  conduct  of  a  similar  nature  or 
seriousness.  Maximum  fines  are  substantially  increased.  A  provision  is  added 
to  require  notice  to  fraud  victims.  For  the  first  time  in  Federal  law,  a  judge  can 
include  an  order  of  restitution  to  the  victim  as  part  of  any  sentence.  The  special 
dangerous  offender  provisions  of  current  b^.w  are  incorporated  in  a  more  effective 
form  in  sentencing  guidelines  provisions.  The  Code  sots  forth  four  generally 
recognized  puriioses  of  sentencing — deterrence,  protection  of  the  public,  assurance 
of  just  punishment,  and  rehabilitation. 

These  specific  provisions  are  important  but  are  overshadowed  by  the  structural 
and  procedural  changes  in  sentencing.  A  sentencing  commission  is  created  and 
directed  to  establish  guidelines  to  govern  the  imposition  of  sentences  for  all 
federal  offenses,  taking  into  consideration  factors  relating  to  the  purposes  of 
sentencing,  the  characteristics  of  the  offender,  and  the  aggravating  and  mitigat- 
ing circumstances  of  the  offense.  In  sentencing  offenders,  a  judge  will  be  expected 
to  sentence  within  the  lange  specified  in  the  guidelines,  although  if  he  considers 
the  guideline  range  inappropriate  for  a  particular  case  he  is  free  to  sentence 
above  or  below  the  guideline  range  as  long  as  he  explains  his  reasons  for  doing 


9478 

so.  It  an  offender  is  sentenced  above  the  range  specified  in  the  guidelines  he  may 
obtain  appellate  review  of  his  sentence :  if  he  is  sentenced  below  tlie  range  spec- 
ified in  the  guidelines  the  government  may  obtain  appellate  review  of  the  sen- 
fence.  The  system  is  designed  to  promote  greater  uniformity  and  fairness,  while 
ret  lining  necessary  flexibility.  A  parole  systein  is  retained  under  the  current 
draft  of  the  bill.  However,  the  trial  judge  has  the  authority  to  sentence  a  de- 
fendant to  imprisonment  without  eligibility  for  parole  for  up  to  nine-tenths  of 
the  sentence  imposed.  The  sentencing  guidelines  will  include  guidelines  on  im- 
posing tex*ms  of  parole  ineligibility. 

PART    IV.     ADAIINISTKATION    AND    PROCEDURE 

The  chapters  appearing  in  this  part  consolidate,  clarify,  and  codify  existing 
procedural  sections  of  Title  18.  Except  for  the  provisions  noted  below,  the  codi- 
fication is  accomplished  without  substantial  change  in  the  existing  law. 

The  provisions  concerning  court-authorized  wiretapping  have  been  modified 
slightly.  The  statute  permitting  wiretapping  without  court  order  in  emergencies 
is  limited  specifically  to  offenses  involving  treason,  sabotage,  or  espionage,  or  to 
offenses  involving  a  risk  of  death.  The  provision  of  current  law  stating  that 
nothing  contained  in  the  wiretapping  chapter  shall  be  construed  to  limit  the 
constitutional  power  of  the  President  is  eliminated  because  of  the  controversy 
it  has  provoked  and  because  it  is  without  any  legal  effect. 

The  extradition  statutes  are  materially  modernized  and  simplified. 

The  jurisdiction  of  United  States  Magi.strates  is  expanded  to  encompass  all 
misdemeanoi's,  and  to  permit  trial  of  offenses  carrying  six  months  or  less  without 
the  necessity  of  obtaining  a  waiver  of  jury  trial. 

An  entirely  revised  series  of  provisions  dealing  with  mental  competency  is 
included  in  order  to  overcome  the  inade(iuacies  of  the  current  law.  Included  is 
a  provision  for  the  civil  commitment,  if  justified,  of  an  individual  who  is  acquitted 
by  reason  of  insanity.  Although  state  commitment  proceedings  may  be  preferred, 
federal  commitment  proceedings  are  provided  to  ensure  that  a  genuinely  danger- 
ous individual  will  not  be  released  prematurely. 

The  ability  of  the  federal  government  to  collect  fines  that  have  been  imposed 
by  the  courts  is  substantially  increased  as  a  result  of  permitting  recourse  to  the 
Internal  Revenus  Service  lien  procedures. 

PART    v.    ANCILLARY    CIVIL    PROCEDURES 

Chapter  40  covers  pul)lic  civil  remedies.  It  expands  the  civil  forfeiture  pro- 
ceedings of  existing  law,  carries  forward  existing  provisions  involving  civil 
restraints  of  racketeering,  and  provides  the  Department  of  Justice  with  authority 
to  seek  injunctions  against  general  fraud  schemes  and  consumer  fraud  activities. 

Chapter  41  covers  private  civil  remedies.  It  carries  forward  civil  actions  against 
racketeers  and  eavesdropping  offenders,  and  adds  a  civil  action  against  fraud 
offenders. 

Jlore  important  is  the  chapters  creation  of  a  system  to  compensate  the  victims 
of  violent  federal  crimes ;  funding  for  such  compensation  will  be  derived  from 
collected  fines. 


Mr.  Kennedy.  Mr.  President,  today  I  join  the  distinguished  senior  Senator 
from  Arkansas  in  introducing  "(he  Criminal  Code  Reform  Act  of  1077."  The  pur- 
pose of  this  comin-ehensive  legislation  is  to  reform,  modernize,  and  codify  the 
entire  Federal  criminal  code.  It  has  the  support  of  the  Department  of  Justice  and 
Attorney  General  Griftin  Bell,  wlio  has  l)een  especially  helpful  and  cooperative 
in  drafting  the  legislation. 

The  Criminal  Code  Reform  Act  of  1977  constitutes  tlie  most  important  attempt 
in  200  years  to  reorganize  and  streamline  the  administration  of  Federal  crimi- 
nal justice.  It  is  a  major  undertaking,  of  critical  importance  to  our  people.  As  I 
have  repeatedly  stated  in  recent  months.  I  view  this  legislation  as  the  corner- 
stone of  the  Federal  Government's  commitment  to  tlie  critical  problem  of  crime 
in  America.  I  believe  it  is  tlie  key  to  progress  on  every  other  front,  and  that  is 
why  I  have  made  this  effort  one  of  my  principal  legislative  goals  in  the  current 
Congress. 

Tills  legislation  follows  in  the  wake  of  various  State  code  recodifications.  Since 
1970,  well  over  half  the  States  have  either  reformed  their  criminal  laws  or  are 
currently  doing  so.  The  Federal  Government  has  a  similar  responsibility  to  act. 
Pulilic  attitudes  reflect  a  growing  sense  of  frustration  at  the  inability  of  Govern- 


9479 

nient  to  deal  with  crime  and  the  inequities  of  our  criminal  justice  system.  We 
owe  it  to  the  public  to  put  our  Federal  house  in  order  and  to  restore  the  confidence 
of  the  people  that  we  are  making  progress  once  again. 

The  bill  introduced  today  is  not  a  hastily  conceived  idea.  It  is  the  culmina- 
tion of  an  ongoing  11-year  effort  to  develop  a  just,  workable,  modern  Federal 
criminal  code.  The  main  impetus  for  this  effort  was  the  decision  of  President 
Lvndon  Jolmson  in  1966  to  establish  the  National  Commission  on  Reform  of 
Criminal  Laws.  This  Commission,  chaired  by  the  former  distinguished  Governor 
of  California,  Edmund  G.  Brown,  concluded,  after  almost  5  years  of  hearings 
and  careful  research  that  a  completely  new  comprehensive  codification  of  the 
Federal  criminal  law  was  necessary.  Piecemeal  change  was  ruled  out  as  incon- 
sistent with  the  goal  of  genuine  reform. 

Few  have  disagreed  with  this  conclusion  of  the  Brown  Commission.  Judges, 
academicians,  law  enforcement  officers,  and  civil  libertarians  alike  have  all  agreed 
on  the  need  for  prompt  development  of  comprehensive,  logically  organized,  and 
internally  consistent  Federal  criminal  law. 

The  plain  fact  is  that  the  current  Federal  criminal  code  is  a  disgrace.  Con- 
gresses over  the  years  have  enacted  over  3,000  criminal  laws  which  are  currently 
on  the  books,  piling  one  on  top  uf  another,  until  today  we  have  a  code  that  looks 
more  like  a  Tower  of  Babel  than  a  comprehensible  criminal  code.  There  are  no 
standardized  definitions.  Offenses  are  scattered  throughout  all  50  titles  of  the 
E.S.  Statutes,  with  no  organization  or  consistency  fi'om  one  provision  to  the  next. 

For  example,  there  are  80  separate  theft  offenses  and  70  counterfeiting  and 
forgery  offenses,  all  with  their  own  conflicting  language  and  definitions.  The  in- 
terpretation and  application  of  such  multiple  statutes  inevitably  results  in  incon- 
sistencies, loopholes,  and  hypertechnicalities. 

In  addition,  there  are  almost  SO  seperately  defined  culpability  terms,  ranging 
from  "wontonly"  and  "lasciviously"  to  "maliciously,"  and  "corruptly."  Such 
terminology  cannot  help  but  breed  uncertainty  and  widely  disparate  interpreta- 
tion of  the  law. 

The  current  code  is  archaic,  ilany  provisions  should  have  been  repealed  years 
ago.  For  example,  the  Logan  Act  of  1799 — -enacted  during  the  administration  of 
President  John  Adams — prohibits  private  communications  to  a  foreign  govern- 
ment. It  is  still  a  crime  "to  impair  military  effectiveness  by  a  false  statement," 
even  though  this  provision  has  not  been  invoked  since  World  War  I.  In  a  lighter 
vein,  it  remains  a  Federal  crime  to  lie  to  a  ship's  captain  or  to  detain  a  Govern- 
ment carrier  pigeon.  Such  provisions  are  an  embrassment  to  the  very  idea  of  an 
enlightened  Federal  criminal  code. 

Nor,  is  the  current  dilemma  liiuited  to  the  flaws  and  confusion  of  existing  sec- 
tions. The  omissions  are  also  significant.  The  Federal  law  currently  lacks  effective 
criminal  provisions  designed  to  meet  many  contemporary  problems — consumer 
and  election  fraud,  environmental  pollution,  white  collar  crime,  and  organized 
crime. 

Most  importantly,  the  current  Federal  criminal  code  is  harsh  and  unfair.  I 
am  referring  primarily  to  the  serious  problem  of  sentencing  disparity  which 
offends  the  precept  of  equal  justice  under  law. 

There  is  a  deep  public  conviction  today  that  justice  means  diff'erent  things 
for  the  rich  and  different  things  for  the  poor  that  it  is  available  only  to  those 
with  money  to  hire  an  expensive  lawyer. 

Yv'heu  we  talk  about  how  current  laws  promote  injustice,  how  they  mean  differ- 
ent things  to  the  rich  and  the  poor,  the  one  flaw  that  stands  out  above  the  rest  is 
our  sentencing  policy.  Sentencing  in  America  today  is  a  national  scandal.  »Every 
day  the  system  breeds  massive  injustice.  There  are  no  guidelines  to  aid  judges 
in  the  exercise  of  their  discretion.  There  is  no  appellate  review  of  sentences. 
Judges  are  free  to  roam  at  will,  dispensing  ad  hoc  justice  in  ways  that  defy  both 
reason  and  fairness.  Different  judges  hand  out  widely  differing  sentences  to 
similar  offenders  convicted  of  similar  crimes.  Some  offenders,  including  many 
repeat  offenders,  escape  jail  altogether  while  others — convicted  of  the  very  same 
crime — go  to  jail  for  excessive  periods. 

The  impact  of  such  sentencing  disparity  on  our  criminal  justice  system  is 
devastating.  Certainty  of  punishment  is  a  joke.  To  all  who  come  in  contact  with 
it,  the  "system"  is  seen  for  what  it  is — a  gauje  of  chance  in  which  offenders  play 
the  odds  and  gamble  on  avoiding  punishment. 

Sentencing  disparity  also  tilts  the  process  against  the  young  and  poor  and  nur- 
tures a  growing  public  cynicism  about  our  institutions.  The  youth  who  goes  for 
a  joyride  or  commits  a  petty  larceney  is  sentenced  to  a  year  in  jail.  Too  often 


9480 

the  tax  evader,  the  price  fixer,  the  polluter,  or  the  corrupt  public  official  receive 
suspended  sentences  on  the  unthinking  ground  that  the  stigma  of  their  con- 
victions is  punishment  enough. 

The  judges  are  not  to  Wame.  The  problem  cannot  be  traced  to  "weak"  judges 
who  "coddle"  criminals.  The  great  majority  of  our  Federal  judges  try  to  perform 
their  sentencing  duties  in  a  responsible,  diligent  manner.  But  they  must  act 
without  guidelines  or  review,  because  there  are  no  staudards  or  review  procedures 
in  our  current  criminal  code.  The  law  invites  injustice  by  conferring  unlimited 
discretion  on  judges  to  impose  sentences  within  vast  statutory  limits. 

A  convicted  bank  robber  can  be  sentenced  anywhere  from  a  term  of  proba- 
tion to  25  years  in  prison,  a  rapist  anywhere  from  probation  to  life  imprisonment. 

This  use  of  broad  discretion  has  backfired ;  there  has  been  a  notorious  in- 
crease in  arbitrariness  and  injustice.  In  the  last  few  years  study  after  study  has 
been  published  documenting  the  nature  and  scope  of  sentencing  disparity. 

Many  of  the  leading  authorities  of  our  criminal  justice  system — Dean  Norval 
Morris  of  the  University  of  Chicago  Law  School  and  the  Honorable  Marvin  E. 
Frankel,  U.S.  district  judge  for  the  southern  district  of  New  York,  to  name 
just  two — liave  written  about  the  critical  flaws  which  threaten  the  criminal 
sentencing  process.  And  just  a  few  months  ago.  Chief  Justice  Warren  E.  Burger 
also  commented  that  "some  form  of  review  procedure  is  needed  to  deal  with 
this  dilemma"  of  disparity. 

Nor  is  sentencing  disparity  the  only  problem.  Sentencing  maximums  are  in- 
consistent and  irrational — if  one  robs  a  federally  insured  bank  today  a  25-year 
term  of  imprisonment  is  possible  ;  but  if  one  robs  a  post  office,  the  maximum  term 
is  only  10  years.  If  one  commits  a  minor  mail  fraud  of  ."?200  by  sending  three  let- 
ters through  the  mail  15  years  can  be  imposed;  but  if  a  major  $25,000  mail 
fraud  is  committed  by  sending  only  one  letter  through  the  mail,  the  maximum 
ia  just  5  years. 

And  only  occasionally,  as  if  by  accident,  are  the  criminal  fines  which  are 
imposed  related  to  the  amount  of  actual  injury  inflicted  or  gain  realized  by  the 
offender. 

In  plain  terms,  the  present  penalty  structure  of  the  Federal  criminal  law 
must  be  completely  revised. 

The  Criminal  Code  Reform  Act  of  1977  is  designed  to  deal  with  these  and 
other  injustices  found  in  current  law.  The  bill  completely  reorganizes  the  code 
in  a  logical  and  consistent  manner.  Over  70  current  statutes  relating  to  arson  and 
property  destruction  are  consolidated  into  just  three  sections.  The  one  theft 
section  in  the  bill  replaces  over  70  current  theft  and  fraud  statutes,  with  the 
penalty  for  the  offense  varying  depending  on  the  kind  and  value  of  the  property 
stolen.  Similarly,  five  forgery  and  counterfeiting  offenses  replace  the  SO  offenses 
found  in  current  law,  while  50  statutes  involving  perjury  and  false  statements 
have  been  consolidated  into  four  sections. 

In  place  of  80  current  levels  of  culpability,  all  undefined,  this  reform  bill, 
defines  just  four:  intentional,  knowing,  reckless,  and  negligent.  This  simplifica- 
tion will  permit  far  greater  clarity  and  uniformity.  In  addition,  over  100  defini- 
tions are  listed  to  insure  uniform  interpretatioji.  The  new  bill  thus  provides  a 
common  dir-tionary  to  make  it  understandable  on  its  face. 

Every  effort  has  been  made  to  draft  offenses  simply,  uniformly,  and  precisely. 
Verbose  and  technical  language  Piich  as  that  which  appears  in  the  current  mail 
fraud  statute — has  been  avoided.  Instead,  a  conscious  effort  has  been  made  to 
speak  in  common  English. 

Mr.  President,  although  these  new  features  in  the  bill  basically  result  from  our 
effort  to  codify  current  law.  the  proposed  bill  goes  well  beyond  mere  codification. 
It  is  a  reform  effort  as  well. 

First  and  foremost,  the  new  bill  overhauls  the  entire  Federal  sentencing 
process  by  adopting  many  of  the  sentencing  reforms  I  suggested  in  S,  181, 
"the  sentencing  guidelines  Inl]."  introduced  with  broad,  bipnrfisnn  supnort,  in- 
cluding the  cdsponsorship  of  Senator  I\rcClellau.  on  ,Tanu:iry  10.  T  view  the 
sentencing  provisions  as  the  key  reform  of  the  entire  bill.  The  bill  sets  forth  four 
generally  recognized  purjioses  of  sentencing — deterrence,  protection  of  the  pub- 
lic, assurance  of  just  punishment,  and  rehabilitation.  A  sentencing  commission 
is  created  and  directed  to  establish  guidelines  to  govern  the  imposition  of  sen- 
tences for  all  Federal  offenses,  taking  into  consideration  factors  relating  to  the 
purposes  of  sentencing  (he  charactei-istics  of  the  (iffpiider.  niid  the  aggravating 
and  mitigating  circumstances  of  the  offense. 


9481 

111  sentenciiig  offenders,  a  .iudgc  will  be  expoef.ed  to  sentence  within  the  range 
speciiied  in  tlie  guidelines,  although  if  he  considers  Uie  gnideliiie  range  inappro- 
priate for  a  particular  ease  he  is  free  to  sentence  above  or  below  the  guideline 
range  as  long  as  he  explains  Ms  reasons  for  doing  so.  If  an  offender  is  sentenced 
behnv  the  range  specified  in  the  guidelines,  the  Government  may  obtain  appel- 
late review  of  the  sentence.  If  an  offender  is  sentenced  above  the  range  specified 
in  the  guidelines,  the  offender  may  appeal.  This  system  is  designed  to  promote 
greater  uniformity  and  fairness,  while  retaining  necessary  judicial  flexibility. 
Under  this  new  approach,  the  gross  disparities  in  sentencing  found  in  current  law 
should  be  significantly  reduced. 

In  addition,  each  offense  in  the  bill  is  described  as  a  certain  grade  of  felony  or 
misdemeanor  or  as  an  infraction,  as  is  common  under  most  modern  State  codes. 
This  provides  a  shorthand  method  of  referring  to  the  penalties  and  other  con- 
siderations that  apply  to  the  offense. 

Finally,  maximum  fines  are  substantially  increased — a  new,  effective  weapon 
against  white  collar  crime — and  an  important  new  section  mandates  notice  to 
victims  of  consumer  fraud  in  order  to  facilitate  class  actions  for  recovery  of 
losses.  No  longer  will  the  white  collar  offender  be  able  to  write  off  a  criminal  fine 
as  simply  a  cost  of  doing  business. 

But  the  bill  goes  well  beyond  current  law  in  a  number  of  other  important  re- 
spects. There  are  new  provisions  designed  to  further  protect  civil  liberties  and 
civil  rights,  provisions  drafted  to  meet  modern  social,  political  and  economic  prob- 
lems, provisions,  designed  to  improve  the  administration  of  criminal  justice  and 
important  new  provisions  which  will  improve  the  Federal  Government's  law  en- 
forcement capability : 

A.   NEW   PKOVISIOrS'S  TO  PROTECT  CIVIL  LIBERTIES  AND  CIVIL  BIGHTS 

First.  The  Logan  Act  is  repealed.  This  law  (18  U.S.C.  951)  has  been  on  the 
books  since  1799  and  prohibits  private  communications  with  a  foreign  govern- 
ment with  intent  to  influence  foreign  policy.  It  has  long  outlived  its  usefulness 
and  is  looked  upon  today  as  little  more  than  an  ancient  relic.  Nevertheless,  on  oc- 
casion it  is  dusted  off  and  used  to  raise  the  spectre  of  prosecution  against  those 
who  may  disagree  with  official  Government  policy.  In  the  late  1960's  those  Ameri- 
can citizens  who  communicated  directly  with  the  North  Vietnamese  Government 
in  an  effort  to  achieve  a  breakthrough  for  peace  were  threatened  with  prosecu- 
tion under  this  section.  It  is  time  it  was  repealed. 

Second.  New  defenses  are  added  to  protect  the  press  from  "gag  orders."  A  major 
improvement  over  the  current  law  of  contempt  (18  U.S.C.  401) .  Under  current  law 
the  invalidity  of  a  judicial  order  is  not  a  defense  to  the  crime  of  contempt.  Under 
this  bill  it  is  a  defense  to  contempt  if  the  order  is  clearly  invalid  and  there 
was  not  sufficient  time  to  litigate  its  validity. 

Third.  The  coverage  of  the  present  civil  rights  laws  is  expanded.  Current  law 
(18  U.S.C.  2il)  deals  only  with  conspiracies  to  violate  civil  rights.  Under  this  bill 
there  need  be  only  one  offender,  that  is,  no  conspiracy  need  be  found  for  civil 
rights  violations. 

Fourth.  The  bill  changes  the  Supreme  Court  decision  of  Screivs  v.  United  States 
(325  U.S.  91)  (1946).  Current  law  requires  a  finding  that  a  defendant  had  a 
specific  intent  to  deprive  the  victim  of  his  federally  protected  civil  rights,  an  al- 
most impossible  standard  to  prove — that  is,  it  is  not  enough,  for  example,  to  show 
that  the  defendant  intended  to  assualt  or  maim  the  victim ;  the  Governmen  must 
also  prove  to  the  jury's  satisfaction  that  the  assimlt  was  done  with  a  specific  in- 
tent to  intimiate  the  victim  from  exercising,  for  example,  his  right  to  vote.  The 
bill  eliminates  this  requirement  and  replaces  it  wdth  a  standard  of  "recklessness." 

Fifth.  The  Civil  Rights  Act  of  1968  (18  U.S.C.  245;  42  U.S.C.  3631)  is  expanded 
to  prohibit  discrimination  based  on  sex  as  well  as  race,  color,  religion,  or  national 
origin.  This  provision  primarily  covers  equal  employment  opportunity  but  would 
also  reach  equal  access  to  restaurants  and  inns  as  well  as  public  education. 

Sixth.  The  offense  of  rape  is  completely  modernized.  Special  corroboration 
of  the  vistim's  testimony  is  no  longer  required.  Proscriptions  are  inposed  upon 
the  ability  of  the  defense  at  trial  to  explore  the  prior  sexual  history  of  the  victim. 
In  this  way,  the  law  will  treat  rape  victims  like  any  other  victim  of  a  criminal 
assault.  It  is  hoped  that  this  new  provision  will  serve  as  a  model  for  States  to 
incorporate  into  their  own  criminal  codes. 

Seventh.  Important  new  provisions  are  directed  at  the  procedures  for  the  com- 
mitment of  offenders  with  mental  disease  or  defect.  The  scope  of  these  provisions 


9482 

aud  the  civil  liberties  protection  px-ovided  for.  are  much  more  comprehensive  than 
those  found  in  current  law— chapter  313  of  title  18,  United  States  Code.  For  ex- 
ample, the  time  for  an  examination  to  determine  competency  is  limited  to  6 
months  instead  of  1  year;  the  hospitalization  standard  is  raised  to  "clear  and 
convincing  evidence"  and  requires  a  showing  of  "substantial  risk  of  serious 
bodilv  injury  to  another  person  or  serious  damage  to  property  of  another" ;  that 
is,  danger  to  oneself  is  not  a  justification  for  Federal  commitment;  also,  in  order 
to  impose  hospital  conditions  at  Federal  institutions,  the  Attorney  General  is 
required  to  consult  with  the  Secretary  of  HEW  "in  establishing  standards  for 
faciUties  used  in  the  implementation  of  this  subchapter."  Other  provisions  pre- 
vent the  Federal  Government  from  committing  or  detaining  an  individual  once 
the  criminal  charges  have  been  dropped  for  reasons  unrelated  to  that  mental 
illness. 

B.  NEW  MODERN  PROVISIONS  NOT  FOUND  IN  CURRENT  LAW 

First.  A  detailed  series  of  election  offenses  is  created  in  the  wake  of  the 
1972  Presidential  campaign  to  prohibit  sabotage  of  political  campaigns.  Obstruct- 
ing an  election,  obstructing  registration  and  obstructing  a  political  campaign 
of  a  Federal  election.  The  bill  also  makes  it  illegal  to  distribute  campaign  litera- 
ture without  accurately  identifying  the  sponsor,  such  as  the  "dirty  tricks"  aspect 
of  the  1972  Presidential  campaign.  Currently,  the  only  principal  statute  for  pros- 
ecuting election  fraud  is  an  1870  statute  (18  U.S.C.  241)  which  is  broadly  de- 
signed to  prohibit  any  interference  with  a  Federal  right — including  voting.  In 
light  of  the  events  of  recent  years  a  specific  set  of  election  offenses  is  needed. 
The  Watergate  burglary  was  a  Federal  offense  only  because  it  occurred  in  the 
District  of  Columbia. 

Two.  A  new  provision  making  environmental  pollution  a  class  A  misdemeanor 
with  spcial  increa.sed  fines  is  established. 

Third.  A  victim  of  crime  compensation  program  is  created  for  certain  violent 
Federal  crimes  committed  against  the  person.  Claims  are  filed  with  a  Federal 
Compensation  Board.  Financed  by  criminal  fines  and  other  sources,  payments  of 
up  to  50,000  for  "pecuniary  loss"  may  be  awarded  to  the  victim  or  surviving  de- 
l)endent.  But  the  recipent  has  an  ongoing  duty  to  cooperate  with  law  enforcement 
authorities  in  prosecution  of  the  case. 

Four.  Major  new  fraud  offenses  are  established  to  deal  with  fraudulent  pyra- 
mid sales  schemes  and  consumer  frauds,  crimes  which  are  often  directed  against 
those  elderly  and  minority  citizens  most  unable  to  bear  the  economic  hardship 
of  being  victimized. 

C.  NEW  TECHNICAL  PROVISIONS  TO  IMPROVE  THE  ADMINISTRATION  OF  JUSTICE 

Fir.st.  The  bill  contains  new  provisons  for  ancillary  Federal  jurisdiction  over 
certain  limited  offenses,  primarily  violent  common  law  offenses  committed  in  the 
course  of  other  Federal  offenses.  For  example,  under  this  provision,  if  the  Federal 
Government  prosecutes  for  a  Federal  civil  rights  violation,  this  bill  will  also 
permit  it  to  prosecute  for  an  assault  or  a  murder  committed  in  the  course  of  that 
civil  rights  violation.  I  believe  that  this  approach  to  ancillary  jurisdiction,  recom- 
mended by  the  Brown  Commission,  represents  one  of  the  most  significant  con- 
tributions made  by  the  new  codification.  The  time,  expense,  aud  uncertainty  of 
multiple  trials  can  be  avoided  by  permitting  prosecution  for  all  of  an  individual's 
offenses  committed  as  part  of  a  single-course  of  conduct. 

Second.  The  extradition  statutes — now  found  in  18  U.S.C.  3181-3185 — are  sub- 
stantially modernized  and  simplified  to  make  extradition  of  fugitives  possible. 
The  bill  clearly  designates  the  procedures  that  are  required  for  extradition,  the 
events  which  must  occur  prior  to  surrender  of  a  fugitive  and  the  time  limitations 
under  which  all  parties  are  required  to  act. 

Third.  The  jurisdiction  of  Federal  magistrates  is  expanded  to  help  relieve  court 
congestion  and  backlog.  The  failure  of  our  criminal  justice  system  to  dispense 
swift  justice  not  only  undercuts  the  Federal  crime-fighting  effort  but,  even  more 
importantly,  contributes  to  the  growth  of  injustice.  Steps  must  be  taken  now  to 
help  relieve  our  courts  of  their  crushing  caseloads.  One  way  is  to  expand  the  role 
of  our  Federal  magistrates  by  allowing  them  to  assume  jurisdiction  over  a  limited 
number  of  civil  and  criminal  cases  which  otherwise  would  fall  on  the  shoulders 
of  the  Federal  district  judge.  These  new  provisions  have  been  drafted  and  recom- 
mended by  the  Attorney  General  as  one  innovative  way  to  combat  judicial  delay 
and  I  look  forward  to  his  upcoming  testimony  concerning  these  sections. 


9483 

D.    NEW   PROVISIONS   TO   IMPEOVE  THE  FEDERAL   GOVERNMENT'S   LAW   ENFORCEMENT 

CAPABILITT 

First.  The  legislation  expressly  desisnates  the  offenses  over  which  the  United 
States  can  claim  extraterritorial  jurisdiction,  including  overseas  corporate 
bribery. 

Second.  The  bill  takes  a  broad  view  of  the  liability  of  an  organization  for  the 
acts  of  its  agents,  an  important  white  collar  crime  weapon. 

Third.  The  bill  creates  a  new  offense  of  conspiracy  in  the  United  States  to  as- 
sassinate a  foreign  oflBcial  outside  the  United  States. 

Fourth.  The  bill  eliminates  the  archaic  common  law  requirement  of  the  need 
for  two  witnesses  to  prove  perjury  other  than  before  a  grand  jury  and  also  allows 
the  Government  to  prove  perjury  by  showing  that  the  defendant  made  or  aflSrmed 
two  or  more  mutually  inconsistent  statements  without  indicating  which  state- 
ment was  false. 

Fifth.  The  legislation  expands  the  tax  evasion  offense  to  include  cases  where 
there  is  no  net  tax  liability  involved — that  is  an  attempt  to  evade  taxes. 

Sixth.  Tlie  bill  creates  a  new  offense  prohibiting  the  possession  of  eavesdrop- 
ping devices  with  intent  to  use  them  illegally. 

Seventh.  The  bill  expands  the  offense  of  intercepting  mail  to  include  all  forms 
of  correspondence,  for  example,  telegrams  and  Morse  code  transcriptions. 

Eighth.  The  legislation  creates  a  new  offense  of  trafficking  in  stolen  property, 
which  is  directed  toward  the  professional  fence  who  deals  in  stolen  goods  for  a 
living. 

Ninth.  The  bill  expands  existing  law  to  cover  the  counterfeiting  and  forging 
of  corporate  securities  and  notes  and  bonds  of  State  and  local  governments. 

Tenth.  The  legislation  expands  existing  laws  regarding  commercial  bribery, 
for  example  bribery  in  the  l)ankiiig  industry  or  bribery  of  employees  of  a  con- 
tractor who  has  a  contract  to  which  the  United  States  is  a  party. 

Eleventh.  The  legislation  creates  a  new  offense  of  operating  a  racketeering  syn- 
dicate which  is  aimed  at  leaders  of  organized  crime.  In  addition,  the  legislation 
makes  it  an  offense  to  "launder"  the  proceeds  of  organized  crime  by  investing  the 
gains  of  illegal  operations  in  other  legitimate  businesses.  By  making  the  launder- 
ing of  these  proceeds  a  crime,  this  bill  helps  to  strip  away  the  financial  machina- 
tions of  organized  crime. 

Twelfth.  The  bill  creates  a  lesser  included  offense  of  loansharking  involving 
grossly  usurious  rates  of  interest. 

Thirteenth.  The  legislation  provides  innovative  civil  injunction  procedures  to 
be  used  against  perpetrators  of  consumer  frauds  or  those  engaged  in  organized 
crime  racketeering.  Since  investigation  of  such  schemes  often  takes  months,  if 
not  years,  before  the  case  is  ready  for  criminal  prosecution,  innocent  people  may 
continue  to  be  victimized  while  the  investigation  is  in  progress.  This  bill  allows 
the  Attorney  General,  prior  to  commencing  a  criminal  action,  to  bring  a  suit  to 
enjoin  such  schemes.  This  injunction  procedure  is  similar  to  that  already  used 
with  great  success  In  SEC  cases. 

Fourteenth.  The  new  bill  not  only  substantially  increases  the  maximum  amount 
of  fines  that  can  be  imposed,  but  also  provides  that,  for  those  offenses  in  which  a 
defendant  derived  personal  gain  or  caused  property  loss,  the  amount  of  fine  im- 
posed can  be  increased  to  twice  the  gain  derived  or  twice  the  gross  loss  caused, 
whichever  is  greater. 

Fifteenth.  An  important  section  of  the  bill  makes  it  a  crime  to  interfere  with 
organized  labor  activities. 

Sixteenth.  Finally,  a  provision  allows  the  Attorney  General  to  initiate  a  civil 
forfeiture  proceeding  to  recover  property  used  or  possessed  in  the  course  of  violat- 
ing various  specific  crimes,  such  as  bribery,  smuggling,  counterfeiting,  forgery,  or 
firearms  offenses. 

Mr.  President,  these  are  just  some  of  the  major  provisions  that  help  to  high- 
light the  need  for  prompt  enactment  of  this  important  legislation. 

We  are.  of  course,  all  aware  of  the  storm  of  controversy  which  surrounded  this 
bill's  predecessor  in  the  last  Congress.  Along  with  many  others,  I  viewed  S.l  as  a 
setback  to  the  goal  of  true  criminal  code  reform.  T  say  it  as  promising,  not  elim- 
inating, injustice.  During  the  past  months,  however,  I  have  worked  to  come  up 
with  an  alternative  to  S.  1,  an  alternative  that  would  reflect  changes  which  I  and 
others  perceived  as  essentiftl  to  any  new  Federal  criminal  code  effort.  This  bill  is 
the  urofiupt  of  that  effort.  It  reflects  the  careful  thought  of  a  large  number  of 
distinguished    and    concerned    people.    Various    Senators,    including    Senator 


QO  —  ACC     t~\ 


9484 

Abourezk  and  former  Senators  Roman  Hruska  and  Philip  Hart ;  representatives 
of  the  Department  of  Justice,  including  Attorney  General  Bell.  Edward  Levi, 
and  Elliot  Richardson :  leading  membt-rs  of  the  academic  community,  in  particu- 
lar, Alan  Derhowitz  of  the  Harvard  Law  School  and  Louis  Schwartz  of  the  Uni- 
versity of  Pennsylvania  Law  School ;  the  various  member  and  staff  of  the  Brown 
Commission;  and,  especially,  the  dean  of  the  Senate  when  it  comes  to  law  en- 
forcement matters,  the  distinguished  Senator  from  Arkansas  (Mr.  McClellan). 
They  have  all  labored  tirelessly  to  work  out  the  many  controversial  areas  and  to 
perfect  an  altogether  new  bill  worthy  of  broad-based  support. 

The  major  objectionable  provisions  of  S.l  have  been  modified  or  eliminated  en- 
tirely from  this  bill :  the  so-called  OflScial  Secrets  Act  has  been  deleted,  the  in- 
sanity defense  has  been  restored,  the  Smith  Act  has  been  repealed,  provisions  ex- 
panding the  death  penalty  have  been  eliminated,  a  Federal  disorderly  conduct  pro- 
vision has  been  struck,  provisions  dealing  with  demonstrations  at  a  courthouse 
and  riot  have  been  carefully  drafted  to  take  into  account  civil  liberties  objections, 
the  extortion  offense  has  been  rewritten  to  protect  organized  labor  activities,  pos- 
session of  small  amounts  of  marihuana  is  no  longer  a  Federal  crime,  the  "inherent 
power  disclaimer''  section  of  the  current  wiretap  law  has  been  deleted,  and  emer- 
gency warrantless  wiretaps  have  been  restricted. 

Perhaps  most  imix)rtantly.  the  size  of  this  bill  has  been  reduced  from  the  800 
pages  of  S.  1,  to  a  much  more  manageable  300  pages.  This  has  been  done  by  delet- 
ing the  technical  conforming  amendments  and  by  eliminating  repetitive  sections. 

These  are  just  a  few  of  the  improvements  which  distinguish  this  bill  from  its 
predecessor.  Many,  many  other  improvements  have  also  been  made. 

Mr.  President,  I  believe  that  this  legislation  is  a  major  forward  step  in  the  on- 
going effort  to  reform  our  Federal  criminal  laws  and  streamline  the  administra- 
tion of  criminal  justice.  It  can  still  be  improved  and  I  look  forward  with  anticipa- 
tion to  the  hearings  and  debates  over  the  next  few  months  because  I  think  we 
can  do  an  even  bettei;^job.  But  I  am  convinced  that  a  point  has  now  been  reached 
where  effective  criminal  code  reform  is  nearing  reality  after  more  than  a  decade 
of  waiting. 

Just  a  few  weeks  ago,  Edmund  G.  Brown,  the  distinguished  chairman  of  the 
Brown  Commission  and  a  long-time  supporter  of  criminal  law  reform,  stated  that 
"if  the  Criminal  Code  Reform  Acl  of  1077  is  adopted  I  think  it  will  be  one  of  the 
most  constructive  moves  in  the  administration  of  criminal  justice  in  this  century." 
It  is  up  to  the  Congress  and  this  administration  to  make  this  "constructive  move" 
a  reality.  Twenty-five  years  ago  one  of  our  Nation's  most  distinguished  legal 
scholars,  Herbert  Wechsler,  aptly  expressed  the  profound  impact  that  the  crim- 
inal law  has  on  our  daily  lives;  in  so  doing  he  gave  the  Congress  the  mandate 
which  should  guide  us  in  the  months  ahead : 

Whatever  view  one  holds  about  the  penal  law,  no  one  will  question  its  impor- 
tance in  society.  This  is  the  law  on  which  men  place  their  ultimate  reliance  for 
protection  against  all  the  deepest  injuries  tliat  human  conduct  can  inflict  on  indi- 
viduals and  institutions.  By  the  same  token,  penal  law  governs  the  strongest  force 
that  we  permit  ofllcial  agencies  to  bring  to  bear  on  individuals.  Its  promise  as  an 
instrument  of  safety  is  matched  only  by  its  power  to  destroy. 

If  penal  law  is  weak  or  ineffective,  basic  human  interests  are  in  jeopardy.  If  it 
is  barsh  or  arbitrary  in  its  iinimct.  it  works  a  gross  injustice  on  tbose  caught 
within  its  coils.  The  law  that  carries  such  resjwnsibilities  should  surely  be  as  ra- 
tional and  just  as  law  can  be.  Nowhere  in  the  entire  legal  field  is  more  at  stake 
for  the  community,  for  the  individual. 


9485 


95th  congress 
1st  Session 


S.  1437 


IN  THE  SENATE  OF  THE  UNITED  STATES 
I 

May  2  (leg;islative  day,  April  28),  1977 

Mr.  McClellan  (for  himself  and  Mr.  Kennedy)  introduced  the  following 
bill ;  which  was  read  twice  and  referred  to  the  Committee  on  the 
Judiciary 


A  BILL 

To  codify,  revise,  and  reform  title  18  of  the  United  States  Code;  and  for 

other  purposes. 

1  ^e  it  enacted  "by  the  Senate  and  House  of  Representatives  of  the 

^       United  States  of  America  in  Congress  assembled,  That  this  Act  may 

3  be  cited  as  the  "Criminal  Code  Reform  Act  of  1977". 

4  TITLE  I— CODIFICATION,  REVISION,  AND  REFORM 

5  OF  TITLE  18 

6  Sec.  101.  Title  18  of  the  United  States  Code,  which  may  be  cited  as 

7  "18  U.S.C.  § "  or  as  "Federal  Criminal  Code  § ",  is  amended 

8  to  read  as  follows : 

9       "TITLE  18.— FEDERAL  CRIMINAL  CODE 

10  "TABLE  OF  CONTENTS 

^^  "PART  L— GENERAL  PROVISIONS  AND 

19 

PRINCIPLES 

"Chapter  1.— GENERAL  PROVISIONS 
14 

"Subchapter  A. — Matters  Relating  to  Purpose  and  Appli- 

15  cation 

"Sec. 

"101.  General  Purpose. 

"102.  General  Principle  of  Criminal  Liability. 

"103.  Application. 

"104.  Civil  Remedies  and  Powers  Unimpaired. 

16  "Subchapter  B,— Matters  Relating  to  Construction 

"See. 

"111.  General  Definitions. 

"112.  General  Principles  of  Construction. 


II-O 


9486 


1      "Chapter  2.— JURISDICTION 

"Sec. 

"201.  Federal  Jurisdiction. 

"202.  General  Jurisdiction  of  tlie  United  States. 

"203.  Special  Jurisdiction  of  tlie  United  States. 

"204.  Extraterritorial  Jurisdiction  of  the  United  States. 

"205.  Federal  Jurisdiction  Generally  Not  Preemptive. 

2  "Chapter  3.— CULPABLE  STATES  OF  MIND 

"Sec. 

"301.  State  of  Mind  Generally. 

"302.  'Intentional',  'Knowing',  'Reckless',  and  'Negligent'  States  of  Mind. 

"303.  Proof  of  State  of  Mind. 

3  "Chapter  4.— COMPLICITY 

"Sec. 

"401.  Liability  of  an  Accomplice. 

"402.  Liability  of  an  Organization  for  Conduct  of  an  Agent. 

"403.  Liability  of  an  Agent  for  Conduct  of  an  Organization. 

"404.  General  Provisions  for  Chapter  4. 

4  "Chapter  5.— BARS  AND  DEFENSES 

5  "Subchapter  A. — General  Provisions 

"Sec. 

"501.  General   Principle  Governing  Existence   of   Bars   and   Dv^fenses. 

"502.  Application  and  Scope  of  Bars  and  Defenses. 

6  "Subchapter  B. — Bars  to  Prosecution 

"Sec. 

"511.  Time  Limitations. 

"512.  Immaturity. 

7  PART  II.— OFFENSES 

8  "Chapter  10.— OFFENSES  OF  GENERAL  APPLICABILITY 

"Sec. 

"1001.  Criminal  Attempt. 

"1002.  Criminal  Conspiracy. 

"1003.  Criminal  Solicitation. 

"1004.  General  Provisions  for  Chapter  10. 

9  "Chapter  11.— OFFENSES  INVOLVING  NATIONAL  DEFENSE 

10  "Subchapter  A. — Treason  and  Related  Offenses 

"Sec. 

"1101.  Treason. 

"1102.  Armed  Rebellion  or  Insurrection. 

"1103.  EngaginK  in  Para-Military  Activity. 

11  "Subchapter  B. — Sabotage  and  Related  Offenses 

"Sec. 

"1111.  Sabotage. 

"1112.  Impairing  Military  Effectiveness. 

"1113.  Violating  an  Emergency  Regulation. 

"1114.  Evading  Jlilitary  or  -Mtornativc  Civilian  Service. 

"1115.  ()l).Ktructing  Military  Recruitment  or  Induction. 

"inc..  Inciting  iir  Aiding  .M\itiny,  Insuliordination,  or  Desertion. 

"1117.  Aiding  Escape  of  a  Prisoner  of  War  or  an  Enemy  Alien. 


9487 

3 

1  "Subchapter  C. — Espionage  and  Related  Offenses 

"Sec. 

"1121.  Espionage. 

"1122.  Disseminating  National  Defense  Information. 

"1123.  Disseminating  Clas.sified  Information. 

"1124.  Receiving  Classiiied  Information. 

"1125.  Failing  to  Register  as  a  Person  Trained  in  a  Foreign  Espionage  System. 

"1126.   Failing  to  Register  as.  or  Acting  as,  a  Foreign  Agent. 

2  "Subchapter  D, — Miscellaneous  National  Defense  Offenses 

"Sec. 

"1131.  Atomic  Energy  Offenses. 

3  "Chapter    12.— OFFENSES    INVOLVING    INTERNATIONAL 

4  AFFAIRS 

5  "Subchapter  A. — Offenses  Involving  Foreign  Relations 

"Sec. 

"1201.  Attacking  a  Foreign  Power. 

"1202.  Conspiracy  against  a  Foreign  Power. 

"1203.  Entering  or  Recruiting  for  a  Foreign  Armed  Force. 

"1204.  Violating  Neutrality  by  Causing  Departure  of  a  Vessel  or  Aircraft. 

"1205.  Disclosing  a  Foreign  Diplomatic  Code  or  Correspondence. 

"1200.  Engaging  in  an  Unlawful  International  Transaction. 

6  "Subchapter  B. — Offenses  Involving  Immigration,  Naturali- 

7  zation,  and  Passports 

"Sec. 

"1211.  Unlawfully  Entering  the  United  States  as  an  Allen. 

"1212.  Smuggling  an  Alien  into  the  United  States. 

"1213.  Hindering  Discovery  of  an  Alien  Unlawfully  in  the  United  States. 

"1214.  Unlawfully  Employing  an  Alien. 

"1215.  Fraudulently   Acquiring  or   Improperly   U.sing   Evidence   of   Citizenship. 

"1216.  Fraudulently  Acquiring  or  Improperly  Using  a  Passport. 

"1217.  General  Provisions  for  Subchapter  B. 

8  "Chapter  13.— OFFENSES  INVOLVING  GOVERNMENT 

9  PROCESSES 

10  "Subchapter   A. — General   Obstructions  of   Government 

11  Functions 

"Sec. 

"1301.  Obstructing  a  Government  Function  by  Fraud. 

"1302.  Obstructing  a  Government  Function  by  Physical  Interference. 

"1303.  Impersonating  an  Official. 

12  "Subchapter  B. — Obstructions  of  Law  Enforcement 

"Sec. 

"1311.  Hindering  Law  Enforcement. 

"1312.  Bail  Jumping. 

"1313.  Escape. 

"1314.  Providing  or  Possessing  Contraband  in  a  Prison. 

"1315.  Flight  to  Avoid  Prosecution  or  Appearing  as  a  Witness. 


9488 


1  "Subchapter  C. — Obstructions  of  Justice 

"Sec. 

"1321.  Witness  Bribery. 

"1322.  Corrupting  a  Witness  or  an  Informant. 

"1323.  Tampering  with  a  Witness  or  an  Informant. 

"1324.  Retaliating  against  a  Witness  or  an  Informant. 

"1325.  Tampering  with  Physical  Evidence. 

"1326.  Improperly  Influencing  a  Juror. 

"1327.  Monitoring  Jury  Deliberations. 

"1328.  Demonstrating  to  Influence  a  Judicial  Proceeding. 

2  "Subchapter  D. — Contempt  Offenses 

"Sec. 

"1331.  Criminal  Contempt. 

"1332.  Falling  to  Appear  as  a  Witness. 

"1333.  Refusing  to  Testify  or  to  Produce  Information. 

"1334.  Obstructing  a  Proceeding  by  Disorderly  Conduct. 

"1335.  Disobeying  a  Judicial  Order. 

3  "Subchapter  E. — Perjury,  False  Statements,  and  Related 

4  Offenses 

"Sec. 

"1341.  Perjury. 

"1342.  False  Swearing. 

"1343.  Making  a  False  Statement. 

"1344.  Tampering  with  a  Government  Record. 

"1345.  General  Provisions  for  Subchapter  E. 

5  "Subchapter  F. — Commercial    Bribery    and    Related 
g  Offenses 

"Sec. 

"1351.  Bribery. 

"1352.  Graft. 

"1353.  Trading  in  Government  Assistance. 

"1354.  Trading  in  Special  Influence. 

"1355.  Trading  in  Public  OflBce. 

"1356.  Speculating  on  Oflficial  Action  or  Information. 

"1357.  Tampering  with  a  Public  Servant. 

"1358.  Retaliating  against  a  Public  Servant. 

"1359.  General  Provisions  for  Subchapter  F. 

7  "Chapter  14.— OFFENSES  INVOLVING  TAXATION 

8  "Subchapter  A. — Internal  Revenue  Offenses 

"Sec. 

"1401.  Tax  Evasion. 

"1402.  Disregarding  a  Tax  Obligation. 

"1403.  Alcohol  and  Tobacco  Tax  Offenses. 

"1404.  Definitions  for  Subchapter  A. 

9  "Subchapter  B. — Customs  Offenses 

"Sec. 

"1411.  Smuggling. 

"1412.  Trafficking  in  Smuggled  Property. 

"1413.  Receiving  Smuggled  Property. 

"1414.  Gcnernl  Provisions  for  Subchapter  B. 

10  "Chapter  15.— OFFENSES  INVOLVING  INDIVIDUAL  RIGHTS 

11  "Subchapter  A. — Offenses  Involving  Civil  Rights 

"Sec. 

"1501.  Interfering  with  Civil  Rights. 

"1502.  Interfering  with  Civil  Rights  under  Color  of  Law. 

"1503.  Interfering  with  a  Federal  Benefit. 

"1504.  Unlawful  Discrimination. 

"1505.  Interfering  with  Speech  or  Assembly  Related  to  Civil  Rights  Activities. 

"1506.  Strikebreaking. 


9489 


1  "Subchapter  B. — Offenses  Involving  Political  Rights 

"Sec. 

"1511.  Obstructing  an  Election. 

"1512.  Obstructing  Registration. 

"1513.  Obstructing  a  Political  Campaign. 

"1514.  Interfering  with  a  Federal  Benefit  for  a  Political  Purpose. 

"1515.  Misusing  Authority  over  Personnel  for  a  Political  Purpose. 

"1516.  Soliciting  a  Political  Contribution  as  a  Federal  Public  Servant  or  in  a 

Federal  Building. 
"1517.  Making  a  Political  Contribution  as  a  Foreign  National. 
"1518.  Making  an  Excess  Campaign  Expenditure. 
"1519.  Definitions  for  Subchapter  B. 

2  "Subchapter  C. — Offenses  Involving  Privacy 

"Sec. 

"1521.  Eavesdropping. 

"1522.  Trafficking  in  an  Eavesdropping  Device. 

"1523.  Possessing  an  Eavesdropping  Device. 

"1524.  Intercepting  Correspondence. 

"1525.  Revealing  Private  Information  Submitted  for  a  Government  Purpose. 

"1526.  Definitions  for  Subchapter  C. 

3  "Chapter  16.— OFFENSES  INVOLVING  THE  PERSON 

4  "Subchapter  A. — Homicide  Offenses 

"Sec. 

"1601.  Murder. 

"1602.  Manslaughter. 

"1603.  Negligent  Homicide. 

5  "Subchapter  B. — Assault  Offenses 

"Sec. 

"1611.  Maiming. 

"1612.  Aggravated  Battery. 

"1613.  Battery. 

"1614.  Menacing. 

"1615.  Terrorizing. 

"1616.  Communicating  a  Threat. 

"1617.  Reckless  Endangerment. 

"1618.  General  Provisions  for  Subchapter  B. 

6  "Subchapter  C. — Kidnapping  and  Related  Offenses 

"Sec. 

"1621.  Kidnapping. 

"1622.  Aggravated  Criminal  Restraint. 

"1623.  Criminal  Restraint. 

"1624.  General  Provisions  for  Subchapter  C. 

7  "Subchapter  D.— Hijacking  Offenses 

"Sec. 

"1631.  Aircraft  Hijacking. 

"1632.  Commandeering  a  Vessel. 

8  "Subchapter  E. — Sex  Offenses 

"Sec. 

"1641.  Rape. 

"1642.  Sexual  Assault. 

"1643.  Sexual  Abuse  of  a  Mlrfor. 

"1644.  Sexual  Abuse  of  a  Ward. 

"1645.  Unlawful  Sexual  Contact. 

"1646.  General  Provisions  for  Subchapter  E. 


9490 


6 

1  "Chapter  17.— OFFENSES  INVOLVING  PROPERTY 

2  "Subchapter  A. — Arson  and  Other  Property  Destruction 

3  Offenses 

"Sec. 

"1701.  Arson. 

"1702.  Aggravated  Property  Destruction. 

"1703.  Property  Destruction. 

"1704.  General  Provisions  for  Subchapter  A. 

4  "Subchapter  B. — Burglary  and  Other  Criminal  Intrusion 

5  Offenses 

'•Sec. 

"1711.  Burglary. 

"1712.  Criminal  Entry. 

"1713.  Criminal  Trespass. 

"1714.  Stowing  Away. 

"1715.  Possessing  Burglar's  Tools. 

"1716.  Definitions  for  Subchapter  B. 

6  "Subchapter  C. — Robbery,  Extortion,  and  Blackmail 

"Sec. 

"1721.  Robbery. 

"1722.  Extortion. 

"1723.  Blackmail. 

"1724.  General  Provisions  for  Subchapter  C. 

7  "Subchapter  D.— Theft  and  Related  Offenses 

"Sec. 

"1731.  Theft. 

"1732.  Trafficking  in  Stolen  Property. 

"1733.  Receiving  Stolen  Property. 

"1734.  Executing  a  Fraudulent  Scheme. 

"1735.  Bankruptcy  Fraud. 

"1736.  Interfering  with  a  Security  Interest. 

"1737.  Fraud  in  a  Regulated  Industry. 

"1738.  Consumer  Fraud. 

"1739.  General  Provisions  for  Subchapter  D. 

8  "Subchapter  E.— Counterfeiting,  Forgery,  and  Related  Offenses 

"Sec. 

"1741.  Counterfeiting. 

"1742.  Forgery. 

"1743.  Criminal  Endorsement  of  a  Written  Instrument. 

"1744.  Criminal  Issuance  of  a  Written  Instrument. 

"1745.  Trafficking  in  a  Counterfeiting  Implement. 

"1746.  Definitions  for  Subchapter  E. 

9  "Subchapter  F.— Commercial  Bribery  and  Related  Offenses 

"Sec. 

"1751.  Commercial  Bribery. 
"1752.  Labor  Bribery. 
"1753.  Sports  Bribery. 

10  "Subchapter  G. — Investment,  Monetary,  and  Antitrust 


11 


Offenses 

"Sec. 

"1761.  Securities  Offensea. 

"1762.  Monetary  Offenses. 

"1763.  Commodities  Exchange  Offenses. 

"1764.  Antitrust  Offenses. 


9491 


1  "Chapter  18.— OFFENSES    INVOLVING      PUBLIC    ORDER 

2  SAFETY,  HEALTH,  AND  WELFARE 

3  "Subchapter  A.  Organized  Crime  Offenses 

4  "Subchapter  B. — Drug  OfiFenses 

"Sec. 

"1811.  Trafficking  in  an  Opiate. 

"1812.  Trafficking  In  Drugs. 

"1813.  Possessing  Drugs. 

"1814.  Violating  a  Drug  Regulation. 

"1815.  General  Provisions  for  Subchapter  B. 

5  "Subchapter  C. — Explosives  and  Firearms  Offenses 

"Sec. 

"1821.  Explosives  Offenses. 

"1822.  Firearms  Offenses. 

"1823.  Using  a  Weapon  in  the  Course  of  a  Crime. 

"1824.  Possessing  a  Weapon  aboard  an  Aircraft. 

6  "Subchapter  D.— Riot  Offenses 

"Sec. 

"1831.  Leading  a  Riot. 

"1832.  Providing  Arms  for  a  Riot. 

"1833.  Engaging  in  a  Riot. 

"1834.  Definition  for  Subchapter  D. 

7  "Subchapter  E. — Gambling,  Obscenity,  and  Prostitution 

8  Offenses 

"Sec. 

"1841.  Engaging  in  a  Gambling  Business. 
"1842.  Disseminating  Obscene  Material. 
"1843.  Conducting  a  Prostitution  Business. 

9  "Subchapter  F.— Public  Health  Offenses 

"Sec. 

"1851.  Fraud  in  a  Health  Related  Industry. 

"1852.  Distributing  Adulterated  Food. 

"1853.  Environmental  Pollution. 

10  "Subchapter  G. — Miscellaneous  Offenses 

"Sec. 

"1861.  Failing  to  Obey  a  Public  Safety  Order. 

"1862.  Violating  State  or  I>ocal  Law  in  an  Enclave. 

11  "PART  III.— SENTENCES 

12  "Chapter  20.— GENERAL  PROVISIONS 

"Sec. 

"2001.  Authorized  Sentences. 

"2002.  Presentence  Reports. 

"2003.  Imposition  of  a  Sentence. 

"2004.  Order  of  Criminal  Forfeiture. 

"2005.  Order  of  Notice  to  Victims. 

"2006.  Order  of  Restitution. 

"2007.  Review  of  a  Sentence. 

"2008.  Implementation  of  a  Sentence. 

13  "Chapter  21.— PROBATION 

"Sec. 

"2101.  Sentence  of  Probation. 

"2102.  Imposition  of  a  Sentence  of  Probation. 

"2103.  Conditions  of  Probation. 

"2104.  Running  of  a  Term  of  Probation. 

"2105.  Revocation  of  Probation. 

"2106.  Implementation  of  a  Sentence  of  Probation. 


9492 


1  "Chapter  22.— FINES 

"Sec. 

"2201.  Sentence  of  Fine. 

"2202.  Imposition  of  a  Sentence  of  Fine. 

"2203.  Modification  or  Remission  of  Fine. 

"2204.  Implementation  of  a  Sentence  of  Fine. 

2  "Chapter  23.— IMPRISONMENT 

"Sec. 

"2301,  Sentence  of  Imprisonment. 

"2302.  Imposition  of  a  Sentence  of  Imprisonment. 

"2303.  Parole   Term   and    Contingent    Prison   Term    Included   in    Sentence    of 

Imprisonment. 
"2304.  Multiple  Sentences  of  Imprisonment. 
"2305.  Calculation  of  Term  of  Imprisonment. 
"2306.  Implementation  of  a  Sentence  of  Imprisonment  and  Parole  therefrom. 

3  "PART  IV.— ADMINISTRATION  AND 

4  PROCEDURE 

5  "Chapter  30.— INVESTIGATIVE  AND  LAW  ENFORCEMENT 

6  AUTHORITY 

7  "Subchapter  A. — Investigative  Authority 

"Sec. 

"3001.  Investigative  Authority  over  Offenses  within  this  Title. 

"3002.  Investigative  Authority  over  Offenses  outside  this  Title. 

8  "Subchapter  B. — Law  Enforcement  Authority 

"Sec. 

"3011.  Federal  Bureau  of  Investigation. 

"3012.  Drug  Enforcement  Administration. 

"3013.  Department  of  the  Treasury. 

"3014.  Postal  Service. 

"3015.  United  States  Marshals  Service. 

"3016.  United  States  Probation  Service. 

"3017.  Bureau  of  Prisons. 

"3018.  Immigration  and  Naturalization  Service. 

"3019.  Department  of  the  Interior. 

9  "Chapter  3L— ANCILLARY  INVESTIGATIVE  AUTHORITY 

10  "Subchapter  A. — Interception  of  Communications 

"Sec. 

"3101.  Authorization  for  Interception. 

"3102.  Application  for  an  Order  for  Interception. 

"3103.  Issuance  of  an  Order  for  Interception. 

"3104.  Interception  without  Prior  Authorization. 

"3105.  Records  and  Notice  of  Interception. 

"3100.  Use  of  Information  Obtained  from  an  Interception. 

"3107.  Report  of  Interception. 

"3108.  Definitions  for  Subchapter  A. 

11  "Subchapter  B. — Compulsion  of  Testimony  of  Witnesses 

"Sec. 

"8111.  Compulsion  of  Testimony  Generally. 
"3112.  Court  or  Grand  Jury  Proceedings. 
"3113.  Administrative  Proceedings. 
"3114.  Congressional  Proceedings. 
"3115.  Deflnition,s  for  Subchapter  B. 

12  "Subchapter  C. — Protection  of  Witnesses 

"Sec. 

"3121.  Facilities  for  Witness  Protection. 

"3122.  Reimbursement  for  Witness  Protection  Expenses. 

"3123.  Definitions  for  Subchapter  C. 


9493 

9 

1  "Subchapter  D. — Payment  of  Rewards 

"Sec. 

"3131.  Rewards  for  Apprehending  Offenders. 

2  "Chapter  32.— RENDITION  AND  EXTRADITION 

3  "Subchapter  A. — Rendition 

"Sec. 

"3201.  Interstate  Agreement  on  Detainers. 

"3202.  Rendition  of  a  Fugitive. 

"3203.  General  Provisions  for  Subchapter  A. 

4  "Subchapter  B. — Extradition 

"Sec. 

"3211.  Scope  and  Limitation  of  Extradition  Provisions. 

"3212.  Extradition  Procedure. 

"3213.  Warrant  of  Surrender. 

"3214.  Waiver. 

"3215.  Appeal. 

"3216.  Return  to  the  United  States. 

"3217.  General  Provisions  for  Subchapter  B. 

5  "Chapter  33.— JURISDICTION  AND  VENUE 

6  "Subchapter  A. — Jurisdiction 

"Sec. 

"3301.  Jurisdiction  of  District  Courts  over  Offenses. 

"3302.  Jurisdiction  of  United  States  Magistrates  over  OffenseB. 

"3303.  Jurisdiction  to  Order  Arrests  for  Offenses. 

7  "Subchapter  B. — Venue 

"Sec. 

"3311.  Venue  for  an  Offense  Committed  in  More  than  One  District. 

"3312.  Venue  for  an  Offense  Committed  outside  any  District. 

"3313.  Venue  if  a  New  District  or  Division  is  Established. 

8  "Chapter  34.— APPOINTMENT  OF  COUNSEL 

"Sec. 

"3401.  District  Plans  for  Appointment  of  Counsel. 

"3102.  Appointment  of  Counsel. 

"3403.  Compensation  of  Counsel. 

"3404.  Defender  Organizations. 

"3405.  General  Provisions  for  Chapter  34. 

9  "Chapter  35.— RELEASE    AND    CONFINEMENT    PENDING 

10  JUDICIAL  PROCEEDINGS 

11  "Subchapter  A. — Release  Pending  Judicial  Proceedings 

"Sec. 

"3501.  Release  Authority  Generally. 

"3502.  Release  Pending  Trial  in  a  Non-Capital  Case. 

"3503.  Release  Pending  Trial  in  a  Capital  Case. 

"3504.  Release  Pending  Sentence  or  Appeal. 

"3505.  Release  of  a  Material  Witness. 

"3506.  Appeal  from  Denial  of  Release. 

"3507.  Release  in  a  Case  Removed  from  a  State  Court. 

"3508.  Surrender  of  an  Offender  by  a  Surety. 

"3509.  Security  for  Peace  and  Good  Behavior. 

12  "Subchapter  B. — Confinement  Pending  Judicial  Proceed- 

13  '"S« 

"Sec. 

"3511.  Commitment  of  an  Arrested  Person. 

"3512.  Discharge  of  an  Arrested  But  Unconvicted  Person. 


9494 


10. 

1  "Chapter  36.— DISPOSITION  OF  JUVENILE  OR  INCOMPE- 

2  TENT  OFFENDERS 

3  "Subchapter  A. — Juvenile  Delinquency 

"Sec. 

"3601.  Surrender  of  a  Juvenile  Delinquent  to  State  Authorities. 

"3602.  Arrest  and  Detention  of  a  Juvenile  Delinquent. 

"3603.  Juvenile  Delinquency  Proceedings. 

"3604.  Parole  of  a  Juvenile  Delinquent. 

"3605.  Use  of  Juvenile  Delinquency  Records. 

"3606.  Definitions  for  Subchapter  A. 

4  "Subchapter  B. — Offenders  With  Mental  Disease  or  Defect 

"Sec. 

"3611.  Determination  of  Mental  Competency  to  Stand  Trial. 

"3612.  Determination  of  the  Existence  of  Insanity  at  the  Time  of  the  Offense. 

"3613.  Hospitalization  of  a  Person  Acquitted  by  Reason  of  Insanity. 

"3614.  Hospitalization  of  a  Convicted  Person  Suffering  from  Mental  Disease  or 

Defect. 
"3615.  Hospitalization  of  an  Imprisoned  Person  Suffering  from  Mental  Disease 

or  Defect. 
"3616.  Hospitalization  of  a  Person  Due  for  Release  but  Suffering  from  Mental 

Disease  or  Defect. 
"3617.  General  Provisions  for  Subchapter  B. 

5  "Chapter  37.— PRETRIAL   AND    TRIAL    PROCEDURE,   EVI- 

6  DENCE,  AND  APPELLATE  REVIEW 

7  "Subchapter  A. — Pretrial  and  Trial  Procedure 

"Sec. 

"3701.  Pretrial  and  Trial  Procedure  in  General. 

"3702.  Rulemaking  Authority   of  the   Supreme   Court   for  Rules   of   Criminal 
Procedure. 

8  "Subchapter  B. — Evidence 

"Sec. 

"3711.  Evidence  in  General. 

"3712.  Rulemaking  Authority  of  the  Supreme  Court  for  Rules  of  Evidence. 

"3713.  Admissibility  of  Confessions. 

"3714.  Admissibility  of  Evidence  in  Sentencing  Proceedings. 

9  "Subchapter  C. — Appellate  Review 

"Sec. 

"3721.  Appellate  Review  in  General. 

"3722.  Rulemaking  Authority  of  the   Supreme  Court  for   Rules   of   Appellate 

Procedure. 

"3723.  Appeal  by  a  Defendant. 

"3724.  Appeal  by  the  Government. 

"3725.  Review  of  a  Sentence. 

10  "Chapter  38.— POSTSENTENCE  ADMINISTRATION 

11  "Subchapter  A. — Probation 

"Sec. 

"3801.  Supervision  of  Probation. 

"3802.  Appointment  of  Probation  Officers. 

"3803.  Duties  of  Probation  Officers. 

"3804.  Transportation  of  a  Probationer. 

"3805.  Transfer  of  Jurisdiction  over  a  Probationer. 

"3806.  Arrest  and  Return  of  a  Probationer. 

"3807.  Special  Probation  and  Expungement  Procedures  for  Drug  Possessors. 


I 


9495 
11 

1  "Subchapter  B. — Fines 

"Sec. 

"3811.  Payment  of  a  Fine. 

"3812.  Collection  of  an  Unpaid  Fine. 

"3813.  Lien  Provisions  for  Satisfaction  of  an  Unpaid  Fine. 

2  "Subchapter  C. — Imprisonment 

"Sec. 

"3821.  Imprisonment  of  a  Convicted  Person. 

"3822.  Temporary  Release  of  a  Prisoner. 

"3823.  Transfer  of  a  Prisoner  to  State  Authority. 

"3824.  Release  of  a  Prisoner. 

"3825.  Inapplicability  of  the  Administrative  Procedure  Act. 

3  "Subchapter  D.— Parole 

"Sec. 

"3831.  Consideration  of  a  Prisoner  for  Release  on  Parole. 

"3832.  Pre-Parole  Reports. 

"3833.  Parole  Interview  Procedure. 

"3834.  Term  and  Conditions  of  Parole. 

"3835.  Revocation  of  Parole. 

"3836.  Appeal  from  Parole  Commission  Determination. 

"3837.  Inapplicability  of  the  Administrative  Procedures  Act. 

4  "PART  v.— ANCILLARY  CIVIL  PROCEEDINGS 

5  "Chapter  40— ANCILLARY  PUBLIC  CIVIL  PROCEEDINGS 

6  "Subchapter  A. — Civil  Forfeiture 

"Sec. 

"4001.  Civil  Forfeiture  Proceeding. 

"4002.  Protective  Order. 

"4003.  Execution  of  Civil  Forfeiture. 

"4004.  Applicability  of  Other  Civil  Forfeiture  Provisions. 

"4005.  Definitions  for  Subchapter  A. 

7  "Subchapter  B. — Civil  Restraint  of  Racketeering 

"Sec. 

"4011.  Civil  Action  to  Restrain  Racketeering. 

"4012.  Civil  Restraint  Procedure. 

"4013.  Civil  Investigative  Demand. 

8  "Subchapter  C. — Injunctions 

"Sec. 

"4021.  Injunctions  Against  Fraud. 

9  "Chapter  41.— ANCILLARY  PRIVATE   CIVIL  REMEDIES 

10  "Subchapter  A. — Private  Actions  for  Damages 

"Sec. 

"4101.  Civil  Action  against  a  Racketeering  Offender. 

"4102.  Civil  Action  against  a  Fraud  Offender. 

"4103.  Cvil  Action  against  an  Eavesdropping  Offender. 

11  "Subchapter  B. — Actions  for  Compensation  of  Victims  of 

12  Crime 

"Sec. 

"4111.  Establishment  of  a  Victim  Compensation  Fund. 

"4112.  Claim  for  Compensation. 

"4113.  Limitation  on  Compensation. 

"4114.  Subrogation. 

"4115.  Definitions  for  Subchapter  B. 


9496 

12 

1  "PART  I.— GENERAL  PROVISIONS  AND 

2  PRINCIPLES 

"Chapter 

"1.  General  Provisions 

"2.  Jurisdiction 

"3.  Culpable  States  of  Mind 

"4.  Complicity 

"5.  Bars  and  Defenses 

3  "Chapter  1.— GENERAL  PROVISIONS 

"Subchapter 

"A.  Matters  Relating  to  Purpose  and  Application. 

"B.  Matters  Relating  to  Construction. 

4r      "Subchapter  A. — Matters  Relating  to  Purpose  and  Application 

"Sec. 

"101.  General  Purpose. 

"102.  General  Principle  of  Criminal  Liability. 

"103.  Application. 

"104.  Civil  Remedies  and  Powers  Unimpaired. 

5  "§101.  General  Purpose 

6  "The  general  purpose  of  this  title  is  to  establish  justice  in  the  con- 

7  text  of  a  federal  system  by: 

g  "(a)  defining  and  providing  notice  of  conduct  that  indefensi- 

9  bly  causes  or  threatens  harm  to  those  individual  or  public  interests 

\Q  for  which  federal  protection,  through  the  criminal  justice  system, 

l\  is  appropriate ; 

12  "(b)  prescribing  appropriate  sanctions  for  engaging  in  such 
j^3  conduct  that  will : 

14  "  ( 1 )  deter  such  conduct ; 

15  "(2)  protect  the  public  from  persons  who  engage  in  such 

16  conduct ; 

17  "(3)   assure  just  ptmishment  for  such  conduct; 

13  "(4)  promote  the  correction  and  rehabilitation  of  persons 

19  who  engage  in  such  conduct ;  and 

20  "(c)  establisliing  a  system  of  fair  and  expeditious  procedures 

21  for : 

22  "(1)  investigating  such  conduct  by  means  that  will  lead 

23  to  the  identification  of  persons  who  have  engaged  in  such 

24  conduct  and  that  will  safeguard  persons  who  have  not  en- 

25  gaged  in  such  conduct ; 

26  "(2)  determining  the  guilt  or  innocence  of  persons  charged 

27  with  engaging  in  such  conduct ;  and 

2g  "(3)    imposing   merited   sanctions   upon    persons    found 

29  guilty  of  such  conduct. 


9497 

13 

1  "§  102.  General  Principle  of  Criminal  Liability 

2  "A  person  commits  an  offense  under  this  title  only  if: 

3  "(a)  he  directly  or  indirectly  engages  in  conduct,  or  under  a  pro- 

4  vision  of  chapter  4  is  responsible  for  conduct,  described  as  an  offense 

5  in  a  section  set  forth  in  part  II  of  this  title ; 

6  "(b)  the  circumstances,  if  any,  described  in  the  section  exist  at  the 

7  time  of  the  conduct ; 

8  "(c)   the  results,  if  any,  described  in  the  section  are  caused  by  the 

9  conduct ; 

10  "(d)   the  states  of  mind  described  in  the  section,  or  required  by  the 

11  provisions  of  chapter  3,  exist  with  respect  to  the  described  conduct, 

12  circumstances,  and  results;  and 

13  "(c)   a  defense  or  an  affirmative  defense  that  is  properly  raised  and 

14  that  is  described  in  the  section,  described  in  <a  general-provisions  sec- 

15  tion  made  applicable  to  the  section,  or  otherwise  recognized  by  laiw, 

16  did  not  exist  at  the  time  of  the  conduct. 

17  "§  103.  Application 

18  "Except  as  otherwise  provided,  the  provisions  of  this  title  apply 

19  to  prosecutions  under  any  Act  of  Congress  other  than: 

20  "(a)  an  Act  of  Congress  applicable  exclusively  in  the  District 

21  of  Columbia; 

22  "(b)  the  Canal  Zone  Code;  or 

23  "(c)  the  Uniform  Code  of  Military  Justice  (10  U.S.C.  801  et 

24  seq.). 

25  This  title  does  not  apply  to  an  Act  of  Congress  described  in  subsection 

26  (a),  (b),  or  (c)  except  in  an  instance  in  which  specific  reference  is 

27  made  to  such  an  Act. 

28  Ǥ  104.  Civil  Remedies  and  Powers  Unimpaired 

29  "Except  as  otherwise  provided,  nothing  in  this  title  affects : 

30  "(a)  the  availability  or  terms  of  any  civil  or  administrative 

31  remedy  or  penalty ; 

32  "(b)  the  power  of  a  court,  through  civil  proceedings,  to  compel 

33  compliance  with  its  order,  decree,  process,  writ,  or  rule ;  or 

34:  "(c)  the  authority  of  a  court  to  direct  the  compensation  of  a 

35  complainant  for  loss. 

36  "Subchapter  B. — Matters  Relating  to  Construction 

"Sec. 

"111.  General  Definitions. 

"112.  General  Principles  of  Construction. 


9498 

14 

1  "§111.  General  Definitions 

2  "As  used  in  this  title  and  in  the  Federal  Kules  of  Criminal  Proce- 

3  dure  and  in  the  Kules  of  Procedure  for  the  Trial  of  Minor  Offenses 

4  before  United  States  Magistrates,  unless  the  meaning  is  modified  or 

5  replaced  by  a  definition  set  forth  in  another  section  for  application  to 

6  a  limited  portion  of  this  title,  or  unless  a  different  meaning  is  otherwise 

7  plainly  required : 

8  "'abet'  includes  counsel,  induce,  procure,  and  command; 

9  "  'actor'  means  the  person,  or  one  of  the  persons,  who  engaged 

10  in  the  conduct  charged,  whether  or  not  such  person  is  the  defend- 

1 1  ant  or  a  defendant  i  n  the  case ; 

12  "  'affirmative  defense'  means  a  defense  specifically  designated 

13  as  an  affirmative  defense  that  the  defendant  has  the  burden  of 

14  proving  by  a  preponderance  of  the  evidence  as  prescribed  by  Rule 

15  25.1  of  the  Federal  Rules  of  Criminal  Procedure ; 

16  "  'agent'  means  a  person  authorized  to  act  on  behalf  of  another 

17  person  or  a  government,  and,  in  the  case  of  an  organization  or  a 

18  government,  includes   (a)   a  partner,  director,  officer,  manager, 

19  and  representative ;  and  (b) ,  except  for  the  purpose  of  receipt  of 

20  service  of  process,  a  servant  and  employee ; 

21  "  'aid'  includes  facilitate ; 

22  "  'aircraft'  includes  any  craft  designed  for  navigation  in  air  or 

23  in  space ; 

24  "  'ammunition'  includes  an  ammunition  or  cartridge  case,  a 

25  primer,  a  bullet,  and  a  propellant  substance  designed  for  use  in  a 

26  firearm ; 

27  "  'anything  of  pecuniary  value'  means  (a)  anything  of  value  in 

28  the  form  of  money,  a  negotiable  instrument,  a  commercial  in- 

29  terest,  or  anything  else  the  primary  significance  of  which  is  eco- 

30  nomic  advantage;  or  (b)  any  other  property  or  service  that  has 
3j  a  value  in  excess  of  $100 ; 

32  "  'anything  of  value'  means  any  direct  or  indirect  gain  or  ad- 

33  vantage,  or  anything  that  might  reasonably  be  regarded  by  the 

34  beneficiary  as  a  direct  or  indirect  gain  or  advantage,  including  a 

35  direct  or  indirect  gain  or  advantage  to  any  other  person ; 

3g  "  'associate  nation'  means  a  nation  at  war  with  a  foreign  power 

37  with  which  the  United  States  is  at  war ; 

33  "  'attorney  for  the  government'  means  a  United  States  attorney, 

3g  an  assistant  T'nited  States  attorney,  a  special  assistant  Ignited 

40  States  attorney,  a  special  assistant  to  the  Attorney  General,  or 


9499 


15 


1  any  other  attorney  of  the  Department  of  Justice  authorized  by 

2  statute,  or  by  a  rule,  regulation,  or  order  issued  pursuant  thereto. 

3  to  act  as  an  attorney  for  the  government ; 

4  "  'Attorney  General'  means  the  Attorney  General  of  the  United 

5  States,  and,  unless  issued  in  conjunction  with  a  reference  to  anothei 

6  specified  officer  of  the  Department  of  Justice,  includes  any  officer 

7  of  the  Department  of  Justice  authorized  to  act  for  or  on  behalf  of 

8  the  Attorney  General ; 

9  "  'bar  to  prosecution'  means  a  ground  for  terminating  a  prose- 

10  cution  in  favor  of  a  defendant  on  a  ground  unrelated  to  guilt  or 

11  innocence; 

12  '"bodily  injury'  includes  (a)  a  cut,  abrasion,  bruise,  burn,  or 

13  disfigurement;   (b)  physical  pain;   (c)   illness;   (d)  impairment 

14  of  the  function  of  a  bodily  member,  organ,  or  mental  faculty; 

15  and  (e)  any  other  injury  to  the  body  no  matter  how  temporary; 

16  "  'building'  means  an  immovable  or  movable  structure  that  is 

17  at  least  partially  enclosed,  or  a  separate  part  of  such  a  structure, 

18  and  that  is  designed  for  use,  or  used,  in  whole  or  in  part,  as  (a) 

19  an  individual's  permanent  or  temporary  home  or  place  of  lodging ; 

20  (b)  a  place  for  persons  to  engage  in  matters  pertaining  to  govem- 

21  ment,  an  occupation  or  a  business  or  a  profession,  education, 

22  religion,  or  entertainment;  or   (c)    a  place  for  the  storage  of 

23  property  within  which,  because  of  its  size  or  other  characteristics, 

24  it  is  apparent  that  an  individual  could  be  present ; 

25  "  'Canal  Zone'  includes  (a)  the  area  designated  as  the  Canal 

26  Zone  by  sections  1  and  2  of  title  2  of  the  Canal  Zone  Code ;  and 

27  (b)  the  corridor  over  which  the  United  States  exercises  juris- 

28  diction  pursuant  to  the  provisions  of  Article  IX  of  the  General 

29  Treaty  of  Friendship  and  Cooperation  between  the  United  States 

30  of  America  and  the  Republic  of  Panama,  signed  March  2,  1936, 

31  to  the  extent  that  the  application  to  the  corridor  of  the  provisions 

32  of  this  title  is  consistent  with  the  nature  of  the  rights  of  the  United 

33  States  in  the  corridor  as  provided  by  treaty ; 

34  "  'cliapter'  means  a  chapter  of  this  title ; 

35  "  'class',  when  used  to  refer  by  letter  designation  to  a  particular 
3(i  category  of  felony  or  misdemeanor,  means  a  felony  or  misde- 
3Y  meanor  carrying  the  incidents  assigned  to  such  designation  by 
3g  the  provisions  of  part  III  of  this  title ; 

39  "  'commission  of  an  offense',  or  a  variant  thereof,  includes  the 

40  attempted  commission  of  an  offense,  the  consummation  of  an 


92-465  O  -  77  -  60 


9500 

16 

1  offense,  and  any  immediate  flight  after  the  commission  of  an 

2  offense ; 

3  "  'communicate'  means  to  impart  or  transfer  information,  or 

4  otherwise  to  make  information  available  by  any  means,  to  a  per- 

5  son  or  to  the  general  public ; 

6  "  'conduct'  includes  any  act,  any  omission,  and  any  possession ; 

7  "  'conduct  constituting  an  offense',  or  a  variant  thereof  using  the 

8  term  'crime'  or  'felony'  instead  of  'offense',  means  conduct  with 

9  the  state  of  mind,  under  the  circumstances,  and  with  the  results, 

10  required  for  the  commission  of  the  offense ; 

11  "  'consent'  includes  willing  assent,  but  does  not  include  assent 

12  given  by  a  person  (a)  who  is  legally  incompetent  to  authorize  the 

13  conduct  assented  to;  (b)  who  is  a  member  of  a  category  of  per- 

14  sons  whose  improvident  consent  is  sought  to  be  prevented  by  the 

15  law  describing  the  offense;  (c)  who  is,  by  reason  of  age,  mental 

16  disease  or  defect,  or  intoxication,  manifestly  unable,  or  known  by 

17  the  actor  to  be  imable,  to  make  a  reasonable  judgment  as  to  the 

18  nature  or  harmfulness  of  the  conduct  assented  to;  or  (d)  whose 

19  assent  is  induced  by  force,  threat,  intimidation,  or  deception ; 

20  "  'court"  includes  a  presiding  judge ; 

21  "  'court  of  the  United  States'  means  the  Supreme  Court  of  the 

22  United   States,  a  United  States  Court  of  Appeals,  a  United 

23  States  District  Court  established  pursuant  to  28  U.S.C.  132,  the 

24  United  States  District  Court  for  the  District  of  the  Canal  Zone, 

25  the  District  Court  of  Guam,  the  District  Court  of  the  Virgin 

26  Islands,  the  United  States  Court  of  Claims,  the  Tax  Court  of  the 

27  United  States,  the  United  States  Customs  Court,  the  United  States 

28  Court  of  Customs  and  Patent  Appeals,  or  the  United  States  Court 

29  of  Military  Appeals ; 

30  "  'crime'    means   a    felony    or    a    misdemeanor,    but    not    an 

31  infraction; 

32  "  'crime  of  violence'  means  (a)  an  offense  that  has  as  an  element 

33  of  the  offense  the  use,  attempted  use,  or  threatened  use  of  physical 

34  force  against  the  person  or  property  of  another;  or  (b)  any  other 

35  offense  that  is  a  felony  and  that,  by  its  nature,  involves  a  sub- 

36  stantial   risk  that  physical   force  against  the  pei-son  or  prop- 

37  erty  of  another  may  be  used  in  the  course  of  committing  the 

38  offense ; 

39  '"dangerous  weapon'  means  (a)  a  firearm;  (b)  a  destructive 

40  device;  or  (c)  any  other  weapon,  device,  instrument,  material,  or 


9501 


17 

1  substance,  whether  animate  or  inanimate,  that  as  used  or  ae 

2  intended  to  be  used  is  capable  of  producing  death  or  serious  bodily 

3  injury; 

4  "  'defense'  includes  (a)  anything  specifically  designated  as  a 

5  defense  by  a  statute,  or  by  a  regulation,  rule,  or  order  issued  pur- 

6  suant  thereto;  or  (b)  a  specific  exception,  exclusion,  or  exemption 

7  from  criminal  liability  described  in  a  statute  outside  this  title,  or 

8  in  a  regulation,  rule,  or  order  issued  pursuant  thereto ; 

9  "  'destructive  device'  means  an  explosive,  an  incendiary  mate- 

10  rial,  a  poisonous  or  infectious  material  in  a  form  that  can  readily 

11  be  used  to  cause  serious  bodily  injury,  or  a  material  that  can  be 

12  used  to  cause  a  nuclear  incident  as  defined  in  section  11  of  the 

13  Atomic  Energy  Act  of  1954,  as  amended  (42  U.S.C.  2014(q))  ; 

14  and  includes  a  bomb,  grenade,  mine,  rocket,  missile,  or  similar 

15  device  containing  an  explosive,  an  incendiary  material,  or  a  ma- 

16  terial  that  can  be  used  as  a  chemical,  biological,  or  radiological 

17  weapon ; 

18  "  'dwelling'  means  an  immovable  or  movable  structure  that  is 

19  at  least  partially  enclosed,  or  a  separate  part  of  such  a  structure, 

20  and  that  is  designed  for  use,  or  used,  in  whole  or  in  part,  as  an 

21  individual's  permanent  or  temporary  home  or  place  of  lodging; 

22  "'element  of  the  offense'  means  any  (a)  conduct;  (b)  state  of 

23  mind;  (c)  existing  circumstance;  or  (d)  result;  that  is  specified 

24  by  the  section  describing  the  offense  or  that,  with  respect  to 

25  a  state  of  mind,  is  required  by  section  303  for  the  commission 

26  of  the  offense ; 

27  "  'enterprise'  includes  any  business  undertaking  by  an  organi- 

28  zation  or  group ; 

29  "  'explosive'  means  a  chemical  compound,  a  mechanical  mix- 

30  ture,  or  any  other  combination  of  materials,  in  proportions,  quan- 

31  tities,  or  packaging  that  may  be  exploded  by  operation  of  fire, 

32  friction,  concussion,  percussion,  nuclear  fission,  or  nuclear  fusion ; 

33  "  'felony'  means  an  offense  for  which  a  term  of  imprisonment 

34  of  more  than  one  year  is  authorized  by  a  federal  statute,  or  would 

35  be  authorized  if  a  circumstance  giving  rise  to  federal  jurisdiction 

36  existed,  or,  if  qualified  by  the  word  'state',  'local',  or  'foreign',  an 

37  offense  for  which  such  a  term  is  authorized  by  such  state,  local,  or 

38  foreign  law ; 

39  "  'finance'  includes  providing  indirect  financing; 

40  "  'firearm'  means  a  weapon  that  can  expel,  or  that  can  readily  be 


9502 


18 


1  converted  to  expel,  a  projectile  by  the  action  of  an  explosive  or  a 

2  flammable  rocket  propellant,  and  includes  such  a  weapon,  loaded 

3  or  unloaded,  commonly  referred  to  as  a  gun,  pistol,  revolver,  rifle, 

4  shotgun,  machine  gim,  bazooka,  or  cannon ; 

5  "  'foreign  commerce'  means  commerce  between  a  state  and  a 

6  foreign  country,  or  from  a  state  to  a  foreign  country,  or  from  a 

7  foreign  country  to  a  state,  or  between  places  in  the  same  state 

8  through  a  foreign  country ; 

9  "  'foreign  dignitary'  means  (a)  the  chief  of  state  or  head  of 

10  government,  or  the  political  equivalent,  of  a  foreign  power;  (b) 

11  an  officer  of  cabinet  rank,  or  equivalent  or  higher  rank,  of  a 

12  foreign  power;  (c)  an  ambassador  of  a  foreign  power;  (d)  the 

13  chief  executive  officer  of  an  international  organization;  or  (e)  a 

14  person  who  has  previously  served  in  any  such  capacity; 

15  "  'foreign  official'  means  (a)  a  foreign  dignitary;  or  (b)  a  per- 

16  son  of  foreign  nationality  who  is  duly  notified  to  the  United  States 

17  as  an  officer  or  employee  of  a  foreign  power; 

18  "'foreign  power'  includes  (a)  a  foreign  government,  faction, 

19  party,  or  military  force,  or  persons  purporting  to  act  as  such, 

20  whether  or  not  recognized  by  the  United  States;  and  (b)  an  in- 

21  ternational  organization ; 

22  "  'found  guilty'  includes  acceptance  by  a  court  of  a  plea  of 

23  guilty  or  nolo  contendere ; 

24  "  'government'  means  (a)  the  government  of  a  nation,  a  state, 

25  or  a  political  subdivision  thereof;  (b)  a  branch  of  the  foregoing, 

26  including  the  executive,  legislative,  and  judicial  branches;   or 

27  (c)  a  government  agency ; 

28  "  'government  agency'  means  (a)  a  subdivision  of  the  executive, 

29  legislative,  judicial,  or  other  branch  of  a  government,  including  a 

30  department,  independent  establishment,  commission,  administra- 

31  tion,  authority,  board,  and  bureau;  or  (b)  a  corporation  or  other 

32  legal  entity  established  by,  and  subject  to  control  by,  a  govern- 

33  ment  or  governments  for  the  execution  of  a  governmental  or  inter- 

34  governmental  program ; 

35  "'group'  includes  (a)  an  assemblage  of  persons;  and  (b)  an 

36  association  of  persons,  whether  or  not  a  legal  entity ; 

37  "  'high  seas'  means,  in  accordance  with  international  law,  those 

38  parts  of  the  sea  that  are  not  included  in  the  territorial  sea  or  m 

39  tiie  inteiTial  waters  of  a  nation  or  state; 


9503 

19 

1  "  'immediate  family'  of  a  designated  individual  means  (a)  his 

2  spouse,  parent,  brother,  sister,  or  child,  or  a  person  to  whom  he 

3  stands  in  loco  parentis ;  or  (b)  any  other  person  living  in  his  house- 

4  hold  and  related  to  him  by  blood  or  marriage ; 

5  "  'incite',  or  a  variant  thereof,  means  to  urge  other  persons  to 

6  engage  imminently  in  conduct  in  circumstances  under  which  there 

7  is  a  substantial  likelihood  of  imminently  causing  such  conduct; 

8  "  'includes'  is  to  be  read  as  if  the  phrase  'but  is  not  limited  to' 

9  were  also  set  forth ; 

10  "  'individual'  means  a  human  being  who  has  been  born  and  who 

11  has  not  died; 

12  "  'in  fact'  means,  in  accordance  with  the  provisions  of  section 

13  303(a)  (1),  that  the  matter  to  which  the  phrase  applies  is  not  a 

14  matter  as  to  which  a  state  of  mind  must  be  proved ; 

15  "  'infraction'  means  an  offense  for  which  a  term  of  imprison- 

16  ment  of  five  days  or  less  is  authorized  by  a  federal  statute,  or  would 

17  be  authorized  if  a  circumstance  giving  rise  to  federal  jurisdiction 

18  existed,  or,  if  qualified  by  the  word  'state'  or  'local',  an  offense  for 

19  which  such  a  term  is  authorized  by  such  state  or  local  law ; 

20  "  'intentional',  or  a  variant  thereof,  has  the  meaning  pre- 

21  scribed  in  section  302  (a) ; 

22  "  'international  organization'  means  a  public  international  orga- 

23  nization  designated  as  such  pursuant  to  section  1  of  the  Inter- 

24  national  Organizations  Immunities  Act  (22  U.S.C.  288)  ; 

25  "  'internationally  protected  person'  has  the  meaning  prescribed 

26  in  section  2  of  the  Act  for  the  Prevention  and  Punishment  of 

27  Crimes  Against  Internationally  Protected  Persons,  as  amended 

28  by  section  221  of  the  Criminal  Code  Reform  Act  of  1977 ; 

29  "  'interstate  commerce'  means  commerce  between  one  state  and 

30  another  state,  or  from  one  state  to  another  state,  or  between  places 

31  in  the  same  state  through  another  state; 

32  "  'intoxication'  means  a  disturbance  of  a  mental  or  physical 

33  capacity  resulting  from  the  introduction  of  alcohol  or  a  drug  or 

34  other  substance  into  the  body ; 

35  "  'judge'  means  any  judicial  officer,  and  includes  a  justice  of  the 

36  Supreme  Court  and  a  magistrate ; 

37  "  'juror'  means  a  grand  juror  or  a  petit  juror,  and  includes  a 

38  person  who  has  been  selected  or  summoned  as  a  prospective 

39  juror; 


9504 


20 


1  "  'knowing',  or  a  variant  thereof,  has  the  meaning  prescribed 

2  in  section  302(b); 

3  "  'law  enforcement  officer'  means  a  public  servant  authorized  by 

4  law  or  by  a  government  agency  to  conduct  or  engage  in  the  preven- 

5  tion,  detection,  investigation,  or  prosecution  of  an  offense; 

6  "  'local'  means  of  or  pertaining  to  a  political  subdivision  within 

7  a  state ; 

8  "  'locality'  means  a  political  subdivision  within  a  state ; 

9  "  'mail'  includes  a  post  card,  postal  card,  letter,  envelope,  parcel, 

10  package,  newspaper,  magazine,  circular,  advertising  matter,  or 

11  mailbag  or  mail  container,  or  anything  contained  therein  (a)  that 

12  has  been  left  for  collection  in  or  adjacent  to  an  authorized 

13  depository  for  mail  matter;  (b)  that  is  under  the  care,  custody, 

14  or  control  of  the  United  States  Postal  Service ;  or  (c)  that,  having 

15  been  under  the  care,  custody,  or  control  of  the  United  States 

16  Postal  Service,  has  not  been  delivered  to  the  person  to  whom  it 

17  was  addressed ; 

18  "  'military'  means  relating  to  the  armed  forces  or  their  support- 

19  ing  agencies,  whether  land,  sea,  or  air  forces,  in  either  an  offensive 

20  or  a  defensive  capacity ; 

21  "  'misdemeanor'  means  an  offense  for  which  a  term  of  imprison- 

22  ment  of  one  year  or  less,  but  more  than  five  days,  is  authorized  by 

23  a  federal  statute,  or  would  be  authorized  if  a  circumstance  giving 

24  rise  to  federal  jurisdiction  existed,  or,  if  qualified  by  the  word 

25  'state',  'local',  or  'foreign',  an  offense  for  which  such  a  term  is 

26  authorized  by  such  state,  local,  or  foreign  law; 

27  "  'motor  vehicle'  means  a  self-propelled  vehicle  designed  to 

28  run  on  land  but  not  on  rails; 

29  "  'national  credit  institution'  means  (a)  a  bank  with  deposits 

80  insured  by  the  Federal  Deposit  Insurance  Corporation;  (b)  an 

81  institution  with  accounts  insured  by  the  Federal  Savings  and  Loan 

82  Insurance  Corporation;  (c)  a  credit  union  with  accounts  insured 

83  by  the  Administrator  of  the  National  Credit  Union  Administra- 

84  tion;  (d)  a  Federal  home  loan  bank  or  a  member,  as  defined  in 

35  section  2  of  the  Federal  Home  Loan  Bank  Act,  as  amended  (12 

36  U.S.C.  1422),  of  the  Federal  home  loan  bank  system;  or  (e)  a 

37  bank,  banking  association,  land  bank,  intermediate  credit  bank, 
88  bank  for  cooperatives,  production  credit  association,  land  bank 

39  association,  mortgage  association,  trust  company,  savings  bank,  or 

40  other  banking  or  financial  institution  organized  or  operating 

41  under  the  laws  of  the  United  States ; 


9505 

21 

1  "  'national  defense  emergency'  means  a  national  emergency 

2  that  is  proclaimed  in  accordance  with  title  II  of  the  National 

3  Emergencies  Act  (50  U.S.C.  1621  et  seq.)  and  that  involves  mili- 

4  tary  combat  operations  undertaken  in  connection  with  an  actual 

5  or  imminent  war  or  armed  attack  by  a  foreign  power  against  the 

6  United  States  or  its  armed  forces ; 

7  "  'negligent',  or  a  variant  thereof,  has  the  meaning  prescribed 

8  in  section  302(d) ; 

9  "  'objective',  when  used  with  reference  to  a  criminal  conspiracy, 

10  includes  the  commission  of  a  crime,  escape  from  the  scene  of  a 

11  crime,  distribution  of  the  fruits  of  a  crime,  and  any  measure  for 

12  concealing,  or  obstructing  justice  in  relation  to,  any  aspect  of 

13  the  conspiracy ; 

14:  "  'offense'  means  conduct  for  which  a  term  of  imprisonment  or  a 

15  fine  is  authorized  by  a  federal  statute,  or  would  be  authorized  if 

16  a  circumstance  giving  rise  to  federal  jurisdiction  existed,  or,  if 

17  qualified  by  the  word  'state',  'local',  or  'foreign',  conduct  for 

18  which  a  term  of  imprisonment  or  a  criminal  fine  is  authorized  by 

19  such  state,  local,  or  foreign  law ; 

20  "  'official  action'  means  a  decision,  opinion,  recommendation, 

21  judgment,  vote,  or  other  conduct  involving  an  exercise  of  discre- 

22  tion  by  a  public  servant  in  the  course  of  his  employment ; 

23  "  'official  detention'  means  (a)  detention  by  a  public  servant,  or 

24  under  the  direction  of  a  public  servant,  following  arrest ;  f ollow- 

25  ing  surrender  in  lieu  of  arrest;  following  a  charge  or  conviction 

26  of  an  offense,  or  an  allegation  or  finding  of  juvenile  delinquency; 

27  following  commitment  as  a  material  witness;  following  civil  com- 

28  mitment  in  lieu  of  criminal  proceedings  or  pending  resumption  of 

29  criminal  proceedings  being  held  in  abeyance ;  or  pending  extra- 

30  dition,  deportation,  or  exclusion ;  or  (b)  custody  by  a  public  serv- 

31  ant,  or  under  direction  of  a  public  servant,  for  purposes  incident 

32  to  the  foregoing,  including  transportation,  medical  diagnosis  or 

33  treatment,  court  appearance,  work,  and  recreation;  'official  de- 

34  tention'  does  not  include  supervision  or  other  restrictions  (other 

35  than  custody  during  specified  hours  or  days)  after  release  pending 

36  trial  or  appeal,  pursuant  to  the  provisions  of  subchapter  A  of 

37  chapter  35 ;  after  release  on  probation,  pursuant  to  the  provisions 

38  of  cliapter  21 ;  after  release  on  parole,  pursuant  to  the  provisions 

39  of  subchapter  D  of  chapter  38 ;  or  after  release  following  a  finding 

40  of  juvenile  delinquency,  pursuant  to  the  provisions  of  subchapter 

41  A  of  chapter  36 ; 


9506 

22 

1  "  'official  guest  of  the  United  States'  means  a  person  of  foreign 

2  nationality  who  has  been  designated  by  the  Secretary  of  State  as 

3  an  official  guest  of  the  United  States  and  who   is  in  the  United 

4  States  pursuant  to  such  designation ; 

5  "  'official  proceeding'  means  a  proceeding,  or  a  portion  thereof, 

6  that  is  or  may  be  heard  before  (a)  a  government  branch  or  agency ; 

7  or  (b)  a  public  servant  who  is  authorized  to  take  oaths,  including 

8  a  judge,  a  chairman  of  a  legislative  committee  or  subcommittee, 

9  a  referee,  a  hearing  examiner,  an  administrative  law  judge,  and  a 

10  notary ; 

11  "  'omission'  means  a  failure  by  a  person  to  perform  an  act  that 

12  he  has  a  legal  duty  to  perform ; 

13  "  'organization'  means  a  legal  entity,  other  than  a  government, 

14  established  or  organized  for  any  purpose,  and  includes  a  cor- 

15  poration,  company,  association,  firm,  partnership,  joint  stock 

16  company,    foundation,  institution,  trust,  estate,  society,  union, 

17  club,  church,  and  any  other  association  of  persons ; 

18  "  'paragraph'  means  a  paragraph  of  the  subsection  or  subdivi- 

19  sion  in  which  the  term  is  used ; 

20  "  'person'  means  (a)  an  individual;  or  (b),  except  when  used  to 

21  refer  to  the  victim  of  an  offense  involving  death  or  bodily  in- 

22  j  ury,  an  organization ; 

23  "  'President'  means  (a)  the  President  of  the  United  States;  or 

24  (b)  a  person  who  is  acting  as  President  under  the  Constitution 

25  and  laws  of  the  United  States ; 

26  "  'President-elect'  means  the  person  who  appears  to  be  the  suc- 

27  cessful  candidate  for  the  office  of  President,  as  ascertained  from 

28  the  results  of  the  general  election  held  to  determine  the  electors  of 

29  President  and  Vice  President  pursuant  to  3  U.S.C.  1  and  2 ; 

30  "  'property'  means  anything  of  value,  and  includes  (a)   real 

31  property,  including  things  growing  on,  affixed  to,  and  found  in 

32  land;    (b)   tangible  or  intangible  personal  property,  including 

33  rights,  privileges,  interests,  and  claims;  and  (c)  services;  except 

34  that,  if  used  to  refer  to  the  object  or  possible  object  of  damage, 

35  does  not  include  intangible  property  or  services; 

36  "  'property  of  another'  means  property  in  whicli  a  person  or 

37  government  has  an  interest  upon  which  the  actor  is  not  privileged 

38  to  infringe  without  consent,  whether  or  not  the  actor  also  has  an 

39  interest  in  the  property ; 


9507 

23 

1  "  'public  facility'  includes  (a)  a  facility  of  public  or  government 

2  communication,  transpoi-tation,  energy  supply,  water  supply,  or 

3  sanitation ;  (b)  a  facility  of  a  police,  fire,  or  public  health  agency ; 

4  (c)  a  facility  designed  for  use,  or  used,  as  a  means  of  national 

5  defense;  and  (d)  a  part  of  any  such  facility  or  any  property, 

6  structure,  or  apparatus  used  in  connection  with  or  in  support  of 

7  any  such  facility ; 

8  "  'public  servant'  means  an  officer,  employee,  adviser,  consultant, 

9  juror,  or  other  person  authorized  to  act  for  or  on  behalf  of  a  gov- 

10  ernment  or  serving  a  government,  and  includes  a  person  who  has 

11  been  elected,  nominated,  or  appointed  to  be  a  public  servant;  a 

12  federal  'public  servant'  does  not  include  a  District  of  Columbia 

13  public  servant; 

14  "  'railroad  veliicle'  means  a  locomotive  or  car  designed  to 

15  run  on  rails; 

16  "  'reckless',  or  a  variant  thereof,  has  the  meaning  prescribed 

17  in  section  302  ( c ) ; 

18  "  'section'  means  a  section  within  a  chapter  of  this  title; 

19  "  'self-induced  intoxication'  means  intoxication  caused   by  a 

20  substance  that  the  actor  knowingly  introduces  into  his  body  with 

21  knowledge  that  it  has,  or  with  reckless  disregard  of  the  risk  that 

22  it  may  have,  a  tendency  to  cause  intoxication ; 

23  "  'serious  bodily  injury'  means  bodily  injury  which  involves  (a) 

24  a  substantial  risk  of  death;   (b)   unconsciousness;   (c)   extreme 

25  physical  pain;  (d)  protracted  and  obvious  disfigurement;  or  (e) 

26  protracted  loss  or  impairment  of  the  function  of  a  bodily  member, 

27  organ,  or  mental  faculty ; 

28  "  'services'  means  anything  of  value  resulting  from  a  person's 

29  physical  or  mental  labor  or  skill,  or  from  the  use,  possession,  or 

30  presence  of  property,  and  includes  (a)  repairs  or  improvements  to 

31  property;  (b)  professional  services ;  (c)  private  or  public  or  gov- 

32  ernment  communication,  transportation,  energy,  water,  or  sani- 

33  tation  services;  (d)  lodging  accommodations;  and  (e)  admissions 

34  to  places  of  exhibition  or  entertainment ; 

35  "  'solicit',  when  used  in  the  description  of  an  oflFense,  includes 
t   36  importune,  approach  with  a  request  or  plea,  and  try  to  obtain  by 

37  asking  for;  and  is  not  limited  to  the  conduct  constituting  an 

38  offense  under  section  1003  (Criminal  Solicitation)  ; 

39  "  'state'  means  a  state  of  the  United  States,  the  District  of 

40  Columbia,  Puerto  Rico,  the  Canal  Zone,  the  Virgin  Islands, 


9508 

24 

1  American  Samoa,  Johnston  Island,  Midway  Island,  Wake  Island, 

2  Guam,  Kingman's  Reef,  or  any  other  territory  or  possession  of 

3  the  United  States ; 

4  "  'state  of  mind'  has  the  meaning  set  forth  in  section  301(a) ; 

5  "  'stolen'  property  means  property  that  has  been  the  subject 

6  of  any  criminal  taking,  including  theft,  executing  a  fraudulent 

7  scheme,  robbery,  extortion,  and  blackmail,  as  those  offenses  are 

8  described  in  this  title ; 

9  "  'subchapter'  means  a  subchapter  of  the  chapter  in  -which  the 

10  term  is  used ; 

11  "  'subdivision'  means  a  subdivision  of  the  rule  in  which  the 

12  term  is  used ; 

13  "  'subparagraph'  means  a  subparagraph  of  the  paragraph  in 

14  which  the  term  is  used ; 

15  "  'subsection'  means  a  subsection  of  the  section  in  which  the 

16  term  is  used ; 

17  "  'this  title'  means  title  18  of  the  United  States  Code ; 

18  "  'traffic'  means  (a)  to  cell,  transfer,  distribute,  dispense,  or 

19  otherwise  dispose  of  to  another  person  as  consideration  for  any- 

20  thing  of  value ;  or  (b)  to  buy,  receive,  possess,  or  obtain  control  of 

21  with  intent  to  do  any  of  the  foregoing ; 

22  "  'United  States,'  when  used  in  a  geographic  sense,  includes  (a) 

23  all  states;  (b)  all  places  subject  to  the  special  territorial  jurisdic- 

24  tion  of  the  United  States  that  are  described  in  section  203  (a)  (4) 

25  and  (a)  (5) ;  (c)  all  waters  subject  to  the  admiralty  and  maritime 

26  jurisdiction  of  the  United  States;  and  (d)  the  airspace  overlying 

27  such  states,  places,  and  waters ; 

28  "  'United  States',  when  used  in  other  than  a  geographic  sense, 

29  means  the  government  of  the  United  States ; 

30  "  'United  States  official'  means  a  federal  public  servant  who  is 

31  the  President,  the  President-elect,  the  Vice  President,  the  Vice 

32  President-elect,  a  member  of  Congress,  a  member-elect  of  Con- 

33  gress,  a  delegate  or  a  commissioner  of  Congress,  a  delegate-elect 

34  or  a  commissioner-elect  of  Congress,  a  Justice  of  the  Supreme 

35  Court,  or  a  member  of  the  executive  branch  of  govern nient  of 

36  cabinet  rank; 

37  "  'value,'  when  stated  in  monetary  terms,  means  the  aggregate 

38  value  in  terms  of  (a)  face,  par,  or  market  value;  (b)  original  or 

39  replacement  cost;  or  (c)  wholesale  or  retail  price;  whichever  of 

40  the  foregoing  is  greatest ; 


9509 

25 

1  "  'vehicle'  means  a  motor  vehicle,  railroad  vehicle,  vessel,  or 

2  aircraft ; 

8  "  'vessel'  means  a  self-propelled  or  wind-propelled  craft  de- 

4  signed  to  navigate  on  or  under  water; 

5  "  'Vice  President-elect'  means  (a)  the  person  who  appears  to 

6  be  the  successful  candidate  for  the  office  of  Vice  President,  as 

7  ascertained  from  the  results  of  the  general  election  held  to  deter- 

8  mine  the  electors  of  the  President  and  Vice  President  pursuant  to 

9  3  U.S.C.  1  and  2;  or  (b)  the  person  who  is  nominated  by  the 

10  President  for  the  office  of  Vice  President  pursuant  to  the  pro- 

11  visions  of  the  Twenty-fifth  Amendment  to  the  Constitution  of  the 

12  United  States ; 

13  "  'violate'  means  to  engage  in  conduct  that  is  described  as  an 

14  offense  proscribed,  prohibited,  declared  unlawful,  or  made  subject 

15  to  a  criminal  penalty ;  and 

16  "  'war'  means  (a)  a  war  declared  by  Congress  pursuant  to  sec- 

17  tion  8  of  Article  I  of  the  Constitution  of  the  United  States;  (b) 

18  a  war  declared  by  a  foreign  power  against  the  United  States; 

19  (c)  an  armed  attack  by  a  foreign  power  against  the  United  States 

20  or  its  armed  forces;  or  (d)  a  situation  in  wliich  armed  forces  of 

21  the  United  Spates  are  engaged  in  hostilities,  or  in  which  their 

22  imminent  involvement  in  hostilities  is  clearly  indicated  by  the 

23  circumstances,  and  concerning  which  the  President  has  submitted 

24  or  is  required  to  submit  a  report  to  the  Congress  pursuant  to  sec- 

25  tion  4  of  the  War  Powers  Resolution  (50  U.S.C.  1543) . 

26  "§  112.  General  Principles  of  Construction 

27  "(a)  Construction  IN  General. — The  provisions  of  this  title  shall 

28  be  construed  in  accordance  with  the  fair  import  of  their  terms  to 

29  effectuate  the  general  purposes  of  this  title. 

30  "(b)  Titles,  Headings,  and  Parenthetical  Explanations. — A 

31  title,  heading,  or  parenthetical  explanation  shall  not  be  construed  as 

32  limiting  or  otherwise  affecting  the  scope  or  application  of  the  language 

33  of  the  chapter,  subchapter,  section,  subsection,  rule,  or  subdivision  in 

34  /which  it  appears  or  to  which  it  refers. 

35  j      "(c)  Names  of  Offenses. — A  term  that  commonly  is  employed 

36  generically  to  refer  to  a  kind  of  offense  or  to  a  group  of  offenses,  but 

37  that  also  is  employed  as  a  title  of  a  section  describing  an  offense,  shall 

38  be  cons' rued  in  its  generic  sense  when  it  is  used  outside  such  section 

39  without  reference  to  the  number  of  such  section. 

40  "(d)  Number,  Gender,  AND  Tense. — A  term: 


9510 

26 

1  "(1)  that  is  used  in  the  singular  includes  and  applies  to  the 

2  plural  of  the  term ; 

3  "  (2)  that  is  used  in  the  plural  includes  and  appKes  to  the  singu- 

4  lar  of  the  term ; 

5  "(3)  that  signifies  the  masculine  gender  includes  and  applies  to 

6  the  feminine  gender  and  the  neuter  gender ;  and 

7  "(4)  that  is  used  in  the  present  tense  includes  the  future  tense 

8  and,  unless  a  different  construction  is  plainly  required,  the  past 

9  tense. 

10  "Chapter  2.— JURISDICTION 

"Sec. 

"201.  Federal  Jurisdiction. 

"202.  General  Jurisdiction  of  the  United  States. 

"203.  Special  Jurisdiction  of  the  United  States. 

"204.  Extraterritorial  Jurisdiction  of  the  United  States. 

"205.  Federal  Juri.sdiction  Generally  Not  Preemptive. 

11  "§201.  Federal  Jurisdiction 

12  "  (a)  Jurisdiction  in  General. — Federal  jurisdiction  over  an  offense 

13  described  in  this  title  includes : 

14  "(1)  the  general  jurisdiction  of  the  United  States,  as  set  forth 

15  in  section  202 ; 

16  "(2)  the  special  jurisdiction  of  the  United  States,  as  set  forth 

17  in  section  203 ;  and 

18  "(3)  the  extraterritorial  jurisdiction  of  the  United  States,  as 

19  set  forth  in  section  204. 

20  "(b)  Jurisdiction  Applicable  to  Specific  Offenses. — 

21  "(1)  If,  in  a  section  describing  an  offense,  there  is  a  separate 

22  subsection  in  which  one  or  more  circumstances  are  specified  as 

23  giving  rise  to  federal  jurisdiction  over  the  offense,  there  is  federal 

24  jurisdiction  over  the  offense : 

25  "(-A-)   if  such  a  circumstance  exists  or  lias  occurred  and 

26  the  offense  is  committed  within  : 

27  "(i)  the  general  jurisdiction  of  the  United  States;  or 

28  "(")  the  special  jurisdiction  of  the  United  States  to 

29  the  extent  that  such  jurisdiction  is  specified  as  such  a 

30  circumstance  in  the  separate  subsection ;  or 

81  "(B)  whetlier  or  not  such  a  circumstance  exists  or  has  oc- 

32  curred  if  the  offense  is  committed  within  the  extraterritorial 

33  jurisdiction  of  the  United  States  to  the  extent  applicable 

34  under  section  204. 

35  Federal  jurisdiction  may  be  alleged  as  resting  on  more  than  one 

36  of  such  circumstances,  but  proof  of  any  such  circumstance  is 


9511 

27 

1  sufficient  to  establish  the  existence  of  federal  jurisdiction  over  the 

2  offense.  Proof  of  more  than  one  of  such  circumstances  does  not 

3  increase  the  number  of  offenses  that  may  be  found  to  have  been 

4  committed.  If  federal  jurisdiction  over  an  offense  exists  by  virtue 

5  of  its  commission  during  another  offense,  jurisdiction  also  exists 

6  over  any  lesser  included  offense. 

7  "(2)  If,  in  a  section  describing  an  offense,  there  is  no  separate 

8  subsection  in  which  one  or  more  circumstances  are  specified  as 

9  giving  rise  to  federal  jurisdiction  over  the  offense,  there  is  federal 

10  jurisdiction  over  the  offense  if  it  is  committed  within : 

11  "  (A)  the  general  jurisdiction  of  the  United  States ; 

12  "(B)  the  special  jurisdiction  of  the  United  States;  or 

13  "(C)  the  extraterritorial  jurisdiction  of  the  United  States 

14  to  the  extent  applicable  under  section  204; 

15  unless  the  offense  is  described  as  a  violation  of  a  statute  outside 

16  this  title,  or  of  a  regulation,  rule,  or  order  issued  pursuant  thereto, 

17  in  which  case  there  is  federal  jurisdiction  over  the  oflFense  to  the 

18  extent  applicable  under  that  statute. 

19  "(c)   JuRiSDiCTiox  Not  ax  Element  of  Offense. — The  existence  of 

20  federal  jurisdiction  is  not  an  element  of  the  offense. 

21  "§202.  General  Jurisdiction  of  the  United  States 

22  "An  offense  is  committed  within  the  general  jurisdiction  of  the 

23  United  States  if  it  is  committed  within  the  United  States. 

24  Ǥ  203.  Special  Jurisdiction  of  the  United  States 

25  "An  offense  is  committed  within  the  special  jurisdiction  of  the 

26  United  States  if  it  is  committed  within  the  special  territorial  juris- 

27  diction,  the  special  maritime  jurisdiction,  or  the  special  aircraft  juris- 

28  diction  of  the  United  States,  as  set  forth  in  subsections  (a),  (b),  or 

29  (c). 

30  "(a)   Special  Territorlal  Jurisdiction. — The  special  territorial 

31  jurisdiction  of  the  United  States  includes: 

32  "(1)   real  property  that  is  reserved  or  acquired  for  the  use 

33  of  the  United  States  and  that  is  under  the  exclusive  or  concurrent 

34  jurisdiction  of  the  United  States,  and  a  place  purchased  or 

35  otherwise  acquired  by  the  United  States  with  the  consent  of  the 

36  legislature  of  the  state  in  which  such  place  is  located  for  the 

37  erection  of  a  building  or  other  structure ; 

38  "(2)  an  unorganized  territory  or  a  possession  of  the  United 

39  States ; 


9512 

28 

1  "(3)  the  Indian  country,  as  defined  in  section  231(a)  of  the 

2  criminal  Code  Reform  Act  of  (25  U.S.C. )  ; 

3  "(4)  an  island,  a  rock,  or  a  key  that  may,  at  the  discretion  of 

4  the  President,  be  considered  as  appertaining  to  the  United  States; 
6  and 

6  "(5)  a  facility  for  exploration  or  exploitation  of  natural  re- 

7  sources  constructed  or  operated  on  or  above  the  outer  continental 

8  shelf  as  defined  in  section  2(a)  of  the  Outer  Continental  Shelf 

9  LandsAct  (43  U.S.C.  1331(a)). 

10  "(b)  Special  Maritime  Jurisdiction. — The  special  maritime  juris- 

11  diction  of  the  United  States  includes: 

12  "(1)  the  high  seas; 

13  "(2)  any  other  waters  within  the  admiralty  and  maritime  juris- 

14  diction  of  the  United  States  and  outside  the  jurisdiction  of  any 

15  state; 

16  "(3)  a  vessel  within  the  admiralty  and  maritime  jurisdiction 

17  of  the  United  States,  and  outside  the  jurisdiction  of  any  state, 

18  that  belongs  in  whole  or  in  part  to : 

19  "  ( A )  the  United  States ; 

20  "  ( B )  a  state  or  locality ; 

21  "  ( C )  a  citizen  of  the  United  States ;  or 

22  "(D)  an  organization  created  by  or  under  the  laws  of  the 

23  United  States  or  of  a  state ;  and 

24  "(4)  a  vessel  registered,  licensed,  or  enrolled  under  the  laws 

25  of  the  United  States,  that  is  upon  the  waters  of  any  of  the  Great 

26  Lakes  or  the  waters  connecting  them,  or  upon  the  Saint  Lawrence 

27  River  where  it  constitutes  the  international  boundary  line. 

28  "(c)  Special  Aircraft  Jurisdiction. — The  special  aircraft  jurisdic- 

29  tion  of  the  United  States  includes : 

30  "(1)  an  aircraft  that  belongs  in  whole  or  in  part  to: 

31  "  ( A)  the  United  States ; 

32  "(B)  a  state  or  locality ; 

33  "(C)  acitizenof  the  United  States;  or 

34  "(D)  an  organization  created  by  or  under  the  laws  of  the 

35  United  States  or  of  a  state ; 

36  "(2)  a  civil  aircraft  of  the  United  States,  as  defined  in  section 

37  101  of  the  Federal  Aviation  Act  of  1D58,  as  amended  (49  U.S.C. 

38  1301) ; 


9513 


1  "(3)  a  public  aircraft  of  the  United  States,  as  defined  in  section 

2  101  of  the  Federal  Aviation  Act  of  1958,  as  amended  (49  U.S.C. 

3  1301); 

4  "(4)  any  other  aircraft  within  the  United  States; 

5  "(5)  any  other  aircraft  outside  the  United  States: 

6  "(A)  that  has  its  next  scheduled  destination  or  last  point 

7  of  departure  in  the  United  States,  and  that  next  lands  in  the 

8  United  States;  or 

9  "(B)  that  has  an  'offense',  as  defined  in  the  Convention 

10  for  the  Suppression  of  Unlawful  Seizure  of  Aircraft,  com- 

11  mitted  aboard,  and  that  lands  in  the  United  States  with  the 

12  alleged  offender  still  aboard ;  and 

13  "(6)  any  other  aircraft  leased  without  crew  to  a  lessee  who  has 

14  his  principal  place  of  business  in  the  United  States,  or,  if  the  lessee 

15  has  no  principal  place  of  business,  who  has  his  permanent  resi- 

16  dence  in  the  United  States ; 

17  during  the  period  that  such  aircraft  is  in  flight,  which  is,  for  the  pur- 

18  pose  of  this  subsection,  from  the  moment  when  all  the  external  doors 

19  of  such  aircraft  are  closed  following  embarkation  until  the  moment 

20  when  any  such  door  is  opened  for  disembarkation,  or,  in  the  case  of 

21  a  forced  landing,  until  a  competent  authority  takes  over  the  responsi- 

22  bility  for  the  aircraft  and  for  the  persons  and  property  aboard. 

23  "§204.  Extraterritorial  Jurisdiction  of  the  United  States 

24  "Except  as  otherwise  expressly  provided  by  statute,  or  by  treaty  or 

25  other  international  agreement,  an  offense  is  committed  within  the 

26  extraterritorial  jurisdiction  of  the  United  States  if  it  is  committed 

27  outside  the  general  or  special  jurisdiction  of  the  United  States  and : 

28  "(a)  the  offense  is  a  crime  of  violence  and  the  victim  or  in- 

29  tended  victim  is : 

30  "(1)  a  United  States  official ;  or 

31  "(2)  a  federal  public  servant  outside  the  United  States  for 

32  the  purpose  of  performing  his  official  duties ; 

33  "(b)  the  offense  is  treason,  sabotage  against  the  United  States, 

34  espionage,  disseminating  national  defense  information,  or  dis- 

35  seminating  or  receiving  classified  information ; 

36  "(c)  the  offense  consists  of : 

37  "  ( 1 )  counterfeiting  or  forgery  of,  or  uttering  of  a  counter- 

38  feited  or  forged  copy  of,  or  issuing  without  authority,  a  seal, 

39  currency,  security  instrument  of  credit,  stamp,  passport,  or 


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1  public  document  that  is  or  that  purports  to  be  issued  by  the 

2  United  States; 

3  "(2)  perjury  or  false  swearing  in  a  federal  ofBcial  proceed- 

4  ing; 

5  "(3)  making  a  false  statement  in  a  federal  government 

6  matter  or  a  federal  government  record ; 

7  "(4)  bribery  or  graft  involving  a  federal  public  servant; 

8  "(5)  fraud  against  the  United  States  or  theft  of  property 

9  in  which  the  United  States  has  an  interest ; 

10  "(6)  impersonation  of  a  federal  public  servant; 

11  "C^)  any  obstruction  or  impairment  of  a  federal  govern- 

12  ment  function,  if  committed  by  a  national  or  resident  of  the 

13  United  States; 

14  "(d)  the  offense  consists  of  the  manufacture  or  distribution  of 

15  narcotics  or  other  drags  for  import  into,  or  eventual  sale  or  dis- 

16  tribution  within,  the  United  States ; 

17  "  (e)  the  offense  consists  of  entry  of  persons  or  property  into  the 

18  United  States; 

19  "(f)  the  offense  consists  of  possessing  an  explosive  in  a  United 

20  States  Government  building; 

21  "(g)  the  offense  is  committed  in  M'holc  or  in  part  within  the 

22  United  States  and  the  accused  participates  outside  the  United 

23  States,  or  the  offense  constitutes  an  attempt,  a  conspiracy,  or  a 

24  solicitation  to  commit  a  crime  within  the  United  States ; 

25  "(h)  the  offense  is  committed  by  a  federal  public  servant,  other 

26  than  a  member  of  the  armed  forces  who  is  subject  to  court-martial 

27  jurisdiction  for  the  offense  at  the  time  he  is  charged  with  the  of- 

28  fense,  who  is  outside  the  United  States  because  of  his  official 

29  duties;  or  by  a  member  of  his  houscliold  residing  abroad  because 

30  of  sucli  public  servant's  official  duties;  or  by  a  person  accompany- 

31  ing  the  military  forces  of  the  United  States ; 

32  "(i)  the  offense  is  committed  by  or  against  a  national  of  the 

33  United  States  at  a  place  outside  the  jurisdiction  of  any  nation; 

34  or 

35  "(j)  the  offense  is  comprehended  by  the  generic  terms  of,  and 

36  is  committed  under  circumstances  specified  by,  a  treaty  or  other 

37  international  agreement,  to  which  the  United  States  is  a  party, 

38  that  provides  for,  or  requires  the  United  States  to  provide  for, 

39  federal  jurisdiction  over  such  offense. 


9515 

31 

1  "§205.  Federal  Jurisdiction  Generally  Not  Preemptive 

2  "(a)   In  General. — Except  as  otherwise  expressly  provided,  the 

3  existence  of  federal  jurisdiction  over  an  offense  does  not,  in  itself, 

4  preclude : 

5  "(1)  a  state  or  local  government  from  exercising  its  concurrent 

6  jurisdiction  to  enforce  its  laws  applicable  to  the  conduct  involved ; 

7  "(2)  an  Indian  tribe,  band,  community,  group,  or  pueblo  from 

8  exercising  its  concurrent  jurisdiction  in  Indian  country  to  enforce 

9  its  laws  applicable  to  the  conduct  involved ;  or 

10  "(3)   a  court-martial,  military  commission,  court  of  inquiry, 

11  provost  court,  or  other  military  court  of  the  United  States  from 

12  exercising  its  concurrent  jurisdiction  to  enforce  the  law  applicable 

13  to  the  conduct  involved  pursuant  to  the  Uniform  Code  of  Military 

14  Justice  (10  U.S.C.  801  et  seq.),  any  other  federal  statute,  or  the 

15  law  of  war. 

16  "(b)    Preemptive  Jurisdiction  Over  Certain  Offenses. — Upon 

17  order  of  the  Attorney  General,  the  assertion  of  federal  jurisdiction : 

18  "(1)  over  an  offense: 

19  "(-A.)  that  has  as  a  victim  or  intended  victim  a  United 

20  States  official,  a  foreign  official  or  a  member  of  his  imme- 

21  diate  family,  or  an  official  guest  of  the  United  States;  and 

22  "  ( B )  that  is  described  in : 

23  "(i)    section   1601    (Murder),   1602    (Manslaughter), 

24  1603  (Negligent  Homicide) ,  1611  (Maiming) ,  1612  ( Ag- 

25  gravated  Battery),  1613   (Battery),  1614   (Menacing), 

26  1621    (Kidnapping),   1622    (Aggravated   Criminal  Re- 

27  straint),  or  1623  (Criminal  Restraint)  ;  or 

28  "(ii)  section  1001  (Criminal  Attempt),  1002  (Crimi- 

29  nal  Conspiracy),  or  1003   (Criminal  Solicitation)   if  a 

30  crime  that  was  an  objective  of  the  attempt,  conspiracy, 

31  or  solicitation  is  an  offense  set  forth  in  subparagraph 

32  (A) ;  or 

33  "  (2)  over  an  offense  that  is  described  in : 

34  "(A)  subchapter  B  of  chapter  15 ; 

35  "(B)  section  1355  (Trading  in  Public  Office);  or 

36  "(C)  section  1503  (Interfering-  with  a  Federal  Benefit), 

37  1504  (Unlawful  Discrimination),  or  1616  (Communicating 

38  a  Threat),  to  the  extent  that  it  involves  conduct  proscribed 

39  by  the  Federal  Election  Campaign  Act  of  1971,  as  amended 

40  (2  U.S.C.  431  et  seq.); 


9516 

32 

1  shall  suspend,  to  the  extent  indicated  in  the  order,  the  exercise  of 

2  jurisdiction  by  a  state  or  local  government,  under  any  state  or  local 

3  law  applicable  to  the  conduct  involved,  until  the  order  is  rescinded 

4  by  the  Attorney  General. 

5  "Chapter  3.— CULPABLE  STATES  OF  MIND 

"Sec. 

"301.  State  of  Mind  Generally. 

"302.  'Intentional',  'Knowing',  'Reckless',  and  'Negligent'  States  of  Mind. 

"303.  Proof  of  State  of  Mind. 

6  "§301.  State  of  Mind  Generally 

7  "  (a)  State  of  Mind  Defined. — As  used  in  this  title,  'state  of  mind' 

8  means  the  mental  state  required  to  be  proved  with  respect  to  conduct, 

9  an  existing  circumstance,  or  a  result  set  forth  in  a  section  describing  an 

10  offense. 

11  "(b)  Terms  Used  To  Describe  States  of  Mind. — The  terms  used  to 

12  describe  the  different  states  of  mind  are  'intentional',  'knowing',  'reck- 

13  less',  and  'negligent',  and  variants  thereof. 

14  "(c)  States  of  Mind  Applicable  to  Conduct,  an  Existing  Cir- 

15  cumstance,  and  a  Kesult. — The  states  of  mind  that  may  be  specified 

16  as  applicable  to : 

17  "(1)  conduct  are  either 'intentional' or 'knowing' ; 

18  "(2)  an  existing  circumstance  are  either  'knowing',  'reckless', 

19  or 'negligent' ;  and 

20  "(3)  a  result  are  either  'intentional',  'knowing',  'reckless',  or 

21  'negligent'. 

22  "§  302.  Tntentionar,  'Knowing',  'Reckless',  and  'Negligent'  States 

23  of  Mind 

24  "The  following  definitions  apply  with  respect  to  an  offense  set  forth 

25  in  any  federal  statute : 

26  "(a)  'Intentional'. — A  person's  state  of  mind  is  intentional  with 

27  respect  to : 

28  "(1)  his  conduct  if  it  is  his  conscious  objective  or  desire  to 

29  engage  in  the  conduct ; 

30  "  (2)  a  result  of  his  conduct  if  it  is  his  conscious  objective  or  de- 

31  sire  to  cause  the  result. 

32  "(b)  'Knowing'. — A  person's  state  of  mind  is  knowing  with  respect 

33  to: 

34  "(1)  his  conduct  if  he  is  aware  of  the  nature  of  his  conduct; 

35  "(2)  an  existing  circumstance  if  he  is  aware  or  believes  that 

36  the  circumstance  exists; 

37  "(3)  a  result  of  his  conduct  if  he  is  aware  or  believes  that  his 

38  conduct  is  substantially  certain  to  cause  the  result. 


9517 


1  "(c)   'Reckless'. — A  person's  state  of  mind  is  reckless  with  re- 

2  spect  to : 

3  "(1)  an  existing  circumstance  if  he  is  aware  of  a  risk  that  the 

4  circumstance  exists  but  disregards  the  risk ; 

5  "(2)  a  result  of  his  conduct  if  he  is  aware  of  a  risk  that  the 

6  result  will  occur  but  disregards  the  risk ; 

7  except  that  awareness  of  the  risk  is  not  required  if  its  absence  is  due 

8  to  self-induced  intoxication.  The  risk  must  be  of  such  a  nature  and 

9  degree  that  to  disregard  it  constitutes  a  gross  deviation  from  the 

10  standard  of  care  that  a  reasonable  person  would  exercise  in  such  a 

11  situation. 

12  "(d)  'Negligent'. — A  person's  state  of  mind  is  negligent  with  re- 

13  spect  to : 

14  "(1)  an  existing  circumstance  if  he  ought  to  be  aware  of  a  risk 

15  that  the  circumstance  exists ; 

16  "(2)  a  result  of  his  conduct  if  he  ought  to  be  aware  of  a  risk 

17  that  the  result  will  occur. 

18  The  risk  must  be  of  such  a  nature  and  degree  that  to  fail  to  perceive 

19  it  constitutes  a  gross  deviation  from  the  standard  of  care  that  a  rea- 

20  sonable  person  would  exercise  in  such  a  situation. 

21  "§303.  Proof  of  State  of  Mind 

22  "Except  as  otherwise  expressly  provided,  the  following  provisions 

23  apply  to  an  offense  under  any  federal  statute : 

24  "(a)  Required  Proof  of  State  of  Mind. — A  state  of  mind  must  be 

25  proved  with  respect  to  each  element  of  an  offense,  except  that : 

26  "(1)  no  state  of  mind  must  be  proved  with  respect  to  a  par- 

27  ticular  element  of  an  ofTense  if  that  element  is  specified  in  the 

28  description  of  the  offense  as  existing  or  occurring  'in  fact' ;  and 

29  "(2)  no  state  of  mind  must  be  proved  with  respect  to  any  ele- 

30  ment  of  an  offense  described  in  a  statute  outside  this  title,  or 

31  described  in  this  title  as  a  violation  of  a  statute  outside  this  title, 

32  or  described  in  a  regulation  or  rule  issued  pursuant  to  such  a 

33  statute,  if  the  description  of  the  offense  does  not  specify  any  state 

34  of  mind  with  respect  to  that  element  and  the  legislative  purpose 

35  of  the  statute  does  not  compel  a  contrary  interpretation. 

36  "(b)  Required  State  of  Mind  for  an  Element  of  an  Offense  ip 

37  xoT  Specified. — Except  as  provided  in  subsection  (a),  if  an  element 

38  of  an  offense  is  described  without  specifying  the  required  state  of  mind, 

39  the  particular  state  of  mind  that  must  be  proved  with  respect  to : 

40  "  ( 1 )  conduct  is  'knowing' ; 


9518 

34 

1  "  (2)  an  existing  circumstance  is  'reckless' ;  and 

2  "(3)  a  result  is 'reckless'. 

3  "(c)  Satisfaction  of  State  of  Mind  Kequirement  by  Proof  op 

4  Other  State  of  Mind. — If  the  state  of  mind  required  to  be  proved 

5  with  respect  to  an  element  of  an  offense  is : 

6  "(1)  'knowing',  this  requirement  can  be  satisfied  alternatively 

7  by  proof  of  an  'intentional'  state  of  mind ; 

8  "  (2)  'reckless',  this  requirement  can  be  satisfied  alternatively  by 

9  proof  of  an  'intentional'  or  'knowing'  state  of  mind ; 

10  "(3)  'negligent',  this  requirement  can  be  satisfied  alternatively 

11  by  proof  of  an  'intentional',  'knowing',  or  'reckless'  state  of  mind. 

12  "(d)  Matters  of  Law  Requiring  No  Proof  of  State  of  Mind. — 

13  "(1)   Existence  of  Offense. — Proof  of  knowledge  or  other 

14  state  of  mind  is  not  required  with  respect  to : 

15  "(A-)  the  fact  that  particular  conduct  constitutes  an  offense 

16  or  is  required  by,  or  violates,  a  statute  or  a  regulation,  rule, 

17  or  order  issued  pursuant  thereto ; 

18  "(B)  the  fact  that  particular  conduct  is  descilbed  in  a  sec- 

19  tion  of  this  title ;  or 

20  "(C)   the  existence,  meaning,  or  application  of  the  law 

21  determining  the  elements  of  an  offense. 

22  "(2)  Jurisdiction,  Venue,  and  Grading  Matters. — Proof  of 

23  state  of  mind  is  not  required  with  respect  to  any  matter  that  is 

24  solely  a  basis  for  federal  jurisdiction,  for  venue,  or  for  grading. 

25  "(3)  Matters  Designated  a  Question  of  Law. — Proof  of  state 

26  of  mind  is  not  required  with  respect  to  any  matter  that  is  des- 

27  ignated  as  a  question  of  law.  • 

28  "(e)   iLvTTERS  Pertaining  to  Bars  or  Defenses.  Requiring  no 

29  Proof  of  State  of  Mind. — Proof  of  state  of  mind  is  not  required  with 

30  respect  to  an  element  of  a  bar  to  prosecution,  defense,  or  affirmative 

31  defense. 

32  "Chapter  4.— COMPLICITY 

•'Sec. 

"401.  Liability  of  an  Accomplice. 

"402.  Liability  of  an  Organization  for  Conduct  of  an  Agent. 

"403.  Liability  of  an  Agent  for  Conduct  of  an  Organization. 

"404.  General  Provisions  for  Chapter  4. 

33  "§  401.  Liability  of  an  Accomplice 

34  "(a)  Liability  in  General. — A  person  is  criminally  liable  for  an 

35  offense  based  upon  the  conduct  of  another  person  if : 

36  "(1)   he  knowingly  aids  or  abets  the  commission  of  the  offense 

37  by  the  other  person ;  or 


9519 

35 

1  "  (2)   acting  with  the  state  of  mind  required  for  the  commission 

2  of  the  offense,  he  causes  the  other  person  to  engage  in  conduct 

3  that  would  constitute  an  offense  if  engaged  in  personally  by  the 

4  defendant  or  any  other  person. 

5  "(b)  Liability  as  Coconspirator. — A  person  is  criminally  liable 

6  for  an  offense  based  upon  the  conduct  of  another  person  if : 

7  "(1)  he  and  the  other  person  engage  in  an  offense  under  section 

8  1002  (Criminal  Conspiracy)  ; 

9  "(2)  the  other  person  engages  in  the  conduct  in  furtherance  of 

10  the  conspiracy ;  and 

11  "(3)  the  conduct  is  authorized  by  the  agreement  or  it  is  reason- 

12  ably  foreseeable  that  the  conduct  would  be  performed  in  further- 

13  ance  of  the  conspiracy. 

14  "§  402.  Liability  of  an  Organization  for  Conduct  of  an  Agent 

15  "An  organization  is  criminally  liable  for  an  offense  if  the  conduct 

16  constituting  the  offense,  in  whole  or  in  part : 

17  "  ( a )   is  conduct  of  its  agent,  and  such  conduct : 

18  "(1)   occurs  in  the  performance  of  matters  within  the  scope 

19  of  the  agent's  employment  or  within  the  scope  of  the  agent's 

20  actual,  implied,  or  apparent  authority ;  or 

21  "(2)   is  thereafter  ratified  or  adopted  by  the  organization ; 

22  or 

23  "(b)   involves  a  failure  by  the  organization  or  its  agent  to  dis- 

24  charge  a  specific  duty  of  conduct  imposed  on  the  organization 

25  by  law. 

26  "§  403.  Liability  of  an  Agent  for  Conduct  of  an  Organization 

27  "(a)  Conduct  on  Behalf  of  an  Organization. — A  person  is  crimi- 

28  nally  liable  for  an  offense  based  upon  conduct  that  he  engages  in  or 

29  causes  in  the  name  of  an  organization  or  on  behalf  of  an  organization  to 

30  the  same  extent  as  if  he  engaged  in  or  caused  the  conduct  in  his  own 

31  name  or  on  his  own  behalf. 

32  "  (b)  Omission  to  Perform  a  Duty  of  an  Organization. — -Except  as 

33  otherwise  expressly  provided,  whenever  a  duty  to  act  is  imposed  upon 

34  an  organization  by  a  statute,  or  by  a  regulation,  rule,  or  order  issued 

35  pursuant  thereto,  an  agent  of  the  organization  having  significant  re- 

36  sponsibility  for  the  subject  matter  to  which  the  duty  relates  is  crimin- 

37  ally  liable  for  an  offense  based  upon  an  omission  to  perform  the  duty,  if 

38  he  has  the  state  of  mind  required  for  the  commission  of  the  offense,  to 

39  the  same  extent  as  if  the  duty  were  imposed  upon  him  directly. 


9520 

36 

1  "(c)  Reckless  Failure  To  Supervise  Conduct  of  an  Orgaxiza- 

2  TiON. — A  person  responsible  for  supervising  particular  activities  on 

3  behalf  of  an  organization  who,  by  his  reckless  failure  to  F.upervise  ad- 

4  equately  those  activities,  permits  or  contributes  to  the  commission  of 

5  an  offense  by  the  organization  is  criminally  liable  for  the  offense,  ex- 

6  cept  that  if  the  offense  committeed  by  the  organization  is  a  felony  the 

7  person  is  liable  under  this  subsection  only  for  a  Class  A  misdemeanor. 

8  "§  404.  General  Provisions  for  Chapter  4 

9  "(a)  Treatment  as  Principal. — A  person  whose  criminal  liability 

10  is  based  upon  section  401,  402,  or  403  may  be  charged,  tried,  and  pun- 

11  ished  as  a  principal. 

12  "(b)  Defenses  Precluded. — It  is  not  a  defense  to  a  prosecution  in 

13  which  the  criminal  liability  of  the  defendant  is  based  upon  section 

14  401, 402,  or  403  that: 

15  "(1)  the  defendant  does  not  belong  to  the  category  of  persons 

16  who  by  definition  are  the  only  persons  capable  of  committing  the 

17  offense  directly ;  or 

18  "(2)  the  person  for  whose  conduct  the  defendant  is  criminally 

19  liable  has  been  acquitted,  has  not  been  prosecuted  or  convicted, 

20  has  been  convicted  of  a  different  offense,  was  incompetent  or 

21  irresponsible,  or  is  immune  from  or  otherwise  not  subject  to 

22  prosecution. 

23  "Chapter  5.— BARS  AND  DEFENSES 

"Subchapter 

"A.  General  Provisions. 

"B.  Bars  to  Prosecution. 

24  "Subchapter  A. — General  Provisions 

"See. 

"501.  General  Principle  (Joverning  Existence  of  Bars  and  Defenses. 

"502.  Application  and  Scope  of  Bars  and  Defenses. 

25  "§  501.  General  Principle  Governing  Existence  of  Bars  and  De- 

26  fenses 

27  "Except  as  otherwise  required  by  the  Constitution  or  by  a  federal 

28  statute,  the  existence  of  a  bar  to  a  prosecution  under  any  federal 

29  statute,  or  the  existence  of  a  defense  or  affirmative  defense  to  a  pros- 

30  ecution  under  any  federal  statute,  including  a  defense  or  an  affirmative 

31  defense  of  mistake  of  fact  or  law,  insanity,  intoxication,  duress,  exer- 

32  ciso  of  public  authority,  protection  of  persons,  protection  of  property, 

33  unlawful  entrapment,  and  official  misstatement  of  law,  shall  be  deter- 

34  mined  by  the  courts  of  the  United  States  according  to  the  principles 


9521 


37 

1  of  the  common  law  as  they  may  be  interpreted  in  the  light  of  reason 

2  and  experience. 

3  "§  502.  Application  and  Scope  of  Bars  and  Defenses 

4  ''The  bars  to  prosecution,  defenses,  and  affirmative  defenses  set  forth 

5  in  this  title  are  not  exclusive,  but  the  general  subject  matters  covered 

6  constitute  bars  or  defenses  only  to  the  extent  described. 

'^  "Subchapter  B. — Bars  to  Prosecution 

"Sec. 

"511.  Time  Limitations. 
"512.  Immaturity. 

8  "§511.  Time  Limitations 

9  "(a)   Bar  to  Prosecution. — It  is  a  bar  to  prosecution  under  any 

10  federal  statute  that  the  prosecution  was  commenced  after  the  appli- 

11  cable  period  of  limitation. 

12  "  (b)   Applicable  Period  Generally. — Except  for  a  prosecution  for 

13  a  Class  A  felony  or  for  an  otTense  described  in  section  1121(a)(1) 

14  (Espionage),  which  may  be  commenced  at  any  time,  and  except  as 

15  otherwise  provided  in  this  section,  a  prosecution  for  an  offense  must 

16  be  commenced,  if  the  offense  is  : 

17  "  ( 1 )  a  felony  or  a  misdemeanor,  within  five  years  after  the  com- 

18  mission  of  the  offense ; 

19  "  (2)  an  infraction,  within  one  year  after  the  commission  of  the 

20  offense. 

21  "(c)  Extended  Period  for  Concealable  Offenses. — If  the  period 

22  prescribed  in  subsection  (b)  has  expired,  and  if  not  more  than  three 

23  years  have  passed  since  the  date  of  such  expiration,  a  prosecution  may 

24  nevertheless  be  commenced : 

25  "(1)  for  an  offense  in  which  a  material  element  is  either  fraud 

26  or  a  breach  of  a  fiduciary  obligation,  at  any  time  within  one  year 

27  after  the  facts  relating  to  the  offense  became  known  to,  or  reason- 

28  ably  should  have  become  known  by,  a  federal  public  servant  who 

29  is  charged  with  responsibility  for  acting  with  respect  to  such  cir- 

30  cumstances  and  who  is  not  himself  an  accomplice  in  the  offense; 

31  "(2)   for  an  offense  based  on  official  conduct  in  office  by  a 

32  public  servant,  at  any  time  during  which  the  defendant  is  a  public 

33  servant  or  within  two  years  after  he  ceases  to  be  a  public  servant; 

34  or 

35  "(3)  for  an  offense  based  on  concealment  of  assets  of  a  bank- 

36  rupt  or  other  debtor,  at  any  time  until  the  debtor  has  received 
87  a  discharge  or  until  a  discharge  has  been  denied. 


9522 

38 

1  "(d)  Time  When  Offense  Committed. — Except  as  otherwise  pro- 

2  vided  by  statute,  for  purposes  of  this  section  the  commission  of  an 

3  offense  occurs : 

4  "(1)  if  the  offense  is  other  than  a  continuing'  offense,  on  the 

5  occurrence  of  the  last  remaining  element  of  the  offense ;  or 

6  "(2)   if  the  offense  is  a  continuing  offense  involving: 

7  "(A-)  criminal  conspiracy,  on  the  day  of  the  occurrence  of 

8  the  most  recent  conduct  to  effect  any  objective  of  the  con- 

9  spiracy  for  which  the  defendant  is  responsible,  or  on  the  day 

10  of  the  frustration  of  the  last  remaining  objective  of  the  con- 

11  spiracy,  or  on  the  day  the  conspiracy  is  terminated  or  finally 

12  abandoned ; 

13  "  (B)  a  failure,  neglect,  or  refusal  to  register,  on  the  day  the 

14  defendant  registers  as  required,  or  on  the  day  the  duty  to  reg- 

15  ister  ceases ;  or 

16  "(C)    a  prolonged  course  of  conduct  which  the  statute 

17  plainly  appears  to  treat  as  a  continuing  offense,  on  the  day 

18  the  course  of  conduct  terminates. 

19  "(e)  Commencement  of  Prosecution. — For  purposes  of  this  sec- 

20  tion,  the  filing  of  a  complaint  before  a  judicial  officer  empowered  to 

21  issue  a  warrant,  or  the  filing  of  an  indictment  or  information,  com- 

22  mences  a  prosecution  for  the  offense  charged  and  for  any  necessarily 

23  included  offense.  A  prosecution  for  an  offense  necessarily  included  in 

24  the  offense  charged  shall  be  considered  to  have  been  timely  commenced, 

25  even  though  the  period  of  limitation  for  such  included  offense  has 

26  expired,  if  the  period  of  limitation  has  not  expired  for  the  offense 

27  charged  and  if  there  was,  after  the  close  of  the  evidence  at  the  trial, 

28  sufficient  evidence  as  a  matter  of  law  to  sustain  a  conviction  of  the 

29  offense  charged. 

30  "(f)  Extended  Period  for  Commencement  of  New  Prosecution. — 

31  If  a  timely  complaint,  indictment,  or  information  is  dismissed  for  any 

32  error,  defect,  insufficiency,  or  irregularity,  a  new  prosecution  may  be 

33  commenced  within  six  months  after  the  dismissal  becomes  final  even 

34  though  the  period  of  limitation  has  expired  at  the  time  of  the  dismissal 

35  or  will  expire  within  six  months  thereafter. 

36  "(g)  Suspension  of  Period  of  Limitation. — The  period  of  limita- 

37  tion  does  not  run  while  the  person  who  committed  or  who  is  criminally 

38  liable  for  an  offense  is  absent  from  the  United  States  or  is  a  fugitive. 


9523 


39 

1  "§512.  Immaturity 

2  "It  is  a  bar  to  prosecution  under  any  federal  statute,  other  than  a 

3  prosecution  for  an  offense  described  in  section  1601  (a)  (1)  or  (a)  (2) 

4  (Murder),  that  at  the  time  of  the  commission  of  the  offense  charged 

5  the  defendant  was  less  than  sixteen  years  old.  This  section  does  not 

6  bar  a  proceeding  against  such  person  as  a  juvenile  delinquent  pursuant 

7  to  the  provisions  of  subchapter  A  of  chapter  36. 

8  "PART  II.— OFFENSES 

"Chapter 

"10.  Offenses  of  General  Applicability 

"11.  Offenses  Involving  National  Defense 

"12.  Offenses  Involving  International  Affairs 

"13.  Offenses  Involving  Government  Processes 

"14.  Offenses  Involving  Taxation 

'15.  Offenses  Involving  Individual  Rights 

"16.  Offenses  Involving  the  Person 

"17.  Offenses  Involving  Property 

"18.  Offenses  Involving  Public  Order,  Safety,  Health,  and  Welfare 

9  "Chapter  10.— OFFENSES  OF  GENERAL  APPLICABILITY 

"Sec. 

"1001.  Criminal  Attempt. 

"1002.  Criminal  Conspiracy. 

"1003.  Criminal  Solicitation. 

"1004.  General  Provisions  For  Chapter  10. 

10  "§1001.  Criminal  Attempt 

11  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  acting  with  the 

12  state  of  mind  otherwise  required  for  the  commission  of  a  crime,  he 

13  intentionally  engages  in  conduct  that,  in  fact,  amounts  to  more  than 

14  mere  preparation  for  the  commission  of  the  crime,  and  that  indicates 

15  his  intent  that  the  crime  be  completed. 

16  "(b)  Affirmative  Defense. — It  is  an  affirmative  defense  to  a  prose- 

17  cution  under  this  section  that,  under  circumstances  manifesting  a 

18  voluntary  and  complete  renunciation  of  his  criminal  intent,  the  de- 

19  fendant  avoided  the  commission  of  the  crime  attempted  by  abandon- 

20  ing  his  criminal  effort  and,  if  mere  abandonment  was  insufficient  to 

21  accomplish  such  avoidance,  by  taking  affirmative  steps  that  prevented 

22  the  commission  of  the  crime. 

23  "(c)   Defense  Pkecluded. — ^It  is  not  a  defense  to  a  prosecution  under 

24  this  section : 

25  "(1)  that  it  was  factually  or  legally  impossible  for  the  actor 

26  to  commit  the  crime,  if  the  crime  could  have  lx>en  committed  had 

27  the  circumstances  been  as  the  actor  believed  them  to  be;  or 

28  "  (2)  that  the  crime  attempted  was  completed. 


9524 

40 

1  "(d)  Proof. — In  a  prosecution  under  this  section,  any  special  proof 

2  provision  that  is  specified  in  this  title  as  applicable  to  the  crime 

3  attempted  is  applicable  also  to  an  offense  described  in  this  section, 

4  unless  a  different  application  is  plainly  required. 

5  "(e)  Grading. — An  offense  described  in  this  section  is  an  offense  of 

6  the  same  class  as  the  crime  attempted,  except  that,  if  the  crime  at- 

7  tempted  is  a  Class  A  felony,  an  offense  described  in  this  section  is  a 

8  Class  B  felony. 

9  "(f)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

10  described  in  this  section  if  the  crime  attempted  is  a  federal  crime  with 

1 1  regard  to  which  federal  j  urisdiction : 

12  "(1)  is  not  limited  to  certain  specified  circumstances;  or 

13  "(2)  is  limited  to  certain  specified  circumstances  and  any  such 

14  circumstance  exists  or  has  occurred,  or  would  exist  or  occur  if 

15  the  crime  attempted  were  committed. 

16  "§1002.  Criminal  Conspiracy 

17  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  agrees  with 

18  one  or  more  persons  to  engage  in  conduct,  the  performance  of  which 

19  would  constitute  a  crime  or  crimes,  and  he  or  one  of  such  persons  in 

20  fact  engages  in  any  conduct  with  intent  to  effect  any  objective  of  the 

21  agreement. 

22  "(b)   Affirmative  Defense. — It  is  an  affirmative  defense  to  a  prose- 

23  cution  under  this  section  that,  under  circumstances  manifesting  a  vol- 

24  untary  and  complete  renunciation  of  his  criminal  intent,  the  defendant 

25  prevented  the  commission  of  every  crime  that  was  an  objective  of  the 

26  conspiracy. 

27  "(c)   Defenses  Precluded. — It  is  not  a  defense  to  a  prosecution 

28  under  this  section  that  one  or  more  of  the  persons  with  whom  the 

29  defendant  is  alleged  to  have  conspired  has  been  acquitted,  has  not  been 

30  prosecuted  or  convicted,  has  been  convicted  of  a  different  offense,  was 

31  incompetent  or  irresponsible,  or  is  immune  from  or  otherwise  not 

32  subject  to  prosecution. 

33  "(d)  Grading. — An  offense  described  in  this  section  is  an  offense  of 

34  the  same  class  as  the  most  serious  crime  that  was  an  objective  of  the 

35  conspiracy,  except  that  if  the  most  serious  crime  that  was  an  objective 

36  of  the  conspiracy  is  a  Class  A  felony,  an  offense  described  in  this 
37 ,  section  is  a  Class  B  felony. 


9525 

41 

1  "(c)  JuRisnicTiox. — Tlierc  is  federal  jurisdiction  over  an  offense 

2  described  in  this  section  if  any  objective  of  the  conspiracy  is  a  federal 

3  crime  with  regard  to  which  federal  jurisdiction : 

4  "(1)  is  not  limited  to  certain  specified  circumstances;  or 

5  "(2)  is  limited  to  certain  specified  circumstances  and  any  such 

6  circumstance  exists  or  lias  occurred,  or  would  exist  or  occur  if  any 

7  crime  that  is  an  objective  of  tlie  conspiracy  were  committed. 

8  "§1003.  Criminal  Solicitation 

9  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  with  intent  that 

10  another  person  engage  in  conduct  constituting  a  crime,  and,  in  fact, 

11  under  circumstances  strongly  corroborative  of  tliat  intent,  he  com- 

12  mands,  entreats,  induces,  or  otherwise  endeavors  to  persuade  such  other 

13  person  to  engage  in  such  conduct. 

14  "  (b)  Affirmati\'e  Defense. — It  is  an  affirmative  defense  to  a  prose- 

15  cution  under  this  section  that,  under  circumstances  manifesting  a 

16  voluntary  and  complete  renunciation  of  his  criminal  intent,  the  de- 

17  fendant  prevented  the  commission  of  the  crime  solicited. 

18  "  (c)  Defense  Precluded. — It  is  not  a  defense  to  a  prosecution  under 

19  this  section  that  the  person  solicited  could  not  be  convicted  of  the 

20  crime  because  he  lacked  the  state  of  mind  required  for  the  commis- 

21  sion  of  the  crime,  because  he  was  incompetent  or  irresponsible,  or 

22  because  he  is  immune  from  prosecution  or  otherwise  not  subject  to 

23  prosecution. 

24  "(d)  Grading. — An  offense  described  in  this  section  is  an  offense 

25  of  the  class  next  below  that  of  the  crime  solicited. 

26  "(e)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

27  described  in  this  section  if  the  crime  solicited  is  a  federal  crime  with 

28  regard  to  whicli  federal  jurisdiction : 

29  "(1)  is  not  limited  to  certain  specified  circumstances;  or 

30  "(2)  is  limited  to  certain  specified  circumstances  and  any  such 

31  circumstance  exists  or  has  occurred,  or  would  exist  or  occur  if  the 

32  crime  solicited  were  committed. 

33  "§  1004.  General  Provisions  for  Chapter  10 

34  "(a)  Definition. — As  used  in  this  chapter,  a  renunciation  is  not 

35  'voluntary  and  complete'  if  it  is  motivated  in  whole  or  in  part  by : 

3"  "  ( 1 )   a  belief  that  a  circumstance  exists  that  increases  the  prob- 

37  ability  of  detection  or  apprehension  of  the  defendant  or  another 


9526 

42 

1  participant  in  the  crime,  or  that  makes  more  difficult  the  consum- 

2  mation  of  the  crime ;  or 

3  "(2)  a  decision  to  postpone  the  commission  of  the  crime  until 

4  another  time  or  to  substitute  another  victim  or  another  but  similar 

5  objective. 

6  "(b)  Inapplicability  to  Certain  Offenses. — It  is  not  an  offense 

7  under  this  chapter : 

8  "(1)  to  attempt  to  commit,  to  conspire  to  commit,  or  to  solicit 

9  the  commission  of: 

10  "(A)   an  offense  described  in  section  1001   (Criminal  At- 

11  tempt),   1002    (Criminal   Conspiracy),   or   1003    (Criminal 

12  Solicitation) ; 

13  "(B)    an  offense  described  in  section  1202   (Conspiracy 

14  against  a  Foreign  Power)  or  1764  (Antitrust  Offenses) ;  or 

15  "(C)  an  offense  described  outside  this  title  that  consists 

16  of  an  attempt,  a  conspiracy,  or  a  solicitation;  or 

17  "(2)  to  attempt  to  commit,  to  conspire  to  commit  unless  it  was 

18  in  fact  completed,  or  to  solicit  the  commission  of,  an  offense 

19  described  in  section  1115(a)(3)    (Obstructing  Military  Kecruit- 

20  ment  or  Induction),  1116(a)  (1)  (Inciting  or  Aiding  Mutiny,  In- 

21  subordination,  or  desertion),  or  1831^a)(l)    (Leading  a  Riot). 

22  "Chapter  11.— OFFENSES  INVOLVING  NATIONAL 

23  DEFENSE 

"Subchapter 

"A.  Treason  and  Related  Offenses. 

"B.  Sabotage  and  Related  Offenses. 

"C.  Espionage  and  Related  Offenses. 

"D.  Miscellaneous  National  Defense  Offenses. 

24  "Subchapter  A. — Treason  and  Related  Offenses 

"Sec. 

"1101.  Treason. 

"1102.  Armed  Rebellion  or  Insurrection. 

"1103.  Engaging  in  Para-Military  Activity. 

25  "§1101.  Treason 

26  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  while  owing 

27  allegiance  to  the  United  States,  he : 

28  "(1)  adheres  to  the  foreign  enemies  of  the  United  States  and 

29  intentionally  gives  them  aid  and  comfort;  or 

30  "  (2)  levies  war  against  the  United  States. 

81  "(b)  Proof. — In  a  prosecution  under  this  section,  a  person  may 

32  not  be  convicted  unless  the  evidence  against  him  includes  the  testi- 


9527 

43 

1  niony  of  two  witnesses  to  the  same  overt  act,  or  unless  he  makes  a  con- 

2  fession  in  open  court. 

3  "(c)  Grading. — An  oiTense  described  in  this  section  is  a  Class  A 

4  felony. 

5  "§1102.  Armed  Rebellion  or  Insurrection 

6  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  engages  in 

7  ai'med  rebellion  or  armed  insurrection : 

8  "(1)   against  the  authority  of  the    United  States  or  a  state 

9  with  intent  to : 

10  "(A)  overthrow,  destroy,  supplant,  or  change  the  form  of 

11  the  government  of  the  United  States ;  or 

12  "(B)  sever  a  state's  relationship  with  the  United  States; 

13  •       or 

14  "(2)    against  the   United  States  with  intent  to  oppose  the 

15  execution  of  any  law  of  the  United  States. 

16  "(b)  Grading. — An  offense  described  in  this  section  is : 

17  "(1)  a  Class  B  felony  in  the  circumstances  set  forth  in  sub- 

18  section   (a)(1)  ; 

19  "(2)  a  Class  C  felony  in  the  circumstances  set  forth  in  sub- 

20  section  (a)(2). 

21  "§  1103.  Engaging  in  Para-Military  Activity 

22  "  (a)   Offense. — A  person  is^uilty  of  an  offense  if  he  engages  in  the 

23  acquisition,  caching,  or  use  of  weapons,  or  in  the  training  of  other 

24  persons  in  the  use  of  weapons,  by  or  on  behalf  of  an  organization  or 

25  group  of  ten  or  more  persons  that  has  as  a  purpose  the  taking  over  or 

26  control  of,  or  the  unauthorized  assumption  of  the  function  of,  a  federal 

27  or  state  government  agency,  by  force  or  threat  of  force. 

28  "(b)   Grading. — An  offense  described  in  thio  section  is  a  Class  D 

29  felony. 

30  "Subchapter  B. — Sabotage  and  Related  Offenses 

"Sec. 

"1111.  Sabotage. 

"1112.  Impairing  Military  Effectiveness. 

"1113.  Violating  an  Emergency  Regulation. 

"1114.  Evading   Military  or   Alternative   Civilian   Service. 

"1115.  Obstructing   Military    Recruitment  or   Induction. 

"1116.  Inciting  or  Aiding  Mutiny,  In.subordination,  or  Desertion. 

"1117.  Aiding  Escape  of  a  Prisoner  of  War  or  an  Enemy  Alien. 

31  "§  1111.  Sabotage 

32  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  with  intent  to 

33  impair,  interfere  with,  or  obstruct  the  ability  of  the  United  States  or 


9528 

44 

1  an  associate  nation  to  prepare  for  or  to  engage  in  war  or  defense 

2  activities,  he: 

3  "(1)  damages,  tampers  with,  contaminates,  defectively  makes, 

4  or  defectively  repairs: 

5  "(-A.)  any  property  used  in,  or  particularly  suited  for  use 

6  in,  the  national  defense  that  is  owned  by,  or  is  under  the  care, 

7  custody,  or  control  of,  the  United  States  or  an  associate  nation, 

8  or  that  is  being  produced,  manufactured,  constructed,  re- 

9  paired,  transported,  or  stored  for  the  United  States  or  an 

10  associate  nation ; 

11  "(B)  any  facility  that  is  engaged  in  whole  or  in  part,  for 

12  the  United  States  or  an  associate  nation,  in : 

13  "(i)   furnishing  defense  materials  or  services;  or 

14  "(ii)  producing  raw  material  necessary  to  the  support 

15  of  a  national  defense  production  or  mobilization  pro- 

16  gram;  or 

17  "(C)  any  public  facility  used  in,  or  designated  and  par- 

18  ticularly  suited  for  use  in,  the  national  defense;  or 

19  "(2)  delivers  any  property  described  in  paragraph  (1)  (A)  that 

20  has  been  damaged,  tampered  with,  contaminated,  defectively 

21  made,  or  defectively  repaired. 

22  "(B)  a  service  of  a  public  facility  used  in,  or  designated 

23  and  particularly  suited  for  use  in,  the  national  defense. 

24  "(b)  Grading. — An  offense  described  in  this  section  is : 

25  "  ( 1 )  a  Class  A  felony  if  the  offense : 

26  "(A.)  is  committed  in  time  of  war;  and 

27  "(B)  causes  damage  to  or  impairment  of  a  major  weapons 

28  system  or  a  means  of  defense,  warning,  or  retaliation  against 

29  large  scale  attack; 

30  "(2)  a  Class  B  felony  if  the  offense: 

31  "(A)   is  committed  in  time  of  war  in  any  case  other  than 

32  that  described  in  paragraph  (1)(B);  or 

33  "(B)  is  committed  during  a  national  defense  emergency; 

34  "(3)  a  Class  C  felony  in  any  other  case. 

35  "§  1112.  Impairing  Military  Effectiveness 

36  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  in  reckless  dis- 

37  regard  of  the  risk  that  his  conduct  would  impair,  interfere  with,  or 

38  obstruct  the  ability  of  the  United  States  or  an  associate  nation  to 

39  prepare  for  or  to  engage  in  war  or  defense  activities,  he  engages  in 

40  conduct  described  in  paragraph  (1)  or  (2)  of  section  1111(a). 


9529 

45 

1  "(b)  Grading. — An  offense  described  in  this  section  is : 

2  "(1)  a  Class  C  felony  if  the  offense: 

3  "(A)  iscommittedintimeof  war;  and 

4  "(B)  causes  damage  to  or  impairment  of  a  major  weapons 

5  system  or  a  means  of  defense,  warning,  or  retaliation  against 

6  large  scale  enemy  attack ; 

7  "(2)  a  Class  D  felony  if  the  offense: 

8  "(A)  is  committed  in  time  of  war  in  any  case  other  than 

9  that  described  in  paragraph  ( 1 ) ;  or 

10  "(B)  is  committed  during  a  national  defense  emergency; 

11  "(3)  a  Class  E  felony  in  any  other  case. 

12  "§  1113.  Violating  an  Emergency  Regulation 

13  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if  he  violates  section 

14  2  of  title  II  of  the  Act  of  June  15,  1917,  as  amended  (50  U.S.C.  192) 

15  (relating  to  promulgation  of  regulations  concerning  the  anchorage  and 

16  movement  of  vessels  during  a  national  emergency) . 

17  "(b)  GnADiNG. — An  offense  described  in  this  section  is  a  Class  D 

18  felony. 

19  "§  1114.  Evading  Military  or  Alternative  Civilian  Service 

20  "(a)  Offense. — A  person  is  guilty  of  an  offense  if : 

21  "(1)   knowing  that  he  is  under  a  duty  imposed  by  a  federal 

22  statute  governing  military  service,  or  by  a  regulation,  rule,  order, 

23  or  presidential  proclamation  issued  pursuant  thereto : 

24  "(A)  to  register  for  military  service; 

25  "(B)  to  report  for  and  submit  to  examination  to  determine 

26  his  availability  for  military  or  alternative  civilian  service; 

27  "(C)  to  report  for  and  submit  to  induction  into  military 

28  service;  or 

29  "  (D)  to  report  for  and  perform  alternative  civilian  service; 

30  he  fails,  neglects,  or  refuses  to  do  so ;  or 

31  "(2)  with  intent: 

32  "(A)  to  avoid  or  delay  the  performance  of  the  military 

33  or  alternative  civilian  service  obligation  of  himself  or  another 

34  person  imposed  by  a  federal  statute  governing  military  serv- 

35  ice,  or  by  a  regulation,  rule,  order,  or  presidential  proclama- 

36  tion  issued  pursuant  thereto ;  or 

37  "(B)  to  obstruct  the  proper  determination  of  the  existence 

38  or  nature  of  such  an  obligation ; 

39  he  engages  in   conduct  constituting  an   offense  under   section 

40  1343(a)(1)    (Making  a  False  Statement). 


9530 

46 

1  "(b)  Grading. — An  offense  described  in  this  section  is : 

2  "(1)  a  Class  D  felony  if  the  offense  is  committed  in  time  of 

3  war; 

4  "(2)  a  Class  E  felony  in  any  other  case,  except  as  provided  in 
6  paragraph  (3)  ;  or 

6  "(3)  a  Class  A  misdemeanor  under  the  circumstances  set  forth 

7  in  subsection  (a)  (1)  (A)  if  it  occurs  exclusively  during  a  period 

8  in   which  only   previously  deferred   registrants  are  subject  to 

9  induction. 

10  "§  1115.  Obstructing  Military  Recruitment  or  Induction 

11  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  in  time  of  war 

12  and  with  intent  to  hinder,  interfere  with,  or  obstruct  the  recruitment, 

13  conscription,  or  induction  of  a  person  into  the  armed  forces  of  the 

14  United  States,  he : 

15  "(1)  creates  a  physical  interference  or  obstacle  to  the  recruit- 

16  ment,  conscription,  or  induction ; 

17  "(2)  uses  force,  threat,  intimidation,  or  deception  against  a 

18  public  servant  of  a  government  agency  engaged  in  the  recruit- 

19  ment,  conscription,  or  induction ;  or 

20  "(3)  incites  others  to  engage  in  conduct  constituting  an  offense 

21  under  section  1114   (Evading  Military  or  Alternative  Civilian 

22  Service) . 

23  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  D 

24  felony. 

25  "§  1116.  Inciting  or  Aiding  Mutiny,  Insubordination,  or  Desertion 

26  "(a)  Offense. — A  person  is  guilty  of  an  offense  if: 

27  "(1)  with  intent  to  bring  about  mutiny,  insubordination,  re- 

28  f usal  of  duty,  or  desertion  by  members  of  the  armed  forces  of  the 

29  United  States,  he  incites  such  members  to  engage  in  mutiny,  insub- 

30  ordination,  refusal  of  duty,  or  desertion ; 

31  "(2)  he  aids  or  abets  the  commission  or  attempted  commission 

32  of  mutiny  or  desertion  by  a  member  of  the  armed  forces  of  the 

33  United  States;  or 

34  "(3)  he  interferes  with,  hinders,  delays,  or  prevents  the  dis- 

35  covery,  apprehension,  prosecution,  conviction,  or  punishment  of 

36  a  member  of  the  armed  forces  of  the  United  States,  knowing 

37  that  such  member  has  deserted,  or  is  charged  with  or  being  sought 

38  for  desertion,  by  engaging  in  any  conduct  described  in  subpara- 

39  graphs  (A)  through  (D)  of  section  1311(a)(1)  (Hindering  Law 

40  Enforcement). 


9531 

47 

1  "(b)  Grading. — An  offense  described  in  this  section  is: 

2  "(1)   a  Class  C  felony  in  the  circumstances  set  forth  in  sub- 

3  section  (a)  (1)  if: 

4  "  ( A)  the  offense  is  committed  in  time  of  war ;  or 

5  "(B)  the  persons  incited  are  engaged,  or  about  to  be  en- 

6  gaged,  in  combat ; 

7  "(2)  a  Class  D  felony: 

8  "(A)  in  the  circumstances  set  forth  in  subsection  (a)  (1)  in 

9  any  case  other  than  that  described  in  paragraph  (1)  ;  or 

10  "(B)  in  the  circumstances  set  forth  in  subsection  (a)  (2) ; 

11  "(3)  a  Class  E  felony  in  the  circumstances  set  forth  in  subsec- 

12  tion  (a)(3). 

13  "§  1117.  Aiding  Escape  of  a  Prisoner  of  War  or  an  Enemy  Alien 

14  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he: 

15  "(1)  aids  or  abets  the  escape  or  attempted  escape  of  a  person 

16  being  held  in  the  custody  of  the  United  States  or  an  associate 

17  nation  as  a  prisoner  of  war  or  as  an  enemy  alien ;  or 

18  "(2)  interferes  with,  hinders,  delays,  or  prevents  the  discovery 

19  or  apprehension  of: 

20  "(A)  a  prisoner  of  war  or  an  enemy  alien,  knowing  that 

21  such  prisoner  or  alien  has  escaped  from  the  custody  of  the 

22  United  States  or  an  associate  nation ;  or 

23  "(B)   an  enemy  alien,  knowing  that  such  alien  is  being 

24  sought  for  detention  by  the  United  States  or  an  associate 

25  nation ; 

26  by  engaging  in  any  conduct  described  in  subparagraphs  (A) 

27  through  (D)  of  section  1311(a)(1)    (Hindering  Law  Enforce- 

28  ment). 

29  "(b)   Grading.— An  offense  described  in  this  section  is  a  Class  D 

30  felony. 

31  "Subchapter  C. — Espionage  and  Related  Offenses 

"See. 

"1121.  Espionage. 

"1122.  Disseminating  Xatioiial  Defense  Information. 

"1123.  Disseminating  Classified  Information. 

"1124.  Receiving  Classified  Information. 

"1125.  Failing  to  Register  as  a  Person  Trained  in  a  Foreign  Espionage  System. 

"1126.  Failing  to  Register  as,  or  Acting  as,  a  Foreign  Agent. 

32  "§1121.  Espionage 

33  "(a)  Offense.— A  person  is  guilty  of  an  offense  if  he  violates: 

34  "(1)  section  201  of  the  Espionage  and  Sabotage  Act  of  1954 

35  (relating  to  gathering  or  delivering  defense  inforiiiation  to  aid 

36  a  foreign  government) .  as  amended  by  section  245  of  the  Criminal 

37  Code  Reform  Act  of  1977  (50  U.S.C. )  ;  or 


OO  ^ACtL 


9532 


48 


1  "(2)  section  224(a)  or  225  of  the  Atomic  Energy  Act  of  1954, 

2  as  amended  (42  U.S.C.  2274(a)  or  2275)   (relating  to  communi- 

3  cation  and  receipt  of  restricted  data  with  intent  to  injure  the 

4  United  States  or  to  secure  an  advantage  to  a  foreign  nation). 

5  "(b)  Grading. — Notwithstanding  the  provisions  of  sections  2201  (b) , 

6  2201(c),  and  2301(b),  the  authorized  sentence  for  a  defendant  found 

7  guilty  of  violating : 

8  "(1)  subsection  (a)  (1)  is  the  sentence  set  forth  in  section  201 

9  of  the  Espionage  and  Sabotage  Act  of  1954  (relating  to  gather- 

10  ing  or  delivering  defense  information  to  aid  a  foreign  govern- 

11  ment),  as  amended  by  section  252  of  the  Criminal  Code  Reform 

12  Act  of  1977  ( 50  U.S.C. ) ; 

13  "(2)  subsection  (a)  (2)  is  the  sentence  set  forth  in  section  224 (a) 

14  or  225  of  the  Atomic   Energy  Act  of   1954,   as  amended    (42 

15  U.S.C.  2274(a)  or  2275). 

16  "§1122.  Disseminating  National  Defense  Information 

17  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  violates: 

18  "  ( 1 )  section  18  of  the  Subversive  Activities  Control  Act  of  1950 

19  (relating  to  gathering,  transmitting,  or  losing  national  defense 

20  information),  as  amended  by  section  251  of  the  Criminal  Code 

21  Reform  Act  of  1977  (50  U.S.C. ) ;  or 

22  "(2)   section  224(b)   of  the  Atomic  Energy  Act  of  1954,  as 

23  amended  (4  U.S.C.  2274(b))   (relating  to  communication  of  re- 

24  stricted  data  with  reason  to  believe  the  data  will  be  used  to  injure 

25  the  United  States  or  to  secure  an  advantage  to  a  foreign  nation ) . 

26  "(b)   Grading. — Notwithstanding  the  provisions  of  sections  2201 

27  (b),  2201(c),  and  2301(b),  the  authorized  sentence  for  a  defendant 

28  found  guilty  of  violating : 

29  "(1)  Subsection  (a)(1)  is  tlie  sentence  set  forth  in  section  18 

30  of  the  Subversive  Activities  Control  Act  of  1950   (relating  to 
81  gathering,  transmitting,  or  losing  national  defense  infownation), 

32  as  aiuondod  by  section  251  of  tlip  Oiminal  Code  Reform  Act  of 

33  1977  (50  U.S.C. ); 

34  "(2)  subsection  (a)(2)  is  the  sentence  set  forth  in  section  224 

35  (b)  of  the  Atomic  Energy  Act  of  1954,  as  amended  (42  U.S.C. 

36  2274(b)). 


9533 

49 

1  "§1123.  Disseminating  Classified  Information 

2  ''(a)  Offi'nse. — A  person  is  guilty  of  an  ollensp  if  ho  violates: 

3  ''(1)  section  24  of  the  Act  of  October  31,  1951  (65  Stat.  719) 

4  (relating  to  disclosure  of  classified  information),  as  amended  by 

5  section  20,3  of  the  Criminal  Code  Reform  Act  of  1977  (50  U.S.C. 

6  )  ;  or 

7  "(1)  subsection  (a)  (1)  is  the  sentence  set  forth  in  section  24  of 

8  1950,  as  amended  (50  TLS.C.  783(b) )  (relating  to  communication 

9  of  classified  information  l)v  a  federal  public  servant). 

10  "(b)   GuADixci. — Xotwithstanding  the  provisions  of  sections  2001 

11  (b),  22l)l(c),  and  2301(b).  the  authorized  sentence  for  a  defendant 

12  found  guilty  of  violating: 

13  (1)  subsection  (a)  (1)  is  the  sentence  set  forth  in  section  24  of 

14  the  Act  of  Otobor  31.  1951  (65  Stat.  719)  (relating  to  disclosure 

15  of  classified  information),  as  amended  by  section  253  of  the  Crimi- 

16  nal  Code  Keform  Act  of  1977  (50  U.S.C. )  ; 

17  "(2)  .subsection  (a)  (2)  is  the  sentence  set  forth  in  section  4  of 

18  the  Subversive  Activities  ("'ontrol  Act  of  1950.  as  amended   (50 

19  U.S.C.  783). 

20  "§1124.  Receiving  Classified  Information 

21  "(a)  Okkkxsk. — A  per.son  is  guilty  of  an  offense  if  he  violates: 

22  ''(1)  section  4(c)  of  the  Subversive  Activities  Control  Act  of 

23  1950.  as  amended  (50  U.S.C.  783(c) )    (relating  to  the  receipt  of 

24  classified  information  by  a  foreign  agent  or  a  member  of  a  com- 

25  munist  organization)  :  or 

26  "(2)  section  227  of  the  Atomic  Energy  Act  of  1954  (42  1 '..S.C. 

27  2277)   (relating  to  disclosiue  of  resti-icted  data). 

28  "(li)    (TiiADiNc. — Notwitlistanding  the  provisions  of  sections  2201 

29  (1)).  2201(c),  and  2301(b).  tlie  authorized  sentence  for  a  ])erson  con- 

30  \icted  of  violating: 

31  "(1)   subsection   (a)(1)   is  tlie  sentence  set    fortli  in  section  4 

32  of  the  Subversive  Activities  Control  Act  of  1950.  as  amended  (50 

33  U.S.C.  783)  ; 

34  "(2)  subsection  (a)(2)  is  the  sentence  set  fo)-tli  in  section  227 

35  of  the  Atomic  Energj'  Act  of  1954  (42  ILS.C.  2277). 

36  "§  1125.  Failing  to  Register  as  a  Person  Trained  in  a  Foreign 

37  Espionage  System 

38  "  (a)  Offense.^A  person  is  guilty  of  an  offense  if  he : 

39  "(1)   fails  to  7-egister  with  the  Attorney  General  as  lequired 

40  bysection2of  the  Act  of  August  1,1950  (50  U.S.C.  851)  (relating 


9534 

50 

1  to  registration  of  persons  trained  in  foreign  espionage  systems)  ; 

2  or 

3  "(2)  violates  a  regulation  or  rule  issued  pursuant  to  the  au- 

4  thority  conferred  in  section  5  of  tlie  Act  of  August   1,  1956 

5  (50  U.S.C.  854)    (relating  to  promulgation  of  regulations  and 

6  rules  for  registration  of  persons  trained  in  foreign  espionage 

7  systems). 

8  "(b)   Grading. — An  otfense  described  in  this  section  is  a  Class  D 

9  felony. 

10  *'§  1126.  Failing  to  Register  as,  or  Acting  as,  a  Foreign  Agent 

11  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if : 

12  "(1)  being  an  agent  of  a  foreign  principal,  he  fails  to  register 

13  with  the  Attorney  General  as  required  by  section  2  of  the  Foreign 

14  Agents  Registration  Act  of  1938,  as  amended  (22  U.S.C.  612) ; 

15  "(2)  he  violates  a  provision  of  section  4(a)  or  5,  or  a  provision 

16  of  section  7  relating  to  a  violation  of  section  4(a)  or  5,  of  the 

17  Foreign  Agents  Registration  Act  of  1938,  as  amended  (22  U.S.C. 

18  614(a),  615,  or  617),  or  a  regulation,  rule,  or  order  issued  pur- 

19  suant  thereto ;  or 

20  "(3)  being  a  federal  public  servant,  he  is  or  acts  as  an  agent 

21  of  a  foreign  principal  required  to  register  under  the  Foreign 

22  Agents  Registration  Act  of  1938,  as  amended  (22  U.S.C.  611  et 

23  seq.),  in  violation  of  5  U.S.C.  9109. 

24  "(b)  Definitions. — As  used  in  this  section,  'agent  of  a  foreign  prin- 

25  cipal'  and  'foreign  principal'  have  the  meanings  set  forth  in  section 

26  1  of  the  Foreign  Agents  Registration  Act  of  1938,  as  amended  (22 

27  U.S.C.  611). 

28  "(c)  Gkading. — An  offense  described  in  this  section  is . 

29  "(1)  a  Class  D  felony  in  the  circumstances  set  forth  in  sub- 

30  section  (a)(1)  or  (a)(2); 

31  "(2)  a  Class  E  felony  in  the  circumstances  set  forth  in  sub- 

32  section  (a)  (3). 

33  "Subchapter  D, — Miscellaneous  National  Defense  Offenses 

"Sec. 

"1131.  Atomic  Energy  Offenses. 

34  "§1131,  Atomic  Energy  Offenses 

35  "(a)  Offense. — A  person  is  guilty  of  sm  offense  if  he  violates  iiny  of 

36  t!i(i    l'oll(i\vin<.':    proxisions  of   tlu     .Vtoiiiic   Knergy    Act    of    li)r)4.   as 

37  iuiicndod : 

38  "(1)  section  57   (42  U.S.C.  2077)    (relating  to  unauthorized 

39  dealing  in  special  nuclear  matgrjal ) ; 


9535 


51 

1  "(2)  section  92  (42  U.S.C.  2122)  (relating  to  the  manufacture, 

2  transfer,  or  possession  of  an  atomic  weapon)  ; 

3  "(3)  section  101  (42  U.S.C.  2131)   (relating  to  the  unlicensed 

4  manufacture,  transfer,  or  possession  of  a  utilization  or  produc 

5  tion  facility  for  special  nuclear  material) ;  or 

6  "(4)  section  108  (42  U.S.C.  2138)    (relating  to  suspension  of 

7  licenses  and  recapture  of  special  nuclear  material)  by  interfering 

8  with  a  recapture  or  enti-y  order. 

9  "(5)  section  223  (42  U.S.C.  2273)  (relating  to  a  violation  of  the 
10  Atomic  Energy  Act  of  1954)  or  of  a  rule,  regulation,  or  order  per- 
il              taining  to  special  nuclear  material,  source  material,  or  byproduct 

12  material ;  or 

13  "(6)  section  226  (42  U.S.C.  2276)   (relating  to  tampering  with 

14  restricted  data). 

15  "(b)    GifADiNG. — Notwithstanding  the  provisions  of  section  2201 

16  (b).  2201(0),  and  2301(b),  the  authorized  sentence  for  a  defendant 

17  found  guilty  of  violating : 

18  "(1)  subsection  (a)  (1)  is  the  sentence  set  forth  in  section  226 

19  of  the  Atomic  Energy   Act  of   1954,  as  amended    (42   U.S.C. 

20  2276)  ; 

21  ''(2)  subsection  (a)(2),  (a)(3),  (a)  (4),  or  (a)(5)  is  tlie  sen- 

22  tence  set  forth  in  section  222  of  the  Atomic  Energy  Act  of  1954, 

23  as  amended  (42  U.S.C.  2272)  ; 

24  "(3)  subsection  (a)  (6)  is  tlie  sentence  set  forth  in  section  223 

25  of  the  Atomic  Energy  Act  of  1954,  as  amended  (42  U.S.C.  2273). 
20        "Chapter  12.— OFFENSES  INVOLVING  INTERNATIONAL 
2?  AFFAIRS 

"Subchapter 

"A.  Offenses  Involving  Foreign  Relations 

"B.  Offenses  Involving  Immigration,  Naturalization,  and  Passports 

28  "Subciiapter  A. — Offenses  Tmolving  Foreign  Relations 

■■See. 

"1201.  Attacking  a  Foreign  Power. 

"1202.  Conspiracy  against  a  Foreign  Power. 

"1203.  Entering  or  Recruiting  for  a  Foreign  Armed  Force. 

"1204.  Violating  Neutrality  by  Causing  Departure  of  a  Vessel  or  Aircraft. 

"1205.  DiSL'iD.siiig  a  Foreign  Diplomatic  Code  or  Correspondence. 

"1206.  F<ngaging  in  an  Unlawful  International  Transaction. 

29  "§1201.  Attacking  a  Foreign  Power 

30  "(a)   Ofitexse. — A  person  is  guilty  of  an  offense  if  he  launches  or 

31  carries  on,  from  the  United  States,  a  military  attack  or  expedition 

32  against  a  foreign  power  with  which  the  United  States  is  not  at  war. 


9536 


52 


1  "(b)  Definition. — As  used  in  this  section, 'military  attack  or  expe- 

2  dition'  against  a  foreign  power  means : 

3  "(1)   any  manned  or  unmanned  warlike  assault  upon  : 

4  "(A)   theterritory  of  such  foreign  power; 

5  "(B)  the  inhabitants  or  property  in  the  territory  of  such 

6  foreign  power,  or 

7  "  ( C )  a  vessel  or  aircraft  of  such  foreign  power ;  or 

8  "(2)   any  organized  warlike  invasion  of  the  territory  of  sucli 

9  foreign  power  whether  launched  from  or  carried  on  by  land,  sea, 

10  or  air. 

11  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  D 

12  felony. 

13  "§  1202.  Conspiracy  against  a  Foreign  Power 

14  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if,  within  the  United 

15  States,  he  agrees  with  one  or  more  persons  to  engage  in  conduct  outside 

16  the  United  States,  the  performance  of  which  would  involve : 

17  "(1)    the  death  of  a  foreign  official  of  a  foreign  power  with 

18  which  the  United  States  is  not  at  war;  or 

19  "(2)   damage  to  or  destruction  of  property  owned  by,  or  under 

20  .    the  care,  custody,  or  control  of,  a  foreign  power  with  which  the 

21  United  States  is  not  at  war,  or  a  public  facility  located  within 

22  the  jurisdiction  of  such  foreign  power ; 

23  and  he  or  one  of  such  persons  in  fact  engages  in  conduct  with  intent 

24  to  effect  any  objective  of  the  agreement. 

25  "(b)  Defenses  Precluded. — It  is  not  a  defense  to  a  prosecution 

26  under  this  section  that  one  or  more  of  the  persons  with  whom  the 

27  defendant  is  alleged  to  have  conspired  has  been  acquitted,  has  not 

28  been  prosecuted  or  convicted,  has  been  convicted  of  a  different  offense, 

29  was  incompetent  or  irresponsible,  or  is  immune  from  or  otherwise  not 

30  subject  to  prosecution. 

31  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  D 

32  felony. 

33  "§  1203.  Entering  or  Recruiting  for  a  Foreign  Armed  Force 

34  "(a)   Offense. — A  person  is  guilty  of  an  offense  if,  within  the 

35  United  States,  he : 

36  "(1)  contracts  to  enter  the  armed  forces  of  a  foreign  power;  or 

37  "(2)  induces  another  person  to  contract  to  enter  the  armed 

38  forces  of  a  foreign  power. 


9537 


53 


1  "(b)    Affirmative  Defense. — It  is  an  affirmative  defense  to  a 

2  prosecution  under  this  section  that : 

3  "(1)  the  foreign  power  was  an  associate  nation  and  the  person 

4  who  contracted  to  enter  its  armed  forces  was  not  a  citizen  of  the 

5  United  States ;  or 

6  "(2)  the  foreign  power  was  not  then  at  war  with  the  United 

7  States  and  the  person  who  contracted  to  enter  its  armed  forces 

8  was  a  citizen  of  the  foreign  power,  and,  in  the  case  of  a  prosecu- 

9  tion  imder  subsection  (a)  (2),  the  person  who  induced  the  other 

10  person  to  contract  to  enter  its  armed  forces  was  also  a  citizen 

11  of  the  foreign  power. 

12  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

13  felony. 

11  "§  1204.  Violating  Neutrality  by  Causing  Departure  of  a  Vessel 

15  or  Aircraft 

IT)  '-(a)  Offense. — A  person  is  guilty  of  an  offense  if,  during  a  war  in 

17  regard  to  which  the  United  States  is  a  neutral  nation,  he  engages  in 

18  conduct  that  causes  the  departure  from  the  United  States  of  a  vessel 

19  or  aircraft: 

20  ''(1)  that  is  equipped  as,  or  that  is  capable  of  service  as,  a  war- 

21  ship  or  warplane.  with  knowledge  that  it  may  be  used  in  the 

22  service  of  a  belligerent  foreign  power ; 

23  "(2)  that  is  the  subject  of  a  detention  order  issued  pursuant  to 

24  a  federal  statute  designed  to  restrict  or  control  the  delivery  of 

25  vessels,  aircraft,  goods,  or  services  to  belligerent  foreign  powers, 

26  or  a  regulation  or  rule  issued  pursuant  thereto;  or 

27  "(3)  that,  in  fact,  has  not  been  issued  the  clearance  required  by 

28  a  federal  statute  designed  to  restrict  or  control  the  delivery  of  ves- 

29  sels,  aircraft,  goods,  or  services  to  belligerent  foreign  powers,  or 

30  a  regulation,  rule,  or  order  issued  pursuant  thereto. 

31  "(b)   Grading. — An  offense  described  in  this  section  is  a  Class  D 

32  felony. 

33  "§  120'5.  Disclosing  a  Foreign  Diplomatic  Code  or  Correspondence 

34  "(a)  Ofi'Ense. — A  person  is  guilLy  of  an  offense  if  he  communicates 

35  to  any  person : 

36  "(1)   a  diplomatic  code  of  a  foreign  government,  or  any  in- 

37  formation  or  matter  prepared  in  such  a  code ;  or 

38  "(2)  any  information  or  matter  intercepted  while  in  the  process 


o 


9538 


S4 

1  mission  in  the  United  States ; 

2  to  which  he  obtained  access  as  a  federal  public  servant. 

3  of  transmission  between  a  foreign  government  and  its  dii)lomatic 

4  "(b)  Definitions. — As  used  in  this  section : 

5  "(1)   'information"  includes  any  property  from  whicli  informa- 

6  tion  may  be  obtained ;  and 

7  "(2)   'intercept'  has  the  meaning  set  forth  in  section  1525(d). 

8  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

9  felony. 

10  "§  1206.  Engaging  in  an  Unlawful  International  Transaction 

11  "(a)   Offense. — A  person  is  <!:uilty  of  an  oU'ense  if  he  violates: 

12  "(1)  section  5  of  the  TTnited  Nations  Participation  Act  of  1915, 

13  as  amended  (22  U.S.C.  287c-)  (relating  to  economic  and  communi- 

14  cation  sanctions  called  for  by  the  United  Nations  Security  Council 

15  and  ordered  by  the  President)  ; 

16  "(2)   section  7  of  the  Neutrality  Act  of  1939,  as  amended  (22 

17  U.S.C.  447)  (relating  to  transactions  involving  securities  or  obli- 

18  gations  of  belligerent  foreign  powers) ; 

19  "(3)  section  38  of  the  Arms  Export  Control  Act  (22  U.S.C. 

20  2778)  (relating  to  regulation  of  the  fxpoit  and  import  of  defense 

21  articles  and  defense  services)  : 

22  "(4)   section  3(a)  or  ,^)(b)  of  the  Trading  with  the  Enemy  Act, 

23  as  amended  (50  U.S.C.  App.  3(a)  or  5(b))    (relating  to  trade 

24  with  an  enemy  or  an  ally  of  an  enemy  of  the  United  States)  ;  or 

25  "(5)  section  6(b)  of  the  Export  Administration  Act  of  1969 

26  (50  U.S.C.  App.  2405(b))   (relating  to  the  export  of  prohibited 

27  goods  and  teclmological  information  to  ceitain  nations)  ; 

28  with  intent  to  conceal  any  matter  from  a  government  agency  author- 

29  ized  to  administer  such  statute,  or  witii  knowledge  that  such  conduct 

30  obstructs  or  im]iaii's  the  administration  of  sucli  statute  or  of  any  fed- 

31  eral  government  function. 

32  "(b)   Grading. — An  offense  descril)e(l  in  tliis  section  is  a  Class  D 

33  felony. 

34  "Subchapter  B. — Offenses  Involving  Immigration,  Natural- 

35  ization,  and  Passports 

"Sec. 

"1211.  t'lilnwfuUy  Entering  the  T'nitod  States  as  an  Alien. 

"1212.   SinuKK'HnKan  Alien  into  tlio  United  State.':. 

"1213.  Hindering  Discovery  of  an  Alien  Unlawfully  in  the  United  State.s. 

"1214.  Unlawfully  Einiiloying  an  Alien. 

^•^^2\^).  Fraudulently  Acquiring  or  Improperly  TTsing  Evidence  of  Citizenship. 

"1216.  Fraudulently  Acquiring  or  Improperly  U.sing  a  Pas-sjiort. 

"1217.  General  Provision.^  for  SulK-hapter  B. 


9539 

55 

1  "§1211.  Unlawfully  Entering  the  United  States  as  an  Alien 

2  "(a)   Offense. — A  person  is  guilty  of  an  offense  if,  being  an  alien, 

3  he: 

4  "(1)  enters  the  United  States  at  a  time  or  place  other  than 

5  a  time  or  place  designated  for  such  entry  under  a  federal  statute, 

6  or  a  regulation,  rule,  or  order  issued  pursuant  thereto ; 

7  "(2)  eludes  examination   or   inspection   by   an   immigration 

8  officer ; 

9  "(3)  obtains  entry  into  the  United  States  by  fraud;  or 

10  "(4)   enters,  or  is  present  in,  the  United  States  after  having 

11  been  deported  from  the  United  States  under  an  order  of  exclusion 

12  or  deportation. 

13  "  (b)  Affirmative  Defense. — It  is  an  affirmative  defense  to  a  prose- 

14  cution  under  subsection  (a)  (4)  that : 

15  "(1)  the   Attorney   General   had  expressly  consented  to  the 

16  alien's  reapplying  for  admission  to  the  United  States,  prior  to  his 

17  reembarkation  at  a  place  outside  the  United  States  or  prior  to  his 

18  application  for  admission  from  foreign  contiguous  territory ;  or 

19  "(2)  the  alien  had  previously  been  deported  under  an  order  of 

20  exclusion  and  he  was  not  required  by  a  federal  statute,  or  a 

21  regulation,  rule,  or  order  issued  pursuant  thereto,  to  obtain  the 

22  advance  consent  described  in  paragraph  ( 1 ) . 

23  "(c)   Grading. — An  offense  described  in  this  section  is : 

24  ''(1)   a  Class  D  felony  if  the  actor  uses  a  passport,  certificate  of 

25  natui'alization  or  citizenship,  immigrant  or  nonimmigrant  visa, 

26  border  ci-ossing  identification  card,  alien  registration  receipt  card, 

27  or  other  document  prescribed  by  statute  or  icgulation  for  entry 

28  into,  oi-  as  evidence  of  an  authorized  stay  in,  tlie  ITnited  States, 

29  tliat  is  counterfeited  or  forged  or  that  pertains  to  another  person; 

30  or 

31  " (2)   a  Class  E  felony  if  the  offense  is  committed  in  the  circum- 

32  stances  set  forth  in  subsection  (a)  (4)  and  the  alien  previously  has 

33  been  convicted  of  that  ofTense  or  of  any  federal,  state,  or  foreign 

34  felony ; 

35  "  (3)   a  Class  B  misdemeanor  in  any  other  case. 

36  "§1212.  Smuggling  an  Alien  into  the  United  States 

37  "(a)   Offense. — A  person  is  guilty  of  an  offense  if  he  brings  into 

38  the  ITnited  States  an  al ien  who  he  knows  is : 

39  "  ( 1 )   not  admitted  for  entry  into  the  United  States  by  an  immi- 

40  gration  officer ;  or 


9540 

56 

1  "(2)   not  lawfully  entitled  to  enter  or  reside  within  the  United 

2  States. 

3  "(b)   GittiDiNG.- — An  offense  described  in  this  section  is : 

4  "(1)   a  Class  D  felony  if  the  actor  engages  in  the  described 

5  conduct : 

6  "(-A.)  as  consideration  for  the  receipt,  or  in  expectation 

7  of  the  receipt,  of  anything  of  pecuniary  value ;  or 

8  "(B)   with  knowledge  that  the  alien  intends  to  engage, 

9  in  the  United  States,  in  conduct  constituting  a  federal  or  state 

10  felony ; 

11  "(2)  a  Class  E  felony  «*  ttny  other  ease  if  the  actor  engages  in 

12  the  described  conduct  knowing  that  the  alien  is  a  member  of 

13  the  class  of  aliens  that,  in  fact,  is  excludable  from  the  United 

14  States  under  section  212(a)  (27),  (28),  or  (29)  of  the  Immigra- 

15  tion  and  Nationality  Act  of  1952,  as  amejided  (8  U.S.C.  1182(a) 

16  (27),  (28),  or  (29)); 

17  "(3)  a  Class  A  misdemeanor  in  any  other  case. 

18  "§  1213.  Hindering  Discovery  of  an  Alien  Unlawfully  in  the  United 

19  States 

20  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if  he  interferes  with, 

21  hinders,  delays,  or  prevents  the  discovery  or  apprehension  of  an  alien, 

22  knowing  tliat  such  alien  is  unlawfully  within  the  United  States,  by 

23  engaging  in  any  conduct  described  in  subparagraphs  (A)  through  (D) 

24  of  section  1311(a)  (1)  (Hindering  Law  Enforcement). 

25  "  (b)  Grading. — An  offense  described  in  this  section  is : 

26  "  ( 1 )  a  Class  E  felony  i  f  the  actor  engages  in  the  conduct : 

27  "(A.)  as  consideration  for  the  receipt,  or  in  expectation  of 

28  thereceipt,  of  anything  of  pecuniary  value; 

29  "(15)  with  knowledge  that  tlie  alien  intends  to  engage,  in 

30  the  United  States,  in  conduct  constituting  a  federal  or  state 

31  felony; 

32  "(C)  with  intent  to  obtain  anything  of  value  for  placing  the 

33  alien  in  the  employ  of  another;  or 

34  "(D)  with  intent  that  the  alien  be  employed  or  continued 
36  in  the  employ  of  an  enterprise  operated  for  profit; 

36  "(2)  a  Class  A  misdemeanor  in  any  other  case. 

37  "§  1214.  Unlawfully  Employing  an  Alien 

38  "(a)  Offense. — A  pei-son  is  guilty  of  an  offense  if,  being  a  farm 

39  labor  contractor  who  has  failed  to  obtain  a  certificate  of  registration. 


9541 

5Y 

1  or  whose  certificate  has  been  suspended  oi-  revolted,  pursuant  to  the 

2  Fair  Labor  Contractor  Registration  Act  of  1963,  as  amended  (7  U.S.C. 

3  2041  et  seq.),  lie  violates  section  6(f)  of  the  Act  (7  U.S.C.  2045(f)) 

4  (relating  to  employing  the  services  of  an  alien  not  entitled  to  accept 

5  employment),  or  a  legulation,  rule,  or  order  issued  pursuant  thereto. 

6  "(b)   (jtRADiNG. — An  ort'ense  described  in  this  section  is  a  Class  E 

7  felony. 

8  "§  1215.  Fraudulently  Acquiring  or  Improperly  Using  Evidence 

9  of  Citizenship 

10  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he: 

11  "  ( 1 )  obtains  for  any  person,  by  fraud,  United  States  naturaliza- 

12  tion,  the  creation  of  a  record  of  permanent  residence  in  the  United 

13  States,  or  the  issuance  of  a  certificate  or  other  documentary 

14  evidence  of  United  States  naturalization  or  citizenship ; 

15  "(2)    uses   a   certificate   or   other   documentary    evidence    of 

16  United  States  naturalization  or  citizenship,  or  a  copy  or  duplicate 

17  thereof,  that  was  unlawfully  obtained;  or 

18  "(3)    uses   a   certificate   or   other    documentary   evidence   of 

19  United  States  naturalization  or  citizenship  that  was  issued  to  an- 

20  other  person,  or  a  copy  or  duplicate  thereof,  as  showing  naturali- 

21  zation  or  citizenship  of  any  person  other  than  the  person  for 

22  whom  it  was  lawfully  issued. 

23  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

24  felony. 

25  "§  1216.  Fraudulently  Acquiring  or  Improperly  Using  a  Passport 

26  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he: 

27  "(1)   obtains  the  issuance  or  verification  of  a  United  States 

28  passport  by  fraud ; 

29  "(2)  uses  a  United  States  passport,  the  issuance  or  verification 

30  of  which  was  unlawfully  obtained ;  or 

31  "(3)  uses  a  United  States  passport  that  was  issued  for  the  use 

32  of  another  person. 

33  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

34  felony. 

35  "§  1217.  General  Provisions  for  Subchapter  B 

36  "  (a)  Definitions. — As  used  in  this  subchapter : 

37  "(1)  'alien',  'application  for  admission',  'border  crossing  identi- 

38  fication  card',  'entry',  'immigration  officer',  'passport',  'United 

39  States',  'immigrant  visa',  and  'nonimmigrant  visa'  have  the  mean- 


9542 

58 

1  ings  prescribed  in  section  101  of  the  Immigration  and  Nationality 

2  Act,  as  amended  (8  U.S.C.  1101),  and  'alien'  includes  an  alien 

3  'crewman'  as  defined  in  that  Act ; 

4  "(2)  'fraud'  includes  conduct  described  in  sections  1301(a)  and 

5  1343(a)(1)  (A)  through  (E). 

6  "(b)  Proof  of  Materiality. — To  the  extent  that  materiality  is  an 

7  element  of  an  offense  desciiljed  in  section  1211  tlirough  1216,  the 
S  provisions  of  section  1345(b)  (2)  that  apply  to  section  1343  (Making 
9      a  False  Statement)  apply  also  to  such  sections. 

10  "(c)    Exception. — The  provisions  of  section  289  of  the  Act  of 

11  June  27,  1952  (8  U.S.C.  1359),  apply  to  this  subchapter. 

12  "Chapter  13.— OFFENSES  INVOLVING  GOVERNMENT 

13  PROCESSES 

"Subchapter 

"A.  General  Obstructions  of  Government  FHjnctions. 

"B.  Obstructions  of  Law  Enforcement. 

"C.  Obstructions  of  Justice. 

"D.  Contempt  Offenses. 

"B.  Perjury,  False  Statements,  and  Related  Offenses. 

"F.  Official  Corruption  and  Intimidation. 

14  "Subchapter  A. — General  Obstructions  of  Government 

15  Functions 

"Sec. 

"1301.  Obstructing  a  Government  Function  by  Fraud. 

"1302.  Obstructing  a  Government  Function  by  Physical  Interference. 

"1303.  Impersonating  an  Official. 

16  "§1301.  Obstructing  a  Government  Function  by  Fraud 

17  "(a)  Offense. — A  person  is  guilty  of  an  oft'ense  if  he  intentionally 

18  obstructs  or  impairs  a  government  function  by  dofiauding  the  govern- 

19  itient  in  any  manner. 

20  "(b)   Grading. — An  offense  described  in  this  section  is  a  Class  D 

21  felony. 

22  "(c)   JuRiSDicnoN. — There  is  federal  jurisdiction  over  an  offense 

23  described  in  this  section  if  the  government  function  is  a  federal  govern- 

24  ment  function. 

25  "§1302.  Obstructing  a  Government  Function  by  Physical  Inter- 

26  ference 

27  "(a)   Offen.«k. — A  person  is  guilty  of  an  offense  if,  by  means  of 

28  pliysical  interference  or  olistaclo,  he  intentionally  obstructs  or  impairs 

29  a  government  function  involving: 

30  "(1)  the  pcrfoi-mauco  by  a  federal  public  servant  of  an  official 

31  duty; 


9543 


59 


1  "  (2)  (lie  performance  by  an  inspector  of  a  specific  duty  imposed 

2  by  a  federal  statute,  or  by  a  regulation,  rule,  or  order  issued 

3  pursuant  theieto; 

4  "  (3)  the  delivery  of  mail ;  or 

5  "(4)  the  exercise  of  a  risht,  or  the  performance  of  a  duty,  under 

6  a  court  order,  judgment,  or  decree. 

7  "(b)  Dkfknse. — It  is  a  defense  to  a  prosecution  under  this  section 

8  t hat  tlie  government  function  was : 

9  "(1)  unlawful;  and 

10  "(2)  conducted  by  a  public  servant  who  was  not  acting  in  good 

1 1  faith. 

12  "(c)   Grading. —  An  offense  described  in  this  section  is  a  Class  A 

13  misdemeanor. 

14  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

15  described  in  this  section  if  the  government  function  is  a  federal  gov- 

16  ernment  function. 

17  "§  1303.  Impersonating  an  Official 

18  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  pretends  to  be 

19  a  public  servant  or  a  foreign  official  and  purports  to  exercise  the  au- 

20  thority  of  such  public  servant  or  foreign  official. 

21  "(b)   Defense  Precluded. — It  is  not  a  defense  to  a  prosecution 

22  under  this  section  that  the  pretended  capacity  did  not  exist  or  th^t 

23  the  pretended  authority  could  not  legally  or  otherwise  have  been  exer- 

24  cised  or  conferred. 

25  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

26  felony. 

27  "(d)   Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

28  described  in  this  section  if : 

29  "(1)  the  pretended  capacity  or  authority  is  that  of  a  federal 

30  public  servant ;  or 

31  "(2)  the  pretended  capacity  or  authority  is  that  of  a  foreign 

32  official  and  the  offense  is  committed  within  the  general  jurisdiction 

33  of  the  United  States  or  within  the  special  jurisdiction  of  the 

34  United  States. 

35  "Subchapter  B. — Obstructions  of  Law  Enforcement 

"Sec. 

"1311.  Hindering  Law  Enforcement. 

"1312.  Bail  Jumping. 

"1313.  Escape. 

"1314.  Providing  or  Possessing  Contraband  in  a  Prison. 

"1315.  Flight  to  Avoid  Prosecution  or  Appearance  as  a  Witness. 


9544 

60 

1  "§  1311.  Hindering  Law  Enforcement 

2  "(a)  Offense. — Apersonisguilty  of  anoffense  if  he: 

3  "(1)  interferes  with,  hinders,  delays,  or  prevents,  the  discovery, 

4  apprehension,  prosecution,  conviction,  or  punishment  of  another 

5  person,  knowing  that  such  other  person  has  committed  a  crime, 

6  or  is  charged  with  or  being  sought  for  a  crime,  by: 

7  "(A)  harboring  the  other  person  or  concealing  him  or  his 

8  identity ; 

9  "(B)  providing  the  other  person  with  a  weapon,  money, 

10  transportation,  disgiiise,  or  other  means  of  avoiding  or  mini- 

11  mizingthe  riskof  discovery  or  apprehension; 

12  "(C)  warning  the  other  person  of  impending  discovery  or 

13  apprehension ;  or 

14  "(D)  altering,  destroying,  mutilating,  concealing,  or  re- 

15  moving  a  record,  document,  or  other  object ;  or 

16  "(2)  aids  another  person  to  secrete,  disguise,  or  convert  the 

17  proceeds  of  a  crime  or  otherwise  to  profit  from  a  crime. 

18  "(b)  Affirmative  Defense. — It  is  an  affirmative  defense  to  a  prose- 

19  eution  under  subsection  (a)(1)(C),  and  to  a  prosecution  under  any 

20  section  incorporating  by  reference  the  provisions  of  subparagraph  (C) 

21  of  subsection  (a)(1),  that  warning  was  made  solely  in  an  effort  to 

22  bring  the  other  person  into  compliance  with  the  law. 

23  "  (c)  Defense  Precluded. — It  is  not  a  defense  to  a  prosecution  under 

24  this  section  that  the  record,  document,  or  other  object  would  have  been 

25  legally  privileged  or  would  have  been  inadmissible  in  evidence. 

26  "(d)  Grading. — An  offense  described  in  this  section  is : 

27  "(1)  a  Class  D  felony  if  the  other  person's  crime  is  a  Class  A, 

28  B,  or  C  felony,  and  tlu>  actor  knows  the  general  nature  of  the 

29  crime  or  is  reckless  with  regard  to  the  general  nature  of  the  crime ; 

30  "(2)  a  Class  E  felony  if: 

gi  "(A)  the  other  person's  crime  is  a  Class  D  felony,  and 

32  the  actor  knows  the  general  nature  of  the  conduct  constitut- 

gg  ing  such  crime  or  is  reckless  with  regard  to  the  general 

g^  nature  of  suoli  conduct;  oi- 

g5  "(B)  the  defendant  committed  the  offense  as  consideration 

gg  for  the  receipt,  or  in  expectation  of  the  receipt,  of  anything 

37  of  pecuniary  value ; 

g3  "(3)  a  Class  A  misdemeanor  in  any  other  case. 

39  "(c)  Jt'RisDicTTON. — Tliere  is  federal  jurisdiction  over  an  ofTense 

40  described  in  tliis  section  if  the  crime  that  the  other  person  has  com- 


9545 


61 


1  mitted,  is  cliarged  with,  is  being  sought  for,  or  is  seeking  to  profit 

2  from,  is  a  crime  over  which  federal  jurisdiction  exists. 

3  "§1312.  Bail  Jumping 

4  "  (a)  Offexse. — A  person  is  guilty  of  an  offense  if,  after  having  been 

5  released  pursuant  to  the  provisions  of  subchapter  A  of  chapter  35  or 

6  of  subchapter  A  of  chapter  36 : 

7  "(1)   he  fails  to  appear  before  a  court  as  required  by  the 

8  conditions  of  his  release;  or 

9  "(2)  he  fails  to  surrender  for  service  of  sentence  pursuant  to 

10  a  court  order. 

11  "(b)    Affirmati^t,   Defense. — It   is   an   affirmative  defense  to  a 

12  prosecution   under   this   section    that   uncontrollable    circumstances 

13  prevented  tlie  defendant  from  appearing  or  surrendering  and  that 

14  the  defendant  did  not  contribute  to  the  creation  of  such  circumstances 

15  in  reckless  disregard  of  the  requirement  that  he  appear  or  surrender. 

16  "(c)   Grading. — An  offense  described  in  this  section  is: 

17  "(1)  a  Class  D  felony  if  the  person  was  released: 

18  "(A)  in  connection  with  a  charge  of  a  Class  A,  B,  C,  or  D 

19  felony;  or 

20  "(B)  while  awaiting  sentence  or  pending  review  of  sen- 

21  tence,  appeal,  or  certiorari  after  conviction  of  any  crime; 

22  "(2)  a  Class  E  felony  if  the  person  was  released  in  connection 

23  with  a  charge  of  a  Class  E  felony ;  or 

24  "(3)   a  Class  A  misdemeanor  if  the  person  was  released  in 

25  connection  with  a  charge  of  a  misdemeanor  or  for  appearance  as  a 

26  material  witness. 

27  "§1313.  Escape 

28  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if  he : 

29  "  ( 1 )  escapes  from  official  detention ;  or 

30  "(2)  fails  to  return  to  official  detention  following  temporary 

31  leave,  granted  for  a  specified  purpose  or  a  limited  period,  pur- 

32  suant  to  the  terms  under  which  such  leave  was  granted. 

33  "(b)  Affirmative  Defense.— It  is  an  affirmative  defense  to  a  prose- 

34  cution  under  this  section  that  the  bringing  about  or  maintaining  of  the 

35  official  detention  was  illegal,  or  that  the  committing  or  detaining  au- 

36  thority  lacked  jurisdiction,  if : 

37  "(1)  the  offense  did  not  involve  escape  from  a  prison  or  other 

38  facility  used  for  official  detention ; 

39  "  (2)  the  offense  did  not  involve  a  substantial  risk  of  harm  to  the 

40  person  or  property  of  another ;  and 


9546 

62 

1  "  (3)  the  official  detention  was  not  in  good  faith. 

2  "  (c)  Grading. — An  offense  described  in  this  section  is : 

3  "(1)  aClassDfelony  if  the  actor  was  in  official  detention: 

4  "  ( A)  on  a  charge  of,  or  as  a  result  of  an  arrest  for,  a  felony ; 

5  or 

6  "(B)  pursuant  to  his  conviction  of  an  offense  other  than  an 

7  adjudication  of  juvenile  delinquency ; 

8  "  (2)  a  Class  A  misdemeanor  in  any  other  case. 

9  "(d)  JuRiSDiCTio>f. — There  is  federal  jurisdiction  over  an  offense 

10  described  in  this  section  if : 

11  "(1)  the  official  detention  resulted  from  an  arrest  made,  or  an 

12  order  or  process  issued,  under  the  laws  of  the  United  States ; 

13  "(2)  the  escape  is  from  official  detention  by  a  federal  public 

14  servant;  or 

15  "  (3)  the  escape  is  from  official  detention  in  a  federal  facility. 

16  "§  1314.  Providing  or  Possessing  Contraband  in  a  Prison 

17  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  in  violation  of  a 

18  statute,  or  a  regulation,  rule,  or  order  issued  pursuant  thereto : 

19  "(1)  lie  provides  to  an  inmate  of  an  official  detention  facility, 

20  or  introduces  into  an  official  detention  facility: 

21  "(A)  a  firearm  or  destructive  device; 

22  "(B)  any  other  weapon  or  object  that  may  be  used  as  a 

23  weapon  or  as  a  means  of  facilitating  escape; 

24  "(C)  a  narcotic  drug  as  defined  in  section  102  of  the  Con- 

25  •     trolled  Substances  Act  (21  [T.S.C.  802)  ;  or 

26  "(D)  a  controlled  substance,  other  thuTi  a  narcotic  drug, 

27  as  defined  in  section  102  of  the  Controlled  Substances  Act 

28  (21  U.S.C.  802),  or  an  alcoholic  leverage:  or 

29  "(E)  United  States  currency;  or 

30  "(2)  being  an  inmate  of  an  official  detention  facility,  he  makes, 

31  possesses,  procures,  or  otherwise  provides  himself  with 

32  "(A)  anything  described  in  par  •,::iaph  (1)  ;  or 

33  "(B)  any  other  object. 

34  "(b)  Grading. — An  offense  described  in  this  section  is: 

35  "(1)  a  Class  C  felony  if  the  object  is  anything  set  forth  in 

36  paragraph  (1)  (A)  ; 

37  "(2)  a  Class  D  felony  if  the  object  is  anything  set  forth  in 

38  paragraph    (1)(R)   or   (1)(C); 

39  "(3)  a  Class  A  misdemeanor  if  the  object  is  anything  set  forth 

40  in  paragraph  (1)   (D)  or  (1)(E); 


9547 


63 


1  "(4)  a  Class  B  misdemeanor  if  the  object  is  any  other  object. 

2  "(c)   Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

3  described  in  this  section  if  tlic  oflii  ial  detention  facility  is  a  federal 

4  facility. 

5  "§  1315.  Flight  to  Avoid  Prosecution  or  Appearance  as  a  Witness 

6  "(a)   Offense. — A  person  is  guilty  of  an  offense  if  he  leaves  a  state 

7  or  local  jurisdiction  with  intent  to  avoid : 

8  "  ( 1 )   criminal  prosecution,  or  official  detention  after  conviction, 

9  for  an  attempt  to  commit,  a  conspiracy  to  commit,  or  the  commis- 

10  sion  of  a  state  or  local  felony  in  such  jurisdiction ; 

11  "(2)   appeariu'^'-  as  a  witness,  giving  testimony,  or  producing  a 

12  record,  document,  or  other  object  in  an  official  proceeding  in  which 

13  a  state  or  local  felony  in  such  jurisdiction  is  charged  or  being  in- 

14  vestigated ;  or 

15  "(3)   contempt  proceedings,  or  criminal  prosecution,  or  official 

16  detention  after  conviction,  for  failure  to  appear  as  a  witness,  to 

17  give  testimony,  or  to  produce  a  record,  document,  or  other  object 

18  in  an  official  proceeding  in  which  a  state  or  local  felony  in  such 

19  jurisdiction  is  charged  or  being  investigated. 

20  "(b)   Deiense  Precluded. — It  is  not  a  defense  to  a  prosecution 

21  under  this  section  that  the  testimony,  or  the  record,  document,  or  other 

22  object,  would  have  been  legally  privileged  or  would  have  been  inadmis- 

23  sible  in  evidence. 

24  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

25  felony. 

26  "(d)  JcKTSDiCTioN. — There  is  federal  jurisdiction  over  an  offense 

27  described  in  this  section  if  movement  of  the  actor  across  a  state  or 

28  United  States  boundary  occurs  in  the  commission  of  the  offense. 

29  "Subchapter  C. — Obstructions  of  Justice 

"Sec. 

"1321.  Witness  bribery. 

"1322.  Corrupting  a  Witness  or  an  Informant. 

"1323.  Tampering  with  n  Witness  or  an  Informant, 

"1324.  Kctaliating  against  a  Witness  or  an  Informant. 

"1325.  Tampering  with  Physical  Evidence. 

"1326.  In\nroperl.v  Influencing  a  Juror. 

"1327.  Monitoring  Jury  Deliberations. 

"1328.  Demonstrating  to  Influence  a  Judicinl  Proceeding. 

30  "§  1321.  Witness  Bribery 

31  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if  he : 

32  "(1)  offers,  gives,  or  agrees  to  give  to  another  person;  or 

33  "(2)  solicits,  demands,  accepts,  or  agrees  to  accept  from  another 

34  person ; 


92-465  O  -  77  -  63 


9548 

64 

1  anything  of  value  in  return  for  an  agreement  or  understanding  that 

2  the  testimony  of  tlie  recipient  will  be  influenced  in  an  official  pro- 

3  ceeding. 

4  "(b)  Defenses  Preceuded. — It  is  not  a  defense  to  a  prosecution 

5  under  this  section  that : 

6  "(1)   an  official  pi-oceeding  was  not  pending  or  about  to  be 

7  instituted ;  or 

8  "(2)  the  defendant,  or  other  recipient  or  proposed  recipient  of 

9  the  thing  of  value,  by  the  stime  conduct  also  committed  an  offense 

10  described  in  section  1722  (Extortion),  1723  (Blackmail),  or  1731 

11  (Theft). 

12  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  C 

13  felony. 

14  "(d)   Jurisdiction.- — There  is  federal  jurisdiction  over  an  offense 

15  described  in  this  section  if : 

16  "(1)   the  official  proceeding  is  or  would  be  a  federal  official 

17  proceeding; 

18  "  (2)  the  United  States  mail  or  a  facility  of  interstate  or  foreign 

19  commerce  is  used  in  the  planning,  promotion,  management,  execu- 

20  tion,  consummation,  or  concealment  of  the  offense,  or  in  the  dis- 

21  tribution  of  the  proceeds  of  the  offense ;  or 

22  "(3)   movement  of  a  person  across  a  state  or  United  States 

23  boundary  occurs  in  the  planning,  promotion,  management,  execu- 

24  tion,  consummation,  or  concealment  of  the  offense,  or  in  the  dis- 

25  tribution  of  the  proceeds  of  the  offense. 

26  "§  1322.  Corrupting  a  Witness  or  an  Informant 

27  "  (8.)   Offense. — A  person  is  guilty  of  an  offense  if  he : 

28  "  ( 1 )  offers,  gives,  or  agrees  to  give  to  another  person,  or  solicits, 

29  demands,  accepts,  or  agrees  to  accept  from  another  person,  any- 

30  thing  of  value  for  or  because  of  any  person's : 

31  "  ( A)   testimony  in  an  official  proceeding ; 

32  "(B)   withholding   testimony,   or   withholding   a    record, 

33  document,  or  other  object,  from  an  official  proceeding; 

34  "(^)   •""gaging  in  conduct  constituting  an  offense  under 

35  section  1325  (Tampering  with  Physical  Evidence) ; 

36  "(!))  evading  legal  process  summoning  him  to  appear  as  a 

37  witness,  or  to  produce  a  record,  document,  or  other  object,  in 

38  an  official  proceeding ; 

39  "(E)   absenting   himself   from   an   official   proceeding  to 

40  which  he  has  been  summoned  by  legal  process ;  or 


9549 


65 

1  "  (2)  offers,  gives,  or  agrees  to  give  anji^hing  of  value  to  another 

2  person  for  or  because  of  any  person's  hindering,  delaying,  or  pre- 

3  venting  the  communication  to  a  law  enforcement  officer  of  in- 

4  formation  relating  to  an  offense  or  a  possible  offense. 

5  "(b)   Defense  Precluded. — It  is  not  a  defense  to  a  prosecution 

6  under  this  section  that : 

7  "(1)   an  official  proceeding  was  not  pending  or  about  to  be 

8  instituted ; 

9  "(2)  the  testimony,  or  the  record,  document,  or  other  object, 

10  would  have  been  legally  privileged  or  would  have  been  inad- 

11  missible  in  evidence ;  or 

12  "(<^)   the  defendant,  or  other  recipient  or  proposed  recipient 

13  of  the  thing  of  value,  by  the  same  conduct  also  committed  an  of- 

14  fense  described  in  section  1722  (Extortion),  1723  (Blackmail), 

15  or  1731  (Theft). 

16  "(c)   Grading. — An  offense  described  in  this  section  is  a  Class  E 

17  felony. 

18  ''(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

19  described  in  this  section  if : 

20  "(1)  the  official  proceeding  is  or  would  be  a  federal  official 

21  proceeding; 

22  "(2)   the  law  enforcement  officer  is  a  federal  public  servant 

23  and  the  information  relates  to  a  federal  offense  or  a  possible  fed- 

24  eral  offense; 

25  "(3)  the  United  States  mail  or  a  facility  of  interstate  or  for- 

26  eign  commerce  is  used  in  the  planning,  promotion,  management, 

27  execution,  consummation,  or  concealment  of  the  offense,  or  in 

28  the  distribution  of  the  proceeds  of  the  offense;  or 

29  "(4)  movement  of  a  person  across  a  state  or  United  States 

30  boundary  occurs  in  the  ])]anning,  promotion,  management,  execu- 

31  tion,  consummation,  or  concealment  of  the  offense,  or  in  the  dis- 

32  tribution  of  the  proceeds  of  the  offense. 

33  "§  1323.  Tampering  with  a  Witness  or  an  Informant 

34  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he: 

35  "  ( 1 )  uses  force,  threat,  intimidation,  or  deception  with  intent  to : 

36  "(A)   influence  the  testimony  of  another  person  in  an  of- 

37  ficial  proceeding;  or 

33  "(B)  cause  or  induce  another  person  to : 

39  "(i)   withhold  testimony,  or  withhold  a  record,  docu- 

40  ment,  or  other  object,  from  an  official  proceeding; 


9550 


66 

1  "(ii)  engage  in  conduct  constituting  an  offense  under 

2  section  1325  (Tampering  with  Physical  Evidence)  ; 

3  "  (iii)  evade  legal  process  summoning  him  to  appear  as 

4  a  witness,  or  to  produce  a  record,  document,  or  other 

5  object,  in  an  official  proceeding;  or 

6  "(iv)    absent  himself  from  an  official  proceeding  to 

7  which  he  has  been  summoned  by  legal  process ;  or 

8  "(C)  hinder,  delay,  or  prevent  the  communication  to  a  law 

9  enforcement  officer  of  information  relating  to  an  offense  or  a 

10  possible  offense;  or 

11  "(2)  does  any  other  act  with  intent  to  influence  improperly,  or 

12  to  obstruct  or  impair,  the: 

13  "(-A-)  administration  of  justice; 

14  "(E)  administration  of  a  law  under  which  an  official  pro- 

15  ceeding  is  being  or  may  be  conducted ;  or 

16  "(C)  exercise  of  a  legislative  power  of  inquiry. 

17  "(b)  Affirmative  Defense. — It  is  an  affirmative  defense  to  a  prose- 

18  cution  under  subsection  (a)(1)(A)  that  the  conduct  engaged  in  to 

19  threaten  or  to  intimidate  consisted  solely  of  lawful  conduct  and  that 

20  the  defendant's  sole  intention  was  to  compel  or  induce  the  other  per- 

21  son  to  testify  truthfully. 

22  "  (c)  Defense  Precluded. — It  is  not  a  defense  to  a  prosecution  under 

23  this  section  that : 

24  "  ( 1 )  an  official  proceeding  was  not  pending  or  about  to  be  insti- 

25  tuted;  or 

26  "(2)  the  testimony,  or  the  record,  document,  or  other  object, 

27  would  have  been  legally  privileged  or  would  have  been  inadmissi- 

28  bio  in  evidence. 

29  "(d)   Grading. — An  offense  described  in  this  section  is: 

30  "(1)  a  Class  D  felony  in  the  circumstances  set  forth  in  sub- 

31  section  (a)  (1) ; 

32  "(2)   a  Class  E  felony  in  the  circumstances  set  forth  in  sub- 

33  section  (a)(2). 

34  "(e)   Jurisdiction.— There  is  federal  jurisdiction  over  an  offense 

35  described  in  this  section  if : 

36  "(1)   the  official  proceeding  is  or  would  be  a  federal  official 

37  proceeding ; 

38  "(2)  the  law  enforcement  officer  is  a  federal  public  servant  and 

39  the  information  relates  to  a  federal  offense  or  a  possible  federal 

40  offense ; 


9551 

67 

1  "(3)  the  administration  of  justice,  administration  of  a  law,  or 

2  exercise  of  a  legislative  power  of  inquiry  relates  to  a  federal 

3  government  function; 

4  "(4)  the  United  States  mail  or  a  facility  of  interstate  or  foreign 

5  commerce  is  used  in  the  planning,  promotion,  management,  execu- 

6  tion,  consummation,  or  concealment  of  the  offense,  or  in  the  distri- 

7  bution  of  the  proceeds  of  the  offense ;  or 

8  "(5)   movement  of  a  person  across  a  state  or  United  States 

9  boundary  occurs  in  the  planning,  promotion,  management,  execu- 

10  tion,  consummation,  or  concealment  of  the  offense  or  in  the  distri- 

11  bution  of  the  proceeds  of  the  offense. 

12  "§1324.  Retaliating  against  a  Witness  or  an  Informant 

13  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he : 

14  "(1)  engages  in  conduct  that  causes  bodily  injury  to  another 

15  person  or  damages  the  property  of  another  person  because  of : 

16  "  ( A)  any  testimony  given,  or  any  record,  document,  or  other 

17  object  produced,  by  a  witness  in  an  official  proceeding ;  or 

18  "(B)  any  information  relating  to  an  otTense  or  a  possible 

19  offense  given  by  a  person  to  a  law  enforcement  officer;  or 

20  "(2)  improperly  subjects  another  person  to  economic  loss  or 

21  injury  to  his  business  or  profession  because  of  any  matter  de- 

22  scribed  in  subparagraph  (A)  or  (B)  of  paragraph  (1). 

23  ''(b)  Gr.\dixg. — An  offense  described  in  this  section  is  a  Class  A 

24  misdemeanor. 

25  "(c)   Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

26  described  in  this  section  if: 

27  "(1)  the  official  proceeding  is  a  federal  official  proceeding; 

28  "(2)  the  law  enforcement  officer  is  a  federal  public  servant  and 

29  the  information  relates  to  a  federal  offense  or  a  possible  federal 

30  offense ; 

31  "  (3)  the  United  States  mail  or  a  facility  of  interstate  or  foreign 

32  commerce  is  used  in  the  planning,  promotion,  management,  exe- 

33  cution,  consummation,  or  concealment  of  the  offense,  or  in  the 

34  distribution  of  the  proceeds  of  the  offense;  or 

35  "(4)   movement  of  a  person  across  a  state  or  United  States 

36  boundary  occurs  in  the  planning,  promotion,  management,  execu- 

37  tion,  consummation,  or  concealment  of  the  offense,  or  in  the  distri- 

38  bution  of  the  proceeds  of  the  offense. 

39  "§1325.  Tampering  with  Physical  Evidence 

40  "(a)   Offense.— A  person  is  guilty  of  an  offense  if  he  alters,  de- 

41  stroys,  mutilates,  conceals,  or  removes  a  record,  document,  or  other 


9552 

68 

1  object,  with  intent  to  impair  its  integrity  or  its  availability  for  use  in 

2  an  official  proceeding. 

3  "(b)  Defexse  Precluded. — It  is  not  a  defense  to  a  prosecution  un- 

4  der  this  section  that : 

5  "(1)   an  official  proceeding  was  not  pending  or  about  to  be 

6  instituted ;  or 

7  "(2)   the  record,  document,  or  other  object  would  have  been 

8  legallj'  privileged  or  would  have  been  inadmissible  in  evidence. 

9  "(c)  GiL\DiNG. — An  offense  described  in  this  section  is  a  Class  E 

10  felony. 

11  "(d)  JuRisDicnoN. — There  is  federal  jurisdiction  over  an  offense 

12  described  in  this  section  if  the  official  proceeding  is  or  would  be  a  fed- 

13  eral  official  proceeding. 

14  "§  1326.  Improperly  Influencing  a  Juror 

15  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  communicates 

16  in  any  way  with  a  juror,  or  a  member  of  a  juror's  immediate  family, 

17  with  intent  to  influence  improperly  the  official  action  of  the  juror. 

18  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

19  misdemeanor. 

20  "(c)   Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

21  described  in  this  section  if  the  juror  is  a  federal  juror. 

22  "§1327.  Monitoring  Jury  Deliberations 

23  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  intentionally : 

24  "  (1)  records  the  proceedings  of  a  grand  or  petit  jurj'  while  the 

25  jury  is  deliberating  or  voting ;  or 

26  "(2)  listens  to  or  observes  the  proceedings  of  a  grand  or  petit 

27  jury,  of  which  he  is  not  a  member,  while  the  jury  is  deliberating 

28  or  voting. 

29  "(b)  Defense. — It  is  a  defense  to  a  prosecution  under  subsection 

30  (a)  (1)  that  the  actor  was  a  juror  of  the  jury  that  was  deliberating  or 

31  voting  and  that  he  was  taking  notes  in  connection  with,  and  solely  for 

32  the  purpose  of  facilitating  his  performance  of,  his  official  duties. 

33  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  B 

34  misdemeanor. 

35  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

36  described  in  this  section  if  the  grand  or  petit  jury  is  a  federal  jury. 

37  "§  1328.  Demonstrating  to  Influence  a  Judicial  Proceeding 

38  "(a)  Offense.— A  person  is  guilty  of  an  oU'ense  if,  witli  intent  to 

39  influence  another  pei-son  in  the  discharge  of  his  duties  in  a  judicial 


9553 


69 

1  proceeding,  he  pickets,  j^arades,  displays  a  sign,  uses  a  sound  amplifj'- 

2  ing  device,  or  otherwise  engages  in  a  demonstration : 

3  "(1)  in  a  building  housing  a  court  of  the  United  States; 

4  "(2)  after  being  advised  that  such  conduct  is  an  offense,  on  the 

5  grounds  of,  or  witliin  200  feet  of,  a  building  housing  a  court  of  the 

6  United  States ;  or 

7  "(3)  in,  or  on  the  grounds  of,  or  after  being  advised  that  such 

8  conduct  is  an  offense,  within  200  feet  of,  a  building  occupied  or 

9  used  by  such  other  person. 

10  "(b)  Affirmative  Defense. — It  is  an  affirmative  defense  to  a  prose- 

11  cution  under  subsection  (a)  (2)  that  the  defendant's  conduct: 

12  "  ( 1 )  did  not  occur  while  any  j  udicial  proceeding  was  in  progress 

13  or  within  one-half  hour  before  or  after  such  proceedings ;  and 

14  "(2)  did  not  constitute: 

16  "(A)   making  unreasonable  noise; 

16  "(B)   obstructing  the  entry  to  or  exit  from  a  building  hous- 

17  ing  a  court  of  the  United  States;  or 

18  "(C)   threatening  or  placing  another  person  in  fear  that 

19  any  person  would  be  subjected  to  bodily  injury  or  kidnap- 

20  ping;?  or  tliat  any  property  would  be  damaged. 

21  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  B 

22  misdemeanor. 

23  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

24  described  in  this  section  if  the  judicial  proceeding  is  a  federal  judicial 

25  proceeding. 

26  "Subchapter  D.— Contempt  Offenses 

"Sec. 

"1331.  Criminal  Contempt. 

"1332.  Failing  to  Appear  as  a  Witness. 

"1333.  Refusing  to  Testify  or  to  Produce  Information. 

"1334.  Obstructing  a  Proceeding  by  Disorderly  Conduct. 

"1335.  Disobeying  a  Judicial  Order. 

27  "§1331.  Criminal  Contempt 

28  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he: 

29  "(1)  misbehaves  in  the  presence  of  a  court  or  so  near  to  it  as  to 

30  obstruct  the  administration  of  justice ; 

31  "(2)  disobeys  or  resists  a  writ,  pi'ocess,  order,  rule,  decree,  or 

32  command  of  a  court;  or 

33  "(3)  as  an  officer  of  a  court,  misbehaves  in  an  official  trans- 

34  action. 

35  "(b)  Affirmative  Defense. — It  is  an  affirmative  defense  to  a  pros- 

36  ecution  under  subsection  (a)  (2)  that  the  writ,  process,  order,  rule, 


9554 

70 

1  decree,  or  command  was  clearly  invalid  and  tliat  the  defendant  did 

2  not  have  a  reasonable  opixjrtimity  to  obtain  a  judicial  review  or  a 

3  stay  thereof  prior  to  the  disobedience  or  resistance  charged. 

4  "(c)  Power  to  Prosecute. — A  prosecution  for  an  otfense  described 

5  in  this  section  may  be  commenced  by  the  court,  the  authority  of  which 

6  was  the  subject  of  the  contempt,  or  by  the  Attorney  General  with  the 

7  concurrence  of  the  court. 

8  "(d)  Successive  Prosecutions. — A  prosecution  for  an  offense  under 

9  this  section  is  not  a  bar  to  a  subsequent  prosecution  for  an  offense  un- 

10  der  another  federal  statute  if  the  conduct  charged  as  criminal  con- 

11  tempt  under  this  section  also  constitutes  an  offense  under  such  other 

12  statute,  or  a  regulation,  rule,  or  order  issued  pursuant  thereto.  In  a 

13  subsequent  prosecution  the  defendant  shall  receive  credit  for  any  time 

14  spent  in  custody  and  any  fine  paid  by  him  as  a  result  of  the  prior 

15  criminal  contempt  proceeding. 

16  "(e)  Grading. — An  offense  described  in  this  section  is  a  Class  B 

17  misdemeanor.  Notwithstanding  the  provisions  of  section  2201,  the  de- 

18  fendant  may  be  sentenced  to  pay  a  fine  in  any  amount  deemed  just 

19  by  the  court  if  the  offense  involves  disobedience  of  or  resistance  to 

20  the   court's   temporary    restraining   order,    preliminarj'    injunction, 

21  or  final  order  other  than  an  order  for  the  payment  of  money. 

22  "(f)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

23  described  in  this  section  if  the  court  is  a  court  of  the  United  States. 

24  "§  1332.  Failing  to  Appear  as  a  Witness 

25  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if  he  fails  to  comply 

26  with  an  order : 

27  "(1)  to  appear  at  a  specified  time  and  place  as  a  witness  in  an 

28  official  proceeding; 

29  "(2)  to  remain  at  a  specified  place  where  he  is  to  appear  as  a 

30  witness  in  an  official  proceeding;  or 

31  "(3)  to  be  sworn  or  to  make  an  equivalent  affirmation  as  a  wit- 

32  ness  in  an  official  proceeding. 

33  "(b)  Bar  to  Prosecution. — It  is  a  bar  to  a  prosecution  under  this 

34  section  that  the  official  proceeding  was  conducted  under  the  authority 

35  of  Congress  or  of  either  House  of  Congress  and  that  a  certification 

36  pursuant  to  the  provisions  of  section  104  of  the  Revised  Statutes,  as 

37  amended  (2  U.S.C.  194) ,  had  not  been  issued. 

38  "(c)  Affirmative  Defense. — It  is  an  affirmative  defense  to  a  pros- 

39  ccution  under  subsection  (a)(1)  or  (a)(2)  that  uncontrollable  cir- 


I 


9555 

71 

1  cumstances  prevented  the  defendant  from  appearing  at  the  specified 

2  time  and  place  or  from  remaining  at  the  specified  place,  and  that  the 

3  defendant  did  not  contribute  to  the  creation  of  such  circumstances  in 

4  reckless  disregard  of  the  requirement  to  appear  or  remain. 

5  "(d)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

6  felony. 

7  "(e)   Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

8  described  in  this  section  if  the  official  proceeding  is  a  federal  official 

9  proceeding. 

10  "§1333.  Refusing  to  Testify  or  to  Produce  Information 

11  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if: 

12  "(1)   in   an  official   proceeding  that  is  conducted  under  the 

13  authority  of  Congress  or  of  either  House  of  Congress,  he : 

14  "(A)   refuses  to  answer  a  question,  after  the  presiding 

15  officer  has  directed  him  to  answer  and  advised  him  that  his 

16  refusal  to  do  so  might  subject  him  to  criminal  prosecution ;  or 

17  "(B)  fails  to  comply  with  an  order  to  produce  a  record, 

18  document,  or  other  object; 

19  and  the  question  or  object  is  in  fact  pertinent  to  the  subject 

20  under  inquiry ;  or 

21  "(2)   in  any  other  official  proceeding,  he: 

22  "(A.)  refuses  to  answer  a  question  after  a  federal  court  or 

23  federal  judge,  or,  in  a  proceeding  that  is  conducted  before  a 

24  United  States  magistrate  or  referee  in  bankruptcy,  the  presid- 

25  ing  officer,  has  directed  him  to  answer  and  advised  him  that 

26  his  refusal  to  do  so  might  subject  him  to  criminal  prosecution; 

27  or 

28  "(B)  f'lils  to  comply  with  an  order  to  produce  a  record, 

29  document,  or  other  object. 

30  "  (b)  Definitions. — As  used  in  this  section : 

31  "(1)  'federal  court'  includes  a  court  martial,  military  commis- 

32  sion,  court  of  inquiry,  provost  court,  and  any  other  military  court 

33  of  the  United  States; 

34  "(2)  'federal  judge'  includes  a  military  judge  as  defined  in 

35  section  801  ( 10)  of  title  10. 

36  "(c)  Bar  to  Prosecution. — It  is  a  bar  to  a  prosecution  under  sub- 

37  section  (a)  (1)  that  a  certification  pursuant  to  the  provisions  of  sec- 

38  tion  104  of  the  Kevised  Statutes,  as  amended  (2  U.S.C.  194),  had  not 

39  been  issued. 


9556 

72 

1  "(d)  Affirmative  Defense. — It  is  an  affirmative  defense  to  a  prose- 

2  cution : 

3  "  ( 1 )  under  this  section  that  the  defendant  was  legally  privileged 

4  to  refuse  to  answer  the  question  or  to  produce  the  record,  docu- 

5  ment,  or  other  object ;  or 

6  "(2)   under  subsection   (a)(1)(B)  or  (a)(2)(B)  that  uncon- 

7  trollable  circumstances  prevented  the  defendant  from  producing 

8  the  record,  document,  or  other  object,  and  that  the  defendant 

9  did  not  contribute  to  the  creation  of  such  circumstances  in  reck- 

10  less  disregard  of  the  requirement  to  produce  the  record,  document, 

11  or  other  object. 

12  "(e)  Proof. — In  a  prosecution  under  this  section,  whether  a  matter 

13  is  pertinent  under  subsection  (a)  (1)  is  a  question  of  law. 

14  "(f)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

15  felony. 

16  "(g)  Jurisdiction.— There  is  federal  jurisdiction  over  an  offense 

17  described  in  this  section  if  the  official  proceeding  is  a  federal  official 

18  proceeding. 

19  "§  1334.  Obstructing  a  Proceeding  by  Disorderly  Conduct 

20  "(a)   Offense. — A  person  is  guilty  of  an  offense  if  he  obstructs 

21  or  impairs  an  official  proceeding  by  means  of  unreasonable  noise,  by 

22  means  of  violent  or  tumultuous  behavior  or  disturbance,  or  by  similar 

23  means. 

24  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  B 

25  misdemeanor. 

26  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

27  described  in  this  section  if  the  official  proceeding  is  a  federal  official 

28  proceeding. 

29  "§  1335.  Disobeying  a  Judicial  Order 

30  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  disobeys  or 

31  resists  a  court's  temporary  restraining  order,  preliminary  injunction, 

32  or  final  order  other  than  an  order  for  the  payment  of  money. 

33  "(b)  Affirmative  Defense. — It  is  an  affiimative  defense  to  a  pros- 

34  ecution  under  this  section  that  the  temporary  restraining  order,  pre- 

35  liminary  injunction,  or  final  order  was  clearly  invalid  and  that  the 

36  defendant  did  not  have  a  reasonable  opportunity  to  obtain  a  judicial 

37  review  or  a  stay  thereof  pi-ior  to  the  disobedience  or  resistance  charged. 

38  "(c)   Grading. — An  offense  described  in  this  section  is  a  Class  E 

39  felony.  Notwithstanding  the  provisions  of  section  2201,  the  defendant 

40  may  be  sentenced  to  pay  a  fine  in  any  amount  deemed  just  by  the  court. 


9557 


73 

1  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

2  described  in  this  section  if  the  court  is  a  court  of  the  United  States. 

3  "Subchapter  E. — Perjury,  False  Statements,  and  Related 

4  Oflfenses 

"Sec. 

"1341.  Perjury. 

"1342.  False  Swearing. 

"1343.  Making  a  Fal.<!e  Statement. 

"1344.  Tampering  With  a  Government  Record. 

"134.5.  General  Provisions  for  Subchapter  E. 

5  "§  1341.  Perjury 

6  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  under  oath  or 

7  equivalent  affirmation  in  an  official  proceeding,  he: 

8  "(1)  makes  a  material  statement  that  is  false;  or 

9  "(2)  affirms  the  truth  of  a  previously  made  material  statement 

10  that  is  false. 

11  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  D 

12  felony. 

13  "(c)  Jdkisdiction. — There  is  federal  jurisdiction  over  an  offense 

14  described  in  this  section  if  the  official  proceeding  is  a  federal  official 

15  proceeding. 

16  "§1342.  False  Swearing 

17  "(a)   Offense. — A  person  is  guilty  of  an  offense  if,  under  oath  or 

18  equivalent  affirmation  in  an  official  proceeding,  he: 

19  "  ( 1 )  makes  a  statement  that  is  false ;  or 

20  "(2)  affirms  the  truth  of  a  previously  made  statement  that  is 

21  false. 

22  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

23  misdemeanor. 

24  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

25  described  in  this  section  if  the  official  proceeding  is  a  federal  official 

26  proceeding. 

27  "§  1343.  Making  a  False  Statement 

28  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if : 

29  "  ( 1 )  in  a  government  matter,  he : 

30  "(A)  makes  a  material  oral  statement  that  is  false  to  a 

31  person  who  he  knows  is : 

32  "  ( i )   a  la w  enforcement  officer ;  or 

33  "(ii)   a  person   assigned  investigative   responsibility 

34  by  statute,  or  by  a  regulation,  rule,  or  order  issued  pur- 

35  suant  thereto,  or  by  the  head  of  a  government  agency ; 

36  and  such  statement  is  volunteered  or  is  made  after  the 


9558 

74 

1  person  has  been  advised  that  making  such  a  statement 

2  is  an  offense ; 

3  "(B)  makes  a  material  written  statement  that  is  false ; 

4  "(C)   omits  or  conceals  a  material  fact  in  a  written  state- 

5  ment ; 

6  "(D)  submits  or  invites  reliance  on  a  material  writing  or 

7  recording  that  is  false,  forged,  altered,  or  otherwise  lacking 

8  in  authenticity; 

9  "(E)  submits  or  invites  reliance  on  a  sample,  specimen, 

10  map,  photograph,  boundary-mark,  or  other  object  that  is  mis- 

11  leading  in  a  material  respect ;  or 

12  "(F)   fraudulently  uses  a  trick,  scheme,  or  device  that  is 

13  misleading  in  a  material  respect; 

14  "(2)   in  a  credit  institution  record,  witli  intent  to  deceive  or 

15  harm  the  government  or  a  person,  he,  as  an  agent  of  such  credit 

16  institution,  engages  in  any  conduct  described  in  subparagraphs 

17  (B)  through  (F)  of  paragraph  (1)  ;  or 

18  "(3)  with  intent  to  influerice  the  action  of  a  credit  institution, 

19  he  engages  in  any  conduct  described  in  subparagraphs    (B) 

20  through  (F)  of  paragraph  (1). 

21  "(b)  Grading. — An  offense  described  in  this  section  is: 

22  "(1)  a  Class  E  felony,  except  as  provided  in  paragraph  (2) ; 

23  "(2)  a  Class  A  misdemeanor  if  the  statement  was  given  to  a  law 

24  enforcement  officer  during  the  course  of  an  investigation  of  an 

25  offense  or  a  possible  offense  and  the  statement  consisted  of  a 

26  denial,  unaccompanied  by  any  other  false  statement,  that  the 

27  declarant  committed  or  participated  in  the  commission  of  such 

28  offense. 

29  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

30  described  in  this  section  if : 

81  "(1)  the  government  is  the  government  of  the  United  States; 

32  "(2)  the  government  is  a  state,  local,  or  foreign  government 

33  and  the  falsity  constituting  the  offense  is  that  the  declarant  is  a 

34  citizen  of  the  United  States ;  or 

35  "(3)  the  credit  institution  is  a  national  credit  institution. 

36  "§  1344.  Tampering  with  a  Government  Record 

37  "  (a)   Offense. — A  person  is  guilty  of  an  offense  if  he  alters,  destroys, 

38  mutilates,  conceals,  removes,  or  otherwise  impairs  the  integrity  or 

39  availability  of  a  government  record. 


9559 

75 

1  "(b)  Grading. — An  offense  described  in  this  section  is: 

2  "(1)  a  Class  E  felony,  except  as  provided  in  paragraph  (2)  ; 

3  "(2)   a  Class  A  misdemeanor  if  the  government  record  is  of 

4  the  kind  described  in  section  1345(a)  (3)  (B). 

5  "(c)  Jurisdiction.— There  is  federal  jurisdiction  over  an  offense 

6  described  in  this  section  if  the  government  record  is  a  federal  govern- 

7  ment  record. 

8  "§  1345.  General  Provisions  for  Subchapter  E 

9  "  (a)  Definitions. — As  used  in  this  subchapter : 

10  "(1)  'credit  institution  record'  means  a  record,  book,  or  state- 

11  ment  of  a  credit  institution  that  is  kept  in  the  usual  course  of 

12  business  by  an  agent  of  such  institution ; 

13  "  (2)  'oath  or  equivalent  affirmation'  includes  a  written  unsworn 

14  declaration,  certificate,  verification,  or  statement  described  in  sec- 

15  tion  1746  of  title  28,  United  States  Code ; 

16  "(3)   'government  matter' means  a  matter  within  the  jurisdic- 

17  tion,  including  investigative  jurisdiction,  of  a  government  agency, 

18  and  includes  a  government  record ; 

19  "(4)   'government  record'  means  a  record,  document,  or  other 

20  object:  (A)  belonging  to,  or  received  or  kept  by,  a  government 

21  for  information  or  record  purposes;  or  (B)  required  to  be  kept 

22  by  a  person  pursuant  to  a  statute,  or  a  regulation,  rule,  or  order 

23  issued  pursuant  thereto; 

24  "  (5)   'official  proceeding'  means  a  proceeding  in  which  a  federal 

25  law  authorizes  an  oath  to  be  administered ;  and 

26  "(6)   'statement' means  an  oral  or  written  declaration  or  repre- 

27  sentation,  including  a  declaration  or  representation  of  opinion, 

28  belief,  or  other  state  of  mind ;  for  purposes  of  sections  1341  and 

29  1342,  a  written  statement  made  'under  oath  or  equivalent  affirma- 

30  tion'  includes  a  written  statement  that,  with  the  declarant's  knowl- 

31  edge,  purports  to  have  been  made  under  oath  or  equivalent  affirma- 

32  tion. 

33  "(b)  Proof.— 

34  "(1)  In  a  prosecution  under  section  1341  or  1342,  proof  of 

35  the  falsity  of  a  statement  need  not  be  made  by  any  particular 

36  number  of  witnesses  or  by  documentary,  direct,  or  any  other 

37  particular  kind  of  evidence. 

38  "  (2)   In  a  prosecution  under  section  1341  or  1343,  or  under  any 

39  section  incorporating  by  reference  any  provision  of  section  1343, 

40  a  falsification,  omission,  concealment,  forgery,  alteration,  or  other 


9560 

76 

1  misleading  matter  is  material,  regardless  of  the  admissibility  of 

2  the  statement  or  object  under  the  rules  of  evidence,  if  it  could 

3  have  impaired,  affected,  impeded,  or  otherwise  influenced  the 

4  course,  outcome,  or  disposition  of  the  matter  in  which  it  is  made, 

5  or,  in  the  case  of  a  record,  if  it  could  have  impaired  the  integrity 

6  of  the  record  in  question.  Wliether  a  matter  is  material  under 

7  the  circumstances  is  a  question  of  law. 

8  "  (3)  In  a  prosecution  under : 

9  "(A)  section  1341  or  1342,  if,  in  one  or  more  official  pro- 

10  ceedings,  a  person  under  oath  or  equivalent  affirmation  makes 

11  or  affirms ;  or 

12  "(B)   section  1343(a)(1)(B),  if,  in  one  or  more  govern- 

13  ment  matters,  a  person  makes ; 

14  statements  which  are  inconsistent  to  the  degree  that  one  of  them 

15  is  necessarily  false,  both  having  been  made  within  the  applicable 

16  period  of  time  limitations,  the  indictment,  information,  or  otlier 

17  charge  may  set  forth  the  statements  m  a  single  count  alleging 

18  that  the  defendant  knew  or  was  aware  of  the  risk  that  one  or 

19  the  other  of  the  statements  was  false.  Proof  that  the  defendant 

20  made  such  statements  constitutes  prima  facie  evidence  that  he 

21  knew,  or  was  aware  of  the  risk,  that  one  or  the  other  of  the  state- 

22  ments  was  false,  and  such  proof  is  sufficient  for  conviction.  Under 

23  section  1341  or  1343,  both  such  statements  must  be  material. 

24  "(c)  Affirmative  Defense. — It  is  an  affirmative  defense  to  a  prose- 

25  cution  under : 

26  "(1)  section  1341  or  1342  that  the  actor  clearly  and  expressly 

27  retracted  the  falsification  in  the  course  of  the  same  official  proceed- 

28  ing  in  which  it  was  made  if  he  did  so  before  it  became  manifest 

29  that  the  falsification  had  been  or  Avould  be  exposed  and  before  the 

30  falsification  substantially  impaired,  affected,  impeded,  or  other- 

31  wise  influenced  the  course,  outcome,  or  disposition  of  the  official 

32  proceeding  or  of  a  related  government  matter ; 

33  "(2)  section  1343  (a)(1)  or  (a)(3)  tliat  the  actor  clearly  and  ■ 

34  expressly  retra(;ted  the  falsification  and  comnumicated  the  retrac- 

35  tion  to  the  same  individual,  agency,  or  institution  to  which  the 

36  falsification  had  been  communicated,  if  he  did  so  within  seven 

37  calendar  days  after  the  falsification  had  been  received  by  the  indi- 

38  vidual,  agency,  or  institution,  and  if  he  did  so  before  it  became 

39  manifest  that  the  falsification  had  been  or  would  be  exposed  and 

40  before  the  falsification  substantially  impaired,  affected,  impeded. 


9561 


77 

1  or  otherwise  influenced  the  course,  outcome,  or  disposition  of  the 

2  government  matter  or  credit  institution  action,  or  of  a  related 

3  government  matter  or  official  proceeding. 

4  "(d)  Defense  Precluded. — It  is  not  a  defense  to  a  prosecution 

5  under  section  1341  or  1342  that  the  oath  or  affirmation  was  adminis- 

6  tered  or  taken  in  an  irregular  manner  or  that  the  declarant  was  not 

7  authorized  to  make  the  statement. 

8  "Subchapter  F. — Official  Corruption  and  Intimidation 

"Sec. 

"1351.  Bribery. 

"1352.  Graft. 

"1353.  Trading  in  Government  Assistance. 

"1354.  Trading  in  Special  Influence. 

"1355.  Trading  in  Public  Office. 

"1356.  Speculating  on  Official  Action  or  Information. 

"1357.  Tampering  with  a  Public  Servant. 

"1358.  Retaliating  again.st  a  Public  Servant. 

"1359.  General  Provisions  for  Subchapter  F. 

9  "§1351.  Bribery 

10  "(a)  Offense. — xV  person  is  guilty  of  an  offense  if : 

11  "(1)  he  offers,  gives,  or  agrees  to  give  to  a  public  servant;  or 

12  "(2)  as  a  public  servant,  he  solicits,  demands,  accepts,  or  agrees 

13  to  accept  from  another  person ; 

14  anything  of  value  in  return  for  an  agreement  or  understanding  that 

15  the  recipient's  official  action  as  a  public  servant  vrill  be  influenced 

16  thereby,  or  that  the  recipient  will  violate  a  legal  duty  as  a  public 

17  servant. 

18  "(b)   Grading. — An  offense  described  in  this  section  is  a  Class  C 

19  felony. 

20  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

21  described  in  this  section  if : 

22  "(1)  the  offense  is  committed  within  the  special  jurisdiction  of 

23  the  United  States ; 

24  "  (2)  the  official  action  or  legal  duty  involved  is  that  of  a  federal 

25  public  servant ; 

26  "  ( 3 )  the  United  States  mail  or  a  facility  of  interstate  or  foreign 

27  commerce  is  used  in  the  planning,  promotion,  management,  execu- 

28  tion,  consummation,  or  concealment  of  the  offense,  or  in  the  dis- 

29  tribution  of  the  proceeds  of  the  offense ; 

30  "(4)   movement  of  a  person  across  a  state  or  United  States 

31  boundary  occurs  in  the  planning,  promotion,  management,  execu- 

32  tion,  consummation,  or  concealment  of  the  offense,  or  in  the  dis- 

33  tribution  of  the  proceeds  of  the  offense ;  or 


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78 

1  "(5)  the  offense  occurs  during  the  commission  of  an  offense, 

2  over  which  federal  jurisdiction  exists,  that  is  described  in  section 

3  1403  (Alcohol  and  Tobacco  Tax  Offenses) ,  1722  (Extortion) ,  1804 

4  (Loansharking),  1811  (Trafficking  in  an  Opiate),  1812  (Traffick- 

5  ing  in  Drugs),  1841  (Engaging  in  a  Gambling  Business),  or  1843 

6  ( Conducting  a  Prostitution  Business) . 

7  "§  1352.  Graft 

8  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if : 

9  "(1)  he  offers,  gives,  or  agrees  to  give  to  a  public  servant  or 

10  former  public  servant ;  or 

11  "(2)   as  a  public  servant,  or  former  public  servant,  he  solicits, 

12  demands,  accepts,  or  agrees  to  accept  from  another  person ; 

13  anything  of  pecuniary  value  for  or  because  of  an  official  action  taken 

14  or  to  be  taken,  a  legal  duty  performed  or  to  be  performed,  or  a  legal 

15  duty  violated  or  to  be  violated  by  the  public  servant  or  former  public 

16  servant. 

17  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

18  felony. 

19  "(c)   Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

20  described  in  this  section  if  a  circumstance  specified  in  section  1351(c) 

21  exists  or  has  occurred. 

22  "§  1353.  Trading  in  Government  Assistance 

23  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if : 

24  "(1)  he  offers,  gives,  or  agrees  to  give  to  a  public  sen'ant;  or 

25  "(2)  as  a  public  servant  he  solicits,  demands,  accepts,  or  agrees 

26  to  accept  from  another  person ; 

27  anything  of  pecuniary  value  intendeci  as  consideration  for  advice  or 

28  other  assistance  in  preparing  or  promoting  a  bill,  contract,  claim,  or 

29  other  matter  that  is  or  may  become  subject  to  official  action  by  such 

30  public  servant. 

31  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

32  felony. 

33  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

34  described  in  this  section  if  the  public  servant  is  a  federal  public  servant. 

35  "§  1354.  Trading  in  Special  Influence 

36  "(a)  Offense. — Apersonisguilty of  anoffenseif  he: 

37  "  ( 1 )  offers,  gives,  or  agrees  to  give  to  another  person ;  or 

38  "(2)  solicits,  demands,  accepts,  or  agrees  to  accept  from  an- 

39  other  person ; 


9563 


79 


1  anything  of  pecuniary  value  intended  as  consideration  for  exerting, 

2  or  causing  another  person  to  exert,  special  influence  upon  a  public 

3  servant  with  respect  to  his  taking  an  ofTicial  action  or  his  performing 

4  a  legal  duty  as  a  public  servant. 

5  "(b)   Definition. — As  used  in  this  section,  the  term  'special  in- 

6  fluence'  means  influence  by  reason  of  a  relationship  to  the  public 

7  servant  by  common  ancestry  or  by  marriage,  or  by  reason  of  position 

8  as  a  public  servant  or  as  a  political  party  official. 

9  "(c)   Grading. — An  offense  described  in  this  section  is  a  Class  E 

10  felony. 

11  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

12  described  in  this  section  if  tlie  official  action  or  legal  duty  involved 

13  is  that  of  a  federal  public  servant. 

14  "§  1355.  Trading  in  Public  Office 

15  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he : 

16  "(1)  offers,  gives,  or  agrees  to  give  to  another  person;  or 

17  "(2)  solicits,  demands,  accepts,  or  agrees  to  accept  from  an- 

18  other  person ; 

19  anything  of  pecuniary  value  intended  as  consideration  for  approval, 

20  disapproval,  or  assistance  by  a  public  servant  or  political  party  of- 

21  ficial  in  the  appointment,  employment,  advancement,  or  retention 

22  of  any  person  as  a  public  servant. 

23  "(b)   Grading. — An  offense  described  in  this  section  is  a  Class  E 

24  felony. 

25  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

26  described  in  this  section  if  the  appointment,  employment,  advance- 

27  ment,  or  retention  involved  is  that  of  a  federal  public  servant. 

28  "§  1356,  Speculating  on  Official  Action  or  Information 

29  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if  as  a  public  servant, 

30  or  within  one  year  after  his  service  as  a  public  servant  terminates,  and 

31  in  contemplation  of  the  taking  of  an  official  action  by  himself  as  a 

32  public  servant  or  by  an  agency  with  which  he  is  or  has  been  serving 

33  as  a  public  servant,  or  in  reliance  on  information  to  which  he  has  or 

34  had  access  only  in  his  capacity  as  a  public  servant,  he : 

35  "(1)   acquires  or  disposes  of  a  pecuniary  interest  in  any  prop- 

36  erty,  transaction,  or  enterprise  that  may  be  affected  by  such  of- 

37  ficial  action  or  information ;  or 

3g  "(2)  provides  information  with  intent  to  aid  another  person 

39  in  acquiring  or  disposing  of  such  an  interest. 


92-465  O  -  77  -  64 


9564 

80 

1  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

2  misdemeanor. 

3  "(c)  ,'^URisDiCTiox. — There  is  federal  jurisdiction  over  an  offense 

4  described  in  this  section  if : 

5  "(1)  the  public  servant  is  or  was  a  federal  public  servant;  or 

6  "  (2 )  the  agency  is  a  federal  government  agency. 

7  "§  1357.  Tampering  with  a  Public  Servant 

8  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if  he : 

9  "(1)  uses  force,  threat,  intimidation,  or  deception  with  intent 

10  to  influence  a  public  servant  with  respect  to  his  taking  an  official 

11  action  or  performing  a  legal  duty  as  a  public  servant ;  or 

12  "(2)  communicates: 

13  "(-A-)   a  threat  to  commit  a  crime  of  violence  upon  the 

14  person  of  the  President  or  a  potential  successor  to  the  Presi- 

15  dency ;  or 

16  "(B)  information,  that  he  knows  to  be  false,  that  a  crime 

17  described  in  subparagraph  (A)  is  imminent  or  in  progress ; 

18  under  circumstances  in  which  the  threat  or  information  may  rea- 

19  sonably  be  understood  as  an  expression  or  reflection  of  serious 

20  purpose. 

21  "(b)  Affirmative  Defense. — It  is  an  affirmative  defense  to  a  pros- 

22  ecution  under  subsection  (a)  (1)  that  the  conduct  used  to  threaten  or 

23  to  intimidate  consisted  solely  of  lawful  conduct  and  that  the  defend- 

24  ant's  sole  intention  was  to  compel  or  induce  the  public  servant  to  take 

25  official  action  properly  or  to  perform  his  legal  duty  properly. 

26  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

27  felony. 

28  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

29  described  in : 

30  "(1)  subsection  (a)  (1)  if  the  public  servant  is  a  federal  jniblic 

31  servant;  or 

32  "(2)  subsection  (a)(2)  if  the  offense  is  committed  within: 

33  "(A)  the  general  jurisdiction  of  the  United  States; 

34  "(B)  the  special  jurisdiction  of  the  United  States;  or 

35  "(C)  the  extraterritorial  jurisdiction  of  the  United  States 

36  to  the  extent  applicable  under  section  204. 

37  "§1358.  Retaliating  Against  a  Public  Servant 

38  "(a)  OrFENSE.-=-A  person  is  guilty  of  an  offense  if  he : 

39  "(1)  engages  in  conduct  that  causes  bodily  injury  to  another 

40  person  or  damages  the  property  of  another  person ;  or 


9565 

81 

1  "(2)   improperly  subjects  another  person  to  economic  loss  or 

2  injury  to  his  business  or  profession ; 

3  because  of  an  official  action  taken  or  a  legal  duty  performed  by  a  public 

4  servant,  or  because  of  the  status  of  a  person  as  a  public  servant. 

5  "(b)  Grading. — An  offense  described  in  this  section  is : 

6  "(1)  a  Class  E  felony  in  the  circumstances  set  forth  in  sub- 

7  section  (a)  (1) ; 

8  "(2)  a  Class  A  misdemeanor  in  the  circumstances  set  forth  in 

9  subsection  (a)  (2). 

10  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

11  described  in  this  section  if  the  public  servant  is  a  federal  public 

12  servant. 

13  "§  1359,  General  Provisions  for  Subchapter  F 

14  "(a)  Definitions. — 

15  "  ( 1 )  As  used  in  this  subchapter : 

16  "  ( A)  'anything  of  value'  and  'anything  of  pecuniary  value' 

17  do  not  include  (i)  concurrence  in  official  action  in  the  course 

18  of  legitimate  compromise  between  public  servants;  or  (ii) 

19  support,  including  a  vote,  in  any  primary,  general,  or  special 

20  election  campaign  solicited  by  a  candidate  solely  by  means  of 

21  representation  of  his  position  on  a  public  issue ; 

22  "(B)  'political  party  official'  means  a  person  who  holds  a 

23  position  or  office  in  a  political  party,  whether  by  election,  ap- 

24  pointment,  or  otherwise ; 

25  "(C)  'potential  successor  to  the  Presidency'  means  (i)  the 

26  President-elect;  (ii)  the  Vice  President;  (iii)  if  there  is  no 

27  Vice  President,  the  person  next  in  order  of  succession  to  the 

28  office  of  President;  or  (iv)  the  Vice  President-elect; 

29  "(D)   'public  servant' includes  a  person  who  has  been  offi- 

30  cially  informed  that  he  will  be  nominated  or  appointed  to  be 

31  a  public  servant. 

32  "(2)  As  used  in  sections  1351  through  1356,  'federal  public 

33  servant'  includes  a  District  of  Columbia  public  servant. 

34  "(b)  Defenses  Precluded. — It  is  not  a  defense  to  a  prosecution 

35  under: 

36  "(1)  section  1351,  1352,  1354,  or  1356  that  the  recipient  was  not 

37  qualified  to  act,  whether  because  he  had  not  yet  assumed  office, 

38  because  he  lacked  authority  or  jurisdiction,  or  because  of  any  other 

39  reason;  or 


9566 


82 

1  "(2)  sections  1351  through  1355  that  the  defendant,  or  other 

2  recipient  or  proposed  recipient  of  the  thing  of  value,  by  the  same 

3  conduct  also  committed  an  offense  described  in  section  1722  (Ex- 

4  tortion),l723  (Blaclanail),or  1731  (Theft). 

5  "Chapter  14.— OFFENSES  INVOLVING  TAXATION 

"Subchapter 

"A.  Internal  Revenue  Offenses. 

"B.  Customs  Offenses. 

6  "Subchapter  A. — Internal  Revenue  Offenses 

"Sec. 

"1401.  Tax  Evasion. 

"1402.  Disregarding  a  Tax  Obligation. 

"1403.  Alcohol  and  Tobacco  Tax  Offenses. 

"1404.  Definitions  for  Subchapter  A. 

7  Ǥ  1401.  Tax  Evasion 

8  "(a)  Offense. — ^A  person  is  guilty  of  an  offense  if,  with  intent  to 

9  evade  liability  for  a  tax  or  the  payment  of  a  tax,  he : 

10  "(1)  files  a  tax  return  that  understates  the  tax ; 

11  "(2)   removes  or  conceals  an  asset,  knowing  that  the  tax  is  due 

12  or  may  become  due ; 

13  "(3)   fails  to  account  for,  or  to  pay  over  wlien  due,  a  tax  pre- 

14  viously  collected  or  withheld,  or  a  payment  received  from  or  on 

15  behalf  of  another  pei'son  with  the  understanding  that  it  would  be 

16  turned  over  to  the  United  States  for  tax  purposes ; 

17  "(4)  alters,  destroys,  mutilates,  conceals,  or  removes  any  prop- 
IB  erty  under  tlie  care,  custody,  or  control  of  the  United  States;  or 

19  "(5)   otherwise  acts  in  any  manner  to  evade  liability  for,  or 

20  payment  of,  the  tax. 

21  "(b)  Grading. — An  offense  described  in  this  section  is : 

22  "(1)  a  Class  C  felony  if  the  tax  liability  involved  is  in  excess 

23  of  $100,000 ; 

24  "  (2)  a  Class  D  felony  if  the  tax  liability  involved  is  $100,000  or 

25  less ; 

26  "  (3)  a  Class  E  felony  if  no  tax  liability  is  involved. 

27  "§  1402.  Disregarding  a  Tax  Obligation 

28  "(a)   Offense. — Apersonisguilty  of  aiioiTense  if  he: 

29  "(1)   fails  to  file  when  due  a  tax  return  or  an  information  return 

30  that  he  is  required  to  file ; 

31  "(2)  engages  in  an  occupation  or  enterprise  without  Iiaving 

32  registered,  or  without  having  purchased  a  stamp,  as  required 

33  under  the  Internal  Revenue  Code  of  19.j4,  as  amended; 

34  "(3)   fails  to  withhold  or  collect  a  tax  that  he  is  required  to 

35  withliold  or  collect  under  the  Internal  Revenue  Code  of  1954,  as 

36  amended ; 


9567 


83 


1  "  (4)   fails  to  furnish  to  an  employee  a  true  statement  regarding 

2  a  tax  withheld  from  the  employee's  remuneration,  as  required 

3  under  section  6051  of  the  Internal  Revenue  Code  of  1954,  as 

4  amended  (26  U.S.C.  6051) ; 

5  "(5)   claims  a  personal  exemption,  to  which  he  knows  he  is  not 

6  entitled,  in  an  income  tax  return ;  or 

7  "(6)   fails  to  deposit  collected  taxes  in  a  special  bank  account 

8  as  required,  after  notice,  under  section  7512  of  the  Internal  Reve- 

9  nue  Code  of  1954,  as  amended  (26  CJ.S.C.  7512),  or,  after  having 
10  deposited  funds  in  such  an  account,  pays  any  of  them  to  any  per- 
il son  other  than  an  authorized  agent  of  the  United  States. 

12  "(b)   Ghading. — An  offense  described  in  this  section  is : 

13  "(1)   a  Class  A  misdemeanor  in  the  circumstances  set  forth  in 

14  subsection  (a)  (1)  through  (a)  (4)  ; 

15  ''(2)   a  Class  B  misdemeanor  in  the  circumstances  set  forth  in 

16  subsection  (a)  (5)  or  (a)  (6). 

17  "§  1403.  Alcohol  and  Tobacco  Tax  Offenses 

18  "(a)   Offense. — A  person  is  guilty  of  an  offense  if  he  violates  any 

19  of  the  following  provisions  of  the  Internal  Revenue  Code  of  1954,  as 

20  amended : 

21  "(1)  section  5G01( a)  (26  U.S.C.  5601(a))  (relating  to  unregis- 

22  tered  stills,  the  application  and  bonding  of  distillers,  and  unlawful 

23  conduct  in  the  pi'oduction  or  use  of  distilled  spirits)  ; 

24  "(2)  section  5602  (26  U.S.C.  5602)  (relating  to  evasion  of  tax 

25  imposed  on  distilled  spirits) ; 

26  "(3)  section  5603(a)  (26  U.S.C.  5603(a) )  (relating  to  mainte- 

27  nance  of  required  documents  or  alteration  or  destruction  of  such 

28  documents)  ; 

29  "(4)  section  5607  (26  U.S.C.  5607)   (relating  to  unlawful  con- 

30  duct  concerning  any  denatured  distilled  spirits  withdrawn  free 

31  of  tax); 

32  "(5)  section  5661(a)   (26  U.S.C.  5661(a))   (relating  to  failure 

33  to  pay  tax  imposed  on  wine  and  failure  to  comply  with  other 

34  statutes  and  regulations  concerning  bonding  and  gallonage  taxes 

35  on  wine); 

36  "(6)   section  5671  (26  U.S.C.  5671)   (relating  to  evasion  of  tax 

37  imposed  on  beer  and  failure  to  keep  and  file  required  brewers' 

38  records) ; 

39  "(7)   section  5604(a)    (26  U.S.C.  5604(a))    (relating  to  un- 

40  stamped  containers  of  distilled  spirits  and  unlawful  conduct 

41  involving  stamps,  stamped  containers,  or  distilled  spirits)  ; 


9568 


84 

1  "(8)  section  5605  (26  U.S.C.  5605)  (relating  to  return  of  mate- 

2  rials  used  in  the  manufacture  of  distilled  spirits  or  from  which  dis- 

3  tilled  spirits  may  be  recovered) ; 

4  "(9)  section  5608    (26  U.S.C.  5608)    (relating  to  fraudulent 

5  claims  for  an  allowance  of  drawback  on  distilled  spirits  and  re- 

6  landing  of  distilled  spirits  shipped  for  exportation) ; 

7  "(10)  section  5682  (26  U.S.C.  5682)    (relating  to  breaking  of 

8  locks  or  gaining  of  access  to  any  place  under  the  lock  or  seal  of 

9  an  internal  revenue  agent) ; 

10  "(11)  section  5691(a)    (26  U.S.C.  5691(a))    (relating  to  non- 
11  payment  of  special  taxes  concerning  liquor,  beer,  or  manufacture 

12  of  stills)  ;  or 

13  "(12)  section  5762(a)  (26  U.S.C.  5762(a))  (relating  to  refusal 

14  to  pay  or  evasion  of  a  tax  imposed  on  tobacco  related  products, 

15  maintenance  of  true  and  accurate  records,  and  unlawful  conduct 

16  concerning  tobacco-related  products,  stamps,  or  packages) . 

17  "(b)  Grading. — An  offense  described  in  this  section  is : 

18  "(1)  a  Class  D  felony  in  the  circumstances  set  forth  in  sub- 

19  teclion  (a)  (1)  through  (a)  (6) ; 

20  "  (2)  a  Class  E  felony  in  the  circumstances  set  forth  in  subsec- 

21  tion  (a)  (7)  through  (a)  (12). 

22  "§1404.  Definitions  for  Subchapter  A 

23  "As  used  in  this  subchapter : 

24  "(a)  'liability  for  a  tax  or  the  payment  of  a  tax'  means  liability 

25  for,  or  payment  of,  the  entire  tax  or  any  part  thereof ; 

26  "(b)  'payment' includes  collection ; 

27  "(c)  'tax'  means  a  tax  imposed  by  a  federal  statute,  an  exaction 

28  denominated  a  'tax'  by  a  federal  statute,  and  any  penalty,  addition 

29  to  tax,  additional  amount,  or  interest  thereon ;  but  does  not  include 

30  a  tariff  or  customs  duty,  or  a  toll,  levy,  or  charge  that  is  not  de- 

31  nominated  a  'tax'  by  a  federal  statute ; 

32  (d)   'tax  return'  means  a  written  report  of  a  taxpayer's  tax 

33  obligation  that  is  required  to  be  filed  by  a  federal  statute,  or  a 

34  regulation,  rule,  or  order  issued  pursuant  thereto ;  and  includes  a 

35  report  of  taxes  withheld  or  collected,  an  income  tax  return,  an 

36  estate  or  gift  tax  return,  an  excise  tax  return,  and  any  other  tax 

37  return  of  an  individual  or  organization  required  to  file  a  return 

38  or  to  pay  a  tax  in  coniunction  with  a  tax  leturn ;  l)ut  does  not 

39  include  an  interim  report,  an  information  return,  or  a  return  of 

40  estimated  tax. 


9569 

85 

1  "Subchapter  B.— Customs  Offenses 

"Sec. 

"1411.  Smuggling. 

"1412.  Trafficking  in  Smuggled  Property. 

"1413.  Receiving  Smuggled  Property. 

"1414.  General  Provisions  for  Subchapter  B. 

2  Ǥ  1411.  Smuggling 

3  "  (a)  Offense.— A  person  is  guilty  of  an  offense  if  he : 

4  "(1)  introduces  into  the  United  States  an  object,  the  introduc- 

5  tion  of  which  a  federal  statute,  or  a  regulation,  rule,  or  order 

6  issued  pursuant  thereto : 

7  "  ( A)  prohibits  absolutely ;  or 

8  "(B)  prohibits  conditionally  and  all  conditions  for  its  in- 

9  troduction  into  the  United  States  have  not  been  complied 

10  with ;  or 

11  "(2)  evades  assessment  or  payment  when  due  of  the  customs 

12  duty  upon  an  object  being  introduced  into  the  United  States;  or 

13  "  (3)  evades  an  examination  by  the  government  of  an  object  be- 

14  ing  introduced  into  the  United  States. 

15  "  (b)  Grading. — An  offense  described  in  this  section  is : 

16  "(1)  a  Class  D  felony  if  the  value  of  the  object,  or  the  duty 

17  tliat  was  due  or  that  would  have  been  due  on  the  object,  exceeds 

18  $500; 

19  "(2)   a  Class  E  felony  if  introduction  of  the  object  is  prohibited, 

20  either  absolutely  or  conditionally,  because  it  may  cause,  or  may  be 

21  used  to  cause,  bodily  injury  or  property  damage ; 

22  "(3)  a  Class  A  misdemeanor  if  the  value  of  the  object,  or  the 

23  duty  that  was  due  or  that  would  have  been  due  on  the  object,  ex- 

24  ceeds  $100  but  is  not  more  than  $500 ; 

25  "(4)  a  Class  B  misdemeanor  in  any  other  case  in  which  duty 

26  was  due  or  would  have  been  due  on  the  object ; 

27  "  ( 5 )  a  Class  C  misdemeanor  in  any  other  case. 

28  "§1412.  Trafficking  in  Smuggled  Property 

29  "(a)   Offense. — A  person  is  guilty  of  an  offense  if  he  traffics  in  an 

30  object  that  has  been  unlawfully  introduced  into  the  United  States,  such 

31  introduction  having  been  in  violation  of  section  1411. 

32  "  (b)   Grading.— An  offense  described  in  this  section  is  an  offense  of 

33  the  same  class  as  that  specified  in  section  1411(b)  for  the  smuggling 

34  of  the  same  kind  of  object. 

35  "§  1413.  Receiving  Smuggled  Property 

36  "  (a)   Offense.— A  person  is  guilty  of  an  offense  if  he  buys,  receives, 

37  possesses,  or  obtains  control  of  an  object  that  has  been  unlawfully  in- 


9570 


1  troduced  into  the  United  States,  such  introduction  having  been  in 

2  violation  of  section  1411. 

3  "(b)  Affirmative  Defease. — It  is  an  affirmative  defense  to  a  prose- 

4  cution  under  this  section  that  the  defendant  bought,  received,  pos- 

5  sessed,  or  obtained  control  of  the  object  with  intent  to  report  the  matter 

6  to  an  appropriate  law  enforcement  officer. 

7  "(c)  Grading. — An  offense  described  in  this  section  is  an  offense  of 

8  the  class  next  below  that  specified  in  section  1411  (b)  for  the  smuggling 

9  of  the  same  kind  of  object. 

10  "§1414.  General  Provisions  for  Subchapter  B 

11  "  (a)  Definitions. — As  used  in  this  subchapter : 

12  "(1)  'customs  territory  of  the  United  States'  has  the  meaning 

13  set  forth  in  general  headnote  2  to  the  Tariff    Schedules  of  the 

14  United  States ; 

15  "(2)  'introduce'  means  import,  transport,  bring  into  the  United 

16  States  from  any  place  outside  the  United  States,  or  into  the  cus- 

17  toms  territory  of  the  United  States  from  any  place  outside  the 

18  customs  territory  of  the  United  States  but  within  the  United 

19  States ; 

20  "(3)  'object'  includes  any  article,  good,  ware,  and  merchandise, 

21  whether  animate  or  inanimate ; 

22  "(b)  Proof. — In  a  prosecution  under  section  1412  or  1413: 

23  "(1)  possession  of  an  object  recently  smuggled  into  the  United 

24  States,  unless  satisfactorily  explained,  constitutes  prima  facie  evi- 

25  dence  that  the  person  in  possession  was  aware  of  the  risk  that  it 

26  had  been  smuggled  or  in  some  way  participated  in  its  smuggling; 

27  "(2)  the  purchase  or  sale  of  an  object  recently  smuggled  into 

28  the  United  States  at  a  price  substantially  below  its  fair  market 

29  value,  unless  satisfactorily  explained,  constitutes  prima  facie  evi- 

30  dence  that  the  person  buying  or  selling  the  property  was  aware  of 

31  the  risk  that  it  had  been  smuggled. 

32  "(c)  Determining  Duty.— Smugglings  committed  pursuant  to  one 

33  scheme  or  course  of  conduct  may  be  charged  as  one  offense,  and  the 

34  value  of,  or  the  duty  owing  on,  the  objects  introduced  may  be  aggre- 

35  gated  in  determining  the  grade  of  the  offense. 

36  "Chapter  15.— OFFENSES  INVOLVING  INDIVIDUAL 

37  RIGHTS 

"Subchapter 

"A.  Offenses  Involving  Civil  Rights. 
"B.  Offenses  Involving  Political  Rights. 
"C.  Offenses  Involving  Privacy. 


9571 

87 

1  "Subchapter  A. — Offenses  Involving  Civil  Rights 

"Sec. 

"1501.  Interfering  with  Civil  Rights. 

"1502.  Interfering  with  Civil  Right.s  under  Color  of  Law. 

"1503.  Interfering  with  a  Fedenal  Benefit. 

"1504.  Unhnwful  Discrimination. 

"1505.  Interfering  with  Speech  or  Assembly  Related  to  Civil  Rights  Activities. 

"1506.  Strikebreaking. 

2  "§1501.  Interfering  with  Civil  Rights 

3  "  (a)   Offense. — A  person  is  guilty  of  an  offense  if  he  intentionally : 

4  "  ( 1 )  deprives  another  person  of ;  or 

5  "(2)   injures,  oppresses,  threatens,  or  intimidates  another  per- 

6  son: 

7  "(A)   in  the  free  exercise  or  enjoyment  of;  or 

8  "(B)  because  of  his  having  exercised ; 

9  a  right,  privilege,  or  immunity  in  fact  secured  to  such  other  person 

10  by  the  Constitution  or  laws  of  the  United  States. 

11  "(L>)  Proof. — In  a  prosecution  under  this  section,  whether  the  dep- 

12  rivation,  injury,  ojipressioii,  tlireat,  or  intimidation  concerns  a  right, 

13  privilege,  or  immunity  secured  by  the  Constitution  or  laws  of  the 

14  United  States  is  a  question  of  law. 

15  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

16  misdemeanor. 

17  "§  1502.  Interfering  with  Civil  Rights  under  Color  of  Law 

18  "(a)  Offense. — A  person  js  guilty  of  an  offense  if,  acting  under 

19  color  of  law,  he  engages  in  any  conduct  constituting  an  offense  de- 

20  scribed  in  a  section  in  chapter  16  or  17,  and  thereby  deprives  another 

21  person  of  a  right,  privilege,  or  immunity  in  fact  secured  to  such  other 

22  person  by  the  Constitution  or  laws  of  the  United  States. 

23  "(b)  Proof. — In  a  prosecution  under  this  section,  whether  the  dep- 

24  privation  concerns  a  right,  privilege,  or  immunity  secured  by  the  Con- 
26  stitution  or  laws  of  tlic  United  States  is  a  question  of  law. 

26  "(c)   Grading. — An  offense  described  in  this  section  is  a  Class  A 

27  misdemeanor. 

28  "§  1503.  Interfering  with  a  Federal  Benefit 

29  "(a)   Offense. — A  person  is  guilty  of  an  offense  if,  by  force  or 

30  threat  of  force,  he  intentionally  injures,  intimidates,  or  interferes 

31  with  another  person  because  such  other  person  is  or  has  been,  or  in 

32  order  to  intimidate  any  person  from : 

33  "  (1 )  applying  for,  participating  in,  or  enjoying  a  benefit,  privi- 

34  lege,  service,  program,  facility,  or  activity  provided  by,  adminis- 

35  tered  by,  or  wholly  or  partly  financed  by,  the  United  States ; 


9572 

88 

1  "(2)   applying  for  or  enjoying  employment,  or  a  perquisite 

2  thereof,  by  a  federal  government  agency ; 

3  "(3)  serving  as  a  grand  or  petit  juror  in  a  court  of  the  United 

4  States  or  attending  court  in  connection  with  possible  service  as 

5  such  a  grand  or  petit  juror ; 

6  "(4)  voting  or  qualifying  to  vote,  qualifying  or  campaigning 

7  as  a  candidate  for  elective  office,  or  qualifying  or  acting  as  a 

8  poll  watcher  or  other  election  official,  in  a  primary,  general,  or 

9  special  election; 

10  "(5)  affording  another  person  or  class  of  persons  opportunity 

11  to  participate,  or  protection  in  order  to  participate,  in  any  benefit 

12  or  activity  described  in  this  section ;  or 

13  "(6)  aiding  or  encouraging  another  person  or  class  of  persons 

14  to  participate  in  any  benefit  or  activity  described  in  this  section. 

15  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

16  misdemeanor. 

17  "§  1504.  Unlawful  Discrimination 

18  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if,  by  force  or  threat 

19  of  force,  he  intentionally  injures,  intimidates,  or  interferes  with  an- 

20  other  person : 

21  "(1)  because  of  such  other  person's  race,  color,  sex,  religion,  or 

22  national  origin  and  because  such  other  person  is  or  has  been,  or  in 

23  order  to  intimidate  any  person  from : 

24  "  (A)  applying  for,  participating  in,  or  enjoying,  a  benefit, 

25  privilege,  service,  program,  facility,  or  activity  provided  or 

26  administered  by  a  state  or  locality ; 

27  "(B)  applying  for  or  enjoying  employment,  or  a  perqui- 

28  site  thereof,  by  a  state  or  local  government  agency ; 

29  "(C)  serving  as  a  grand  or  petit  juror  in  a  state  or  locality 

30  or  attending  court  in  connection  with  possible  service  as  such 

31  a  grand  or  petit  juror; 

32  "(D)  enrollingin  or  attending  a  public  school  or  public 

33  college; 

g^  "(E)  applying  for  or  enjoying  the  goods,  services,  privi- 

35  leges,  facilities,  or  accommodations  of : 

3g  "(i)  an  inn,  hotel,  motel,  or  other  establishment  that 

07  provides  lodging  to  transient  guests ; 

"(ii)  a     restaurant,     cafeteria,     lunchroom,     lunch 
counter,  soda  fountain,  or  other  facility  that  serves  the 

AQ  public  and  that  is  principally  engaged  in  selling  food 

^j  or  beverages  for  consumption  on  the  premises ; 


38 
39 


9573 

89 

1  "(iii)  a  gasoline  station ; 

2  "(iv)  a  motion  picture  house,  theater,  concert  hall, 

3  sports  arena,  stadium,  or  other  place  of  exhibition  or 

4  entertainment  that  serves  the  public ;  or 

5  "(v)  any  other  establishment  that  serves  the  public, 

6  that  is  located  within  the  premises  of  an  establishment 

7  described  in  this  subparagraph  or  that  has  located  within 

8  its  premises  such  an  establishment,  and  that  holds  itself 

9  out  as  serving  patrons  of  such  an  establishment ; 

10  "(F)  applying  for  or  enjoying  the  services,  privileges,  fa- 
ll cilities,  or  accommodations  of  a  common  carrier  utilizing  any 

12  kind  of  vehicle ; 

13  "(G)  traveling  in  or  using  a  facility  of  interstate  com- 

14  merce ; 

15  "(H)  applying  for  or  enjoying  employment,  or  a  perqui- 

16  site  thereof,  by  a  private  employer  or  joining  or  using  the 

17  services  or  advantages  of  a  labor  organization,  hiring  hall,  or 

18  employment  agency ;  or 

19  "  (I)  selling,  purchasing,  renting,  financing,  or  occupying  a 

20  dwelling;  contracting  or  negotiating  for  the  sale,  purchase, 

21  rental,  financing  or  occupation  of  a  dwelling;  or  applying  for 

22  or  participating  in  a  service,  organization,  or  facility  relating 

23  to  the  business  of  selling  or  renting  dwellings;  or 

24  "(2)  because  such  other  person  is  or  has  been,  or  in  order  to  in- 

25  timidate  any  person  from : 

26  "(A)  affording  another  person  or  class  of  persons  oppor- 

27  tunity  to  participate,  or  protection  in  order  to  participate, 

28  without  discrimination  on  account  of  race,  color,  sex,  re- 

29  ligion,  or  national  origin,  in  any  benefit  or  activity  described 

30  in  this  section ;  or 

31  "(B)  aiding  or  encouraging  another  person  or  class  of  per- 

32  sons  to  participate,  without  discrimination  on  account  of  race, 

33  color,  sex,  religion,  or  national  origin,  in  any  benefit  or  ac- 

34  tivity  described  in  this  section. 

35  "(b)  Defense.— It  is  a  defense  to  a  prosecution  under  subsection 

36  (a)(l)(E)(i)  that: 

37  "(1)  the  defendant  was  the  proprietor  of  the  establishment  in- 

38  volved  or  an  agent  acting  on  behalf  of  the  proprietor; 

39  "  (2)  the  establishment  was  located  within  a  building  containing 

40  not  more  than  five  rooms  for  rent  or  hire ;  and 


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90 

1  "(3)  the  building  was  occupied  by  the  proprietor  as  his  resi- 

2  dence. 

3  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

4  misdemeanor. 

5  "§  1505.  Interfering  with  Speech  or  Assembly  Related  to  Civil 

6  Rights  Activities 

7  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  by  force  or  threat 

8  of  force,  he  intentionally  injures,  intimidates,  or  interferes  with  an- 

9  other  person  because  he  is  or  has  been,  or  in  order  to  intimidate  him  or 

10  any  other  person  from,  participating  in  speech  or  assembly  opposing 

11  a  denial  of  opportunity  to  participate : 

12  "(1)  in  a  benefit  or  activity  described  in  section  1503;  or 

13  "(2)  in  a  benefit  or  activity  described  in  section  1504,  without 

14  discrimination  on  account  of  race,  color,  sex,  religion,  or  national 

15  origin. 

16  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

17  misdemeanor. 

18  "§1506.  Strikebreaking 

19  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if,  by  force  or  threat 

20  or  force,  he  intentionally  obstructs  or  interferes  with : 

21  "(1)  peaceful  picketing  by  employes  in  the  couree  of  a  bona 

22  fide  labor  dispute  affecting  wages,  hours,  or  conditions  of  labor ;  or 

23  "(2)  the  exercise  by  employees  of  rights  of  self-organization  or 

24  collective  bargaining. 

25  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

26  misdemeanor. 

27  "(c)   JiTRisDiCTiON. — There  is  federal  jurisdiction  over  an  offense 

28  described  in  this  section  if  movement  of  any  person  across  a  state  or 
20     United  States  boundary  occurs  in  the  commission  of  tlie  off(>nso. 

30  "Subchapter  B. — Offenses  Involving  Political  Rights 

"See. 

"1511.  Ob.structing  an  Election. 

"1512.  Obstructing  Registration. 

"1513.  Ob.structing  a  Political  Campaign. 

"1514.  Interfering  with  a  Federal  Benefit  for  a  Political  Purpose. 

"1515.  Misusing  Authority  over  Personnel  for  a  Political  Purpose. 

"1516.  Soliciting  a  Political  Contribution  as  a  Federal  Public  Servant  or  In  a 

Federal  Building. 
"1517.  Making  a  Political  Contribution  as  a  Foreign  National. 
"1518.  Making  an  Kxcess  Campaign  Expenditure. 
"1519.  Definitions  for  Subchapter  B. 

31  "§  1511.  Obstructing  an  Election 

32  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  in  connection 

33  with  a  primary,  general,  or  special  election  to  nominate  or  elect  a 

34  candidate  for  a  federal  office,  he :  ■ 


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91 

1  "(1)  obstructs  or  impairs  the  lawful  conduct  of  such  election; 

2  "(2)  offers,  gives,  or  agrees  to  give  anything  of  value  to  an- 

3  other  person  for  or  because  of  any  person's  voting,  refraining 

4  from  voting,  or  voting  for  or  against  such  candidate;  or 

5  "(3)  solicits,  demands,  accepts,  or  agrees  to  accept  anything  of 

6  value  for  or  because  of  any  person's  voting,  refraining  from  vot- 

7  ing,  or  voting  for  or  against  such  candidate. 

8  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

9  felony. 

10  "§1512.  Obstructing  Registration 

11  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  in  connection 

12  with  registration  to  vote  at  a  primary,  general,  or  special  election  to 

13  nominate  or  elect  a  candidate  for  a  federal  office,  he : 

14  "(1)  obstructs  or  impairs  the  lawful  conduct  of  such  registra- 

15  tion ; 

16  "(2)  offers,  gives,  or  agrees  to  give  anything  of  value  to  an- 

17  other  person  for  or  because  of  any  person's  registering  to  vote; 

18  "(3)  solicits,  demands,  accepts,  or  agrees  to  accept  anything  of 

19  value  for  or  because  of  any  person's  registering  to  vote ;  or 

20  "(4)  gives  information,  that  he  knows  to  be  false,  to  estab- 

21  lish  his  eligibility  to  vote. 

22  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

23  misdemeanor. 

24  "§  1513.  Obstructing  a  Political  Campaign 

26  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  during  a  cam- 

26  paign  preceding  a  primary,  general,  or  special  election  to  nominate 

27  or  elect  a  candidate  for  a  federal  office,  and  with  intent  to  influence 

28  the  outcome  of  such  election,  he : 

29  "(1)  engages  in  conduct  constituting  a  crime  under  any  section 

30  of  this  title ; 

31  "(2)  engages  in  conduct  constituting  a  felony  under  a  law  of 

32  the  state  in  which  the  conduct  occurs;  or 

33  "(3)  publishes  or  distributes  a  statement  concerning  a  candi- 

34  date  for  federal  office  that  does  not  contain,  or  that  misrepresents, 

35  the  name  of  the  person  or  organization  responsible  for  the  pub- 

36  lication  or  distribution. 

37  "  (bj  Grading. — An  offense  described  in  this  section  is : 

38  "(1)  a  Class  E  felony  in  the  circumstances  set  forth  in  sub- 

39  section  (a)(1)  or  (a)(2) ; 


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92 

1  "(2)  a  Class  A  misdemeanor  in  the  circumstances  set  forth  in 

2  subsection  (a)  (3). 

3  "§  1514.  Interfering  With  a  Federal  Benefit  for  a  Political  Purpose 

4  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  with  intent  to 

5  interfere  with,  restrain,  or  coerce  another  person  in  the  exercise  of 

6  his  right  to  vote  at  a  primary,  general,  or  special  election  to  nominate 

7  or  elect  a  candidate  for  a  federal,  state,  or  local  office,  he : 

8  "  ( 1 )  grants  or  threatens  to  grant  to  any  other  person ; 

9  "(2)  withholds  or  threatens  to  withhold  from  any  other  per- 

10  son ;  or 

11  "  (3)  deprives  or  threatens  to  deprive  any  other  person  of; 

12  the  benefit  of  a  federal  program  or  a  federally  supported  program 

13  or  a  federal  government  contract. 

14  "(b)  Gradixg. — An  offense  described  in  this  section  is  a  Class  A 

15  misdemeanor. 

16  "§  1515.  Misusing  Authority  over  Personnel  for  a  Political 

17  Purpose 

18  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  as  a  federal 

19  public  servant,  he : 

20  "(1)  promotes,  fails  to  promote,  demotes,  or  discharges; 

21  "(2)  recommends  the  promotion,  non-promotion,  demotion,  or 

22  discharge  of ;  or 

23  "  (3)  changes  in  any  manner,  or  promises  or  threatens  to  change, 

24  the  official  position  or  compensation  of; 

25  another  federal  public  servant,  for  or  because  of  any  person's  giving, 

26  withholding,  or  neglecting  to  make  a  political  contribution. 

27  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

28  misdemeanor. 

29  "§  1516.  Soliciting  a  Political  Contribution  as  a  Federal  Public 

30  Servant  or  in  a  Federal  Building 

31  "(a)  Offense. — A  person  is  guilty  of  an  offense  if: 

32  "  ( 1 )  as  a  federal  public  servant,  he : 

33  "(A)  solicits  a  political  contribution  from  another  person 

34  whom  he  knows  to  be  a  federal  public  servant;  or 

35  "(B)    makes  a  political  contribution  to  another  person 

36  whom  he  Icnows  to  be  a  federal  public  servant,  in  response  to 

37  a  solicitation;  or 

38  "(2)  he  solicits  or  receives  a  political  contribution  in  a  federal 

39  building  or  facility. 


9577 


1  "(b)  Affirmati\t;  Defexse. — It  is  an  affirmative  defense  to  a  prose- 

2  cution  under  this  section  that  both  the  public  servant  soliciting  the 

3  political  contribution  or  making  the  political  contribution  in  response 

4  to  a  solicitation  and  the  public  servant  solicited  for  or  receiving  such 

5  contribution  are  members  of.  members-elect  of,  or  candidates  for, 

6  Congress. 

7  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

8  misdemeanor. 

9  "§  1517.  Making  a  Political  Contribution  as  a  Foreign  National 

10  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if : 

11  "(1)  as  a  foreign  national,  he  makes  or  promises  to  make  a  po- 

12  litical  contribution ;  or 

13  "  (2)  he  solicits,  accepts,  or  receives  a  political  contribution  from 

14  a  foreign  national  or  from  a  foreign  power. 

15  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

16  felony. 

17  "§  1518.  Making  an  Excess  Campaign  Expenditure 

18  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if : 

19  "(1)    he   violaten   section   9035   of  the   Presidential   Primary 

20  Matching  Payment  Account  Act  (26  U.S.C.  9035)    (relating  to 

21  campaign  expense  limitations) ;  or 

22  "  (2)  as  an  officer  or  member  of  a  'political  committee',  as  defined 

23  in  the  Presidential  Primary  Matching  Payment  Account  Act 

24  (26  U.S.C.  9032 (8) ) ,  he  consents  to  an  expenditure  in  violation  of 

25  section  9035  (relating  to  campaign  expense  limitations)  of  that 

26  Act. 

27  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

28  felony. 

29  "§1519.  Definitions  for  Subchapter  B 

30  "As  used  in  this  subchapter : 

31  "(a)  'anything  of  value'  does  not  include  nonpartisan  physical 

32  activities  or  services  to  facilitate  registration  or  voting ; 

33  "(b)  'federal  office'  means  the  office  of  President  or  Vice-Presi- 

34  dent  of  the  United  States,  or  Senator  or  Representative  in,  or 

35  Delegate  or  Resident  Commissioner  to,  the  Congress  of  the  United 

36  States; 

37  "(c)  'foreign  national'  means: 

38  "(1)  a  'foreign  principal'  as  defined  in  section  1  of  tha 

39  Foreign  Agents  Registration  Act  of  1938,  as  amended  (22 


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94 

1  U.S.C.  611) ,  but  does  not  include  a  person  who  is  a  citizen  of 

2  the  United  States;  or 

3  "  (2)  a  person  who  is  not  a  citizen  of  the  United  States  and 

4  who  is  not  lawfully  admitted  for  permanent  residence  within 

5  the  meaning  set  forth  in  section  101  of  the  Immigration  and 
g  Nationality  Act,  as  amended  (8  U.S.C.  1101) ; 

7  "(d)  'political  contribution' means : 

g  "(1)  as  used  in  section  1515  and  1517,  anything  of  value 

9  used  or  to  be  used  for  the  nomination  or  election  of  any 

10  person  to  federal,  state,  or  local  office ;  and 

11  "(2)  as  used  in  section  1516,  a  'contribution'  as  defined  in 

12  the  Federal  Election  Campaign  Act  (2  U.S.C.  431  (e) ) . 

13  "Subchapter  C. — Offenses  Involving  Privacy 

"Sec. 

"1521.  Eavesdropping. 

"1522.  Trafficking  in  an  Eavesdropping  Device. 

"1523.  Possessing  an  Eavesdropping  Device. 

"1524.  Intercepting  Correspondence. 

"1525.  Revealing  Private  Information  Submitted  for  a  Government  Purpose. 

"1526.  Definition  for  Sulx^hapter  C. 

14  "§1521.  Eavesdropping 

15  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if  he  intentionally : 

16  "(1)  intercepts  a  private  oral  communication  by  means  of  an 

17  eavesdropping  device  without  the  prior  consent  of  a  party  to  the 

18  communication;  or 

19  "(2)   discloses  to  another  person,  or  uses,  the  contents  of  a 

20  private  oral  communication,  knowing  that  such  contents  were  ob- 

21  tained  by  conduct  described  in  paragraph  ( 1 ) . 

22  "  (b)  Defense. — It  is  a  defense  to  a  prosecution  under  this  section 

23  that  the  private  oral  communication  was  being  transmitted  over  the 

24  facilities  of  a  communications  common  carrier ;  and 

25  "(1)  the  defendant  was  an  agent  of  the  carrier,  acting  in  the 

26  usual  course  of  his  employment,  who  was  engaged  in : 

27  "(A)  service  observing  for  mechanical  or  service  quality 

28  control  checks;  or 

29  "(B)  any  other  activity  necessarily  incident  to  the  rendi- 

30  tion  of  service  by  the  carrier  or  relating  to  the  discovery  of 

31  theft  or  the  carrier's  service ;  or 

32  "  (2)  the  defendant  was  acting  in  the  usual  course  of  his  employ- 

33  ment  and  was  engaged  in  supervisory  service  observing. 

34  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  D 

35  felony. 


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95 


1  "§1522.  Trafficking  in  an  Eavesdropping  Device 

2  "  (a)   Offense. — A  person  is  guilty  of  an  offense  if  he  intentionally  : 

3  "(1)  produces,  manufactures,  imports,  or  traffics  in  an  eaves- 

4  dropping  device,  knowing  that  its  design  renders  it  primarily  use- 

5  f ul  for  surreptitious  interception  of  private  oral  communications ; 

6  or 

7  "(2)  advertises  an  eavesdropping  device,  loiowing  that: 

8  "(A)  its  design  renders  it  primarily  useful  for  surrepti- 

9  tious  interception  of  private  oral  communications,  or 

10  "(B)  such  advertising  promotes  the  use  of  such  device  for 

11  surreptitious  interception  of  private  oral  communications. 

12  "(b)  Defenses.— it  is  a  defense  to  a  prosecution  under  this  section 

13  that  the  defendant  was : 

14  "(1)    a  communications  common  carrier,  an  agent  of  such 

15  a  carrier,  or  a  person  under  contract  with  such  a  carrier,  and  was 

16  acting  for  a  purpose  set  forth  in  section  1521(b)  (2)  ;  or 

17  "  (2)  a  person  acting  within  the  scope  of  a  federal,  state,  or  local 

18  government  contract. 

19  "(c)  Grading.— An  offense  under  this  section  is  a  Class  D  felony. 

20  "(d)  JimiSDicTioN.- There  is  federal  jurisdiction  over  an  offense 

21  described  in  this  section  if : 

22  "  (1)  the  offense  is  committed  within  the  special  jurisdiction  of 

23  the  United  States; 

24  "(2)  the  device  is  sent  through  the  United  States  mail,  or  is 

25  moved  across  a  state  or  United  States  boundary,  in  the  commis- 

26  sion  of  the  offense ;  or 

27  "(3)  the  advertisement  is  sent  through  the  Unit«d  States  mail, 

28  or  is  moved  across  a  state  or  United  States  boundary,  or  is  trans- 

29  mitted  by  a  communications  facility  that  operates  in  interstate  or 

30  foreign  commerce,  in  the  commission  of  the  offense. 

31  "§1523.  Possessing  an  Eavesdropping  Device 

32  "(a)  Offense. — A  pereon  is  guilty  of  an  offense  if,  with  intent  that 

33  it  be  used  in  the  course  of  conduct  constituting  an  offense  under  section 

34  1521  or  1522,  he  possesses  an  eavesdropping  device. 

35  "(b)  Defenses.— It  is  a  defense  to  a  prosecution  under  this  section 

36  that  the  defendant  was : 

37  "(1)   a  communications  common  carrier,  an  agent  of  such  a 

38  carrier,  or  a  person  under  contract  with  such  a  carrier,  and  was 

39  in  possession  of  the  eavesdropping  device  for  a  purpose  set  forth 

40  in  section  1521(b)  (2)  ;  or 


92-465  O  -  77  -  65 


9580 

96 

1  "(2)  a  person  in  possession  of  the  eavesdropping  device  within 

2  the  scope  of  a  federal,  state,  or  local  government  contract. 

3  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

4  misdemeanor. 

5  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

6  described  in  this  section  if  a  circumstance  specified  in  section  1522 

7  (d)  (1)  or  (d)  (2)  exists  or  has  occurred. 

8  "§  1524.  Intercepting  Correspondence 

9  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if  he  intentionally : 

10  "(1)  intercepts  private  correspondence  without  the  prior  con- 

11  sent  of  the  sender  or  the  intended  recipient ;  or 

12  "  (2)  discloses  to  another  person,  or  uses,  the  contents  of  private 

13  correspondence,  knowing  that  such  contents  were  obtained  by 

14  conduct  described  in  paragraph  (1). 

15  "(b)  Defense. — It  is  a  defense  to  a  prosecution  under  this  section 

16  that  the  private  correspondence  was  being  transmitted  over  the  facili- 

17  ties  of  a  communications  common  carrier;  and 

18  "(1)  the  defendant  was  an  agent  of  the  carrier,  acting  in  the 

19  usual  course  of  his  employment,  who  was  engaged  in: 

20  "(A)  service  observing  for  mechanical  or  service  quality 

21  control  checks;  or 

22  "(B)   any  other  activity  necessarily  incident  to  the  ren- 

23  dition  of  service  by  the  carrier  or  relating  to  the  discovery 

24  of  theft  of  the  carrier's  service;  or 

25  "(2)  the  defendant  was  acting  in  the  usual  course  of  his  em- 

26  ployment  and  was  engaged  in  supervisory  service  observing. 

27  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

28  felony. 

29  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

30  described  in  this  section  if : 

31  "(1)  the  private  correspondence  is  mail ;  or 

32  "(2)  the  private  correspondence  is  being  transmitted  over  the 

33  facilities  of  a  communications  common  carrier. 

34  "§  1525.  Revealing  Private  Information  Submitted  for  a  Govern- 

35  ment  Purpose 

36  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  in  violation  of 

37  a  specific  duty  imposed  upon  him  as  a  public  servant  or  former  public 

38  servant  by  a  statute,  or  by  a  regulation,  rule,  or  order  issued  pursuant 

39  thereto,  he  discloses  information,  to  which  he  has  or  had  access  only 

40  in  his  capacity  as  a  public  servant,  that  had  been  provided  to  the 


9581 

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1  government  by  another  person,  other  than  a  public  servant  acting  in 

2  his  official  capacity,  solely  in  order  to  comply  with : 

3  "(1)  a  requirement  of  an  application  for  a  patent,  copyright, 

4  license,  employment,  or  benefit ;  or 

5  "(2)  a  specific  duty  im^DOsed  by  law  upon  such  other  person. 

6  "(b)   Grading. — An  offense  described  in  this  section  is  a  Class  A 

7  misdemeanor. 

8  "(c)   Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

9  described  in  this  section  if  the  public  servant  or  former  public  servant 

10  acquired  the  information  as  a  federal  public  servant. 

11  "§  1526.  Definitions  for  Subchapter  C 

12  "As  used  in  this  subchapter : 

13  "(fi)   'communications  common  carrier'  has  the  meaning  set 

14  forth  for  the  term  'common  carrier'  in  section  3(h)  of  the  Act  of 

15  June  19, 1934,  as  amended  (47  U.S.C.  153(h) )  ; 

16  "(b)  'contents',  when  used  with  respect  to  a  communication, 

17  includes  information,  obtained  from  the  communication  itself, 

18  that  concerns  the  existence,  substance,  purport,  or  meaning  of 

19  the  communication,  or  the  identity  of  a  party  to  the  communi- 

20  cation ; 

21  "(c)  'eavesdropping  device' means  an  electronic,  mechanical,  or 

22  other  device  or  apparatus  that  can  be  used  to  intercept  a  private 

23  oral  communication,  other  than  a  telephone  or  telegraph  instru- 

24  ment  or  facility  or  any  associated  component  or  equipment,  fur- 

25  nished  to  a  subscriber  or  user  by  a  communications  common 

26  carrier  in  the  usual  course  of  its  business  and  being  used  in  a  man- 

27  ner  for  which  it  was  designed ; 

28  "(d)  'intercept'  means  to  acquire  the  contents  of  a  communi- 

29  cation  in  the  course  of  its  transmission  to  a  party  to  the  communi- 

30  cation  or  before  its  receipt  by  the  intended  recipient,  and  includes 

31  the  acquisition  of  such  contents  by  simultaneous  transmission  or 

32  by  recording ; 

33  "(e)   'private  correspondence'  means  a  communication,  other 

34  than  speech,  sent  by  a  person  exhibiting  an  expectation,  under 

35  circumstances  reasonably  justifying  the  expectation,  that  such 

36  communication  is  not  subject  to  being  intercepted,  opened,  or 

37  read,  other  than  by  an  agent  of  a  communications  common  car- 

38  rier  acting  in  the  usual  course  of  the  business  of  such  carrier, 

39  until  received  by  the  intended  recipient,  and  includes  telecom- 


! 


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98 

1  munications  and  mail  other  than  a  post  card,  postal  card,  news- 

2  paper,  magazine,  circular,  or  advertising  matter; 

3  "(f)  'private  oral  communication'  means  speech  uttered  by  a 

4  person  exhibiting  an  expectation,  under  circumstances  reasonably 
6             justifying  the  expectation,  that  such  speech  is  not  subject  to 

6  overhearing ; 

7  "(g)  'record'  means  to  register  sound  by  an  electronic,  mechan- 

8  ical,  or  other  device  in  a  manner  that  will  permit  its  reproduction. 

9  "Chapter  16.--0FFENSES  INVOLVING  THE  PERSON 

"Subchapter 

"A.  Homicide  Offenses. 

"B.  Assault  Offenses. 

"O.  Kidnapping  and  Related  Offenses. 

"D.  Hijacking  Offenses. 

"E.  Sex  Offenses. 

10  "Subchapter  A. — Homicide  Offenses 

"Sec. 

"1601.  Murder. 

"1602.  Manslaughter. 

"1603.  Negligent  Homicide. 

n  "§  1601.  Murder 

12  "(a)  Offense. — A  person  is  guilty  of  an  offense  if: 

13  "(1)   he  engages  in  conduct  by  which  he  knowingly  causes  the 

14  deatli  of  another  person ; 

15  "(2)  he  engages  in  conduct  by  which  he  causes  the  death  of 

16  another  person  under  circumstances  in  fact  manifesting  extreme 

17  indifference  to  human  life :  or 

18  "(3)  in  fact  during  the  commission  of  an  offense  described  in 

19  section  1101  (Treason),  1102  (Armed  Rebellion  or  Insurrection), 

20  1111  (Sabotage),  1121  (Espionage),  1313  (Escape),  1601(a)(1) 

21  or  (a)  (2)  (Murder),  1611  (Maiming),  1621  (Kidnapping),  1622 

22  (Aggravated  Restraint),  1631  (Aircraft  Hijacking),  1641  (Rape), 

23  1701  (Arson),  1711  (Burglary),  or  1721  (Robbery)  that  he  com- 

24  mits  either  alone  or  with  one  or  more  other  participants,  he  or 

25  another  person  engages  in  conduct  that  in  fact  causes  the  death 

26  of  a  person  other  than  one  of  the  participants  in  such  underlying 

27  offense. 

28  "(b)  Defense. — It  is  a  defense  to  a  prosecution  under  subsection 

29  (a)  (1)  that  the  death  was  caused  under  circumstances,  for  which  the 

30  defendant  was  not  responsible,  that : 

31  "(1)   caused  the  defendant  to  lose  his  self-control;  and 

32  "(2)  would  ho  likely  to  cau.se  an  ordinary  person  to  lose  his 

33  self-control  to  at  least  the  same  extent. 


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1  "(c)  Affirmative  Defense. — -It  is  an  affirmative  defense  to  a  pros- 

2  edition  under  subsection  (a)  (3)  that  the  death  was  not  a  reasonably 

3  foreseeable  consequence  of : 

4  •'  ( 1 )  the  underlying  offense ;  or 

5  "(2)  the  particular  circumstances  under  which  the  underlying 

6  offense  was  committed. 

7  "(d)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

8  felony. 

9  "(e)  Jurisdiction. — There  is  a  federal  jurisdiction  over  an  offense 

10  described  in  this  section  if : 

11  "(1)  the  offense  is  committed  within  the  special  iurisdiction  of 

12  the  United  States ; 

13  "  (2)  the  offense  is  committed  against : 

14  "  ( A )  a  United  States  official ; 

15  "(B)  a  federal  public  servant  who  is  engaged  in  the  per- 

16  formance  of  his  official  duties  and  who  is  a  judge,  a  juror,  a 

17  law  enforcement  officer,  an  employee  of  an  official  detention 

18  facility,  an  employee  of  the  United  States  Probation  Service, 

19  or  a  person  designated  for  coverage  under  this  section  in 

20  regulations  issued  by  the  Attorney  General ; 

21  ■  "(C)  a  foreign  dignitary,  or  a  member  of  his  immediate 

22  family,  who  is  in  the  United  States ; 

23  "(D)  a  foreign  official  who  is  in  the  United  States  on  of- 

24  ficial  business,  or  a  member  of  his  immediate  family  who  is  in 

25  the  United  States  in  connection  with  the  visit  of  such  official ; 

26  or 

27  "  (E)  an  official  guest  of  the  United  States ;  or 

28  "(F)  an  internationally  protected  person; 

29  "(3)   the  offense  is  committed  by  transmitting  a  dangerous 

30  weapon  through  the  United  States  mail ;  or 

31  "  (4)  the  offense  occurs  during  the  commission  of  an  offense,  over 

32  which  federal  jurisdiction  exists,  that  is  described  in  section  1101 

33  (Treason),  1102  (Armed  Eebellion  or  Insurrection),  1111  (Sabo- 

34  tage) ,  1112  (Impairing  Military  Effectiveness) ,  1121  (Espionage) , 

35  1302  (Obstructing  a  Government  Function  by  Physical  Interfer- 

36  ence),  1313  (Escape),  1323  (Tampering  with  a  Witness  or  an  In- 

37  formant),  1324  (Retaliating  against  a  Witness  or  an  Informant), 

38  1357    (Tampering  with  a  Public  Servant),   1358    (Retaliating 

39  against  a  Public  Servant),  1501  (Interfering  with  Civil  Rights), 

40  1502  (Interfering  with  Civil  Rights  under  Color  of  Law),  1503 


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1  (Interfering  with  a  Federal  Benefit),  1504  (Unlawful  Discrim- 

2  ination),  1505  (Interfering  with  Speecli  or  Assembly  Eelated  to 

3  Civil  Rights  Activities),  1621  (Kidnapping),  1622  (Aggravated 

4  Criminal  Restraint),  1631  (Aircraft  Hijacking),  1701  (Arson), 

5  1702  (Aggravated  Property  Destruction),  1711  (Burglary),  1712 

6  (Criminal  Entry),  1713  (Criminal  Trespass),  1721   (Robbery), 

7  1722  (Extortion) ,  or  1804  (Loansharking) . 

8  "§  1602.  Manslaughter 

9  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if : 

10  "(1)  he  engages  in  conduct  by  which  he  causes  the  death  of  an- 

il other  person ;  or 

12  "(2)  he  engages  in  conduct  by  which  he  knowingly  causes  the 

13  death  of  another  person  under  circumstances  that  would  consti- 

14  tute  an  offense  under  section  1601(a)  (1)  except  for  the  existence 

15  of  circumstances  in  fact  constituting  a  defense  under  section 

16  1601(b). 

17  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  C 

18  felony. 

19  "(c)  jTJRiSDicnoN. — There  is  federal  jurisdiction  over  an  offense 

20  described  in  this  section  if  a  curcumstance  specified  in  section  1601(e) 

21  exists  or  has  occurred. 

22  "§1603.  Negligent  Homicide 

23  "(a)  Offexse. — A  person  is  guilty  of  an  offense  if  he  engages  in 

24  conduct  by  which  he  negligently  causes  the  death  of  another  person. 
25-        "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  D 

26  felony. 

27  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

28  described  in  tliis  section  if  a  circumstance  specified  in  section  1601 

29  (e)  exists  or  has  occurred. 

30  "Subchapter  B. — As.««ault  Offenses 

"See. 

"1611.  Maiming. 

"1612.  Aggravated  Battery. 

"1613.  Battery. 

"1614.  Menacing. 

"1615.  Terrorizing. 

"1616.  Communioating  a  Threat. 

"1617.  Reckless  Endangorment. 

"1618.  General  Provisions  for  Subchapter  B. 

31  "§  1611.  Maiming 

32  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  by  physical 

33  force,  he  intentionally  causes  serious  bodily  injury,  that  is  permanent 

34  or  likely  to  be  permanent,  to  another  person. 


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1  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  C 

2  felony. 

3  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

4  described  in  this  section  if : 

5  "  (1)  the  offense  is  committed  within  the  special  jurisdiction  of 

6  the  United  States ; 

7  "  (2)  the  offense  is  committed  against: 

8  "(A)  a  United  States  official ; 

9  "(B)   a  federal  public  servant  who  is  engaged  in  the  per- 

10  formance  of  his  official  duties  and  who  is  a  judge,  a  juror,  a 

11  law  enforcement  officer,  an  employee  of  an  official  detention 

12  facility,  an  employee  of  the  United  States  Probation  Service, 

13  or  a  person  designated  for  coverage  under  this  section  in 

14  regulations  issued  by  the  Attorney  General ; 

15  "(C)  a  foreign  dignitary,  or  a  member  of  his  immediate 

16  family,  who  is  in  the  United  States ; 

17  "(D)   a  foreign  official  who  is  in  the  United  States  on  offi- 

18  cial  business,  or  a  member  of  his  immediate  family  who  is  in 

19  the  United  States  in  connection  with  the  visit  of  such  official ; 

20  or 

21  "(E)   anofficialguestof  the  United  States;  or 

22  "(F)   an  internationally  protected  person ; 

23  "(3)   the  offense  is  cojnmitted  by  transmitting  through  the 

24  United  States  mail  a  dangerous  weapon ;  or 

25  "(4)  the  offense  occurs  during  the  commission  of  an  offense, 

26  over  which  federal  jurisdiction  exists,  that  is  described  in  section 

27  1101   (Treason),  1102  (Armed  Rebellion  or  Insurrection),  1111 

28  (Sabotage),  1112  (Impairing  Military  Effectiveness),  1121  (Es- 

29  pionage) ,  1302  (Obstructing  a  Government  Function  by  Physical 

30  Interference),  1313  (Escape),  1323  (Tampering  with  a  Witness 

31  or  an  Informant),  1324  (Retaliating  against  a  Witness  or  an 

32  Informant) ,  1357  (Tampering  with  a  Public  Servant) ,  1358  (Re- 

33  taliating  against  a  Public  Servant) ,  1501  (Interfering  with  Civil 

34  Rights),  1502   (Interfering  with  Civil  Rights  under  Color  of 

35  Law) ,  1503  (Interfering  with  a  Federal  Benefit) ,  1504  (Unlawful 

36  Discrimination),  1505    (Interfering  with  Speech  or  Assembly 

37  Related  to  Civil  Rights  Activities),  1621   (Kidnapping),  1622 

38  (Aggravated  Criminal  Restraint),  1631   (Aircraft  Hijacking), 

39  1701    (Arson),  1702   (Aggravated  Property  Destruction),  1711 

40  (Burglary),  1712  (Criminal  Entry),  1713  (Criminal  Trespass), 

41  1721  (Robbery),  1722  (Extortion),  or  1804  (Loansharking). 


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1  "§  1612.  Aggravated  Battery 

2  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if,  by  physical  force, 

3  he  causes  serious  bodily  injury  to  another  person. 

4  '"(b)  Grading. — An  offense  described  in  this  section  is  a  Class  D 

5  felony. 

6  "(c)   Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

7  described  in  this  section  if  a  circumstance  specified  in  section  1611(c) 

8  exists  or  has  occurred. 

9  "§1613.  Battery 

10  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if,  by  physical  force, 

11  he  causes  bodily  injury  to  another  person. 

12  "(b)  Grading. — An  offense  described  in  this  section  is : 

13  "  (1)  a  Class  A  misdemeanor  unless  it  is  committed  in  the  course 

14  of  an  unarmed  fight  or  affray  that  was  entered  into  mutually; 

15  " (2)   a  Class  C  misdemeanor  in  any  other  case. 

16  "(c)   Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

17  described  in  this  section  if  a  circumstance  specified  in  section  1611 

18  (c)  (1),  (c)  (2),  or  (c)  (3)  exists  or  has  occurred. 

19  "§1614.  Menacing 

20  "(a)  Offense. — A  {jerson  is  guilty  of  an  offense  if  he  engages  in 

21  physical  conduct  by  which  he  intentionally  places  another  person  in 

22  fear  of  imminent  bodily  injury. 

23  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

24  misdemeanor. 

25  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

26  described  in  this  section  if  a  circumstance  specified  in  section  1611(c) 

27  (1)  or  (c)  (2)  existed  or  has  occurred. 

28  "§1615.  Terrorizing 

29  " (a)  Offense. — A  person  is  guilty  of  an  offense  if  he  communicates : 

30  "(1)  a  threat  to  commit,  or  to  continue  to  commit,  a  crime  of 

31  violence  or  unlawful  conduct  dangerous  to  human  life;  or 

32  "(2)   information,  that  he  knows  to  be  false,  that  the  commis- 

33  sion  of  a  crime  of  violence  is  imminent  or  in  progress  or  that  a  cir- 

34  cumstance  dangerous  to  human  life  exists  or  is  about  to  exist; 

35  and  thereby  causes  any  person  to  be  in  sustained  fear  for  his  or  another 

36  person's  safety ;  causes  evacuation  of  a  building,  a  public  structure,  or 

37  a  facility  of  transportation ;  or  causes  other  serious  disruption  to  the 

38  public. 


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1  "(b)  Grading. — An  offense  described  in  this  section  is: 

2  "(1)   a  Class  D  felony  in  the  circumstances  set  forth  in  sub- 

3  section  (a)  (1)  if  it  causes  any  person  to  be  in  sustained  fear  that 

4  he  or  another  will  be  killed,  maimed,  kidnaped,  or  raped ; 

5  "(2)  a  Class  E  felony  in  any  other  case. 

6  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

7  described  in  this  section  if : 

8  "(1)  a  circumstance  specified  in  section  1611(c)  exists  or  has 

9  occurred ; 

10  "(2)  the  United  States  mail  is  used  in  the  commission  of  the 

11  offense; 

12  "(3)  the  threat  or  information  is  transmitted  in  interstate  or 

13  foreign  commerce ; 

14  "  (4)  the  threat  or  information  concerns  property  that  is  owned 

15  by,  or  is  under  the  care,  custody,  or  control  of,  a  public  facility 

16  that  operates  in  interstate  or  foreign  commerce ;  or 

17  "  ( 5 )  the  threat  or  information  concerns  property  that  is  owned 

18  by,  or  is  under  the  care,  custody,  or  control  of,  the  United  States. 

19  "§1616.  Communicating  a  Threat 

20  "(a)   Offense. — A  person  is  guilty  of  an  offense  if,  with  intent 

21  to  alarm  or  harass  another  person,  he  communicates : 

22  "(1)  a  threat  to  commit  or  to  continue  to  commit  a  crime  of 

23  violence,  or  unlawful  conduct  dangerous  to  human  life;  or 

24  "(2)  information,  that  he  knows  to  be  false,  that  the  commis- 

25  sion  of  a  crime  is  imminent  or  in  progress  or  that  a  circumstance 

26  dangerous  to  human  life  exists  or  is  about  to  exist. 

27  "  (b)  Grading. — An  offense  described  in  this  section  is : 

28  "(1)  S'  Class  A  misdemeanor  if  the  threat  or  information  con- 

29  cems  a  crime,  conduct,  or  circumstance  dangerous  to  human  life; 

30  "  (2)  a  Class  B  misdemeanor  in  any  other  case. 

31  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

32  described  in  this  section  if : 

33  "(1)  a  circumstance  specified  in  section  1615  (c)(2),  (c)(3), 

34  (c)  (4) ,  or  (c)  (5)  exists  or  has  occurred ;  or 

35  "(2)  the  offense  is  committed  within  the  special  jurisdiction  of 

36  the  United  States. 

37  "§  1617.  Reckless  Endangerment 

38  "(a)   Offense. — A  person  is  guilty  of  an  offense  if  he  engages  in 

39  conduct  by  which  he  places  or  may  place  another  person  in  danger  of 

40  death  or  serious  bodily  injury. 


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1  "(b)   Grading. — An  offense  described  in  this  section  is : 

2  "(1)  a  Class  D  felony  if  the  circumstances  manifest  extreme 

3  indifference  to  human  life ; 

4  "(2)   a  Class  E  felony  in  any  other  case. 

5  "(c)   Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

6  described  in  this  section  if : 

7  "(1)  the  offense  is  committed  within  the  special  jurisdiction  of 

8  the  United  States ;  or 

9  "(2)  the  offense  occurs  during  the  commission  of  any  other 

10  offense  over  which  federal  jurisdiction  exists. 

11  "§1618.  General  Provisions  for  Subchapter  B 

12  "(a)   Definition. — As  used  in  this  subchapter,  'public  structure' 

13  means  a  structure,  whether  or  not  enclosed,  where  persons  assemble 

14  for  purposes  of  government,  an  occupation  or  a  business  or  a  profes- 

15  sion,  education,  religion,  or  entertainment. 

16  "(b)  Affirmative  Defense. — It  is  an  affirmative  defense  to  a  prose- 

17  cuthjn  under : 

18  "  ( 1 )  section  1613  or  1614  that  the  conduct  charged  was  consented 

19  to  by  the  person  injured  or  placed  in  fear;  and 

20  "(2)  section  1611,  1612,  or  1617  that  the  conduct  charged  was 

21  consented  to  by  the  person  injured  or  endangered  and  that  the 

22  injury  and  conduct  charged  were: 

23  "(A)  reasonably  foreseeable  hazards  of  joint  participation 

24  by  the  actor  and  such  other  person  in  a  lawful  athletic  con- 

25  test  or  competitive  sport ;  or 

26  "(B)  reasonably  foreseeable  hazards  of: 

27  "(i)  an  occupation,  a  business,  or  a  profession ;  or 

28  "(ii)  medical  treatment  or  medical  or  scientific  experi- 

29  mentation  conducted  by  professionally  approved  methods 

30  and  such  other  person  had  been  made  aware  of  the  risks 

31  involved  prior  to  giving  consent. 

32  "Subchapter  C. — Kidnapping  and  Related  Offenses 

"Sec. 

"1621.  Kidnapping. 

"1622.  Aggravated  Criminal  Restraint. 

"1623.  Criminal  Restraint. 

"1624.  General  Provisions  for  Subchapter  C. 

33  "§1621.  Kidnapping 

34  "(ii)   Offense. — A  per.son  is  guilty  of  an  offense  if  ho  restrains 

35  another  person  with  intent  to : 

36  "  (1)  hold  him  for  ransom  or  reward ; 

37  "  (2)  use  him  as  a  shield  or  hostage; 


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1  "  (3)  commit  a  felony ;  or 

2  "(4)  interfere  with  the  performance  of  a  government  function. 

3  "  (b)  Grading. — An  offense  described  in  this  section  is : 

4  "(1)  a  Class  A  felony  if  the  actor  does  not  voluntarily  release 

5  the  victim  alive  and  in  a  safe  place  prior  to  trial ; 

6  "  (2)  a  Class  C  felony  in  any  other  case. 

7  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

8  described  in  this  section  if : 

9  "(1)  the  offense  is  committed  within  the  special  jurisdiction  of 

10  the  United  States; 

11  "  (2)  the  offense  is  committed  against : 

12  "(A)  a  United  States  official; 

13  "(B)  a  federal  public  servant  who  is  engaged  in  the  per- 

14  formance  of  his  official  duties  and  who  is  a  judge,  a  juror,  a 

15  law  enforcement  officer,  an  employee  of  an  official  detention 

16  facility,  an  employee  of  the  United  States  Probation  Service, 

17  or  a  person  designated  for  coverage  imder  this  section  in 

18  regulations  issued  by  the  Attorney  General ; 

19  "(C)  a  foreign  dignitary  or  a  member  of  his  immediate 

20  family,  who  is  in  the  United  States ; 

21  "(D)  a  foreign  official  who  is  in  the  United  States  on  offi- 

22  cial  business,  or  a  member  of  his  immediate  family  who  is  in 

23  the  United  States  in  connection  with  the  visit  of  such  offi- 

24  cial;  or 

25  "(E)   an  official  guest  of  the  United  States;  or 

26  "(F)   an  internationally  protected  person ; 

27  "(3)  movement  of  the  victim  across  a  state  or  United  States 

28  boundary  occurs  in  the  commission  of  the  offense;  or 

29  "(4)  the  offense  occurs  during  the  commission  of  an  offense, 

30  over  which  federal  jurisdiction  exists,  that  is  described  in  section 

31  1101  (Treason),  1102  (Armed  Rebellion  or  Insurrection),  1111 

32  Sabotage) ,  1121  (Espionage) ,  1203  (Entering  or  Recruiting  for  a 

33  Foreign  Armed  Force),  1213  (Hindering  Discovery  of  an  Alien 

34  Unlawfully  in  the  United  States),  1302  (Obstructing  a  Govem- 

35  ment  Function  by  Physical  Interference),  1313  (Escape),  1323 

36  (Tampering  with  a  Witness  or  an  Informant),  1324  (Retaliating 

37  against  a  Witness  or  an  Informant),  1357  (Tampering  with  a 

38  Public  Servant),  1358  (Retaliating  against  a  Public  Servant). 

39  1501   (Interfering  with  Civil  Riehts),  150$!  (Interferine  with 

40  Civil  Rights  under  Color  of  Law) ,  1503  (Interfering  with  a  Fed- 


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1  eral  Benefit),  1504  (Unlawful  Discrimination),  1505  (Interfering 

2  with  Speech  or  Assembly  Relate-d  to  Civil  Rights  Activities) ,  1701 

3  (Arson),  1702  (Aggravated  Projierty  Destruction),  1711  (Bur- 

4  glary),  1712  (Criminal  Entry),  1713  (Criminal  Trespass),  1721 

5  (Robbery),  1722  (Extortion), or  1804  (Loansharking). 

6  "§  1622.  Aggravated  Criminal  Restraint 

7  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  restrains  an- 

8  other  person : 

9  "(1)  under  circumstances  that  in  fact  expose  him  to  a  risk  of 

10  serious  bodily  injury ; 

11  "(2)  by  secreting  and  holding  him  in  a  place  where  he  is  not 

12  likely  to  be  found ; 

13  "(3)   by  endangering  or  threatening  to  endanger  the  safety 

14  of  any  person ;  or 

15  "(4)  by  holding  him  in  a  condition  of  involuntary  servitude, 

16  slavery,  or  peonage.  • 

17  "(b)  Grading.— An  offense  described  in  this  section  is  a  Class  D 

18  felony. 

19  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

20  described  in : 

21  "(1)  subsection  (a)(1),  (a)(2),  or  (a)(3),  if  a  circumstance 

22  specified  in  secton  1621  (c)  exists  or  has  occurred ; 

23  "(2)  subsection  (a)(4),  if  the  offense  is  committed  within  the 

24  general  jurisdiction  of  the  United  States  or  within  the  special 

25  jurisdiction  of  the  United  States. 

26  "§1623.  Criminal  Restraint 

27  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  restrains  an- 

28  other  person. 

29  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

30  misdemeanor. 

31  "(c)   Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

32  described  in  this  section  if  a  circumstance  specified  in  section  1621(c) 

33  (1),  (c)  (2), or  (c)  (3)  exists  or  has  occurred. 

34  "§1624.  General  Provisions  for  Subchapter  C 

35  "(a)  Definitions. — As  used  in  this  subchapter : 

36  "(1)   'consent'  does  not  include  assent  given  by  the  victim 

37  if  in  fact  he  is  less  than  fourteen  years  old  or  is  incompetent  and 

38  if  his  parent,  guardian,  or  other  person  responsible  for  his  wel- 

39  faro,  has  not  acquiesced  in  the  movement  or  confinement; 


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1  "(2)  'restrain'  means  to  restrict  the  movement  of  a  person  un- 

2  lawfully  and  without  consent,  so  as  to  interfere  with  his  liberty, 

3  by: 

4  "(A)  removing  him  from  his  place  of  residence  or  busi- 

5  ness ;  or 

6  "(B)  confining  him  in  any  place  or  moving  him  from  one 

7  place  to  another,  imless  such  confinement  or  movement  is 

8  trivial. 

9  "(b)    Affirmative  Defense. — It  is   an  affirmative  defense  to  a 

10  prosecution  imder  sections  1621  through  1623  that  the  actor  is  a 

11  parent  or  guardian  of  the  person  restrained  and  that  the  person  re- 

12  strained  is  less  than  eighteen  years  old. 

13  "Subchapter  D. — Hijacking  Offenses 

"Sec. 

"1631.  Aircraft  Hijacking. 

"1632.  Commandeering  a  Vessel. 

14  Ǥ  1631.  Aircraft  Hijacking 

15  "(a)   Offense.— A  person  is  guilty  of  an  offense  if  he  seizes  or 

16  exercises  control  over  an  aircraft  by  force,  threat,  intimidation,  or 

17  deception. 

18  "(b)  Grading.— An  offense  described  in  this  section  is  a  Class  B 

19  felony. 

20  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

21  described  in  this  section  if : 

22  "(1)  the  offense  is  committed  within  the  special  aircraft  juris- 

23  diction  of  the  United  States ;  or 

24  "(2)  the  offense  is  committed,  by  means  other  than  deception, 

25  outside  the  special  aircraft  jurisdiction  of  the  United  States,  and : 

26  "(A)  the  offense  is  committed  aboard  an  aircraft 'in  flight', 

27  as  defined  in  section  203  (c)  ; 

28  "(B)  the  place  of  take-off  or  the  place  of  landing  of  the 

29  aircraft  is  situated  outside  the  territory  of  the  nation  in  which 

30  the  aircraft  is  registered ;  and 

31  "(C)  the  actor  is  afterwards  found  in  the  United  States. 

32  "§1632.  Commandeering  a  Vessel 

33  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  seizes  or  exer- 

34  cises  control  over  a  vessel  by  force,  threat,  intimidation,  or  deception. 

35  "  (b)  Grading. — An  offense  described  in  this  section  is : 

36  "(1)  a  Class  D  felony  if  the  defendant  is  a  member  of  the  crew 

37  of  the  vessel  or  the  offense  is  committed  on  the  high  seas ; 


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1  "  (2)  a  Class  E  felony  in  any  other  case. 

2  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

3  described  in  this  section  if  the  offense  is  committed  within  the  special 

4  maritime  jurisdiction  of  the  United  States. 

5  "Subchapter  E. — Sex  Offenses 

"Sec. 

"1641.  Rape. 

"1642.  Sexual  Assault. 

"1643.  Sexual  Abuse  of  a  Minor. 

"1644.  Sexual  Abuse  of  a  Ward. 

"1645.  Unlawful  Sexual  Contact. 

"1646.  General  Provisions  for  Subchapter  E. 

6  "§  1641.  Rape 

7  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  engages  in  a 

8  sexual  act  with  another  person  who  is  not  his  spouse,  and : 

9  "(1)  compels  the  other  person  to  participate  in  such  act: 

10  "(A)  by  force;  or 

11  "(B)  by  threatening  or  placing  the  other  person  in  fear 

12  that  any  person  will  imminently  be  subjected  to  death,  seri- 

13  ous  bodily  injury,  or  kidnapping ; 

14  "(2)  has  substantially  impaired  the  ability  of  the  other  person 

15  to  appraise  or  control  conduct  by  administering  or  employing  a 

16  drug  or  intoxicant,  or  by  other  means,  without  the  knowledge  or 

17  against  the  will  of  such  other  person ;  or 

18  "  (3)  the  other  person  is,  in  fact,  less  than  twelve  years  old. 

19  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  C 

20  felony. 

21  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense  de- 

22  scribed  in  this  section  if : 

23  "(1)  the  offense  is  committed  within  the  special  jurisdiction  of 

24  the  United  States ;  or 

25  "  (2)  the  offense  occurs  during  the  commission  of  an  offense,  over 

26  which  federal  jurisdiction  exists,  that  is  described  in  section  1323 

27  (Tampering  with  a  Witness  or  an  Informant),  1324  (Retaliating 

28  against  a  Witness  or  an  Informant),  1357  (Tampering  with  a 

29  Public  Servant),  1358  (Retaliating  against  a  Public  Servant), 

30  1501   (Interfering  with  Civil  Rights),  1502   (Interfering  with 

31  Civil  Rights  under  Color  of  Law),  1601  (Murder),  1602  (Man- 

32  slaughter),  1611   (Maiming),  1612  (Aggravated  Battery),  1613 

33  (Battery),  1621  (Kidnapping),  1622  (Aggravated  Criminal  Re- 

34  straint),  1623  (Criminal  Restraint),  1631  (Aircraft  Hijacking), 

35  1644  (Sexual  Abuse  of  a  Ward) ,  1711  (Burglary) ,  1712  (Criminal 


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1  Entry) ,  1713  (Criminal  Trespass) ,  1721  (Robbery) ,  1722  (Extor- 

2  tion),  or  1843  (Conducting  a  Prostitution  Business). 

3  "§1642.  Sexual  Assault 

4  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  engages  in  a 

5  sexual  act  with  another  person  who  is  not  his  spouse,  and : 

6  "  (1)  knows  that  the  other  person  is  incapable  of  understanding 

7  the  nature  of  the  conduct ; 

8  "(2)  knows  that  the  other  person  is  physically  incapable  of 

9  resisting,  or  of  declining  consent  to,  the  sexual  act ; 

10  "(3)  knows  that  the  other  person  is  unaware  that  a  sexual  act 

11  is  being  committed ; 

12  "  (4)  knows  that  the  other  person  participates  because  of  a  mis- 

13  taken  belief  that  the  actor  is  married  to  the  other  person ;  or 

14  "(5)  compels  the  other  person  to  participate  by  any  threat  or 

15  by  placing  the  other  person  in  fear. 

16  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  D 

17  felony. 

18  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

19  described  in  this  section  if  the  offense  is  committed ; 

20  "(1)  within  the  special  jurisdiction  of  the  United  States; 

21  "(2)  in  the  circumstances  set  forth  in  subsection  (a)(1),  (a) 

22  (2),  or  (a)  (3),  and  occurs  during  the  commission  of  an  offense, 

23  over  which  federal  jurisdiction  exists,  that  is  described  in  section 

24  1621  (Kidnapping) ,  1622  (Aggravated  Criminal  Restraint) ,  1623 

25  (Criminal  Restraint),  1644   (Sexual  Abuse  of  a  Ward),  1711 

26  (Burglary),  1712  (Criminal  Entry),  1713  (Criminal  Trespass), 

27  or  1843  (Conducting  a  Prostitution  Business) ;  or 

28  "(3)  in  the  circumstances  set  forth  in  subsection  (a)  (5),  and  a 

29  circumstance  specified  in  section  1641  (c)  (2)  exists  or  has  occurred 

30  "§  1643.  Sexual  Abuse  of  a  Minor 

31  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  engages  in  a 

32  sexual  act  with  another  person  who  is  not  his  spouse,  who  in  fact  is 

33  less  than  sixteen  years  old,  and  who  in  fact  is  at  least  five  years 

34  younger  than  the  actor. 

35  "(b)  Affirmative  Defense. — It  is  an  affirmative  defense  to  a  prose- 

36  cution  under  this  section  that  the  actor  reasonably  believed  the  other 

37  person  to  be  sixteen  years  old  or  older. 

38  "(c)   Grading. — An  offense  described  in  this  section  is : 

39  "(1)  a  Class  E  felony  if  the  actor  is  twenty-one  years  old  or 

40  older; 

41  "(2)  a  Class  A  misdemeanor  in  any  other  case. 


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1  "(d)  Jurisdiction. — ^There  is  federal  jurisdiction  over  an  offense 

2  described  in  this  section  if : 

3  "(1)  the  offense  is  conunitted  within  the  special  jurisdiction 

4  of  the  United  States ;  or 

5  "(2)  the  offense  occurs  during  the  commission  of  an  offense 

6  over  which  federal  jurisdiction  exists,  that  is  described  in  section 

7  1621  (Kidnapping) ,  1622  (Aggravated  Criminal  Restraint) ,  1623 

8  (Criminal  Restraint),  1644   (Sexual  Abuse  of  a  Ward),  1711 

9  (Burglary),  1712  (Criminal  Entry),  1713  (Criminal  Trespass), 

10  or  1843  (Conducting  a  Prostitution  Business) . 

11  "§  1644.  Sexual  Abuse  of  a  Ward 

12  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  engages  in  a 

13  sexual  act  with  another  person  who  is  not  his  spouse,  who  is  in  official 

14  detention,  and  who  is  under  the  custodial,  supervisory,  or  disciplinary 

15  authority  of  the  actor. 

16  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

17  misdemeanor. 

18  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

19  described  in  this  section  if : 

20  "(1)  the  offense  is  committed  within  the  special  jurisdiction 

21  of  the  United  States; 

22  "(2)  the  official  detention  is  under  the  laws  of  the  United 

23  States; 

24  "(3)  the  official  detention  is  in  a  federal  facility;  or 

25  "  (4)  the  actor  is  a  federal  public  servant. 

26  Ǥ  1645.  Unlawful  Sexual  Contact 

27  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  engages  in 

28  sexual  contact  with  another  person  who  is  not  his  spouse,  or  causes 

29  such  other  person  to  engage  in  sexual  contact  with  him,  under  circum- 

30  stances  that  would  constitute  an  offense  under  section  1641, 1642, 1643, 

31  or  1644  if  such  contact  involved  a  sexual  act. 

32  "(b)  Grading. — An  offense  described  in  this  section  is  of  a  class 

33  two  grades  below  that  of  the  corresponding  offense  in  section  1641, 

34  1642,  1643,  or  1644. 

35  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

36  described  in  this  section  if  there  would  be  federal  jurisdiction  over 

37  the  oorrpsponding  offense  described  in  section  1641,  1642, 1643,  or  1644. 

38  "§  1646.  General  Provisions  for  Subchapter  E 

39  "  (a)  Definitions. — As  used  in  this  subchapter : 

40  "(1)  'sexual  act'  means  conduct  between  human  beings  consist- 

41  ing  of  contact  between  the  penis  and  the  vulva,  the  penis  and  the 


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1  anus,  the  mouth  and  the  penis,  or  the  mouth  and  the  vulva;  for 

2  purposes  of  this  paragraph,  contact  involving  the  penis  occurs 

3  upon  penetration,  however  slight ; 

4  "(2)  'sexual  contact'  means  a  touching  of  the  sexual  or  other 

5  intimate  parts  of  a  person  to  arouse  or  gratify  the  sexual  desire 

6  of  any  person ; 

7  "(3)  'spouse'  means  a  person  with  whom  the  actor  is  living  as 

8  husband  and  wife,  regardless  of  the  legal  status  of  their  relation- 

9  ship,  and  does  not  include  a  husband  or  wife  living  apart  under 

10  a  judicial  decree  of  separation. 

11  "(b)  Proof. — In  a  prosecution  under  section  1641  through  1645: 

12  "(1)  corroboration  of  the  victim's  testimony  is  not  required; 

13  and 

14  "  (2)   except  as  otherwise  required  by  the  Constitution,  evidence 

15  relating  to  the  victim's  prior  or  subsequent  sexual  behavior  is  not 

16  admissible. 

17  "Chapter  17.— OFFENSES  INVOLVING  PROPERTY 

"Subchapter 

"A.  Arson  and  Other  Property  Destruction  Offenses. 

"B.  Burglary  and  Other  Criminal  Intrusion  Offenses. 

"C.  Robbery,  Extortion,  and  Blackmail. 

"D.  Theft  and  Related  Offenses. 

"B.  Counterfeiting,  Forgery,  and  Related  Offenses. 

"F.  Commercial  Bribery  and  Related  Offenses. 

"G.  Investment,  Monetary,  and  Antitrust  Offenses. 

18  "Subchapter  A. — Arson  and  Other  Property  Destruction 

19  Offenses 

"Sec. 

"1701.  Arson. 

"1702.  Aggravated  Property  Destruction. 

"1703.  Property  Destruction. 

"1704.  General  Provisions  for  Subchapter  A. 

20  "§1701.  Arson 

21  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  by  fire  or  explo- 

22  sion,  he : 

23  "  ( 1 )  damages  a  public  facility ;  or 

24  "(2)  damages  substantially  a  building  or  a  public  structure. 

25  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  C 

26  felony. 

27  "(c)   Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

28  described  in  this  section  if : 

29  "(1)  the  offense  is  committed  within  the  special  jurisdiction  of 

30  •  the  United  States ; 

31  "  (2)  the  property  that  is  the  subject  of  the  offense  is  owned  by, 

32  or  is  under  the  care,  custody,  or  control  of,  the  United  States ;  is 

92-465  O  -  77  -  66 


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1  being  produced,  manufactured,  constructed,  or  stored  for  the 

2  United  States;  or  is  subject  to  a  security  interest  held  by  the 

3  United  States; 

4  "(3)  the  property  that  is  the  subject  of  the  offense  is  located 

5  within  the  United  States  and  is  owned  by,  or  is  under  the  care, 

6  custody,  or  control  of : 

7  "(A)  a  foreign  power; 

8  "(B)  a  foreign  dignitary,  or  a  member  of  his  immediate 

9  family,  who  is  in  the  United  States ; 

10  "(C)   a  foreign  official  who  is  in  the  United  States  on 

11  official  business,  or  a  member  of  his  immediate  family  who 

12  is  in  the  United  States  in  connection  with  the  visit  of  such 

13  official;  or 

14  "(D)  an  official  guest  of  the  United  States;  or 

15  "(E)   an  internationally  protected  person ; 

16  "(4)  the  property  that  is  the  subject  of  the  offense  is  moving  in 

17  interstate  or  foreign  commerce,  or  constitutes  or  is  a  part  of  an 

18  interstate  or  foreign  shipment ; 

19  "(5)  the  property  that  is  the  subject  of  the  off;nse  is  used  in 

20  an  activity  affecting  interstate  or  foreign  commerce,  and  is  dam- 

21  aged  by  a  destructive  device ; 

22  "  (6)  the  property  that  is  the  subject  of  the  offense  is  owned  by, 

23  or  is  under  the  care,  custody,  or  control  of,  an  organization  receiv- 

24  ing  financial  assistance  from  the  United  States,  and  is  damaged 

25  by  a  destructive  device ; 

26  "(7)  the  property  that  is  the  subject  of  the  offense  is  owned 

27  by,  or  is  under  the  care,  custody,  or  control  of,  a  public  facility 

28  that  operates  in  interstate  or  foreign  commerce; 

29  "(8)  the  United  States  mail  or  a  facility  of  interstate  or  for- 

30  eign  commerce  is  used  in  the  planning,  promotion,  management, 

31  execution,  consummation,  or  concealment  of  the  offense,  or  in  the 

32  distribution  of  the  proceeds  of  the  offense ; 

33  "(9)  movement  of  a  person  across  a  state  or  United  States 

34  boundary  occurs  in  the  planning,  promotion,  management,  execu- 

35  tion,  consummation,  or  concealment  of  the  offense,  or  in  the  dis- 

36  tribution  of  the  proceeds  of  the  offense ;  or 

37  "(10)  the  offense  occurs  during  the  commission  of  an  offense, 

38  over  which  federal  jurisdiction  exists,  that  is  described  in  section 

39  1302  (Obstructing  a  Government  Function  by  Physical  Interfer- 

40  ence),  1313  (Escape),  1323  (Tampering  with  a  Witness  or  an  In- 


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1  formant),  1324  (Retaliating  against  a  Witness  or  an  Informant), 

2  1357    (Tampering  with  a  Public  Servant),  1358    (Retaliating 

3  against  a  Public  Servant),  1501  (Interfering  with  Civil  Rights), 

4  1502  (Interfering  with  Civil  Rights  under  Color  of  Law),  1503 

5  (Interfering  with  a  Federal  Benefit),  1504  (Unlawful  Discrimi- 

6  nation),  1505  (Interfering  with  Speech  or  Assembly  Related  to 

7  Civil  Rights  Activities) ;   1722    (Extortion) ;  or  1804    (Loan- 

8  sharking) . 

9  "§1702.  Aggravated  Property  Destruction 

10  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if  he : 

11  "(1)   damages  a  public  facility; 

12  "(2)   damages  property  and  thereby  causes  a  significant  inter- 

13  ruption  or  impaimient  of  a  function  of  a  public  facility ;  or 

14  "(3)  damages  property  in  an  amount  that  in  fact  exceeds  $500. 

15  "(b)  Grading. — An  offense  described  in  this  section  is: 

16  "(1)  a  Class  D  felony: 

17  "(A)  in  the  circumstances  set  forth  in  subsection  (a)  (1) 

18  or  (a)  (2) ;  or 

19  "(B)  in  the  circumstances  set  forth  in  subsection  (a)  (3) 

20  if  the  damage  exceeds  $100,000; 

21  "  (2)  a  Class  E  felony  in  any  other  case. 

22  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

23  described  in  this  section  if : 

24  "(1)  a  circumstance  specified  in  section  1701(c)  exists  or  has 

25  occurred ;  or 

26  "  (2)  the  property  is  mail. 

27  "§  1703.  Property  Destruction 

28  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  damages 

29  property. 

30  "(b)  Grading. — An  offense  described  in  this  section  is: 

31  "  ( 1 )  a  Class  A  misdemeanor  if : 

32  "  (A)  the  damage  exceeds  $100 ;  or 

33  "(B)  the  property  is  mail  other  than  a  newspaper,  maga- 

34  zine,  advertising  matter,  or  circular ; 

35  "  (2)  a  Class  B  misdemeanor  in  any  other  case, 

36  "(c)  JtTRiSDiCTioN. — There  is  federal  jurisdiction  over  an  offense 

37  described  in  this  section  if : 

38  "(1)  a  circumstance  specified  in  section  1701(c)(1)  through 

39  (c)  (9)  exists  or  has  occurred;  or 

40  "  (2)  the  property  is  mail. 


9598 

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1  "§1704.  General  Provisions  for  Subchapter  A 

2  "(a)  Definition. — As  used  in  this  subchapter,  'public  structure' 

3  meai\p  a  structure,  whether  or  not  enclosed,  where  persons  assemble 

4  for  purposes  of  government,  an  occupation  or  a  business  or  a  pro- 

5  fession,  education,  religion,  or  entertainment. 

6  "(b)  Affirmative  Defense. — It  is  an  affirmative  defense  to  a  prose- 

7  cution  under  section  1701,  1702,  or  1703  that  the  actor  believed  that 

8  his  conduct  was  consented  to  by  all  holders  of  a  legal  interest  in  all 

9  property  damaged  and  that  he  was  not  reckless  in  so  believing. 

10  "(c)  Proof. — In  a  prosecution  under  section  1701,  1702,  or  1703, 

11  in  establishing  that  property  constitutes  or  is  part  of  an  interstate  or 

12  foreign  shipment  within  the  meaning  of  section  1701(c)(4),  proof 

13  of  the  designation  in  a  way  bill  or  other  shipping  document  of  the 

14  places  from  which  and  to  which  a  shipment  was  made  creates  a 

15  presumption  that  the  property  was  shipped  or  was  being  shipped  as 

16  indicated  by  such  document. 

li  "Subchapter  B. — Burglary  and  Other  Criminal  Intrusion 

18  Offenses 

"Sec. 

"1711.  Burglary. 

"1712.  Criminal  Entry. 

"1713.  Criminal  Trepass. 

"1714.  Stowing  Away. 

"1715.  Possessing  Burglar's  Tools. 

"1716.  Definitions  for  Subchapter  B. 

19  "§1711.  Burglary 

20  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  at  night,  with 

21  intent  to  engage  in  conduct  constituting  a  crime  other  than  a  crime 

22  set  forth  in  this  subchapter,  and  without  privilege,  he  enters  or  remains 

23  surreptitiously  within,  a  dwelling  that  is  the  property  of  another. 

24  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  C 

25  felony. 

26  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

27  described  in  this  section  if : 

28  "(1)  the  offense  is  committed  within  the  special  jurisdiction 

29  of  the  United  States; 

30  "(2)  the  dwelling  is  owned  by,  or  is  under  the  care,  custody, 

31  or  control  of,  the  United  States;  or 

32  "(3)  the  dwelling  is  located  within  the  United  States  and  is 

33  owned  by,  or  is  under  the  care,  custody,  or  control  of : 

34  "  (A)    a  foreign  power ; 

35  "(B)   a  foreign  dignitary  who  is  in  the  United  States;  or 
3g  "(C)  an  official  guest  of  the  United  States. 


J 


9599 

115 

1  "§1712.  Criminal  Entry 

2  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  with  intent  to 

3  engage  in  conduct  constituting  a  crime  other  than  a  crime  set  forth 

4  in  this  subchapter,  and  without  privilege,  he  enters  or  remains  sur- 

5  repetitiously  within,  a  building  or  vehicle  that  is  the  property  of 

6  another. 

7  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  D 

8  felony. 

9  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

10  described  in  this  section  if : 

11  "(1)  the  offense  is  committed  within  the  special  jurisdiction 

12  of  the  United  States ; 

13  "(2)  the  building  or  vehicle  is  owned  by,  or  is  under  the  care, 

14  custody,  or  control  of,  the  United  States ; 

15  "(3)  the  building  contains  a  United  States  post  office  or  postal 

16  facility,  and,  if  the  actor's  entering  or  remaining  was  in  a  part 

17  of  the  building  other  than  that  in  which  the  post  office  was  located, 

18  the  conduct  intended  would  have  affected  the  post  office  itself  or 

19  something  therein ; 

20  "(4)  the  building  contains  a  national  credit  institution,  and, 

21  if  the  actor's  entering  or  remaining  was  in  a  part  of  the  build- 

22  ing  other  than  that  in  which  the  credit  institution  was  located, 

23  the  conduct  intended  would  have  affected  the  credit  institution 

24  itself  or  something  therein; 

25  "(5)  the  vehicle  contains  mail,  or  property  that  is  moving  in 

26  interstate  or  foreign  commerce,  or  property  that  constitutes  or 

27  is  a  part  of  an  interstate  or  foreign  shipment;  or 

28  "(6)  the  building  or  vehicle  is  located  within  the  United  States 

29  and  is  owned  by,  or  is  under  the  care,  custody,  or  control  of : 

30  "(A)  a  foreign  power ; 

31  "(B)   a  foreign  dignitary  who  is  in  the  United  States;  or 

32  "(C)  an  official  guest  of  the  United  States. 

33  "§1713.  Criminal  Trespass 

34  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  knowing  that 

35  he  is  not  privileged  to  do  so,  he  enters,  or  remains  within  or  on, 

36  premises  that  are  the  property  of  another. 

37  "  (b)  Affirmative  Defense. — It  is  an  affirmative  defense  to  a  prose- 

38  cution  under  this  section  that  the  actor's  conduct  was  consented  to  by 

39  a  holder  of  a  possessory  interest  in  the  premises. 


9600 

116 

1  "  (c)  Grading. — An  offense  described  in  this  section  is : 

2  "(1)  8^  Class  A  misdemeanor  if  the  premises  are  highly  secured 

3  government  premises,  or  consist  of  a  dwelling ; 

4  "(2)  a  Class  B  misdemeanor  if  the  premises  are  so  enclosed  or 

5  secured  as  manifestly  to  exclude  intruders,  or  consist  of  a  building 

6  other  than  a  dwelling ; 

7  "  (3)  a  Class  C  misdemeanor  if  the  premises  consist  of  a  place  as 

8  to  which  notice  prohibiting  trespass  is : 

9  "(-A-)  communicated  to  the  actor  by  a  person  in  charge  of 

10  the  premises  or  by  another  authorized  person ;  or 

11  "(B)  posted  in  a  manner  reasonably  likely  to  come  to  the 

12  attention  of  intruders; 

13  "  (4)  an  infraction  in  any  other  case. 

14  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

15  described  in  this  section  if : 

16  "(1)  the  offense  is  committed  within  the  special  jurisdiction  of 

17  the  United  States ; 

18  "  (2)  the  premises  are  owned  by,  or  are  under  the  care,  custody, 

19  or  control  of,  the  United  States ; 

20  "(3)  the  premises  are  located  within  the  United  States  and  are 

21  owned  by,  or  are  under  the  care,  custody,  or  control  of : 

22  "(A)  a  foreign  power; 

23  "  (B )  a  foreign  dignitary  who  is  in  the  United  States ;  or 

24  "(C)  an  official  guest  of  the  United  States ; 

25  "(4)  the  premises  consist  of  a  vehicle  that  contains  mail,  or 

26  property  that  is  moving  in  interstate  or  foreign  commerce,  or 

27  property  that  constitutes  or  is  a  part  of  an  interstate  or  foreign 

28  shipment;  or 

29  "(5)  the  premises  consist  of  public  domain  land.  National  Park 

30  System  land,  or  National  Wildlife  Refuge  System  land,  that  has 

31  been  closed  to  the  public  pursuant  to  a  regulation  issued  by  the 

32  Secretary  of  the  Interior,  or  consist  of  national  forest  land  that 

33  has  been  closed  to  the  public  pursuant  to  a  regulation  issued  by 

34  the  Secretary  of  Agriculture. 

35  "§  1714.  Stowing  Away 

36  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  with  intent  to 

37  obtain  transportation,  he  secretes  himself  aboard  a  vessel  or  aircraft 

38  that  is  the  property  of  another  and  he  is  aboard  the  vessel  or  aircraft 

39  when  it  leaves  the  point  of  embarkation. 


9601 

iir 

1  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

2  misdemeanor. 

3  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

4  described  in  this  section  if : 

5  "(1)  the  offense  is  committed  within  the  special  jurisdiction  of 

6  the  United  States ;  or 

7  "(2)  movement  of  the  actor  across  a  state  or  United  States 

8  boundary  occurs  in  the  commission  of  the  offense. 

9  "§1715.  Possessing  Burglar's  Tools 

10  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  with  intent  that 

11  it  be  used  in  the  course  of  conduct  constituting  an  offense  under  section 

12  1711, 1712, 1713,  or  1714,  he  possesses  an  object  that  is  designed  for,  or 

13  commonly  used  for,  the  facilitation  of  a  forcible  entry  in  the  course  of 

14  such  an  offense. 

15  "(b)  Grading. — ^An  offense  described  in  this  section  is  a  Class  A 

16  misdemeanor. 

17  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

18  described  in  this  section  if  the  offense  is  committed  within  the  special 

19  jurisdiction  of  the  United  States. 

20  "§1716.  Definitions  for  Subchapter  B 

21  "As  used  in  this  subchapter : 

22  "(a)    'highly  secured'  premises  means  continuously  guarded 

23  premises  where  display  of  visible  identification  is  required  of  per- 

24  sons  while  they  are  on  the  premises ; 

25  "(b)   'night'  means  the  period  between  thirty  minutes  after 

26  sunset  and  thirty  minutes  before  sunrise ; 

27  "(c)  'premises'  includes  a  building,  a  structure,  other  real  prop- 

28  erty,  and  a  vehicle. 

29  "Subchapter  C— Robbery,  Extortion,  and  Blackmail 

"Sec. 

"1T21.  Robbery. 

"1722.  Extortion. 

"1723.  Blackmail. 

"1724.  General  Provisions  for  Subchapter  C. 

30  "§  1721.  Robbery 

31  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if  he  takes  property 

32  of  another  from  the  person  or  presence  of  another  by  force  and  vio- 

33  lence,  or  by  threatening  or  placing  another  person  in  fear  that  any 

34  person  will  imminently  be  subjected  to  bodily  injury. 

35  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  C 

36  felony. 


9602 

118 

1  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense  de- 

2  scribed  in  this  section  if : 

3  "(1)  the  offense  is  committed  within  the  special  jurisdiction 

4  of  the  United  States ; 

5  "(2)  the  property  is  owned  by,  or  is  under  the  care,  custody,  or 

6  control  of,  the  United  States;  is  being  produced,  manufactured, 

7  constructed,  or  stored  for  the  United  States;  or  is  subject  to  a 

8  security  interest  held  by  the  United  States ; 

9  "(li)  the  property  is  owned  by,  or  is  under  the  care,  custody, 

10  or  control  of,  a  national  credit  institution ; 

11  "  ( 4 )  the  property  is  mail ; 

12  "(5)  the  offense  in  any  way  or  degree  affects,  delays,  or  ob- 

13  structs  interstate  or  foreign  commerce  or  the  movement  of  an 

14  article  or  commodity  in  interstate  or  foreign  commerce; 

15  "(6)  the  property  is  moving  in  interstate  or  foreign  commerce, 

16  constitutes  or  is  a  part  of  an  interstate  or  foreign  shipment,  or  is 

17  in  a  pipeline  system  that  extends  across  a  state  or  United  States 

18  boundary  or  in  a  storage  facility  of  such  a  system ; 

19  "(7)  movement  of  a  person  across  a  state  or  United  States 

20  boundary  occurs  in  the  planning,  promotion,  management,  execu- 

21  tion,  consummation,  or  concealment  of  the  offense,  or  in  the  dis- 

22  tribution  of  the  proceeds  of  the  offense ;  or 

23  "  ( 8 )  the  offense  is  committed  against : 

24  "(A-)  a  foreign  dignitary,  or  a  member  of  his  immediate 

25  family,  who  is  in  the  United  States ; 

26  "  ( B )  a  foreign  official  who  is  in  the  United  States  on  offi- 

27  cial  business,  or  a  member  of  his  immediate  family  who  is  in 

28  the  United  States  in  connection  with  the  visit  of  sucli  official ; 

29  or 

30  "  (C)  an  official  guest  of  the  United  States. 

31  "§  1722.  Extortion 

32  "(*i)  Offense. — A  person  is  guilty  of  an  offense  if  he  obtains  prop- 

33  erty  of  another : 

34  "  (1)  by  threatening  or  placing  another  person  in  fear  that  any 

35  pei-son  will  be  subjected  to  bodily  injury  or  kidnapping  or  that 

36  any  property  will  be  damaged ;  or 

37  "  (2)  under  color  of  official  right. 

3g  "(b)  Affirmati\'e  Defense. — It  is  an  affirmative  defense  to  a  pros- 

39  ecution  under  subsection   (a)(1)  that  the  threatened  or  feared  in- 


9603 

119 

1  jury  or  damage  was  minor  and  was  incidental  to  peaceful  picketing  or 

2  other  concerted  activity  in  the  course  of  a  bona  fide  labor  dispute. 

3  "(c)  Grading. — An  offense  described  in  this  section  is : 

4  "  ( 1 )  a  Class  C  felony  in  the  circumstances  set  forth  in  subsection 

5  (a) (1) ; 

6  "  (2)  a  Class  E  felony  in  the  circumstances  set  forth  in  subsection 

7  (a)(2). 

8  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

9  described  in  this  section  if : 

10  "(1)  a  circimistance  specified  in  section  1721(c)  exists  or  has 

11  occurred ; 

12  "(2)  the  United  States  mail  or  a  facility  of  interstate  or  for- 

13  eign  commerce  is  used  in  the  planning,  promotion,  management, 

14  execution,  consummation,  or  concealment  of  the  offense,  or  in  the 

15  distribution  of  the  proceeds  of  the  offense ; 

16  "  (3)  the  offense  is  committed  by  a  federal  public  servant  acting 

17  under  color  of  office ; 

18  "(4)  the  offense  is  committed  by  a  person  pretending  to  be  a 

19  federal  public  servant,  a  former  federal  public  servant,  or  a  for- 

20  eign  official ; 

21  "(5)  the  offense  is  committed  to  collect  an  extension  of  credit, 

22  as  defined  in  section  1806  (c) ; 

23  "(6)  the  property  consists  of  any  part  of  the  compensation  of 

24  a  person  employed  in  the  construction,  completion,  repair,  or  re- 

25  furbishing  of  a  federal  public  building,  federal  public  work,  or 

26  building  financed  in  whole  or  in  part  by  a  loan  or  grant  from  the 

27  United  States,  and  is  obtained  by  threatening  or  placing  any 

28  person  in  fear  in  relation  to  that  person's  employment ;  or 

29  "(7)  the  property  is  obtained  by  threatening  or  placing  a  per- 

30  son  in  fear  in  relation  to  any  person's  employment  under  a  grant 

31  or  contract  of  assistance  pursuant  to  the  Economic  Opportunity 

32  Act  of  1964,  as  amended  (42  U.S.C.  2701  et  seq.) . 

33  "§  1723.  Blackmail 

34  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  obtains  prop- 

35  erty  of  another  by  threatening  or  placing  another  person  in  fear  that 

36  any  person  will : 

37  "(1)  engage  in  conduct  constituting  a  crime  other  than  a  crime 

38  described  in  section  1722 ; 

39  "  ( 2 )  accuse  any  person  of  a  crime ; 


9604 

120 

1  "(3)  procure  the  dismissal  of  any  person  from  employment, 

2  or  refuse  to  employ  or  renew  a  contract  of  employment  of  any 

3  person ; 

4  "(4)  improperly  subject  any  person  to  economic  loss  or  injury 
6  to  his  business  or  profession; 

6  "(5)   expose  a  secret  or  publicize  an  asserted  fact,  whether 

7  true  or  false,  with  intent  to  subject  any  person,  living  or  dead, 

8  to  hatred,  contempt,  or  ridicule,  or  to  impair  his  personal,  finan- 

9  cial,  professional,  or  business  reputation ;  or 

10  "(6)  take  or  withhold  official  action  as  a  public  servant,  or 

11  cause  a  public  servant  to  take  or  withhold  official  action. 

12  "(b)  Defense. — It  is  a  defense  to  a  prosecution  under  this  section, 

13  other  than  a  prosecution  under  subsection  (a)  (1) ,  that  the  defendant : 

14  "(1)  reasonably  believed  his  conduct  to  be  justified;  and 

15  "(2)  intended  solely  to  compel  or  induce  the  other  person  to 

16  take  lawful  and  reasonable  action  to  prevent  or  remedy  the  as- 

17  serted  wrong  that  prompted  the  defendant's  conduct ;  and 

18  "  (3)  with  respect  to  an  offense  under  subsection  (a)  (2) ,  reason- 

19  ably  believed  that  the  threatened  accusation  was  true. 

20  "  (c)  Grading. — An  offense  described  in  this  section  is : 

21  "(1)  a  Class  C  felony  if  the  property  has  a  value  in  excess  of 

22  $100,000; 

23  "(2)  a  Class  D  felony  if: 

24  « (A)  the  property  has  a  value  in  excess  of  $500  but  not  more 

25  than  $100,000;  or 

26  "(B)  regardless  of  its  monetary  value,  the  property  consists 

27  .  of: 

28  "(i)  a  firearm,  ammunition,  or  a  destructive  device; 

29  «(ii)  a  vehicle; 

30  "(iii)  a  record  or  other  document  owned  by,  or  under 

31  the  care,  custody,  or  control  of,  the  United  States ; 

32  "(iv)    a  counterfeiting  implement  designed  for  the 

33  making  of  a  written  instrument  of  the  United  States ; 

34  "(v)  a  key  or  other  implement  designed  to  provide  ac- 

35  cess  to  mail  or  to  property  owned  by,  or  under  the  care, 

36  custody,  or  control  of,  the  United  States ;  or 

37  "(vi)  mail  other  than  a  newspaper,  magazine,  circular, 

38  or  advertising  matter; 

39  "(3)  a  Class  A  misdemeanor  if  the  property  has  a  value  in 

40  excess  of  $100  but  not  more  than  $500 ; 


9605 

121 

1  "  (4)  a  Class  B  misdemeanor  in  any  other  case. 

2  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

3  described  in  this  section  if : 

4  "(1)  a  circumstance  specified  in  section  1721(c)  or  section  1722 

5  (c)(2)  through  (c)(7)  exists  or  has  occurred; 

6  "(2)  the  fear  in  subsection  (a)(1)  or  (a)(2)  involves  a  federal 
Y             crime;  or 

8  "(3)   the  fear  in  subsection   (a)(6)   involves  federal  official 

9  action. 

10  "§  1724.  General  Provisions  for  Subchapter  C 

11  "(a)  Definitions. — As  used  in  this  subchapter : 

12  "(1)   'counterfeiting  implement'  has  the  meaning  set  forth  in 

13  section  1746(b); 

14  "(2)  'written  instrument"  has  the  meaning  set  forth  in  section 

15  1746 (i). 

16  "(b)  Proof. — In  a  prosecution  under  section  1722  or  1723(a)(1), 

17  (a)  (3),  or  (a)  (4),  for  the  purpose  of  showing  that  words  or  other 

18  methods  of  communication  employed  as  a  means  of  obtaining  the  prop- 

19  erty  in  fact  carried  a  threat,  the  court  may  permit  the  introduction  of 

20  evidence  concerning  the  reputation  of  che  defendant  in  any  community 

21  of  which  the  victim  was  a  member  at  the  time  of  the  offense  charged. 

22  "(c)  Defense  Precluded. — It  is  not  a  defense  to  a  prosecution  under 

23  section  1722  or  1723  that  the  defendant,  by  the  same  conduct,  also 

24  committed  an  offense  described  in  section  1321   (Witness  Bribery), 

25  1322  (Corrupting  a  Witness  or  an  Informant),  1351  (Bribery),  1352 

26  (Graft),  1353  (Trading  in  Government  Assistance),  1354  (Trading 

27  in  Special   Influence),   1355    (Trading  in  Public  Office),  or   1731 

28  (Theft). 

29  "Subchapter  D.— Theft  and  Related  Offenses 

"Sec. 

"1731.  Theft. 

"1732.  Trafficking  in  Stolen  Property. 

"1733.  Receiving  Stolen  Property. 

"1734.  Executing  a  Fraudulent  Scheme. 

"1735.  Bankruptcy  Fraud. 

"1736.  Interfering  with  a  Security  Interest. 

"1737.  Fraud  in  a  Regulated  Industry. 

"1738.  General  Provisions  for  Subchapter  D. 

30  "§  1731.  Theft 

31  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if  he  obtains  or  uses 

32  the  property  of  another  with  intent : 

33  "  (1)  to  deprive  the  other  of  a  right  to  the  property  or  a  benefit 

34  of  the  property ;  or 


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122 

1  "  (2)  to  appropriate  the  property  to  his  own  use  or  to  the  use  of 

2  another  person. 

3  "  (b)  Grading. — An  offense  described  in  this  section  is : 

4  "(1)  a  Class  C  felony  if  the  property  has  a  value  in  excess  of 

5  $100,000; 

6  "(2)  a  Class  D  felony  if: 

7  "(A)  the  property  has  a  value  in  excess  of  $500  but  not 

8  more  than  $100,000 ;  or 

9  "(B)  regardless  of  its  monetary  value,  the  property  con- 

10  sists  of : 

11  "  (i)  *  firearm,  ammunition,  or  a  destructive  device ; 

12  "(ii)  a  vehicle,  except  as  provided  in  paragraph  (4) ; 

13  "(iii)  a  record  or  other  document  owned  by,  or  under 

14  the  care,  custody,  or  control  of,  the  United  States ; 

15  "(iv)  a  counterfeiting  or  forging  implement  designed 

16  for  the  making  of  a  written  instrument  of  the  United 

17  States; 

18  "(v)  a  key  or  other  implement  designed  to  provide 

19  access  to  mail  or  to  property  owned  by,  or  under  the  care, 

20  custody,  or  control  of,  the  United  States ;  or 

21  "(vi)  mail  other  than  a  newspaper,  magazine,  circular, 

22  or  advertising  matter ; 

23  "(3)  a  Class  A  misdemeanor  if  the  property  has  a  value  in 

24  excess  of  $100  but  not  more  than  $500 ; 

25  '<  (4)  a  Class  B  misdemeanor  if : 

26  "(A)  the  property  has  a  value  of  $100  or  less;  or 

27  "(B)  the  property  is  a  motor  vehicle  or  a  vessel,  the  de- 

28  fendant  is  less  than  eighteen  years  old,  and  the  defendant's 

29  intent  involved  deprivation  or  appropriation  of  a  temporary 

30  rather  than  a  permanent  nature. 

31  "(c)  JtJRiSDicnox. — There  is  federal  jurisdiction  over  an  offense 

32  described  in  this  section  if : 

33  "(1)  the  offense  is  committed  within  the  special  jurisdiction  of 

34  the  United  States; 

35  "(2)  the  property  is  owned  by,  or  is  under  th^i  care,  custody, 

36  or  control  of,  the  United  States ;  is  being  produce  ! ,  manufactured, 

37  constructed,  or  stored  for  the  United  States;  or  is  subject  to  a 

38  security  interest  held  by  the  United  States ; 

39  "(3)  the  offense  is  committed  by  a  federal  puMic  servant  acting 

40  under  color  of  office ; 


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1  "(4)  the  ofifense  is  committed  by  a  person  pretending  to  be  a 

2  federal  public  servant,  a  former  federal  public  servant,  or  a  for- 

3  eign  official ; 

4  "(5)  the  property  is  obtained  upon  a  representation  that  it  will 

5  be  used  to  cause  a  federal  public  servant  to  take  or  withhold  of- 

6  ficial  action  ; 

7  "(6)  the  property  has  a  value  of  $2,500  or  more  and  is  obtained 

8  through  the  use  of  one  or  more  counterfeited,  fictitious,  altered, 

9  forged,  lost,  or  stolen  credit  cards  in  a  transaction  or  series  of 

10  transactions  affecting  interstate  or  foreign  commerce ; 

11  "(7)  the  property  is  mail ; 

12  "(8)  the  property  is  moving  in  interstate  or  foreign  commerce, 

13  constitutes  or  is  a  part  of  an  interstate  or  foreign  shipment,  or  is 

14  in  a  pipeline  system  that  extends  across  a  state  or  United  States 

15  boundary  or  in  a  storage  facility  of  such  a  system ; 

16  "(9)  the  property  has  a  value  of  $5,000  or  more,  or  is  a  vehicle, 

17  and  is  moved  across  a  state  or  United  States  boundary  in  the  com- 

18  mission  of  the  offense ; 

19  "(10)  the  property  is  owned  by,  or  is  under  the  care,  custody, 

20  or  control  of,  a  national  credit  institution ; 

21  "(11)  the  offense  is  committed  by  a  misrepresentation  of  United 

22  States  ownership,  guarantee,  insurance,  or  other  interest  of  the 

23  United  States  with  respect  to  the  property  involved ; 

24  "(12)  the  offense  is  committed  by  impersonation  of  a  creditor 

25  of  the  United  States ; 

26  "(13)  the  property:  (A)  is  owned  by,  or  is  under  the  care, 

27  custody,  or  control  of,  an  Indian  tribe,  band,  community,  group, 

28  or  pueblo  tliat  is  subject  to  a  federal  statute  relating  to  Indian 

29  affairs,  or  a  corporation,  association,  or  group  organized  under 

30  any  such  statute;  or  (B)  is  the  subject  of  a  grant,  subgrant,  con- 

31  tract,  or  subcontract  pursuant  to  the  Indian  Self-Determination 

32  and  Education  Assistance  Act  (88  Stat.  2203)   or  the  Act  of 

33  April  16, 1934,  as  amended  (25  U.S.C.  452  et  seq.) ,  and  the  offense 

34  is  committed  by  an  agent  of  a  recipient  of  such  a  grant,  subgrant, 

35  contract,  or  subcontract ; 

36  "(14)  the  property  is  owned  by,  or  is  under  the  care,  custody, 

37  or  control  of,  an  employee  benefit  plan  subject  to  a  provision  of 

38  title  I  of  the  Employee  Retirement  Income  Security  Act  of  1974 

39  (29  U.S.C.  1001  et  seq.); 


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1  "  ( 15)  the  property  is  owned  by,  or  is  under  the  care,  custody,  or 

2  control  of,  a  trust  fund  establislied  by  an  employer  or  by  an  em- 

3  ployee  organization  as  defined  in  section  3(4)  of  the  Employee 

4  Retirement  Income  Security  Act  of  1974  (29  U.S.C.  1002(4)) 

5  to  provide  a  benefit  to  the  members  of  an  employee  organization 

6  or  to  their  families ; 

7  "  ( 16)  the  property  is  owned  by,  or  is  under  the  care,  custody,  or 

8  control  of,  a  labor  organization  as  defined  in  section  3(i)  and  (j) 

9  of  the  Labor-Management  Reporting  and  Disclosure  Act  of  1959 

10  (29  U.S.C.  402 (i)  and  (j)),  and  the  offense  is  committed  by  an 

11  officer,  member,  or  employee  of,  or  a  person  connected  in  any 

12  capacity  with,  such  organization ; 

13  "(17)   the  offense  is  committed  in  connection  with  a  loan, 

14  advance  of  credit,  or  mortgage  insured  by  the  United  States 

15  Department  of  Housing  and  Urban  Development ; 

16  "(18)  the  offense  is  committed  by  an  agent  or  receiver  of,  or  a 

17  person  connected  in  any  capacity  with,  a  small  business  investment 

18  company,  as  defined  in  section  103  of  the  Small  Business  Invest- 

19  ment  Act  of  1958,  as  amended  (15  U.S.C.  662),  and  the  property 

20  is  owned  by,  or  is  under  the  care,  custody,  or  control  of,  such 

21  small  business  investment  company; 

22  "(19)  the  property  is  owned  by,  or  is  under  the  care,  custody,  or 

23  control  of,  a  registered  investment  company,  as  defined  in  section 

24  3(a)  of  the  Investment  Company  Act  of  1940,  as  amended  (15 

25  U.S.C.80a-3(a)); 

26  "(20)  the  offense  is  committed  by  a  futures  commission  mer- 

27  chant  as  defined  in  section  2(a)  of  the  Commodity  Exchange  Act, 

28  as  amended  (7  U.S.C.  2),  or  by  an  agent  thereof,  and  (A)  the 

29  property  is  that  of  a  customer  and  is  received  by  such  futures 

30  commission  merchant  to  margin,  guarantee,  or  secure  trades  or 

31  contracts  of  any  customer;  or  (B)  the  property  has  accrued  to  a 

32  customer  as  the  result  of  trades  or  contracts ; 

33  "  (21)  the  property  is  owned  by,  or  is  under  the  care,  custody,  or 

34  control  of,  an  organization  engaged  in  interstate  commerce  as  a 

35  common  carrier,  and  the  offense  is  committed  (A)  by  a  president, 

36  director,  officer,  or  manager  of  such  common  carrier;  or  (B)  by 

37  an  agent  of  such  common  carrier  riding  in  a  vehicle  of  such 

38  common  carrier  that  is  moving  in  interstate  commerce ; 

39  "(22)  the  offense  is  committed  by  an  agent  of,  or  a  person  con- 

40  nected  in  any  capacity  with,  an  agency  receiving  financial  assist- 


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1  ance  under  the  Economic  Opportunity  Act  of  1964,  as  amended 

2  (42  U.S.C.  2701  et  seq.) ,  and  the  property  is  the  subject  of  a  grant 

3  or  contract  of  assistance  pursuant  to  such  Act ; 

4  "(23)  the  property  consists  of  any  part  of  the  compensation  of 

5  a  person  employed  in  the  construction,  completion,  repair,  or  re- 

6  furbishing  of  a  federal  public  building,  federal  public  work,  or 

7  building  financed  in  whole  or  in  part  by  a  loan  or  grant  from  the 

8  United  States,  and  is  obtained  or  retained  by  fraud  in  relation  to 

9  that  person's  employment ; 

10  "(24)  the  offense  is  committed  by  a  trustee,  receiver,  custodian, 

11  marshal,  or  other  court  officer  and  the  property  consists  of  a  part 

12  of  the  estate  of  a  bankrupt  against  whom  a  petition  has  been  filed 

13  under  the  Bankruptcy  Act  of  1898,  as  amended  (11  U.S.C.  1  et 

14  seq.) ; 

15  "(25)  the  property  consists  of  a  part  of  a  grant,  contract,  or 

16  other  form  of  assistance  received,  directly  or  indirectly,  from  the 

17  Law  Enforcement  Assistance  Administration,  pursuant  to  title  I 

18  of  the  Omnibus  Crime  Control  and  Safe  Streets  Act  of  1968,  as 

19  amended  (42  U.S.C.  3701  et  seq.) ; 

20  "(26)  the  property  (A)  consists  of  a  coupon,  or  of  an  authoriza- 

21  tion  to  purchase  card,  defined  in  section  3(c)  and  (m)  of  the  Food 

22  Stamp  Act  of  1964,  as  amended  (7  U.S.C.  2012(c)  and  (m) ) ;  or 

23  (B)  is  obtained  by  the  use  of  such  a  coupon  that  has  been  obtained 

24  in  violation  of  this  section,  that  has  been  counterfeited  in  viola- 

25  tion  of  section  1741,  or  that  has  been  forged  in  violation  of  section 

26  1742; 

27  "(27)  the  property  consists  of  agricultural  products  stored  or 

28  to  be  stored  in  a  licensed  warehouse  pursuant  to  the  United  States 

29  Warehouse  Act  (7  U.S.C.  241  et  seq.),  and  licensed  receipts  have 

30  been  or  are  to  be  issued  for  such  products ; 

31  "(28)  the  property  consists  of  money  paid  under  a  law  admin- 

32  istered  by  the  Veterans'  Administration  for  the  benefit  of  a  minor, 

33  an  incompetent,  or  another  beneficiary,  and  the  offense  is  com- 

34  mitted  by  a  fiduciary  of  such  beneficiary ; 

35  "(29)  the  property  consists  of  money,  a  security,  or  another 

36  asset  of  the  Securities  Investor  Protection  Corporation ; 

37  "  (30)  the  property  consists  of  a  note,  stock  certificate,  treasury 

38  stock  certificate,  bond,  debenture,  or  interest  coupon,  or  a  blank 

39  certificate  of  any  of  the  foregoing,  and  is  under  the  care,  custody, 


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1  or  control  of  a  member  of,  or  an  organization  insured  by,  the 

2  Securities  Investor  Protection  Corporation ;  or 

3  "(31)  the  property  is    a  payment  made  pursuant  to  section 

4  801  of  the  Presidential  Election  Campaign  Fund  Act,  as  amended 

5  (26  U.S.C.  9001  et  seq.)  or  pursuant  to  section  9037  of  the  Presi- 

6  dential  Primary  Matching  Payment  Accoimt  Act   (26  U.S.C. 

7  9037) ,  and  the  offense  is  committed  by  a  person  to  whom  such  pay- 

8  ment  is  made  or  to  whom  a  portion  of  such  payment  is  transferred. 

9  "  (32)  the  property  is  provided  or  insured  under  part  B  of  title 

10  IV  of  the  Higher  Education  Act  of  1965,  as  amended  (20  U.S.C. 

11  1071  et  seq.) 

12  Ǥ  1732,  Trafficking  in  Stolen  Property 

13  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  traffics  in 

14  property  of  another  that  has  been  stolen. 

15  "(b)  Grading. — An  offense  des'-ribed  in  this  section  is  an  offense  of 

16  the  same  class  as  that  specified  in  section  1731(b)  for  the  theft  of  the 

17  same  kind  of  property. 

18  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

19  described  in  this  section  if  a  circumstance  specified  in  section  1731(c) 

20  exists  or  has  occurred. 

21  Ǥ  1733.  Receiving  Stolen  Property 

22  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if  he  buys,  receives, 

23  possesses,  or  obtains  control  of  property  of  another  that  has  been 

24  stolen. 

25  "(b)  Affirmative  Defense. — It  is  an  affirmative  defense  to  a  prose- 

26  cution  under  this  section  that  the  defendant  bought,  received,  pos- 

27  sessed,  or  obtained  control  of  the  property  with  intent  to  report  the 

28  matter  to  an  appropriate  law  enforcement  officer  or  to  the  owner  of 

29  the  property. 

30  "(c)  Grading. — An  offense  described  in  this  section  is  an  offense  of 

31  the  class  next  below  that  specified  in  section  1731(b)  for  the  theft  of 

32  the  same  kind  of  property. 

33  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

34  described  in  this  section  if  a  circumstance  specified  in  section  1731(c) 

35  exists  or  has  occurred. 

36  "§  1734.  Executing  a  Fraudulent  Scheme 

37  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if : 

38  "  ( 1 )  having  devised  a  scheme  or  artifice : 

39  "(A)  to  defraud;  or 

40  "(B)  to  obtain  property  of  another  by  means  of  a  false  or 

41  fraudulent  pretense,  representation,  or  promise; 


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1  he  engages  in  conduct  with  intent  to  execute  such  scheme  or 

2  artifice ;  or 

3  "  (2)  he  transfers,  or  receives  anything  of  value  for,  a  right  to 

4  participate  in  a  pyramid  sales  scheme,  or  receives  compensation 

5  from  a  pyramid  sales  scheme. 

6  "(b)  Definitions. — As  used  in  this  section : 

7  "  (1)  'anything  of  value'  does  not  include : 

8  "(-A-)  payment  made  for  sales  demonstration  equipment; 

9  "(B)  material  furnished  on  a  non-profit  basis  for  use  in 

10  making  sales  and  not  for  resale ; 

11  "(C)  time  or  effort  spent  in  pursuit  of  sales  or  recruiting 

12  activities;  or 

13  "(D)  payment  having  an  aggregate  value  of  $100  or  less 

14  when  calculated  on  an  annual  basis ; 

15  "(2)  'compensation'  includes  payment  based  on  a  sale  or  dis- 

16  tribution  made  to  a  person  who  is  a  participant  in  a  pyramid 

17  sales  scheme  or  who,  upon  such  payment,  obtains  the  right  to 

18  become  a  participant,  but  does  not  include  payment  based  on  a 

19  retail  sale  to  an  ultimate  consumer ; 

20  "(3)  'conduct'  includes  a  failure  to  state  a  fact  necessary  to 

21  avoid  making  a  statement  misleading ; 

22  "  (4)  'pyramid  sales  scheme'  means  a  plan  or  operation,  whether 

23  or  not  involving  the  sale  or  distribution  of  property,  that  includes 

24  a  means  of  increasing  participation  in  the  plan  or  operation  under 
26  which  a  participant,  upon  payment  of  anything  of  value,  obtains 

26  a  right  to  receive  compensation : 

27  "(A)    for  his  introduction  of  another  person  into  par- 

28  ticipation  in  such  plan  or  operation ;  or 

29  "(B)  for  such  other  person's  introduction  of  another  per- 

30  son  into  participation  in  such  plan  or  operation ; 

31  "(5)  'sale  or  distribution'  includes  a  lease,  rental,  or  consign- 

32  ment. 

33  "(c)  Defense  Precluded. — It  is  not  a  defense  to  a  prosecution  under 

34  subsection  (a)(2)  that: 

35  "(1)  the  plan  or  operation  limits  the  number  of  persons  who 

36  may  participate,  or  imposes  conditions  with  respect  to  the  eligibil- 

o 

37  ity  of  participants ;  or 

38  "(2)  upon  payment  of  anything  of  value  a  participant  obtains, 

39  in  addition  to  the  right  to  receive  compensation  as  described  in 

40  subsection  (b)  (2) ,  any  other  property. 


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1  "(d)  Grading. — An  offense  described  in  this  section  is : 

2  "(1)  a  Class  D  felony  in  the  circumstances  set  forth  in  sub- 

3  section  (a)  (1) ; 

4  "(2)  a  Class  E  felony  in  the  circumstances  set  forth  in  sub- 

5  section  (a)  (2). 

6  "  (e)  JuKiSDiCTioN. — There  is  federal  jurisdiction  over  an  offense  de- 

7  scribed  in  this  section  if,  in  the  commission  of  the  offense,  the  actor : 

8  "  ( 1 )  uses  or  causes  the  use  of  the  United  States  mail ; 

9  "(2)  uses  or  causes  the  use  of  any  interstate  or  foreign  cora- 

10  munication  facility,  including  a  facility  of  wire,  radio,  or  tele- 

11  vision  communication ;  or 

12  "(3)  travels  in,  or  causes  or  induces  any  other  person  to  travel 

13  in,  or  to  be  transported  in,  interstate  or  foreign  commerce. 

14  "§  1735.  Bankruptcy  Fraud 

15  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  with  intent  to 

16  deceive  a  court  or  an  officer  thereof  or  to  deceive  or  harm  a  creditor  of 

17  a  bankrupt,  he : 

18  "(1)  transfers  or  conceals  property  belonging  to  the  estate  of 

19  a  bankrupt ; 

20  "(2)   receives  a  material  amount  of  property  from  a  bankrupt 

21  after  the  filing  of  a  bankruptcy  proceeding ; 

22  "(3)  transfers  or  conceals,  in  contemplation  of  a  bankruptcy 

23  proceeding,  his  own  property  or  the  property  of  another ; 

24  "(4)  transfers  or  conceals,  in  contemplation  of  a  state  insol- 

25  vency  proceeding,  his  own  property  or  the  property  of  another; 

26  "(5)  alters,  destroys,  mutilates,  conceals,  or  makes  a  false  entry 

27  in  a  document  affecting  or  relating  to  the  property  or  affairs  of  a 

28  bankrupt,   or  withholds   such   a   document   from   the   receiver, 

29  trustee,  or  other  officer  of  the  court  entitled  to  its  possession ;  or 

30  " (6)  offers,  gives,  or  agrees  to  give,  or  solicits,  demands,  accepts, 

31  or  agrees  to  accept,  anything  of  value  for  or  because  of  acting 

32  or  forbearing  to  act,  or  having  acted  or  forborne  to  act,  in  a 

33  bankruptcy  proceeding. 

34  "  (b)  DEFiNmoNs. — As  used  in  this  section : 

35  "(1)  'bankrupt'  means  a  debtor  by  or  against  whom  a  petition 

36  has  been  filed  pursuant  to  the  Bankruptcy  Act  of  1898,  as  amended 

37  (11  U.S.C.  1  et  seq.),  and,  for  purposes  of  subsection  (a)(4),  a 

38  debtor  who  is  the  subject  of  a  state  insolvency  proceeding; 

39  "(2)  'bankruptcy  proceeding'  means  a  proceeding,  arrangement, 

40  or  plan  pursuant  to  the  Bankruptcy  Act  of  1898,  as  amended  (11 

41  U.S.C.  let  seq.); 


9613 

129 

1  "(3)  'harm'  means  to  cause  loss,  deprivation,  or  reduction  in 

2  value,  with  respect  to  any  economic  benefit. 

3  "  (c)  Grading. — An  offense  described  in  this  section  is : 

4  "(1)  a  Class  D  felony  if  the  property  has  a  value  in  excess  of 

5  $500; 

6  "  (2)  a  Class  E  felony  in  any  other  case. 

7  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

8  described  in : 

9  "(1)  subsection   (a)(4)   if  the  offense  in  any  way  or  degree 

10  affects,  delays,  or  obstructs  interstate  or  foreign  commerce  or  the 

11  movement  of  an  article  or  commodity  in  interstate  or  foreign 

12  commerce ; 

13  "(2)  subsection  (a)  (1),  (a)  (2),  (a)  (3),  (a)  (5),  or  (a)  (6)  if 

14  the  offense  is  committed  within : 

15  "(A)  the  general  jurisdiction  of  the  United  States; 

16  "(B)  the  special  jurisdiction  of  the  United  States;  or 

17  "(C)  the  extraterritorial  jurisdiction  of  the  United  States 
Ig  to  the  extent  applicable  under  section  204. 

19  "§  1736.  Interfering  With  a  Security  Interest 

20  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  holding  a  legal 

21  interest  in  property  subject  to  a  security  interest,  he  deprives  the  holder 

22  of  the  security  interest  of  a  right  to  the  property  or  a  benefit  of  the 

23  property  by  removing,  concealing,  encumbering,  transferring,  or  con- 

24  verting  such  property. 

25  "  (b)  Grading. — An  offense  described  in  this  section  is : 

26  "(1)   a  Class  D  felony  if  the  value  of  the  deprivation  of  the 

27  right  or  benefit  exceeds  $100,000; 

28  "(2)   a  Class  E  felony  if  the  value  of  the  deprivation  of  the 

29  right  or  benefit  exceeds  $500  but  is  not  more  than  $100,000; 

30  "  (3)  a  Class  A  misdemeanor  in  any  other  case. 

31  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

32  described  in  this  section  if : 

33  "(1)   the  offense  is  committed  within  the  special  jurisdiction 

34  of  the  United  States ;  or 

35  "(2)  the  property  is  subject  to  a  security  interest  held  by  the 

36  United  States. 

37  "§1737.  Fraud  in  a  Regulated  Industry 

38  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  with  intent  to 

39  defraud,  he : 

40  "  ( 1 )  uses  or  reveals  information  relative  to  a  formula  of  a  prod- 

41  uct  in  fact  acquired  under  the  authority  of  section  3  of  the  Fed- 


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1  eral  Insecticide,  Fungicide,  and  Rodenticide  Act  of  1972,  as 

2  amended  (7  U.S.C.  1361(b)); 

3  "(2)  violates  section  912  of  the  Housing  and  Urban  Develop- 

4  ment  Act  of  1970  (12  U.S.C.  1709-2)  or  section  239(b)  of  the 

5  National  Housing  Act,  as  added  by  section  302  of  the  Act  of 

6  August  1,  1968  (12  U.S.C.  1715z-4(b)   (relating  to  equity  skim- 

7  ming  in  federally  insured  mortgages  of  single  or  multiple  family 

8  dwellings) ;  or 

9  "(3)  violates  the  provisions  of  section  1404  of  the  Interstate 

10  Land  Sales  Full  Disclosure  Act  (15  U.S.C.  1703)  (relating  to  the 

11  sale  or  lease  of  lots  in  real  estate  subdivisions),  or  a  regulation, 

12  rule,  or  order  issued  pursuant  thereto ; 

13  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

14  felony. 

15  "§1738.  Consumer  Fraud 

16  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  with  intent  to 

17  deceive  or  defraud  a  purchaser,  he : 

18  "(1)  offers  or  advertises  property  for  sale  to  a  purchaser, 

19  knowing  that  such  property  will  not  be  sold  as  so  offered  or 

20  advertised;  or 

21  "(2)   makes  a  material  statement  that  is  false,  concerning 

22  property  that  he  offers  or  advertises  for  sale,  sells,  or  has  sold  to 

23  a  purchaser,  with  respect  to: 

24  "(A)  the  purchaser's  need  for  the  property; 

25  "(B)  the  nature  of  the  property,  including  its  origin;  its 

26  age;  its  grade,  quality,  style,  or  model;  its  ingredients  or 

27  components ;  its  quantity ;  its  performance  or  safety  charac- 

28  teristics ;  or  its  uses  or  benefits ; 

29  "(C)  the  sponsorship  or  approval  of  the  property; 

30  "(D)  the  comparison  between  the  price  or  quality  of  the 

31  property  and  that  of  similar  property  offered  or  advertised 

32  for  sale  by  the  same  or  another  person; 

83  "(E)  the  prior  ownership  of  the  property; 

34  "(F)  the  purchaser's  need  for  the  repair  or  replacement  of 

85  the  property ; 

86  "(G)  the  person's  completion  of  tlie  repair  or  replacement 
37  of  the  property ;  or 

88  "(H)  the  purchaser's  rights,  privileges,  or  remedies  with 

39  regard  to  the  property. 


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1  "(b)  Definitions. — As  used  in  this  section : 

2  "(1)  'purchaser'  inchides  a  potential  purchaser  and  an  actual 

3  or  potential  lessee,  assignee,  or  other  transferee  of  property  in 

4  exchange  for  anything  of  value ;  and 

5  "(2)  'sale',  or  a  variant  thereof,  includes  a  lease,  assignment, 

6  or  other  transfer  of  property  in  exchange  for  anything  of  value. 

7  "(c)  Grading. — An  offense  described  in  this  section  is  a  class  A 

8  misdemeanor. 

9  "(d)   Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

10  described  in  this  section  if : 

11  "(1)  the  offense  is  committed  within  the  special  jurisdiction  of 

12  the  United  States ;  or 

13  "(2)  a  circumstance  specified  in  section  1734(e)  exists  or  has 

14  occurred  and  the  property  offered  or  advertised  for  sale,  or  as 

15  to  which  a  false  statement  is  made,  has  a  value  of  $10,000  or  more 

16  when  considered  either  alone  or  as  one  of  a  series  of  such  offerings, 

17  advertisements,  or  statements. 

18  "§1739i  General  Provisions  for  Subchapter  D 

19  "(a)  Definitions. — As  used  in  this  subchapter: 

20  "(1)  'counterfeiting  implement' and 'forging  implement' have 

21  the  meanings  set  forth  in  section  1746  (b)  and  (d) ; 

22  "(2)  'obtains  or  uses' means  any  manner  of : 

23  "(A)  taking  or  exercising  control  over  property; 

24  "(B)  making  an  unauthorized  use,  disposition,  or  transfer 

25  of  property ;  or 

26  "(C)   obtaining  property  by  fraud ; 

27  and  includes  conduct  heretofore  known  as  theft,  stealing,  larceny, 

28  purloining,   abstracting,  embezzlement,  misapplication,  misap- 

29  propriation,  conversion,  obtaining  money  or  property  by  false 

30  pretenses,  fraud,  deception,  and   all  other  conduct  similar  in 

31  nature ; 

32  "(3)  'written  instrument'  has  the  meaning  set  forth  in' section 

33  1746  (i). 

34  "(b)  Proof. — In  a  prosecution  under  section  1731,  1732,  or  1733: 

35  "(1)  possession  of  property  recently  stolen,  unless  satisfactor- 

36  ily  explained,  constitutes  prima  facie  evidence  that  the  person 

37  in  possession  of  the  property  was  aware  of  the  risk  that  it  had 

38  been  stolen  or  that  he  in  some  way  participated  in  its  theft ; 

39  "(2)  the  purchase  or  sale  of  stolen  property  at  a  price  sub- 

40  stantially  below  its  fair  market  value,  unless  satisfactorily  ex- 


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1  plained,  constitutes  prima  facie  evidence  that  the  person  buying 

2  or  selling  the  property  was  aware  of  the  risk  that  it  had  been 

3  stolen ; 

4  "(3)  in  establishing  that  property  constitutes  or  is  part  of  an 
6            interstate  or  foreign  shipment  within  the  meaning  of  section 

6  1731(c)  (8),  proof  of  the  designation  in  a  way  bill  or  other  ship- 

7  ping  document  of  the  places  from  which  and  to  which  a  ship- 

8  ment  was  made  creates  a  presumption  that  the  property  was 

9  shipped  or  was  being  shipped  as  indicated  by  such  document. 

10  "(c)  Bar  to  Prosecction. — It  is  a  bar  to  prosecution  under  sec- 

1 1  tions  1731, 1732,  and  1733  that : 

12  "(1)  the  subject  of  the  offense  was  intangible  property  owned 

13  by,  or  under  the  care,  custody,  or  control  of,  the  United  States; 

14  "(2)  the  defendant  obtained  or  used   the  property  solely  for 

15  the  purpose  of  disseminating  it  to  the  public,  and  did  not  derive 

16  anything  of  value  from  obtaining,  using,  or  disseminating  it; 

17  and 

18  "(3)  the  property  was  not  obtained  by  means  of  conduct  con- 

19  stituting  an  offense  under  section  1521   (Eavesdropping),  1524 

20  Intercepting  Correspondence) ,  1711  (Burglary),  1712  (Criminal 

21  Entry,  or  1713  (Criminal  Ti-espass),  or  constituting  a  trespass 

22  under  civil  law. 

23  "Subchapter  E. — Counterfeiting,  Forgery,  and  Related 

24  Offenses 

"Sec. 

"1741.  Counterfeiting. 

"1742.  Forgery. 

"1743.  Criminal  Endorsement  of  a  Written  Instrument. 

"1744.  Criminal  Issuance  of  a  Written  Instrument. 

"1745.  Trafficking  in  a  Counterfeiting  Implement. 

"1746.  Definitions  for  Subchapter  E. 

25  "§1741.  Counterfeiting 

26  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  with  intent  to 

27  deceive  or  harm  another  person  or  a  government,  he  makes,  utters,  or 

28  possesses  a  counterfeited  written  instrument. 

29  "(b)  Grading. — An  offense  described  in  this  section  is: 

30  "(1)  a  Class  C  felony  if  the  written  instrument  is  or  purports 

31  to  be: 

32  "(A)  a  written  instrument  of  the  United  States;  or 

33  "(B)  a  security; 

34  "  (2)  a  Class  D  felony  in  any  other  case. 

35  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

36  described  in  this  section  if : 


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1  "(1)  the  offense  is  committed  within  the  sipecial  jurisdiction  of 

2  the  United  States ; 

3  "(2)  the  written  instrument  is  or  purports  to  be : 

4  "(A)  made  or  issued  by  or  under  the  authority  of,  or  guar- 

5  anteed  by,  the  United  States ; 

6  "  (B)  a  security  made  or  issued  by  or  under  the  authority  of 

7  a  foreign  government ; 

8  "(C)  a  security  or  a  tax  stamp,  and  is  moved  across  a  state 

9  or  United  States  boundary  in  the  commission  of  the  offense ; 

10  "(D)  a  security  issued  by  a  national  credit  institution,  and 

11  the  offense  is  committed  by  an  agent  of  such  institution;  or 

12  "(E)  a  security  that  is  a  note,  stock  certificate,  treasury 

13  stock  certificate,  bond  debenture,  or  interest  coupon,  made  or 

14  issued  by  an  organization  or  by  a  state  or  local  government ;  or 

15  "(3)  the  government  intended  to  be  deceived  or  harmed  is  the 

16  government  of  the  United  States. 

17  "§  1742.  Forgery 

18  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  with  intent  to 

19  deceive  or  harm  another  person  or  a  government,  he  makes,  utters,  or 

20  possesses  a  forged  written  instrument. 

21  "(b)  Grading. — An  offense  described  in  this  section  is : 

22  "(1)  a  Class  C  felony  if  the  written  instrument  is  or  purports 

23  to  be : 

24  "(A)  an  obligation  of  the  United  States;  or 

25  " (B)   an  instrument  that  has  a  value  in  excess  of  $100,000 ; 

26  "(2)  A  Class  D  felony  if  the  written  instrument  is  or  purports 

27  to  be: 

28  "  ( A)  made  or  issued  by  or  under  the  authority  of,  or  giiar- 

29  anteed  by,  the  United  States,  a  state  or  local  government,  or 

30  a  foreign  government ;  or 

31  "(B)  an  instrument  that  has  a  value  in  excess  of  $500  but 

32  not  more  than  $100,000 ; 

33  "  ( 3 )  a  Class  E  felony  in  any  other  case. 

34  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

35  described  in  this  section  if : 

36  "(1)  the  offense  is  committed  within  the  special  jurisdiction 

37  of  the  United  States ; 

38  "  (2)  the  written  instrument  is  or  purports  to  be : 

39  "(A)   made  or  issued  by  or  under  the  authority  of ,  or 

40  guaranteed  by,  the  United  States ; 


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1  "(B)  a  security  made  or  issued  by  or  under  the  authority 

2  of  a  foreign  government ; 

3  "(C)  a  security  or  a  tax  stamp,  and  is  moved  across  a  state 

4  or  United  States  boundary  in  the  commission  of  the  offense ;  ©f 

5  "(D)  a  security  issued  by  a  national  credit  institution,  and 

6  the  offense  is  committed  by  an  agent  of  such  institution;  or 

7  "(E)  a  security  that  is  a  note,  stock  certificate,  treasury 

8  stock  certificate,  bond,  debenture,  or  interest  coupon,  made  or 

9  issued  by  an  organization  or  by  a  state  or  local  government ;  or 

10  "(3)  the  government  intended  to  be  deceived  or  harmed  is  the 

11  government  of  the  United  States. 

12  "§  1743.  Criminal  Endorsement  of  a  Written  Instrument 

13  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  with  intent  to 

14  deceive  or  harm  another  person  or  a  government,  he : 

15  "(1)  signs  or  endorses  a  written  instrument  purportedly  on  be- 

16  half  of  another  person  or  a  government  without  authority  to  do 

17  so;  or 

18  "(2)  utters  or  possesses  a  written  instrument  that  has  been  so 

19  signed  or  endorsed. 

20  "  (b)  Grading. — An  offense  described  in  this  section  is : 

21  "(1)  a  Class  C  felony  if  the  written  instrument  is  or  purports 

22  tobe: 

23  "  (A)  an  obligation  of  the  United  States ;  or 

24  "(B)  an  instrument  that  has  a  value  in  excess  of  $100,000; 

25  "(2)  a  Class  D  felony  if  the  written  instrument  is  or  purports 

26  to  be: 

27  "(A)  made  or  issued  by  or  under  the  authority  of,  or  guar- 

28  anteed  by,  the  United  States,  a  state  or  local  government,  or  a 

29  foreign  government ;  or 

30  "(B)  an  instrument  that  has  a  value  in  excess  of  $500  but 

31  not  more  than  $100,000 ; 

32  "  (3)  a  Class  E  felony  in  any  other  case. 

33  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

34  described  in  this  section  if : 

35  "(1)  the  offense  is  committed  within  the  special  jurisdiction  of 

36  the  United  States ; 

37  "  (2)  the  written  instrument  is  or  purports  to  be : 

38  "(A)  made  or  issued  by  or  under  the  authority  of,  or  guar- 

39  anteed  by,  the  United  States ; 


9619 


135 


1  "(B)  a  security  made  or  issued  by  or  under  the  authority 

2  of  a  foreign  government ; 

3  "(C)  a  security  or  a  tax  stamp,  and  is  moved  across  a 

4  state  or  United  States  boundary  in  the  commission  of  the 

5  offense ; 

6  "(D)  a  security  issued  by  a  national  credit  institution,  and 

7  the  offense  is  committed  by  an  agent  of  such  institution ;  or 

8  "(E)  a  security  that  is  a  note,  stock  certificate,  treasury 

9  stock  certificate,  bond,  debenture,  or  interest  coupon,  made 

10  or  issued  by  an  organization  or  by  a  state  or  local  govern- 

11  ment;  or 

12  "(3)  the  government  intended  to  be  deceived  or  harmed  is  the 

13  government  of  the  United  States. 

14  "§1744.  Criminal  Issuance  of  a  Written  Instrument 

15  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  with  intent  to 

16  deceive  or  harm  another  person  or  a  government,  he : 

17  "  ( 1 )   issues  a  written  instrument  without  authority ;  or 

18  "(2)  utters  or  possesses  a  written  instrument  that  has  been  so 

19  issued. 

20  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  D 

21  felony. 

22  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

23  described  in  this  section  if : 

24  "(1)  the  offense  is  committed  within  the  special  jurisdiction  of 

25  the  United  States ; 

26  "  (2)  the  written  instrument  is  or  purports  to  be : 

27  "(A)  made  or  issued  by  or  under  the  authority  of,  or 

28  guaranteed  by,  the  United  States ; 

29  "  ( B )  a  security  made  or  issued  by  or  under  the  authority  of 

30  a  foreign  government ; 

31  "(C)  a  security  issued  by  a  national  credit  institution, 

32  and  the  offense  is  committed  by  an  agent  of  such  institution ; 

33  or 

34  "(3)  the  government  intended  to  be  deceived  or  harmed  is  the 

35  government  of  the  United  States. 

36  "§1745.  Trafficking  in  a  Counterfeiting  Implement 

37  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if  he : 

38  "  (1)  makes  or  traffics  in  a  counterfeiting  or  forging  implement; 

39  or 


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136 


1  "(2)  possesses  a  counterfeiting  or  forging  implement  with  in- 

2  tent  that  it  be  used  in  making  a  counterfeited  or  forged  written 

3  instrument. 

4  "(b)  Grading. — An  offense  described  in  this  section  is : 

5  "  ( 1)  a  Class  C  felony  if  the  implement  is  designed  for  or  suited 

6  for  the  making  of  a  counterfeited  or  forged  obligation  of  the 

7  United  States ; 

8  "  (2)  a  Class  D  felony  in  any  other  case. 

9  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  otfense 

10  described  in  this  section  if : 

11  "(1)  the  offense  is  committed  within  the  special  jurisdiction 

12  of  the  United  States ; 

13  "  (2)  the  implement  is  designed  for  or  suited  for  the  making  of : 

14  "  (A)  a  written  instrument  purporting  to  be  made  or  issued 

15  by  or  under  the  authority  of,  or  guaranteed  by,  the  United 

16  States; 

17  "(B)  a  security  purporting  to  be  made  or  issued  by  or 

18  under  the  authority  of  a  foreign  government ;  or 

19  "(C)  a  security  that  is  a  note,  stock  certificate,  treasury 

20  stock  certificate,  bond,  debenture,  or  interest  coupon,  made  or 

21  issued  by  an  organization  or  by  a  state  or  local  government ; 

22  or 

23  "(3)  the  implement  which  is  the  subject  of  the  offense  is  moved 

24  across  a  state  or  United  States  boundary  in  the  commission  of 

25  the  offense. 

26  "§1746.  Definitions  for  Subchapter  E 

27  "As  used  in  this  subchapter : 

28  "  (a)  'counterfeited  written  instrument'  means  a  written  instru- 

29  ment  that  purports  to  be  genuine  but  is  not,  because  it  has  been 

30  falsely  made  or  manufactured  in  its  entirety ; 

31  "(b)  'counterfeiting  implement'  means  an  engraving,  plate, 

32  hub,  stone,  paper,  tool,  die,  mold,  ink,  photograph,  negative,  or 

33  other  implement  or  impression  designed  for  or  suited  for  the  mak- 

34  ing  of  a  counterfeited  written  instrument ; 

35  "(c)  'forged  written  instrument'  means  a  written  instrument 

36  that  purports  to  be  genuine  but  is  not  because  it:  (1)  has  been 

37  falsely  altered,  completed,  signed,  or  endorsed;  (2)  contains  a 

38  false  addition  thereto  or  insertion  therein;  or  (3)  is  a  combina- 

39  tion  of  parts  of  two  or  more  genuine  written  instruments; 


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1  "(d)  'forging   implement'   means   an  engraving,   plate,  hub, 

2  stone,  paper,  tool,  die,  mold,  ink,  photograph,  negative,  or  other 

3  implement  or  impression  designed  for  or  suited  for  the  making  of 

4  a  forged  written  instrument ; 

5  "(e)  'obligation  of  the  United  States' means  a  bond,  certificate 

6  of  indebtedness,  national  bank  currency.  Federal  Reserve  note, 

7  Federal    Reserve    bank    note,    coupon,    United     States    note, 

8  Treasury  note,  gold  certificate,  silver  certificate,  fractional  note, 

9  certificate  of  deposit,  stamp,  canceled  stamp,   postage  meter 

10  stamp,  coin,  gold  or  silver  bar  coined  or  stamped  at  a  mint  or 

11  assay  office  of  the  United  States,  or  other  representation  of  value 

12  of  any  denomination,  issued  pursuant  to  a  federal  statute,  except 

13  a  bill,  money  order,  check,  or  draft  for  money,  drawn  by  or  upon 

14  an  authorized  officer  of  the  United  States ; 

15  "(f)  'security'  means  (1)  an  obligation  of  the  United  States; 

16  (2)    a  note,  stock  certificate,  treasury  stock  certificate,  bond, 

17  debenture,  interest  coupon,  bill,  check,  draft,  warrant,  money 

18  order,  money  order  blank,  traveler's  check,  letter  of  credit,  ware- 

19  house  receipt,  negotiable  bill  of  lading,  evidence  of  indebtedness, 

20  certificate  of  interest  in  or  participation  in  any  profit-sharing 

21  agreement,  collateral-trust  certificate,  preorganization  certificate 

22  or  subscription,  transferable  share,  investment  contract,  voting- 

23  trust  certificate,  or  certificate  of  interest  in  tangible  or  intangible 

24  property;    (3)    an  instrument  evidencing  ownership  of  goods, 

25  wares,  or  merchandise;    (4)    a  certificate  for,  receipt  for,  or 

26  warrant  or  right  to  subscribe  to  or  purchase  any  of  the  fore- 

27  going;  (5)  an  obligation,  bank  note,  bill,  coin,  or  bar  issued  by 

28  a  foreign  government  and  intended  by  the  law  or  usage  of  such 

29  government  to  circulate  as  money ;  (6)  a  security  of  a  foreign  gov- 

30  ernment;   (7)  a  postage  stamp,  revenue  stamp,  or  uncancelled 

31  stamp,  whether  or  not  demonetized,  issued  by  a  foreign  govern- 

32  ment;  or  (8)  any  other  written  instrument  commonly  known  as 

33  a  security ; 

34  "(g)  'tax  stamp'  includes  a  tax  stamp,  tax  token,  tax  meter  im- 

35  print,  or  any  similar  evidence  of  an  obligation  running  to  a  gov- 

36  ernment  or  of  the  discharge  of  such  an  obligation ; 

37  "(h)  'utter'  means  to  issue,  authenticate,  transfer,  publish,  sell, 

38  deliver,  transmit,  present,  display,  use,  certify,  or  otherwise  give 

39  currency  to; 


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1  "(i)  'written  instrument'  means  (1)  a  security;   (2)  a  com- 

2  mercial  paper  or  document,  or  other  commercial  instrument  con- 

3  taining  written  or  printed  matter  or  its  equivalent;  or   (3)   a 
4-  symbol  or  evidence  of  value,  right,  privilege,  interest,  claim,  or 

5  identification  that  is  capable  of  being  used  to  the  advantage  or 

6  disadvantage  of  any  person;  but,  except  as  used  in  section  1745, 

7  does  not  include  a  written  instrument  that  is  the  subject  of  a 

8  counterfeiting,  forgery,  criminal  endorsement,  or  criminal  issu- 

9  ance  oflfense  described  outside  this  title ; 

10  "(j)   'written  instrument  issued  under  the  authority  of  the 

11  United  States'  includes  a  warehouse  receipt  issued  pursuant  to 

12  the  United  States  Warehouse  Act  (7  U.S.C.  241  et  seq.)  and  an 

13  'authorization  to  purchase  card'  as  defined  in  section  3(m)  of 

14  the  Food  Stamp  Act  of  1964,  as  amended  (7  U.S.C.  2012 (m) ). 

15  "Subchapter  F,— Commercial  Bribery  and  Related 

16  Offenses 

"Sec. 

"1751.  Commercial  Bribery. 
"1752.  Labor  Bribery. 
"1753.  Sports  Bribery. 

17  "§1751.  Commercial  Bribery 

18  "(a)  Offense. — A  person  is  guilty  of  an  offense  if : 

19  "(1)  he  offers,  gives,  or  agrees  to  give  to  an  agent  or  fiduciary 

20  of  another  person,  or 

21  "(2)   as  an  agent  or  fiduciary,  he  solicits,  demands,  accepts,  or 

22  agrees  to  accept  from  another  person  who  is  not  his  employer, 

23  principal,  or  beneficiary ; 

24  anything  of  value  for  or  because  of  the  recipient's  conduct  in  any  trans- 

25  action  or  matter  concerning  the  affairs  of  the  employer,  principal,  or 

26  beneficiary. 

27  "(b)  Grading. — An  offense  described  in  this  section  is : 

28  "(1)  a  Class  E  felony  if  what  is  offered,  given,  or  agreed  to  be 

29  given,  or  solicited,  demanded,  accepted,  or  agreed  to  be  accepted, 

30  has  a  value  in  excess  of  $100 ; 

31  "(2)  a  Class  A  misdemeanor  in  any  other  case. 

32  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

33  described  in  this  section  if: 

34  "(1)  a  participant  in  the  offense  is  an  agent  or  fiduciary  of: 

35  "(A-)  a  national  credit  institution; 

36  "(B)  a  small  business  investment  company,  as  defined  in 

37  section  103  of  the  Small  Business  Investment  Act  of  1958, 

38  as  amended  (15  U.S.C.  662) ; 


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139 


1  "(C)  a  bank  holding  company,  a  savings  and  loan  holding 

2  company,  or  a  person  controlling  a  financial  institution  in 

3  such  a  manner  as  to  be  a  bank  holding  company  or  a  savings 

4  and  loan  holding  company  imder  the  Bank  Holding  Com- 

5  pany  Act  Amendments  of  1956,  as  amended    (12  U.S.C. 

6  1841),  or  the  Savings  and  Loan  Holding  Company  Amend- 

7  ments  of  1967  (12  U.S.C.  1730a) ; 

8  "(D)   a  prime  contractor  holding  a  negotiated  contract 

9  entered  into  by  the  United  States  government  for  the  fur- 

10  nishing  of  supplies,  materials,  equipment,  or  services  of  any 

11  kind,  or  a  subcontractor,  as  defined  in  section  2  of  the  Act 

12  of  March  8,  1946,  as  amended  (41  U.S.C.  52) ,  holding  a  sub- 

13  contract  under  such  a  prime  contract; 

14  "(E)   an  authorized  committee  or  an  eligible  candidate,  as 

15  defined  in  the  Presidential  Election  Campaign  Fund  Act 

16  (26  U.S.C.  9002  (1)  and  (4)),  and  the  conduct  relates  to  a 

17  qualified  campaign  expenses,  as  defined  in  such  Act  (26  U.S.C. 

18  9002(11));  or 

19  "(F)  an  authorized  committee  or  candidate,  as  defined  in 

20  the  Presidential  Primary  Matching  Payment  Account  Act 

21  (26  U.S.C.  9032  (1)  and  (2)),  and  the  conduct  relates  to  a 

22  qualified  campaign  expense,  as  defined   in  such  Act   (26 

23  U.S.C.  9032(9)); 

24  "(2)  movement  of  a  person  across  a  state  or  United.  States 

25  boundary  occurs  in  the  planning,  promotion,  management,  execu- 

26  tion,  consummation,  or  concealment  of  the  offense,  or  in  the 

27  distribution  of  the  proceeds  of  the  offense;   or 

28  "(3)  the  United  States  mail  or  a  facility  of  interstate  or  foreign 

29  commerce  is  used  in  the  planning,  promotion,  management,  execu- 

30  tion,  consummation,  or  concealment  of  the  offense,  or  in  the 

31  distribution  of  the  proceeds  of  the  offense. 

32  "§1752.  Labor  Bribery 

33  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if : 

34  "(1)  being  an  employer,  he  offers,  gives,  or  agrees  to  give  any- 

35  thing  of  value  to  a  labor  organization,  or  to  an  officer,  agent,  or 

36  counsel  of  a  labor  organization,  for  or  because  of  the  recipient's 

37  conduct  in  any  transaction  or  matter  concerning  such  organiza- 

38  tion ; 

39  "(2)  he  offers,  gives,  or  agrees  to  give  anything  of  value  to: 

40  "(A)   an  administrator,  agent,  trustee,  or  counsel  of  an 

41  employee  benefit  plan; 


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140 


1  "(B)  an  employer,  agent,  or  counsel  of  an  employer,  any 

2  of  whose  employees  are  covered  by  such  a  plan ; 

3  "(C)  an  agent  or  counsel  of  an  employee  organization,  any 

4  of  whose  members  are  covered  by  such  a  plan ;  or 

5  "(D)  a  person  who,  or  an  agent  or  counsel  of  an  organiza- 

6  tion  that,  provides  benefit  plan  services ; 

7  for  or  because  of  the  recipient's  conduct  relating  to  any  trans- 

8  action  or  matter  concerning  such  plan ; 

9  "(3)  he  offers,  gives,  or  agrees  to  give  anything  of  value  to  an 
10  oflacer,  agent,  trustee,  or  counsel  of  a  labor  organization  for  or  be- 
ll cause  of  the  recipient's  conduct  relating  to: 

12  "(A-)  the  admission  of  any  person  to  membership  or  to  a 

13  class  of  membership,  or  the  issuance  to  any  person  of  the 

14  indicia  of  membership  or  of  a  class  of  membership,  in  the 

15  labor  organization ; 

16  "(B)  the  work  placement  of  any  person  by  the  labor  or- 

17  ganization;  or 

18  "(C)  any  transaction  or  matter  concerning  the  expenditure, 

19  transfer,  investment,  or  other  use  of  the  funds,  money,  secu- 

20  rities,  property,  or  other  assets  of  the  labor  organization ;  or 

21  "(4)  he  solicits,  demands,  accepts,  or  agrees  to  accept  anything 

22  of  value,  the  offering  of  which  constitutes  an  offense  described 

23  in  subsection  (a)  (1),  (a)  (2),  or  (a)  (3). 

24  "(b)  Definitions. — As  used  in  this  section : 

25  "(1)  'administrator'  has  the  meaning  set  forth  in  section (3) 

26  (16)  (A)  of  the  Employee  Retirement  Income  Security  Act  of 

27  1974   (29  U.S.C.  1002(16)  (A) ) ; 

28  "(2)  'anything  of  value'  does  not  include  bona  fide  salary, 

29  wages,  fees,  or  other  compensation  paid  in  the  usual  course  of 

30  business; 

31  "(3)  'employee  organization'  has  the  meaning  set  forth  in 

32  section  3(4)  of  the  Employee  Retirement  Income  Security  Act 

33  of  1974  (29  U.S.C.  1002(4)) ; 

34  "(4)  'employee  benefit  plan'  includes   (A)    the  meaning  set 

35  forth  in  section  3(3)  of  the  Employee  Retirement  Income  Secu- 

36  rity  Act  of  1974  (29  U.S.C.  1002(3) ) ;  and  (B)  any  trust  fund 
.'57  established  by  an  employer  or  by  an  employee  organization,  or  by 

38  both,  to  provide  any  benefit  to  the  members  of  the  organization 

39  or  to  their  families; 


9625 


141 

1  "(5)  'employer'  includes  a  group  or  association  of  employers, 

2  and  a  person  acting  directly  or  indirectly  as  an  employer  or  as  an 

3  agent  of  or  in  the  interest  of  an  employer ; 

4  "(6)  'labor  organization'  has  the  meaning  set  forth  in  section  3 

5  of  the  Labor-Management  Reporting  and  Disclosure  Act  of  1959 

6  (29U.S.C.402(i)); 

7  "(7)  'officer',  when  used  with  respect  to  a  labor  organization, 

8  has  the  meaning  set  forth  in  section  3(n)  of  the  Labor-Manage- 

9  ment  Reporting  and  Disclosure  Act  of  1959  (29  U.S.C.  402  (n) ) ; 

10  "(8)   'work  placement'  means  a  scheme,  system,  or  method 

11  whereby  members  of  a  labor  organization  or  other  persons  gain 

12  employment  or  are  referred  for  employment,  and  includes  any 

13  such  scheme,  system,  or  method  that  establishes  a  priority  or  pref- 

14  erence  upon  the  basis  of  (A)  seniority  within  the  labor  orga- 

15  nization;  (B)  experience  or  competency  in  a  particular  trade  or 

16  field  of  employment;  (C)  length  of  employment  in  a  particular 

17  trade  or  field  of  employment  or  with  specified  employers  or  with- 

18  in  a  particular  geographical  area;  (D)  performance  on  an  ex- 

19  amination  relating  to  an  individual's  ability  to  perform  work  in 

20  a  particular  trade  or  field  or  employment;  (E)  the  date  of  regis- 

21  tration  on  a  list  of  persons  available  for  work. 

22  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

23  felony. 

24  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

25  described  in  this  section  if  the  employer  or  labor  organization  is  en- 

26  gaged  in,  or  the  employee  benefit  plan  covers  employees  engaged  in,  an 

27  industry  that  affects  interstate  or  foreign  commerce. 

28  "§  1753.  Sports  Bribery 

29  "(a)  Offense. — A  person  is  guilty  of  an  offense  if ,  with  intent  im- 

30  properly  to  affect  the  outcome,  result,  or  margin  of  victory  of  a  pub- 

31  licly  exhibited  sporting  contest : 

32  "(1)  he  offers,  gives,  or  agrees  to  give  anything  of  value  to  a 

33  participant,  official,  or  other  person  associated  with  the  contest ;  or 

34  "(2)  as  a  participant,  official,  or  other  person  associated  with 

35  the  contest,  he  solicits,  demands,  accepts,  or  agrees  to  accept  any- 

36  thing  of  value. 

37  "(b)  Definition. — As  used  in  this  section,  'publicly  exhibited 
sporting  contest'  means  a  contest  open  to  the  public  in  any  sport  in- 


38 


39      volving  human  beings  or  animals,  whether  as  individual  participants 


4 


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142 

1  or  teams  of  participants,  the  occurrence  of  which  is  publicly  an- 

2  nounced  in  advance  of  the  event. 

3  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  E 
felony. 

5  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

6  described  in  this  section  if : 

7  "(1)  the  United  States  mail  or  a  facility  of  interstate  or  for- 

8  eign  commerce  is  used  in  the  planning,  promotion,  management, 
^  execution,  consummation,  or  concealment  of  the  offense,  or  in  the 

^0  distribution  of  the  proceeds  of  the  offense ;  or 

11  "(2)  movement  across  a  state  or  United  States  boundary  by  the 

12  actor,  or  by  a  participant,  official,  or  other  person  associated  with 

13  the  sporting  contest,  occurs  in  the  planning,  promotion,  manage- 
1*  ment,  execution,  consummation,  or  concealment  of  the  offense,  or 
1^  in  the  distribution  of  the  proceeds  of  the  offense. 

16  "Subchapter  G. — Investment,  Monetary,  and  Antitrust 

17  Offenses 

"Sec. 

"1761.  Securities  Offenses. 

"1762.  Monetary  Offenses. 

"1763.  Commodities  Exchange  Offenses. 

"1764.  Antitrust  Offenses. 

18  "§  1761.  Securities  Offenses 

19  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he : 

20  "  ( 1 )  violates  any  of  the  following  provisions  of : 

21  "  ( A)  the  Securities  Act  of  1933,  as  amended : 

22  "(i)  section  5,  as  amended  (15  U.S.C.  77e)   (relating 

23  to  the  sale  of  unregistered  securities ) ; 

24  "(ii)  section  17,  as  amended  (15  U.S.C.  77q)   (relat- 

25  ing  to  fraud  in  the  offer  and  sale  of  securities) ;  or 

26  "(iii)  section  23  (15  U.S.C.  77w)  (relating  to  unlaw- 

27  ful  representations) ; 

28  "(B)  the  Trust  Indenture  Act  of  1939,  as  amended  : 

29  "(i)  section  306,  as  added  by  the  Act  of  August  3, 

30  1939,  as  amended  (15  U.S.C.  77fff )  (relating  to  the  sale 

31  of  unregistered  debt  securities  without  qualified  trust 

32  indentures) ;  or 

33  "(ii)  section  324,  as  added  by  the  Act  of  August  3, 

34  1939,  as  amended  (15  U.S.C.  77xxx)    (relating  to  un- 

35  lawful  representations) ;  or 


9627 


143 

1  "(C)  the  Securities  Exchange  Act  of  1934,  as  amended: 

2  "(i)  section  9(a)(1)  through  (5)   (15  U.S.C.  78i(a) 

3  (1)  through  (5) )  (relating  to  manipulation  of  the  price 
^  of  securities  on  a  national  securities  exchange) ;  or 

5  "(ii)  section  10(b)  (15  U.S.C.  78j(b)),  by  violating  a 

6  provision  of  17  C.F.R.  §  240.10b-5  (relating  to  fraud  in 

7  the  purchase  and  sale  of  securities) ; 

°  "(2)  makes  a  false  statement  of  a  material  fact,  or  omits  to 

9  state  a  material  fact  required  to  be  stated  or  necessary  to  make  a 

10  statement  not  misleading,  in  a  registration  statement,  offering 

11  circular,  report,  application,  or  other  document  filed  or  required 

12  to  be  filed,  or  kept  or  required  to  be  kept,  under : 

13  "(A)  the  Securities  Act  of  1933,  as  amended  (15  U.S.C. 

14  77aetseq.); 

15  "(B)  the  Trust  Indenture  Act  of  1939,  as  amended  (15 

16  U.S.C.  77aaaetseq.); 

1'''  "(C)  the  Securities  Exchange  Act  of  1934,  as  amended 

18  (15  U.S.C.  78a  etseq.); 

19  "(D)  the  Public  Utility  Holding  Company  Act  of  1935, 

20  as  amended  ( 15  U.S.C.  79  et  seq.) ; 

21  "(E)  the  Investment  Company  Act  of  1940,  as  amended 

22  (15  U.S.C.  80a-l  et  seq.)  ;  or 

23  .  "(F)  section  203  or  204  of  the  Investment  Advisers  Act 

24  of  1940,  as  amended  (15  U.S.C.  80l>-3  or  80b-4) ; 

25  "(3)  violates: 

26  "(A)  any  of  the  following  provisions  of  the  Securities 

27  Exchange  Act  of  1934,  as  amended : 

28  "(i)  section  7(c),  (d),  or  (f),  as  amended  (15  U.S.C. 

29  78g(c),  (d),  or  (f)   (relating  to  margin  and  credit  fi- 

30  nancing  of  securities  transactions) ; 

31  "(ii)  section  10(a)    (15  U.S.C.  78j(a))    (relating  to 

32  short  sales  of  securities  and  use  of  stop-loss  orders  on  na- 

33  tional  securities  exchanges) ; 

34  "(iii)  section  14(a),  as  amended  (15  U.S.C.  78n(a)), 

35  by  violating  a  provision  of  17  C.F.R.  §  240.14a-9  (relat- 

36  ing  to  solicitation  of  proxies) ; 

37  "(iv)  section  14(c),  as  amended  (15  U.S.C.  78n(c)), 
by  violating  a  provision  of  17  U.S.C.  §  240.14c-6)   (re- 


38 


39  lating  to  false  information  statements) ; 


9628 


144 

1  "(v)  section  14(e),  as  amended  (15  U.S.C.  78n(e)) 

2  (relating  to  fraudulent  tender  offers  for  securities) ;  or 

3  "(vi)  section  16(c),  as  amended  (15  U.S.C.  78p(c)) 

4  (relating  to  short  sales  of  securities  by  officers,  directors, 

5  and  principal  shareholders) ; 

6  "(B)  section  12(h)  of  the  Public  Utility  Holding  Com- 

7  pany  Act  of  1935  (15  U.S.C.  79l{h))   (relating  to  the  pro- 

8  hibition  of  political  contributions  by  public  utility  holding 

9  companies  and  their  subsidiaries) ; 

10  "(C)  any  of  the  following  provisions  of  the  Investment 

11  Company  Act  of  1940,  as  amended : 

12  "(i)  section  7  (15  U.S.C.  80a-7)    (relating  to  trans- 

13  actions  by  unregistered  investment  companies) ; 

14  "(ii)  section  17(a),  (d),  or  (e)  (15  U.S.C.-80a-l7(a), 

15  (d),  or  (e)),  or  a  rule  thereunder  (relating  to  conflicts 

16  of  interest  in  the  acquisition  or  disposition  of  property 

17  and  securities  by  registered  investment  companies  and 

18  their  affiliates  and  by  joint  enterprises  and  profit  sharing 

19  plans  involving  such  persons) ; 

20  "(iii)    section  21,  as  amended    (15  U.S.C.  80a-21) 

21  (relating  to  loans  by  registered  investment  companies  to 

22  controlling  shareholders  or  to  others  contrary  to  the 

23  policies  of  such  companies) ; 

24  "(iv)  section  206  (1),  (2),  or  (3)  of  the  Investment 

25  Advisers  Act  of  1940,  as  amended  (15  U.S.C.  80b-6  (1), 

26  (2),  or  (3) )  (relating  to  fraud  by  investment  advisers) ; 

27  or 

28  "  (4:)  fails  to  file  a  report  or  document  required  to  be  filed  under : 

29  "  ( A)  section  16(a)  of  the  Securities  Exchange  Act  of  1934, 

30  as  amended  (15  U.S.C.  78p(a))   (relating  to  ownership  re- 

31  ports  by  officers,  directors,  and  major  shareholders  of  regis- 

32  tered  corporations) ; 

33  "(B)  section  17(a)  of  the  Public  Utility  Holding  Company 

34  Act  of  1935  (15  U.S.C.  79q)  (relating  to  ownership  reports 

35  of  officers,  directors,  and  major  shareholders  of  registered 

36  public  utility  holding  companies) ;  or 

37  "(C)  section  30(f)  of  the  Investment  Company  Act  of 

38  1940,  as  amended  (15  U.S.C.  80a-29(f ) )  (relating  to  owner- 

39  ship  reports  of  officers,  directors,  and  major  shareholders  of 

40  registered  closed  end  investment  companies). 


9629 


145 


1  "(b)  Proof. — The  provisions  of  section  1345  that  apply  to  section 

2  1343  (Making  a  False  Statement)  apply  also  to  this  section. 

3  "(c)  Grading. — An  offense  described  in  this  section  is : 

4  "(1)  a  Class  D  felony  in  the  circumstances  set  forth  in  subsec- 
6  tion  (a)(1); 

6  "(2)  a  Class  E  felony  in  the  circumstances  set  forth  in  subsec- 

7  tion  (a)  (2) ,  (a)  (3) ,  or  (a)  (4) ; 

8  "§1762.  Monetary  Offenses 

9  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  fails  to  file  a 

10  report,  or  to  make  or  maintain  a  record,  as  required  under : 

11  "(1)  section  411  of  the  National  Housing  Act,  as  added  by 

12  section  102  of  the  Act  of  October  26, 1970  (12  U.S.C.  I730d)  (re- 

13  lating  to  records  and  reports  by  institutions  insured  by  the  Federal 

14  Savings  and  Loan  Insurance  Corporation) ; 

15  "(2)  section  21  of  the  Federal  Deposit  Insurance  Act,  as  added 

16  by  section  101  of  the  Act  of  October  26,  1970  (12  U.S.C.  1829b) 

17  (relating  to  records  and  reports  by  banks  insured  by  the  Federal 

18  Deposit  Insurance  Corporation) ; 

19  "(3)  chapter  2  of  title  I  of  the  Act  of  October  26,  1970  (12 

20  U.S.C.  1951  et  seq.)  (relating  to  records  and  reports  by  uninsured 

21  banks  and  institutions)  ;  or 

22  "(4)  the  Currency  and  Foreign  Transactions  Reporting  Act 

23  (31  U.S.C.  1051  et  seq.)    (relating  to  records  and  reports  con- 

24  cerning  domestic  currency  transactions,  exports  and  imports  of 

25  monetary  instruments,  and  foreign  monetary  transactions). 

26  "(b)  Grading. — An  offense  described  in  this  section  is: 

27  "(1)  *  Class  D  felony  if  the  offense  is  committed: 

28  "(A.)  in  furtherance  of  any  other  violation  of  federal  law; 

29  or 

30  "(B)  as  part  of  a  pattern  of  illegal  activity  involving 

31  transactions  exceeding  $100,000  in  any  twelve-month  period ; 

32  "  (2)  a  Class  A  misdemeanor  in  any  other  case. 

33  Notwithstanding  the  provisions  of  section  2201(b)  (1),  the  authorized 

34  fine  is  $500,000  if  the  offense  is  a  Class  D  felony  and  $100,000  if  the 

35  offense  is  a  Class  A  misdemeanor. 

36  "§  1763.  Commodities  Exchange  OflFenses 

37  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if  he  violates : 

38  (1)  section  9(a)  of  the  Commodity  Exchange  Act,  as  amended 

39  (7  U.S.C.  13(b) )   (relating  to  the  manipulation  of  the  price  of  a 

40  commodity  in  interstate  commerce) ,  or  section  9(c)  or  (d)  of  that 


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1  Act  (7U.S.C.  13(d)  or  (e))  (relating  to  transactions  in  commod- 

2  ity  futures  by  conunissioners,  employees,  or  agents  of  the  Com- 

3  modity  Futures  Trading  Commission ) ;  or 

4  "(2)  the  eleventh  paragraph  of  section  25(a)  of  the  Act  of 

5  December  23, 1913,  as  added  by  the  Act  of  December  24, 1919  (12 

6  U.S.C.  617)   (relating  to  the  prohibition  on  the  use  of  corporate 

7  funds  to  manipulate  the  price  of  a  commodity  by  an  agent  of  a 

8  corporation  organized  to  do  foreign  banking) . 

9  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

10  felony. 

11  "§  1764.  Antitrust  Offenses 

12  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  violates  sec- 

13  tion  1,  2,  or  3  of  the  Sherman  Act  of  July  2,  1890,  as  amended  (15 

14  U.S.C.  1,  2,  or  3)   (relating  to  agreements  in  restraint  of  trade  and 

15  monopolizing  trade). 

16  "(b)   Grading. — An  offense  described  in  this  section  is  a  Class  E 

17  felony.  Notwithstanding  the  provisions  of  section  2201(b)(2),  the 

18  authorized  fine  for  a  corporation  is  $1,000,000,  or  the  alternative  au- 

19  thorized  fine  set  forth  in  section  2201  (c) . 

20  "Chapter  18.— OFFENSES  INVOLVING  PUBLIC  ORDER, 

21  SAFETY,  HEALTH,  AND  WELFARE 

"Subchapter 

"A.  Organized  Crime  Offenses. 

"B.  Drug  Offenses. 

"C.  Explosives  and  Firearms  Offenses. 

"D.  Riot  Offenses. 

"B.  Gambling,  Obscenity,  and  Prostitution  Offenses. 

"F.  Public  Health  Offenses. 

"Q.  Miscellaneous  Offenses. 

22  "Subchapter  A. — Organized  Crime  Offenses 

"Sec. 

"1801.  Operating  a  Backeteering  Syndicate. 

"1802.  Raclteteerlng. 

"1803.  Washing  Raclceteerlng  Proceeds. 

"1804.  Loansharking. 

"1805.  Facilitating  a  Raclieteering  Activity  by  Violence. 

"1806.  Definitions  for  Subchapter  A. 

23  "§  1801.  Operating  a  Racketeering  Syndicate 

24  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  organizes, 

25  owns,  controls,  manages,  directs,  finances,  or  otherwise  participates  in 

26  a  supervisory  capacity  in  a  racketeering  syndicate. 

27  "(b)  Proof. — In  a  prosecution  under  this  section,  proof  that  a  per- 

28  son  has  shared  in  the  proceeds  from  a  racketeering  syndicate  to  the 

29  extent  of  $5,000  or  more  in  any  thirty  day  period  constitutes  prima 

30  facie  evidence  that  the  person  has  organized,  owned,  controlled,  man- 


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1  aged,  directed,  financed,  or  otherwise  participated  in  a  supervisory 

2  capacity  in  such  syndicate. 

3  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  B 

4  felony. 

5  "§1802.  Racketeering 

g  "(a)  Offense. — A  pferson  is  guilty  of  an  offense  if,  through  a  pat- 

f^  tern  of  racketeering  activity,  he  acquires  or  maintains  an  interest  in, 

g  or  conducts,  an  enterprise. 

9  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  B 

IQ  felony. 

11  "§  1803.  Washing  Racketeering  Proceeds 

12  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  by  using  or  in- 

13  vesting  proceeds  from  a  pattern  of  racketeering  activity,  he  acquires 

14  or  maintains  an  interest  in,  or  establishes  or  conducts,  an  enterprise. 

15  "(b)  Defense. — It  is  a  defense  to  a  prosecution  under  this  section 
Ig  that  the  proceeds  were  used  to  purchase  securities  of  the  enterprise  on 

17  the  open  market  without  intent  to  control  or  participate  in  the  control 

18  of  the  enterprise,  or  to  assist  another  person  to  do  so,  if  the  securities 

19  of  the  enterprise  held  by  the  purchaser,  the  members  of  his  immediate 

20  family,  and  his  or  their  accomplices  in  any  pattern  of  racketeering  ac- 

21  tivity  after  such  purchase  do  not  amount  in  the  aggregate  to  one  per- 

22  cent  or  more  of  the  outstanding  securities  of  any  one  class,  and  do  not 

23  confer,  either  in  law  or  in  fact,  the  power  to  elect  one  or  more  directors 

24  of  the  enterprise. 

25  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  C 

26  felony. 

27  "§1804.  Loansharking 

28  "  (*)  Offense. — A  person  is  guilty  of  an  offense  if  he : 

29  "(1)  makes  or  finances  an  extortionate  extension  of  credit; 

30  "(2)  makes  or  finances  an  extension  of  credit: 

31  "(A)  having,  in  fact,  an  aggregate  value  in  excess  of  $100, 

32  including  unpaid  interest  or  similar  charges  and  any  other 

33  outstanding  extensions  of  credit  to  the  same  debtor; 

34  "(B)  carrying  a  rate  of  interest  that  exceeds  an  annual  rate 

35  of  forty-five  percent,  calculated  according  to  the  actuarial 

36  method  of  allocating  payments  between  principal  and  interest 

37  under  which  a  payment  is  applied  first  to  the  accumulated 

38  interest  and  the  balance  is  applied  to  the  unpaid  principal ; 

39  and 


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1  "(C)  concerning  which  the  repayment,  or  the  performance 

2  of  any  promise  given  in  return,  would  not  in  fact  be  enforce- 

3  able  through  civil  judicial  process  against  the  debtor : 

4  "(i)  in  the  jurisdiction  within  which  the  debtor,  if  an 

5  individual,  resided  at  the  time  the  extension  of  credit  was 

6  made;  or 

7  "(ii)  in  every  jurisdiction  within  which  the  debtor,  if 

8  an  organization,  was  incorporated  or  qualified  to  do  busi- 

9  ness  at  the  time  the  extension  of  credit  was  made ; 

10  "(3)  collects  a  repayment  of  an  extension  of  credit  that  was 

11  made  or  financed  unlawfully,  such  making  or  financing  having 

12  been  in  violation  of  subsection  ( a )  ( 1 )  or  ( a )  ( 2 ) ;  or 

13  "(4)  retaliates  against  any  person  for  failing  to  repay  an  exten- 

14  sion  of  credit  made  or  financed  in  violation  of  subsection  (a)  (1) 

15  or  (a)  (2)  by  subjecting  any  person  to  bodily  injury,  kidnapping, 

16  or  injury  to  reputation,  or  by  damaging  property, 

17  "  (b)  Proof. — In  a  prosecution  under  subsection  (a)  (1) ,  if  evidence 

18  is  introduced  tending  to  show  the  existence  of  the  circumstances  de- 

19  scribed  in  subsection  (a)(2)(B)  or  (a)(2)(C),  and  direct  evidence 

20  is  not  available  to  show  the  understanding  of  the  creditor  and  the 

21  debtor  concerning  the  possible  consequences  of  a  delay  in  making  re- 

22  payment  or  a  failure  to  make  repayment,  for  the  purpose  of  showing 

23  that  understanding  the  court  may  permit  the  introduction  of  evidence 

24  concerning  the  reputation  as  to  collection  practices  of  the  creditor  in 

25  any  community  of  which  the  de;btor  was  a  member  at  the  time  of  the 

26  extension  of  credit. 

27  "(c)  Grading. — An  ofTense  described  in  this  section  is : 

28  "  ( 1 )  a  Class  C  felony  in  the  circumstances  set  forth  in  subsection 

29  (a)(1); 

30  "(2)  a  Class  D  felony  in  the  circumstances  set  forth  in  subsec- 

31  tion  (a)  (2) ; 

32  "(3)  a  Class  E  felony  in  the  circumstances  set  forth  in  subsec- 

33  tion  (a)  (3)  or  (a)  (4). 

34  "§1805.  Facilitating  a  Racketeering  Activity  by  Violence 

35  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  with  intent  to 

36  facilitate  a  racketeering  activity,  he  engages  in  any  conduct  constitut- 

37  ing  an  offense  under  a  section  in  subchapter  A  or  B  of  chapter  16. 

38  "(b)  Definition. — As  used  in  this  section,  'racketeering  activity' 

39  does  not  include  conduct  constituting  a  felony  under  section  1601  (Mur- 

40  der,  1602  (Manslaughter),  1611  (Maiming),  1612  (Aggravated  Bat- 


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1  tery),  or  1615   (Terrorizing),  or  under  a  state  statute  relating  to 

2  murder. 

3  "(c)  Grading. — An  offense  described  in  this  section  is  a  Class  D 

4  felony. 

5  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

6  described  in  this  section  if : 

7  "  (1)  the  United  States  mail  or  a  facility  of  interstate  or  foreign 

8  commerce  is  used  in  the  planning,  promotion,  management,  execu- 

9  tion,  consummation,  or  concealment  of  the  offense,  or  in  the 

10  distribution  of  the  proceeds  of  the  offense ;  or 

11  "(2)  movement  of  a  person  across  a  state  or  United  States 

12  boundary  occurs  in  the  planning,  promotion,  management,  execu- 

13  tion,  consummation,  or  concealment  of  the  offense  or  in  the  dis- 

14  tribution  of  the  proceeds  of  the  offense. 

15  "§  1806.  Definitions  for  Subchapter  A 

16  "As  used  in  this  subchapter : 

17  "(a)    'creditor'  means  a  person  who  makes  an  extension  of 

18  •  credit,  or  who  claims  by,  under,  or  through  a  person  making  an 

19  extension  of  credit ; 

20  "(b)  'debtor'  means  a  person  to  whom  an  extension  of  credit 

21  is  made,  or  a  person  who  guarantees  the  repayment  of  an  exten- 

22  sion  of  credit  or  who  undertakes  to  indemnify  the  creditor  against 

23  loss  from  a  failure  to  rejiay  the  extension  of  credit ; 

24  "  (c)  'extension  of  credit'  means  a  loan,  a  renewal  of  a  loan,  or 

25  a  tacit  or  express  agreement  concerning  the  deferment  of  the 

26  repayment  or  satisfaction  of  a  debt  or  claim,  however  the  loan 

27  or  renewal  or  agreement  arose,  whether  it  is  acknowledged  or 

28  disputed,  and  whether  it  is  valid  or  invalid ; 

29  "(d)  'extortionate  extension  of  credit'  means  an  extension  of 

30  credit  with  resjject  to  which  it  is  the  understanding  of  the  creditor 

31  and  the  debtor,  at  the  time  it  is  made,  that  delay  in  making  re- 

32  payment  or  failure  to  make  repayment  could  result  in  the  use  of 

33  force,  or  in  threatening  or  placing  any  person  in  fear  that  any 

34  person  will  be  subjected  to  bodily  injury,  kidnapping,  or  injury 

35  to  reputation,  or  that  any  property  will  be  damaged ; 

36  "(e)  'pattern  of  racketeering  activity'  means  two  or  more  sep- 

37  arate  acts  of  racketeering  activity,  at  least  one  of  which  oc- 

38  curred    after    the    effective    date    of    this    subchapter,    that 

39  have  the  same  or  similar  purposes,  results,  participants,  victims. 


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1  or  methods  of  commission,  or  otherwise  are  interrelated  by  dis- 

2  tinguishing  characteristics  and  are  not  isolated  events; 

3  "(f)  'racketeering  activity'  means : 

4  "(1)  conduct  constituting  a   felony   under  section   1321 

5  (Witness  Bribery),  1322  (Corrupting  a  Witness  or  an  In- 

6  formant) ,  1323  (Tampering  with  a  Witness  or  an  Informant) , 

7  1351    (Bribery),    1352    (Graft),    1403    (Alcohol    and   To- 

8  bacco  Tax  Offenses),  1411  (Smuggling),  1412  (Trafficking  in 

9  Smuggled  Property),  1601  (Murder),  1602  (Manslaughter), 

10  1611   (Maiming),  1612   (Aggravated  Battery),  1615   (Ter- 

11  rorizing),  1621   (Kidnapping),  1701   (Arson),  1711   (Bur- 

12  glary),l712  (Criminal Entry),  1721  (Robbery),  1722  (Extor- 

13  tion),  1723   (Blackmail),  1731    (Theft),  1732   (Trafficking 

14  in  Stolen  Property) ,  1734  (Executing  a  Fraudulent  Scheme) , 

15  1735    (Bankruptcy    Fraud),    1741    (Counterfeiting),    1742 

16  (Forgery),  1745    (Trafficking  in  a  Counterfeiting  Imple- 

17  ment),  1751  (Commercial  Bribery),  1752  (Labor  Bribery), 

18  1753    (Sports   Bribery),   1761    (Securities  Offenses),   1762 

19  (Monetary  Offenses),  1804  (Loansharking),  1811  (Traffick- 

20  ing  in  an  Opiate),  1812  (Trafficking  in  Drugs),  1821  (Explo- 

21  sives  Offenses),  1822  (Firearms  Offenses),  1841  (Engaging 

22  in  a  Gambling  Business) ,  or  1843  (Conducting  a  Prostitution 

23  Business) ; 

24  "(2)  conduct  constituting  a  felony  under  a  state  statute 

25  relating  to  murder,  kidnapping,  arson,  robbery,  bribery,  ex- 

26  tortion,  trafficking  in  narcotics  or  other  dangerous  drugs,  or 

27  engaging  in  a  gambling  business;  or 

28  "(3)  conduct  defined  as  'racketeering  activity'  in  former 

29  18U.S.C.  1961(1)  (B),  (C),or  (D)  (part  of  section  901(a) 

30  of  the  Organized  Crime  Control  Act  of  1970). 

31  "(g)  'racketeering  syndicate' means  a  group  of  five  or  more  per- 

32  sons  who,  individually  or  collectively,  engage  on  a  continuing 

33  basis  in  conduct  constituting  racketeering  activity,  other  than 

34  racketeering  activity  consisting  solely  of  conduct  constituting  a 

35  felony  under  section  1841  (Engaging  in  a  Gambling  Business)  or 

36  1843  (Conducting  a  Prostitution  Business)  or  under  the  law  of  a 

37  state  relating  to  engaging  in  a  gambling  business ; 

38  "(h)  'repayment'  includes  (1)  a  return,  in  whole  or  in  part,  of 

39  an  extension  of  credit,  and  (2)  a  payment  of  interest  on,  or  of  a 

40  charge  for,  an  extension  of  credit. 


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1  "Subchapter  B. — Drug  Offenses 

"Sec. 

"1811.  Trafficking  in  an  Opiate. 

"1812.  Trafficking  in  Drugs. 

"1813.  Possessing  Drugs. 

"1814.  Violating  a  Drug  Regulation. 

"1815,  General  Provisions  for  Subchapter  B. 

2  "§  1811.  Trafficking  in  an  Opiate 

3  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he: 

4  "(1)  manufactures  or  traffics  in  an  opiate ; 

5  "(2)  creates  or  traffics  in  a  counterfeit  substance  containing  an 

6  opiate ; 

7  "  (3)  imports  or  exports  an  opiate,  or  possesses  an  opiate  aboard 

8  a  vehicle  arriving  in  or  departing  from  the  United  States  or  the 

9  customs  territory  of  the  United  States ;  or 

10  "(4)  manufactures  or  traffics  in  an  opiate  for  import  into  the 

11  United  States. 

12  "(b)  Grading. — An  offense  described  in  this  section  is: 

13  "(1)  a  Class  B  felony  if: 

14  "(A)  the  opiate  weighs  100  grams  or  more ; 

15  "(B)  the  offense  consists  of  distributing  the  opiate  to  a 

16  person  who  is  less  than  eighteen  years  old  and  who  is  at  least 

17  five  years  younger  than  the  defendant ;  or 

18  "(C)  the  offense  is  committed  after  the  defendant  had  been 

19  convicted  of  a  felony  under  federal,  state,  or  foreign  law 

20  relating  to  an  opiate,  or  while  he  was  on  release  pending  trial 

21  for  an  offense  described  in  subsection  (a) ; 

22  "  ( 2 )  a  Class  C  felony  in  any  other  case. 

23  Notwithstanding  the  provisions  of  part  III  of  this  title,  the  court 

24  may  not  sentence  the  defendant  to  probation  but  shall  sentence  him 

25  to  a  term  of  imprisonment  of  not  less  than  two  years  and  to  a  term  of 

26  parole  ineligibility  of  not  less  than  two  years,  with  the  sentence  to 

27  run  consecutively  to  any  other  term  of  imprisonment  imposed  upon 

28  the  defendant,  unless  the  court  finds  that,  at  the  time  of  the  offense, 

29  the  defendant  was  less  than  eighteen  years  old ;  the  defendant's  mental 

30  capacity  was  significantly  impaired,  although  the  impairment  was  not 

31  such  as  to  constitute  a  defense  to  prosecution ;  the  defendant  was  under 

32  unusual  and  substantial  duress,  although  not  such  duress  as  would  con- 

33  stitute  a  defense  to  prosecution ;  or  the  defendant  was  an  accomplice, 

34  the  conduct  constituting  the  offense  was  principally  the  conduct  of 

35  another  person,  and  the  defendant's  participation  was  relatively  minor. 


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1  "§  1812.  Trafficking  in  Drugs 

2  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he: 

3  "(1)  manufactures  or  traffics  in  a  controlled  substance  other 

4  than  an  opiate ; 

5  "(2)  creates  or  traffics  in  a  counterfeit  substance  other  than  a 

6  counterfeit  substance  containing  an  opiate ; 

7  "(3)  imports  or  exports  a  controlled  substance  other  than  an 

8  opiate,  or  possesses  a  controlled  substance  other  than  an  opiate 

9  aboard  a  vehicle  arriving  in  or  departing  from  the  United  States 

10  or  the  customs  territory  of  the  United  States ;  or 

11  "(4)  manufactures  or  traffics  in  a  controlled  substance  other 

12  than  an  opiate,  and  other  than  a  substance  listed  in  Schedule  III, 

13  IV,  or  V,  for  import  into  the  United  States. 

14  "(b)  Grading. — An  offense  described  in  this  section  is: 

15  "(1)  a  Class  C  felony  if  the  controlled  substance  is  a  narcotic 

16  drug  listed  in  Schedule  I  or  II  other  than  an  opiate; 

17  "(2)  a  Class  D  felony  if  the  controlled  substance  is : 

18  "  (A)  a  substance  listed  in  Schedule  I  or  II  other  than : 

19  "(i)  a  narcotic  drug ;  or 

20  "  ( ii )  300  grams  or  less  of  marihuana ;  or 

21  "  (B )  a  substance  listed  in  Schedule  III ; 

22  "(3)  a  Class  E  felony  if  the  controlled  substance  is  a  substance 

23  listed  in  Schedule  IV ; 

24  "(4)   a  Class  A  misdemeanor  if  the  controlled  substance  is: 

25  "  ( A)  a  substance  listed  in  Schedule  V ;  or 

26  "(B)   100  to  300  grams  of  marijuana; 

27  "(5)  a  Class  B  misdemeanor  if  the  controlled  substance  is  less 

28  than  100  grams  of  mari  j  uana ; 

29  unless  the  offense  consists  of  distributing  the  controlled  substance  to 

30  a  person  who  is  less  than  eighteen  years  old  and  who  is  at  least  five 

31  years  younger  than  the  defendant,  in  whicli  case  the  offense  is  of  the 

32  class  next  above  that  otherwise  specified. 

38  "§  1813.  Possessing  Drugs 

34  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  possesses  a 

35  controlled  substance,  other  than  10  grams  or  less  of  marihuana. 

36  "(b)  Defense. — It  is  a  defense  to  a  prosecution  under  this  section 

37  that  the  controlled  substance  was  obtained  by  the  defendant  from, 
3g  or  pursuant  to  a  valid  prescription  or  order  issued  by,  a  practitioner 

39  acting  in  the  course  of  his  professional  practice. 


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1  "(c)  Grading. — An  offense  described  in  this  section  is: 

2  "  ( 1 )  a  Class  D  felony  if  the  controlled  substance  is  100  grams 

3  or  more  of  an  opiate ; 

4  "(2)  a  Class  A  misdemeanor  if  the  controlled  substance  is: 

5  "(A)  less  than  100  grams  of  an  opiate;  or 

6  "(B)  a  substance  other  than  an  opiate  or  marihuana; 

7  "(3)  a  Class  C  misdemeanor  in  any  other  case,  but,  notwith- 

8  standing  the  provisions  of  section  2201  (b)  or  (c) ,  the  authorized 

9  fine  is  $500. 

10  "§  1814.  Violating  a  Drug  Regulation 

11  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  violates: 

12  "(1)  section  402  (a)  or  (b)  of  the  Controlled  Substances  Act 

13  (21  U.S.C.  842(a)  or  (b) )  (relating  to  the  dispensing  and  manu- 

14  facturing  of  controlled  substances  by  registered  manufacturers, 

15  distributors,  and  dispensers  of  controlled  substances) ; 

16  "(2)  section  403(a)  (1),  (2),  (3),  or  (5)  of  the  Controlled  Sub- 

17  stances  Act  (21  U.S.C.  843(a)  (1),  (2),  (3),  or  (5))  (relating  to 

18  the  distribution  of  controlled  substances  by  registrants  and  the 

19  use  of  labeling  implements  to  render  a  drug  a  counterfeit  sub- 

20  stance) ;  or 

21  "(3)   section  1004  of  the  Controlled  Substances  Import  and 

22  Export  Act  (21  U.S.C.  954)    (relating  to  the  importation  for 

23  transshipment  to  another  country  of  controlled  substances) . 

24  "(b)  Grading. — An  offense  described  in  this  section  is : 

25  "(1)  a  Class  E  felony  in  the  circumstances  set  forth  in  sub- 

26  section  (a)  (2) ; 

27  "(2)  a  Class  A  misdemeanor  in  the  circumstances  set  forth  in 

28  subsection  (a)  (1)  or  (a)  (3). 

29  "§  1815.  General  Provisions  for  Subchapter  B 

30  "(a)  Definitions. — As  used  in  this  subchapter: 

31  "(1)  'controlled  substance',  'counterfeit  substance',  'distribute' 

32  (incorporated  through  the  definition  of  the  term  'traffic'  in  section 

33  111),  'manufacture',  'marihuana',  'narcotic  drug',  and  'practi- 

34  tioner'  have  the  meanings  set  forth  in  section  102  of  the  Controlled 

35  Substances  Act  (21  U.S.C.  802) ; 

36  "(2)   'customs  territory  of  the  United  States' has  the  meaning 

37  set  forth  in  section  1001  of  the  Controlled  Substances  Import  and 

38  Export  Act  (21  U.S.C.  951)  ; 

39  "(3)   'dispense'   (incorporated  through  the  definition  of  the 

40  term  'traffic'  in  section  111)  means  to  deliver  a  controlled  sub- 


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1  stance  to  an  ultimate  user  or  research  subject  by,  or  pursuant  to 

2  the  order  of,  a  practitioner,  and  includes  the  prescribing  or  ad- 

3  ministering  of  a  controlled  substance  and  the  packaging,  labelling, 

4  or  compounding  necessary  to  prepare  the  substance  for  such 

5  delivery ; 

6  "(4)  'import'  means  to  import  into  the  United  States  from  any 

7  place  outside  the  United  States,  or  into  the  customs  territory 

8  of  the  United  States  from  any  place  outside  the  customs  territory 

9  of  the  United  States  but  within  the  United  States ; 

10  "(5)  'opiate'  means  a  mixture  or  substance  containing  a  detect- 

11  able  amount  of  any  narcotic  drug  that  is  a  controlled  substance 

12  listed  in  Schedule  I  or  II,  other  than  a  narcotic  drug  consisting 

13  of  (A)  coca  leaves;  (B)  a  compound,  manufacture,  salt,  deriva- 

14  tive,  or  preparation  of  coca  leaves;  or  (C)  a  substance  chemically 

15  identical  thereto ; 

16  "(6)  'Schedule  I',  'Schedule  II',  'Schedule  III',  Schedule  IV', 

17  and  'Schedule  V  refer  to  the  schedules  of  controlled  substances 

18  established  by  section  202  of  the  Controlled  Substances  Act  (21 

19  U.S.C.812). 

20  "(b)  Defense. — It  is  a  defense  to  a  prosecution  under  section  1811, 

21  1812,  or  1813  that  the  actor's  conduct  was  auchorized  by  the  provisions 

22  of  the  Controlled  Substances  Act  (21  U.S.C.  801  et  seq.)  or  the  Con- 

23  trolled  Substances  Import  and  Export  Act  (21  U.S.C.  951  et  seq.). 

24  "Subchapter  C. — Explosives  and  Firearms  Offenses 

"Sec. 

"1821.  Explosives  Offenses. 

"1822.  Firearms  Offenses.  . 

"1823.  Using  a  Weapon  in  the  Course  of  a  Crime. 

"1824.  Possessing  a  Weapon  aboard  an  Aircraft. 

25  "§1821.  Explosives  Offenses 

26  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if  he : 

27  "(1)  transports  or  possesses  an  explosive  with  intent  that  it  be 

28  used,  or  with  knowledge  that  it  may  be  used,  to  commit  a  felony; 

29  "(2)   violates  a  provision  included  in  subsection  (a)  through 

30  (k)  of  section  1103  of  the  Organized  Crime  Control  Act  of  1970, 

31  as  amended  by  section  201  of  the  Criminal  Code  Reform  Act  of 

32  1977  (15  U.S.C. )   (relating  to  the  regulation  and  licensing 

33  of  the  business  of  importing,  manufacturing,  or  dealing  in  ex- 

34  plosive  materials) ;  v 

35  "(3)  violates: 

36  "(A)    section  4472(14)    of  the  Revised  Statutes  of  the 

37  United  States,  as  amended  (46  U.S.C.  170  (14) ) ; 


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1  "(B)  section  902(h)(2)   of  the  Federal  Aviation  Act  of 

2  1958,  as  amended  (49  U.S.C.  1472(h)  (2)) ;  or 

3  "(C)   section  110(b)   of  the  Hazardous  Materials  Trans- 

4  portation  Act  (49  U.S.C.  1809(b))  ;  or 

5  "(4)   possesses  an  explosive  in  a  government  building. 

6  "(b)  Definition. — As  used  in  this  section,  'explosive'  includes  a 

7  destructive  device ;  gunpowder,  smokeless  powder,  or  powder  used 

8  for  blasting  material ;  and  a  fuze ;  detonator,  or  other  detonating 

9  agent. 

10  "(c)  Defense. — It  is  a  defense  to  a  prosecution  under  subsection 

11  (a)  (4)  that  the  possession  was  in  conformity  with  the  written  con- 

12  sent  of  the  government  agency  or  person  responsible  for  the  manage- 

13  ment  of  such  building. 

14  "(d)  Grading. — An  offense  described  in  this  section  is : 

15  "(1)   a  Class  D  felony  in  the  circumstances  set  forth  in: 

16  "(A)  subsection  (a)  (1) ;  or 

17  "(B)  subsection  (a)(2)  if  the  violation  is  of  a  provision 

18  set  forth  in  subsection  (a)  through  (i)  of  section  1103  of  the 

19  Organized   Crime   Control  Act  of   1970,  as   amended    (15 

20  U.S.C.—); 

21  "(2)  a  Class  E  felony  in  the  circumstances  set  forth  in  sub- 

22  section  (a)  (3) ; 

23  "(3)  a  Class  A  misdemeanor  in  the  circumstances  set  forth  in: 

24  "(A)  subsection  (a)  (2)  if  the  violation  is  of  a  provision 

25  set  forth  in  subsection  (j)  or  (k)  of  section  1103  of  the  Orga- 

26  nized  Crime  Control  Act  of  1970,  as  amended  (15  U.S.C.  — )  ; 

27  or 

28  "(B)  subsection  (a)(4). 

29  "(e)   Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

30  described  in : 

31  "(1)  subsection  (a)(1)  if  the  explosive  is  being  transported, 

32  or  has  been  transported,  in  interstate  or  foreign  commerce; 

33  "(2)  subsection  (a)  (4)  if  the  building  is  owned  by,  or  is  under 

34  the  care,  custody,  or  control  of  the  United  States. 

35  "§  1822.  Firearms  Offenses 

36  "(a)   Offense. — A  person  is  guilty  of  an  offense  if  he: 

37  "(1)  transports  or  possesses  a  firearm  or  ammunition  with  in- 

38  tent  that  it  be  used,  or  with  knowledge  that  it  may  be  used,  to 

39  commit  a  felony ; 

40  "  (2)  violates  section  103  or  104  of  the  Gun  Control  Act  of  1968, 

41  as  amended  by  section  202  of  the  Criminal  Code  Keform  Act  of 


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1  1977  (15U.S.C. — )  (relating  to  the  regulation  and  licensing  of  the 

2  business  of  importing,  manufacturing,  or  dealing  in  firearms  or 

3  ammunition) ; 

4  "(3)  violates  section  5861  of  the  Internal  Kevenue  Code  of 

5  1954,  as  amended  (26  U.S.C.  5861)   (relating  to  the  registration 

6  of  importers,  manufacturers,  and  dealers  in  firearms  and  the  pay- 

7  ment  of  a  special  occupational  tax)  ;  or 

8  "(4)  violates  section  1202  of  the  Omnibus  Crime  Control  and 

9  Safe  Streets  Act  of  1968  (15  U.S.C.  — )   (relating  to  the  receipt, 

10  possession,  or  transportation  of  firearms  by  persons  prohibited 

11  from  engaging  in  such  conduct) . 

12  "(b)  DEFiNmoN. — As  used  in  this  section,  'firearm'  includes  a 

13  frame  or  receiver  of  a  firearm  and  a  firearm  silencer  or  muffler. 

14  "(c)  Grading. — An  offense  described  in  this  section  is : 

15  "(1)  a  Class  D  felony  in  the  circumstances  set  forth  in  subsec- 

16  tion(a)(l),(a)(2),or(a)(3); 

17  "(2)  a  Class  E  felony  in  the  circumstances  set  forth  in  subsec- 

18  tion  (a)(4). 

19  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

20  described  in  subsection  (a)  (1)  if  the  firearm  or  ammunition  is  being 

21  transported,  or  has  been  transported,  in  interstate  or  foreign  commerce. 

22  "§  1823.  Using  a  Weapon  in  the  Course  of  a  Crime 

23  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  during  the  com- 

24  mission  of  a  crime,  he : 

25  "  ( 1 )  displays  or  otherwise  uses  a  firearm  or  a  destructive  device ; 

26  "(2)  possesses  a  firearm  or  a  destructive  device;  or 

27  "  (3)  displays  or  otherwise  uses : 

28  "  (A)  a  dangerous  weapon  other  than  a  firearm  or  a  destruc- 

29  tive  device ;  or 

30  "(B)  an  imitation  of  a  firearm  or  a  destructive  device. 

31  "  (b)  Grading. — An  offense  described  in  this  section  is : 

32  "(1)  a  Class  D  felony  in  the  circumstances  set  forth  in  subsec- 

33  tion  (a)(1); 

34  "(2)  a  Class  E  felony  in  the  circumstances  set  forth  in  subsec- 

35  tion  (a)  (2)  or  (a)(3). 

36  Notwithstanding  the  provisions  of  part  III  of  this  title,  if  the  offense 

37  is  committed  in  the  circumstance  set  forth  in  subsection  (a)(1)  or 

38  (a)  (2)  the  court  may  not  sentence  the  defendant  to  probation  but  shall 

39  sentence  him  to  a  term  of  imprisonment  of  not  less  than  two  years 

40  for  an  offense  described  in  subsection   (a)(1)   or  one  year  for  an 


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1  offense  described  in  subsection  (a)(2)  and  to  a  term  of  parole  ineligi- 

2  bility  of  not  less  than  two  years  for  an  offense  described  in  subsection 

3  (a)  (1)  or  one  year  for  an  offense  described  in  subsection  (a)  (2),  with 

4  the  sentence  to  run  consecutively  to  any  other  term  of  imprisonment 

5  imposed  upon  the  defendant,  unless  the  court  finds  that,  at  the  time 

6  of  the  offense,  the  defendant  was  less  than  eighteen  years  old;  the 

7  defendant's  mental  capacity  was  significantly  impaired,  although  the 

8  impairment  was  not  such  as  to  constitute  a  defense  to  prosecution ;  the 

9  defendant  was  under  unusual  and  substantial  duress,  although  not 
10  such  duress  as  would  constitute  a  defense  to  prosecution;  or  the  de- 
ll fendant  was  an  accomplice,  the  conduct  constituting  the  offense  was 

12  principally  the  conduct  of  another  person,  and  the  defendant's  partici- 

13  pation  was  relatively  minor. 

14  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

15  described  in  this  section  if  the  offense  occurs  during  the  commission 

16  of  any  other  offense  described  in  this  title  over  which  federal  jurisdic- 

17  tion  exists. 

18  "§  1824.  Possessing  a  'Weapon  aboard  an  Aircraft 

19  "(a)   Offense. — A  person  is  guilty  of  an  offense  if  he  possesses  or 

20  secretes  aboard  an  aircraft : 

21  "(1)   a  dangerous  weapon,  other  than  a  destructive  device,  that 

22  in  fact  is  concealed  and  that  is,  or  that  would  be,  accessible  to  such 

23  person  in  flight ;  or 

24  "(2)  a  destructive  device  that  in  fact  is  concealed. 

25  "(b)   Defense. — It  is  a  defense  to  a  prosecution  under  this  section 

26  that  the  actor's  conduct  was  authorized  under  a  regulation  issued  by 

27  the  Administrator  of  the  Federal  Aviation  Agency. 

28  "(c)   Grading. — An  offense  described  in  this  section  is  a  Class  A 

29  misdemeanor. 

30  "(d)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

31  described  in  this  section  if  the  offense  is  committed  on  an  aircraft  in, 

32  or  intended  for  operation  in,  air  transportation  or  intrastate  air  trans- 

33  portation  as  defined  in  section  101  of  the  Federal  Aviation  Act  of  1958, 

34  as  amended  (49  U.S.C.  1301). 

35  "Subchapter  D. — Riot  Offenses 

"Sec. 

"1831.  Leading  a  Riot. 

"1832.  Providing  Arms  for  a  Riot. 

"1833.  Engaging  in  a  Riot. 

"1834.  Definitions  for  Subchapter  D. 


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1  "§  1831.  Leading  a  Riot 

2  "(a)  Offense. — A  person  is  guilty  of  an  offense  if : 

3  "(1)  he  causes  a  riot  by  incitement,  or  during  a  riot  he  incites 

4  participation  in  the  riot ;  or 

5  "(2)   during  a  riot  he  urges  participation  in,  leads,  or  gives 

6  commands,  instructions,  or  directions  in  furtherance  of,  the  riot. 

7  "(b)  Grading. — An  offense  described  in  this  section  is : 

8  "  ( 1 )  a  Class  D  felony  if  the  riot  involves  persons  in  a  facility 

9  used  for  official  detention ; 

10  "  (2)   a  Class  E  felony  in  any  other  case. 

11  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

12  described  in  this  section  if : 

13  "(1)  the  offense  is  committed  within  the  special  jurisdiction  of 

14  the  United  States ; 

15  "(2)  the  riot  involves  persons  in  a  federal  facility  used  for 

16  official  detention ;  or 

17  "(3)  movement  of  a  person  across  a  state  or  United  States 

18  boundary  occurs  in  the  execution  or  consummation  of  the  offense. 

19  "§  1832.  Providing  Arms  for  a  Riot 

20  "(a)  Offense. — A  person  is  guilty  of  an  offense,  if,  with  intent  to 

21  promote  a  riot,  he  supplies,  or  t«aches  the  preparation  or  use  of,  a 

22  firearm,  a  destructive  device,  or  another  dangerous  weapon. 

23  "(b)  Grading. — An  offense  described  in  this  section  is : 

24  "(1)  a  Class  D  felony  if  it  involves  the  supplying  of  a  firearm 

25  or  a  destructive  device ; 

26  "  (2)  a  Class  E  felony  in  any  other  case. 

27  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

28  described  in  this  section  if : 

29  "  (1 )  a  circumstance  specified  in  section  1831  (c)  exists  or  has  oc- 

30  curred;  or 

31  "(2)  the  firearm,  destructive  device,  or  other  dangerous  weapon 

32  supplied  is  moved  across  a  state  or  United  States  boundary  in  the 

33  commission  of  the  offense. 

34  "§  1833.  Engaging  in  a  Riot 

35  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  engages  in 

36  a  riot. 

37  "  (b)  Grading. — An  offense  described  in  this  section  is : 

38  "(1)  a  Class  A  misdemeanor  if  the  riot  involves  persons  in  a 

39  facility  used  for  official  detention ; 

40  "  (2)  a  Class  B  misdemeanor  in  any  other  case. 

.if 


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1  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

2  described  in  this  section  if : 

3  "(1)  the  offense  is  committed  within  the  special  jurisdiction 

4  of  the  United  States ; 

5  "(2)  the  offense  is  committed  in  a  federal  facility  used  for  of- 

6  ficial  detention;  or 

7  "  ( 3 )  the  riot  obstructs  a  federal  government  function. 

8  "§  1834.  Definition  for  Subchapter  D 

9  "As  used  in  this  subchapter,  'riot'  means  a  public  disturbance  (a) 

10  that  involves  ten  or  more  persons  as  participants;  (b)  that  involves 

11  violent  and  tumultuous  conduct  on  the  part  of  the  participants;  and 

12  (c)  that  causes,  or  creates  a  grave  danger  of  imminently  causing, 

13  injury  to  persons  or  damage  to  property.  'Eiot'  does  not  include  or- 

14  derly  and  lawful  conduct  for  the  purpose  of  pursuing  the  legitimate 

15  objectives  of  organized  labor. 

16  "Subchapter  E.— Gambling,  Obscenity,  and  Prostitution  Offenses 

"Sec. 

"1841.  Engaging  in  a  Gambling  Business. 
"1842.  Disseminating  Obscene  Material. 
"1843.  Conducting  a  Prostitution  Business. 

17  "§1841.  Engaging  in  a  Gambling  Business 

18  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he: 

19  "(1)  owns,   controls,  manages,   supervises,   directs,   conducts, 

20  finances,  or  otherwise  engages  in  a  gambling  business ; 

21  "(2)   receives  lay-off  wagers  or  otherwise  provides  reinsurance 

22  in  relation  to  persons  engaged  in  gambling ; 

23  "(3)  carries  or  sends : 

24  "(A)   a  gambling  device ; 

25  "(B)  gambling  information ;  or 

26  "(C)  gambling  proceeds ; 

27  from  within  a  state  to  any  place  outside  the  state ;  or 

28  "  (4)  otherwise  establishes,  promotes,  manages,  or  carries  on  an 

29  enterprise  involving  gambling. 

30  "(b)  Definitions. — As  used  in  this  section : 

31  "(1)  'gambling  business' means  a  business  involving  gamblmg 

32  of  any  kind  that,  m  fact : 

33  "  (A)  has  five  or  more  persons  engaged  in  the  business ;  and 

34  "(B)  has  been  in  substantially  continuous  operation  for  a 

35  period  of  thirty  days  or  more,  or  has  taken  in  $2,000  or  more 

36  in  any  single  day ; 


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1  "(2)  'gambling  device' means : 

2  "(-A.)  any  device  covered  by  section  1  of  the  Act  of  January 

3  2,  1951,  as  amended  (15  U.S.C.  1171),  and  not  excluded  by 

4  section  9  (2)  or  (3)  of  the  Act  of  January  2,  1951,  as  added 

5  by  section  6  of  the  Gambling  Devices  Act  of  1962  (15  U.S.C. 

6  1178  (2)  or  (3) ) ;  or 

7  "(B)   any  record,  paraphernalia,  ticket,  certificate,  bill, 

8  slip,  token,  writing,  scratch  sheet,  or  other  means  of  carry- 

9  ing  on  bookmaking,  wagering  pools,  bingo  or  keno  games,  lot- 

10  teries,  policy,  bolita,  numbers,  or  similar  games,  or  any  equip- 

11  ment  for  carrying  on  card  or  dice  games  other  than  cards  or 

12  dice  used  in  such  games ; 

13  "(3)  'gambling  information'  means  information  consisting  of, 

14  or  assisting  in,  the  placing  of  a  bet  or  wager,  or  the  purchase  of  a 

15  ticket  in  a  lottery  or  similar  game  of  chance. 

16  "  (c)  Defense. — It  is  a  defense  to  a  prosecution : 

17  "(1)  under  subsection  (a)  (1),  (a)  (2),  or  (a)  (4)  that  the  kind 

18  of  gambling  business  or  enterprise,  the  manner  in  which  the  busi- 

19  ness  or  enterprise  was  operated,  and  the  defendant's  participation 

20  therein,  were  legal  in  all  states  and  localities  in  which  it  was 

21  carried  on,  including  any  state  and  locality  from  which  a  customer 

22  placed  a  wager  with,  or  otherwise  patronized,  the  gambling  busi- 

23  ness  or  enterprise,  and  any  state  and  locality  in  which  the  wager 

24  was  received  or  to  which  it  was  transmitted. 

25  "(2)  under  subsection  (a)  (3)  that: 

26  "(A)  the  gambling  device  was  carried  or  sent  into,  or  was 

27  en  route  to,  solely  a  state  and  locality  in  which  the  use  of 

28  such  a  device  was  legal ; 

29  "(B)  the  defendant  was  a  common  or  public  contract  car- 

30  rier,  or  an  employee  thereof,  and  was  carrying  the  gambling 

31  device  in  the  usual  course  of  business ; 

32  "(C)  the  defendant  was  a  player  or  bettor  and  the  gambling 

33  device  he  was  carrying  or  sending  was  solely  a  ticket  or  other 

34  embodiment  of  his  claim ; 

35  "(D)  the  transmission  of  the  gambling  information  was 

36  made  solely  in  connection  with  news  reporting ; 

37  "(E)  the  transmission  of  the  gambling  information  was 

38  solely  from  a  state  and  locality  in  which  such  gambling  was 

39  legal  into  a  state  and  locality  in  which  such  gambling  was 

40  legal ;  or 


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1  "(F)  the  gambling  proceeds  were  obtained  by  the  defendant 

2  as  a  result  of  his  lawful  participation  in  gambling  which  was 

3  legal  in  all  states  and  localities  in  which  it  was  carried  on, 

4  including  any  state  and  locality  from  which  the  defendant 

5  placed  a  wager  or  otherwise  participated  in  gambling  activity, 

6  and  any  state  and  locality  in  which  his  wager  was  received 

7  or  to  which  it  was  transmitted. 

8  "(d)  Establishing  Probable  Cause. — If  five  or  more  persons  are 

9  engaged  in  a  gambling  business,  and  such  business  operates  for  two 

10  or  more  successive  days,  then,  solely  for  the  purpose  of  obtaining  war- 

11  rants  for  arrests,  interceptions  of  communications,  and  other  searches 

12  and  seizures,  probable  cause  that  the  business  has  taken  in  $2,000  or 

13  more  in  any  single  day  shall  be  considered  to  be  established. 

14  "(e)  Grading. — An  offense  described  in  this  section  is : 

15  "(1)  a  Class  D  felony  in  the  circumstances  set  forth  in  subsec- 

16  tion  (a)(1)  or  (a)(2); 

17  "(2)  a  Class  E  felony  in  the  circumstances  set  forth  in  subsec- 

18  tion  (a)(3)  or  (a)(4). 

19  "(f)   Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

20  described  in : 

21  "(1)  subsection  (a)(1)  or  (a)(2)  if  the  offense  is  committed : 

22  "(A)   within  the  general  jurisdiction  of  the  United  States; 

23  "(B)  within  the  special  jurisdiction  of  the  United  States; 

24  or 

25  "(C)  within  the  extraterritorial  jurisdiction  of  the  United 

26  States  to  the  extent  applicable  under  section  204 ; 

27  " (2)  subsection  (a)  (3)  or  (a)  (4)  if : 

28  "(-A-)  the  United  States  mail  or  a  facility  of  interstate  or 

29  foreign  commerce  is  used  in  the  planning,  promotion,  man- 

30  agement,  execution,  consummation,  or  concealment  of  the  of- 

31  fense,  or  in  the  distribution  of  the  proceeds  of  the  offense ;  or 

32  "(B)   movement  of  any  person  across  a  state  or  United 

33  States  boundary  occurs  in  the  planning,  promotion,  manage- 

34  raent,  execution,  consummation,  or  concealment  of  the  offense, 

35  or  in  the  distribution  of  the  proceeds  of  the  offense. 

36  "§  1842.  Disseminating  Obscene  Material 

37  "(a)   Offense. — A  person  is  guilty  of  an  offense  if  he : 

38  "  ( 1 )  disseminates  obscene  material : 

39  "(A)  to  a  minor;  or 


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1  "(B)  to  any  person  in  a  manner  affording  no  immediately 

2  effective  opportunity  to  avoid  exposure  to  such  material ;  or 

3  "  (2)  commercially  disseminates  obscene  material  to  any  person. 

4  (b)  Definitions. — As  used  in  this  section : 

5  "(1)  'commercially    disseminate'    means   to    disseminate    for 

6  profit ; 

7  "(2)  'disseminate' means : 

8  "(A)  to  transfer,  distribute,  dispense,  lend,  display,  ex- 

9  hibit,  send,  or  broadcast,  whether  for  profit  or  otherwise ;  or 

10  "(B)  to  produce,  transport,  or  possess  with  intent  to  do  any 

11  of  the  foregoing ; 

12  "(3)  'minor'  means  an  unmarried  person  less  than  seventeen 

13  years  old ; 

14  "(4)  'obscene  material' means  material  that : 

15  "(A.)  sets  forth  in  a  patently  offensive  way : 

16  "(i)  an  explicit  representation,  or  a  detailed  written 

17  or  verbal  description,  of  an  act  of  sexual  intercourse,  in- 

18  eluding    genital-genital,    anal-genital,    or    oral-genital 

19  intercourse,  whether  between  human  beings  or  between  a 

20  human  being  and  an  animal;  of  masturbation;  or  of 

21  flagellation,  torture,  or  othei-  violence  indicating  a  sado- 

22  masochistic  sexual  relationship ;  or 

23  "(ii)  an  explicit,  close-up  representation  of  a  human 

24  genital  organ ; 

25  "(B)  taken  as  a  whole,  appeals  predominantly  to  the  pru- 

26  rient  interest  of : 

27  "(i)  the  average  person,  applying  contemporary  com- 

28  munity  standards ;  or 

29  "(ii)  the  average  person  within  a  sexually  deviant 

30  class  of  persons,  if  such  material  is  designed  for,  and  is 

31  primarily  disseminated  to,  such  class  of  persons ;  and 

32  "(C)  taken  as  a  whole,  lacks  serious  artistic,  scientific,  lit- 

33  erary,  or  political  value. 

34  "(c)  Affirmative  Defenses. — It  is  an  affirmative  defense  to  a  pros- 

35  ecution  under  this  section  that  dissemination  of  the  material  was 

36  restricted  to : 

37  "(1)  a  person  associated  with  an  institution  of  higher  leam- 

38  ing,  either  as  a  member  of  the  faculty  or  as  an  enrolled  student, 

39  teaching  or  pursuing  a  bona  fide  course  of  study,  or  conducting  or 


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1  engaging  in  a  bona  fide  research  program,  to  which  such  material 

2  is  pertinent ;  or 

3  "(2)  a  person  whose  receipt  of  such  material  was  authorized  in 

4  writing  by  a  licensed  or  certified  psychiatrist,  psychologist,  or 

5  medical  practitioner. 

6  "(d)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

7  felony. 

8  "(e)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

9  described  in  this  section  if : 

10  "(1)  the  offense  is  committed  within  the  special  jurisdiction  of 

11  the  United  States ; 

12  "(2)  the  United  States  mail  or  a  facility  in  interstate  or  for- 

13  eign  commerce  is  used  in  the  commission  of  the  offense ;  or 

14  "(3)   the  material  is  moved  across  a  state  or  United  States 

15  boundary. 

16  "§1843.  Conducting  a  Prostitution  Business 

17  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if  he  owns,  controls, 

18  manages,  supervises,  directs,  finances,  procures  patrons  for,  or  recruits 

19  participants  in,  a  prostitution  business. 

20  "  (b)  Definitions. — As  used  in  this  section : 

21  "(1)  'prostitution'  means  engaging  in  a  sexual  act,  as  defined  in 

22  section  1646(a)  (1),  as  consideration  for  anything  of  pecuniary 

23  value ; 

24  "(2)  'prostitution  business'  means  a  business  in  which  a  person 

25  controls,  manages,  supervises,  or  directs  the  prostitution  of  an- 

26  other  person. 

27  "(c)  Defense. — It  is  a  defense  to  a  prosecution  under  this  section 

28  that  the  prostitution  business  and  the  prostitution  involved  was  legal 

29  in  all  states  and  localites  in  which  it  was  carried  on. 

30  "(d)  Grading. — An  offense  described  in  this  section  is : 

31  "(1)  a  Class  D  felony  if  the  business  involves  prostitution,  or 

32  recruiting  for  prostitution,  of  a  person  less  than  eighteen  years 

33  old; 

34  "  (2)  a  Class  E  felony  in  any  other  case. 

35  "(e)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

36  described  in  this  section  if : 

37  "(1)  the  offense  is  committed  within  the  special  jurisdiction  of 

38  the  United  States ; 


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1  "  (2)  the  United  States  mail  or  a  facility  of  interstate  or  foreign 

2  commerce  is  used  in  the  planning,  promotion,  management,  execu- 

3  tion,  consummation,  or  concealment  of  the  offense,  or  in  the  dis- 

4  tribution  of  the  proceeds  of  the  offense ;  or 

5  "(3)  movement  of  any  person  across  a  state  or  United  States 

6  boundary  occurs  in  the  planning,  promotion,  management,  execu- 

7  tion,  consummation,  or  concealment  of  the  offense,  or  in  the  dis- 

8  tribution  of  the  proceeds  of  the  offense. 

9  "Subchapter  F.— Public  Health  Offenses 

"Sec. 

"1851.  Fraud  in  a  Health  Related  Industry. 
"1852.  Distributing  Adulterated  Food. 
"1853.  Environmental  Pollution. 

10  "§  1851.  Fraud  in  a  Health  Related  Industry 

11  "(a)  Offense. — A  person  is  guilty  of  an  offense  if,  with  intent  to 

12  defraud,  he  violates : 

13  "(1)  section  9,  10,  11, 14,  or  17  of  the  Poultry  Products  Inspec- 

14  tion  Act,  as  amended   (21  U.S.C.  458,  459,  460 ,  463,  or  406) 

15  (relating  to  the  marking,  labeling,  and  packaging  of  poultry  and 

16  poultry  products)  ; 

17  "(2)  section  10, 11, 19, 20,  24,  201,  202, 203,  or  204  of  the  Federal 

18  Meat  Inspection  Act,  as  amended  (21  U.S.C.  610, 611, 619, 620, 624, 

19  641,  642,  643,  or  644)  (relating  to  the  marking,  labeling,  and  pack- 

20  3.ging  of  meat  and  meat  products)  ; 

21  "(3)  section  8  of  the  Egg  Products  Inspection  Act,  as  amended 

22  (21  U.S.C.  1037)    (relating  to  the  marking,  labeling,  and  pack- 

23  agiiig  of  sggs  and  egg  products) ;  or 

24  "(4)  section  301  of  the  Federal  Food,  Drug,  and  Cosmetic  Act, 

25  as  amended  (21  U.S.C.  331)  (relating  to  the  adulteration  and  mis- 

26  branding  of  a  food,  drug,  device,  or  cosmetic) . 

27  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  E 

28  felony. 

29  "§1852.  Distributing  Adulterated  Food 

30  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  in  the  distribu- 

31  tion  of  an  adulterated  article  he  violates : 

32  "(1)  section  9, 10, 11, 14,  or  17  of  the  Poultry  Products  Inspec- 

33  tion  Act,  as  amended  (21  U.S.C.  458, 459,  460,  463,  or  466)  (relat- 

34  ing  to  the  distribution  of  adulterated  poultry  and  poultry  prod- 

35  nets) ; 

36  "  (2)  section  10, 11, 19, 20,  24, 201, 202, 203,  or  204  of  the  Federal 

37  Meat  Inspection  Act,  as  amended  (21  U.S.C.  610,  611,  619,  620, 


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1  621,  641,  642,  643,  or  644)   (relating  to  the  distribution  of  adulter- 

2  ated  meat  and  meat  products) ;  or 

3  "  (3)  section  8  of  the  Egg  Products  Inspection  Act,  as  amended 

4  (21  U.S.C.  1037)  (relating  to  the  distribution  of  adulterated  eggs 

5  and  egg  products). 

6  "(b)  Definition. — The  term  'adulterated',  as  used : 

7  "(1)   in  subsection  (a)  (1)  has  the  meaning  set  forth  in  section 

8  'i(g)   of  the  Poultry  Products  Inspection  Act,  as  amended  (21 

9  U.S.C.  453(g)),  except  for  paragraph  8  thereof; 

10  "(2)  in  subsection  (a)  (2)  has  the  meaning  set  forth  in  section 

11  2(m)  of  the  Federal  Meat  Inspection  Act,  as  amended  (21  U.S.C. 

12  601  (m) ),  except  for  paragraph  8  thereof; 

13  "(3)   in  subsection  (a)  (3)  has  the  meaning  set  forth  in  section 

14  4(a)  of  the  Egg  Products  Inspection  Act,  as  amended  (21  U.S.C. 

15  1033(a) ),  except  for  paragraph  8  thereof. 

16  "(c)   Grading. — An  offense  described  in  this  section  is  a  Class  E 

17  felony. 

18  "§1853.  Environmental  Pollution 

19  "(a)   Offense. — A  person  is  guilty  of  an  offense  if  he  violates: 

20  "(1)   section  309(c)(1)  of  the  Federal  Water  Pollution  Con- 

21  trol  Act,  as  added  by  section  2  of  the  Act  of  October  18,  1972 

22  (33  U.S.C.  1319(c)  (1) )   (relating  to  the  control  of  water  poUu- 

23  tion  and  to  permit  conditions  and  limitations  on  water  pollu- 

24  tion)  ; 

25  "(2)   section  113(c)(1)   of  the  Clean  Air  Act,  as  added  by 

26  section  4(a)   of  the  Clean  Air  Act  Amendments  of  1970,  and 

27  amended  (42  U.S.C.  1857c-8(c)  (1) )  (relating  to  clean  air  stand- 

28  ards  and  implementation  plans  and  orders  of  the  Administrator 

29  under  the  Clean  Air  Act)  ; 

30  "  (3)   section  11(a)  of  the  Noise  Control  Act  of  1972,  as  amended 

31  (42  U.S.C.  4910(a) )   (relating  to  the  manufacture,  sale,  and  im- 

32  portation  of  products  that  violate  noise  emission  standards)  ;  or 

33  "(4)    section  3008(d)   of  the  Solid  Waste  Disposal  Act   (42 

34  U.S.C.  692(d))   (relating  to  transportation  and  disposal  of  haz- 

35  ardous  waste). 

36  "(b)  Grading. — An  offense  described  in  this  section  is  a  Class  A 

37  misdemeanor  in  the  circumstances  set  forth  in: 

38  "(1)  subsection  (a)  (1),  unless  prior  to  the  commission  of  the 

39  offense  the  defendant  has  been  convicted  of  an  offense  described 


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1  in  subsection  (a)  (1) ,  in  which  case  the  offense  is  a  Class  E  felony. 

2  "(2)   subsection  (a)  (2),  unless  prior  to  the  commission  of  the 

3  offense  the  defendant  has  been  convicted  of  an  offense  described 

4  in  subsection  (a)  (2) ,  in  which  case  the  offense  is  a  Class  E  felony ; 

5  "(3)  subsection  (a)  (3),  unless  prior  to  the  commission  of  the 

6  offense  the  defendant  has  been  convicted  of  an  offense  described 

7  in  subsection  (a)  (3) ,  in  which  case  the  offense  is  a  Class  E  felony ; 

8  "(4)   subsection  (a)  (4),  unless  prior  to  the  commission  of  the 

9  offense  the  defendant  has  been  convicted  of  an  offense  described  in 

10  subsection  (a)  (4),  in  which  case  the  offense  is  a  Class  E  felony. 

11  Notwithstanding  the  provisions  of  section  2201(b),  the  maximum 

12  fine  for  a  Class  A  misdemeanor  described  in  this  section  is  $25,000 

13  per  day  of  violation  or  the  maximum  fine  otherwise  available  under 

14  section  2201  (b)  or  (c),  whichever  is  higher,  and  the  maximum  fine 

15  for  a  Class  E  felony  described  in  this  section  is  $50,000  per  day  of 

16  violation  or  the  maximum  fine  otherwise  available  under  section  2201 

17  (b)  or  (c),  whichever  is  higher. 

18  "Subchapter  G. — Miscellaneous  Offenses 

"Sec. 

"1861.  Failing  to  Obey  a  Public  Safety  Order. 

"1862.  Violating  State  or  Local  Law  in  an  Enclave. 

19  "§  1861.  Failing  to  Obey  a  Public  Safety  Order 

20  "(a)  Offense. — A  person  is  guilty  of  an  offense  if  he  disobeys  an 

21  order  of  a  public  servant  to  move,  disperse,  or  refrain  from  specified 

22  activity  in  a  particular  place,  and  the  order: 

23  "  ( 1 )  is  issued  in  response  to  a  fire,  flood,  riot,  or  other  condition 

24  that  creates  a  risk  of  serious  injury  to  a  person  or  serious  damage 

25  to  property;  and 

26  "(2)   is,  in  fact,  lawful  and  reasonably  designed  to  prevent 

27  serious  bodily  injury  to  a  person  or  serious  damage  to  property. 

28  "(b)  Grading. — An  offense  described  in  this  section  is  an  infraction. 

29  "(c)  Jurisdiction. — There  is  federal  jurisdiction  over  an  offense 

30  described  in  this  section  if : 

31  "(1)  the  offense  is  committed  within  the  special  jurisdiction  of 

32  the  United  States ;  or 

33  "  (2)  the  public  servant  is  a  federal  public  servant. 

34  "§  1862.  Violating  State  or  Local  Law  in  an  Enclave 

35  "  (a)  Offense. — A  person  is  guilty  of  an  offense  if,  in  a  place  within 

36  the  special  territorial  jurisdiction  of  the  United  States  as  described  in 

37  section  203(a)  (1),  (a)  (2),  or  (a)  (3),  he  engages  in  conduct: 

38  "(1)  that  constitutes  an  offense  under  the  law  then  in  force 

39  in  the  state  or  locality  in  which  §uch  place  is  located ; 


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1  "(2)  that  does  not  otherwise  constitute  an  offense  under  a  fed- 

2  eral  statute  applicable  in  such  place ;  and 

3  "(3)  that,  in  light  of  other  federal  statutes  relating  to  similar 

4  conduct,  was  not  intended  to  be  excluded  from  the  application 

5  of  this  section. 

6  "(b)  Grading. — ^^An  offense  described  in  this  section  is : 

7  "  (1)  a  Class  A  misdemeanor  if  the  maximum  term  of  imprison- 

8  ment  authorized  by  the  state  or  local  law  is  one  year  or  more ;  or 

9  "(2)  a  misdemeanor  or  infraction  of  the  lowest  class  for  which 

10  there  is  authorized  under  chapter  23  a  term  of  imprisonment 

11  equal  to  or  exceeding  the  maximum  term  authorized  by  the  state 

12  or  local  law  if  the  maximum  term  of  imprisonment  authorized 

13  by  the  state  or  local  law  is  less  than  one  year. 

14  Notwithstanding  the  classification  provided  in  this  section,  the  term 

15  of  imprisonment  and  the  fine  that  may  be  imposed  may  not  exceed  the 

16  maximum  authorized  by  the  state  or  local  law. 

17  "(c)    Proof.  In  a  prosecution  under  this  section  whether  a  law 

18  is  'then  in  force'  under  subsection  (a)  (1),  or  an  issue  under  subsec- 

19  tion  (a)  (2)  or  (a)  (3),  is  a  question  of  law. 

20  "PART  III.— SENTENCES 

"Chapter 

"20.  General  Provisions. 

"21.  Probation. 

"22.  Fines. 

"23.  Imprisonment. 

21  "Chapter  20.— GENERAL  PROVISIONS 

"Sec. 

"2001.  Authorized  Sentences. 
"2002.  Presentence  Reports. 
"2003.  Imposition  of  a  Sentence. 
"2004.  Order  of  Criminal  Forfeiture. 
"2005.  Order  of  Notice  to  Victims. 
"2006.  Order  of  Restitution. 
"2007.  Review  of  a  Sentence. 
"200S.  Implementation  of  a  Sentence. 

22  "§2001.  Authorized  Sentences 

23  "(a)   In  General. — Except  as  otherwise  specifically  provided,  a 

24  defendant  who  has  been  found  guilty  of  an  offense  described  in  any 

25  federal  statute  shall  be  sentenced  in  accordance  with  the  provisions 

26  of  this  chapter  so  as  to  achieve  the  purposes  set  forth  in  paragraphs  ( 1 ) 

27  through  (4)  of  section  101  (b) . 

28  "(b)  Individuals. — An  individual  found  guilty  of  an  offense  shall 

29  be  sentenced,  in  accordance  with  the  provisions  of  section  2003,  to : 

30  "  ( 1 )  probation  as  authorized  by  chapter  21 ; 

31  "(2)  a  fine  as  authorized  by  chapter  22;  or 

32  "(3)   a  term  of  imprisonment  as  authorized  by  chapter  23. 


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1  A  sentence  to  pay  a  fine  may  be  imposed  in  addition  to  any  other 

2  sentence. 

3  "(c)  Organizations. — An  organization  found  guilty  of  an  offense 

4  shall   be   sentenced,   in   accordance   with   the  provisions  of  section 

5  2003,  to: 

6  "  (1)  probation  as  authorized  by  chapter  21 ;  or 

7  "  (2)  a  fine  as  authorized  by  chapter  22. 

8  A  sentence  to  pay  a  fine  may  be  imposed  in  addition  to  a  sentence  to 

9  probation. 

10  "§2002.  Presentence  Reports 

11  "(a)  Presentence  Investigation  and  Report  by  Probation  Offi- 

12  CER. — A  probation  officer  appointed  by  the  court  shall  make  a  presen- 

13  tence  investigation  of  a  defendant  found  guilty  of  an  offense  and 

14  shall  report  the  results  of  the  investigation  to  the  court  before  the 

15  imposition  of  sentence,  pursuant  to  the  provisions  of  Rule  32(c)  of 

16  the  Federal  Rules  of  Criminal  Procedure. 

17  "(b)  Presentence  Study  and  Report  by  Bureau  of  Prisons. — If 

18  the  court,  before  or  after  its  receipt  of  a  report  specified  in  subsection 

19  (a)  or  (c),  desires  more  information  than  is  otherwise  available  to 

20  it  as  a  basis  for  determining  the  sentence  to  be  imposed  on  a  defendant 

21  found  guilty  of  a  felony,  it  may  order  that  the  defendant  be  com- 

22  mitted  to  the  custody  of  the  Bureau  of  Prisons  for  a  period  of 

23  not  more  than  sixty  days.  Such  an  order  constitutes  a  provisional 

24  sentence  of  imprisonment  for  the  maximum  term  authorized  by  sec- 

25  tion  2301(b)  for  the  offense  committed.  The  Bureau  shall  conduct  a 

26  complete  sudy  of  the  defendant  during  such  period,  inquiring  into 

27  such  matters  as  the  defendant's  previous  deliquency  or  criminal  ex- 

28  periences;  his  social  background;  his  capabilities;  his  mental,  emo- 

29  tional,  and  physical  health;  and  the  rehabilitative  resources  or  pro- 

30  grams  that  may  be  available  to  suit  his  needs.  The  period  of  com- 

31  mitment  may,  in  the  discretion  of  the  court,  be  extended  for  an 

32  additional  period  of  not  more  than  sixty  days.  By  the  expiration 
,33  of  the  period  of  commitment,  or  by  the  expiration  of  any  extension 

34  granted  by  the  court,  the  Bureau  shall  return  the  defendant  to  the 

35  court  for  final  sentencing,  shall  provide  the  court  with  a  written  report 

36  of  the  results  of  the  study,  and  shall  make  to  the  court  whatever  rec- 

37  ommendations  the  Bureau  believes  will  be  helpful  to  a  proper  reso- 

38  lution  of  the  case.  The  report  may  include  recommendations  of  the 

39  Bureau  concerning  the  category  of  offense  and  category  of  offender 

40  set  forth  in  the  guidelines  issued  by  the  Sentencing  Commission  pur- 


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1  suant  to  28  TJ.S.C.  994(a)  (1)  that  it  believes  are  applicable  to  the  de- 

2  fendant's  case.  After  receiving  the  report  and  the  recommendations, 

3  the  court  shall  proceed  finally  to  sentence  the  defendant  in  accord- 

4  ance  with  the  sentencing  alternatives  available  under  this  chapter. 

5  "(c)    Presentence   Examination   and   Keport   by    Psychiatric 

6  Examiners.— If  the  court,  before  or  after  its  receipt  of  a  report  speci- 

7  fied  in  subsection  (a)  or  (b),  desires  more  information  than  is  other- 

8  wise  available  to  it  as  a  basis  for  determining  the  mental  condition 

9  of  the  defendent,  it  may  order  that  the  defendant  undergo  a  psychi- 

10  atric  examination  by  two  or  more  examiners,  and  that  the  examiners 

11  provide  the  court  with  a  written  report,  pursuant  to  the  provisions 

12  of  section  3614. 

13  "§2003.  Imposition  of  a  Sentence 

14  "(a)  Factors  To  Be  Considered  in  Imposing  a  Sentence. — The 

15  court,  in  determining  the  particular  sentence  to  be  imposed,  shall 

16  consider : 

17  "  ( 1 )  the  nature  and  circumstances  of  the  offense  and  the  history 

18  and  characteristics  of  the  defendant ; 

19  "(2)  the  need  for  the  sentence  imposed: 

20  "(A)  to  afford  adequate  deterrence  to  criminal  conduct; 

21  "(B)   to  protect  the  public  from  further  crimes  of  the 

22  defendant ; 

23  "(;C)  to  reflect  the  seriousness  of  the  offense,  to  promote 

24  respect  for  law,  and  to  provide  just  punishment  for  the 

25  offense;  and 

26  "(D)  to  provide  the  defendant  with  needed  educational  or 

27  vocational  training,  medical  care,  or  other  correctional  treat- 

28  ment  in  the  most  effective  manner ; 

29  "  (3)  the  sentencing  range  established  for  the  applicable  category 

30  of  offense  committed  by  the  applicable  category  of  defendant  as 

31  set  forth  in  the  guidelines  that  are  issued  by  the  Sentencing  Com- 

32  mission  pursuant  to  28  U.S.C.  994(a)  (1)  and  that  are  in  effect 

33  on  the  date  the  defendant  committed  the  offense ;  and 

34  "(4)  any  pertinent  policy  statement  issued  by  the  Sentencing 

35  Commission  pursuant  to  28  U.S.C.  994(a)  (2). 

36  "(b)  Statement  op  Reasons  for  Imposing  a  Sentence. — The  court, 

37  at  the  time  of  sentencing,  shall  state  in  open  court  the  general  reasons 

38  for  its  imposition  of  the  particular  sentence,  and,  if  the  sentence  is 

39  outside  the  range  described  in  subsection  (a)  (3),  the  reason  for  the 

40  imposition  of  a  sentence  outside  such  range. 


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170 

1  "§2004,  Order  of  a  Criminal  Forfeiture 

2  "  (a)  Forfeiture. — The  court,  in  imposing  a  sentence  on  a  defendant 

3  who  has  been  found  guilty  of  an  offense  described  in  section  1801 

4  (Operating  a  Racketeering  Syndicate),  1802  (Racketeering),  or  1803 

5  (Washing  Racketeering  Proceeds),  shall  order,  in  addition  to  the 

6  sentence  that  is  imposed  pursuant  to  the  provisions  of  section  2001, 

7  that  the  defendant  forfeit  to  the  United  States  any  property  constitut- 

8  ing  his  interest  in  the  racketeering  syndicate  or  enterprise  involved. 

9  "(b)  Protective  Orders. — At  any  time  after  the  arrest  of  the  de- 

10  fendant  for,  or  after  the  filing  of  an  indictment  or  information  charg- 

11  ing,  an  offense  for  which  a  criminal  forfeiture  may  be  ordered  under 

12  subsection  (a),  the  court  may  enter  a  restraining  order  or  injunction, 

13  may  require  a  performance  bond,  and  may  take  such  other  action  as  is 

14  in  the  interest  of  justice,  with  respect  to  any  property  subject  to 

15  criminal  forfeiture. 

16  "(c)  Execution. — The  Attorney  General,  upon  such  terms  and  con- 

17  ditions  as  are  in  the  interest  of  justice,  shall  seize  property  that  a 

18  defendant  has  been  ordered  to  forfeit  to  the  United  States,  and  shall 

19  dispose  of  such  property  as  soon  as  commercially  feasible,  making  due 

20  provision  for  the  rights  of  any  innocent  person.  If  any  property  can- 

21  not  be  disposed  of  for  value  the  rights  to  such  property  shall  not  revert 

22  to  the  defendant. 

23  "(d)  Applicabilitt  of  Civil  Forfeiture  Pro\tsioxs. — Except  to 

24  the  extent  that  they  are  inconsistent  with  the  provisions  of  this  sec- 

25  tion,  all  provisions  of  law  relating  to  the  remission  or  mitigation  of 

26  civil  forfeitures  of  property  for  violation  of  the  customs  laws,  the  com- 

27  promise  of  claims  with  respect  to  such  property,  the  disposition  of  such 

28  property,  the  proceeds  from  the  sale  of  such  property,  and  the  award 

29  of  compensation  to  informants  with  respect  to  such  property,  shall 

30  apply  to  criminal  forfeitures  ordered  under  this  section.  The  duties 

31  imposed  upon  a  customs  officer  or  any  other  person  with  respect 

32  to  the  civil  seizure,  forfeiture,  and  disposition  of  property  under  the 

33  customs  laws  shall,  with  respect  to  property  that  has  been  ordered 

34  forfeited  to  the  United  States  under  this  section,  be  performed  by 

35  the  Attorney  General. 

36  "§200.5.  Order  of  Notice  to  Victims 

37  "The  Court,  in  imposing  a  sentence  on  an  individual  who  has  been 

38  found  guilty  of  an  offense  involving  fraud  or  other  deceptive  prac- 

39  tices,  or  on  an  organization  that  has  been  found  guilty  of  any  offense, 

40  may  order,  in  addition  to  the  sentence  that  is  imposed  pursuant  to  the 

41  provisions  of  section  2001,  that  the  defendant  give  notice  and  explana- 


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1  tion  of  the  conviction,  in  such  form  as  the  court  may  approve,  to  the 

2  class  of  persons  or  to  the  sector  of  the  public  affected  by  the  conviction 

3  or  financially  interested  in  the  subject  matter  of  the  offense,  by  mail, 

4  by  advertising  in  designated  areas  or  through  designated  media,  or 

5  by  other  appropriate  means.  In  determining  whether  to  require  the 

6  defendant  to  give  such  notice,  the  court  shall  consider  the  factors  set 

7  forth  in  section  2003(a)  to  the  extent  that  they  are  applicable. 

8  "§2006.  Order  of  Restitution 

9  The  court,  in  imposing  a  sentence  on  a  defendant  who  has  been 

10  found  guilty  of  an  offense  causing  bodily  injury  or  property  damage 

11  or  other  loss,  may  order,  in  addition  to  the  sentence  that  is  imposed 

12  pursuant  to  the  provisions  of  section  2001,  that  the  defendant  make 

13  direct  restitution  to  a  victim  of  the  offense  in  an  amount  and  manner 

14  set  by  the  court.  The  provisions  of  section  2202,  2203,  3812,  and  3813 

15  apply  to  an  order  to  pay  restitution  as  they  apply  to  a  sentence  to 

16  pay  a  fine. 

17  "§2007.  Review  of  a  Sentence 

18  "The  review  of  a  sentence  imposed  pursuant  to  section  2001  is  gov- 

19  erned  by  the  provisions  of  section  3725  and  by  the  Federal  Rules  of 

20  Appellate  Procedure. 

21  "§2008  Implementation  of  a  Sentence 

22  "The  implementation  of 'a  sentence  imposed  pursuant  to  section  2001 

23  is  governed  by  the  provisions  of  chapter  38. 

24  "Chapter  21.— PROBATION 

"Sec. 

"2101.  Sentence  of  Probation. 

"2102.  Imposition  of  a  Sentence  of  Probation. 

"2103.  Conditions  of  Probation. 

"2104.  Running  of  a  Term  of  Probation. 

"2105.  Revocation  of  Probation. 

"210tj.  Implementation  of  a  Sentence  of  Probation. 

25  "§  2101.  Sentence  of  Probation 

26  "(a)  In  General. — A  defendant  who  has  been  found  guilty  of  an 

27  offense  may  be  sentenced  to  a  term  of  probation  unless : 

28  "  ( 1 )  the  offense  is  a  Class  A  felony ; 

29  "(2)  the  offense  is  an  offense  for  which  probation  has  been 

30  expressly  precluded ;  or 

31  "(3)   the  defendant  is  sentenced  at  the  same  time  to  a  term 

32  of  imprisonment  for  the  same  or  a  different  offense. 

33  "(b)  Authorized  Terms. — The  authorized  terms  of  probation  are: 

34  "  ( 1 )  for  a  felony,  not  less  than  one  nor  more  than  five  years ; 

35  "(2)  for  a  misdemeanor,  not  more  than  two  years; 

36  "(3)  for  an  infraction,  not  more  than  one  year. 


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172 

1  "§  2102.  Imposition  of  a  Sentence  of  Probation 

2  "(a)  Factors  To  Be  Considered  in  Imposing  a  Term  of  Pkoba- 

3  TioN. — The  court,  in  determining  whether  to  impose  a  term  of  proba- 

4  tion,  and,  if  a  term  of  probation  is  to  be  imposed,  in  determining  tHe 

5  length  of  the  term  and  the  conditions  of  probation,  shall  consider  the 

6  factors  set  forth  in  section  2003(a)    to  the  extent  that  they  are 

7  applicable. 

8  "(b)  Effect  on  Finality  of  Judgment. — Notwithstanding  the  fact 

9  that  a  sentence  of  probation  can  subsequently  be  modified  or  revoked, 

10  a  judgment  of  conviction  that  includes  such  a  sentence  constitutes  a 

11  final  judgment  for  all  other  jDurposes. 

12  "§2103.  Conditions  of  Probation 

13  "(a)  Mandatory  Condition. — The  court  shall  provide,  as  an  ex- 

14  plicit  condition  of  a  sentence  of  probation,  that  the  defendant  not  com- 

15  mit  another  federal,  state,  or  local  crime  during  the  term  of  probation. 

16  "(b)  Discretionary  Conditions. — The  court  may  provide,  as  fur- 

17  ther  conditions  of  a  sentence  to  probation  to  the  extent  that  such 

18  conditions  are  reasonably  related  to  the  factors  set  forth  in  section 

19  2003  (a)  (1)   and  (a)  (2)  and  to  the  extent  that  such  conditions  in- 

20  volve  such  deprivations  of  liberty   or  property   as  are  reasonably 

21  necessary  for  the  purposes  indicated  in  section  2003(a)  (2),  that  the 

22  defendant : 

23  "(1)  support  his  dependents  and  meet  other  family  responsi- 

24  bilities ; 

25  "(2)  pay  a  fine  imposed  pursuant  to  the  provisions  of  chapter 

26  22; 

27  "(3)  make  direct  restitution  to  a  victim  of  the  offense  pursuant 

28  to  the  provisions  of  section  2006 ; 

29  "(4)  give  to  the  victims  of  the  offense  the  notice  ordered  pur- 

30  suant  to  the  provisions  of  section  2005 ; 

31  "(5)   work  conscientiously  at  suitable  employment  or  pursue 

32  conscientiously  a  course  of  study  or  of  vocational  training  that 

33  will  equi])  liini  for  suitable  employment ; 

34  "(6)   refrain  from  engaging  in  a  specified  occupation,  business, 

35  or  profession  bearing  a  reasonable  relationship  to  the  offense,  or 

36  engage  in  such  a  specified  occupation,  business,  or  profession  only 

37  under  stated  circumstances ; 


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173 


1  "(7)   refrain  from  frequenting  specified  kinds  of  places  or 

2  from  associating  unnecessarily  with  specified  persons ; 

3  "(8)   refrain  from  excessive  use  of  alcohol,  or  any  use  of  n, 

4  narcotic  drug  or  other  controlled  substance,  as  defined  in  section 

5  102  of  the  Controlled  Substances  Act  (21  U.S.C.  802),  without  a 

6  prescription  by  a  licensed  medical  practitioner; 

Y  "(9)  refrain  from  possessing  a  firearm,  destructive  device,  or 

8  other  dangerous  weapon ; 

9  "(10)   imdergo  available  medical  or  psychiatric  treatment  as 
IQ  specified  by  the  court  and  i-emain  m  a  specified  institution  if  re- 

1 1  quired  for  that  purpose ; 

12  "(11)  remain  in  the  custody  of  the  Bureau  of  Prisons  for  any 

13  time  or  intervals  of  time,  totaling  no  more  than,  the  lesser  of 

14  six   months  or  the  term  of  imprisonment  authorized   for  the 

15  offense  in  section  2301(b),  during  the  term  of  probation; 

16  "(12)  reside  at,  or  participate  in  the  program  of,  a  community 

17  treatment  facility  for  all  or  part  of  the  term  of  probation ; 

18  "(13)  work  in  community  service  as  directed  by  the  court; 

19  "  (14)  reside  in  a  specified  place  or  area,  or  refrain  from  residing 

20  in  a  specified  place  or  area ; 

21  "(15)  remain  within  the  jurisdiction  of  the  court,  unless  granted 

22  permission  to  leave  by  the  court  or  a  probation  officer; 

23  "(16)  report  to  a  probation  officer  as  directed  by  the  court  or 

24  the  probation  officer ; 

25  "(17)  permit  a  probation  officer  to  visit  him  at  his  home  or  else- 

26  where  as  specified  by  the  court ; 

27  "(18)    answer  inquiries  by  a  probation  officer  and  promptly 

28  notify  the  probation  officer  of  any  change  in  address  or  employ- 

29  ment ;  or 

30  "(19)  satisfy  such  other  conditions  as  the  court  may  impose. 

31  "(c)   Modification  of  Conditions. — The  court  may  modify,  re- 

32  duce,  or  enlarge  the  conditions  of  a  sentence  of  probation  at  any  time 

33  prior  to  the  expiration  or  termination  of  the  term  of  probation. 

34  "(d)  Written  Statement  of  Conditions. — The  court  shall  direct 

35  that  the  probation  officer  provide  to  a  defendant  sentenced  to  probation 

36  a  written  statement  setting  forth  all  the  conditions  to  which  the  sen- 

37  tence  is  subject  with  sufficient  clarity  and  specificity  to  serve  as  a  guide 

38  for  the  defendant's  conduct  and  for  such  supervision  as  is  required. 


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174 

1  "§2104.  Running  of  a  Term  of  Probation 

2  "(a)  CoMMENOEMXNT. — A  term  of  probation  commences  on  the  day 

3  that  the  sentence  of  probation  is  imposed,  unless  otherwise  ordered 

4  by  the  court. 

5  "(b)  CoxcuRREXCE  Wfth  Other  Sentexces. — Multiple  terms  of 

6  probation,  whether  imposed  at  the  same  time  or  at  different  times, 

7  run  concurrently  with  each  other.  A  term  of  probation  runs  con- 

8  currently  with  any  federal,  state,  or  local  term  of  probation  or  pa- 

9  role  for  another  offense  to  which  the  defendant  is  subject  or  becomes 

10  subject  during  the  term  of  probation,  except  that  it  does  not  run  dur- 

1 1  ing  any  period  in  which  the  defendant  is  imprisoned  in  connection  with 

12  a  conviction  for  a  federal,  state,  or  local  crime. 

13  "  (c)  Earlt  Termination. — The  court  may  terminate  a  term  of  pro- 

14  bation  previously  ordered  and  discharge  the  defendant  at  any  time  in 

15  the  case  of  a  misdemeanor  or  an  infraction  or  at  any  time  after  the  ex- 

16  piration  of  one  year  of  probation  in  the  case  of  a  felony,  if  it  is  satisfied 

17  that  such  action  is  warranted  by  the  conduct  of  the  defendant  and  the 

18  interest  of  justice. 

19  "(d)  Extension. — The  court  may  extend  a  term  of  probation,  if  less 

20  than  the  authorized  term  was  previously  imposed,  at  any  time  prior  to 

21  the  expiration  or  termination  of  the  term  of  probation. 

22  "(e)  Subject  to  Revocation. — A  sentence  of  probation  remains  con- 

23  ditional  and  subject  to  revocation  until  its  expiration  or  termination. 

24  Ǥ  2105.  Revocation  of  Probation 

25  "(a)  Continuation  or  Revocation. — If  the  defendant  violates  a 

26  condition  of  probation  at  any  time  prior  to  the  expiration  or  termina- 

27  tion  of  the  term  of  probation,  the  court  may : 

28  "(1)  continue  him  on  probation,  with  or  without  extending  the 

29  term  or  modifying  or  enlarging  the  conditions ;  or . 

30  "(2)  revoke  the  sentence  of  probation  and  impose  anj'  other 

31  sentence  that  was  available  under  chapter  20  at  the  time  of  the 

32  initial  sentencing. 

33  "(b)  Delayed  Revocation. — Tlie  power  of  the  court  to  revoke  a  sen- 

34  tence  of  probation  for  violation  of  a  condition  of  probation  extends  be- 

35  yond  the  expiration  of  the  term  of  probation  for  any  period  reasonably 

36  necessary  for  the  adjudication  of  matters  arising  before  its  expiration 

37  if,  prior  to  its  expiration,  a  warrant  or  summons  has  been  issued  on  the 

38  basis  of  an  allegation  of  such  a  violation. 

39  "§  2106.  Implementation  of  a  Sentence  of  Probation 

40  "The  implementation  of  a  sentence  of  probation  is  governed  by  the 

41  provisions  of  subchapter  A  of  chapter  38. 


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175 

1  "Chapter  22.— FINES 

"Sec. 

"2201.  Sentence  of  Fine. 

"2202.  Imposition  of  a  Sentence  of  Fine. 

"2203.  Modification  or  Remission  of  Fine. 

"2204.  Implementation  of  a  Sentence  of  Fine. 

2  "§2201.  Sentence  of  Fine 

3  "(a)  In  General. — Subject  to  the  provisions  of  section  2202,  a 

4  defendant  who  has  been  found  guilty  of  an  offense  may  be  sentenced 

5  to  pay  a  fine. 

6  "(b)  Authorized  Fines. — Except  as  otherwise  provided  in  sub- 

7  section  (c)  or  any  other  provision  of  law,  the  authorized  fines  are : 

8  "  ( 1 )  if  the  defendant  is  an  individual : 

9  "(A)  for  a  felony,  not  more  than $100,000 ; 

10  "(B)  for  a  misdemeanor,  not  more  than  $10,000 ; 

11  "(C)  for  an  infraction,  not  more  than  $1,000; 

12  "(2)  if  the  defendant  is  an  organization : 

13  "(A)  for  a  felony,  not  more  than  $500,000; 

14  "  ( B )  f  or  a  misdemeanor,  not  more  than  $100,000 ; 

15  "(C)  for  an  infraction,  not  more  than  $10,000. 

16  "(c)  Alternative  Authorized  Fine. — In  lieu  of  a  fine  authorized 

17  by  subsection  (b)  or  any  other  provision  of  law,  a  defendant  who  has 

18  been  found  guilty  of  an  offense  through  which  pecuniary  gain  was 

19  directly  or  indirectly  derived,  or  by  which  bodily  injury  or  property 

20  damage  or  other  loss  was  caused,  may  be  sentenced  to  pay  a  fine  that 

21  does  not  exceed  twice  the  gross  gain  derived  or  twice  the  gross  loss 

22  caused,  whichever  is  the  greater. 

23  "§2202.  Imposition  of  a  Sentence  of  Fine 

24  "  (a)  Factors  To  Be  Considered  in  Imposing  a  Fine. — The  court,  in 

25  determining  whether  to  impose  a  fine,  and,  if  a  fine  is  to  be  imposed, 

26  in  determining  the  amount  of  the  fine,  the  time  for  payment,  and  the 

27  method  of  payment,  shall  consider  the  factors  set  forth  in  section  2003 

28  (a),  to  the  extent  they  are  applicable,  including,  with  regard  to  the 

29  characteristics  of  the  defendant  under  section  2003  ( a )  ( 1 ) ,  the  ability 

30  of  the  defendant  to  pay  the  fine  in  view  of : 

31  "(1)  the  defendant's  income,  earning  capacity,  and  financial 

32  resources ; 

33  "(2)  the  nature  of  the  burden  that  payment  of  the  fine  will  im- 

34  pose  on  the  defendant,  and  on  any  person  who  is  financially  de- 

35  pendent  upon  the  defendant ; 

36  "(3)   any  requirement  imposed  upon  the  defendant  to  make 

37  direct  restitution  or  reparation  to  the  victim  of  the  offense;  and 

38  "(4)  any  other  pertinent  equitable  consideration. 


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176 

1  "(b)  Time  and  Method  of  Payment. — At  the  time  a  defendant  is 

2  sentenced  to  pay  a  fine,  the  court  may  provide  for  the  payment  to  be 

3  made  within  a  specified  period  of  time  or  in  specified  installments.  If 

4  no  such  provision  is  made  a  part  of  the  sentence,  payment  is  due 

5  immediately. 

6  "(c)  ALTERNATrvE  SENTENCE  PRECLUDED. — At  the  time  a  defendant 

7  is  sentenced  to  pay  a  fine,  the  court  may  not  impose  an  alternative 

8  sentence  to  be  served  in  the  event  that  the  fine  is  not  paid. 

9  "(d)  Individual  Responsibility  FOR  Payment  BY  Organization. — 

10  If  a  fine  is  imposeil  on  an  organization,  it  is  the  duty  of  the  individuals 

11  authorized  to  make  disbursement  of  the  assets  of  the  organization  to 

12  pay  the  fine  from  assets  of  the  organization. 

13  "§  2203.  Modification  or  Remission  of  Fine 

14  "(a)  Petition  for  Modification  or  Remission. — A  defendant  who 

15  has  been  sentenced  to  pay  a  fine,  and  who  has  paid  part  but  not  all 

16  thereof,  may  petition  the  court  for : 

17  "  ( 1)  an  extension  of  the  time  for  payment ; 

18  "  (2)  a  modification  in  the  method  of  payment ;  or 

19  "(3)  a  remission  of  all  or  part  of  the  unpaid  portion. 

20  "(b)  Order  of  Modification  or  Remission. — If,  after  the  filing  of 

21  a  petition  as  provided  in  subsection  (a),  the  court  finds  that  the  cir- 

22  cumstances  no  longer  exist  that  warranted  the  imposition  of  the  fine 

23  in  the  amount  imposed  or  payment  by  the  time  or  method  specified, 

24  or  that  it  would  otherwise  be  unjust  to  require  payment  of  the  fine 

25  in  the  amount  imposed  or  by  the  time  or  method  specified,  the  court 

26  may  enter  an  order : 

27  "(1)  extending  the  time  for  payment ; 

28  "  (2)  modifying  the  method  of  payment ;  or 

29  "(3)  remitting  all  or  part  of  the  unpaid  portion. 

30  "§  2204.  Implementation  of  a  Sentence  of  Fine 

31  "The  implementation  of  a  sentence  to  pay  a  fine  is  governed  by  the 

32  provisions  of  subchapter  B  of  chapter  38. 

33  "Chapter  23.— IMPRISONMENT 

"Sec. 

"2301.  Sentence  of  Imprisonment. 
"2302.  Imposition  of  a  Sentence  of  Imprisonment. 

"2303.  Parole  Term  and  Contingent  Prison  Term  Included  in  Sentence  of  Im- 
prisonment. 
"2.304.  Multiple  Sentences  of  Imprisonment. 
"2305.  Calculation  of  Term  of  Imprisonment. 
"2306.  Implementation  of  a  Sentence  of  Imprisonment  and  Parole  Therefrom. 

34  "§  2301.  Sentence  of  Imprisonment 

35  "(a)    In  General.— A  defendant  who  has  been  found  guilty  of 

36  an  offense  may  be  sentenced  to  a  term  of  imprisonment. 


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1  "(b)  Authorized  Terms. — The  authorized  terms  of  imprisonment 

2  are: 

3  "(1)  for  a  Class  A  felony,  the  duration  of  the  defendant's  life 

4  or  any  period  of  time ; 

5  "  (2)  for  a  Class  B  felony,  not  more  than  twenty-five  years ; 

6  "(3)  for  a  Class  C  felony,  not  more  than  twelve  years; 

7  "  (4)  for  a  Class  D  felony,  not  more  than  six  years ; 

8  "(5)  for  a  Class  E  felony,  not  more  than  three  years; 

9  "(6)  for  a  Class  A  misdemeanor,  not  more  than  one  year; 

10  "(7)  for  a  Class  B  misdemeanor,  not  more  than  six  months; 

11  "(8)  for  a  Class  C  misdemeanor,  not  more  than  thirty  days; 

12  "(9)  for  an  infraction,  not  more  than  five  days. 

13  "(c)  Authorized  Terms  of  Parole  iNEUomiLrrr. — The  authorized 

14  term  of  imprisonment  that  may  be  required  to  be  served  prior  to  eligi- 

15  bility  for  parole  is  any  term  found  appropriate  by  the  court  in  light 

16  of  the  provisions  of  section  2302 (b) ,  but  no  term  of  parole  ineligibility 

17  may  extend  into  the  last  one-tenth  of  the  sentence  imposed. 

18  "§  2302.  Imposition  of  a  Sentence  of  Imprisonment 

19  "(a)  Factors  To  Be  Considered  in  Imposing  a  Term  of  Imfrison- 

20  ment. — The  court,  in  determining  whether  to  impose  a  term  of  im- 

21  prisonment,  and,  if  a  term  of  imprisonment  is  to  be  imposed,  in  deter- 

22  mining  the  length  of  the  term,  shall  consider  the  factors  set  forth  in 

23  section  2003(a)  to  the  extent  that  they  are  applicable.  In  determining 

24  whether  to  make  a  recommendation  concerning  the  type  of  prison 

25  facility  appropriate  for  the  defendant,  the  court  shall  consider  any 

26  pertinent  policy  statements  issued  by  the  Sentencing  Commission  pur- 

27  suant  to  28  U.S.C.  994(a)  (2) .  If  the  court  imposes  a  term  of  imprison- 

28  ment  it  shall  designate  the  portion,  if  any,  of  the  term  to  be  served  as 

29  a  term  of  parole  ineligibility. 

30  "(b)  Factors  To  Be  Considered  in  Imposing  a  Term  of  Parole 

31  Ineligibility. — The  court,  in  determining  whether  to  impose  a  term 

32  of  parole  ineligibility,  and,  if  a  term  of  parole  ineligibility  is  to  be 

33  imposed,  in  determining  the  length  of  the  term,  shall  consider  the 

34  factors  set  forth  in  section  2003(a)    to  the  extent  that  they   are 

35  api  licable. 

36  "  (<^ )  Modification  of  an  Imposed  Term  of  Imprisonment  or  Term 

37  of  Parole  Ineligibilitt. — The  court  may  not  modify  a  term  of  im- 

38  prisonment  or  a  term  of  parole  ineligibility  once  it  has  been  imposed 

39  except  that:  -.«. 

40  "(1)    upon  motion  of  the  Director  of  the  Bureau  of  Prisons 

41  and  upon  notice  to  the  attorney  for  the  government,  the  court, 


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178 

1  for  extraordinary  and  compelling  reasons,  may  reduce  an  im- 

2  posed  term  of  imprisonment  or  term  of  parole  ineligibility  to  the 

3  time  that  the  defendant  has  served  in  imprisonment ;  and 

4  "(2)  the  court  may  modify  an  imposed  term  of  imprisonment 

5  or  term  of  parole  ineligibility  to  the  extent  otherwise  expressly 

6  permitted  by  statute  or  by  Rule  35  of  the  Federal  Rules  of  Crim- 

7  inal  Procedure. 

8  "§2303.  Parole  Term  and  Contingent  Imprisonment  Term  In- 

9  eluded  in  Sentence  of  Imprisonment 

10  "A  sentence  to  a  term  of  imprisonment  in  the  case  of  a  felony  or  of  a 

11  Class  A  misdemeanor  automatically  includes,  in  addition  to  the  speci- 

12  fied  term  of  imprisonment,  a  separate: 

13  "  (a)  term  of  parole,  the  incidents  of  which  are  governed  by  the 

14  provisions  of  subchapter  D  of  chapter  38 ;  and 

15  "(b)  contingent  term  of  imprisonment  of : 

16  "  ( 1 )  ninety  days  in  the  case  of  a  felony ;  or 

17  "(2)  thirty  days  in  the  case  of  a  Class  A  misdemeanor; 

18  that  may,  in  the  event  of  recommitment  for  violation  of  a  condi- 

19  tion  of  parole,  be  ordered  to  be  served  in  lieu  of  the  term  of  the 

20  original  sentence  minus  the  portion  of  the  original  sentence  served 

21  in  confinement  prior  to  the  parole,  if  the  contingent  term  of  im- 

22  prisonment  is  longer. 

23  "§  2301.  Multiple  Sentences  of  Imprisonment 

24  "(a)  Imposition  of  Concurrent  or  Consecutive  Terms. — If  mul- 

25  tiple  terms  of  imprisonment  are  imposed  on  a  defendant  at  the  same 

26  time,  or  if  a  term  of  imprisonment  is  imposed  on  a  defendant  who  is  al- 

27  ready  subject  to  an  undischarged  tenn  of  imprisonment,  the  terms  may 

28  run  concurrently  or  consecutively,  excejjt  that  the  terms  may  not  nin 

29  consecutively : 

30  "(1)   for  an  offense  described  in  .section  1001   (Criminal  At- 

31  tempt),  1002  (Criminal  Conspiracy),  or  1003  (Criminal  Solicita- 

32  tion),  and  for  another  offense  that  was  the  sole  objective  of  the 

33  attempt,  conspiracy,  or  solicitation ; 

34  "(2)  for  an  offense  involving  a  violation  of  a  general  prohibi- 

35  tion  and  for  an  offense  involving  a  violation  of  a  specific  pro- 

36  hibition  encompassed  within  the  general  prohibition. 

37  Multiple  terms  of  iniprisonment  run  concurrently  unless  the  court 


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1  orders  that  the  terms  are  to  run  consecutively.  If  multiple  terms  of 

2  imprisonment  are  ordered  to  run  consecutively,  any  included  terms  of 

3  parole  ineligibility  also  run  consecutively. 

4  "(b)  Factors  to  be  Considered  in  Imposing  Concurrent  or  Con- 

5  SECUTIVE  Terms. —  The  court,  in  determining  whether  the  terms  im- 

6  posed  are  to  be  ordered  to  run  concurrently  or  consecutively,  shall  con- 

7  sider,  as  to  each  offense  for  which  a  term  of  imprisonment  is  being 

8  imposed,  the  factors  set  forth  in  section  2003  (a) . 

9  "(c)    Limit  on  Aggregate  of  CoNSECUTrvE  Terms. — The  aggre- 

10  gate  of  consecutive  terms  of  imprisonment  to  which  a  defendant  may 

11  be  sentenced  may  not  exceed  such  term  as  is  authorized  by  section  2301 

12  for  an  offense  one  grade  higher  than  the  most  serious  offense  of  which 

13  lie  was  found  guilty. 

14  ''(d)    Treatment  of  Multiple   Sentences  as   an   Aggregate.— 

15  Multiple  terms  of  imprisonment  ordered  to  run  consecutively  shall  be 

16  treated  for  administrative  purposes  as  a  single,  aggregate  term  of 

17  imprisonment,  and  any  included  terms  of  parole  ineligibility  shall  be 

18  treated  as  a  single,  aggregate  term  of  parole  ineligibility. 

19  "§2305.  Calculation  of  Term  of  Imprisonment 

20  "(a)  Commencement  of  Sentence. — A  sentence  to  a  term  of  im- 

21  prisonment  commences  on  the  date  the  defendant  is  received  in  custody 

22  awaiting  transportation  to,  or  is  received  at,  the  official  detention  facil- 

23  ity  at  which  the  sentence  is  to  be  served. 

24  "(b)  Credit  for  Prior  Custody. — A  defendant  shall  be  given  credit 

25  toward  the  service  of  a  term  of  imprisonment  for  any  time  he  has 

26  spent  in  official  detention  prior  to  the  date  the  sentence  commences: 

27  "(1)  as  a  result  of  the  offense  for  which  the  sentence  was  im- 

28  posed ;  or 

29  "(2)  as  a  result  of  any  other  charge  for  which  the  defendant 

30  was  arrested  after  the  commission  of  the  offense  for  which  the 
3j^  sentence  was  imposed ; 

32  that  has  not  been  credited  against  another  sentence. 

"§  2306.  Implementation   of  a   Sentence  of  Imprisonment   and 
Parole  therefrom 
"The  implementation  of  a  sentence  to  imprisonment  is  governed  by 
the  provisions  of  subchapter  C  of  chapter  38.  Parole  from  imprison- 


33 
34 
35 
36 


gY   ment  is  governed  by  the  provisions  of  subchapter  D  of  chapter  38. 


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1  "PART  IV.— ADMINISTRATION  AND 

2  PROCEDURE 

"Chapter 

"30.  Investigative  and  Law  Enforcement  Authority. 

"31.  Ancillary  Investigative  Autliority. 

"32.  Rendition  and  Extradition. 

"33.  Jurisdiction  and  Venue. 

"34.  Appointment  of  Counsel. 

"35.  Release  and  Confinement  Pending  Judicial  Proceedings. 

"36.  Disposition  of  Juvenile  or  Incompetent  Offenders. 

"37.  Pretrial  and  Trial  Procedure,  Evidence,  and  Appellate  Review. 

"38.  Postsentence  Administration. 

3  "Chapter  30.— INVESTIGATIVE  AND  LAW  ENFORCEMENT 

4  AUTHORITY 

"Subchapter 

"A.  Investigative  Authority. 

"B.  Law  Enforcement  Authority. 

5  "Subchapter  A. — Investigative  Authority 

"Sec. 

"3001.  Investigative  Authority  over  Offenses  within  this  Title. 

"8002.  Investigative  Authority  over  Offenses  outside  this  Title. 

6  "§  3001.  Investigative  Authority  over  Offenses  within  this  Title 

7  "(a)   Specific  Designations. — Primary  responsibility  for  detect- 

8  ing  and  investigating  the  commission  of  offenses  described  in  this  title 

9  is  vested  as  follows : 

10  "(1)  offenses  described  in  sections  1211,  1212,  1213,  and  1214, 

11  and  offenses  arising  from  the  administration  or  enforcement  of 

12  the  laws  relating  to  immigration  and  nationality,  are  within  the 

13  primary  responsibility  of  the  Immigration  and  Naturalization 

14  Service ; 

15  "(2)  offenses  described  in  subchapter  A  of  chapter  14;  offenses 

16  described  in  sections  1731,  1732,  and  1733,  if  there  is  or  may  be 

17  jurisdiction  over  the  offense  as  set  forth  in  section  1731(c)(8) 

18  and  the  property  consists  of  ammunition,  a  firearm,  or  a  destruc- 

19  tive  device;  offenses  described  in  sections  1821(a)(2)  and  1822; 

20  and  offenses  arising  from  the  administration  or  enforcement  of  the 

21  laws  relating  to  internal  revenue;  are  within  the  primary  re- 

22  sponsibility  of  officers  and  employees  of  the  Department  of  the 

23  Treasury  assigned  such  responsibility  by  the  Secretary'  of  the 

24  Treasury ; 

25  "  (3)  offenses  descril^ed  in  sections  1701, 1702,  and  1703,  if  there 

26  is  or  may  be  federal  jurisdiction  over  the  offenses  as  set  forth  in 

27  section  1701(c)(5)  or  (c)(6),  and  offenses  described  in  sections 

28  1821(a)(1),  1821(a)(4),  and  1823,  are  within  the  primary  re- 

29  sponsibility  of  officers  and  employees  of  the  Department  of  the 


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1  Treasury  assigned  such  responsibility  by  the  Secretary  of  the 

2  Treasury,  and,  concurrently,  are  within  the  primary  responsibil- 

3  ity  of  the  Federal  Bureau  of  Investigation ; 

4  "(4)   offenses  described  in  subchapter  B  of  chapter  14,  and 

5  offenses  arising  from  the  administration  or  enforcement  of  the 

6  laws  relating  to  customs,  are  within  the  primary  responsibility  of 

7  oflScers  of  the  customs,  as  defined  in  section  401  (i)  of  the  Tariff 

8  Act  of  1930,  as  amended  (19  U.S.C.  1401  (i) )  ; 

9  "(5)  offenses  described  in  sections  1731, 1732,  and  1733,  if  there 

10  is  or  may  be  federal  jurisdiction  over  the  offense  as  set  forth  in 

11  section  1731  (c)  (27)  or  (c)  (28) ;  offenses  described  in  sections  1851 

12  (a^)  (l)i  (a)  (2),  and  (a)  (3),  and  1852;  and  offenses  arising  from 

13  the  administration  or  enforcement  of  the  laws  relating  to  agricul- 

14  ture;  are  within  the  primary  responsibility  of  officers  and  employ- 

15  ees  of  the  Department  of  Agriculture  assigned  such  responsibility 

16  by  the  Secretary  of  Agriculture ; 

17  "(6)  offenses  described  in  subchapter  E  of  chapter  17,  other 

18  than  offenses  for  which  jurisdiction  is  based  on  section  1741  (c)  (2) 

19  (C),  1742(c)  (2)  (C),  or  1743(c)  (2)  (C),  if  the  tax  stamp  involved 

20  is  a  state  or  local  tax  stamp  or  if  the  security  involved  is  described 

21  in  section  1746  (f)(2),  (f)(3),  (f)(4),  or  (f)(8),  and  offenses 

22  arising  from  the  administration  or  enforcement  of  the  laws  relat- 

23  ing  to  counterfeiting  and  forgery,  other  than  those  specifically 

24  excepted  by  this  paragraph,  are  within  the  primary  responsibility 

25  of  the  United  States  Secret  Service ; 

26  "(7)  offenses  described  in  subchapter  B  of  chapter  18;  and 

27  offenses  arising  from  the  administration  or  enforcement  of  the 

28  laws  relating  to  controlled  substances,  are  within  the  primary 

29  responsibility  of  the  Drug  Enforcement  Administration; 

30  "  (8)  offenses  in  which  the  subject  of  the  offense  is  mail  or  prop- 

31  erty  of  the  United  States  Postal  Service;  offenses  described  in  sec- 

32  tion  1734(a)  if  there  is  or  may  be  federal  jurisdiction  over  the 

33  offense  as  set  forth  in  subsection  1734(e)  (1)  ;  and  offenses  arising 

34  from  the  administration  or  enforcement  of  the  laws  relating  to 

35  mail;  are  within  the  primary  responsibility  of  officers  and  em- 

36  ployees  of  the  United  States  Postal  Service  assigned  such  responsi- 

37  bility  by  the  Board  of  Governors  of  the  United  States  Postal 

38  Service; 

39  "(9)  offenses  committed  within  the  national  park  system  that 

40  are  not  within  the  designated  primary  responsibility  of  another 


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182 

1  federal  agency  are  within  the  primary  responsibility  of  the 

2  Department  of  the  Interior; 

3  "(10)  offenses  described  in  section  1731,  if  there  is  or  may  be 

4  jurisdiction  over  the  offense  as  set  forth  in  section  1731(c)  (21), 

5  and  offenses  described  in  section  1763,  are  within  the  primary 

6  responsibility  of  officers  and  employees  of  the  Commodity  Futures 

7  Trading     Commission     assigned    such     responsibility    by    the 

8  Commission ; 

9  "(11)  offenses  described  in  section  1737(a)(1)  are  within  the 

10  primary  responsibility  of  officers  and  employees  of  the  Environ- 

11  mental  Protection  Agency  assigned  such  responsibility  by  the 

12  Administrator  of  the  Environmental  Protection  Agency; 

13  "(12)  offenses  described  in  section  1762(a)(4)  are  within  the 

14  primary  responsibility  of  officers  and  employees  of  the  Department 

15  of  the  Treasury  and  of  the  Securities  and  Exchange  Commission 

16  assigned  or  delegated  such  responsibility  by  the  Secretary  of  the 

17  Treasury ; 

18  "(13)  offenses  described  in  section  1851(a)(4)  are  within  the 

19  primary  responsibility  of  the  officers  and  employees  of  the  De- 

20  partment  of  Health,   Education,   and  Welfare  assigned  such 

21  responsibility  by  the  Secretary  of  Health,  Education,  and  Wel- 

22  fare ; 

23  "(14)  offenses  described  in  section  1131;  offenses  described  in 

24  sections  1601,  1602,  1603,  1611,  1612,  1613,  1614,  1621,  1622,  and 

25  1623,  if  the  victim  of  the  offense  is  a  United  States  official ;  offenses 

26  described  in  section  1631 ;  and  offenses  described  in  sections  1601, 

27  1602,  1603,  1611,  1612,  1613,  1614,  1615,  1616,  1641,  1642,  1643, 

28  1644,  1645,  1721,  1731,  1732,  1733,  1824,  and  1861,  if  the  offense 

29  is  committed  within  the  special  aircraft  jurisdiction  of  the  United 

30  States;  are  within  the  primary  responsibility  of  the  Federal 

31  Bureau  of  Investigation;  and 

32  "(15)  all  other  offenses  are  within  the  primary  responsibility 

33  of  those  law  enforcement  agencies  designated  by  regulation,  rule, 

34  or  order  issued  by  the  Attorney  General,  except  an  offense  that 

35  incorporates  by  reference  a  statute  outside  this  title  concerning 

36  which  another  agency  is  specifically  assigned  such  responsibility 

37  by  law. 

38  "(b)  Redesionation. — A  responsibility  set  forth  in  subsection  (a) 

39  may  be  transfierred  to  another  law  enforcement  agency  upon  the  writ- 


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1  ten  consent  of  the  head  of  both  agencies  involved  and  of  the  Attorney 

2  General. 

3  "§  3002.  Investigative  Authority  Over  Offenses  Outside  This  Title 

4  "(a)   Specific  Designations. — Primary  responsibility  for  detect- 
6  ing  and  investigating  the  commission  of  offenses  described  outside  this 

6  title  is  vested  in : 

7  "(1)   the  law  enforcement  agency  specifically  assigned  such 

8  responsibility  by  law ;  or 

9  "(2)  the  law  enforcement  agency  designated  by  regulation, 

10  rule,  or  order  issued  by  the  Attorney  Greneral  if  no  other  agency 

11  is  specifically  assigned  such  responsibility  by  law. 

12  "(b)  Redesignation. — A  responsibility  set  forth  in  subsection  (a) 

13  may  be  transferred  to  another  law  enforcement  agency  upon  the  writ- 

14  ten  consent  of  the  head  of  both  agencies  involved  and  of  the  Attorney 

15  General. 

16  "Subchapter  B. — Law  Enforcement  Authority 

"See. 

"3011.  Federal  Bureau  of  Investigation. 

"3012.  Drug  Enforcement  Administration. 

"3013.  Department  of  the  Treasury. 

"3014.  Postal  Service. 

"3015.  United  States  Marshals  Service. 

"3016.  United  States  Probation  Service. 

"3017.  Bureau  of  Prisons. 

"3018.  Immigration  and  Naturalization  Service. 

"3019.  Deportment  of  the  Interior. 

17  "§3011.  Federal  Bureau  of  Investigation 

18  "The  Director,  Associate  Director,  Assistant  to  the  Director,  an 

19  Assistant  Director,  an  inspector,  and  an  agent  of  the  Federal  Bureau 

20  of  Investigation  of  the  Department  of  Justice  may : 

21  "  ( a )  carry  a  firearm ; 

22  "  (b)  execute  an  order,  warrant,  subpoena,  or  other  process  issued 

23  under  the  authority  of  the  United  States  for  arrest,  search  or 

24  seizure,  or  production  of  evidence ; 

25  "(c)  make  an  arrest  without  a  warrant  for  an  offense  com- 

26  mitted  in  his  presence,  or  for  a  felony  committed  outside  his  pres- 

27  ence  if  he  has  reasonable  grounds  to  believe  that  the  person  to  be 

28  arrested  has  committed  or  is  committing  a  felony ; 

29  "(d)  offer  and  pay  a  reward  for  services  or  information  assist- 

30  ing  in  the  detection  or  investigation  of  the  commission  of  an 

31  offense  or  in  the  apprehension  of  an  offender ;  and 

32  "(e)  perform  any  other  law  enforcement  duty  that  the  Attorney 

33  General  may  designate. 


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184 


1  "§3012.  Drug  Enforcement  Administration 

2  "Subject  to  the  direction  of  the  Attorney  General,  an  oflScer  or  em- 

3  ployee  of  the  Drug  Enforcement  Administration  may: 

4  "  (a)  carry  a  firearm ; 

5  "(b)  execute  an  order,  warrant,  administrative  inspection  war- 

6  rant,  subpoena,  or  other  process  issued  under  the  authority  of  the 

7  United  States  for  arrest,  search  or  seizure,  inspection,  or  produc- 

8  tion  of  evidence ; 

9  "(c)  make  an  arrest  without  a  warrant  for  an  offense  conmiitted 

10  in  his  presence,  or  for  a  felony  committed  outside  his  presence,  if 

11  he  has  reasonable  grounds  to  believe  that  the  person  to  be  arrested 

12  has  committed  or  is  committing  a  felony ; 

13  "(d)  offer  and  pay  a  reward  for  services  or  information  assist- 

14  ing  in  the  detection  or  investigation  of  the  commission  of  an 

15  offense  or  in  the  apprehension  of  an  offender; 

16  "(e)  make  a  seizure  of  property  pursuant  to  the  provisions  of 

17  the  Controlled  Substances  Act  (21  U.S.C.  801  et  seq.) ;  and 

18  "(f)  perform  any  other  law  enforcement  duty  that  the  Attorney 

19  General  may  designate. 

20  "§3013.  Department  of  the  Treasury 

21  "(a)  Authority. — Subject  to  the  direction  of  the  Secretary  of  the 

22  Treasury : 

23  "  ( 1 )  an  agent  of  the  United  States  Secret  Service ; 

24  "(2)  an  officer  of  the  customs,  as  defined  in  section  401  (i)  of 

25  the  Tariff  Act  of  1930,  as  amended  (19  U.S.C.  1401  (i) ) ; 

26  "(3)  an  agent  of  the  Bureau  of  Alcohol,  Tobacco,  and  Fire- 

27  arms  whom  the  Secretary  of  the  Treasury  has  charged  with  the 

28  duty  of  enforcing  any  criminal,  seizure,  or  forfeiture  provision 

29  of  the  laws  relating  to  internal  revenue ;  or 

30  "(4)  a  criminal  investigator  of  the  Intelligence  Division  or  of 

31  the  Internal  Security  Division  of  the  Internal  Revenue  Service 

32  whom  the  Secretary  has  charged  with  the  duty  of  enforcing  a 

33  criminal  provision  of  the  internal  revenue  laws  or  another  crim- 
84  inal  provision  of  the  laws  relating  to  the  internal  revenue ; 

35  may  perform  any  of  the  functions  and  duties  enumerated  in  subsection 

36  (b). 

37  "(b)  Functions  and  Duties. — Except  as  otherwise  provided,  an 

38  agent,  officer,  or  investigator  described  in  subsection  (a)  may: 


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185 

1  "  ( 1 )  carry  a  firearm ; 

2  "(2)   execute  an  order,  warrant,  subpoena,  or  other  process 

3  issued  under  the  authority  of  the  United  States  for  arrest,  search 

4  or  seizure,  or  production  of  evidence; 

5  "(3)  make  an  arrest  without  warrant  for  an  offense  committed 

6  in  his  presence,  or  for  a  felony  committed  outside  his  presence  if 

7  he  has  reasonable  grounds  to  believe  that  the  person  to  be  arrested 

8  has  committed  or  is  committing  a  felony ; 

9  "(4)  offer  and  pay  a  reward  for  services  or  information  assist- 

10  ing  in  the  detection  or  investigation  of  the  commission  of  an 

11  offense  or  in  the  apprehension  of  an  offender ;  and 

12  "(5)  perform  any  other  law  enforcement  duty  that  the  Secre- 

13  tary  of  the  Treasury  may  designate. 

14  "(c)  Special  Protection  Function. — Subject  to  the  direction  of 

15  the  Secretary  of  the  Treasury,  the  United  States  Secret  Service  shall 

1 6  protect  the  person  of : 

17  "(1)  the  President  and  the  members  of  his  immediate  family; 

18  "(2)   the  President-elect  and,  unless  such  protection  is  declined, 

19  the  members  of  his  immediate  family ; 

20  "(3)  the  Vice  President,  or  other  person  next  in  the  order  of 

21  succession  to  the  office  of  President,  and,  unless  such  protec- 

22  tion  is  declined,  the  members  of  his  immediate  family ; 

23  "(4)  the  Vice  President-elect  and,  unless  such  protection  is 

24  declined,  the  members  of  his  immediate  family ; 

25  "(5)  a  person  who  is  determined  by  the  Secretary  of  the  Treas- 

26  ury,  after  consultation  with  the  advisory  committee  set  forth  in 

27  Public  Law  90-331  (82  Stat.  170),  to  be  a  major  candidate  for 

28  President  or  Vice  President,  unless  such  protection  is  declined  by 

29  such  person ; 

30  "(6)  a  former  President  and  his  spouse,  unless  such  protection 

31  is  declined  by  such  former  President; 

32  "(7)  the  spouse  of  a  deceased  former  President  until  remar- 

33  riage,  unless  such  protection  is  declined  by  such  spouse; 

34  "(8)  a  minor  child  of  a  former  President,  until  he  reaches  16 

35  years  of  age,  unless  such  protection  is  declined  by  a  parent  or 

36  guardian  of  such  minor  child ; 

37  "(9)  the  chief  of  state  or  head  of  government,  or  the  political 

38  equivalent,  of  a  foreign  power,  who  is  in  the  United  States; 


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186 

1  "(10)  ail  official  guest  of  the  United  States  who  is  ordered  pro- 

2  tected  at  the  direction  of  the  President,  and 

3  "(11)  a  federal  public  servant  or  other  official  representative 

4  of  the  United  States  who  is  performing  a  special  mission  outside 

5  the  United  States  and  who  is  ordered  protected  at  the  direction 

6  of  the  President. 

7  "§3014.  Postal  Service 

8  "Subject  to  the  direction  of  the  Board  of  Go%'emors  of  the  United 

9  States  Postal  Service,  an  officer  or  employee  of  the  Postal  Service 

10  who  is  performing  a  duty  related  to  the  inspection  of  a  postal  matter, 

11  related  to  the  enforcement  of  a  law  regarding  property  of  the  Postal 

12  Service  or  federal  property  in  the  custody  of  the  Postal  Service,  re- 

13  lated  to  the  use  of  the  mails,  or  related  to  an  offense  arising  from  the 

14  administration  or  enforcement  of  the  laws  relating  to  the  mails,  may : 

15  "  ( a )  carry  a  firearm ; 

16  "(b)  execute  an  order,  warrant,  subpoena,  or  other  process 

17  issued  mider  the  authority  of  the  United  States  for  arrest,  search 
13  or  seizure,  or  production  of  evidence ; 

19  "(c)  make  an  arrest  without  a  warrant  for  an  offense  com- 

20  mitted  in  his  presence,  or  for  a  felony  committed  outside  his 

21  presence  if  he  has  reasonable  grounds  to  believe  that  the  person 

22  to  be  arrested  has  committed  or  is  committing  a  felony ; 

23  "(d)  offer  and  pay  a  reward  for  services  or  information  assist- 

24  ing  in  the  detection  or  investigation  of  the  commission  of  an 

25  offense  or  in  the  apprehension  of  an  offender ;  and 

2g  "(e)  perform  any  other  law  enforcement  duty  that  the  Board 

27  of  Governors  may  designate. 

28  "§3015.  United  States  Marshals  Service 

29  "(a)  AuTHORrrr. — A  United  States  marshal  and  a  deputy  United 

30  States  marshal  may : 

31  "  ( 1 )  carry  a  firearm ; 

32  "(2)  execute  an  order,  warrant,  subpoena,  or  other  process  is- 

33  sued  under  the  authority  of  the  United  States  for  arrest,  search 
34^  or  seizure,  or  production  of  evidence ; 

35  "(3)  make  an  arrest  without  warrant  for  an  offense  committed 

3g  in  his  presence,  or  for  a  felony  committed  outside  his  presence 

37  if  he  has  reasonable  grounds  to  believe  that  the  person  to  be 

38  arrested  has  committed  or  is  committing  a  felony ; 


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187 


1  "(4)  offer  and  pay  a  reward  for  services  or  information  assist- 

2  ing  in  the  detection  or  investigation  of  the  commission  of  an 

3  offense  or  in  the  apprehension  of  an  offender ;  and 

4  "  ( 5 )  perform  any  other  law  enforcement  duty  that  the  Attorney 

5  General  may  designate. 

6  "(b)   Temporary  Custody  of  Persons. — United  States  marshals 

7  shall  provide  for  the  safe-keeping  of  a  person : 

8  "(1)  arrested; 

9  "(2)  held  pending  commitment  to  an  official  detention  facility; 

10  "  (3)  removed  from  a  federal  official  detention  facility  to  comply 

11  with  an  order  or  writ  issuing  from  a  court  of  competent  jurisdic- 

12  tion ;  or 

13  "(4)  held  under  an  order  of  transfer  to  a  community  treat- 

14  ment  facility. 

15  "§3016.  United  States  Probation  Service 

16  "An  officer  of  the  United  States  Probation  Service  may: 

17  "(a)  carry  a  firearm  pursuant  to  regulations  issued  by  the 

18  Judicial  Conference  of  the  United  States; 

19  "(b)  execute  a  warrant  for  the  arrest  of  a  probationer  or 

20  parolee : 

21  "(1)  in  the  judicial  district  in  which  the  officer  was  ap- 

22  pointed ;  or 

23  "(2)  in  any  judicial  district  if  the  warrant  was  issued  in 

24  the  judicial  district  in  which  the  officer  was  appointed;  and 

25  "(c)  make  an  arrest  without  a  warrant  of  a  probationer  or 

26  parolee  in  the  judicial  district  in  which  the  officer  was  appointed 

27  if  the  officer  has  reasonable  grounds  to  believe  that  the  person  to 

28  be  arrested  has  violated  a  condition  of  his  probation  or  parole. 

29  "§3017.  Bureau  of  Prisons 

30  Subject  to  the  direction  of  the  Attorney  General: 

31  "(a)  an  officer  or  employee  of  the  Bureau  of  Prisons  or  of 

32  the  Parole  Commission  may  carry  a  firearm; 

33  "(b)  an  officer  or  employee  of  the  Bureau  of  Prisons  may: 

34  "(1)  execute  a  warrant  for  the  arrest  of  a  parolee;  and 

35  "(2)   make  an  arrest  without  a  warrant  for  an  offense 

36  described  in  section  1313  (Escape),  1314  (Providing  or  Pos- 

37  sessing  Contraband  in  a  Prison),  1831   (Leading  a  Riot), 

38  1832  (Providing  Arms  for  a  Riot),  or  1833  (Engaging  in  a 


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188 

1  Riot),  if  he  has  reasonable  grounds  to  believe  that  the  person 

2  to  be  arrested  has  committed  or  is  committing  the  offense; 

3  and 

4  "(c)  the  chief  executive  officer  of  a  federal  official  detention 

5  facility  and  those  members  of  his  staff  whom  he  designates  may, 

6  without  fee,  administer  an  oath  to  and  take  an  acknowledgment 

7  of  an  officer,  employee,  or  inmate  of  such  facility. 

8  "§3018.  Immigration  and  Naturalization  Service 

9  "Subject  to  the  direction  of  the  Attorney  General,  an  officer  or 

10  employee  of  the  Immigration  and  Naturalization  Service  may : 

11  "(a)  carry  a  firearm ; 

12  "(b)  execute  an  order,  warrant,  subpoena,  or  other  process 

13  issued  under  authority  of  the  United  States  for  arrest,  search  or 

14  seizure,  or  production  of  evidence ; 

15  "(c)   make  an  arrest  without  warrant  for  an  offense  committed 

16  in  his  presence,  or  for  a  felony  committed  outside  his  presence  if 

17  he  has  reasonable  grounds  to  believe  that  the  person  to  be  arrested 

18  has  committed  or  is  committing  a  felony ; 

19  "(d)  offer  and  pay  a  reward  for  services  or  information  assist- 

20  ing  in  the  detection  or  investigation  of  the  commission  of  an 

21  offense  or  in  the  apprehension  of  an  offender;  and 

22  "(e)   perform  any  other  law  enforcement  duty  that  the  Attor- 

23  ney  General  may  designate. 

24  "§3019.  Department  of  the  Interior 

25  "Subject  to  the  direction  of  the  Secretary  of  the  Interior,  an  officer 

26  or  employee  of  the  Department  of  the  Interior,  charged  with  law 

27  enforcement  responsibilities  by  the  Secretary  of  the  Interior  may: 

28  "(a)  carry  a  firearm ; 

29  "(b)  execute  an  order,  warrant,  subpoena,  or  other  process 

30  issued  under  the  authority  of  the  United  States  for  arrest,  search 

31  or  seizure,  or  production  of  evidence ; 

32  "(c)  make  an  arrest  without  a  warrant  for  an  offense  com- 

33  mitted  in  his  presence,  or  for  a  felony  committed  outside  his  pres- 

34  ence,  if  he  has  reasonable  grounds  to  believe  that  the  person  to  be 

35  arrested  has  committed  or  is  committing  a  felony ; 

36  "(d)  offer  and  pay  a  reward  for  services  or  information  assist- 

37  ing  in  the  detection  or  investigation  of  the  commission  of  an  of- 

38  fense  or  in  the  apprehension  of  an  offender ;  and 

39  "(e)  perform  any  other  law  enforcement  duty  that  the  Secre- 

40  tary  of  the  Interior  may  designate. 


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189 

1  "Chapter  31.— ANCILLARY  INVESTIGATIVE  AUTHORITY 

"Subchapter 

"A.  Interception  of  Communications. 

"B.  Compulsory  of  Testimony  of  Witnesses. 

"C.  Protection  of  Witnesses. 

"D.  Payment  of  Rewards. 

2  "Subchapter  A. — Interception  of  Communications 

"Sec. 

"3101.  Auttiorization  for  Interception. 

"3102.  Application  for  an  Order  for  Interception. 

"3103.  Issuance  of  an  Order  for  Interception. 

"3104.  Interception  without  Prior  Authorization. 

"3105.  Records  and  Notice  of  Interception. 

"3106.  Use  of  Information  Obtained  from  an  Interception. 

"3107.  Report  of  Interception. 

"3108.  Definitions  for  Subchapter  A. 

3  "§3101.  Authorization  for  Interception 

4  "(a)  Federal. — The  interception  of  a  private  oral  communication 

5  may  be  authorized  or  approved  by  order  of  a  federal  court  of  com- 

6  petent  jurisdiction,  pursuant  to  the  provisions  of  section  3103,  if : 

7  "(1)  the  filing  of  an  application  for  such  an  order  is  authorized 

8  by: 

9  "  ( A )  the  Attorney  General ;  or 

10  "  ( B)  an  Assistant  Attorney  General  specifically  designated 

11  by  the  Attorney  General ; 

12  "(2)   the  application  is  filed,  pursuant  to  the  provisions  of 

13  section  3102,  by  a  law  enforcement  officer  of  a  government  agency 

14  having  responsibility  for  the  investigation  of  the  offense  concern- 

15  ing  which  the  application  is  made ;  and 

16  "(3)  the  interception  may  provide  or  has  provided  evidence 

17  of  the  commission  of  an  offense  described  in : 

18  "(A)  section  1101  (Treason),  1102  (Armed  Rebellion  or 

19  Insurrection),  1111   (Sabotage),  1112   (Impairing  Military 

20  Effectiveness),  1118  (Aiding  Escape  of  a  Prisoner  of  War  or 

21  an  Enemy  Alien),  1121   (Espionage),  1122  (Disseminating 

22  National  Defense  Information),  1123  (Disseminating  Clas- 

23  sified    Information),    1124     (Receiving    Classified    Infor- 

24  mation),  1131    (Atomic  Energy  Offenses),  1321    (Witness 

25  Bribery),  1322   (Corrupting  a  Witness  or  an  Informant), 

26  1323  (Tampering  with  a  Witness  or  an  Informant) ,  1324  (Re- 

27  taliating  Against  a  Witness  or  an  Informant),  1351  (Brib- 

28  ery),  1352  (Graft),  1601   (Murder),  1602   (Manslaughter), 

29  1611  (Maiming),  1612  (Aggravated  Battery),  1615  (Terror- 

30  izing),  1621  (Kidnapping),  1622  (Aggravated  Criminal  Re- 


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190 

1  straint),  1631    (Aircraft  Hijacking),  1701    (Arson),  1702 

2  (Aggravated  Property  Destruction),  1721  (Robbery),  1722 

3  (Extortion),  1723  (Blackmail),  1731  (Theft),  1732  (Traf- 

4  fickingin  Stolen  Property),  1735  (Bankruptcy  Fraud),  1741 
6  (Counterfeiting),  1742   (Forgery),  1752  (Labor  Bribery), 

6  1801  (Operating  a  Racketeering  Syndicate),  1802  (Racke- 

7  teering),    1803    (Washing    Racketeering    Proceeds),    1804 

8  (Loansharking),  1805  (Facilitating  a  Racketeering  Activity 

9  by  Violence),  1811  (Trafficking  in  an  Opiate),  1812  (Traf- 

10  ficking  in  Drugs) ,  1821  (Explosives  Offenses) ,  1831  (Leading 

11  a  Riot),  1832  (Providing  Arms  for  a  Riot),  or  1841  (Engag- 

12  ing  in  a  Gambling  Business) ,  or 

13  "(B)  section  1002  (Criminal  Conspiracy)  or  1003  (Crimi- 

14  nal  Solicitation) ,  if  an  objective  of  the  conspiracy  or  the  crime 

15  solicited  is  an  offense  set  forth  in  subparagraph  (A). 

16  "(b)  State. — To  the  extent  permitted  by  a  state  statute,  the  inter- 

17  ception  of  a  private  oral  communication  may  be  authorized  or  ap- 

18  proved  by  order  of  a  state  court  of  competent  jurisdiction,  pui-suant 

19  to  the  provisions  of  applicable  state  law  and  in  substantial  conformity 

20  with  the  provisions  of  section  3102,  if : 

21  "(1)  an  application  for  such  an  order  is  filed,  pursuant  to  the 

22  provisions  of  applicable  state  law  and  in  substantial  compliance 

23  with  the  provisions  of  section  3102,  by  the  principal  prosecuting 

24  attorney  of  the  state  or  locality  acting  on  behalf  of  a  government 

25  agency  having  responsibility  for  the  investigation  of  the  offense 

26  concerning  which  the  application  is  made ;  and 

27  "(2)  the  interception  may  provide  or  has  provided  evidence 

28  of  the  commission  of  an  offense  involving: 

29  "(A.)    bribery,  murder,  kidnapping,   robbery,   extortion, 

30  trafficking  in  a  drug  that  is  a  controlled  substance  as  defined 

31  in  section  102  of  the  Controllod  Suoptances  Act  (21  U.S.C. 

32  802) ,  or  gambling ; 

33  "(B)  theft,  fraud,  or  a  crime  of  violence  that  is  a  felony, 

34  that  is  designated  in  an  applicable  stiitc  statute  as  an  offense 

35  for  whirh  interception  may  be  ordered ;  or 

30  "(C)  a  conspiracy  or  solicitation  if  an  objective  of  the  con- 

37  spiracy  or  the  crime  solicited  is  an  offense  set  forth  in  sub- 

38  paragraph  (A)  or  (3). 


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191 


1  "§3102.  Application  for  an  Order  for  Interception 

2  "(a)  Application. — An  application  for  an  order,  or  an  extension 

3  of  an  order,  authorizing  or  approving  the  interception  of  a  private 

4  oral  communication  shall  be  made  in  writing  under  oath  or  equivalent 

5  affirmation  to  a  court  of  competent  jurisdiction  and  shall  include  the 

6  following  information: 

7  "(1)  the  identity  of  the  law  enforcement  officer  making  the 

8  application  and  of  the  officer  authorizing  the  application ; 

9  "(2)  the  authority  of  the  applicant  to  make  the  application; 

10  "(3)  a  complete  statement  of  the  facts  relied  upon  by  the 

11  applicant  to  justify  his  belief  that  an  order  should  be  issued, 

12  including : 

13  "(A)  details  as  to  the  particular  offense  that  has  been,  is 

14  being,  or  is  about  to  be  committed ; 

15  "(B)  the  identity,  if  known,  of  the  person  involved  in  the 

16  commission  of  the  offense  whose  communication  is  to  be  inter- 

17  cepted ; 

18  "(C)  a  particular  description  of  the  character  and  loca- 

19  tion  of  the  facilities  from  which,  or  the  place  at  which,  the 

20  communication  is  to  be  intercepted ;  and 

21  "(D)  a  particular  description  of  the  kind  of  communica- 

22  tion  sought  to  be  intercepted ; 

23  "(4)  a  complete  statement  of  other  investigative  procedures 

24  that  have  been  tried  in  the  investigation  and  that  have  failed,  or 

25  that  have  not  been  tried  in  the  investigation  because  they  reason- 

26  ably  appear  to  be  unlikely  to  succeed  or  to  be  too  dangerous ; 

27  "(5)   a  statement  of  the  period  of  time  for  which  the  intercep- 

28  tion  is  required  to  be  maintained,  and,  if  the  character  of  the 

29  investigation  is  such  that  the  authorization  for  interception  should 

30  not  automatically  tenninate  when  the  described  kind  of  com- 

31  munication  has  been  first  obtained,  a  particular  c'     -iption  of 

32  facts  establishing  probable  cause  to  believe  th  t  an  additional 

33  communication  of  the  same  kind  will  occur  thereafter ; 

34  "(6)   a  complete  statement  of  the  facts  concernine  all  previous 

35  applications  known  to  the  applicant  that  have  been  made  to  any 

36  court  for  issuance  of  an  order  authorizing  or  approving  the  inter- 

37  ception  of  a  private  oral  communication  involving  any  of  the 


fl2-465  O  -  77  -  71 


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192 

1  same  persons,  facilities,  or  places  specified  in  the  application,  and 

2  the  action  taken  by  the  court  on  each  such  application ;  and 

3  "(7)  if  the  application  is  for  the  extension  of  an  order,  a  state- 

4  ment  setting  forth  the  results  thus  far  obtained  from  the  inter- 

5  ception,  or  a  reasonable  explanation  of  the  failure  to  obtain  such 

6  results. 

7  "  (b)  Additional  Evidence. — The  court  may  require  the  applicant 

8  to  furnish  additional  testimony  or  documentary  evidence  in  support 

9  of  the  application. 

10  "§3103.  Issuance  of  an  Order  for  Interception 

11  "(a)   Findings. — Upon  an  application  made  pursuant  to  section 

12  3102,  the  court  may  issue  an  ex  parte  order,  as  requested  in  the  appli- 

13  cation  or  as  found  warranted  by  the  court,  authorizing  or  approving 

14  interception  of  a  private  oral  communication  within  the  geographic 

15  jurisdiction  of  such  court  if  the  court  determines  on  the  basis  of  the 

16  facts  submitted  by  the  applicant  that : 

17  "(1)  there  is  probable  cause  to  believe  that  a  person  is  com- 

18  mitting,  has  committed,  or  is  about  to  commit  a  particular  offense 

19  set  forth  in  section  3101 ; 

20  "(2)  there  is  probable  cause  to  believe  that  a  particular  com- 

21  munication  concerning  the  offense  will  be  obtained  through  such 

22  interception ; 

23  "(3)  other  investigative  procedures  have  been  tried  and  have 

24  failed,  or  have  not  been  tried  because  they  reasonably  appear  to  be 

25  unlikely  to  succeed  or  to  be  too  dangerous ;  and 

26  "  (4)  there  is  probable  cause  to  believe  that  a  facility  from  which, 

27  or  the  place  at  which,  the  communication  is  to  be  intercepted : 

28  "(A)  is  being  used,  or  is  about  to  be  used,  in  connection  with 

29  the  commission  of  the  offense ;  or 

30  "(B)  is  leased  to,  listed  in  the  name  of,  or  commonly  used 

31  by  a  person  who  is  committing,  has  committed,  or  is  about  to 

32  commit  the  offense. 

33  "(b)  Order. — An  order  issued  under  this  section : 

34  "(1)  shall  specify: 

35  "(A.)  the  identity,  if  known,  of  the  person  whose  com- 

36  munication  is  to  be  intercepted ; 

37  "(B)   the  character  and  location  of  the  facilities   from 

38  which,  or  the  place,  at  which,  the  communication  is  to  be 

39  intercepted ; 


9677 

193 

1  "(C)  a  particular  description  of  the  kind  of  communica- 

2  tion  sought  to  be  intercepted,  and  a  statement  of  the  partic- 

3  ular  offense  to  which  it  relates ; 

4  "(D)  the  identity  of  the  government  agency  authorized 

5  to  intercept  the  communication  and  of  the  person  authorizing 

6  the  application ;  and 

7  "(E)  the  period  of  time  during  which  the  interception  is 

8  authorized,  and  whether  the  interception  must  automatically 

9  terminate  when  the  described  communication  has  been  first 

10  obtained;  and 

11  "  (2)  shall  direct,  upon  the  request  of  the  applicant : 

12  "(A.)   that  a  communications  common  carrier,  landlord, 

13  custodian,  or  other  person  furnish  the  applicant  forthwith 

14  all  information,  facilities,  and  technical  assistance  necessary 

15  to  accomplish  the  interception  unobtrusively  and  with  a  mini- 

16  mum  of  interference  with  the  services  that  such  carrier,  land- 

17  lord,  custodian,  or  other  person  is  according  the  person  whose 

18  communication  is  to  be  intercepted ;  and 

19  "(B)   that  the  applicant  compensate,  at  the  prevailing 

20  rates,  such  carrier,  landlord,  custodian,  or  other  person  for 

21  furnishing  such  facilities  or  technical  assistance. 

22  "(c)  Period  and  Manner  of  Interception. — An  order  issued  under 

23  this  section  may  authorize  or  approve  the  interception  of  a  private 

24  oral  communication  for  the  period  necessary  to  achieve  the  purposes 

25  of  the  authorization,  or  for  thirty  days,  whichever  is  less.  Extensions 

26  of  an  order  may  be  granted,  after  an  application  for  an  extension  made 

27  in  accordance  with  the  provisions  of  section  3102(a)  and  after  find- 

28  ings  concerning  an  extension  in  accordance  with  the  provisions  of  sub- 

29  section   (a).  The  period  of  extension  may  be  for  the  period  neces- 

30  sary  to  achieve  the  purposes  for  which  it  was  granted,  or  for  thirty 

31  days,  whichever  is  less.  An  order  and  extension  of  an  order  shall  direct 

32  that  the  interception  be  executed  as  soon  as  practicable,  be  conducted  in 

33  such  a  way  as  to  minimize  the  interception  of  communications  not 

34  otherwise  subject  to  interception  under  this  subchapter,  and  be  termi- 

35  nated  upon  attainment  of  the  authorized  objective,  or  in  thirty  days, 

36  whichever  is  less. 

37  "(d)  Periodic  Reports. — An  order  issued  under  this  section  may 

38  require  that  periodic  reports  be  made  to  the  court  that  issued  the 


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194 

1  order  stating  the  progress  made  toward  achievement  of  the  authorized 

2  objective  and  the  need  for  continued  interception. 

3  "§3104.  Interception  Without  Prior  Authorization 

4  "(a)  Unrelated  Interception  in  the  Course  of  an  Authorized 

5  Interception. — If  a  law  enforcement  officer,  while  engaged  in  in- 

6  tercepting  a  private  oral  communication  in  accordance  with  the  pro- 

7  visions  of  this  subchapter,  intercepts  a  private  oral  communication 

8  that  relates  to  an  offense  other  than  an  offense  specified  in  the  order 

9  of  authorization  or  approval,  he  may,  in  order  to  permit  the  disclo- 

10  sure  or  use  of  its  contents  or  evidence  derived  from  its  contents  dur- 

11  ing  testimony  in  an  official  proceeding,  make  an  application,  in  accord- 

12  ance  with  section  3102,  for  an  order  approving  such  interception  as 

13  soon  as  practicable  after  the  unrelated  interception.  The  court  shall 

14  enter  such  an  order  if  it  finds  that  the  communication  was  otherwise 

15  intercepted  in  accordance  with  the  provisions  of  this  subchapter. 

16  "(b)  Emergency  Interception. — Notwithstanding  any  other  pro- 

17  vision  of  this  subchapter,  a  law  enforcement  officer  may  intercept  a 

18  private  oral  communication  without  a  court  order  if : 

19  "(1)  he  is  specially  authorized  to  do  so  by  the  Attorney  Gen- 

20  eral,  or  by  the  principal  prosecuting  attorney  of  a  state  or  locality 

21  acting  pursuant  to  a  statute  of  that  state ; 

22  "  ( 2 )  he  reasonably  determines  that : 

23  "(^)  ^n  emergency  situation  exists  with  respect  to  an  of- 

24  fense  described  in  section  1101  (Treason).  1111  (Sabotage), 

25  or  1121   (Espionage),  or  an  offense  that  involves  a  risk  of 

26  death ; 

27  "(B)  the  emergency  situation  requires  a  private  oral  com- 

28  munication  to  be  intercepted  before  an  order  authorizing  such 

29  interception    can,    with    due    diligence,   be    obtained;    and 

30  "(C)  there  are  grounds  upon  which  an  order  could  be  en- 

31  tered  under  this  subchapter  to  authorize  such  interception; 

32  and 

33  "(3)  an  application  for  an  order  approving  the  interception  is 

34  made  in  accordance  with  section  3102  as  soon  as  practicable,  but 

35  not  more  than  forty-eight  hours,  after  the  interception  has  oc- 

36  curred  or  commenced. 

37  In  the  absence  of  an  order  approving  the  interception,  the  interception 

38  shall  terminate  immediately  when  the  communication  sought  is  ob- 

39  tained  or  when  the  application  for  the  order  is  denied,  whichever  is 

40  earlier.  If  the  application  for  approval  is  denied,  the  contents  of  any 


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1 


private  oral  communication  intercepted  shall  be  treated  as  having  been 

2  obtained  in  violation  of  this  subchapter,  and  a  notice  shall  be  served 

3  as  provided  in  section  3105(b). 

4  "§3105.  Records  and  Notice  of  Interception 

5  "(a)  Maintenanck OF  Records. — 

6  "  ( 1)  The  contents  of  a  private  oral  communication  intercepted 

7  by  any  means  authorized  by  law  shall,  unless  impracticable,  be 

8  recorded  on  a  sound  recording  device,  and  be  recorded  in  a  manner 

9  that  will  protect  the  recording  from  editing  or  other  altei'ation. 

10  As  soon  as  practicable  after  the  expiration  of  the  period  set  forth 

11  in  the  order,  or  in  an  extension  of  an  order,  the  recording  shall  be 

12  made  available  to  the  court  issuing  the  order,  shall  be  sealed  under 

13  its  direction,  and  shall  be  placed  under  such  custody  as  the  court 

14  may  order.  The  recording  may  not  be  destroyed  for  a  period  of 

15  ten  years,  and  may  not  be  destroyed  after  that  period  except  upon 

16  an  order  of  the  court.  A  duplicate  recording  may  be  made  for  use 

17  or  disclosure  to  the  extent  that  such  use  or  disclosure  is  appropriate 

18  to  the  proper  performance  of  official  duties. 

19  "(2)  An  application  made  and  an  order  issued  under  this  sub- 

20  chapter  shall  be  sealed  by  the  court  issuing  the  order,  and  shall  be 

21  placed  under  such  custody  as  the  court  may  direct,  and  shall  be 

22  disclosed  only  upon  a  showing  of  good  cause.  The  application 

23  and  order  may  not  be  destroyed  for  a  period  of  ten  years,  and  may 

24  not  be  destroyed  after  that  period  except  upon  an  order  of  the 

25  court. 

26  "(b)  Service  of  Notice  to  Parties. — 

27  "  ( 1 )  Within  a  reasonable  time,  but  not  more  than  ninety  days, 

28  after  the  termination  of  the  period  for  which  an  interception  is 

29  authorized  by  an  order  or  an  extension  of  an  order,  or  after  the 

30  filing  of  an  application,  that  is  subsequently  denied,  for  an  order 

31  of  approval  under  section  3104(b),  the  court  shall  order  notice  to 

32  be  served  on  the  person  named  in  the  order  or  in  the  application, 

33  and  on  such  other  person  who  is  a  party  to  an  intercepted  private 

34  oral  communication  as  the  court  may  determine  to  be  in  the  in- 

35  terest  of  j  ustice.  The  notice  shall  include : 

36  "  ( A )  the  fact  and  date  of  the  issuance  of  the  order  or  of  the 

37  filing  and  denial  of  the  application ; 

38  "(B)  the  period  of  the  authorized,  approved,  or  disap- 

39  proved  interception ; 


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1  "(C)  the  fact  that  during  the  period  a  private  oral  com- 

2  munication  was  or  was  not  intercepted. 

3  «(2)  The  court,  upon  the  filing  of  a  motion  by  a  person  upon 

4  whom  the  notice  is  served,  may  make  available  for  inspection  by 

5  such  person  or  his  counsel  any  portion  of  the  contents  of  an  inter- 

6  cepted  private  oral  communication,  the  evidence  derived  from 

7  such  contents,  the  application,  or  the  order,  that  the  court  deter- 

8  mines  to  be  in  the  interest  of  justice. 

^  "(3)  On  an  ex  parte  showing  of  good  cause  to  the  court,  the 

10  serving  of  the  notice  may  be  postponed. 

11  "§3106.  Use  of  Information  Obtained  from  an  Interception 

12  "(a)  Disclosure  AND  Use. — 

13  "(1)  A  law  enforcement  officer  who,  in  accordance  with  the 

14  provisions  of  this  subchapter,  has  obtained  knowledge  of  the  con- 

15  tents  of  a  private  oral  communication,  including  the  contents  of 

16  an  unrelated  interception  as  set  forth  in  section  3104(a),  or  evi- 

17  dence  derived  from  such  contents,  may  disclose  or  use  such  con- 

18  tents  to  the  extent  that  disclosure  is  appropriate  to  the  proper 

19  performance  of  his  official  duties. 

20  "(2)  A  person  who,  in  accordance  with  the  provisions  of  this 

21  subchapter,  has  received  information  concerning  the  contents  of  a 

22  private  oral  communication,  including  the  contents  of  an  unre- 

23  lated  interception  for  which  an  order  has  been  issued  as  set  forth  in 

24  section  3104(a),  or  evidence  derived  from  such  contents,  may  dis- 

25  close  or  use  such  contents  while  giving  testimony  under  oath  or 

26  affirmation  in  an  official  proceeding. 

27  "(3)   A  privileged  private  oral  communication  that  is  inter- 

28  cepted  in  accordance  with,  or  in  violation  of,  the  provisions  of  this 

29  chapter  does  not  lose  its  privileged  character  because  of  its  being 

30  intercepted. 

31  "(b)  Seal. — The  presence  of  the  seal  provided  for  by  section  3105 

32  (a) ,  or  a  satisfactory  explanation  for  the  absence  of  such  seal,  is  a  pre- 

33  requisite  to  the  use  or  disclosure  of  the  contents  of  an  intercepted  pri- 

34  vate  oral  communication,  or  evidence  derived  from  such  contents,  in  an 

35  official  proceeding. 

36  "(c)  Prk-trial  Notice. — The  contents  of  an  intercepted  private  oral 

37  communication,  or  evidence  derived  from  such  contents,  may  not  be 

38  received  in  evidence  or  otherwise  disclosed  in  an  official  proceeding  in 

39  a  court  unless  each  aggrieved  person  who  is  a  party  in  the  official 

40  proceeding  has,  not  less  than  ten  days  before  the  official  proceeding, 

41  been  furnished  with  a  copy  of  the  court  order,  and  the  accompanying 


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1  application,  under  which  the  interception  was  authorized  or  approved. 

2  The  ten  day  period  may  be  waived  by  the  court  if  it  finds  that  it  was  not 

3  possible  to  furnish  such  person  with  the  information  ten  days  before 

4  the  official  proceeding,  and  that  the  person  will  not  be  prejudiced  by 

5  delay  in  receiving  the  information. 

6  "(d)  SuppiuEssioN  OF  Evidence. — 

7  "(1)  An  aggrieved  person  in  an  official  proceeding  before  a 

8  government  agency  of  the  United  States,  a  state,  or  a  locality, 

9  may  make  a  motion  to  suppress  the  contents  of  an  intercepted 

10  private  oral  communication,  or  evidence  derived  from  such  con- 

11  tents,  on  the  ground  that : 

12  "(A-)  the  communication  was  unlawfully  intercepted ; 

13  "(B)  the  order  of  authorization  or  approval  under  which 

14  it  was  intercepted  is  insufficient  on  its  face ;  or 

15  "(C)  the  interception  was  not  made  in  conformity  with 

16  the  order  of  authorization  or  approval. 

17  If  the  motion  alleges  that  the  evidence  sought  to  be  suppressed  has 

18  been  derived  from  the  contents  of  an  unlawfully  intercepted  pri- 

19  vate  oral  communication,  and  if  the  aggrieved  person  has  not  been 

20  served  with  notice  of  such  an  interception  as  provided  by  section 

21  3105(b),  the  opponent  of  the  allegation  shall  affirm  or  deny  the 

22  occurrence  of  the  alleged  unlawful  interception,  but  no  such 

23  motion  shall  be  considered  if  the  alleged  unlawful  interception 

24  took  place  more  than  five  years  before  the  event  to  which  the 

25  evidence  relates. 

26  "(2)  The  motion  shall  be  made  prior  to  the  official  proceeding 

27  unless  there  was  no  opportunity  to  make  the  motion  or  unless 

28  the  aggrieved  person  was  not  aware  of  the  grounds  for  the 

29  motion. 

30  "(3)  A  court  of  competent  jurisdiction,  upon  the  filing  of  a 

31  motion  by  an  aggrieved  person,  may  make  available  for  inspec- 

32  tion  by  the  aggrieved  person  or  his  counsel  any  portion  of  the 

33  contents  of  an  intercepted  private  oral  communication,  or  the  evi- 

34  dence  derived  from  such  contents,  the  court  determines  to  be 

35  in  the  interest  of  justice. 

36  "(4)   No  part  of  the  contents  of  a  private  oral  communication 

37  that  has  been  unlawfully  intercepted,  and  no  evidence  derived 

38  from  such  contents,  may  be  received  in  evidence  in  an  official  pro- 

39  ceeding  before  a  government  agency  of  the  United  States,  a  state, 

40  or  a  locality. 


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198 

1  *^3107.  Report  of  Interception 

2  "(a)  Judicial  Report. — Within  thirty  days  after  the  expiration  of 

3  the  period  of  interception  authorized  in  an  order,  or  extension  of  an 

4  order,  entered  under  section  3103,  or  after  the  denial  o'  an  applica- 

5  tion  for  an  order  approving  an  interception,  the  court  shall  report  to 

6  the  Administrative  Office  of  the  United  States  Courts : 

7  "(1)  the  fact  that  an  order  or  extension  was  applied  for; 

8  "  (2)  the  identity  of  the  law  enforcement  officer  and  the  govern- 

9  ment  agency  making  the  application  and  the  person  authorizing 

10  the  application ; 

11  "(3)  the  kind  of  order  or  extension  applied  for; 

12  "(4)  the  offense  specified  in  the  application  for  the  order  or 

13  extension ; 

14  "  (5)  the  fact  that  the  application  for  the  order  or  extension  was 

15  granted  as  applied  for,  was  granted  in  a  modified  form,  or  was 

16  denied ; 

17  "(6)   the  period  of  interception  authorized  by  the  order  or 

18  extension ; 

19  "(7)  the  nature  of  the  facilities  from  which,  or  the  place  at 

20  which,  the  private  oral  communication  was  to  be  intercepted ;  and 

21  "(8)  any  related  information  that  the  Administrative  Office 

22  of  the  United  States  Courts  may  by  regulation  require. 

23  "(b)  Prosecutive  Report. — In  January  of  each  year,  the  Attorney 

24  General,  or  the  principal  prosecuting  attorney  of  a  state  or  locality, 

25  shall  report  to  the  Administrative  Office  of  the  United  States  Courts : 

26  "(1)  the  information  required  by  subsection  (a)  with  respect 

27  to  each  application  for  an  order,  or  extension  of  an  order,  made 

28  during  the  preceding  calendar  year ; 

29  "(2)  a  general  description  of  the  interceptions  made  under  such 

30  orders  or  extensions,  including : 

31  "(A.)  the  approximate  nature  and  frequency  of  incrimi- 

32  nating  communications  intercepted ; 

33  "(B)   the  approximate  nature  and  frequency  of  other  com- 

34  munications  intercepted; 

35  "(C)  the  approximate  number  of  persons  whose  communi- 

36  cations  were  intercepted;  and 

37  "(D)  the  approximate  nature,  amount,  and  cost  of  the 

38  manpower  and  other  resources  used  in  the  interceptions ; 

39  "(3)  the  number  of  arrests  and  summonses  in  lieu  of  arrests 

40  resulting  from  the  interceptions,  and  the  offenses  which  were  the 

41  subjects  of  such  arrests  and  summonses ; 


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1  "(4)  the  number  of  trials  resulting  from  the  interceptions ; 

2  "(5)  the  number  of  motions  to  suppress  made  with  respect  to 

3  the  intercejitions,  and  the  number  granted  or  denied ; 

4  "(6)  the  number  of  convictions  resulting  from  the  intercep- 

5  tions,  the  offenses  for  which  the  convictions  were  obtained,  and  a 

6  general  assessment  of  the  importance  of  the  interceptions  in  ob- 

7  taining  the  convictions ;  and 

8  "(7)   any  related  information  that  the  Administrative  Office  of 

9  the  United  States  Courts  may  by  regulation  require. 

10  "(c)  Administrative  Office  Report. — In  April  of  each  year,  the 

11  Director  of  the  Administrative  Office  of  the  United  States  Courts  shall 

12  transmit  to  the  Congress  a  complete  report  concerning  the  number  of 

13  applications  made  for  orders  and  extensions  of  orders  authorizing  or 

14  approving  the  interception  of  private  oral  communications  and  the 

15  number  of  such  orders  and  extensions  granted  or  denied  during  the 

16  preceding  calendar  year.  The  report  shall  include  a  summary  and 

17  analysis  of  the  data  required  to  be  filed  with  the  Administrative  Office 

18  under  subsection  (a)  and  (b). 

19  "(d)  Regulations  Concerning  Reports. — The  Director  of  the  Ad- 

20  ministrative  Office  of  the  United  States  Courts  is  authorized  to  issue 

21  regulations  dealing  with  the  content  and  form  of  the  reports  required 

22  to  be  filed  pursuant  to  subsections  (a)  and  (b). 

23  "§  3108.  Definitions  for  Chapter  A 

24  "As  used  in  this  subchapter : 

25  "(a)  'aggrieved  person'  means  a  person  who  was  a  party  to  an 

26  intercepted  private  oral  communication  or  a  person  against  whom 

27  an  interception  was  directed ; 

28  "(b)   'communications  common  carrier'  has  the  meaning  set 

29  forth  for  the  term  'common  carrier'  in  section  3(h)  of  the  Act  of 

30  June  19, 1934,  as  amended  (47  U.S.C.  153(h))  ; 

31  "(c)  'contents',  when  used  with  respect  to  a  private  oral  com- 

32  munication,  has  the  meaning  set  forth  in  section  1526(b) ; 

33  "  (d)  'court  of  competent  jurisdiction'  means : 

34  "(1)   a  district  court  of  the  United  States  or  a  United 

35  States  Court  of  Appeals ;  or 

36  "(2)  a  state  court  of  general  criminal  jurisdiction  author- 

37  ized  by  a  statute  of  that  state  to  enter  an  order  authorizing 

38  interception  of  a  private  oral  communication ; 

39  "  (e)  'eavesdropping  device'  has  the  meaning  set  forth  in  section 

40  1525(c); 


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1  "(f)  'intercept'  means  to  acquire  the  contents  of  a  communica- 

2  tion  through  the  use  of  an  eavesdropping  device  and  includes  the 

3  acquisition  of  such  contents  by  simultaneous  transmission  or  by 

4  recording; 

5  "(g)  'private  oral  communication'  has  the  meaning  set  forth  in 

6  section  1525(f). 

7  "Subchapter  B. — Compulsion  of  Testimony  of  Witnesses 

"Sec. 

"3111.  CJompulsion  of  Testimony  Generally. 
"3112.  Court  or  Grand  Jury  Proceedings. 
"3113.  Administrative  Proceedings. 
"3114.  Congressional  Proceedings. 
"3115.  Definitions  for  Subchapter  B. 

8  "§3111.  Compulstion  of  Testimony  Generally 

9  "(a)  Self-Incrimination  Claim  Precluded. — If  a  person  refuses, 

10  on  the  basis  of  his  privilege  against  self-incrimination,  to  testify  or  to 

11  produce  a  record,  document,  or  other  object  in  an  official  proceeding 

12  conducted  under  the  authority  of : 

13  "(1)  a  court  or  grand  jury  of  the  United  States; 

14  "  (2)  an  agency  of  the  United  States ;  or 

15  "  (3)  Congress  or  either  House  of  Congress ; 

16  and  the  presiding  officer  informs  the  person  of  an  order  issued  under 

17  this  subchapter,  the  person  may  not  refuse  to  comply  with  the  order 

18  on  the  basis  of  his  privilege  against  self-incrimination. 

19  "(b)  Use  of  Testimony  Against  Witness  Precluded. — The  testi- 

20  mony  or  production  that  is  compelled  under  the  order,  and  any  infor- 

21  mation  directly  or  indirectly  derived  from  the  testimony  or  produc- 

22  tion,  may  not  be  used  against  the  person  in  any  manner  a  criminal 

23  case,  except  in  a  prosecution  for : 

24  "(1)    an  offense  described  in  section   1341    (Perjury),   1342 

25  (False  Swearing),  or  1343  (Making  a  False  Statement)  that  is 

26  committed  in  the  course  of  the  testimony  or  production;  or 

27  "(2)   an  offense  involving  a  failure  to  comply  with  the  order. 

28  "§  3112.  Court  or  Grand  Jury  Proceedings 

29  "(a)  Issuance  of  Order. — If  a  person  has  been  or  may  be  sub- 

30  poenaed  to  testify  or  to  produce  a  record,  document,  or  other  object 

31  in  an  official  proceeding  conducted  under  the  authority  of  a  court  or 

32  grand  jury  of  the  United  States,  the  district  court  for  the  judicial 

33  district  in  which  the  official  proceeding  is  or  may  be  held  shall,  upon 

34  the  application  of  the  United  States  attorney  for  the  district  pursuant 

35  to  subsection  (b),  issue  an  order  requiring  the  person  to  testify  or  to 

36  produce  the  record,  document,  or  other  object  notwithstanding  his 


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1  refusal  to  do  so  on  the  basis  of  his  privilege  against  self-incrimination. 

2  The  order  shall  become  effective  as  provided  in  section  3111. 

3  "(b)   Criteria  for  Order. — A  United  States  attorney  may,  with 

4  the  approval  of  the  Attorney  General,  the  Deputy  Attorney  General, 

5  or  any  designated  Assistant  Attorney  General,  apply  for  an  order  un- 

6  der  subsection  (a)  if  in  his  judgment : 

7  "(1)  the  testimony  or  the  record,  document,  or  other  object 

8  may  be  necessary  to  the  public  interest ;  and 

9  "(2)  the  person  has  refused  or  is  likely  to  refuse  to  testify  or 

10  to  produce  the  record,  document,  or  other  object  on  the  basis  of  his 

11  privilege  against  self-incrimination. 

12  "§  3113.  Administrative  Proceedings 

13  "(a)  Issuance  of  Order. — If  a  person  has  been  or  may  be  sub- 

14  poenaed  to  testify  or  to  produce  a  record,  document,  or  other  object 

15  in  an  official  proceeding  conducted  under  the  authority  of  an  agency 

16  of  the  United  States,  the  agency  may,  pursuant  to  subsection  (b) ,  issue 

17  an  order  requiring  the  person  to  testify  or  to  produce  the  record,  docu- 

18  ment,  or  other  object  notwithstanding  his  refusal  to  do  so  on  the  basis 

19  of  his  privilege  against  self-incrimination.  The  order  shall  become 

20  effective  as  provided  in  section  3111. 

21  "(b)  Criteria  for 'Order. — An  agency  of  the  United  States  may, 

22  with  the  approval  of  the  Attorney  General,  the  Deputy  Attorney  Gen- 

23  eral,  or  any  designated  Assistant  Attorney  Greneral,  issue  an  order 

24  imder  subsection  (a)  if  in  its  judgment : 

25  "  ( 1 )  the  testimony  or  the  record,  document,  or  other  object  may 

26  be  necessary  to  the  public  interest ;  and 

27  "(2)  the  person  has  refused  or  is  likely  to  refuse  to  testify  or 

28  to  produce  the  record,  document,  or  other  object  on  the  basis  of 

29  his  privilege  against  self-incrimination. 

30  "§  3114.  Congressional  Proceedings 

31  "  ( a )  Issuance  of  Order. — If  a  person  has  been  or  may  be  subpoenaed 

32  to  testify  or  to  produce  a  record,  document,  or  other  object  in  an  offi- 

33  cial  proceeding  conducted  under  the  authority  of  Congress  or  of 

34  cither  House  of  Congress,  the  district  court  of  the  United  States  for  the 

35  judicial  district  in  which  the  official  proceeding  is  or  may  be  held  shall, 

36  upon  the  application  of  a  duly  authorized  representative  of  the  House 

37  of  Congress  or  the  concerned  subcommittee,  committee,  or  joint  com- 

38  mittee  of  Congress  pursuant  to  subsection  (b) ,  issue  an  order  requiring 

39  the  person  to  testify  or  to  produce  the  record,  document,  or  other  object 

40  notwithstanding  his  refusal  to  do  so  on  the  basis  of  his  privilege 


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1  against  self-incrimination.  The  order  shall  become  effective  as  provided 

2  in  section  3111. 

3  "(b)  Criteria  for  Order. — A  request  for  an  order  under  subsection 

4  (a)  may  be  made  if : 

5  "  (1)  the  application  for  the  order  has  been  approved : 

6  "(A)  in  the  case  of  an  official  proceeding  before  a  House 

7  of  Congress  by  an  affirmative  vote  of  a  majority  of  the  mem- 

8  bers  present  in  tliat  House ;  or 

9  "(B)  in  the  case  of  an  official  proceeding  before  a  com- 

10  mittee,  subcommittee,  or  joint  committee  of  Congress  by  an 

11  affirmative  vote  of  two-thirds  of  the  members  of  the  full 

12  committee;  and 

13  "  (2)  ten  days  or  more  prior  to  the  day  on  which  the  application 

14  for  the  order  was  made,  the  Attorney  General  was  served  with 

15  notice  of  an  intention  to  request  the  order. 

16  "(c)  Postponement  of  Order. — Upon  application  of  the  Attorney 

17  General,  the  court  shall  defer  the  issuance  of  an  order  under  subsection 

18  (a)  for  a  period  of  twenty  days  from  the  date  of  the  application  for  the 

19  order,  or  for  such  lesser  period  as  the  Attorney  General  may  specify. 

20  "§3115.  Definitions  for  Subchapter  B 

21  "As  used  in  this  subchapter : 

22  "(a)  'agency  of  the  United  States'  means  an  executive  depart- 

23  ment,  as  defined  in  5  U.S.C.  101 ;  a  military  department,  as  defined 

24  in  5  U.S.C.  102 ;  the  Atomic  Energy  Commission ;  the  China  Trade 

25  Act  registrar  appointed  under  section  3  of  that  Act  (15  U.S.C. 

26  14'^);   the  Civil  Aeronautics   Board;   the  Commodity   Futures 

27  Trading  Commission ;  the  Federal  Communications  Commission; 

28  the  Federal  Deposit  Insurance  Corporation ;  the  Federal  Maritime 

29  Commission ;  the  Federal  Power  Commission ;  the  Federal  Trade 

30  Commission ;  the  Interstate  Commerce  Commission ;  the  National 

31  Credit  Union   Administration;   the  National   Labor  Relations 

32  Board;  the  National  Transportation  Safety  Board,  the  Railroad 

33  Retirement  Board ;  the  Securities  and  Exchange  Commission ;  the 

34  United  States  Victim  Compensation  Board;  an  arbitration  board 

35  established  under  section  7  of  the  Railway  Labor  Act,  as  amended 

36  (45  U.S.C.  157) ;  or  a  board  establislied  under  section  5  of  the 

37  Act  of  February  22, 1935  ( 15  U.S.C.  715d)  ; 

38  "(b)  'court  of  the  United  States'  includes  the  Superior  Court 

39  and  the  Court  of  Appeals  of  the  District  of  Columbia. 


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1  "Subchapter  C. — Protection  of  Witnesses 

"Sec. 

"3121.  Facilities  for  Witness  Protection. 

"3122.  Reimbursement  for  Witness  Protection  Expenses. 

"3123.  Definitions  for  Subcliapter  C. 

2  "§3121.  Facilities  for  Witness  Protection 

3  "The  Attorney  General  may  provide  for  the  security  of  govem- 

4  ment  witnesses,  potential  government  witnesses,  and  their  immediate 

5  families,  in  official  proceedings  instituted  against  a  person  alleged 

6  to  have  engaged  in  racketeering  activity  or  other  offenses  similar  in 

7  nature,  or  involving  offenses  the  investigation  or  prosecution  of  which 

8  is  likely  under  the  circumstances  to  cause  the  commission  of  an  offense 

9  described  in  section  1324  (Retaliating  against  a  Witness  or  an  In- 

10  formant) .  The  Attorney  General  may  provide  housing  facilities  and 

11  otherwise  provide  for  the  health,  safety,  and  welfare  of  such  govern- 

12  ment  witnesses  and  potential  government  witnesses,  and  their  im- 

13  mediate  families,  if,  in  his  judgment,  testimony  by  such  a  witness 

14  might  subject  the  witness  or  a  member  of  his  immediate  family  to  a 

15  danger  of  bodily  injury,  and  may  continue  to  make  such  provision  for 

16  as  long  as,  in  his  judgment,  such  danger  exists.  The  Attorney  General 

17  is  authorized  to  purchase,  rent,  or  modify  protected  housing  facilities 

18  for  the  purposes  of  this  section. 

19  "§3122.  Reimbursement  for  Witness  Protection  Expenses 

20  "The  offer  of  facilities  to  a  person  under  section  3121  may  be  con- 

21  ditioned  by  the  Attorney  General  upon  reimbursement  in  whole  or  in 

22  part  to  the  United  States  by  a  state  or  local  government  of  the  cost 

23  of  maintaining  and  protecting  such  person. 

24  "§3123.  Definitions  for  Subchapter  C 

25  "As  used  in  this  subch..pter : 

26  "(a)  'government'  includes  the  federal  government  and  a  state 

27  or  local  government ; 

28  "(b)  'racketeering  activity'  has  the  meaning  set  forth  in  sec- 

29  tion  1806(f). 

30  "Subchapter  D. — Payment  of  Rewards 

"Sec. 

"3131.  Rewards  for  Apprehending  Offenders. 

31  "§3131.  Rewards  for  Apprehending  OflFenders 

32  "The  Attorney  General  may  offer  and  pay  an  amount  not  to  exceed 

33  $100,000  as  a  reward  for  the  capture  of,  or  for  information  leading  to 

34  the  arrest  or  conviction  of,  a  person  charged  with  the  commission  of  a 

35  federal  or  state  offense.  Except  as  otherwise  provided,  no  more  than 


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1  $100,000  may  be  expended  as  a  reward  for  the  capture  of,  or  for  in- 

2  formation  leading  to  the  arrest  or  conviction  of,  any  one  person.  If  the 

3  person  charged  is  killed  while  resisting  arrest,  the  Attorney  General 

4  may  pay  all  or  part  of  the  reward  to  the  person  who  assisted  in  the 

5  capture  or  provided  the  information.  A  reward  may  not  be  paid  to  a 

6  public  servant  who  has  rendered  services  or  furnished  information 

7  while  performing  his  official  duties. 

8  "Chapter  32.— RENDITION  AND  EXTRADITION 

"Subchapter 
"A.  Rendition. 
"B.  Extradition. 

9  "Subchapter  A. — Rendition 

"Sec. 

"3201.  Interstate  Agreement  on  Detainers. 

"3202.  Rendition  of  a  Fugitive. 

"3203.  General  Provisions  for  Subchapter  A. 

10  "§3201.  Interstate  Agreement  on  Detainers 

11  "(a)  Adoption  of  Agreement  by  the  United  States. — The  United 

12  States,  as  a  'sending  State'  for  purposes  of  Article  III  and  IV,  but  as  a 

13  'receiving  State'  for  purposes  of  Article  III  only,  and  the  District  of 

14  Columbia  are  parties  to  the  Interstate  Agreement  on  Detainers,  as  set 

15  forth  in  subsection   (b),  together  with  all  jurisdictions  joining  the 

16  agreement  in  substantially  the  same  form.  All  government  agencies 

17  and  public  servants  of  the  United  States  and  of  the  District  of  Colum- 

18  bia  shall  cooperate  with  the  party  States  in  enforcing  the  agreement 

19  and  in  effectuating  its  purpose. 

20  "(b)  Text  OF  Agreement. 

21  "  'The  contracting  States  solemnly  agree  that : 

22  "  'Article  I 

23  "  'The  party  States  find  that  charges  outstanding  against  a  prisoner, 

24  detainers  based  on  untried  indictments,  informations,  or  complaints 

25  and  difficulties  in  securing  speedy  trial  of  persons  already  incarcerated 

26  in  other  jurisdictions,  produce  uncertainties  which  obstruct  programs 

27  of  prisoner  treatment  and  rehabilitation.  Accordingly,  it  is  the  policy 

28  of  the  party  States  and  the  purpose  of  this  agreement  to  encourage 

29  the  expeditious  and  orderly  disposition  of  such  cliarges  and  determina- 

30  tion  of  the  proper  status  of  any  and  all  detainers  based  on  untried  in- 

31  dictments,  informations,  or  complaints.  The  party  States  also  find  that 

32  proceedings  with  reference  to  such  charges  and  detainers,  when  ema- 

33  nating  from  another  jurisdiction,  cannot  properly  be  had  in  the  ab- 

34  sence  of  cooperative  procedures.  It  is  the  further  purpose  of  this 

35  agreement  to  provide  such  cooperative  procedures. 


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1  "  'Akticle  II 

2  "  'As  used  in  this  agreement : 

3  '"(a)  "State"  shall  mean  a  State  of  the  United  States;  the  United 

4  States  of  America ;  a  territory  or  possession  of  the  United  States ;  the 

5  District  of  Columbia;  the  Commonwealth  of  Puerto  Rico. 

6  "'(b)  "Sending  State"  shall  mean  a  State  in  which  a  prisoner  is 

7  incarcerated  at  the  time  that  he  initiates  a  request  for  final  disposition 

8  pursuant  to  article  III  hereof  or  at  the  time  that  a  request  for  custody 

9  or  availability  is  initiated  pursuant  to  article  IV  hereof. 

10  "  '(c)  'Receiving  State'  shall  mean  the  State  in  which  trial  is  to  be 

11  had  on  an  indictment,  information,  or  complaint  pursuant  to  article 

12  III  or  article  IV  hereof. 

13  '"Article  III 

14  "'(a)  Whenever  a  person  has  entered  upon  a  term  of  imprison- 

15  ment  in  a  penal  or  correctional  institution  of  a  party  State,  and 

16  whenever  during  the  continuance  of  the  term  of  imprisonment  there 

17  is  pending  in  any  other  party  State  any  untried  indictment,  informa- 

18  tion,  or  complaint  on  the  basis  of  which  a  detainer  has  been  lodged 

19  against  the  prisoner,  he  shall  be  brought  to  trial  within  one  hundred 

20  and  eighty  days  after  he  shall  have  caused  to  be  delivered  to  the 

21  prosecuting  officer  and  the  appropriate  court  of  the  prosecuting  of- 

22  fleer's  jurisdiction  written  notice  of  the  place  of  his  imprisonment 

23  and  his  request  for  a  final  disposition  to  be  made  of  the  indictment, 

24  information,  or  complaint :  Provided,  That,  for  good  cause  shown  in 

25  open  court,  the  prisoner  or  his  counsel  being  present,  the  court  hav- 

26  ing  jurisdiction  of  the  matter  may  grant  any  necessary  or  reasonable 

27  .  continuance.  The  request  of  the  prisoner  shall  be  accompanied  by 

28  a  certificate  of  the  appropriate  official  having  custody  of  the  pris- 

29  oner,  stating  the  term  of  commitment  under  which  the  prisoner  is  be- 

30  ing  held,  the  time  already  served,  the  time  remaining  to  be  served  on 

31  the  sentence,  the  amount  of  good  time  earned,  the  time  of  parole 

32  eligibility  of  the  prisoner,  and  any  decision  of  the  State  parole  agency 

33  relating  to  the  prisoner. 

34  "  '(b)  The  written  notice  and  request  for  final  disposition  referred 

35  to  in  paragraph  (a)  hereof  shall  be  given  or  sent  by  the  prisoner  to 

36  the  warden,  commissioner  of  corrections,  or  other  official  having 

37  custody  of  him,  who  shall  promptly  forward  it  together  with  the 

38  certificate  to  the  appropriate  prosecuting  official  and  court  by  reg- 

39  istered  or  certified  mail,  return  receipt  requested. 


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206 

1  "*(c)  The  warden,  commissioner  of  corrections,  or  other  official 

2  having  custody  of  the  prisoner  shall  promptly  inform  him  of  the 

3  source  and  contents  of  any  detainer  lodged  against  him  and  shall 

4  also  inform  him  of  his  right  to  make  a  request  for  final  disposition 

5  of  the  indictment,  information,  or  complaint  on  which  the  detainer  is 

6  based. 

7  "  *(d)  Any  request  for  final  disposition  made  by  a  prisoner  pursu- 

8  ant  to  paragraph  (a)  hereof  shall  operate  as  a  request  for  final  dis- 

9  pK)sition  of  all  untried  indictments,  information,  or  complaints  on  the 

10  basis  of  which  detainers  have  been  lodged  against  the  prisoner  from 

11  the  State  to  whose  prosecuting  official  the  request  for  final  disposition 

12  is  specifically  directed.  The  warden,  commissioner  of  corrections,  or 

13  other  official  having  custody  of  the  prisoner  shall  forthwith  notify  all 

14  appropriate  prosecuting  officers  and  courts  in  the  several  jurisdictions 

15  within  the  Stat©  to  which  the  prisoner's  request  for  final  disposition 

16  is  being  sent  of  the  proceeding  being  initiated  by  the  prisoner.  Any 

17  notification  sent  pursuant  to  this  paragraph  shall  be  accompanied  by 

18  copies  of  the  prisoner's  written  notice,  request,  and  the  certificate.  If 

19  trial  is  not  had  on  any  indictment,  information,  or  complaint  contem- 

20  plated  hereby  prior  to  the  return  of  the  prisoner  to  the  original  place 

21  of  imprisonment,  such  indictment,  information,  or  complaint  shall  not 

22  be  of  any  further  force  or  effect,  and  the  court  shall  enter  an  order 

23  dismissing  the  same  with  prejudice. 

24  "  '(e)  Any  request  for  final  disposition  made  by  a  prisoner  pursu- 

25  ant  to  paragraph  (a)  hereof  shall  also  be  deemed  to  be  a  waiver  of 

26  extradition  with  respect  to  any  charge  or  proceeding  contemplated 

27  thereby  or  included  therein  by  reason  of  paragraph  (d)  hereof,  and  a 

28  waiver  of  extradition  to  the  receiving  State  to  serve  any  sentence 

29  there  imposed  upon  him,  after  completion  of  his  term  of  imprisonment 

30  in  the  sending  State.  The  request  for  final  disposition  shall  also  con- 

31  stitute  a  consent  by  the  prisoner  to  the  production  of  his  body  in  any 

32  court  where  his  presence  may  be  required  in  order  to  effectuate  the 

33  purposes  of  this  agreement  and  a  further  consent  voluntarily  to  be 

34  returned  to  the  original  place  of  imprisonment  in  accordance  with  the 

35  provisions  of  this  agreement.  Nothing  in  this  paragraph  shall  prevent 

36  the  imposition  of  a  concurrent  sentence  if  otherwise  permitted  by  law. 

37  "  '(f)  Escape  from  custody  by  the  prisoner  subsequent  to  his  execu- 

38  tion  of  the  request  for  final  disposition  referred  to  in  paragraph  (a) 

39  hereof  shall  void  the  request. 


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207 

1  " '  Artioije  IV 

2  "'(a)  The  appropriate  officer  of  the  jurisdiction  in  which  an  un- 

3  tried  indictment,  information,  or  complaint  is  pending  shall  be  en- 

4  titled  to  have  a  prisoner  against  whom  he  has  lodged  a  detainer  and 

5  who  is  serving  a  term  of  imprisonment  in  any  party  State  made  avail- 

6  able  in  accordance  with  article  V(a)  hereof  upon  presentation  of  a 

7  written  request  for  temporary  custody  or  availability  to  the  appro- 

8  priate  authorities  of  the  State  in  which  the  prisoner  is  incarcerated: 

9  Provided,  That  the  court  having  jurisdiction  of  such  indictment,  in- 

10  formation,  or  complaint  shall  have  duly  approved,  recorded,  and  trans- 

1 1  mitted  the  request :  And  provided  further,  That  there  shall  be  a  period 

12  of  thirty  days  after  receipt  by  the  appropriate  authorities  before  the 

13  request  be  honored,  within  which  period  the  Governor  of  the  sending 

14  State  may  disapprove  the  request  for  temporary  custody  or  availabil- 

15  ity,  either  upon  his  own  motion  or  upon  motion  of  the  prisoner. 

16  "  '(b)  Upon  request  of  the  officer's  written  request  as  provided  in 

17  paragraph  (a)  hereof,  the  appropriate  authorities  having  the  pris- 

18  oner  in  custody  shall  furnish  the  officer  with  a  certificate  stating  the 

19  term  of  commitment  under  which  the  prisoner  is  being  held,  the  time 

20  already  served,  the  time  remaining  to  be  served  on  the  sentence,  the 

21  amount  of  good  time  earned,  the  time  of  parole  eligibility  of  the  pris- 

22  oner,  and  any  decisions  of  the  State  parole  agency  relating  to  the 

23  prisoner.  Said  authorities  simultaneously  shall  furnish  all  other  officers 

24  and  appropriate  courts  in  the  receiving  State  who  has  lodged  detain- 

25  ers  against  the  prisoner  with  similar  certificates  and  with  notices  in- 

26  forming  them  of  the  request  for  custody  or  availability  and  of  the 

27  reasons  therefor. 

28  "'(c)  In  respect  of  any  proceeding  made  possible  by  this  article, 

29  trial  shall  be  commenced  within  one  hundred  and  twenty  days  of  the 

30  arrival  of  the  prisoner  in  the  receiving  State,  but  for  good  cause 

31  shown  in  open  court,  the  prisoner  or  his  counsel  being  present,  the 

32  court  having  jurisdiction  of  the  matter  may  grant  any  necessary  or 

33  reasonable  continuance. 

34  "'(d)  Nothing  contained  in  this  article  shall  be  construed  to  de- 

35  prive  any  prisoner  of  any  right  which  he  may  have  to  contest  the 

36  legality  of  his  delivery  as  provided  in  paragraph   (a)  hereof,  but 

37  such  delivery  may  not  be  opposed  or  denied  on  the  ground  that  the 

38  executive  authority  of  the  sending  State  has  not  affirmatively  con- 

39  sented  to  or  ordered  such  delivery. 


92-465  O  -  77  -  72 


9692 

208 

1  "  '(e)  If  trial  is  not  had  on  any  indictment,  information,  or  com- 

2  plaint  contemplated  hereby  prior  to  the  prisoners  being  returned 

3  to  the  original  place  of  imprisonment  pursuant  to  article  V(e)  here- 

4  of,  such  indictment,  information,  or  complaint  shall  not  be  of  any 

5  further  force  or  effect,  and  the  court  shall  enter  an  order  dismissing 

6  the  same  with  prejudice. 

7  '"Article  V 

8  "'(a)  In  response  to  a  request  made  under  article  III  or  article 

9  IV  hereof,  the  appropriate  authority  in  a  sending  State  shall  offer  to 

10  deliver  temporary  custody  of  such  prisoner  to  the  appropriate  au- 

11  thority  in  the  State  where  such  indictment,  information,  or  com- 

12  plaint  is  pending  against  such  person  in  order  that  speedy  and  effi- 

13  cient  prosecution  may  be  had.  If  the  request  for  final  disposition  is 

14  made  by  the  prisoner,  the  offer  of  temporary  custody  shall  accompany 

15  the  written  notice  provided  for  in  article  III  of  this  agreement.  In 

16  the  case  of  a  Federal  prisoner,  the  appropriate  authority  in  the  re- 

17  ceiving  State  shall  be  entitled  to  temporary  custody  as  provided  by 

18  this  agreement  or  to  the  prisoner's  presence  in  Federal  custody  at 

19  the  place  of  trial,  whichever  custodial  arrangement  may  be  approved 

20  by  the  custodian. 

21  "'(b)  The  officer  or  other  representative  of  a  State  accepting  an 

22  offer  of  temporary  custody  shall  present  the  following  upon  demand : 

23  "  '(1)  Proper  identification  and  evidence  of  his  authority  to  act  for 

24  the  State  into  whose  temporary  custody  this  prisoner  is  to  be  given. 

25  "  '(2)  A  duly  certified  copy  of  the  indictment,  information,  or  com- 

26  plaint  on  the  basis  of  which  the  detainer  has  been  lodged  and  on  the 

27  basis  of  which  the  request  for  temporary  custody  of  the  prisoner  has 

28  been  made. 

29  "'(c)  If  the  appropriate  authority  shall  refuse  or  fail  to  accept 

30  temporary  custody  of  said  person,  or  in  the  event  that  an  action  on 

31  the  indictment,  information,  or  complaint  on  the  basis  of  which  the 

32  detainer  has  been  lodged  is  not  brought  to  trial  within  the  period 

33  provided  in  article  III  or  article  IV  hereof,  the  appropriate  court  of 

34  the  jurisdiction  where  the  indictment,  information,  or  complaint  has 

35  been  pending  shall  enter  an  order  dismissing  the  same  with  preju- 

36  dice,  and  any  detainer  based  thereon  shall  cease  to  be  of  any  force 

37  or  effect. 

38  "  '(d)  The  temporary  custody  referred  to  in  this  agreement  shall  be 

39  only  for  the  purpose  of  permitting  prosecution  on  the  charge  or 

40  charges  contained  in  one  or  more  untried  indictments,  informations, 

41  or  complaints  which  form  the  basis  of  the  detainer  or  detainers  or 


9693 


209 


1  for  prosecution  on  any  other  charge  or  charges  arising  out  of  the  same 

2  transaction.  Except  for  his  attendance  at  court  and  while  being 

3  transported  to  or  from  any  place  at  which  his  presence  may  be  required, 

4  the  prisoner  shall  be  held  in  a  suitable  jail  or  other  facility  regularly 

5  used  for  persons  awaiting  prosecution. 

6  "  '(e)  At  the  earliest  practicable  time  consonant  with  the  purposes 

7  of  this  agreement,  the  prisoner  shall  be  returned  to  the  sending  State. 

8  "'(f)  During  the  continuance  of  temporary  custody  or  while  the 

9  prisoner  is  otherwise  being  made  available  for  trial  as  required  by 

10  this  agreement,  time  being  served  on  the  sentence  shall  continue  to 

11  run  but  good  time  shall  be  earned  by  the  prisoner  only  if,  and  to  the 

12  extent  that,  the  law  and  practice  of  the  jurisdiction  which  imposed 

13  the  sentence  may  allow. 

14  "'(g)  For  all  purposes  other  than  that  for  which  temporary  custody 

15  as  provided  in  this  agreement  is  exercised,  the  prisoner  shall  be 

16  deemed  to  remain  in  the  custody  of  and  subject  to  the  jurisdiction 

17  of  the  sending  State  and  any  escape  from  temporary  custody  may  be 

18  dealt  with  in  the  same  manner  as  an  escape  from  the  original  place 

19  of  imprisonment  or  in  any  other  manner  permitted  by  law. 

20  "  '(h)  From  the  time  that  a  party  State  receives  custody  of  a  pris- 

21  oner  pursuant  to  this  agreement  until  such  prisoner  is  returned  to 

22  the  territory  and  custody  of  the  sending  State,  the  State  in  which 

23  the  one  or  more  untried  indictments,  informations,  or  complaints  are 

24  pending  or  in  which  trial  is  being  had  shall  be  responsible  for  the 

25  prisoner  and  shall  also  pay  all  costs  of  transporting,  caring  for, 

26  keeping,  and  returning  the  prisoner.  The  provisions  of  this  para- 

27  graph  shall  govern  unless  the  States  concerned  shall  have  entered 

28  into  a  supplementary  agreement  providing  for  a  different  allocation 

29  of  costs  and  responsibilities  as  between  or  among  themselves.  Noth- 

30  ing  herein  contained  shall  be  construed  to  alter  or  affect  any  in- 

31  ternal  relationship  among  the  departments,  agencies,  and  officers  of 

32  and  in  the  government  of  a  party  State,  or  between  a  party  State 

33  and  its  subdivisions,  as  to  the  payment  of  costs,  or  responsibilities 

34  therefor. 

35  "  'Article  VI 

36  "  ' (a)  In  determining  the  duration  and  expiration  dates  of  the  time 

37  periods  provided  in  articles  III  and  IV  of  this  agreement,  the  run- 

38  ning  of  said  time  periods  shall  be  tolled  whenever  and  for  as  long 

39  as  the  prisoner  is  unable  to  stand  trial,  as  determined  by  the  court 

40  having  jurisdiction  of  the  matter. 


9694 


210 

1  "'(b)  No  provision  of  this  agreement,  and  no  remedy  made  avail- 

2  able  by  this  agreement  shall  apply  to  any  person  who  is  adjudged 

3  to  be  mentally  ill. 

4  "'Article  VII 

6  "  'Each  State  party  to  this  agreement  shall  designate  an  officer  who, 

6  acting  jointly  with  like  officers  of  other  party  States,  shall  promulgate 

7  rules  and  regulations  to  carry  out  more  effectively  the  terms  and  provi- 

8  sions  of  this  agreement,  and  who  shall  provide,  within  and  without 

9  the  State,  information  necessary  to  the  effective  operation  of  this 

10  agreement. 

11  "'Article  VIII 

12  "  'This  agreement  shall  enter  into  full  force  and  effect  as  to  a  party 

13  State  when  such  State  has  enacted  the  same  into  law.  A  State  party 

14  to  this  agreement  may  withdraw  herefrom  by  enacting  a  statute 

15  repealing  the  same.  However,  the  withdrawal  of  any  State  shall  not 

16  affect  the  status  of  any  proceedings  already  initiated  by  inmates  or 

17  by  State  officers  at  the  time  such  withdrawal  takes  effect,  nor  shall 

18  it  affect  their  rights  in  respect  thereof. 

19  "'Article  IX 

20  "  'This  agreement  shall  be  liberally  construed  so  as  to  effectuate  its 

21  purposes.  The  provisions  of  this  agreement  shall  be  severable  and  if 

22  any  phrase,  clause,  sentence,  or  provision  of  this  agreement  is  declared 

23  to  be  contrary  to  the  constitution  of  any  party  State  or  of  the  United 

24  States  or  the  applicability  thereof  to  any  government,  agency,  per- 

25  son,  or  circumstance  is  held  invalid,  the  validity  of  the  remainder  of 

26  this  agreement  and  the  applicability  thereof  to  any  government, 

27  agency,  person,  or  circumstance  shall  not  be  affected  thereby.  If  this 

28  agreement  shall  be  held  contrary  to  the  constitution  of  any  State  party 

29  hereto,  the  agreement  shall  remain  in  full  force  and  effect  as  to  the 

30  remaining  States  and  in  full  force  and  effect  as  to  the  State  affected  as 

31  to  all  severable  matters.' 

32  "§3202.  Rendition  of  a  Fugitive 

88  "If  the  executive  authority  of  a  state  demands  the  return  of  a  per- 

34  son,  as  a  fugitive  from  justice,  from  the  executive  authority  of  a  state 

35  to  which  the  person  has  fled,  the  demand  must  be  accompanied  by  a 

36  copy  of  an  indictment  returned  before  a  judge  of  the  demanding  state, 

37  or  of  an  affidavit  made  before  such  a  judge,  charging  such  person  with 

38  the  commission  of  a  state  or  local  crime.  The  copy  must  be  certified  as 

39  authentic  by  the  governor  or  chief  magistrate  of  the  state  from  which 

40  the  person  charged  has  fled.  Upon  receipt  of  the  demand  and  accom- 


9695 


211 

1  panying  documents,  the  executive  authority  of  the  state  to  which  the 

2  person  has  fled  shall : 

3  "(a)    cause  the  person  to  be  arrested  and   held  in  official 

4  detention ; 

6  "(b)  notify  the  executive  authority  of  the  demanding  state,  or 

6  his  agent  if  one  has  been  appointed  to  receive  the  fugitive;  and 

7  "(c)  deliver  the  fugitive  to  the  agent  when  the  agent  appears. 

8  If  no  agent  of  the  demanding  state  appears  within  thirty  days  of  the 

9  date  of  arrest  to  take  the  fugitive  into  his  custody,  the  person  may  be 

10  discharged.  An  agent  who  receives  a  fugitive  into  his  custody  may 

11  transport  him  to  the  state  from  which  he  has  fled. 

12  "§  3203.  General  Provisions  for  Subchapter  A 

13  "  (a)  Definitions. — As  used  in  section  3201 : 

14  "  ( 1 )  'Governor'  means,  with  respect  to  the  United  States,  the 

15  Attorney  General,  and  with  respect  to  the  District  of  Columbia, 

16  the  Mayor  of  the  District  of  Columbia ; 

17  "(2)  'appropriate  court'  means,  with  respect  to  the  United 

18  States,  a  court  of  the  United  States,  and  with  respect  to  the  Dis- 

19  trict  of  Columbia,  the  Superior  Court  of  the  District  of  Columbia, 

20  in  which  there  is  pending  an  indictment,  information,  or  com- 

21  plaint,  for  which  disposition  is  sought. 

22  "(b)  Regulations,  Forms,  and  Instructions. — The  Attorney  Gen- 

23  eral,  acting  for  the  United  States,  and  the  Mayor  of  the  District  of 

24  Columbia,  acting  for  the  District  of  Columbia,  shall  issue  regulations, 

25  forms,  and  instructions,  and  shall  perform  any  other  act  necessary 

26  for  carrying  out  the  provisions  of  this  subchapter. 

27  "(c)  Reservation  of  Right  To  Alter,  Amend,  or  Repeal. — The 

28  United  States  reserves  the  right  to  alter,  amend,  or  repeal  the  Agree- 

29  ment  set  forth  in  section  3201  (b) . 

30  "Subchapter  B.— Extradition 

"Sec. 

"8211.  Scope  and  Limitation  of  Extradition  Provisions. 

"3212.  Extradition  Procedure. 

"8213.  Warrant  of  Surrender. 

"3214.  Waiver. 

"3215.  Appeal. 

"3216.  Return  to  the  United  Slates. 

"3217.  General  Provisions  for  Subchapter  B. 

31  "§3211.  Scope  and  Limitation  of  Extradition  Provisions 

32  "(a)  Application. — Extradition  may  be  granted  only  pursuant  to 

33  the  provisions  of  an  applicable  treaty  or  other  international  agree- 

34  ment  and  of  this  subchapter. 


9696 


212 


1  "(b)  Limitation. — The  provisions  of  this  subchapter  relating  to 

2  the  surrender  of  a  person  who  has  been  convicted  of  or  charged  with 

3  an  offense  by  a  foreign  nation  shall  continue  in  force  only  during  the 

4  existence  in  force  of  a  treaty  or  other  international  agreement,  bilateral 

5  or  multilateral,  concerning  extradition  between  the  United  States  and 

6  the  foreign  nation. 

7  "(c)  Convictions  in  Absentia. — Extradition  may  not  be  granted 

8  for  a  person  convicted  in  absentia,  unless : 

9  "(1)  the  demanding  government  assures  the  Secretary  of  State 
10  that  the  proceeding  will  be  reopened  upon  the  request  of  the  per- 
il son  to  be  surrendered ;  or 

12  "(2)  the  person  fled  after  having  been  present  when  his  trial 

13  commenced. 

14  "(d)  Authorizing  Extradition. — If  an  extradition  treaty  or  other 

15  international  agreement  provides  that  the  United  States  may  extradite 

16  its  own  citizens  or  nationals,  but  does  not  require  such  extradition, 

17  the  Secretary  of  State  has  authority  to  authorize  the  extradition  of 

18  a  United  States  citizen  or  national  who  has  been  found  extraditable 

19  pursuant  to  the  provisions  of  this  subchapter. 

20  "§  3212.  Extradition  Procedure 

21  "(a)  Arrests  With  Documentation. — 

22  "(1)  Upon  the  filing  of  a  complaint  under  oath  or  affirmation 

23  charging  that  a  person  believed  to  be  within  the  jurisdiction  of 

24  the  court  has  committed,  within  the  jurisdiction  of  a  demanding 

25  foreign  government,  an  offense  made  estraditable  in  an  applicable 

26  extradition  treaty  or  other  international  agreement  with  the 

27  United  States : 

28  "  ( A )  a  court  of  the  United  States ;  or 

29  "(B)  a  magistrate  specially  authorized  by  a  court  of  the 

30  United  States; 

31  may  issue  a  warrant  for  the  arrest  of  the  person  charged. 

32  "(2)  The  complaint  may  be  filed  only  by : 

33  "(A)  the  Attorney  General : 

34  "(i)  pursuant  to  the  provisions  of  an  applicable  treaty 

35  or  other  international  agreement ;  or 

36  "(ii)  at  the  request  of  the  demanding  government;  or 

37  "(B)  persons  authorized  by  an  appropriate  authority  of  the 

38  demanding  government  to  act  on  behalf  of  that  government. 

39  A  complaint  shall  be  accompanied  by  the  documents  required  by 

40  the  provisions  of  the  applicable  treaty  or  other  international  agree- 

41  ment,  a  copy  of  (he  dipl(Mnatic  note  to  the  Secretary  of  State  re- 


9697 


213 


1  questing  extradition,  an  acknowledgement  from  the  Department 

2  of  State  of  the  diplomatic  note  requesting  extradition,  and  a  copy 

3  of  the  applicable  treaty  or  other  international  agreement. 

4  "(3)  Upon  arrest,  the  person  shall  be  brought  either  to  the 

5  court  issuing  the  warrant  of  arrest  or  to  the  nearest  federal  dis- 

6  trict  court.  The  extradition  hearing  shall  be  conducted  by  the 

7  court  to  which  the  person  arrested  is  brought.  If  the  person  ar- 

8  rested  is  brought  before  a  court  other  than  the  one  that  issued  the 

9  warrant  of  arrest,  the  complaint  and  other  documents  filed  with 

10  that  court  shall  be  forwarded  by  the  issuing  court  to  the  court  in 

1 1  which  the  hearing  is  to  be  conducted. 

12  "(b)  Arrest  Without  Documentation. — 

13  "(1)  Upon  the  filing  of  a  complaint  under  oath  or  affirmation 

14  by  a  person  authorized  to  do  so  under  subsection  (a)  (2) : 

15  "  ( A)  a  court  of  the  United  States ;  or 

16  "(B)  a  magistrate  specifically  authorized  by  a  court  of  the 

17  United  States; 

18  may  issue  a  warrant  for  the  provisional  apprehension  of  the  per- 

19  son  sought. 

20  "  (2)  The  complaint  shall  state  that  a  warrant  of  arrest  or  order 

21  of  detention  exists  for  the  person  in  the  foreign  nation,  shall 

22  specify  the  offense  for  which  extradition  is  being  sought,  shall 

23  describe  the  circumstances  that  necessitate  such  arrest,  and  shall 

24  state,  if  the  complaint  is  not  filed  by  the  Attorney  General,  that 

25  reasonable  notice  of  the  intention  to  make  the  complaint  has  been 

26  given  to  the  Secretary  of  State. 

27  "(3)  The  limitation  period  established  by  the  applicable  treaty 

28  or  other  international  agreement,  or  by  this  subchapter,  for  the 

29  presentation  of  the  documents  required  by  the  applicable  treaty 

30  or  other  international  agreement,  shall  be  tolled  by  presentation 

31  of  the  documents  to  the  Secretary  of  State.  The  failure  to  pre- 

32  sent  the  documents  within  the  period  prescribed  by  the  applicable 

33  treaty  or  other  international  agreement,  or  by  this  subchapter, 

34  shall  authorize  the  court  to  release  the  person  from  official  deten- 

35  tion,  but  such  release  does  not  terminate  the  proceeding. 

36  "(c)  Official  Detention. — 

37  "(1)  A  person  arrested  under  the  provisions  of  subsection  (a) 

38  shall  be  held  in  official  detention  until  the  completion  of  extradi- 

39  tion  proceedings  unless  good  cause  for  his  release  is  presented  to 

40  the  court  Release  shall  be  granted  only  upon : 

41  " (A)  the  posting oi  appropriate  security ; 


9698 

214 

1  "(B)  the  surrender  of  any  travel  documents,  including  a 

2  passport  or  a  visa,  in  the  possession  of  the  person;  and 

3  "(C)   the  imposition  of  appropriate  restrictions  on  his 

4  movements. 

5  "(2)  Unless  unusual  cause  is  presented  to  the  court,  a  person 

6  arrested  pursuant  to  the  provisions  of  subsection  (b)  shall  be  held 

7  in  official  detention  for  the  period,  if  any,  specified  in  the  appli- 

8  cable  treaty  or  other  international  agreement,  or  for  ninety  days, 

9  whichever  is  less.  If  release  is  approved  by  the  court,  it  may  be 

10  granted  only  under  the  restrictions  set  forth  in  paragraph  (1). 

11  Upon  receipt  by  the  Secretary  of  State  of  the  documents  specified 

12  in  subsection  (a) ,  the  person  arrested  shall  be  subject  to  the  provi- 

13  sions  of  paragraph  ( 1 ) . 

14  "(d)  ExTRADmoN  Hearing. — 

15  "  ( 1 )  A  person  may  not  be  extradited  unless : 

16  "(A.)  a  hearing  is  held  in  which  his  extraditability  is 

17  established;  or 

18  "  (B)  a  hearing  is  waived  pursuant  to  section  3214. 

19  "(2)  Unless  otherwise  specified  by  the  applicable  treaty  or 

20  other  international  agreement,  or  by  this  subchapter,  extradit- 

21  ability  shall  be  found  upon  proof  that : 

22  "(A)  the  applicable  treaty  or  other  international  agree- 

23  ment  of  extradition  is  in  full  force  and  effect ; 

24  "(B)  the  offense   for  which  extradition   is   requested   is 

25  made  extraditable  in  the  applicable  treaty  or  other  interna- 

26  tional  agreement ; 

27  "(C)  a  criminal   charge  is  pending  against  the  person 

28  sought,  or  the  person  sought  has  been  convicted  of  an  offense 

29  in  a  court  of  the  foreign  nation  but  has  not  completed  service 

30  of  the  sentence  imposed ; 

81  "(D)  the  pending  criminal  charge,  or  the  prosecution  for 

32  the  offense  for  which  the  person  sought  was  convicted,  was 

33  commenced  within  the  period   required  by  any  applicable 

34  statute  of  limitations; 

35  "(E)  a  warrant  of  arrest  or  order  of  detention  is  outstand- 

36  ing  in  the  foreign  nation  against  the  person  sought ; 

37  "(F)  evidence  exists  that   establishes  probable  cause  to 

38  believe  that  the  person  sought  and  the  person  arrested  are 

39  identical ;  and 


9699 

215 

1  "(Gf)  evidence  exists  that  establishes  probable  cause  to  be- 

2  lieve  that  the  person  sought  has  committed,  or  has  been  con- 

3  victed  of,  the  alleged  offense. 

4  "(3)  Defenses  against  extradition  are  limited  to  those  provided 

5  by  the  applicable  treaty  or  other  international  agreement,  or  by 

6  international  law,  or  by  this  title. 

7  "(e)  Proof  AND  AnMissiBiLrrT  OF  EvTOENCE. — 

8  "(1)  Testimony  of  witnesses  is  not  required  in  order  to  estab- 

9  lish  that  the  person  is  extraditable ;  extraditability  may  be  estab- 

10  lished  by  properly  certified  documents  alone. 

11  "(2)   A  deposition,  warrant,  or  other  document,  or  a  copy 

12  thereof,  offered  in  evidence  on  behalf  of  the  foreign  nation  upon 

13  the  hearing  of  an  extradition  case,  is  admissible  as  evidence  at 

14  the  hearing  for  all  the  purposes  of  the  hearing  if : 

15  "  ( A )  it  has  been  properly  authenticated  so  as  to  entitle  it  to 

16  be  received  for  similar  purposes  by  the  courts  of  the  foreign 

17  nation  from  which  the  person  is  declared  to  be  a  fugitive; 

18  "(B)  a  certificate  to  this  effect  has  been  executed  by  an  ap- 

19  propriate  official  of  the  foreign  nation ; 

20  "(C)  the  certificate  of  the  foreign  official  has  been  certified 

21  by  a  diplomat  or  consular  officer  of  the  United  States  assigned 

22  to  such  foreign  nation ;  and 

23  "(D)  the  signature  of  such  diplomatic  or  consular  officer 

24  has  been  certified  by  the  Secretary  of  State. 

25  "(3)  A  certification  or  affidavit  by  the  Secretary  of  State  con- 

26  cerning  the  existence  of  a  treaty  or  other  international  agreement, 

27  and  concerning  its  status  and  effect,  is  admissible  as  evidence  at  the 

28  hearing  and  is  conclusive  proof  of  such  matters.  A  certification  or 

29  affidavit  by  the  Secretary  of  State  concerning  the  interpretation 

30  of  a  treaty  or  other  international  agreement  is  admissible  as  evi- 

31  dence  at  the  hearing. 

32  "(4)  Hearsay  evidence  is  admissible  to  establish  the  probable 

33  cause  required  by  subsection  (d)  (2)  (G),  and  probable  cause  may 

34  be  established  by  hearsay  evidence  alone. 

35  "(f)  Applicable  Laws. — The  proof  required  by  subsection  (d)  (2) 

36  (B),  may  be  found  sufficient  only  if  the  court  determines  that  the 

37  basic  elements  of  the  offense  in  question  substantially  compare  to  the 

38  basic  elements  of  an  offense  that  is  a  federal  offense  or  that  is  generally 

39  considered  to  be  a  crime  under  the  criminal  laws  of  the  states.  If  the 


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216 

1  applicable  treaty  or  international  agreement  requires  that  the  statute 

2  of  limitations  in  the  United  States  be  considered,  the  time  limitations 

3  set  forth  in  section  511  are  applicable  to  such  offenses  for  purposes  of 

4  this  subchapter.  The  Federal  Rules  of  Criminal  Procedures  are  not 

5  applicable  to  this  subchapter. 

6  "(g)  Restjlts  OF  Hearing. — 

7.  "(1)  If,  at  the  conclusion  of  the  extradition  hearing,  the  court 

8  conducting  the  hearing  finds  the  evidence  presented  to  be  sufficient 

9  to  meet  the  requirements  of  subsection  (d)  (2)  and  to  sustain  the 

10  charge  under  the  provisions  of  the  applicable  treaty  or  other  inter- 

11  national  agreement,  it  shall  certify  the  record  of  the  proceeding, 

12  including  the  finding  as  to  extraditability  on  each  charge  for 

13  which  extradition  was  requested  as  required  by  subsection  (d)  (2) , 

14  to  the  Secretary  of  State.  The  certification  shall  be  forwarded 

15  to  the  Secretary  of  State  by  the  clerk  of  the  court  within  ten  days 

16  from  the  date  of  the  finding  and  the  order  of  committal. 

17  "(2)  If,  at  the  conclusion  of  the  extradition  hearing,  the  court 

18  conducting  the  hearing  finds  the  evidence  presented  to  be  in- 

19  sufficient    to    sustain    any    charge    under    the    provisions    of 

20  the  applicable  treaty  or  other  international  agreement,  it  shall 

21  state  the  reasons  for  the  findings  as  to  each  such  charge  and  cer- 

22  tify  the  findings  to  the  Secretary  of  State. 

23  "(3)  A  person  found  extraditable  shall  be  committed  to  the 

24  custody  of  the  Attorney  General  until  he  is  surrendered  to  a  duly 

25  appointed  agent  of  the  demanding  government  or  until  the  Secre- 

26  tary  of  State  declines  to  issue  a  warrant  of  surrender. 

27  "(h)  New  Proceeding  for  Same  Fugitive. — If  the  requisition  of 

28  the  foreign  nation  is  denied,  in  whole  or  in  part,  by  a  court  of  the 

29  United  States,  that  nation  may,  after  notification  to  the  Secretary  of 

30  State,  request  the  Attorney  General  to  commence  a  new  action  in 

31  conformity  with  the  court's  decision  required  by  section  3212(g)  (2). 

32  **§3213.  Warrant  of  Surrender 

33  "(a)  Issuance  of  Warrant. — Upon  receipt  of  the  record  of  the 

34  proceeding  pursuant  to  the  provisions  of  section  3212  (g)  (1) ,  the  Sec- 

35  retary  of  State  may  issue,  pursuant  to  the  request  of  the  proper  au- 

36  thorities  of  the  demanding  government,  a  warrant  authorizing  the 

37  surrender  of  a  person  committed  under  section  3212  to  an  authorized 

38  agent  of  the  demanding  government.  The  Secretary  of  State  shall 

39  issue  the  warrant  to  surrender  and  forward  it  to  the  embassy  of  the 

40  foreign  nation  within  thirty  days  of  his  receipt  of  the  record  of  the 

41  proceedings  unless  ap  app^I  is.  taken  by  the  person  sought  and  a 


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1  stay  is  granted  by  a  court  having  jurisdiction.  The  Secretary  of  State's 

2  decision  shall  be  based  upon  the  provisions  of  the  applicable  treaty 

3  and  this  subchapter.  The  foreign  embassy  shall  be  advised  of  the 

4  limitations  in  section  3213(c)  by  the  Secretary  of  State.  If  a  request 

5  for  extradition  is  denied,  in  whole  or  in  part,  the  decision  shall  be 

6  forwarded  expeditiously  by  the  Secretary  of  State  to  the  court  of  the 

7  district  where  the  fugitive  is  detained  and  and  to  the  foreign  nation's 

8  ambassador. 

9  "(b)  Warrant  as  Authority. — Possession  of  a  warrant  of  sur- 

10  render  by  an  agent  of  the  foreign  nation,  duly  appointed  and  desig- 

11  nated  to  receive  custody  from  the  United  States  of  a  person  ordered 

12  surrendered,  constitutes  authority  for  the  agent  to  hold  the  surren- 

13  dered  person  in  his  custody  and  safekeeping  in  any  state  through 

14  which  it  may  be  necessary  for  him  to  pass  with  the  surrendered  person 

15  en  route  to  the  nation  to  which  extradition  has  been  ordered. 

16  "(c)  Time  Limitation. — A  person  committed  pursuant  to  section 

17  3212(g)(3): 

18  "(1)  who  is  not  surrendered  to,  and  conveyed  out  of  the  United 

19  States  by,  a  duly  authorized  agent  of  the  demanding  nation 

20  within : 

21  "  (A)  sixty  days  after  the  commitment ;  plus 

22  "(B)  *h®  time  actually  required  expeditiously  to  convey 

23  the  person  out  of  the  United  States  from  the  facility  in  which 

24  he  was  held  in  official  detention ;  plus 

25  "(C)  the  time,  if  any,  during  which  the  execution  of  the 

26  warrant  had  been  stayed  pursuant  to  the  provisions  of  sub- 

27  section  (d) ;  and 

28  "(2)  who  gives  reasonable  notice  to  the  Secretary  of  State,  of 

29  his  intention  to  apply  for  release; 

30  may  be  ordered  by  a  court  of  the  United  States  to  be  released  from 

31  official  detention  unless  good  cause  is  shown  why  such  release  should 

32  not  be  ordered. 

33  "(d)  Stay  OF  Execution  OF  Warrant. — The  execution  of  the  war- 

34  rant  of  surrender  may  not  be  stayed  by  an  appellate  court  of  the 

35  United  States  unless  good  cause  is  shown. 

36  "§  3214.  Waiver 

37  "A  person  who  is  arrested  for  extradition  to  a  foreign  nation  may 

38  waive  the  requirements  of  formal  extradition  proceedings,  including 

39  the  necessity  of  the  issuance  of  a  warrant  of  surrender  by  the  Secre- 

40  tary  of  State,  if,  orally  and  in  writing,  he  so  advises  the  court  before 

41  which  an  extradition  hearing  would  be  held  that  he  knows  of  and 


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1  waives  all  rights  guaranteed  by  the  applicable  treaty  or  other  inter- 

2  national  agreement,  and  by  this  subchapter,  in  order  that  he  might 

3  be  returned  as  soon  as  practicable  to  such  foreign  nation.  Such  a 

4  waiver  is  irrevocable.  If  the  demanding  government  and  the  court 

5  accept  the  waiver,  the  person  shall  be  removed  from  the  United  States 

6  within  fifteen  days  by  an  agent  appointed  by  the  demanding  govern- 

7  ment.  Possession  of  a  certified  copy  of  the  waiver  by  the  agent  con- 

8  stitutes  the  same  authority  for  the  agent  as  that  granted  in  section 

9  3213(b).  Except  as  otherwise  provided  by  the  applicable  treaty  or 

10  other  international  agreement,  or  by  this  subchapter,  all  rights  avail- 

11  able  to  a  person  extradited  pursuant  to  such  treaty  or  other  interna- 

12  tional  agreement  are  available  to  a  person  waiving  extradition  pur- 

13  suant  to  this  subsection.  A  person  not  removed  from  the  United 

14  States  within  the  fifteen  day  period  prescribed  in  this  section  shall  be 

15  released  from  official  detention,  but  such  release  does  not  t«rminate 

16  the  proceeding. 

17  "§  3215.  Appeal 

18  "The  person  sought,  or  the  demanding  government,  may  appeal 

19  to  the  appropriate  United  States  Court  of  Appeals  from  a  judgment 

20  on  a  request  for  extradition.  A  notice  of  appeal  may  be  filed  within 

21  seven  days  after  the  district  court's  decision  regarding  extraditability. 

22  The  brief  on  behalf  of  the  appellant  shall  be  filed  within  ten  days 

23  of  the  notice  of  appeal.  The  brief  on  behalf  of  the  appellee  shall  be 

24  filed  within  ten  days  of  the  receipt  of  appellant's  brief.  An  appeal 

25  under  this  section  shall  be  decided  expeditiously.  No  stay  of  the 

26  requirements  of  section  3212(g)  (1)  or  (g)  (2)  may  be  granted  except 

27  by  the  court  of  appeals  before  which  the  appeal  is  pending.  No  stay  of 

28  the  requirements  of  section  3212(g)  (3)  shall  be  granted. 

29  "§3216.  Return  to  the  United  States 

30  "If  a  person  is  delivered,  pursuant  to  an  extradition  request,  by  a 

31  foreign  nation  to  a  person  who  has  been  designated  as  an  agent  of  the 

32  United  States  by  the  Secretary  of  State,  the  President  has  the  power 

33  to  take  all  necessary  measures  for  the  transportation  and  safekeeping 

34  of  the  surrendered  person  until  he  is  returned  to  the  jurisdiction  that 

35  sought  his  return. 

36  Ǥ  3217.  General  Provisions  for  Subchapter  B 

3*^  "(a)  Transit  of  Extradited  Persons. — Except  as  otherwise  pro- 

38  vided,  a  person  being  escorted  from  the  jurisdiction  of  one  foreign  na- 

39  tion  to  the  jurisdiction  of  another  as  a  result  of  his  surrender  for  ex- 

40  tradition  shall  be  denied  entry  into  the  United  States  by  the  Immigra- 

41  tion  and  Naturalization  Service.  If  the  person  is  required  to  transit 


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1  the  United  States,  he  may  be  permitted  by  the  Immigration  and 

2  Naturalization  Service  to  enter  the  United  States  for  the  sole  purpose 

3  of  continuous  transit,  if  prior  notice  of  the  required  transit  is  given  to 

4  the  Secretary  of  State  by  a  competent  diplomatic  official  of  the  foreign 

5  nation  seeking  the  transit. 

6  "(b)  Payment  of  Fees  and  Costs. — All  costs  and  expenses  incurred 

7  in  connection  with  the  extradition  or  return  of  a  person  at  the  request 

8  of: 

9  "  ( 1 )   a  foreign  nation,  shall  be  borne  by : 

10  "(A)  such  nation,  upon  request  made  by  the  Secretary  of 

11  State,  if  the  demanding  government  is  not  represented  by  the 

12  Attorney  General ; 

13  "(B)  the  United  States,  if  the  demanding  government  is 

14  represented  by  the  Attorney  General,  except  for  costs  and  ex- 

15  penses  for  translations  of  extradition  documents  and  for 

16  transportation  of  the  person  sought  to  the  foreign  nation; 

17  "(2)  a  state,  shall  be  borne  by  such  state ;  and 

18  "(3)  the  United  States,  shall  be  borne  by  the  United  States. 

19  "Chapter  33.— JURISDICTION  AND  VENUE 

"Subchapter 
"A.  Jurisdiction. 
"B.  Venue. 

20  "Subchapter  A. — Jurisdiction 

"Sec. 

"3301.  Jurisdiction  of  District  Courts  over  Ofifenses. 

"3302.  Jurisdiction  of  United  States  Magistrates  over  Offenses. 

"3303.  Jurisdiction  to  Order  Arrests  for  Offenses. 

21  "§  3301.  Jurisdiction  of  District  Courts  Over  Offenses 

22  "(a)  United  States  District  CotniTS. — The  United  States  District 

23  Courts  have  original  jurisdiction,  exclusive  of  the  courts  of  the  states, 

24  over  all  offenses  committed  within  the  general,  special,  or  extraterri- 

25  torial  j  urisdiction  of  the  United  States. 

26  "(b)  District  Courts  of  the  Canal  Zone,  Guam,  and  the  Virgin 

27  Islands. — The  United  States  District  Court  for  the  District  of  the 

28  Canal  Zone,  the  District  Court  of  Guam,  and  the  District  Court  of  the 

29  Virgin  Islands  have  original  jurisdiction  over  all  offenses  committed 

30  within  the  geographic  jurisdiction  of  such  courts  or  within  the  special 

31  or  extraterritorial  jurisdiction  of  the  United  States. 

32  "§  3302.  Jurisdiction  of  United  States  Magistrates  Over  Offenses 

33  "(a)  Jurisdiction. — A  United  States  magistrate  has  jurisdiction  to 

34  try  persons  accused  of,  and  to  sentence  persons  found  guilty  of,  mis- 

35  demeanors  and  infractions  committed  within  the  judicial  district  or 

36  districts  in  which  he  serves,  if  he  is  specially  designated  by  the  district 


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1  court  or  courts  to  exercise  such  jurisdiction,  and  if  he  proceeds  under 

2  such  conditions  as  are  imposed  by  the  terms  of  the  special  designation. 

3  Subject  to  the  terms  of  the  special  designation,  the  magistrate  may 

4  exercise  all  authority  of  a  district  court  with  regard  to  trial,  sentencing, 

5  and  modification  of  sentences. 

6  "(b)  Election  by  Defendant. — A  person  charged  with  a  Class  A 

7  misdemeanor  may  elect  to  be  tried  before  a  judge  of  the  district 

8  court  for  the  district  in  which  the  offense  was  committed.  The  magis- 

9  trate  shall  explain  to  such  person  that  he  has  a  right  to  a  trial  before  a 

10  j^dge  of  the  district  court,  and  that  he  has  a  right  to  a  trial  by 

11  jury  before  such  judge.  A  magistrate  shall  not  proceed  to  try  such  case 

12  unless  the  person,  after  such  explanation,  signs  a  written  statement 

13  consenting  to  be  tried  before  the  magistrate,  waiving  trial  before  a 

14  judge  of  the  district  court,  and  waiving  any  right  to  a  trial  by  jury  that 

1 5  such  person  may  have. 

16  "(c)  Appeal  to  District  Court. — A  person  convicted  by  a  magis- 

17  trate  may  appeal  from  the  conviction  to  a  judge  of  the  district  court 

18  of  the  district  in  which  the  offense  was  committed. 

19  "§3303.  Jurisdiction  to  Order  Arrests  for  Offenses 

20  "(a)  Arrest  Within  the  United  States. — A  person  accused  of  an 

21  offense  may  be  arrested  anywhere  within  the  United  States  by  order  of 

22  a  federal  judge,  or  of  a  judicial  officer  of  the  state  in  which  the  person 

23  is  found. 

24  "(b)  Arrest  Outside  the  United  States. — A  person  accused  of  an 

25  offense  may  be  arrested  if  he  is  outside  the  United  States  and  outside 

26  the  jurisdiction  of  any  nation,  and  may  be  returned  to  the  United 

27  States,  by  order  of  a  federal  judge,  if  the  person : 

28  "(1)  is  a  fugitive  from  justice  who  has  been  charged  with  or 

29  convicted  of  any  offense ;  or 

30  "(2)  is  charged  with  an  offense  over  which  there  is  extra- 

31  territorial  jurisdiction  as  set  forth  in  section  204. 

32  An  officer  executing  a  warrant  ordered  pursuant  to  this  subsection  may 

33  exercise  all  the  powers  of  a  United  States  marshal  to  the  extent  that 

34  such  powers  are  needed  for  the  execution  of  the  warrant  and  for  the 

35  safekeeping  of  the  person  arrested. 

36  "  (c)  Authority  of  a  State  Judicial  Officer. — A  judicial  officer  of 

37  a  state  acting  under  subsection  (a)  may  proceed  according  to  the  usual 

38  method  of  procedure  in  such  state  to  the  extent  that  such  procedure  is 

39  not  inconsistent  with  the  Federal  Rules  of  Criminal  Procedure,  but  his 

40  authority  after  the  arrest  is  effected  does  not  extend  beyond  determin- 


9705 

221 

1  ing  whether  to  hold  the  person  arrested,  at  the  expense  of  the  United 

2  States,  for  trial  or  to  release  him  from  official  detention  as  provided  by 

3  section  3502. 

4  "Subchapter  B. — Venue 

"Sec. 

"3311.  Venue  for  an  Offense  Committed  in  More  than  one  District. 
"3312.  Venue  for  an  Offense  Committed  outside  any  District. 
"3313.  Venue  if  a  New  District  or  Division  is  EJstablislied. 

5  "§  3311.  Venue  for  an  Offense  Committed  in  more  than  one  District 

6  "(a)  In  General. — Except  as  otherwise  provided,  an  offense  begun 

7  in  one  judicial  district  and  completed  in  another,  or  committed  in 

8  more  than  one  district,  may  be  prosecuted  in  any  district  in  which  the 

9  offense  was  begun,  continued,  or  completed. 

10  "(b)  Conspiracy  Offenses. — A  conspiracy  offense,  for  purposes 

11  of  subsection  (a),  is  a  continuing  offense,  and  may  be  prosecuted  in 

12  any  district  in  which  the  conspiracy  was  entered  into  or  in  which  any 

13  person  engaged  in  any  conduct  to  effect  an  objective  of  the  conspiracy. 

14  A  substantive  offense  that  is  committed  pursuant  to  a  conspiracy  may 

15  be  prosecuted  with  the  conspiracy  offense  in  any  district  in  which 

16  the  conspiracy  offense  may  be  prosecuted. 

17  "(c)   Mails  or  Commerce  Offenses. — If  federal  jurisdiction  to 

18  prosecute  an  offense  is  based  upon  the  use  of  the  mails,  the  move- 

19  ment  of  persons  or  property  jn  interstate  or  foreign  commerce  or  by 

20  mail,  or  the  importation  of  an  object  into  the  United  States,  the 

21  offense,  for  purposes  of  subsection  (a),  is  a  continuing  offense,  and 

22  may  be  prosecuted  in  any  district  described  in  subsection  (a)  or  in  any 

23  district  from,  through,  or  into  which  the  mail,  commerce,  or  imported 

24  object  moves. 

25  "  (d)  Tax  Offenses. — An  offense : 

26  "(1)   described  in  section  1402(a)(1)    (Disregarding  a  Tax 

27  Obligation ) ;  or 

28  "(2)  involving  the  use  of  the  mail  and  described  in  section: 

29  "(A)    1343   (Making  a  False  Statement),  if  the  offense 

30  involves  a  tax  return  as  defined  in  section  1404(d) ;  or 

31  "(B)   section  1401(a)(1)   or   (a)(5)    (Tax  Evasion); 

32  may  be  prosecuted  in  any  district  in  which  the  offense  was  begun,  con- 

33  tinued,  or  completed,  unless  the  defendant,  by  motion  filed  within 

34  twenty  days  after  arraignment  in  the  district  in  which  the  prosecution 

35  is  begun,  requests  to  be  tried  in  the  district  in  which  he  was  residing 

36  at  the  time  the  offense  was  committed. 


9706 


222 

1  "(e)   Homicide  Offenses. — An  offense  described  in  section  1601 

2  (Murder),  1602  (Manslaughter),  or  1603  (Negligent  Homicide)  may 

3  be  prosecuted  only  in  the  district  in  which  the  injury  was  inflicted, 

4  or  in  which  the  means  were  employed  that  caused  the  death,  without 

5  regard  to  the  place  where  the  death  occurred. 

6  "(f)    Flight    Offenses. — An   offense   described   in   section   1315 

7  (Flight  to  Avoid  Prosecution  or  Appearing  as  a  Witness)  may  be 

8  prosecuted  only  in  the  district  in  which: 

9  "  ( 1)  the  original  offense  was  alleged  to  have  been  committed ;  or 

10  "(2)  the  person  was  to  appear  as  a  witness,  give  testimony,  or 

1 1  produce  a  record,  document,  or  other  object. 

12  Ǥ  3312.  Venue  for  an  Offense  Committed  outside  any  District 

13  "(a)  Venue. — An  offense  begun  or  committed  within : 

14  "(1)  any  part  of: 

15  "(A-)   the  special  territorial  jurisdiction  of  the  United 

1 6  States  as  set  forth  in  section  203  ( a ) ; 

17  "(B)  the  special  maritime  jurisdiction  of  the  United  States 

18  as  set  forth  in  section  203  (b) ;  or 

19  "(C)  the  special  aircraft  jurisdiction  of  the  United  States 

20  as  set  forth  in  section  203  (c)  ; 

21  that  is  outside  of  the  jurisdiction  of  any  judicial  district;  or 

22  "(2)  the  extraterritorial  jurisdiction  of  the  United  States  as  set 

23  forth  in  section  204 ; 

24  shall  be  prosecuted  in  the  district  in  which  the  defendant,  or  any  one 

25  of  two  or  more  joint  defendants,  is  arrested  or  is  first  brought  after 

26  arrest.  If  the  defendant  or  defendants  are  not  arrested  or  brought  into 

27  any  district,  an  indictment  or  information  may  be  filed  in  the  district 

28  of  the  last  known  residence  of  the  defendant,  or  of  any  one  of  two  or 

29  more  such  defendants,  or,  if  no  such  residence  is  known,  the  indictment 

30  or  information  may  be  filed  in  the  District  of  Columbia. 

31  "(b)  Change  of  Venue. — If  the  defendant  arrives  in  the  judicial 

32  district  in  which  he  is  arrested,  or  to  which  he  is  first  brought  after 

33  arrest,  due  to  emergency,  illness,  or  other  exigent  circumstances  re- 

34  suiting  in  an  unscheduled  arrival  in  that  judicial  district,  the  court 

35  may,  on  motion  of  a  party,  and  in  the  interest  of  justice,  transfer  the 

36  proceeding  to  another  judicial  district. 

37  "§  3313.  Venue  if  a  New  District  or  Division  is  Established 

38  "(a)  In  General. — If  a  new  judicial  district  or  division  is  estab- 

39  lished,  or  if  a  county  or  territory  is  transferred  from  one  district  or 

40  division  to  another  district  or  division,  a  prosecution  for  an  offense 

41  committed  within  such  district,  division,  county,  or  territory  prior  to 


9707 


223 

1  the  establishment  or  transfer  shall  proceed  in  the  same  manner  as  if 

2  the  new  district  or  division  had  not  been  created,  or  as  if  the  county 

3  or  territory  had  not  been  transferred. 

4  "(b)  Removal  Upon  Motion  of  Defendant. — A  case  proceeding 

5  as  prescribed  in  subsection  (a)  may  be  ordered  by  the  court  to  be  re- 

6  moved  to  the  new  district  or  division  for  trial  if,  within  twenty  days 

7  after  arraignment  of  the  defendant  in  the  district  or  division  in  which 

8  the  indictment  was  returned  or  the  information  was  filed,  the  defend- 

9  ant  files  a  motion  for  such  removal. 

10  "Chapter  34.— APPOINTMENT  OF  COUNSEL 

"Sec. 

"3401.  District  Plans  for  Appointment  of  Counsel. 

"3402.  Appointment  of  Counsel. 

"3403.  Compensation  of  CounseL 

"3404.  Defender  Organizations. 

"3405.  General  Provisions  for  Chapter  34. 

11  "§3401.  District  Plans  for  Appointment  of  Counsel 

12  "(a)  Establishment  of  Plan. — Each  district  court  of  the  United 

13  States  with  the  approval  of  the  judicial  council  of  the  circuit,  shall 

14  place  in  operation  throughout  the  district  a  plan  for  furnishing  repre- 

15  sentation  for  any  person  financially  imable  to  obtain  adequate  repre- 

16  sentation : 

17  "(1)  who  is  charged : 

18  "(A)  with  a  felony  or  a  Class  A  misdemeanor; 

19  "(B)   with  an  act  of  juvenile  delinquency  as  defined  in 

20  section  3606(b)  including  representation  at  a  hearing  pur- 

21  suant  to  section  3603(a)  (2)  (C)  or  section  3603(a)  (3)  (C) ;  or 

22  "(C)  with  a  violation  of  probation  or  parole; 

23  "(2)  who  is  under  arrest,  when  such  representation  is  required 

24  bylaw; 

25  "(3)  who  is  in  custody  as  a  material  witness,  or  seeking  col- 

26  lateral  relief,  as  provided  in  section  3403(d)  ;  or 

27  "(4)  for  whom  the  Sixth  Amendment  to  the  Constitution  re- 

28  quires  the  appointment  of  counsel,  or  for  whom,  in  a  case  in  which 

29  he  faces  loss  of  liberty,  any  federal  law  requires  the  appointment 
go  of  counsel. 

31  "(b)  Choice  of  Plan. — Representation  under  the  plan  shall  include 

32  counsel  and  investigative,  expert,  and  other  services  necessary  for  an 

33  adequate  defense.  The  plan  shall  include  a  provision  for  private  attor- 

34  neys.  The  plan  may  include,  in  addition  to  a  provision  for  private  at- 

35  torneys  in  a  substantial  proportion  of  the  cases,  a  provision  for : 

36  "(1)   attorneys  furnished  by  a  bar  association  or  a  legal  aid 

37  agency;  and 


92-465  O  -  77  -  73 


9708 


224 

"(2)  attorneys  furnished  by  a  defender  organization  estab- 

1  lished  in  accordance  with  the  provisions  of  section  3404. 

2  Prior  to  approving  the  plan  for  a  district,  the  judicial  council  of  the 

3  circuit  shall  supplement  the  plan  with  provisions  for  representation  on 

4  appeal.  The  district  court  may  modify  the  plan  at  any  time  with  the 

5  approval  of  the  judicial  council  of  the  circuit,  and  shall  modify  the 

6  plan  when  directed  to  do  so  by  the  judicial  council.  The  district  court 

7  shall  notify  the  Administrative  Office  of  the  United  States  Courts  of 

8  its  plan  and  of  any  modification. 

9  "§34Q2.  Appointment  of  Counsel 

10  "(a)  Court  Appointment. — Counsel  furnishing  representation  un- 

11  der  a  plan  established  pursuant  to  this  subchapter  shall  be  selected 

12  from  a  panel  of  attorneys  designated  or  approved  by  the  court,  or  from 

13  a  bar  association,  legal  aid  agency,  or  defender  organization  furnish- 

14  ing  representation  pursuant  to  the  plan.  In  a  case  in  which  the  de- 

15  fendant  may  be  entitled  to  representation  pursuant  to  a  plan  and 

16  appears  without  counsel,  the  court  or  magistrate  shall  advise  the 

17  defendant  that  he  has  the  right  to  be  represented  by  counsel  and  that 

18  counsel  will  be  appointed  to  represent  him  if  he  is  financially  unable 

19  to  obtain  counsel.  Unless  the  defendant  waives  representation  by 

20  counsel,  the  court  or  magistrate,  if  satisfied  after  appropriate  inquiry 

21  that  th*"  defendant  is  financially  unable  to  obtain  counsel,  shall  appoint 

22  counsel  to  represent  him.  The  appointment  may  be  made  retroactive 

23  to  include  any  representation  furnished  pursuant  to  the  plan  prior  to 

24  appointment.  The  court  or  magistrate  shall  appoint  separate  counsel 

25  for  defendants  having  interests  that  cannot  properly  be  represented 

26  by  the  same  counsel,  or  for  other  good  cause  shown. 

27  "(b)  Duration  and  Substitution  of  Appointment. — A  person  for 

28  whom  counsel  is  appointed  shall  be  represented  at  every  stage  of  the 

29  proceedings  from  his  initial  appearance  before  a  court  or  a  magistrate 

30  through  appeal,  including  ancillary  matters  appropriate  to  the  pro- 

31  ceedings  and  a  proceeding  under  section  3603(a).  If  at  any  time  after 

32  the  appointment  of  counsel  the  court  or  magistrate  finds  that  the 

33  person  is  financially  able  to  obtain  counsel  or  to  make  partial  payment 

34  for  the  representation,  the  court  or  magistrate  may,  in  the  interest  of 

35  justice,  terminate  the  appointment  of  counsel  or  direct  payment  as 

36  provided  in  section  3403(c) .  If  at  any  stage  of  the  proceedings,  includ- 

37  ing  an  appeal,  the  court  or  magistrate  finds  that  a  person  is  financially 

38  unable  to  pay  counsel  whom  he  had  retained,  the  court  or  magistrate 

39  may,  in  the  interest  of  justice,  appoint  counsel  as  provided  in  subsec- 

40  tion  (a)  and  authorize  payment  as  provided  in  section  3403.  The  court 


9709 


225 

1  or  magistrate  may,  in  the  interest  of  justice,  substitute  one  appointed 

2  counsel  for  another  at  any  stage  of  the  proceedings. 

3  "§3403.  Compensation  of  Counsel 

4  "(a)  Payment  FOR  Representation. — 

5  "(1)  Hourly  Rate.  An  attorney  appointed  pursuant  to  section 

6  3402,  or  a  bar  association,  legal  aid  agency,  or  community  de- 

7  fender  organization  that  has  provided  the  appointed  attorney, 

8  shall,  at  the  conclusion  of  the  representation  or  any  segment 

9  thereof,  be  compensated  at  a  rate  not  exceeding  $30  per  hour  for 

10  time  expended  before  a  court  or  a  magistrate  and  $20  per  hour 

11  for  time  reasonably  expended  out  of  court,  or  shall  be  compen- 

12  sated  at  such  other  hourly  rate,  fixed  by  the  judicial  council  of 

13  the  circuit,  not  to  exceed  the  usual  minimum  hourly  rate  in  the 

14  district  for  similar  services.  The  attorney  shall  be  reimbursed 

15  for  expenses  reasonably  incurred,  including  the  costs  of  tran- 

16  scripts  authorized  by  the  magistrate  or  court. 

17  "(2)  Maximum  Amount. — For  representation  of  a  defendant 

18  before  a  district  court  or  a  magistrate,  or  both,  the  compensation  to 

19  be  paid  to  an  attorney,  or  to  a  bar  association,  legal  aid  agency,  or 

20  community  defender  organization,  may  not  exceed  $1,000  for  each 

21  attorney  in  a  case  in  which  one  or  more  felonies  are  charged,  and 

22  $400  for  each  attorney  in  a  case  in  which  only  misdemeanors  or 

23  infractions  are  charged.  For  representation  of  a  defendant  in  an 

24  appellate  court,  the  compensation  to  be  paid  to  an  attorney,  or  to 

25  a  bar  association,  legal  aid  agency,  or  community  defender  or- 

26  ganization,  may  not  exceed  $1,000  for  each  attorney  in  each  court. 

27  For  representation  in  connection  with  a  posttrial  motion  made 

28  after  the  entry  of  judgment  or  in  a  probation  or  parole  revocation 

29  proceeding,  or  for  representation  provided  under  section  3403(d) 

30  or  3617(d),  the  compensation  may  not  exceed  $250  for  each  at- 

31  tomey  in  each  proceeding. 

32  "(3)  Waiving  Maximum  Amount. — Payment  in  excess  of  any 

33  maximum  amount  provided  in  paragraph  (2)  may  be  made  for 

34  extended  or  complex  representation  if : 

35  "(A.)  the  court  in  which  the  representation  was  rendered, 

36  or  the  magistrate  if  the  representation  was  furnished  exclu- 

37  sively  before  him,  certifies  that  the  amount  of  the  excess  pay- 

38  ment  is  necessary  to  provide  fair  compensation ;  and 

39  "(B)  the  payment  is  approved  by  the  chief  judge  of  the 

40  circuit. 


9710 


1  "(4)  Filing  Claim. — A  separate  claim  for  compensation  and 

2  reimbursement  shall  be  made  to  the  district  court  for  representa- 

3  tion  before  the  court  or  a  magistrate,  and  to  each  appellate  court 

4  for  representation  before  that  court.  Each  claim  shall  be  sup- 

5  ported  by  a  sworn  written  statement  specifying  the  time  expended, 

6  services  rendered,  and  expenses  incurred  while  the  case  was  pend- 

7  ing  before  the  court  or  magistrate,  and  the  compensation  and 

8  reimbursement  applied  for  or  received  from  any  other  source  in 

9  the  same  case.  The  court  shall  fix  the  compensation  and  reimburse- 

10  ment  to  be  paid  to  the  attorney,  or  to  the  bar  association,  legal  aid 

11  agency,  or  community  defender  organization.  In  a  case  in  which 

12  representation  is  furnished  exclusively  before  a  United  States 

13  magistrate,  the  claim  shall  be  submitted  to  the  magistrate  and  he 

14  shall  fix  the  compensation  and  reimbursement  to  be  paid.  In  a  case 

15  in  which  representation  is  furnished  other  than  before  a  United 

16  States  magistrate,  a  district  court,  or  an  appellate  court,  the  claim 

17  shall  be  submitted  to  the  district  court,  and  the  district  court  shall 

18  fix  the  compensation  and  reimbursement  to  be  paid. 

19  "(b)  Services  Other  Than  Counsel. — 

20  "(1)  With  prior  reqoest. — Counsel  for  a  person  who  is  finan- 

21  cially  unable  to  obtain  investigative,  expert,  or  other  services 

22  necessary  for  an  adequate  defense  may  request  them  in  an  ex 

23  parte  application.  Upon  a  finding,  after  appropriate  inquiry  in 

24  an  ex  parte  proceeding  by  the  court  or  magistrate  having  juris- 

25  diction  over  a  matter,  that  the  services  are  required  in  connection 

26  with  the  matter  and  that  the  person  is  financially  unable  to  obtain 

27  them,  the  court  or  the  magistrate  shall  authorize  counsel  to  obtain 

28  them. 

29  "(2)  Without  prior  request. — Counsel  appointed  under  this 

30  chapter  may  obtain,  subject  to  later  review,  investigative,  expert, 

31  or  other  services  without  prior  authorization  if  necessary  for  an 

32  adequate  defense.  The  total  cost  of  services  obtained  without  prior 

33  authorization  may  not  exceed  $150  and  expenses  reasonably  in- 

34  curred. 

35  "  (3)  Maximum  Amount. — Compensation  to  be  paid  to  a  person 

36  for  services  rendered  by  him  under  this  subsection  or  to  be  paid 

37  to  an  organization  for  services  rendered  by  an  employee  thereof, 

38  shall  not  exceed  $300,  exclusive  of  reimbursement  for  expenses 

39  reasonably  incurred,  unless : 

40  "(A)  payment  in  excess  of  that  limit  is  certified  by  the 

41  court  or  the  magistrate,  if  the  services  were  rendered  in  con- 


9711 


227 

1  nection  with  a  case  disposed  of  entirely  before  him,  as  neces- 

2  sary  to  provide  fair  compensation  for  services  of  an  unusual 

3  character  or  duration ;  and 

4  "(B)  the  amount  of  the  excess  payment  is  approved  by  the 

5  chief  judge  of  the  circuit. 

6  "(c)  Receipt  OF  Other  Payment. — If  the  court  or  magistrate  finds 

7  that  funds  are  available  for  payment  by  or  on  behalf  of  a  person 

8  furnished  representation,  the  court  or  magistrate  may  authorize  or 

9  direct  that  such  funds  be  paid  to : 

10  "(1)  the  appointed  attorney; 

11  "(2)  the  bar  association,  legal  aid  agency,  or  community  de- 

12  fender  organization  that  provided  the  appointed  attorney; 

13  "(3)  any  person  or  organization  authorized  pursuant  to  sub- 

14  section  (b)  to  render  investigative,  expert,  or  other  services;  or 

15  "  (4)  the  court  for  deposit  in  the  Treasury  as  a  reimbursement  to 

16  the  appropriation,  current  at  the  time  of  payment,  to  carry  out  the 

17  provisions  of  this  section. 

18  Except  as  so  authorized  or  directed,  no  such  person  or  organization 

19  may  request  or  accept  any  payment  or  promise  of  payment  for  repre- 

20  sen  ting  a  defendant. 

21  "(d)  Discretionary  Appointment. — A  person  who  is  in  custody  as 

22  a  material  witness,  or  who  is  seeking  relief  under  28  U.S.C.  2241,  2254, 

23  or  2255,  may  be  furnished  representation  pursuant  to  the  plan  when- 

24  ever  the  court  or  magistrate  determines  that  the  interest  of  justice  so 

25  requires  and  that  the  person  is  financially  unable  to  obtain  representa- 

26  tion.  Payment  for  such  representation  may  be  as  provided  in  subsec- 

27  tions  (a)  and  (b). 

28  "§3404.  Defender  Organizations 

29  "(a)  Qualifications. — A  district  or  a  part  of  a  district  in  which  at 

30  least  two  hundred  persons  annually  require  the  appointment  of  counsel 

31  may  establish  a  defender  organization  as  provided  under  subsection  (b) 

32  (1)  or  (b)  (2).  Two  adjacent  districts  or  parts  of  districts  may  aggre- 

33  gate  the  number  of  persons  required  to  be  represented  to  establish 

34  eligibility  for  a  defender  organization  to  serve  both  areas.  If  the  ad- 

35  jacent  districts  or  parts  of  districts  are  located  in  different  circuits,  the 

36  plan  for  furnishing  representation  shall  be  approved  by  the  judicial 

37  council  of  each  circuit. 

38  "  (b)  Types  of  Defense  Organization. — 

39  "(1)   Federal    public    defender    organization. — A    Federal 

40  Public  Defender  Organization  shall  consist  of  one  or  more  full- 
4j  time,  salaried  attorneys.  An  organization  for  a  district  or  part  of 


9712 


228 


1  a  district  or  two  adjacent  districts  or  parts  of  districts  shall  be 

2  supervised  by  a  Federal  Public  Defender  appointed  by  the  ju- 

3  dicial  council  of  the  circuit,  without  regard  to  the  provisions  of 

4  title  5  governing  appointments  in  the  competitive  service,  after 

5  considering  recommendations  from  the  district  court  or  courts  to 

6  be  served.  Only  one  Federal  Public  Defender  may  be  appointed 

7  within  a  single  judicial  district.  The  Federal  Public  Defender 

8  shall  be  appointed  for  a  term  of  four  years,  subject  to  earlier  re- 

9  moval  by  the  judicial  council  of  the  circuit  for  incompetency,  mis- 

10  conduct  in  office,  or  neglect  of  duty.  The  compensation  of  the  Fed- 

11  eral  Public  Defender  shall  be  fixed  by  the  judicial  council  of  the 

12  circuit  at  a  rate  not  to  exceed  the  compensation  received  by  the 

13  United  States  attorney  for  the  district  in  which  representation  is 

14  furnished,  or,  if  two  districts  or  parts  of  districts  are  involved,  the 

15  compensation  of  the  United  States  attorney  receiving  the  higher 

16  compensation.  The  Federal  Public  Defender  may  appoint,  with- 

17  out  regard  to  the  provisions  of  title  5  governing  appointments  in 

18  the  competitive  service,  full-time  attorneys  in  such  number  as  are 

19  approved  by  the  judicial  council  of  the  circuit,  and  other  person- 

20  nel  in  such  number  as  are  approved  by  the  Director  of  the  Admin- 

21  istrative  Office  of  the  United  States  Courts.  Compensation  paid 

22  to  such  attornej's  and  other  personnel  of  the  organization  shall  be 

23  fixed  by  the  Federal  Public  Defender  at  a  rate  not  to  exceed  that 

24  paid  to  attorneys  and  other  personnel  of  similar  qualifications  and 

25  experience  in  the  office  of  the  United  States  attorney  in  the  dis- 

26  trict  in  which  representation  is  furnished,  or,  if  two  districts  or 

27  parts  of  districts  are  involved,  the  higher  compensation  paid  to 

28  persons  of  similar  qualifications  and  experience  in  the  districts. 

29  Neither  the  Federal  Public  Defender  nor  an  attorney  appointed 

30  by  him  may  engage  in  the  private  practice  of  law.  Each  organiza- 

31  tion  shall  submit  to  the  Director  of  the  Administrative  Office  of 

32  the  United  States  Courts,  at  the  time  and  in  the  form  prescribed 

33  by  him,  reports  of  its  activities,  financial  position,  and  proposed 

34  budget.  The  Director  of  the  Administrative  Office  of  the  United 

35  States  Courts  shall  submit,  in  a  manner  similar  to  and  subject  to 

36  the  conditions  of  28  U.S.C.  605,  a  budget  for  each  organization  for 

37  each  fiscal  year,  and  shall,  out  of  the  appropriations  therefor, 

38  make  payments  to  and  on  behalf  of  each  organization.  Payments 

39  under  this  paragraph  to  an  organization  shall  be  in  lieu  of  pay- 

40  ments  under  section  3403  (a)  or  (b) . 


9713 

229 

1  "(2)    Community    defender    organization. — A    Community 

2  Defender  Organization  shall  be  a  nonprofit  defense  counsel  serv- 

3  ice  established  and  administered  by  any  group  authorized  by  the 
i  plan  to  provide  representation.  The  organization  shall  be  eligible 

5  to  furnish  attorneys  and  receive  payments  imder  section  3403  if 

6  its  bylaws  are  set  forth  in  the  plan  of  the  district  or  districts  in 

7  which  it  will  serve.  Each  organization  shall  submit  to  the  Judicial 

8  Conference  of  the  United  States  an  annual  report  setting  forth 

9  its  activities  and  financial  position  and  its  anticipated  caseload 

10  and  expenses  for  the  coming  year.  Upon  application  an  organiza- 

11  tion  may,  to  the  extent  approved  by  the  Judicial  Conference  of 

12  the  United  States: 

13  "(-A-)   receive  an  initial  grant  for  expenses  necessary  to 

14  establish  the  organization ;  and 

15  "(B)  in  lieu  of  payments  under  section  3403(a)  or  3403 

16  (b),  receive  periodic  sustaining  grants  to  provide  represen- 

17  tation  and  other  expenses  pursuant  to  this  chapter. 

18  "§3405.  General  Provisions  for  Chapter  34 

1^  "(a)  Rules  and  Reports. — Each  district  court  and  judicial  council 

20  of  a  circuit  shall  submit  a  report  to  the  Administrative  Office  of  the 

21  United  States  Courts  on  the  appointment  of  counsel  within  its  juris- 

22  diction  in  such  form  and  at  such  times  as  the  Judicial  Conference  of 

23  the  United  States  may  specify.  The  Judicial  Conference  of  the  United 
2**  States  may  issue  rules  and  regulations  governing  the  operation  of 
25  plans  for  the  appointment  of  counsel. 

2"  "(b)  Administr^vtion. — The  Director  of  the  Administrative  Office 

27  of  the  United  States  Courts  shall  supervise  the  making  of  payments 

28  under  this  chapter. 
"(c)  Application  to  the  District  of  Columbia. — The  provisions 

of  this  chapter,  otlier  than  section  3404,  shall  apply  in  the  United 

31  States  District  Court  for  the  District  of  Columbia  and  the  United 

32  States  Court  of  Appeals  for  the  District  of  Columbia  Circuit.  The 

33  provisions  of  this  chapter  shall  not  apply  to  the  Superior  Court  of  the 

34  District  of  Columbia  or  the  District  of  Columbia  Court  of  Appeals. 
"(d)  New  Trial  Considered  New  Case. — For  purposes  of  com- 
pensation and  other  payments  authorized  by  this  chapter,  an  order 

37  by  a  court  granting  a  new  trial  shall  be  considered  to  initiate  a  new 

38  case. 

39  "(e)  Fees  and  Costs  on  Appeai.  Waived. — If  a  person  for  whom 

40  counsel  is  appointed  under  this  chapter  appeals  to  an  appellate  court 


29 
30 


35 
36 


9714 


230 

1  or  petitions  for  a  writ  of  certiorari,  he  may  do  so  without  payment 

2  of  fees  and  costs,  or  security  therefor,  and  without  filing  the  aflidavit 

3  required  by  28  U.S.C.  1915  (a). 

4  "Chapter  35.— RELEASE  AND  CONFINEMENT  PENDING 

5  JUDICIAL  PROCEEDINGS 

g        "Subchapter 

"A.  Release  Pending  Judicial  Proceedings. 

7  "B.  Confinement  Pending  Judicial  Proceedings. 

8  "Subchapter  A. — Release  Pending  Judicial  Proceedings 

"Sec. 

"3501.  Release  Authority  Generally. 

"3502.  Release  Pending  Trial  in  a  Non-Capital  Case. 

"3503.  Release  Pending  Trial  in  a  Capital  Case. 

"3504.  Release  Pending  Sentence  or  Appeal. 

"3505.  Release  of  a  Material  Witness. 

"3506.  Appeal  from  Denial  of  Release. 

"3507.  Release  in  a  Case  Removed  from  a  State  Court. 

"3508.  Surrender  of  an  Offender  by  a  Surety. 

"3509.  Security  for  Peace  and  Good  Behavior. 

9  "§3501.  Release  Authority  Generally 

10  "A  person  charged  with  an  offense  may  be  ordered  released  pursuant 

11  to  the  provisions  of  this  chapter  by  a  judge  authorized  to  order  the 

12  arrest  and  commitment  of  offenders,  but  a  person  charged  with  an 

13  offense  for  which  a  sentence  of  death  is  authorized  may  be  ordered 

14  released  only  by  a  judge  of  a  court  of  the  United  States  that  has  orig- 

15  inal  jurisdiction  in  criminal  cases. 

16  "§  3502.  Release  Pending  Trial  in  a  Non-Capital  Case 

17  "  (a)  Release  Conditions. — A  person  charged  with  an  offense,  other 

18  than  an  offense  for  which  a  sentence  of  death  is  authorized,  shall,  at 

19  his  appearance  before  a  judge,  be  ordered  released  pending  trial  on  his 

20  personal  recognizance  or  upon  the  execution  of  an  unsecured  appear- 

21  ance  bond  in  an  amount  specified  by  the  judge,  unless  the  judge  deter- 

22  mines,  in  the  exercise  of  his  discretion,  that  such  a  release  will  not 

23  reasonably  assure  the  appearance  of  the  person  as  required.  If  such 

24  a  determination  is  made,  the  judge  shall,  either  in  lieu  of  or  in  addi- 

25  tion  to  the  above  methods  of  release,  impose  the  first  of  the  follow- 

26  ing  conditions  of  release  that  will  reasonably  assure  the  appearance 

27  of  the  person  for  trial  or,  if  no  single  condition  will  give  that  assur- 

28  ance,  any  combination  of  the  following  conditions : 

29  "(1)8-  condition  placing  the  person  in  the  custody  of  a  desig- 

30  nated  person  agreeing  to  supervise  him ; 

31  "(2)  a  condition  placing  restrictions  on  the  person's  travel, 

32  associations,  or  place  of  abode,  during  the  period  of  release ; 

33  "(3)  a  condition  requiring  the  execution  of  an  appearance  bond 

34  in  a  specified  amount,  and  the  deposit  in  the  registry  of  the  court, 


9715 

231 

1  in  cash  or  other  security  as  directed,  of  a  sum  not  to  exceed  ten  per- 

2  cent  of  the  amount  of  the  bond,  such  deposit  to  be  returned  upon 

3  the  performance  of  the  conditions  of  release; 

4  "(4)  a  condition  requiring  the  execution  of  a  bail  bond  with 

5  sufficient  solvent  sureties,  or  the  deposit  of  cash  in  lieu  thereof ;  or 

6  "  (5)  any  other  condition  reasonably  necessary  to  assure  appear- 

7  ance  as  required,  including  a  condition  requiring  that  the  person 

8  return  to  custody  after  specified  hours. 

9  "(b)  Factors  in  Determining  Release. — In  determining  which 
10  conditions  of  release  will  reasonably  assure  the  appearance  of  the  per- 
il son  as  required,  the  judge  shall,  on  the  basis  of  available  information, 

12  take  into  account: 

13  "  (1)  the  nature  and  circumstances  of  the  oflfense  charged ; 

14  "(2)  the  weight  of  the  evidence  against  the  person;  and 

15  "(3)  the  history  and  characteristics  of  the  person,  including 

16  his  character,  mental  condition,  family  ties,  employment,  length 

17  of  residence  in  the  community,  financial  resources,  record  of  con- 

18  victions,  and  record  of  appearance  or  nonappearance  at  court 

19  proceedings. 

20  "(c)  Order. — A  judge  authorizing  the  release  of  a  person  pursuant 

21  to  this  section  shall  issue  an  order  containing  a  statement  of  the  condi- 

22  tions  of  release  imposed,  shall  advise  him  of  the  penalties  applicable  to 

23  a  violation  of  a  condition  of  his  release,  and  shall  advise  him  that  a 

24  warrant  for  his  arrest  will  be  issued  immediately  upon  such  a  viola- 

25  tion.  A  failure  to  advise  the  person  of  the  penalties  applicable  for  fail- 

26  ure  to  appear  as  required  is  not  a  bar  or  defense  to  a  prosecution  under 

27  section  1312  (BailJumping). 

28  "(d)  Reconsideration. — A  person  concerning  whom  conditions  of 

29  release  are  imposed,  and  who  after  twenty-four  hours  from  the  time 

30  of  the  release  hearing  continues  to  be  detained  as  a  result  of  his  in- 

31  ability  to  meet  the  conditions  of  release,  may,  upon  application,  have 

32  the  conditions  reviewed  by  the  judge  who  imposed  them.  A  person  who 

33  is  ordered  released  on  a  condition  that  requires  him  to  return  to  custody 

34  after  specified  hours  may,  upon  application,  have  the  condition  re- 

35  viewed  by  the  judge  who  imposed  it.  Unless  the  conditions  of  release 

36  are  amended  and  the  person  is  thereupon  released  on  another  condi- 

37  tion,  the  judge  shall  set  forth  in  writing  the  reasons  for  continuing 

38  the  conditions  imposed.  If  the  judge  who  imposed  conditions  of  re- 

39  lease  is  not  available,  any  other  judge  in  the  district  may  review  such 

40  conditions. 


9716 

232 

1  "(e)  Modification. — A  judge  ordering  the  release  of  a  person  on 

2  a  condition  specified  in  this  section  may  at  any  time  amend  his  order 

3  to  impose  additional  or  different  conditions  of  release.  If  the  imposition 

4  of  such  additional  or  different  conditions  results  in  the  detention  of  the 

5  person  as  a  result  of  his  inability  to  meet  such  conditions,  the  provi- 

6  sions  of  subsection  (d)  are  applicable. 

7  "(f)  Evidence. — Any  information  may  be  presented  and  considered 

8  in  connection  with  an  order  entered  pursuant  to  this  section  regardless 

9  of  its  admissibility  under  the  rules  governing  admission  of  evidence  in 

10  criminal  trials. 

11  "§3503.  Release  Pending  Trial  in  a  Capital  Case 

12  "A  person  who  is  charged  with  an  offense  for  which  a  sentence  of 

13  death  is  authorized  shall  be  treated  in  accordance  with  the  provisions 

14  of  section  3502,  unless  the  judge  has  reason  to  believe  that  no  condi- 

15  tions  of  release  will  reasonably  assure  that  the  person  will  not  flee 

16  or  will  not  pose  a  danger  to  any  other  person  or  to  the  community. 

17  If  such  a  risk  of  flight  or  danger  is  believed  to  exist,  the  person  shall 

18  be  ordered  detained.  Such  an  order  is  not  appealable  imder  section 

19  3506,  but  may  be  reviewed  under  other  provisions  for  review  of  condi- 

20  tions  of  release  or  orders  of  detention. 

21  "§3504.  Release  Pending  Sentence  or  Appeal 

22  "(a)  Pending  Sentence  or  Appeal  by  the  Defendant. — A  person 

23  who  has  been  found  guilty  of  an  offense  and  is  awaiting  sentence,  or 

24  \vho  has  filed  an  appeal  or  a  petition  for  a  writ  of  certiorari,  shall  be 

25  treated  in  accordance  with  the  provisions  of  section  3502,  unless  the 

26  judge  has  reason  to  believe  that  no  conditions  of  release  will  reason- 

27  ably  assure  that  the  person  will  not  flee  or  will  not  pose  a  danger  to 

28  any  other  person  or  to  the  community.  If  such  a  risk  of  flight  or  danger 

29  is  believed  to  exist,  or  if  it  appears  that  an  appeal  is  frivolous  or  taken 

30  for  purposes  of  delay,  the  person  shall  be  ordered  detained.  Such  an 

31  order  is  not  appealable  under  section  3506,  but  may  be  reviewed  under 

32  other  provisions  for  review  of  conditions  of  release  or  orders  of  deten- 

33  tion. 

34  "(b)  Pending  Appeal  by  the  Go\'ernment. — A  person  who  is  a  de- 
85  fendant  in  a  case  in  which  an  appeal  has  been  taken  by  the  United 

36  States  pursuant  to  the  provisions  of  section  3724  (a)  or  (b)  shall  be 

37  treated  in  accordance  with  the  provisions  of  section  3502. 

38  "§3505.  Release  of  a  Material  Witness 

39  "If  it  appears  from  an  affidavit  filed  by  a  party  that  the  testimony 

40  of  a  person  is  material  in  a  criminal  proceeding,  and  if  it  is  shown 


9717 


233 


1  that  it  may  become  impracticable  to  secure  his  presence  by  subpoena. 

2  a  judge  shall  impose  conditions  of  release  pursuant  to  section  3502. 

3  No  material  witness  may  be  detained  because  of  inability  to  comply 

4  with  any  condition  of  release  if  the  testimony  of  such  witness  can  ade- 

5  quately  be  secured  by  deposition,  and  if  further  detention  is  not  neces- 

6  sary  to  prevent  a  failure  of  justice.  Release  may  be  delayed  for  a  rea- 

7  sonable  period  of  time  until  the  deposition  of  the  witness  can  be  taken 

8  pursuant  to  the  Federal  Rules  of  Criminal  Procedure. 

9  "§  3506.  Appeal  from  Denial  of  Release 

10  "  (a)  Review. — A  person : 

11  "(1)  who  is  detained,  or  whose  release  on  a  condition  requir- 

12  ing  him  to  return  to  custody  after  specified  hours  is  continued; 

13  and 

14  "(2)  whose  application  pursuant  to  secfion  3502  (d)  or  (e) 

15  has  been  reviewed  by  a  judge  other  than : 

16  "  ( A)  a  judge  of  the  court  having  original  jurisdiction  over 

17  the  oflFense  with  which  he  is  charged ; 

18  "  ( B )  a  judge  of  a  United  States  Court  of  Appeals ;  or 

19  or 

20  "  (C)  a  Justice  of  the  Supreme  Court  of  the  United  States ; 

21  may  file  a  motion  for  an  amendment  of  the  order  with  the  court  having 

22  original  jurisdiction  over  the  offense  with  which  he  is  charged.  Such 

23  a  motion  shall  be  determined  promptly. 

24  "(b)  Appeal. — In  a  case  in  which  a  person  is  detained  after : 

25  "(1)  a  court  denies  a  motion  under  subsection  (a)  to  amend  an 

26  order  imposing  conditions  of  release ;  or 

27  "(2)  conditions  of  release  have  been  imposed  or  amended  by 

28  a  judge  of  the  court  having  original  jurisdiction  over  the  offense 

29  charged ; 

30  an  appeal  may  be  taken  to  the  court  having  appellate  jurisdiction 

31  over  such  court.  An  order  so  appealed  shall  be  affirmed  if  it  is  sup- 

32  ported  by  the  proceedings  below.  If  the  order  is  not  so  supported,  the 

33  court  may  remand  the  case  for  a  further  hearing,  or  may,  with  or 

34  without  additional  evidence,  order  the  person  released  pursuant  to 

35  section  3502.  Such  an  appeal  shall  be  determined  promptly. 

36  "§  3507.  Release  in  a  Case  Removed  from  a  State  Court 

37  "If  the  judgment  of  a  state  court  in  a  criminal  proceeding  is  before 

38  the  Supreme  Court  of  the  United  States  for  review,  the  defendant  may 

39  not  be  released  from  custody  pending  such  review  other  than  pursuant 

40  to  the  laws  of  such  state. 


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234 

1  "§  3508.  Surrender  of  an  Offender  by  a  Surety 

2  "A  person  charged  with  an  offense,  who  is  released  uison  the  execu- 

3  tion  of  an  appearance  bond  with  a  surety,  may  be  arrested  by  the 

4  surety,  delivered  to  a  United  States  marshal,  and  brought  before  a 

5  judge.  At  the  request  of  the  surety,  the  judge  shall  order  the  person 

6  held  in  official  detention,  and  shall  endorse  on  the  recognizance,  or  on 

7  the  certified  copy  of  the  recognizance,  the  discharge  and  exoneretur  of 

8  the  surety.  The  person  so  committed  shall  be  held  in  official  detention 

9  until  released  pursuant  to  this  chapter  or  to  another  provision  of  law. 

10  "§3509.  Security  for  Peace  and  Good  Behavior 

11  'A  judge  who  may  order  an  arrest  pursuant  to  section  3303  may 

12  require  a  person  to  give  security  for  peace  and  good  behavior  in  a 

13  case  arising  under  the  Constitution  and  laws  of  the  United  States, 

14  to  the  same  extent  that  a  judge  of  the  state  in  which  the  case  arises 

15  would  be  authorized  by  state  law  if  the  case  were  a  state  case. 

16  "Subchapter  B. — Confinement  Pending  Judicial 

17  Proceedings 

"Sec. 

"3511.  Commitinent  of  an  Arrested  Person. 

"3512.  Discharge  of  an  Arrested  but  Unconvicted  Person. 

18  "§  3511.  Commitment  of  an  Arrested  Person 

19  "  (a)  Order  of  Commitment. — A  person  who  is  arrested  and  charged 

20  with  an  offense  or  held  as  a  material  witness  and  who  is  not  ordered 

21  released  pursuant  to  the  provisions  of  subchapter  A,  shall  be  ordered 

22  committed  to  the  custody  of  the  Attorney  General  for  confinement 

23  in  a  facility  for  official  detention.  A  copy  of  the  order  shall  be 

24  delivered  to  the  person  in  charge  of  the  facility  as  evidence  of  his 

25  authority  to  hold  the  arrested  person,  and  the  original  order,  with 

26  the  return  endorsed  thereon,  shall  be  returned  to  the  court  that  issued 

27  it. 

28  "(b)  Deltvert  of  Arrested  Person  for  Cottrt  Appearance. — The 
person  in  charge  of  an  official  detention  facility  to  v?hom  an  arrested 
person  is  delivered  pursuant  to  the  provisions  of  subsection  (a)  shall 

31  deliver  the  person  to  a  United  States  marshal  for  the  purpose  of  a  court 

32  appearance  on  order  of  a  court  of  the  United  States  or  on  request  of  an 

33  attorney  for  the  government. 

34  "§  31512.  Discharge  of  an  Arrested  but  Unconvicted  Person 

35  "A  court  of  the  United  States  may  direct  the  United  States  marshal 

36  for  the  judicial  district  to  furnish  subsistence  and  transportation  to 

37  the  place  of  arrest  or  to  the  place  of  bona  fide  residence,  under  regula- 

38  tions  promulgated  by  the  Director  of  the  Bureau  of  Prisons,  to : 


29 
30 


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235 

1  "(1)  a  person  arrested  for  an  offense  but  not  charged  with  an 

2  offense  in  an  indictment  or  information ; 

3  "(2)  a  person  charged  with  an  offense  in  an  indictment  or  in- 

4  formation  but  not  convicted ;  or 

5  "  (3)  a  person  held  as  a  material  witness ; 

6  upon  the  release  of  such  person  from  official  detention. 

7  "Chapter  36.— DISPOSITION  OF  JUVENILE  OR 

8  INCOMPETENT  OFFENDERS 

"Subchapter 

"A.  Juvenile  Delinquency. 

"B.  Offenders  with  Mental  Disease  or  Defect. 

9  "Subchapter  A. — Juvenile  Delinquency 

"Sec. 

"3601.  Surrender  of  a  Juvenile  Delinquent  to  State  Authorities. 

"3602.  Arrest  and  Detention  of  a  Juvenile  Delinquent. 

"360.3.  Juvenile  Delinquency  Proceedings. 

"3604.  Parole  of  a  Juvenile  Delinquent. 

"3605.  Use  of  Juvenile  Delinquency  Records. 

"3606.  Definitions  for  Subchapter  A. 

10  "§  3601.  Surrender  of  a  Juvenile  Delinquent  to  State  Authorities 

11  "(a)   Surrender  of  a  Juvenile. — If  a  juvenile  is  arrested  and 

12  charged  with  an  offense,  other  than  a  Class  B  or  Class  C  misdemeanor 

13  or  an  infraction  that  is  committed  within  the  special  territorial  juris- 

14  diction  of  the  United  States,  the  Attorney  General  shall  forego  prose- 

15  cution  and  surrender  the  person  to  state  jurisdiction  unless,  after 

16  investigation,  he  certifies  that : 

17  "  (1)  the  state  will  not  assume  jurisdiction  over  the  person,  take 

18  him  into  custody,  and  proceed  against  him  in  accordance  with  its 

19  laws ; 

20  "(2)  the  state  does  not  have  available  programs  and  services 

21  adequate  for  the  needs  of  the  juvenile;  or 

22  "(3)  the  offense  charged  is  a  Class  A,  B,  or  C  felony  and  that 

23  federal  prosecution  is  in  the  intertst  of  justice. 

24  "(b)     SXJRRENDER    OF    A    PeRSON    BeTWEEN    EIGHTEEN   AND   TwENTT- 

25  One. — If  a  person  who  is  between  the  ages  of  eighteen  and  twenty-one 

26  years  old,  is  arrested  and  charged  with  an  offense,  the  Attorney 

27  General  may  forego  prosecution  and  surrender  the  person  to  state 

28  jurisdiction  if,  after  investigation,  he  determines  that: 

29  "(1)  the  person  has  committed  an  offense  or  is  a  juvenile  delin- 

30  quent  under  the  laws  of  a  state  that  will  assume  jurisdiction  over 

31  the  person,  take  him  into  custody,  and  proceed  against  him  in 

32  accordance  with  its  laws ;  and 

33  "(2)  such  disposition  will  be  in  the  interests  of  justice. 


9720 

236 

1  (c)    Transportation. — The   United   States   marshal  of  the  dis- 

2  trict  in  which  the  person  was  arrested  shall,  upon  written  order  of  the 

3  Attorney  General,  transfer  the  person  to  such  state  or,  if  he  is  already 

4  in  such  state,  to  any  other  part  of  the  state,  and  shall  deliver  him  into 

5  the  custody  of  the  proper  state  authority. 

6  (d)   Consent  or  Demand  Kequired. — Before  a  person  is  trans- 

7  ferred  from  one  state  to  another  under  this  section : 

8  "  ( 1 )  the  person  must  consent  to  the  transfer ;  or 

9  "  (2)  a  demand  must  be  presented  to  the  Attorney  General  from 

10  the  executive  authority  of  the  state  to  which  the  person  is  to  be 

11  returned,  supported  by  an  indictment  or  affidavit  as  prescribed  by 

12  section  3202. 

13  "§3602.  Arrest  and  Detention  of  a  Juvenile  Delinquent 

14  "(a)  Arrest. — If  a  juvenile  is  taken  into  custody  for  an  act  of 
16  juvenile  delinquency,  the  arresting  officer  shall  immediately  advise  the 

16  juvenile  of  his  legal  rights  in  clear  and  non-technical  language, 

17  shall  immediately  notify  the  Attorney  General  of  such  custody,  and 

18  shall  make  reasonable  efforts  to  notify  the  juvenile's  parents,  guardian, 

19  or  custodian  of  such  custody.  The  arresting  officer  shall  also  advise  the 

20  parents,  guardian,  or  custodian  of  the  rights  of  the  juvenile  and  of  the 

21  nature  of  the  alleged  offense. 

22  "(b)  Detention. — If  the  juvenile  is  not  taken  forthwith  before  a 

23  judge,  he  may  be  detained  in  a  juvenile  home  or  other  suitable  place 

24  of  detention  that  the  Attorney  General  may  designate  for  such  pur- 

25  pose,  but,  insofar  as  possible,  he  shall  not  be  detained  in  a  facility  for 

26  official  detention  in  which  he  has  a  regular  contact  with  an  adjudicated 

27  juvenile  delinquent  or  an  adult  convicted  of  an  offense  or  awaiting 

28  trial  on  a  charge  of  an  offense.  If  possible,  the  detention  shall  be  in  a 

29  facility  located  in  or  near  the  juvenile's  home  community.  The  juvenile 

30  while  in  custody  shall  be  provided  with  adequate  food,  heat,  light, 

31  sanitary  facilities,  bedding,  clothing,  recreation,  education  and  medical 

32  care,  including  any  necessary  psychiatric,  psychological,  or  other  care 

33  or  treatment.  The  juvenile  shall  not  be  detained  for  a  period  longer 

34  than  is  necessary  to  produce  the  juvenile  before  a  judge. 

35  "(c)  Release. — The  judge  shall  release  the  juvenile  pending  trial 

36  upon  any  condition  set  forth  in  section  3502  that  will  reasonably  assure 

37  the  presence  of  the  juvenile  before  the  appropriate  court  as  required, 

38  unless  the  judge  determines,  after  a  hearing,  that  official  detention 

39  pending  trial  of  such  juvenile  is  required  to  secure  his  safety  or  the 

40  safety  of  another  person.  If  a  juvenile  is  held  in  official  detention  pend- 

41  ing  trial  pursuant  to  this  subsection  and  is  not  brought  to  trial  within 


9721 


237 


1  sixty  days  from  the  date  upon  which  the  detention  was  begun,  the 

2  information  shall  be  dismissed  on  motion  of  the  juvenile  or  at  the 

3  direction  of  the  court,  unless  the  Attorney  General  shows  that  addi- 

4  tional  delay  was  caused  by  the  juvenile  or  his  counsel,  or  consented  to 

5  by  the  juvenile  and  his  counsel,  or  would  be  in  the  interest  of  justice  in 

6  the  particular  case.  Delays  attributable  solely  to  court  calendar  con- 

7  gestion  miay  not  be  considered  to  be  in  the  interest  of  justice.  Except 

8  in  extraordinary  circumstances,  an  information  dismissed  under  this 

9  section  may  not  be  reinstituted. 

10  "§3603.  Juvenile  Delinquency  Proceeding 

11  "(a)  In  Generai,. — A  juvenile  who  is  charged  with  committing  an 

12  offense  and  who  is  not  surrendered  to  state  authorities  shall  be  pro- 

13  oeeded  against  as  a  juvenile  delinquent : 

1^  "(1)  unless,  upon  advice  of  counsel,  he  elects  in  a  writing  filed 

]^5  with  the  court  to  be  treated  as  an  adult  and  waives  the  bar  to 

Ig  prosecution,  if  applicable,  in  section  512 ;  or 

17  "(2)  unless: 

18  "(A)  he  is  less  than  sixteen  years  old ; 

19  "(B)  the  offense  charged  is  an  offense  described  in  section 

20  1601(a)(1)  or  (a)(2)  (Murder);and 

21  "(C)  the    court    having    jurisdiction    over    the    offense 

22  charged,  upon  a  motion  filed  by  the  Attorney  General  and 

23  after  reasonable  notice  to : 

24  "(i)   the  juvenile; 

25  "  ( ii )   his  parents,  guardian,  or  custodian ;  and 

26  "  ( iii )  counsel  for  the  j  uvenile ; 

27  holds  a  hearing  and  determines  that  in  the  interest  of  justice 

28  the  juvenile  should  be  treated  as  an  adult ;  or". 

29  "(3)  unless: 

3Q  "(A)  he  is  sixteen  years  old  or  more; 

31  "(B)  the  offense  charged  is  a  Class  A,  B,  or  C  felony; 

32  and 

33  "(C)   the    court    having    jurisdiction    over    the    offense 

34  charged,  upon  a  motion  filed  by  the  Attorney  General  and 

35  after  reasonable  notice  to : 
3g  "(i)  the  juvenile; 

37  "(ii)   his  parents, guardian,  or  custodian ;  and 

38  "  (iii)  counsel  for  the  juvenile ; 

39  holds  a  hearing  and  determines  that  in  the  interest  of  justice 

40  the  juvenile  should  be  treated  as  an  adult. 


9722 


238 


1  "(b)  Critekia. — In  making  the  determination  required  by  subsec- 

2  tion   (a)(2)(C)   and   (a)(3)(C)   the  court  shall  consider  and  shall 

3  make  findings  of  fact  on  the  record  with  regard  to : 

4  "  (1)  the  nature  and  circumstances  of  the  offense; 

5  "(2)  the  age  and  social  background  of  the  juvenile; 

6  "(3)  the  extent  and  nature  of  the  juvenile's  prior  delinquency 

7  record ; 

8  "(4)  the  likelihood  of  reform  of  the  juvenile  prior  to  his 

9  majority; 

10  "(5)  the  availability  of  programs  designed  to  treat  the  juve- 

11  nile's  behavioral  problems ;  and 

12  "(6)   whether  juvenile  disposition  will  reflect  the  seriousness  of 

13  the  juvenile's  conduct,  promote  respect  for  the  law,  and  provide  a 

14  just  response  to  the  conduct  of  the  juvenile. 

15  "(c)  Procedure. — Jurisdiction  over  juvenile  delinquency  proceed- 

16  ings  shall  be  exercised  by  the  District  Courts  of  the  United  States,  or 

17  alternatively,  in  the  case  of  a  misdemeanor  or  an  infraction,  by  a 

18  United  States  Magistrate  pursuant  to  section  3302.  A  juvenile  may  be 

19  proceed  against  for  an  act  of  juvenile  delinquency  only  by  informa- 

20  tion,  and  no  criminal  prosecution  may  be  instituted  for  the  offense 

21  charged.  For  purposes  of  a  juvenile  delinquency  hearing,  the  court 

22  may  be  convened  at  any  time  and  place  within  the  judicial  district,  in 

23  chambers  or  otherwise.  Prior  to  a  juvenile  delinquency  hearing,  a 

24  juvenile  may  be  committed  for  an  inpatient  study  pursuant  to  subsec- 

25  tion  (d)  with  the  consent  of  the  juvenile  and  his  attorney. 

26  "(d)  Commitment  Pending  Disposition. — If  the  court  desires  more 

27  information  than  is  otherwise  available  to  it  as  a  basis  for  determining 

28  the  appropriate  disposition,  the  court  may  commit  the  juvenile  to  the 

29  custody  of  the  Bureau  of  Prisons  for  a  period  of  not  more  than  thirty 

30  days  for  the  purpose  of  observation  and  study  at  an  appropriate  classi- 

31  fication  center  or  agency.  Such  observation  and  study  shall  be  con- 

32  ducted  on  an  outpatient  basis,  unless  the  court  determines  that  inpatient 

33  study  and  observation  are  necessary  to  obtain  the  necessary  informa- 

34  tion.  The  Bureau  of  Prisons,  under  such  regulations  as  the  Attorney 

35  General  may  issue,  shall  conduct  a  complete  study  of  the  juvenile 

36  delinquent  during  such  period,  inquiring  into  such  matters  as  the 

37  juvenile's  previous  juvenile  delinquency  or  criminal  experience,  his 

38  social  background,  his  capabilities,  his  mental,  emotional,  and  physical 

39  health,  the  significant  problem  or  problems  involved  in  his  juvenile 

40  delinquency,  the  rehabilitative  resources  or  programs  that  may  be 


9723 

239 

1  available  to  suit  his  needs,  and  any  other  factor  which  the  Bureau  may 

2  consider  pertinent.  By  the  expiration  of  the  period  of  commitment  the 

3  Bureau  shall  return  the  juvenile  delinquent  to  the  court  for  final  dis- 

4  position,  shall  provide  the  court  and  the  attorney  for  the  juvenile  with 

5  a  written  report  of  the  results  of  the  study,  and  shall  make  to  the  court 

6  whatever  recommendations  the  Bureau  believes  will  be  helpful  to  a 

7  proper  resolution  of  the  case.  The  court  may  grant  additional  time  for 

8  the  preparation  of  the  report  or  recommendation. 

9  "(e)   Disposition. — If  the  court  finds  a  juvenile  to  be  a  juvenile 

10  delinquent,  the  court  shall  hold  a  hearing  concerning  the  appropriate 

11  disposition.  After  the  hearing  the  court  may  suspend  the  findings  of 

12  juvenile  delinquency,  place  him  on  probation,  or  commit  him  to  official 

13  detention. 

14  "(f)   Probation. — The  tenn  for  which  probation  may  be  ordered 

15  for  a  juvenile  found  to  be  a  juvenile  delinquent  may  not  extend: 

16  "  ( 1 )  in  the  case  of  a  juvenile  who  is  less  than  nineteen  years  old, 

17  beyond  the  date  when  the  juvenile  becomes  twenty-one  years 

18  old ;  or 

19  "(2)   in  the  case  of  a  juvenile  who  is  between  nineteen  and 

20  twenty-one  years  old,  two  years. 

21  The  provisions  dealing  with  probation  set  forth  in  sections  2103  and 

22  2104  are  applicable  to  an  order  placing  a  juvenile  on  probation. 

23  "(g)  Official  Detention. — The  term  for  which  official  detention 

24  may  be  ordered  for  a  juvenile  found  to  be  a  juvenile  delinquent  may 

25  not  extend : 

26  "  ( 1 )  in  the  case  of  a  juvenile  who  is  less  than  nineteen  years  old, 

27  beyond  the  lesser  of : 

28  "  (A)  the  date  when  the  juvenile  becomes  twenty-one  years 

29  old ;  or 

30  "(B)  the  maximum  term  that  could  have  been  imposed  if 

31  the  juvenile  had  been  tried  and  convicted  as  an  adult ;  or 

32  "(2)   in  the  case  of  a  juvenile  who  is  between  nineteen  and 

33  twenty -one  years  old,  beyond  the  lesser  of : 

34  "  (A)  two  years ;  or 

35  "(B)  the  maximum  term  that  could  have  been  imposed  if 

36  the  juvenile  had  been  tried  and  convicted  as  an  adult. 

37  "(h)  Place  of  Official  Detention. — The  Bureau  of  Prisons  may 

38  designate  as  the  place  of  official  detention  during  the  period  of  com- 

39  mitment  a  suitable  public  or  private  agency  or  foster  home.  No  juve- 

40  nile  found  to  be  a  juvenile  delinquent  shall  be  held,  except  as  necessary 


92-465  O  -  77  -  74 


9724 


240 


1  for  purposes  of  transportation  or  medical  care,  in  an  official  detention 

2  facility  in  which  an  adult  convicted  of  an  offense  or  awaiting  trial  on 

3  a  charge  of  an  offense  is  held  in  official  detention.  A  juvenile  who  has 

4  been  committed  shall  be  provided  with  adequate  food,  heat,  light, 

5  sanitary  facilities,  bedding,  clothing,  recreation,  counseling,  educa- 

6  tion,  training,  and  medical  care,  including  any  necessary  psychiatric, 

7  psychological,  or  other  care  and  treatment.  If  possible,  the  Bureau  of 

8  Prisons  shall  commit  a  juvenile  to  a  public  or  private  agency  or  foster 

9  home  located  in  or  near  his  home  community. 

10  "(i)    Contracting  for  Non-Federal  Facilities. — The  Director 

11  of  the  Bureau  of  Prisons  may  contract  with  a  public  or  private  agency 

12  or  foster  home  for  the  custody,  care,  subsistence,  education,  and  train- 

13  ing  of  juvenile  delinquents. 

14  "(j)  Statement  by  Juvenile. — A  statement  made  by  a  juvenile 

15  during  or  in  connection  with  a  proceeding  held  pursuant  to  section 

16  3603(a)  is  not  admissible  against  him  in  a  subsequent  criminal  pro. 

17  ceeding. 

18  "§  3604.  Parole  of  a  Juvenile  Delinquent 

19  "A  juvenile  delinquent  who  has  been  committed  to  official  deten- 

20  tion  under  section  3603(g)  may  be  released  on  parole  by  the  Parole 

21  Commission  at  any  time,  under  such  conditions  and  regulations  as  the 

22  Commission  considers  to  be  appropriate,  if  the  Commission  is  of  the 

23  opinion  that  the  criteria  set  forth  in  section  3831(c)  (1)  are  satisfied. 

24  The  provisions  dealing  with  parole  set  forth  in  sections  3834  (c) 

25  through  (h)  and  3835  are  applicable  to  an  order  releasing  a  juvenile 

26  delinquent  on  parole. 

27  "§3605.  Use  of  Juvenile  Delinquency  Records 

28  "(a)   Sealing  of  Eecords. — Throughout  the  juvenile  delinquency 

29  proceeding,  the  court  shall  safeguard  the  record  against  disclosure  to 

30  a  person  not  authorized  to  receive  it.  Upon  the  completion  of  a  juve- 

31  nile  delinquency  proceeding,  whether  or  not  there  is  a  finding  of  juve- 

32  nile  delinquency,  the  court  shall  order  the  entire  record  of  the  pro- 

33  ceeding  sealed.  The  court  may  release  information  concerning  the 

34  sealed  record  to  the  extent  necessary  to  comply  with  an  inquiry  in 

35  writing  from : 

36  "  ( 1 )  another  court ; 

37  "(2)   an  agency  preparing  a  presentence  report  for  another 

38  court ; 

39  "  (3)  the  Director  of  a  treatment  agency  or  facility  to  which  the 

40  juvenile  has  been  committed  by  the  court ; 


9725 

241 

1  "(4)  a  law  enforcement  agency  if  the  request  for  information 

2  is  related  to  the  investigation  of  an  offense  or  a  position  within 

3  the  agency; 

4  "(5)  an  agency  considering  the  person  for  a  position  immedi- 

5  ately  and  directly  affecting  the  national  security ;  or 

6  "(6)  the  victim  if  the  request  for  information  is  related  to  the 

7  final  disposition  of  the  case. 

8  The  court  may  not  release  information  concerning  the  sealed  record 

9  to  comply  with  any  other  inquiry,  and  responses  to  such  inquiries  shall 

10  be  the  same  as  responses  made  about  persons  who  have  never  been  the 

11  subject  of  a  juvenile  delinquency  proceeding. 

12  "(b)   Notice. — The  court  exercising  jurisdiction  over  a  juvenile 

13  shall,  in  a  written  statement  using  clear  and  nontechnical  language, 

14  inform  the  juvenile,  and  his  parents,  guardian,  or  other  person  respon- 

15  sible  for  his  welfare,  of  his  rights  relating  to  the  sealing  of  his  juvenile 

16  record. 

17  "(c)  Duty  of  Court  Officers. — An  employee  of  the  court  or  an 

18  employee  of  any  other  governmental  agency,  who,  during  the  course 

19  of  a  juvenile  delinquency  proceeding,  obtains  or  preserves  information 

20  or  a  record  relating  to  the  proceeding  in  the  discharge  of  an  official 

21  duty,  shall  not  disclose  such  information  or  record  directly  or  in- 

22  directly  to  a  person  other  than  the  judge,  the  counsel  for  the  juvenile, 

23  the  attorney  for  the  government,  or  another  person  entitled  under  this 

24  section  to  receive  sealed  records. 

25  "(d)  Fingerprints  and  Photographs. — Unless  a  juvenile  who  is 

26  taken  into  custody  is  prosecuted  as  an  adult : 

27  "(1)  the  fingerprints  or  photograph  of  the  juvenile  shall  not 

28  be  taken  without  the  written  consent  of  the  judge;  and 

29  "(2)  the  name  or  photograph  of  the  juvenile  shall  not  be  made 

30  public  in  connection  with  a  juvenile  delinquency  proceeding  by 

31  any  medium  of  public  information. 

32  "§  3606.  Definitions  for  Subchapter  A 

33  "As  used  in  this  subchapter : 

34  "(a)  'juvenile'  means  a  person  who  is  less  than: 

35  "  ( 1 )  eighteen  years  old ;  or 

36  "(2)  twenty-one  years  old  if  he  is  charged  with  an  act  of 

37  juvenile    delinquency   committed   when   he   was   less   than 

38  eighteen  years  old; 

39  "(b)    'juvenile   delinquency'   means  conduct   constituting   an 

40  offense  engaged  in  by  a  juvenile. 


9726 

242 

1  "Subchapter  B. — Offenders  with  Mental  Disease  or 

2  Defect 

"Sec. 

"3611.  Determination  of  Mental  Competency  to  Stand  Trial. 

"3612.  Determination  of  the  Existence  of  Insanity  at  the  Time  of  the  Offense. 

"3613.  Hospitalization  of  a  Person  Acquitted  by  Reason  of  Insanity. 

"3614.  Hospitalization  of  a  Convicted  Person  Suffering  from  Mental  Disease  or 

Defect. 
"3615.  Hospitalization  of  an  Imprisoned  Person  Suffering  from  Mental  Disease 

or  Defect. 
"3616.  Hospitalization  of  a  Person  Due  for  Release  but  Suffering  from  Mental 

Disease  or  Defect. 
"3617.  General  Provisions  for  Subchapter  B. 

3  "§3611.  Determination  of  Mental  Competency  To  Stand  Trial 

4  "(a)  Motion  to  Determine  Competency  of  Defendant. — At  any 

5  time  after  the  commencement  of  a  prosecution  for  an  offense  and  prior 

6  to  the  sentencing  of  the  defendant,  the  defendant  or  the  attorney  for 

7  the  government  may  file  a  motion  for  a  hearing  to  determine  the  men- 

8  tal  competency  of  the  defendant.  The  court  shall  grant  the  motion,  or 

9  shall  order  such  a  hearing  on  its  own  motion,  if  there  is  reasonable 

10  cause  to  believe  that  the  defendant  may  presently  be  suffering  from  a 

11  mental  disease  or  defect  rendering  him  mentally  incompetent  to  the 

12  extent  that  he  is  unable  to  understand  the  nature  and  consequences  of 

13  the  proceedings  against  him  or  to  assist  in  his  defense. 

14  "(b)  Psychiatric  Examination  and  Report. — Prior  to  the  date  of 

15  the  hearing,  the  court  may  order  that  a  psychiatric  examination  of  the 

16  defendant  be  conducted,  and  that  a  psychiatric  report  be  filed  with  the 

17  court,  pursuant  to  the  provisions  of  section  3617  (b)  and  (c). 

18  "(c)   Hearing. — The  hearing  shall  be  conducted  pursuant  to  the 

19  provisions  of  section  3617(d). 

20  "(d)  Determination  and  Disposition. — If,  after  the  hearing,  the 

21  court  finds  by  a  preponderance  of  the  evidence  that  the  defendant  is 

22  presently  suffering  from  a  mental  disease  or  defect  rendering  him 

23  mentally  incompetent  to  the  extent  that  he  is  unable  to  understand  the 

24  nature  and  consequences  of  the  proceedings  against  him  or  to  assist 

25  properly  in  his  defense,  the  court  shall  commit  the  defendant  to  the 

26  custody  of  the  Attorney  General.  The  Attorney  General  shall  hospital- 

27  ize  the  defendant  for  treatment  in  a  suitable  mental  hospital,  or  in  an- 

28  other  facility  designated  by  the  court  as  suitable: 

29  "(1)   for  such  a  reasonable  period  of  time,  not  to  exceed  six 

30  months,  as  is  necessary  to  determine  whether  there  is  a  substan- 

31  tial  probability  that  in  the  foreseeable  future  he  will  attain  the 

32  capacity  to  permit  the  trial  to  proceed ;  and 


9727 

243 

1  "(2)  for  an  additional  reasonable  period  of  time,  not  to  exceed 

2  six  months,  until : 

3  "(A)  his  mental  condition  is  so  improved  that  trial  may 

4  proceed,  if  the  court  finds  that  there  is  a  substantial  probabil- 

5  ity  that  within  such  additional  period  of  time  he  will  attain 

6  the  capacity  to  permit  the  trial  to  proceed ;  or 

7  "(B)  the  pending  charges  against  him  are  disposed  of  ac- 

8  cording  to  law. 

9  If,  at  the  end  of  the  time  period  specified,  it  is  determined  that  the  de- 

10  fendant's  mental  condition  has  not  so  improved  as  to  permit  the  trial 

11  to  proceed,  the  defendant  is  subject  to  the  provisions  of  section  3616. 

12  "(e)   Discharge  From  Mental  Hospital. — When  the  director  of 

13  the  facility  in  which  a  defendant  is  hospitalized  pursuant  to  subsec- 

14  tion  (d)  determines  that  the  defendant  has  recovered  to  such  an  extent 

15  tliat  he  is  able  to  understand  the  nature  and  consequences  of  the  pro- 

16  ceedings  against  him  and  to  assist  properly  in  his  defense,  he  shall 

17  promptly  file  a  certificate  to  that  effect  with  the  clerk  of  the  court  that 

18  ordered  the  commitment.  The  clerk  shall  send  a  copy  of  the  certificate 

19  to  the  defendant's  coimsel  and  to  the  attorney  for  the  government.  The 

20  court  shall  hold  a  hearing,  conducted  pursuant  to  the  provisions  of 

21  section  3617(d),  to  determine  the  competency  of  the  defendant.  If, 

22  after  the  hearing,  the  court  finds  by  a  preponderance  of  the  evidence 

23  that  the  defendant  has  recovered  to  such  an  extent  that  he  is  able 

24  to  understand  the  nature  and  consequences  of  the  proceedings  against 

25  him  and  to  assist  properly  in  his  defense,  the  court  shall  order  his 

26  immediate  discharge  from  the  facility  in  which  he  is  hospitalized  and 

27  shall  set  the  date  for  trial.  Upon  discharge,  the  defendant  is  subject 

28  to  the  provisions  of  chapter  35. 

29  "(f)  Admissibility  of  Fixdixo  of  Competency. — A  finding  by  the 

30  court  that  the  defendant  is  mentally  competent  to  stand  trial  shall  not 

31  prejudice  the  defendant  in  raising  the  issue  of  his  insanity  as  a  defense 

32  to  the  offense  charged,  and  shall  not  be  admissible  as  evidence  in  a 

33  trial  for  the  offense  charged. 

34  "§  3612.  Determination  of  the  Existence  of  Insanity  at  the  Time 

35  of  the  Offense 

36  "(a)  Motion  for  Pretrial  Psychiatric  Examination. — Upon  the 

37  filing  of  a  notice,  as  provided  in  Kule  12.2  of  the  Federal  Rules  of 

38  Criminal  Procedure,  the  court,  upon  motion  of  the  attorney  for  the 

39  government,  may  order  that  a  psychiatric  examination  of  the  defend- 


9728 

244 

1  ant  be  conducted,  and  that  a  psychiatric  report  be  filed  with  the  court, 

2  pursuant  to  the  provisions  of  section  3617  (b)  and  (c). 

3  "  (b)  Special  Verdict. — If  the  issue  of  insanity  is  raised  by  notice 

4  as  provided  in  Rule  12.2  of  the  B'ederal  Rules  of  Criminal  Procedure 

5  on  motion  of  the  defendant  or  of  the  attorney  for  the  government,  or 

6  on  the  court's  own  motion,  the  jury  shall  be  instructed  to  find,  or,  in 

7  the  event  of  a  non-jury  trial,  the  court  shall  find,  the  defendant : 

8  "(1)  guilty; 

9  "  (2)  not  guilty ;  or 

10  "  (3)  not  guilty  by  reason  of  insanity. 

11  "§3613.  Hospitalization   of  a  Person  Acquitted   by   Reason  of 

12  Insanity 

13  "(a)  Determination  of  Present  Mental  Condition  of  Acquitfed 

14  Person. — If  a  person  is  found  not  guilty  by  reason  of  insanity  at  the 

15  time  of  the  offense  charged,  the  court  shall  order  a  hearing  to  determine 

16  whether  the  person  is  presently  suffering  from  a  mental  disease  or 

17  defect  as  a  result  of  which  his  release  would  create  a  substantial 

18  risk  of  serious  bodily  injury  to  another  person  or  serious  damage  to 

19  property  of  another.  The  court  may  make  any  order  reasonably  nexes- 

20  saiy  to  secure  the  appearance  of  the  person  at  the  hearing. 

21  "  (b)  Psychiatric  Examination  and  Report. — Prior  to  the  date  of 

22  the  hearing,  the  court  may  order  that  a  psychiatric  examination  of 

23  the  defendant  be  conducted,  and  that  a  psychiatric  report  be  filed  with 

24  the  court,  pursuant  to  the  provisions  of  section  3617  (b)  and  (c). 

25  "(c)  Hearing. — Tl\e  hearing  shall  be  conducted  pursuant  to  the 

26  provisions  of  section  3617(d). 

27  "(d)  Determination  and  Disposition. — If,  after  the  hearing,  the 

28  court  fiinds  by  clear  and  convincing  evidence  that  the  acquitted  pei-son 

29  is  pi-esently  suffering  from  a  mental  disease  or  defect  as  a  result  of 

30  which  his  release  would  create  a  substantial  risk  of  serious  bodily 

31  injury  to  another  person  or  serious  damage  to  property  of  another, 

32  the  court  shall  commit  the  person  to  the  custody  of  the  Attorney  Gen- 

33  eral.  The  Attorney  General  shall  release  the  person  to  the  appropriate 

34  official  of  the  state  in  which  the  person  is  domiciled  if  such  state  will 

35  assume  responsibility  for  his  custody,  care,  and  treatment.  If  such 

36  state  will  not  then  assume  such  responsibility,  the  Attorney  General 

37  shall  hospitalize  the  pereon  for  treatment  in  a  suitable  mental  hospital, 

38  or  in  another  facility  designateil  by  the  court  as  suitable,  until  sucli 

39  state  will  assume  sucli  responsibility  or  until  the  jjerson's  mental  con- 

40  dition  is  so  improved  that  his  release  would  not  create  a  substantial 


9729 

245 

1  risk  of  serious  bodily  injury  to  another  person  or  serious  damage  to 

2  property  of  another. 

3  "(e)   Discharge  From  Mental  Hospftal. — ^When  the  director  of 

4  the  facility  in  which  an  acquitted  person  is  hospitalized  pursuant  to 

5  subsection   (d)   determines  that  the  person  has  recovered  from  his 

6  mental  disease  or  defect  to  such  an  extent  that  his  release  would  no 

7  longer  create  a  substantial  risk  of  serious  bodily  injury  to  another 

8  person  or  serious  damage  to  property  of  another,  he  shall  promptly 

9  file  a  certificate  to  that  effect  with  the  clerk  of  the  court  that  ordered 

10  the  commitment.  The  clerk  shall  send  a  copy  of  the  certificate  to  the 

11  person's  counsel  and  to  the  attorney  for  the  government.  The  court 

12  shall  order  the  discharge  of  the  acquitted  person  or,  on  the  motion  of 

13  the  attorney  for  the  government  or  on  its  own  motion,  shall  hold  a 

14  hearing,  conducted  pursuant  to  the  provisions  of  section  3617(d),  to 

15  determine  whether  he  should  be  released.  If,  after  the  hearing,  the 

16  court  finds  by  a  preponderance  of  the  evidence  that  the  person  has 

17  recovered  from  his  mental  disease  or  defect  to  such  an  extent  that  his 

18  release  would  no  longer  create  a  substantial  risk  of  serious  bodily 

19  injury  to  another  person  or  serious  damage  to  property  of  another,  the 

20  court  shall  order  his  immediate  discharge. 

21  "§3614.  Hospitalization  of  a  Convicted  Person  Suffering  from 

22  Mental  Disease  or  Defect 

23  "(a)  Motion  to  Determine  Present  Mental  Condition  of  Con- 

24  victed  Defendant. — A  defendant  found  guilty  of  an  offense,  or  the 

25  attorney  for  the  government,  may,  within  ten  days  after  the  defendant 

26  is  found  guilty,  file  a  motion  for  a  hearing  on  the  present  mental  con- 

27  dition  of  the  defendant.  The  court  shall  grant  the  motion,  or  at  any 

28  time  prior  to  the  sentencing  of  the  defendant  shall  order  such  a  hearing 

29  on  its  own  motion,  if  there  is  reasonable  cause  to  believe  that  the  de- 

30  fendant  may  presently  be  suffering  from  a  mental  disease  or  defect 

31  for  the  treatment  of  which  he  is  in  need  of  custody  for  care  or  treat- 

32  ment  in  a  mental  hospital. 

33  "(b)  Psychiatric  Examination  AND  Eeport. — Prior  to  the  date  of 

34  the  hearing,  the  court  may  order  that  a  psychiatric  examination  of  the 

35  defendant  be  conducted,  and  that  a  psychiatric  report  be  filed  with  the 

36  court,  pursuant  to  the  provisions  of  section  3617  (b)  and  (c).  In  addi- 

37  tion  to  the  information  required  to  be  included  in  the  psychiatric 

38  report  pursuant  to  the  provisions  of  section  3617(c),  if  the  report 

39  includes  an  opinion  by  the  examiners  that  the  defendant  is  presently 

40  suffering  from  a  mental  disease  or  defect  but  that  it  is  not  such  as  to 


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1  require  his  custody  for  care  or  treatment  in  a  mental  hospital,  the 

2  report  shall  also  include  an  opinion  by  the  examiners  concerning  the 

3  sentencing  alternatives  available  under  part  III  of  this  title  that  could 

4  best  accord  the  defendant  the  kind  of  treatment  he  does  need. 

6  "(c)  Hearing. — The  hearing  shall  be  conducted  pursuant  to  the 

6  provisions  of  section  3617(d). 

7  "(d)  Determination  and  Disposition. — If,  after  the  hearing,  the 

8  court  is  of  the  opinion  that  the  defendant  is  presently  suffering  from 

9  a  mental  disease  or  defect  and  that  he  should,  in  lieu  of  being  sen- 

10  tenced  to  probation  or  imprisonment,  be  committed  to  a  mental  hospital 

11  for  care  or  treatment,  the  court  shall  commit  the  defendant  to  the  cus- 

12  tody  of  the  Attorney  General.  The  Attorney  General  shall  hospitalize 

13  the  defendant  for  care  or  treatment  in  a  suitable  mental  hospital,  or 

14  in  another  facility  designated  by  the  court  as  suitable.  Such  a  com- 

15  mitment  constitutes  a  provisional  sentence  to  the  maximum  term  au- 

16  thorized  by  section  2301(b)   and  2304  for  the  offense  of  which  the 

17  defendant  was  found  guilty. 

18  "(e)  Discharge  From  Mentai,  Hospital. — When  the  director  of 

19  the  facility  in  which  the  defendant  is  hospitalized  pursuant  to  subsec- 

20  tion  (d)  determines  that  the  defendant  has  recovered  from  his  mental 

21  disease  or  defect  to  such  an  extent  that  he  is  no  longer  in  need  of  cus- 

22  tody  for  care  or  treatment  in  a  mental  hospital,  he  shall  promptly  file 

23  a  certificate  to  that  effect  with  the  clerk  of  the  court  that  ordered  the 

24  commitment.  The  clerk  shall  send  a  copy  of  tlie  certificate  to  the  de- 

25  fondant's  counsel  and  to  the  attorney  for  the  government.  If,  at  the 

26  time  of  the  filing  of  the  certificate,  the  provisional  sentence  imposed 

27  pursuant  to  subsection  (d)  has  not  expired,  the  court  shall  hold  a  hear- 

28  ing,  conducted  pursuant  to  the  provisions  of  section  3617 (d) ,  to  deter- 

29  mine  whether  the  provisional  sentence  should  be  reduced.  After  the 

30  hearing,  the  court  may  order  that  the  defendant  be  released,  be  placed 

31  on  probation  pursuant  to  chapter  21,  or  be  imprisoned  for  the  re- 

32  mainder  of  the  provisional  sentence  or  for  any  lesser  term,  or  may  im- 

33  pose  any  other  sentence  available  under  part  III  of  this  title. 

34  "§3615.  Hospitalization  of  an  Imprisoned  Person  Suffering  from 

35  Mental  Disease  or  Defect 

36  "(a)  Motion  To  Determine  Present  Mental  Condition  of  Im- 

37  PRISONED  Defendant. — A  defendant  serving  a  sentence  of  imprison- 

38  ment,  or  an  attorney  for  the  govermnent  at  the  request  of  the  director 

39  of  the  facility  in  which  the  defendant  is  imprisoned,  may  file  a  mo- 

40  tion  with  the  court  for  the  district  in  which  the  facility  is  located  for 

41  a  hearing  on  the  present  mental  condition  of  the  defendant.  The  court 


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1  shall  grant  the  motion  if  there  is  reasonable  cause  to  believe  that  the 

2  defendant  may  presently  be  suffering  from  a  mental  disease  or  defect 

3  for  the  treatment  of  which  he  is  in  need  of  custody  for  care  or  treat- 

4  ment  in  a  mental  hospital.  A  motion  filed  under  this  subsection  shall 

5  stay  the  release  of  the  defendant  pending  completion  of  procedures 

6  contained  in  this  section. 

7  "(b)  Psychiatric  Examination  and  Report. — Prior  to  the  date  of 

8  the  hearing,  the  court  may  order  that  a  psychiatric  examination  of  the 

9  defendant  be  conducted,  and  that  a  psychiatric  report  be  filed  with 

10  the  court,  pursuant  to  the  provisions  of  section  3617  (b)  and  (c). 

11  "(c)   Hearing. — The  hearing  shall  be  conducted  pursuant  to  the 

12  provisions  of  section  3617(d). 

13  "(d)  Determination  and  Disposition. — If,  after  the  hearing,  the 

14  court  is  of  the  opinion  that  the  defendant  is  presently  suffering  from 

15  a  mental  disease  or  defect  for  the  treatment  of  which  he  is  in  need 

16  of  custody  for  care  or  treatment  in  a  mental  hospital,  the  court  shall 

17  commit  the  defendant  to  the  custody  of  the  Attorney  General.  The 

18  Attorney  General  shall  hospitalize  the  defendant  for  treatment  in  a 

19  suitable  mental  hospital,  or  in  another  facility  designated  by  the  court 

20  as  suitable,  until  he  is  no  longer  in  need  of  custody  for  care  or  treat - 

21  ment  in  a  mental  hospital  or  until  the  expiration  of  his  sentence  of 

22  imprisonment,  whichever  occurs  earlier. 

■  23  "(e)   Discharge  from  Mental  Hospital. — When  the  director  of 

24  the  facility  in  which  the  defendant  is  hospitalized  pursuant  to  sub- 

25  section  (d)  determines  that  the  defendant  has  recovered  from  his  men- 

26  tal  disease  or  defect  to  such  an  extent  that  he  is  no  longer  in  need  of 

27  custody  for  care  or  treatment  in  a  mental  hospital,  he  shall  promptly 

28  file  a  certificate  to  that  effect  with  the  clerk  of  the  court  that  ordered 

29  the  commitment.  The  clerk  shall  send  a  copy  of  the  certificate  to  the 

30  defendant's  counsel  and  to  the  attorney  for  the  government.  If,  at  the 

31  time  of  the  filing  of  the  certificate,  the  sentence  imposed  upon  the  de- 

32  fendant  has  not  expired,  the  court  shall  order  that  the  defendant  be 

33  reimprisoned. 

34  Ǥ  3616.  Hospitalization  of  a  Person  Due  for  Release  but  Suflfer- 

35  ing  from  Mental  Disease  or  Defect 

36  "(a)  Institution  of  Proceeding. — If  the  director  of  a  facility  in 

37  which  a  person  is  hospitalized  pursuant  to  this  subchapter  certifies 

38  that  a  person  whose  sentence  is  about  to  expire,  or  who  has  been  com- 

39  mitted  to  the  custody  of  the  Attorney  General  pursuant  to  section 

40  3611(d),  or  against  whom  all  criminal  charges  have  been  dismissed 

41  for  reasons  related  to  the  mental  condition  of  the  person,  is  presently 


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1  suffering  from  a  mental  disease  or  defect  as  a  result  of  which  his 

2  release  would  create  a  substantial  risk  of  serious  bodily  injury  to 

3  another  person  or  serious  damage  to  property  of  another,  and  that 

4  suitable  arrangements  for  state  custody  and  care  of  the  person  are  not 

5  available,  he  shall  transmit  the  certificate  to  the  clerk  of  the  court 

6  for  the  district  in  which  the  person  is  confined.  The  clerk  shall  send 

7  a  copy  of  the  certificate  to  the  person,  and  to  the  attorney  for  tlie 

8  government,  and,  if  the  person  was  committed  pursuant  to  section 

9  3611(d),  to  the  clerk  of  the  court  that  ordered  the  commitment. 

10  The  court  shall  order  a  hearing  to  determine  whether  the  person  is 

11  presently  suffering  from  a  mental  disease  or  defect  as  a  result  of  which 

12  his  release  would  create  a  substantial  risk  of  serious  bodily  injury  to 

13  another  person  or  serious  damage  to  property  of  another.  A  certificate 

14  filed  imder  this  subsection  shall  stay  the  release  of  the  person  pending 

15  completion  of  procedures  contained  in  this  section. 

16  "  (b)   Psychiatric  Examination  and  Eeport. — Prior  to  the  date  of 

17  the  hearing,  the  court  may  order  that  a  psychiatric  examination  of 

18  the  defendant  be  conducted,  and  that  a  psychiatric  report  be  filed  with 

19  the  court,  pursuant  to  the  provisions  of  section  3617  (b)  and  (c). 

20  "(c)   Hearing. — The  hearing  shall  be  conducted  pursuant  to  the 

2 1  provisions  of  section  3617(d). 

22  "(d)  Determination  and  Disposition. — If,  after  the  hearing,  the 

23  court  finds  by  clear  and  convincing  evidence  that  the  person  is  pres- 

24  ently  suffering  from  a  mental  disease  or  defect  as  a  result  of  which  his 

25  release  would  create  a  substantial  risk  of  serious  bodily  injury  to 

26  another  person  or  serious  damage  to  property  of  another,  the  court 

27  shall  commit  the  person  to  the  custody  of  the  Attorney  Greneral.  The 

28  Attorney  General  shall  release  the  person  to  the  appropriate  official 

29  of  the  state  in  which  the  person  is  domiciled  if  such  state  will  assume 

30  responsibility  for  his  custody,  care,  and  treatment.  If  such  state 

31  will  not  then  assume  such  responsibility,  the  Attorney  General  shall 

32  hospitalize  the  person  for  treatment  in  a  suitable  mental  hospital,  or 

33  in  another  facility  designated  by  the  court  as  suitable,  until  such 

34  state  will  assume  such  responsibility  or  until  the  person's  mental  con- 

35  dition  is  so  improved  that  his  release  would  not  create  a  substantial 

36  risk  of  serious  bodily  injury  to  another  person  or  serious  damage  to 

37  property  of  another. 

38  "(e)  Discharge  From  Mental  Hospital. — ^Wlien  the  director  of 

39  the  facility  in  which  a  person  is  hospitalized  pursuant  to  subsec- 

40  tion  (d)  determines  that  the  person  has  recovered  from  his  mental 


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1  disease  or  defect  to  such  an  extent  that  his  release  would  no  longer 

2  create  a  substantial  risk  of  serious  bodily  injury  to  another  person 

3  or  serious  damage  to  property  of  another,  he  shall  promptly  file  a 

4  certificate  to  that  effect  with  the  clerk  of  the  court  that  ordered  the 

5  commitment.  The  clerk  shall  send  a  copy  of  the  certificate  to  the  per- 

6  son's  counsel  and  to  the  attorney  for  the  government.  The  court  shall 

7  order  the  discharge  of  the  person  or,  on  the  motion  of  the  attorney  for 

8  the  government  or  on  its  own  motion,  shall  hold  a  hearing,  conducted 

9  pursuant  to  the  provisions  of  section  3617(d),  to  determine  whether 

10  he  should  be  released.  If,  after  the  hearing,  the  court  finds  by  prepon- 

11  derence  of  the  evidence  that  the  person  has  recovered  from  his  mental 

12  disease  or  defect  to  such  an  extent  that  his  release  would  no  longer 

13  create  a  substantial  risk  of  serious  injury  to  another  person  or  serious 

14  damage  to  property  of  another,  the  court  shall  order  his  immediate 

15  discharge. 

16  "(f)  Kelease  to  State  of  Certain  Other  Persons. — ^If  the  director 

17  of  a  facility  in  which  a  person   is  hospitalized  pursuant  to  this 

18  subchapter  certifies  to  the  Attorney  General  that  a  person,  against 

19  whom  all  charges  have  been  dismisssed  for  reasons  not  related  to  the 

20  mental  condition  of  the  person,  is  presently  suffering  from  a  mental 

21  disease  or  defect  as  a  result  of  which  his  release  would  create  a  sub- 

22  stantial  risk  of  serious  bodily  injury  to  another  person  or  serious 

23  damage  to  property  of  another,  the  Attorney  General  shall  release  the 

24  person  to  the  appropriate  official  of  the  state  in  which  the  person  is 

25  domiciled  for  the  purpose  of  institution  of  state  proceedings  for  civil 

26  commitment.  If  such  state  will  not  assume  such  responsibility,  the 

27  Attorney  General  shall  release  the  person  upon  receipt  of  notice  from 

28  the  state  that  it  will  not  assume  such  responsibility,  but  not  later  than 

29  10  days  after  certification  by  the  director  of  the  facility. 

30  "§  3617.  Generar  Provisions  for  Subchapter  B 

31  "(a)    Definition. — As  used  in  this  subchapter,  'insanity'  means 

32  a  menal  disease  or  defect  of  a  nature  constituting  a  defense  to  a  fed- 

33  eral  criminal  prosecution. 

34  "(b)    Psychiatric    Examinations. — A    psychiatric    examination 

35  ordered  pursuant  to  this  subchapter  shall  be  conducted  by  at  least 

36  two  licensed  or  certified  psychiatrists  or  clinical  psychologists.  They 

37  shall  be: 

38  "(1)   designated  by  the  court  if  the  examination  is  ordered 

39  under  section  3611, 3612, 3613,  or  3614 ;  or 


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1  "(2)  designated  by  the  court,  and  shall  include  one  psychia- 

2  trist  or  clinical  psychologist  selected  by  the  defendant,  if  the  exam- 

3  ination"is  ordered  under  section  3615  or  3616. 

4  For  the  purpose  of  an  examination  pursuant  to  an  order  under  section 

5  3611,  3612,  3613,  or  3614,  the  court  may  commit  the  person  to  be 

6  examined  for  a  reasonable  period,  but  not  more  than  sixty  days,  to 

7  the  custody  of  the  Attorney  General  for  placement  in  a  suitable  mental 

8  hospital  or  another  facility  designated  by  the  court  as  suitable. 

9  "  (c)   Psychiatric  Keports. — A  psychiatric  report  ordered  pursuant 

10  to  this  subchapter  shall  be  prepared  by  the  examiner  designated  to 

11  conduct  the  psychiatric  examination,  shall  be  filed  with  the  court 

12  with  copies  provided  to  the  counsel  for  the  person  examined  and  to 

13  the  attorney  for  the  government,  and  shall  include: 

14  "(1)  the  person's  history  and  present  symptoms ; 

15  "(2)  a  description  of  the  psychological  and  medical  tests  em- 

16  ployed  and  their  results ; 

17  "(3)  the  examiners'  findings;  and 

18  "  (4)  the  examiners'  opinions  as  to  diagnosis,  prognosis,  and : 

19  "(A)   if  the  examination  is  ordered  under  section  3611, 

20  whether  the  person   is  presently  suffering  from  a  mental 

21  disease  or  defect  rendering  him  mentally  incompetent  to  the 

22  extent  that  he  is  unable  to  understand  the  nature  and  conse- 

23  quences  of  the  proceedings  against  him  or  to  assist  properly  in 

24  his  defense ; 

25  "(B)   if  the  examination  is  ordered  under  section  3612, 

26  whether  the  person  was  insane  at  the  time  of  the  offense 

27  charged ; 

28  "(C)  if  the  examination  is  ordered  under  section  3613  or 

29  3616,  whether  the  person  is  presently  suffering  from  a  mental 

30  disease  or  defect  as  a  result  of  which  his  release  would  create  a 
81  substantial  risk  of  serious  bodily  injury  to  anotlier  person  or 
32  serious  damage  to  property  of  another ;  or 

88  "(D)  if  the  examination  is  ordered  under  section  3614  or 

84  3615,  whether  the  person  is  presently  suffering  from  a  mental 

35  disease  or  defect  as  a  result  of  which  he  is  in  need  of  custody 

86  for  care  or  treatment  in  a  mental  hospital. 

37  "(d)  Hearing. — At  a  hearing  ordered  pursuant  to  this  subchapter 

88  the  person  whose  mental  condition  is  the  subject  of  the  hearing  shall 


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1  be  represented  by  counsel  and,  if  he  is  financially  unable  to  obtain 

2  adequate  representation,  counsel  shall  be  appointed  for  him  pursuant 

3  to  section  3402.  The  person  shall  be  afforded  an  opportunity  to  testify, 

4  to  present  evidence,  to  subpoena  witnesses  on  his  behalf,  and  to  con- 

5  front  and  cross-examine  witnesses  who  appear  at  the  hearing. 

6  "(e)  Periodio  Reports  by  Mental  Hospital. — Tlie  director  of  the 

7  facility  in  which  a  person  is  hospitalized  pursuant  to : 

8  "  ( 1 )  section  3611  shall  prepare  semiannual  reports ;  or 

9  "(2)   section  3613,  3614,  3615,  or  3616  shall  prepare  annual 

10  reports ; 

11  concerning  the  mental  condition  of  the  person  and  continuing  recom- 

12  mendations  concerning  his  continued  hospitalization.  The  reports  shall 

13  be  submitted  to  the  court  that  ordered  the  person's  commitment  to 

14  the  facility  and  copies  of  the  reports  shall  be  submitted  to  such  other 

15  persons  as  the  court  may  direct. 

16  "(f)  Admissibility  of  a  Defendant's  Statements  at  Trial.— A 

17  statement  made  by  the  defendant  during  the  course  of  a  psychiatric 

18  examination  pursuant  to  section  3611  or  3612  is  not  admissible  as  evi- 

19  dence  against  the  accused  on  the  issue  of  guilt  in  any  criminal  pro- 

20  ceeding. 

21  "(g)  Habeas  Corpus  Unimpaired. — Nothing  contained  in  section 

22  3613  or  3616  precludes  a  person  who  is  committed  under  either  of  such 

23  sections  from  establishing  by  \^rit  of  habeas  corpus  the  illegality  of 

24  his  detention. 

25  "(h)  Authority  and  Responsibility  of  the  Attorney  General. — 

26  The  Attorney  General : 

27  "(1)  may  contract  with  a  state,  a  locality,  or  a  private  agency 

28  for  the  confinement,  hospitalization,  care,  or  treatment  of,  or  the 

29  provision  of  services  to,  a  person  committed  to  his  custody  pur- 

30  suant  to  this  subchapter ; 

31  "  (2)  may  apply  for  the  civil  commitment,  pursuant  to  state  law, 

32  of  a  person  committed  to  his  custody  pursuant  to  section  '3613  or 

33  3616;  and 

34  "(3)   shall  consult  with  the  Secretary  of  the  Department  of 

35  Health,  Education,  and  Welfare  in  the  general  implementation  of 

36  the  provisions  of  this  subchapter  and  in  the  establishment  of  stand- 

37  ards  for  facilities  used  in  the  implementation  of  this  subchapter. 


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252 

1  "Chapter  37.— PRETRIAL  AND  TRIAL  PROCEDURE,  EVI- 

2  DENCE,  AND  APPELLATE  REVIEW 

"Subchapter 

"A.  Pretrial  and  Trial  Procedure. 

"B.  Evidence. 

"C.  Appellate  Review. 

3  "Subchapter  A. — Pretrial  and  Trial  Procedure 

"Sec. 

"3701.  Pretrial  and  Trial  Procedure  in  General. 

"3702.  Rulemaking   Authority    of   the    Supreme   Court    for   Rules   of   Criminal 
Procedure. 

4  "§3701.  Pretrial  and  Trial  Procedure  in  General 

5  "Pretrial  and  trial  procedure  in  criminal  cases  in  the  district  courts 

6  of  the  United  States  and  before  United  States  magistrates  is  governed 

7  by  the  provisions  of  this  title,  by  the  Federal  Rules  of  Criminal  Proce- 

8  dure,  and  by  such  other  rules  as  the  Supreme  Court  may  prescribe. 

9  "§  3702.  Rulemaking  Authority  of  the  Supreme  Court  for  Rules  of 

10  Criminal  Procedure 

11  "(a)  Prescription  of  Rules. — The  Supreme  Court  of  the  United 

12  States  may  prescribe  amendments  to  the  Federal  Rules  of  Criminal 

13  Procedure  and  may  otherwise  prescribe  rules  of  pleading,  practice, 

14  and  procedure  with  respect  to  proceedings  prior  to,  including,  and 

15  relating  to  the  entry  of  judgment  of  conviction  in  criminal  cases  in 

16  the  district  courts  of  the  United  States  or  in  proceedings  before  United 

17  States  magistrates.  Any  provision  of  law  in  conflict  with  a  rule  pre- 

18  scribed  pursuant  to  this  section  shall  be  of  no  further  force  or  effect 

19  after  such  rule  has  taken  effect. 

20  "(b)  Effective  Date  of  Rules. — Rules  prescribed  pursuant  to  this 

21  section  shall  be  reported  to  Congress  by  the  Chief  Justice  at  or  after 

22  the  beginning  of  a  regular  session  of  Congress  but  not  later  than  the 

23  first  day  of  May,  and  shall  take  effect  one  hundred  and  eighty  days 

24  after  they  have  been  reported.  The  Supreme  Court  may  fix  a  later  date 

25  upon  which  rules  shall  take  effect,  and  may  fix  the  extent  to  which  they 

26  shall  apply  to  proceedings  then  pending. 

27  "Subchapter  B.— Evidence 

"Sec. 

"3711.  Evidence  in  General. 

"3712.  Rulemaking  Authority  of  the  Supreme  Court  for  Rules  of  Evidence. 

"3713.  Admissibility  of  Confessions. 

"3714.  Admissibility  of  Evidence  in  Sentencing  Proceedings. 

28  "§3711.  Evidence  in  General 

29  "The  introduction,  admission,  and  use  of  evidence  in  criminal  cases 

30  in  the  district  courts  of  the  United  States  and  before  United  States 

31  magistrates  is  governed  by  the  provisions  of  this  title  and  by  the  Fed- 

32  eral  Rules  of  Evidence. 


9737 

253 

1  "§  3712.  Rulemaking  Authority  of  the  Supreme  Court  for  Rules  of 

2  Evidence 

3  "  (a)  Prescription  of  Amendments  to  Rules. — The  Supreme  Court 

4  of  the  United  States  may  prescribe  amendments  to  the  Federal  Rules 

5  of  Evidence.  Any  provision  of  law  in  conflict  with  an  amendment 

6  prescribed  pursuant  to  this  section  shall  be  of  no  further  force  or  effect 

7  after  such  amendment  has  taken  effect. 

8  "(b)   Effective  Date  of  Amendments  to  Rdxes. — Amendments 

9  prescribed  pursuant  to  this  section  shall  be  reported  to  Congress  by 

10  the  Chief  Justice  at  or  after  the  beginning  of  a  regular  session  of  Con- 

11  gress  but  not  later  than  the  first  day  of  May,  and  shall  take  effect 

12  one  hundred  and  eighty  days  after  they  have  been  reported,  except 

13  that :  / 

14  '(1)  either  House  of  Congress  within  that  time  may  defer  the 

15  effective  date  of  any  amendment  so  reported  to  a  later  date  or 

16  until  approved  by  Act  of  Congress ; 

17  "(2)  either  House  of  Congress  within  that  time  by  resolution 

18  may  disapprove  any  amendment  so  reported,  in  which  event  such 

19  amendment  shall  not  take  effect;  and 

20  "(3)   any  amendment  so  reported  that  creates,  abolishes,  or 

21  modifies  a  privilege  shall  not  take  effect  until  it  is  approved  by 

22  Act  of  Congress. 

23  The  Supreme  Court  set  a  later  date  upon  which  such  amendments 

24  shall  take  effect,  and  may  prescribe  the  extent  to  which  they  shall  apply 

25  to  proceedings  then  pending. 

26  "§3713.  Admissibility  of  Confessions 

27  "(a)  Admissibility  in  General. — Unless  otherwise  required  by  the 

28  Constitution,  a  confession  that  is  made  voluntarily  is  admissible  in 

29  evidence  in  a  criminal  case  brought  by  the  United  States  or  the  District 

30  of  Columbia. 

31  "(b)   Determination  of  Voluntariness. — Before  a  confession  is 

32  received  in  evidence,  the  judge  shall,  out  of  the  presence  of  the  jury, 

33  determine  any  issue  concerning  the  voluntariness  of  the  confession.  If 

34  the  judge  determines  that  the  confession  was  made  voluntarily,  he  shall 

35  admit  the  confession  in  evidence,  shall  permit  the  jury  to  hear  relevant 

36  evidence  on  the  issue  of  voluntariness,  and  shall  instruct  the  jury  to 

37  give  such  weight  to  the  confession  as  the  jury  feels  it  deserves  under 

38  all  the  circumstances. 

39  "  (c)  Factors  in  Determining  Voluntariness. — In  determining  an 

40  issue  concerning  the  voluntariness  of  a  confession,  the  judge  shall 


9738 

254 

1  consider  all  the  circumstances  under  which  the  confession  was  made, 

2  including : 

3  "(1)  the  amount  of  time  that  elapsed  between  the  arrest  of 

4  the  person  who  made  the  confession  and  his  initial  appearance 

5  before  a  judicial  officer  as  required  by  Rule  5  of  the  Federal  Rules 

6  of  Criminal  Procedure  if  the  confession  was  made  after  arrest 

7  and  before  such  appearance ; 

8  "(2)  whether  the  person  knew  the  nature  of  the  offense  with 

9  which  he  was  charged  or  of  which  he  was  suspected  at  the  time  of 

10  the  confession ; 

11  "(3)  whether  the  person  was  advised  or  knew  that  he  was  not 

12  required  to  make  a  statement  and  that  the  statement  could  be 

13  used  against  him ; 

14  "(4)  whether  the  person  had  been  advised  prior  to  questioning 

15  of  his  right  to  assistance  of  counsel ;  and 

16  "(5)    whether  the  person  was  without  assistance  of  counsel 

17  when  questioned  or  when  making  the  confession. 

18  The  presence  or  absence  of  any  of  such  factors  is  not  conclusive  as  to 

19  the  voluntariness  of  the  confession. 

20  "(d)  Effect  of  Delay  Dtjking  Detention. — A  confession  made  by 

21  a  person  between  the  time  of  his  arrest  or  other  official  detention  and 

22  his  initial  appearance  before  a  judicial  officer  as  required  by  Rule  5 

23  of  the  Federal  Rules  of  Criminal  Procedure  shall  not  be  considered 

24  inadmissible  solely  because  of  delay  in  bringing  the  person  before 

25  such  judicial  officer  if : 

26  "(1)  the  confession  is  found  by  the  judge  to  have  been  made 

27  voluntarily ; 

28  "(2)  the  weight  to  be  given  the  confession  is  left  to  the  jury; 

29  and 

30  "(3)   the  confession  was  made  within  six  hours  immediately 

31  following  the  person's  arrest  or  other  official  detention,  or  within 

32  such  additional  time  as  is  found  by  the  judge  to  be  reasonable  in 

33  view  of  the  distance  that  was  required  to  be  traveled  to  the  nearest 

34  available  judicial  officer  and  in  view  of  the  means  of  transportation 

35  that  was  available. 

36  "(e)  Spontaneous  and  Noncustodial  Confessions  Unaffected. — 

37  Nothing  contained  in  this  section  precludes  the  admission  in  evidence 

38  of  a  confession  made  voluntarily  by  a  person  without  interrogation  by 

39  anyone,  or  by  a  person  who  was  not  under  arrest  or  held  in  official 

40  detention. 


9739 


255 

1  "(f)  Definition. — As  used  in  this  section,  'confession'  means  any 

2  self -incriminating  oral  or  written  statement. 

3  "§  3714  Admissibility  of  Evidence  in  Sentencing  Proceedings 

4  "Any  relevant  information  concerning  the  history,  characteristics, 

5  and  conduct  of  a  person  found  guilty  of  an  offense  may  be  received  and 

6  considered  by  a  court  of  the  United  States  for  the  purpose  of  ascer- 

7  taining  an  appropriate  sentence  to  be  imposed,  regardless  of  the 

8  admissibility  of  the  information  under  the  Federal  Rules  of  Evidence, 

9  except  to  the  extent  that  receipt  and  consideration  of  such  information 

10  for  purposes  of  sentencing  is  expressly  limited  by  a  section  of  this  title 

11  relating  to  sentencing  or  by  any  other  provision  of  law. 

12  "Subchapter  C. — Appellate  Review 

"Eec. 

"3721.  Appellate  Review  in  General. 

"3722.  Rulemaking  Authority   of  the   Supreme   Court  for  Rules  of  Appellate 

Procedure. 
"3723.  Appeal  by  a  Defendant. 
"3724.  Appeal  by  the  Government. 
"3725.  Review  of  a  Sentence. 

13  "§  3721.  Appellate  Review  in  General 

14  "Review  by  the  courts  of  appeals  of  the  United  States  and  by  the 

15  United  States  Supreme  Court  of  decisions,  judgments,  and  orders  en- 

16  tered  in  criminal  cases  by  district  courts  of  the  United  States  is  gov- 

17  erned  by  the  provisions  of  this  title  and  by  the  Federal  Rules  of 

18  Appellate  Procedure. 

19  "§  3722.  Rulemaking  Authority  of  the  Supreme  Court  for  Rules  of 

20  Appellate  Procedure 

21  "(a)  Prescription  of  Rules. — The  Supreme  Court  of  the  United 

22  States  may  prescribe  amendments  to  the  Federal  Rules  of  Appellate 

23  Procedure  and  may  otherwise  prescribe  rules  of  pleading,  practice, 

24  and  procedure  with  respect  to  appeals  from  decisions,  orders,  and 

25  judgments  entered  in  criminal  cases  in  the  district  courts  of  the  United 

26  States.  Any  provision  of  law  in  conflict  with  a  rule  prescribed  pur- 

27  suant  to  this  section  shall  be  of  no  further  force  or  effect  after  such 

28  rule  has  taken  effect. 

29  "(b)  Effective  Date  of  Rules. — Rules  prescribed  pursuant  to  this 

30  section  shall  be  reported  to  Congress  by  the  Chief  Justice  at  or  after 

31  the  beginning  of  a  regular  session  of  Congress  but  not  later  than  the 

32  first  day  of  May,  and  shall  take  effect  one  hundred  and  eighty  days 

33  after  they  have  been  reported.  The  Supreme  Court  may  fix  a  later 

34  date  upon  which  such  rules  shall  take  effect,  and  may  fix  the  extent 

35  to  which  they  shall  apply  to  proceedings  then  pending. 


92-465   O  -  77  -  75 


9740 

256 

1  "§3723.  Appeal  by  the  Defendant 

2  "A  defendant  may  appeal  to  a  United  States  Court  of  Appeals  from 

3  a  final  judgment  or  order  entered  by  a  district  court  of  the  United 

4  States  in  a  criminal  case. 

5  "§3724.  Appeal  by  the  Government 

6  "(a)  Appeal  From  Dismissal. — The  government  may  appeal  to 

7  a  United  States  Court  of  Appeals  from  a  decision,  judgment,  or 

8  order,  entered  by  a  district  court  of  the  United  States  in  a  criminal 

9  case,   dismissing   an   indictment   or   information   or   terminating   a 

10  prosecution  in  favor  of  a  defendant  as  to  one  or  more  counts,  unless 

11  the  double  jeopardy  clause  of  the  United  States  Constitution  prohibits 

12  further  prosecution  of  the  case. 

13  "(b)  Appeal  From  Order  Suppressing  Evidence. — The  govern- 

14  ment  may  appeal  to  a  United  States  Court  of  Appeals  from  a  deci- 

15  sion  or  order,  entered  by  a  district  court  of  the  United  States,  suppres- 

16  sing  or  excluding  evidence  or  requiring  the  return  of  seized  property 

17  in  a  criminal  proceeding,  if : 

18  "(1)  the  decision  or  order  was  not  made  during  the  interval 

19  between  the  time  the  defendant  was  put  in  jeopardy  and  the  re- 

20  turn  of  the  verdict  or  finding  on  an  indictment  or  information ; 

21  and 

22  "(2)  the  attorney  for  the  government  certifies  to  the  district 

23  court  or  magistrate  that  the  appeal  is  not  taken  for  purposes  of 

24  delay  and  that  the  evidence  is  a  substantial  proof  of  a  fact  mate- 

25  rial  to  the  case. 

26  "(c)   Appeal  From  Order  Denying  Authorization  for  Inter- 

27  CEPTioN. — The  government  may  appeal  to  a  United  States  Court 

28  of  Appeals  from  a  decision  or  order,  entered  by  a  district  court  of  the 

29  United  States,  denying  an  application  for  an  order  authorizing  or 

30  approving  the  interception  of  a  private  oral  communication,  if  the 

31  attorney  for  tlio  government  certifies  to  the  district  court  that  the 

32  appeal  is  not  taken  for  purposes  of  delay. 

33  "(d)  Diligent  Prosecution  Required. — An  appeal  by  the  govern- 

34  ment  shall  be  diligently  prosecuted. 

35  "§  3725.  Review  of  a  Sentence 

36  "(a)  Appeal  by  a  Defendant. — A  defendant  may  file  a  notice  of 

37  appeal  in  the  district  court  for  review  of  a  final  sentence  imposed  for 

38  a  felony  if  the  sentence  includes  a  fine  or  a  term  of  imprisonment  or  a 


9741 

257 

1  term  of  parole  ineligibility  higher  than  the  maximum  established  in 

2  the  guidelines  that  are  issued  by  the  Sentencing  C!ommission  pursuant 

3  to  28  U.S.C.  994(a)  (1),  and  that  are  found  by  the  sentencing  court  to 

4  be  appl  icable  to  the  case,  unless : 

5  "(1)  the  sentence  is  consistent  with  policy  statements  issued 

6  by  the  Sentencing  Commission  pursuant  to  28  U.S.C.  994(a)  (2)  ; 

7  "(2)  the  sentence  is  equal  to  or  less  than  the  sentence  recom- 

8  mended  or  not  opposed  by  the  attorney  for  the  government  pur- 

9  suant  to  a  plea  agreement  under  Rule  11(e)  (1)(B)  of  theFederal 

10  Rules  of  Criminal  Procedure ;  or 

11  "(3)  the  sentence  is  that  provided  in  an  accepted  plea  agree- 

12  ment  pursuant  to  Rule  11(e)(1)(C)   of  the  Federal  Rules  of 

13  Criminal  Procedure. 

14  '(b)  Appeal  by  the  Gfvernment. — The  government  may,  with  the 

15  approvel  of  the  Attorney  General  or  his  designee,  file  a  notice  of 

16  appeal  in  the  district  court  for  review  of  a  final  sentence  imposed  for 

17  a  felony  if  the  sentence  includes  a  fine  or  a  term  of  imprisonment  or 

18  a  term  of  parole  ineligibility  lower  than  the  minimum  established  in 

19  the  guidelines  that  are  issued  by  the  Sentencing  Commission  pursuant 

20  to  28  U.S.C.  994(a)  (1),  and  that  are  found  by  the  sentencing  court 

21  to  be  applicable  to  the  case,  unless : 

22  "  ( 1 )  the  sentence  is  consistent  with  policy  statements  issued  by 

23  the  Sentencing  Commission  to28  U.S.C.  994(a)  (2) ; 

24  "  (2)  the  sentence  is  equal  to  or  greater  than  the  sentence  recom- 

25  mended  or  not  opposed  by  the  attorney  for  the  government  pur- 

26  suant  to  a  plea  agreement  imder  Rule  11(e)(1)(B)  of  the  Federal 

27  Rules  of  Criminal  Procedures ;  or 

28  "(3)  the  sentence  is  equal  to  that  provided  in  an  accepted  plea 

29  agreement  pursuant  to  Rule  11(e)  (1)  (C)  of  the  Federal  Rules  of 

30  Criminal  Procedure. 

31  "(c)   Review. — If  a  notice  of  appeal  is  filed  in  the  district  court 

32  pursuant  to  subsection  (a)  or  (b),  the  clerk  shall  certify  to  the  court 

33  of  appeals : 

34  "  ( 1 )  that  portion  of  the  record  in  the  case  that  is  designated 

35  as  pertinent  by  either  of  the  parties ; 

36  "  (2)  the  presentence  report ;  and 

37  "(3)  the  information  submitted  during  the  sentencing  pro- 

38  ceeding. 


9742 


258 

1  "(d)  Consideration. — Upon  review  of  the  record,  the  c«urt  of  ap- 

2  peals  shall  determine  whether  the  sentence  imposed  is  clearly  unreason- 

3  able,  having  regard  for : 

4  "(1)  the  factors  to  be  considered  in  imposing  a  sentence,  as  set 

5  forth  in  part  III  of  this  title ;  and 

6  "(2)  the  reasons  for  the  imposition  of  the  particular  sentence, 

7  as  stated  by  the  district  court  pursuant  to  the  provisions  of  section 

8  2003(b). 

9  "(e)  Decision  and  Disposition. — If  the  court  of  appeals  deter- 

1 0  mines  that  the  sentence  is : 

11  "(1)  clearly  unreasonable,  it  shall  state  specific  reasons  for  its 

12  conclusions  and : 

13  "  (A)  if  it  determines  that  the  sentence  is  too  high  and  the 

14  appeal  has  been  filed  under  subsection  (a) ,  shall  set  aside  the 

15  sentence  and : 

16  "(i)  remand    the  case   for   imposition   of   a    lesser 

17  sentence ; 

18  "(ii)  remand  the  case  for  further  sentencing  proceed- 

19  ings ;  or 

20  "(iii)  impose  a  lesser  sentence. 

21  "(B)  if  it  determines  that  the  sentence  is  too  low  and  the 

22  appeal  has  been  filed  under  subsection  (b) ,  shall  set  aside  the 

23  sentence  and : 

2*  "(i)  remand  the  case  for  imposition  of  a  greater 

25  sentence ; 

26  «(ii)  remand  the  case  for  further  sentencing  proceed- 

27  ings ;  or 

28  « (iii)  impose  a  greater  sentence ; 

29  «(2)  not  clearly  unreasonable,  it  shall  affirm  the  sentence. 

30  "Chapter  38.— POST-SENTENCE  ADMINISTRATION 

"Subchapter 

"A.  Probation. 

"B.  Fines. 

"C.  In\prisonment. 

"D.  Parole. 

31  "Subchapter  A. — Probation 

"Sec. 

"3801.  Supervision  of  Probation. 

"3802.  Appointment  of  Probation  OflBcers. 

"3803.  Duties  of  Probation  Officers. 

"3804.  Transportation  of  a  Probationer. 

"3805.  Transfer  of  Jurisdiction  over  Probationer. 

"3806.  Arrest  an^Retum  of  a  Probationer. 

"3807.  Special  Probation  and  Expungement  Procedures  for  Drug  Possessors. 


9743 


259 


1  "§3801.  Supervision  of  Probation 

2  A  person  who  has  been  sentenced  to  probation  pursuant  to  the  provi- 

3  sions  of  chapter  21  shall,  during  the  term  of  his  probation,  be  super- 

4  vised  by  a  probation  officer  to  the  degree  warranted  by  the  conditions 

5  of  his  probation. 

6  "§  3802.  Appointment  of  Probation  Officers 

7  "(a)  Appointment. — A  district  court  of  the  United  States  shall 

8  appoint  qualified  persons  to  serve  as  probation  officers  within  the 

9  jurisdiction  and  under  the  direction  of  the  court  making  the  appoint- 

10  ment.  The  court  may,  in  its  discretion,  remove  a  probation  officer 

11  previously  appointed. 

12  "(b)  Record  of  Appointment. — The  order  of  appointment  shall  be 

13  entered  on  the  records  of  the  court,  a  copy  of  the  order  shall  be 

14  delivered  to  the  officer  appointed,  and  a  copy  shall  be  sent  to  the 

15  Director  of  the  Administrative  Office  of  the  United  States  Courts. 

16  "(c)  Chief  Probation  Officer. — If  the  court  appoints  more  than 

17  one  probation  officer,  one  may  be  designated  by  the  court  as  chief  pro- 

18  bation  officer  and  shall  direct  the  work  of  all  probation  officers  serving 

19  in  the  court. 

20  "§3803.  Duties  of  Probation  Officers 

21  "A  probation  officer  shall : 

22  "  (a)  instruct  a  probationer  under  his  supervision  as  to  the  con- 

23  ditions  of  his  probation,  and  provide  him  with  a  written  statement 

24  clearly  setting  forth  all  such  conditions ; 

25  "(b)  keep  informed,  to  the  degree  required  by  the  conditions 

26  of  probation,  as  to  the  conduct  and  condition  of  a  probationer 

27  under  his  supervision,  and  report  his  conduct  and  condition  to 

28  the  sentencing  court ; 

29  "(c)  use  all  suitable  methods,  not  inconsistent  with  the  condi- 

30  tions  imposed  by  the  court,  to  aid  a  probationer  under  his  super- 

31  vision  and  to  bring  about  improvements  in  his  conduct  and 

32  condition ; 

33  "(d)  be  responsible  for  the  supervision  of  any  probationer 

34  known  to  be  within  the  judicial  district; 

35  "(e)  keep  a  record  of  his  work,  and  make  such  reports  to  the 

36  Director  of  the  Administrative  Office  of  the  United  States  Courts 

37  as  the  Director  may  require ; 

38  "(f)  perform  any  other  duty  that  the  court  may  designate ;  and 

39  "(g)  perform  any  duty  with  respect  to  a  person  on  parole  that 

40  the  Parole  Commission  may  designate. 


9744 

260 

1  "§  3804  Transportation  of  a  Probationer 

2  "A  court,  after  imposing  a  sentence  of  probation,  may  direct  a 

3  United  States  marshal  to  furnish  the  probationer  with : 

4  "(a)  transportation  to  the  place  to  which  he  is  required  to 

5  proceed  as  a  condition  of  his  probation ;  and 

6  "(b)  money,  not  to  exceed  such  amount  as  the  Attorney  General 

7  may  prescribe,  for  subsistence  expenses  while  traveling  to  his 

8  destination. 

9  "§  3805.  Transfer  of  Jurisdiction  over  a  Probationer 

10  "A  court,  after  imposing  a  sentence  of  probation,  may  transfer  juris- 

11  diction  over  the  probationer  to  the  district  court  for  any  other  district 

12  to  which  the  probationer  is  required  to  proceed  as  a  condition  of  his 

13  probation,  with  the  concurrence  of  such  court.  A  retransfer  of  jurisdic- 

14  tion  may  be  made  in  the  same  manner.  A  court  to  which  jurisdiction  is 

15  transferred  under  this  section  is  authorized  to  exercise  all  powers  over 

16  the  probationer  that  are  permitted  by  this  subchapter  or  chapter  21. 

17  "§  3806.  Arrest  and  Return  of  a  Probationer 

18  "A  probationer  who  has  violated  a  condition  of  his  probation  may 

19  be  arrested,  and,  upon  arrest,  shall  be  taken  without  imnecessary  delay 

20  before  the  court  having  jurisdiction  over  him. 

21  "§  3807.  Special  Probation  and  Expungement  Procedures  for  Drug 

22  Possessors 

23  "(a)  Pre-judgment  Probation. — If  a  person  found  guilty  of  an  of- 

24  fense  described  in  section  1813  (Possessing  Drugs) : 

25  "(1)  has  not,  prior  to  the  commission  of  such  offense,  been  con- 

26  victed  of  violating  a  federal  or  state  law  relating  to  controlled 

27  substances;  and 

28  "(2)  has  not  previously  been  the  subject  of  a  disposition  under 

29  this  subsection ; 

30  the  court  may,  with  the  consent  of  such  person,  place  him  on  probation 

31  for  a  term  of  not  more  than  one  year  without  entering  a  judgment  of 

32  conviction.  At  any  time  before  the  expiration  of  the  tenn  of  probation, 

33  if  the  person  has  not  violated  a  condition  of  his  probation,  the  court 

34  may,  without  entering  a  judgment  of  conviction,  dismiss  the  proceed- 
85  ings  against  the  person  and  discharge  him  from  probation.  At  the  ex- 

36  piration  of  the  term  of  probation,  if  the  person  has  not  violated  a  con- 

37  dition  of  his  probation  the  court  shall,  without  entering  a  judgment  of 

38  conviction,  dismiss  the  proceedings  against  the  person  and  discharge 

39  him  from  probation.  If  the  person  violates  a  condition  of  his  proba- 

40  tion,  the  court  shall  proceed  in  accordance  with  the  provisions  of  sec- 

41  tion  2105. 


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1  "(b)  Record  OF  Disposition. — A  non-public  record  of  a  disposition 

2  under  subsection  (a)  shall  be  retained  by  the  Department  of  Justice 

3  solely  for  the  purpose  of  use  by  the  courts  in  determining  in  any  sub- 

4  sequent  proceeding  whether  a  person  qualifies  for  the  disposition  pro- 

5  vided  in  subsection  (a).  A  disposition  under  subsection  (a)  shall  not 

6  be  considered  a  conviction  for  the  purpose  of  a  disqualification  or  a 

7  disability  imposed  by  law  upon  conviction  of  a  crime,  or  for  any  other 

8  purpose. 

9  "(c)  Expungement  of  Record  of  Disposition. — If  a  person  whose 

10  case  is  the  subject  of  a  disposition  under  subsection  (a)  was  less  than 

11  twenty-one  years  old  at  the  time  of  the  offense,  the  court  shall,  upon 

12  application  of  such  person,  enter  an  order  to  expunge  from  all  official 

13  records,  except  the  nonpublic  records  referred  to  in  subsection  (b), 

14  all  references  to  his  arrest  for  the  offense,  the  institution  of  criminal 

15  proceedings  against  him,  and  the  results  thereof.  The  effect  of  the 

16  order  shall  be  to  restore  such  person,  in  the  contemplation  of  the  law, 

17  to  the  status  he  occupied  before  such  arrest  or  institution  of  criminal 

18  proceedings.  A  person  concerning  whom  such  an  order  has  been 

19  entered  shall  not  be  held  thereafter  under  any  provision  of  law  to 

20  be  guilty  of  perjury,  false  swearing,  or  making  a  false  statement  by 

21  reason  of  his  failure  to  recite  or  acknowledge  such  arrests  or  institution 

22  of  criminal  proceedings,  or  the  results  thereof,  in  response  to  an 

23  inquiry  made  of  him  for  any  purpose. 

24  "Subchapter  B.— Fines 

"Sec. 

"3811.  Payment  of  a  Fine. 

"3812.  Collection  of  an  Unpaid  Fine. 

"3813.  Lien  Provision  for  Satisfaction  of  an  Unpaid  Fine. 

25  "§  3811.  Payment  of  a  Fine 

26  "A  person  who  has  been  sentenced  to  pay  a  fine  pursuant  to  the 

27  provisions  of  chapter  22  shall  pay  the  fine  immediately,  or  by  the 

28  time  and  method  specified  by  the  sentencing  court,  to  the  clerk  of  the 

29  court.  The  clerk  shall  forward  the  payment  to  the  United  States 

30  Treasury  for  credit  to  the  Victim  Compensation  Fund. 

31  "§3812.  Collection  of  an  Unpaid  Fine 

32  "(a)  Certification  of  Imposition. — If  a  fine  is  imposed,  the  sen- 

33  tencing  court  shall  promptly  certify  to  the  Attorney  General: 

34  "  ( 1 )  the  name  of  the  person  fined ; 

35  "  (2)  his  last  known  address ; 

36  "  (3)  the  docket  number  of  the  case ; 

37  "  (4)  the  amount  of  the  fine  imposed ; 

38  "(5)  the  time  and  method  of  payment  specified  by  the  court; 


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1  "(6)  the  nature  of  any  modification  or  remission  of  the  fine; 

2  and 

3  "  (8)  the  amount  of  the  fine  that  is  due  and  unpaid. 

4  The  court  shall  thereafter  promptly  certify  to  the  Attorney  General 

5  the  amount  of  any  subsequent  payment  that  the  court  may  receive 

6  with  respect  to,  and  the  nature  of,  any  subsequent  remission  or  modi- 

7  fication  of  a  fine  concerning  which  certification  has  previously  been 

8  issued. 

9  "(b)  Responsibility  FOR  Collection. — The  Attorney  General  shall 

10  be  responsible  for  collection  of  an  unpaid  fine  concerning  which  a  cer- 

11  tification  has  been  issued  as  provided  in  subsection  (a). 

12  Ǥ  3813.  Lien  Provisions  for  Satisfaction  of  an  Unpaid  Fine 

13  "(a)  Lien. — A  fine  imposed  pursuant  to  the  provisions  of  chapter 

14  22  is  a  lien  in  favor  of  the  United  States  upon  all  property  belonging 

15  to  the  person  fined.  The  lien  arises  at  the  time  of  the  entry  of  the 

16  judgment  and  continues  until  the  liability  is  satisfied,  remitted,  or 

17  set  aside,  o'-  until  it  becomes  unenforceable  pursuant  to  the  provisions 

18  of  subsection  (b). 

19  "  (b)  Expiration  of  Lien. — A  lien  becomes  unenforceable  and  lia- 

20  bility  to  pay  a  fine  expires :  , 

21  "(1)  twenty  years  after  the  entry  of  the  judgment;  or 

22  "  (2)  upon  the  death  of  the  individual  fined. 

23  The  period  set  forth  in  paragraph  (1)  may  be  extended,  prior  to  its 

24  expiration,  by  a  written  agreement  between  the  person  fined  and  the 

25  Attorney  General.  The  running  of  the  period  set  forth  in  paragraph 

26  (1)  is  suspended  during  any  interval  for  which  the  running  of  the 

27  period  of  limitations  for  collection  of  a  tax  would  be  suspended  pur- 

28  suant  to  section  6503(b),  6503(c),  6503(g),  or  7508(a)  (1)  (I)  of  the 

29  Internal  Revenue  Code  of  1954,  as  amended  (26  U.S.C.  503(b),  6503 

30  (c),  6503(g),  or  7508(a)  (1)  (I)),  or  section  513  of  the  Act  of  Octo- 

31  ber  17, 1940, 54  Stat.  1190. 

32  "(c)  Application  of  Other  Lien  Provisions. — Tlie  provisions  of 

33  sections  6323,  6331  through  6343,  6901,  7402,  7403,  7405,  7423  through 

34  7426, 7505  (a) ,  7506, 7508, 7602  through  7605, 7622, 7701,  7805,  and  7810 

35  of  the  Internal  Revenue  Code  of  1954,  as  amended  (26  U.S.C.  6323, 

36  6331  through  6343,  6901,  7402,  7403,  7405,  7423  through  7426,  7505  (a) , 

37  7506,  7508,  7602  through  7605,  7622,  7701,  7805,  and  7810),  and  of 

38  section  513  of  the  Act  of  October  17,  1940,  54  Stat.  1190,  apply  to  a 

39  fine  and  to  the  lien  imposed  by  subsection  (a)  as  if  the  liability  of 

40  the  person  fined  were  for  an  internal  revenue  tax  assessment,  except 


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1  to  the  extent  that  the  application  of  such  statutes  is  modified  by  regu- 

2  lations  issued  by  the  Attorney  General  to  accord  with  differences  in 

3  the  nature  of  the  liabilities.  For  the  purposes  of  this  subsection,  ref- 

4  erences  in  the  preceding  sections  of  the  Internal  Revenue  Code  of 

5  1954  to  "the  Secretary  or  his  delegate"  shall  be  construed  to  mean 

6  "the  Attorney  General,"  and  references  in  those  sections  to  "tax"  shall 

7  be  construed  to  mean  "fine." 

8  "(d)  Effect  of  Notice  of  Lien. — A  notice  of  the  lien  imposed  by 

9  subsection  (a)  shall  be  considered  a  notice  of  lien  for  taxes  payable 

10  to  the  United  States  for  the  purpose  of  any  state  or  local  law  provid- 

11  ing  for  the  filing  of  a  notice  of  a  tax  lien.  The  registration,  recording, 

12  docketing,  or  indexing,  in  accordance  with  28  U.S.C.  1962,  of  the 

13  judgment  under  which  a  fine  is  imposed  shall  be  considered  for  all 

14  purposes  as  the  filing  prescribed  by  section  6323(f)(1)(A)  of  the 

15  Internal  Revenue  Code  of  1954,  as  amended  (26  U.S.C.  6323(f)(1) 

16  (A) ) ,  and  by  subsection  (c). 

17  "Subchapter  C. — Imprisonment 

"Sec. 

"3821.  Imprisonment  of  a  Convicted  Person. 

"3822.  Temporary  Release  of  a  Prisoner. 

"3823.  Transfer  of  a  Prisoner  to  State  Authority. 

"3824.  Release  of  a  Prisoner. 

"3825.  Inapplicability  of  the  Administrative  Procedure  Act. 

18  "§  3821.  Imprisonment  of  a  Convicted  Person 

19  "(a)  Commitment  to  Custody  of  Bureau  of  Prisons. — A  person 

20  who  has  been  sentenced  to  a  term  of  imprisonment  pursuant  to  the 

21  provisions  of  chapter  23  shall  be  committed  to  the  custody  of  the 

22  Bureau  of  Prisons  until  the  expiration  of  the  term  imposed  or  until 

23  earlier  released  on  parole  pursuant  to  the  provisions  of  subchapter  D. 

24  "(b)  Place  of  Imprisonment. — The  Bureau  of  Prisons  shall  desig- 

25  nate  the  place  of  the  prisoner's  imprisonment.  The  Bureau  may  desig- 

26  nate  any  available  prison  facility,  whether  maintained  by  the  federal 

27  government  or  otherwise  and  whether  within  or  without  the  judicial 

28  district  in  which  the  person  was  convicted,  that  appears  to  be  appro- 

29  priate  and  suitable,  considering  the  resources  of  the  facility  contem- 

30  plated,  the  nature  and  circumstances  of  the  offense,  the  history  and 

31  characteristics  of  the  prisoner,  any  statement  by  the  court  that  im- 

32  posed  the  sentence  concerning  the  purposes  for  which  the  sentence  to 

33  imprisonment  was  determined  to  be  warranted  or  recommending  a 

34  type  of  prison  facility  as  appropriate,  and  any  pertinent  policy  state- 

35  ment  issued  by  the  Sentencing  Commission  pursuant  to  28  U.S.C. 

36  994(a)  (2).  The  Bureau  may  at  any  time,  having  regard  for  the  same 


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1  matters,  direct  the  transfer  of  a  prisoner  from  one  prison  facility  to 

2  another. 

3  "(c)  Delivery  of  Order  of  Commitment. — ^When  a  prisonei  pur- 

4  suant  to  a  court  order,  is  placed  in  the  custody  of  a  person  in  charge 

5  of  a  prison  facility,  a  copy  of  the  order  shall  be  delivered  to  such  per- 

6  son  as  evidence  of  his  authority  to  hold  the  prisoner,  and  the  original 

7  order,  with  the  return  endorsed  thereon,  shall  be  returned  to  the  court 

8  that  issued  it. 

9  "(d)  Delivery  of  Prisoner  for  Court  Appearances. — The  Bureau 

10  of  Prisons  shall,  without  charge,  bring  a  prisoner  into  court  or  return 

11  him  to  a  prison  facility  on  order  of  a  court  of  the  United  States  or  on 

12  written  request  of  an  attorney  for  the  government. 

13  "§  3822.  Temporary  Release  of  a  Prisoner 

14  "The  Bureau  of  Prisons  may  release  a  prisoner  from  the  place  of 

15  his  imprisonment  for  a  limited  period,  if  such  release  appears  to  be 

16  consistent  with  the  purposes  for  which  the  sentence  was  imposed  and 

17  any  pertinent  policy  statement  issued  by  the  Sentencing  Commission 

18  pursuant  to  28  U.S.C.  994(a)  (2),  if  such  release  otherwise  appears  to 

19  be  consistent  with  the  public  interest  and  if  there  is  reasonable  cause 

20  to  believe  that  the  prisoner  will  honor  the  trust  to  be  imposed  in 

21  him,  by  authorizing  him,  under  prescribed  conditions,  to : 

22  "(a)  visit  a  designated  place  for  a  period  not  to  exceed  thirty 

23  days,  and  then  return  to  the  same  or  another  facility,  for  the  pur- 

24  pose  of : 

26  "  ( 1 )  visiting  a  relative  who  is  dying ; 

26  "  (2)  attending  a  funeral  of  a  relative ; 

27  "(3)  obtaining  medical  treatment  not  otherwise  available ; 

28  "(4)  contacting  a  prospective  employer ; 

29  "(5)  establishing  or  reestablishing  family  or  community 

30  ties ;  or 

3j  "(6)  engaging  in  any  other  significant  activity  consistent 

32  with  the  public  interest ; 

33  "(b)  participate  in  a  training  or  educational  program  in  the 

34  community  while  continuing  in  official  detention  at  the  prison 

35  facility ;  or 

36  "(c)  work  at  paid  employment  in  the  community  while  con- 

37  tinuing  in  official  detention  at  the  prison  facility  if : 

38  "(1)  the  representatives  of  local  imion  central  bodies  or 

39  similar  labor  union  organizations  are  first  consulted ; 

40  "(2)  the  paid  employment  will  not  result  in  the  displace- 
4j  ment  of  employed  persons,  or  be  applied  in  skills,  crafts, 


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1  or  trades  in  which  there  is  a  surplus  of  available  labor 

2  in  the  community,  or  impair  existing  contracts  for  services; 

3  "(3)  the  rates  of  pay  and  other  conditions  of  emplojmaent 

4  will  not  be  less  than  those  paid  or  provided  for  work  of  a 

5  similar  nature  in  the  community ;  and 

6  "(4)  the  prisoner  agrees  to  pay  to  the  Bureau  such  costs 

7  incident  to  his  official  detention  as  the  Bureau  finds  appro- 

8  priate  and  reasonable  under  all  the  circumstances,  such  costs 

9  to  be  collected  by  the  Bureau  and  deposited  in  the  Treasury 

10  to  the  credit  of  the  appropriation  available  for  such  costs  at 

11  the  time  such  collections  are  made. 

12  "§  3823.  Transfer  of  a  Prisoner  to  State  Authority 

13  "The  Director  of  the  Bureau  of  Prisons  shall  order  that  a  prisoner 

14  who  has  been  charged  in  an  indictment  or  information  with,  or  con- 

15  victed  of,  a  state  felony,  be  transferred  to  an  official  detention  facility 

16  within  such  state  prior  to  his  release  from  a  federal  prison  facility  if: 

17  "(1)  the  transfer  has  been  requested  by  the  Governor  or  other 

18  executive  authority  of  the  state ; 

19  "(2)  the  state  has  presented  to  the  Director  a  certified  copy 

20  of  the  indictment,  information,  or  judgment  of  conviction;  and 

21  "  (3)  the  Director  finds  that  the  transfer  would  be  in  the  public 

22  interest. 

23  If  more  than  one  request  is  presented  with  respect  to  a  prisoner,  the 

24  Director  shall  determine  which  request  should  receive  preference. 

25  "§3824.  Release  of  a  Prisoner 

26  "(a)  Date  of  Release. — Except  as  otherwise  provided,  and  unless 

27  earlier  released  on  parole  pursuant  to  the  provisions  of  subchapter  D, 

28  a  prisoner  shall  be  released  on  parole,  pursuant  to  the  provisions  of 

29  section  3831,  on  the  date  of  the  expiration  of  his  term  of  imprisonment. 

30  If  the  date  of  the  expiration  of  a  prisoner's  term  of  imprisonment  falls 

31  on  a  Saturday,  a  Sunday,  or  a  legal  holiday,  the  prisoner  may  be  re- 

32  leased  by  the  Bureau  of  Prisons  on  the  last  preceding  weekday. 

33  "(b)  Allotment  of  Clothing,  Funds,  and  Transportation. — ^Upon 

34  the  release  of  a  prisoner  on  parole  prior  to  or  on  the  expiration  of  his 

35  term  of  imprisonment,  the  Bureau  of  Prisons  shall  furnish  him  with : 

36  "(1)  suitable  clothing ; 

3*^  "  (2)  an  amount  of  money,  not  less  than  $200  nor  more  than  $500, 
determined  by  the  Director  to  be  consistent  with  the  needs  of  the 
offender  and  the  public  interest,  unless  the  Director  determines 
that  the  financial  position  of  the  offender  is  such  that  no  sum 

41  should  be  furnished ;  and 


38 
39 
40 


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1  "  (3)   transportation  to  the  place  of  his  conviction,  to  his  bona 

2  fide  residence  within  the  United  States,  or  to  such  other  place 

3  within  the  United  States  as  may  be  authorized  by  the  Parole 

4  Commission. 

5  "§  3825.  Inapplicability  of  the  Administrative  Procedure  Act 

6  "The  provisions  of  5  U.S.C.  551  through  559,  and  701  through  706, 

7  do  not  apply  to  the  making  of  any  determination,  decision,  or  order 

8  imder  this  subchapter. 

9  "Subchapter  D.— Parole 

"Sec. 

"3831.  Consideration  of  a  Prisoner  for  Release  on  Parole. 

"3832.  Pre-Parole  Reports. 

"3833.  Parole  Interview  Procedure. 

"3834.  Term  and  Conditions  of  Parole. 

"3835.  Revocation  of  Parole. 

"3836.  Appeal  from  Parole  Commission  Determination. 

"3837.  Inapplicability  of  the  Administrative  Procedure  Act. 

10  "§  3831.  Consideration  of  a  Prisoner  for  Release  on  Parole 

11  "(a)  Eligibility. — A  prisoner  who  has  been  committed  to  the  cus- 

12  tody  of  the  Bureau  of  Prisons  to  serve  a  term  of  imprisonment  total- 
is ing  six  months  or  more  is  eligible  for  release  on  parole  by  the  Parole 

14  Commission  upon  completion  of  the  service  of  the  term  of  parole 

15  ineligibility  imposed  by  the  sentencing  court  pursuant  to  the  provisions 

16  of  section  2301(c)  and  2302(b),  or  upon  completion  of  the  first  six 

17  months  of  the  term  of  imprisonment,  whichever  is  later. 

18  "(b)  First  Consideration. — The  Parole  Commission  shall  consider 

19  the  parole  of  a  prisoner  serving  a  term  of  imprisonment  totaling: 

20  "  ( 1 )  more  than  one  year,  at  least  sixty  days  prior  to  the  later 

21  of: 

22  "(A)  the  date  upon  which  he  will  become  eligible   for 

23  parole;  or 

24  "(B)  the  date  upon  which  he  will  complete  the  service  of 

25  one-fourth  of  the  term  of  imprisonment  or  of  the  first  year 

26  of  the  term  of  imprisonment,  whichever  is  earlier ; 

27  "(2)   six  months  or  more  but  not  more  than  one  year,  at  least 

28  sixty  days  prior  to  the  date  upon  which  he  will  become  eligible 

29  for  parole. 

30  "(c)  Criteria  for  Release. — The  Parole  Commission  shall  grant 

31  parole  to  a  prisoner  who  is  eligible  for  parole  if,  having  regard  for 

32  the  guidelines  and  any  pertinent  policy  statements  concerning  parole 

33  issued  by  the  Sentencing  Commission  pursuant  to  28  U.S.C.  994(f), 

34  the  Commission  is  of  the  opinion  that: 


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1  "(1)  his  release  at  that  time  is  consistent  with  the  applicable 

2  factors  that  led  to  the  imposition  of  his  particular  sentence  under 

3  the  provisions  of  part  III  of  this  title; 

4  "(2)  there  is  no  undue  risk  that  he  will  fail  to  conform  to 

5  such  conditions  of  parole  as  would  be  warranted  under  the  cir- 

6  cumstances ;  and 

7  "(3)  his  release  at  that  time,  in  light  of  his  conduct  at  the 

8  institution,  would  not  have  a  substantially  adverse  effect  on  insti- 

9  tutional  discipline. 

10  "(d)  Eeconsideration. — If  parole  is  denied  a  prisoner,  the  Parole 

11  Commission  shall  reconsider  parole  at  least  once  each  year  thereafter 

12  until  parole  is  granted,  unless  at  the  time  parole  is  denied  the  Com- 

13  mission  determines  that  a  release  order  after  an  additional  year  would 

14  be  inappropriate,  in  which  case  the  Commission  may  defer  reconsid- 

15  eration  for  not  more  than  two  years. 

16  "(e)  Mandatory  Release  on  Parole  at  Expiration  of  Sentence. — 

17  A  prisoner  serving  a  term  of  imprisonment  totaling  six  months  or 

18  more  who  is  still  in  confinement  on  the  date  of  the  expiration  of  his 

19  term  of  imprisonment  shall  then  be  released  on  parole. 

20  "§3832.    Preparole  Reports 

21  "(a)  Preparole  Study  and  Report  by  Bureau  of  Prisons. — An 

22  adequate  time  prior  to  the  date  upon  which  a  prisoner  becomes  eli- 

23  gible  for  parole,  the  Bureau  of  Prisons,  under  such  regulations  as 

24  the  Attorney  General  may  prescribe,  shall  conduct  a  complete  study 

25  of  the  prisoner,  inquiring  into  such  matters  as  the  prisoner's  previous 

26  delinquency  or  criminal  experiences ;  his  social  background ;  his  capa- 

27  bilities ;  his  mental,  emotional,  and  physical  health ;  and  the  rehabili- 

28  tative  resources  or  programs  that  may  be  available  to  suit  his  needs. 

29  At  least  ninety  days  prior  to  the  date  upon  which  the  prisoner  becomes 

30  eligible  for  parole,  the  Bureau  shall  provide  the  Parole  Commission 

31  with  a  written  report  of  the  results  of  the  study  and  shall  make  to 

32  the  Commission  whatever  recommendations  the  Bureau  believes  will 

33  be  helpful  in  determining  the  suitability  of  the  prisoner  for  parole 

34  and  in  determining  the  appropriate  terms  and  conditions  of  parole. 

35  "(b)  Preparole  Report  by  Probation  Officers  and  Government 

36  Agencies. — Upon  request  of  the  Parole  Commission  prior  to  its  con- 

37  sideration  of  the  parole  of  a  prisoner  or  of  any  other  matter  within 

38  its  jurisdiction,  a  probation  officer  or  a  government  agency  shall  pro- 


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1  vide  the  Commission  with  whatever  information  is  available  to  such 

2  officer  or  agency  concerning  a  prisoner  or  parolee  and  shall,  if  not 

3  inconsistent  with  the  public  interest,  make  to  the  Commission  what- 

4  ever  recommendations  such  officer  or  agency  believes  will  be  helpful 

5  with  respect  to  the  matter  concerning  which  the  request  was  made. 

6  "(c)   OxirER  Preparole  In%T!Stigation. — The  Parole  Commission 

7  may  make  such  other  investigation  as  it  may  consider  warranted. 

8  "§3833.  Parole  Interview  Procedure 

9  "(a)  Interview  Required. — A  prisoner  whom  the  Parole  Commis- 

10  sion  is  required  to  consider  for  parole  under  the  provisions  of : 

11  "(1)   section3831(b)(l)  or  (d),  shall,  within  the  time  specified, 

12  be  afforded  a  parole  interview  unless  he  signs  a  written  waiver 

13  of  such  an  interview ; 

14  "(2)   section  3831(b)(2),  shall,  within  the  time  specified,  be 

15  afforded  a  parole  interview  unless : 

16  "(A.)  he  signs  a  written  waiver  of  such  an  interview;  or 

17  "(B)  the  Commission,  on  the  basis  of  the  report  and 

18  recommendations  of  the  Bureau  of  Prisons,  determines  to 

19  release  him  on  parole  on  the  date  upon  which  he  will  become 

20  eligible  for  parole. 

21  "(b)  Notice  and  Opportunity  for  Representation. — Prior  to  the 

22  parole  interview,  the  prisoner ; 

23  "(1)  shall  be  given  a  written  notice  of  the  time,  place,  and  pur- 

24  pose  of  such  interview ;  and 

25  "(2)  shall  be  allowed  to  select,  as  a  representative  to  aid  him 

26  in  such  interview,  any  person  who  qualifies  under  regulations 

27  or  rules  issued  by  the  Parole  Commission,  the  regulations  or  rules 

28  of  which  may  not  exclude  attorneys  as  a  class. 

29  "(c)  Access  to  Reports. — Following  notification  that  a  parole  in- 

30  terview  is  scheduled,  the  prisoner  shall  be  afforded  reasonable  access 

31  to  such  reports  and  other  materials  as  are  prepared  by,  or  for  the  use 

32  of,  the  Parole  Commission  in  making  its  determination,  except  that 

33  the  prisoner  shall  not  be  afforded  access  to  matters  that,  if  they  ap- 

34  peared  in  a  report  of  a  presentence  investigation,  would  not  be  revealed 

35  to  a  defendant  under  the  provisions  of  Rule  32  of  the  Federal  Rules  of 

36  Criminal  Procedure.  If  access  to  any  such  material  is  withheld  from 

37  the  prisoner  on  such  grounds,  the  Commission,  or,  if  the  material  was 

38  withheld  at  the  request  of  the  Bureau  of  Prisons  or  another  agency, 

39  the  Bureau  or  such  other  agency,  shall  summarize  the  basic  contents  of 

40  the  material  to  the  extent  that  is  possible  without  violating  a  pledge  of 


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269 

1  confidentiality  or  endangering  any  person,  and  the  Commission  shall 

2  furnish  snch  summary  to  the  prisoner. 

3  "(d)  Record  of  Interview. — A  complete  record  of  a  parole  inter- 

4  view  shall  be  retained  by  the  Parole  Commission.  Upon  request,  the 

5  Commission  shall  make  the  record  available  to  the  prisoner. 

6  "(e)    Notification  of  Determination. — Not  later  than  fifteen 

7  working  days  after  the  date  of  the  interview,  the  Parole  Commission 

8  shall  notify  the  prisoner  in  writing  of  its  determination.  If  parole 

9  is  denied,  or  if  discretionary  conditions  of  parole  are  imposed  other 

10  than  those  incorporated  by  reference  in  section  3834(c),  the  Commis- 

11  sion  shall  include  a  statement  of  the  reasons  for  such  determination 

12  and,  if  possible,  a  representative  of  the  Commission  who  participated 

13  in  the  parole  interview  shall  hold  a  conference  with  the  prisoner  to  ex- 

14  plain  such  reasons. 

15  "§3834.  Term  and  Conditions  of  Parole 

16  "(a)  Setting  of  Term  and  Conditions. — Upon  a  determination  to 

17  release  a  prisoner  on  parole,  the  Parole  Commission  shall  set  the  term 

18  and  conditions  of  parole,  having  regard  for : 

19  "(1)  the  guidelines  and  any  pertinent  policy  statements  con- 

20  ceming  parole  issued  by  the  Sentencing  Commission  pursuant  to 

21  28  U.S.O.  994(f); 

22  "(2)  the  nature  and  circumstances  of  the  off ense  and  the  history 

23  and  characteristics  of  the  parolee ;  and 

24  "(3)  the  need: 

25  "(A)  to  protect  the  public  from  further  crimes  of  the  pa- 

26  rolee ;  and 

27  "(B)  to  provide  the  parolee  with  the  opportimity  for  such 

28  needed  educational  or  vocational  training,  medical  care,  or 

29  other  correctional  treatment  as  can  be  provided  effectively 

30  while  he  is  on  parole. 

31  "(b)  Term  of  Parole. — The  Parole  Commission,  having  regard  for 

32  the  guidelines  and  any  pertinent  policy  statements  concerning  parole 

33  issued  by  the  Sentencing  Commission  pursuant  to  28  U.S.C.  994(f), 

34  shall  set  the  term  of  parole : 

35  "  (1)   for  a  Class  A  or  Class  B  felony,  at  not  less  than  one  year 

36  nor  more  than  five  years ; 

37  "(2)  for  a  Class  C  felony,  at  not  less  than  one  year  nor  more 

38  than  three  years ; 

39  "(3)   for  a  Class  D  felony,  at  not  less  than  one  year  nor  more 

40  than  two  years ; 


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270 

1  "(4)  for  a  Class  E  felony,  at  not  less  than  six  months  nor  more 

2  than  one  year ;  and 

3  "(5)   for  a  Class  A  misdemeanor,  at  not  less  than  three  months 

4  nor  more  than  six  months. 

5  "  (c)  CoNDmoNs  OF  Parole. — The  Parole  Commission  shall  provide, 

6  as  an  explicit  condition  of  parole,  that  the  parolee  not  commit  another 

7  federal,  state,  or  local  crime  during  the  term  of  parole.  The  Commis- 

8  sion  may  provide,  as  further  conditions  of  parole,  to  the  extent  that 

9  such  conditions  are  reasonably  related  to  the  matters  set  forth  in 

10  subsection  (a)  (2)  and  (a)  (3),  and  to  the  extent  that  such  conditions 

1 1  involve  no  greater  a  deprivation  of  liberty  than  is  reasonably  necessary 

12  for  the  purposes  indicated  in  subsection  (a)  (3) ,  and  to  the  extent  that 

13  such  conditions  are  consistent  with  any  pertinent  policy  statements 

14  issued  by  the  Sentencing  Commission  pursuant  to  28  U.S.C.  994(f), 

15  any  conditions  set  forth  as  discretionary  conditions  of  probation  in 

16  section  2103(b)(1)  through  (b)(10)  and  (b)(12)  through  (b)(18), 

17  and  any  other  conditions  it  considers  to  be  appropriate.  If  an  alien 

18  prisoner  subject  to  deportation  is  paroled,  the  Commission  may  pro- 

19  vide,  as  a  condition  of  parole,  that  he  be  deported  and  remain  outside 

20  the  United  States,  and  may  order  that  he  be  delivered  to  a  duly  author- 

21  ized  immigration  official  for  such  deportation.  The  Commission  shall 

22  provide  to  a  parolee  a  written  statement  setting  forth  all  the  conditions 

23  to  which  the  parole  is  subject  with  sufficient  clarity  and  specificity  to 

24  serve  as  a  guide  for  the  parolee's  conduct  and  for  such  supervision  as 

25  is  required. 

26  "(d)  Commencement  of  Term. — A  term  of  parole  commences  on 

27  the  day  the  parolee  is  released  from  imprisonment. 

28  "(e)    Concurrent  with  Other  Sentences. — A  term  of  parole 

29  runs  concurrently  witli  any  federal,  state,  or  local  term  of  parole 

30  or  probation  for  another  offense  to  which  the  parolee  is  subject 

31  or  becomes  subject  during  the  term  of  parole,  except  that  it  does  not 

32  run  during  any  period  in  wliich  the  parolee  is  imprisoned  in  connec- 

33  tion  with  a  conviction  for  a  federal,  state,  or  local  crime. 

34  "(f)  Early  Termination. — The  Parole  Commission  may  terminate 

35  a  term  of  parole  previously  ordered  and  discharge  the  parolee  at  any 

36  time  after  expiration  of  one  year  of  parole  if  it  is  satisfied  that  such 

37  action  is  warranted  by  the  conduct  of  the  parolee  and  the  interest  of 

38  justice.  The  Commission  shall  review  the  status  of  a  parolee  after 

39  two  years  of  continuous  parole,  and  after  each  additional  year  of 

40  parole,  to  determine  the  need  for  his  continued  parole. 


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1  "(g)  Extension  of  Term  or  Modification  of  Conditions. — The 

2  Parole  Commission  may  extend  a  term  of  parole  if  less  than  the  au- 

3  thorized  term  was  previously  imposed,  and  may  modify,  reduce,  or 

4  enlarge  the  conditions  of  parole,  at  any  time  prior  to  the  expiration  or 

5  termination  of  the  term  of  parole. 

6  "(h)  Subject  to  Revocation. — A  term  of  parole  remains  conditional 

7  and  subject  to  revocation  until  its  expiration  or  termination. 

8  "§3835.  Revocation  of  Parole 

9  "(a)  Warrant  for  Arrest. — A  warrant  for  the  arrest  of  a  parolee 

10  who  is  alleged  to  have  violated  a  condition  of  his  parole  may  be  issued 

11  by  the  Parole  Commission  at  any  time  prior  to  the  expiration  or  ter- 

12  mination  of  the  term  of  parole.  An  officer  authorized  under  subchapter 

13  B  of  chapter  30  to  execute  such  a  warrant  may  arrest  the  parolee  and, 

14  upon  such  an  arrest,  shall  return  the  parolee  to  the  custody  of  the 

15  Bureau  of  Prisons. 

16  "(b)  Preliminary  Appearance. — A  parolee  arrested  on  a  warrant 

17  for  violation  of  a  condition  of  his  parole  shall  be  taken,  without  un- 

18  necessary  delay,  before  the  Parole  Commission  at  a  place  reasonably 

19  near  the  place  of  the  arrest  or  of  the  violation  alleged,  to  determine  if 

20  there  is  probable  cause  to  believe  that  he  has  violated  a  condition  of 

21  his  parole.  The  parolee  shall  be  given  the  opportunity  to  admit  or 

22  deny,  in  whole  or  in  part,  the  violation  alleged,  and  to  explain  the  cir- 

23  cumstances  of  the  matter.  If  the  Commission,  after  a  preliminary 

24  hearing,  finds  that  there  is  probable  cause  to  believe  that  the  violation 

25  occurred,  a  revocation  hearing  before  the  Commission  shall  be  ordered. 

26  If  the  parolee  admits  the  violation  alleged,  the  revocation  hearing  may 

27  be  limited  to  matters  concerning  disposition. 

28  "(c)  Time  and  Place  of  Revocation  Hearing. — A  revocation  hear- 

29  ing  shall  be  held  by  the  Parole  Commission,  with  respect  to  the  parole 

30  of: 

31  "(1)  a  parolee  for  whom  such  a  hearing  was  ordered  under  sub- 

32  section  (b),  immediately  upon  the  finding  of  probable  cause  or 

33  within  sixty  days  thereafter,  at  a  place  reasonably  near  the  place 

34  of  the  arrest  or  of  the  violation  alleged ;  or 

35  "(2)  a  parolee  who  has  been  convicted  of  a  federal,  state,  or 

36  local  crime  committed  subsequent  to  his  release  on  parole  and  who 

37  has  been  sentenced  for  such  crime  to  a  term  of  imprisonment  of 

38  more  than  one  hundred  and  eighty  days  and  who  has  had  placed 

39  against  him  a  detainer  on  a  warrant  issued  under  subsection  (a), 


92-465  O  -  77  -  76 


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272 

1  within  one  hundred  and  eighty  days  of  such  placement,  at  the 

2  prison  facility  in  which  he  is  confined. 

3  (d)  Eevocation  Hearing  Procedure. — Prior  to  the  holding  of 

4  the  revocation  hearing,  the  parolee  shall  be  given  reasonable  notice 
6  of  the  conditions  of  parole  alleged  to  have  been  violated,  and  of  the 

6  time,  place,  and  purpose  of  the  scheduled  hearing.  At  the  hearing,  the 

7  parolee  shall  be  apprised  of  the  evidence  against  him  and  shall  be 

8  given  opportunity : 

9  (1)  to  be  represented  by  retained  counsel,  or,  if  he  is  unable  to 

10  retain  counsel,  by  counsel  provided  pursuant  to  the  provisions  of 

11  chapter  34; 

12  (2)  to  appear,  to  testify,  and  to  present  witnesses  and  docu- 

13  mentary  evidence  on  his  own  behalf ;  and 

14,  (3)  to  confront  and  cross-examine  adverse  witnesses,  if  he  so 

15  requests,  unless  the  Parole  Commission  specifically  finds  good 

16  cause  for  declining  to  allow  confrontation. 

17  Any  relevant  evidence  may  be  received  and  considered  at  the  hearing, 

18  regardless  of  its  admissibility  under  the  Federal  Kules  of  Evidence, 

19  except  to  the  extent  that  receipt  and  consideration  of  such  evidence 

20  for  purposes  of  parole  revocation  is  expressly  limited  by  a  section  of 

21  this  title  relating  to  parole  or  any  other  provision  of  law.  At  the  con- 

22  elusion  of  the  hearing,  the  Commission  shall  determine  on  the  evidence 

23  before  it  whether  the  parolee  has  violated  a  condition  of  his  parole. 

24  "(e)  Disposition. — If  the  Parole  Commission  determines  that  the 

25  parolee  has  not  violated  a  condition  of  his  parole,  the  warrant  shall 

26  be  withdrawn.  If  the  Commission  determines  that  the  parolee  has 

27  violated  a  condition  of  his  parole,  it  may,  after  considering  any  perti- 

28  nent  policy  statements  concerning  parole  issued  by  the  Sentencing 

29  Commission  pursuant  to  28  U.S.C.  994(f)  : 

30  "(1)  continue  him  on  parole,  with  or  without  extending  the  term 

31  or  modifying  or  enlarging  the  conditions ;  or 

32  "(2)  revoke  parole,  if  such  continuation,  extension,  modification,  or 

33  enlargement  is  inappropriate  in  its  opinion,  and  order  the  parolee 

34  imprisoned  for: 

35  "(A)  the  term  of  the  original  sentence  minus  the  portion  of 

36  the  original  sentence  served  in  confinement  prior  to  the  parole ;  or 

37  "(B)  the  contingent  term  of  imprisonment  provided  in  section 

38  2303. 

39  In  determining  the  appropriate  disposition,  the  Commission  shall  con- 

40  sider  whether  the  violation  was  serious  and  whether  the  violation  had 

41  been  preceded  by  other  violations. 


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1  "(f)  Digest  of  Proceedings. — In  any  case  in  which  parole  is  modi- 

2  fied  or  revoked,  the  Parole  Commission  shall  prepare,  and  shall  give  to 

3  the  parolee,  a  digest  of  the  factors  considered  by  the  Commission  and 

4  of  the  reasons  for  the  disposition  ordered  by  the  Commission. 

5  "(g)  Delayed  Adjudication. — Tlie  power  of  the  Parole  Commis- 

6  sion  to  revoke  parole  for  violation  of  a  condition  of  parole  extends 

7  beyond  the  expiration  of  the  term  of  parole  for  any  period  reasonably 

8  necessary  for  the  adjudication  of  matters  arising  before  its  expiration 

9  if,  prior  to  its  expiration,  a  warrant  or  summons  has  been  issued  on  the 

10  basis  of  an  allegation  of  such  violation. 

11  "(h)   Credit  upon  Reimprisonment. — Credit  shall  be  given  for 

12  reimprisonment  of  a  parolee  beginning  on  the  date  he  is  returned  to 

13  vhe  custody  of  the  Bureau  of  Prisons. 

14  "(i)  Reparole. — A  prisoner  who  has  been  reimprisoned  following 

15  revocation  of  parole  may  be  reparoled  by  the  Parole  Commission 

16  under  the  same  provisions  of  this  subchapter  that  govern  initial  parole, 

17  and  such  subsequent  parole  may  be  revoked  by  the  Commission  under 

18  the  same  provisions  of  this  subchapter  that  govern  initial  revocation. 

19  If  such  a  subsequent  parole  is  revoked,  the  parolee  may  be  reim- 

20  prisoned  for: 

21  "(1)  the  term  of  the  original  sentence  minus  the  portion  of  the 

22  original  sentence  served  in  confinement  prior  to  the  last  parole ;  or 

23  "(2)  the  contingent  term  of  imprisonment  provided  in  section 

24  2303  if  no  part  of  such  a  term  was  served  in  the  course  of  his  reim- 

25  prisonment  after  the  initial  revocation. 

26  "§  3836.  Appeal  from  Parole  Commission  Determination 

27  "(a)  Appeal  in  General. — In  any  case  in  which,  inconsistent  with 

28  the  guidelines  for  parole  issued  by  the  Sentencing  Commission  pur- 

29  suant  to  28  U.S.C.  994  (f)(1): 

30  "(1)  parole  is  denied; 

31  "  (2)  conditions  of  parole  are  imposed  other  than  those  set  forth 

32  or  incorporated  by  reference  in  section  3834(c)  ;  or 

33  "  (3)  parole  is  modified  or  revoked ; 

34  the  person  to  whom  such  decision  applies  may  file  with  the  National 

35  Appeals  Board  a  written  appeal  from  such  decision  not  later  than 

36  thirty  days  after  the  decision  is  rendered.  In  any  case  in  which,  incon- 

37  sistent  with  the  guidelines  concerning  parole  issued  by  the  Sentencing 

38  Commission  pursuant  to  28  U.S.C.  994(f)  (1),  any  decision  with  re- 

39  spect  to  parole  is  rendered,  the  Attorney  General  may  file  with  the 

40  National  Appeals  Board  a  written  appeal  from  such  decision  not  later 

41  than  thirty  days  after  the  decision  is  rendered.  An  appeal  shall  be 


9758 


274 

1  decided  by  a  majority  vote  of  the  three  commissioners  on  the  Xational 

2  Appeals  Board  within  sixty  days  after  receipt  of  the  appellant's 

3  papers. 

4  "(b)  Appeal  if  Origixal  Jurisdiction  Retained. — In  accordance 

5  with   regulations   and   rules  issued  by  the   Parole  Commission,   in 

6  any  case  in  which  original  jurisdiction  is  retained  by  the  Commission 

7  the  initial  decision  shall  be  made  by  a  majority  vote  of  a  panel  of  five 

8  commissioners.  The  panel's  decision  may  be  appealed  on  the  motion  of 

9  any  commissioner  on  the  panel,  or  on  the  application  of  the  individual 
10  to  whom  such  decision  applies,  or  on  the  motion  of  the  Attorney  Gen- 
ii eral,  directly  to  the  National  Appeals  Board,  which  shall  either  affirm 

12  the  decision  or  schedule  a  review  by  the  full  Commission. 

13  "(c)   Participant  in  Prior  Decision  Barred. — No  commissioner 

14  may  participate  as  a  member  of  the  National  Appeals  Board  in  the 

15  consideration  of  an  appeal  from  a  decision  in  which  he  had  earlier 

16  participated. 

17  "§3837.  Inapplicability  of  the  Administrative  Procedure  Act 

18  "The  provisions  of  5  U.S.C.  551  through  559,  and  701  through  706, 

19  do  not  apply  to  the  making  of  any  determination,  decision,  or  order 

20  under  this  subchapter. 

21  "PART  v.— ANCILLARY  CIVIL 

22  PROCEEDINGS 

"Chapter 

"40.  Ancillabt  Public  Civil  Proceedings. 

"41.  Ancillaby  Private  Civil  Proceedings. 

23  "Chapter  40.— ANCILLARY  PUBLIC   CIVIL  PROCEEDINGS 

"Subchapter 

"A.  Civil  Forfeiture. 

"B.  Civil  Restraint  of  Racketeering. 

"C.  Injunctions. 

24  "Subchapter  A. — Civil  Forfeiture 

"Sec. 
•    "4001.  Civil  Forfeiture  Proceeding. 
"4002.  Protective  Order 
"4003.  E.\ecution  of  Civil  Forfeiture. 
"4004.  Applicability  of  Other  Civil  Forfeiture  Provisions. 
"4005.  Definitions  for  Subchapter  A. 

25  "§4001.  Civil  Forfeiture  Proceeding 

26  "(a)  Property  Subject  to  Forfeiture. — In  addition  to  a  proceed- 

27  ing  under  any  other  act  of  Congress,  the  Attorney  General  may  initiate 

28  in  a  district  court  of  the  United  States  an  in  rem  civil  proceeding  to 

29  liave  seized  and  forfeited  to  the  United  States  any  property,  or  the 

30  value  thereof  where  specified,  used,  intended  for  use,  or  possessed  in 

31  the  course  of  an  offense  described  in  section: 


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275 

1  "(1)    1204   (Violating  Neutrality  by  Causing  Departure  of  a 

2  Vessel  or  Airci-aft) ,  if  the  property  consists  of  a  vessel  or  aircraf6 

3  or  its  contents ; 

4  "(2)  1206  (a)  (2)  or  (a)  (3)   (Engaging  in  an  Unlawful  Inter- 

5  national  Transaction)  if  the  property  consists  of  property  being 

6  introduced  into  or  exported  from  the  United  States  in  violation 

7  of  such  section,  or  the  value  thereof ; 

8  "(3)  1321  (Witness  Bribery),  1322  (Corrupting  a  Witness  or 

9  an  Informant ) ,  or  1323  (Tampering  with  a  Witness  or  an  Inform- 

10  ant),  if  the  property  consists  of  anything  of  value  given  or 

11  accepted  in  violation  of  such  section ; 

12  "(4)  1351  (Bribery)  or  1352  (Graft)  if  the  property  consists 

13  of  anything  of  value  given  or  accepted  in  violation  of  such 

14  section ; 

15  "(5)   1411  (Smuggling)   if  the  property  consists  of  an  object 

16  introduced,  or  being  introduced,  into  the  United  States,  or  the 

17  value  thereof ; 

18  "(6)  1412  (Trafficking  in  Smuggled  Property)  if  the  property 

19  consists  of  an  object  introduced,  or  being  introduced,  into  the 

20  United  States,  or  the  value  thereof ; 

21  "(7)    1413    (Receiving  Smuggled  Property)   if  the  property 

22  consists  of  an  object  introduced,  or  being  introduced,  into  the 

23  United  States,  or  the  value  thereof ; 

24  "(8)  1511  (Obstructing  an  Election),  1512  ( Obstructing  Regis- 

25  tration),  1516  (Soliciting  a  Political  Contribution  as  a  Federal 

26  Public  Servant  or  in  a  Federal  Building),  or  1517  (Making  a 

27  Political  Contribution  as  a  Foreign  National),  if  the  property 

28  consists  of  anything  of  value  given  or  received  in  violation  of 

29  such  section ; 

30  "(9)    1521   (Eavesdropping),  1522   (Trafficking  in  an  Eaves- 
Si  dropping  Device),  or  1523   (Possessing  an  Eavesdropping  De- 

32  vice),  if  the  property  consists  of  an  eavesdropping  device; 

33  "(10)   1715  (Possessing  Burglar's  Tools)  if  the  property  con- 

34  sists  of  an  object  that  is  designed  for,  or  commonly  used  for,  the 

35  facilitation  of  a  forcible  entry  in  the  course  of  an  offense  described 

36  in  section  1711, 1712, 1713,  or  1714; 

37  "(11)  1734  (Executing  a  Fraudulent  Scheme)  if  the  property 
3g  consists  of  fraudulently  advertised  property ; 

39  "(12)   1738   (Consumer  Fraud)   if  the  property  consists  of  a 

40  fraudulently  advertised  property ; 


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1  "(13)    1741    (Counterfeiting)    if  the  property  consists  of  a 

2  counterfeited  written  instrument ; 

3  "(14)    1742    (Forgery)   if  the  property  consists  of  a  forged 

4  written  instrument ; 

5  "(15)  1745  (Trafficking  in  a  Counterfeiting  Implement)  if  the 

6  property  consists  of  a  counterfeiting  or  forging  implement; 

7  "(16)  1751   (Commercial  Bribery),  1752  (Labor  Bribery),  or 

8  1753  (Sports  Bribery),  if  the  property  consists  of  anything  of 

9  value  given  or  accepted  in  violation  of  such  section ; 

10  "(1*?)  1821  (Explosives  Offenses)  if  the  property  consists  of 

11  an  explosive; 

12  "(18)   1822  (Firearms  Offenses)  if  the  property  consists  of  a 

13  firearm  or  ammunition ; 

14  "(19)  1823  (Using  a  Weapon  in  the  Course  of  a  Crime)  if  the 

15  property  consists  of  a  firearm  or  a  destructive  device ; 

16  "(20)  1841  (Engaging  in  a  Gambling  Business)  if  the  property 

17  consists  of  other  than  real  property,  or 

18  "(21)  1842  (Disseminating  Obscene  Material)  if  the  property 

19  consists  of  obscene  material. 

20  "(b)  Order  of  FoRrEiTtiRE. — If  the  court  finds,  by  a  preponderance 

21  of  the  evidence,  that  the  property  that  is  the  subject  of  the  proceeding 

22  liad  been  used,  intended  for  use,  or  possessed  in  the  coui-se  of  an  of- 

23  fense  set  forth  in  subsection  (a),  and  that  the  property  consists  of  an 

24  object  set  fortli  in  subsection  (a),  the  court  shall  order  such  property 

25  to  be  forfeited  to  the  United  States. 

26  §  4002.  Protective  Order 

27  "At  any  time  after  the  initiation  of  a  proceeding  under  section  4001 . 

28  the  court  may  enter  a  restraining  order  or  injunction,  may  require  a 

29  performance  bond,  and  may  take  such  other  action  as  is  in  the  interest 

30  of  justice,  with  respect  to  any  property  subject  to  civil  forfeiture. 

31  "§4003.  Execution  of  Civil  Forfeiture 

32  "The  Attorney  General,  upon  such  terms  and  conditions  as  are  in. 

33  the  interest  of  justice,  Shall  seize  property  that  a  defendant  has  been 

34  ordered  to  forfeit  to  the  United  States,  pursuant  to  section  4001,  and 

35  shall,  pursuant  to  regulations  issued  by  the  Attorney  General,  sell,  re- 

36  tain,  destroy,  or  make  other  approj^riate  disposition  of  such  property. 

37  making  due  provision  for  the  rights  of  any  innocent  person.  If  any 

38  property  is  not  disposed  of  for  value  the  rights  to  such  property  shall 

39  not  revert  to  the  defendant. 


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1  "§  4004.  Applicability  of  Other  Civil  Forfeiture  Provisions 

2  "Except  to  the  extent  that  they  are  inconsistent  with  the  provisions 

3  of  this  subchapter,  all  provisions  of  law  relating  to  the  remission  or 

4  mitigation  of  civil  forfeitures  of  property  for  violation  of  the  customs 

5  laws,  the  compromise  of  claims  with  respect  to  such  property,  the 

6  disposition  of  such  property,  the  proceeds  from  the  sale  of  such  prop- 

7  erty,  and  the  award  of  compensation  to  informants  with  respect  to 

8  such  property,  shall  apply  to  civil  forfeitures  incurred,  or  alleged 

9  to  have  been  incurred,  under  this  section.  The  duties  imposed  upon 

10  a   customs   officer   or  any   other   person   with   respect  to  the  civil 

11  seizure,  forfeiture,  and  disposition  of  property  under  the  customs  laws 

12  shall,  with  respect  to  property  used,  intended  for  use,  or  possessed  in 

13  violation  of  subsection  (a) ,  be  performed  by  the  Attorney  General. 

14  "§  4005.  Definitions  for  Subchapter  A 

15  As  used  in  this  subchapter : 

16  "(a)   'counterfeited  written  instrument'  has  the  meaning  set 

17  forth  in  section  1746(a) ; 

18  "(b)  'counterfeiting  implement'  has  the  meaning  set  forth  in 

19  section  1746(b); 

20  "(c)  'eavesdropping  device'  has  the  meaning  set  forth  in  section 

21  1526(c); 

22  "(d)  'forged  written  instrument'  has  the  meaning  set  forth  in 

23  section  1746(c)  ; 

24  "(e)  'forging  implement'  has  the  meaning  set  forth  in  section 

25  1746(d); 

26  "(f)    'introduce'  has  the  meaning  set  forth  in  section  1414 

27  (a)(1); 

28  "(g)  'object'  has  the  meaning  set  forth  in  section  1414(a)  (2) ; 

29  "(h)   'obscene  material'  has  the  meaning  set  forth  in  section 

30  1842(b)(4). 

31  "Subchapter  B. — Civil  Restraint  of  Racketeering 

"Sec. 

"4011.  Civil  Action  to  Restrain  Racketeering. 

"4012.  Civil  Restraint  Procedure. 

"4013.  Civil  Investigative  Demand. 

32  "§  4011.  Civil  Action  to  Restrain  Racketeering 

33  "(a)  Initiation  of  Action. — The  Attorney  General  may  initiate  a 

34  civil  proceeding  to  prevent  and  restrain  offenses  under  section  1801 

35  (Operating  a  Racketeering  Syndicate),  1802  (Racket«ering),  or  1803 

36  (Washing  Racketeering  Proceeds) . 


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1  "(b)  Jurisdiction. — The  district  courts  of  the  United  States  have 

2  jurisdiction  to  hear  and  determine  proceedings  initiated  under  this 

3  section,  and  to  prevent  and  restrain  the  offenses  set  forth  in  subsection 

4  (a) .  In  a  proceeding  initiated  under  this  section,  the  court  shall  proceed 

5  as  soon  as  practicable  to  the  hearing  and  determination  thereof. 

6  "(c)  Protective  Orders. — At  any  time  after  the  initiation  of  a  pro- 

7  ceeding  under  this  section,  the  court  may  enter  a  restraining  order  or 

8  injunction,  may  require  a  performance  bond,  and  may  take  such  other 

9  action  as  is  in  the  interest  of  j  ustice. 

10  "(d)  Estoppel. — A  conviction  of  a  defendant  for  an  offense  under 

11  section  1801  (Operating  a  Racketeering  Syndicate),  1802  (Racketeer- 

12  ing),  or  1803  (Washing  Racketeering  Proceeds)  shall,  as  a  final  judg- 

13  ment  or  decree  rendered  in  favor  of  the  United  States,  estop  the  de- 

14  fendant  from  denying  the  essential  allegations  of  the  criminal  offense 

15  in  any  subsequent  civil  proceeding  brought  by  the  United  States  under 

16  this  section  or  by  a  person  under  section  4101. 

17  "(e)  Final  Orders. — Upon  the  determination  of  a  proceeding  under 

18  this  section  in  favor  of  the  United  States,  the  court  may  issue  appro- 

19  priatc  orders,  including  an  order : 

20  "(1)  directing  a  person  to  divest  himself  of  an  interest,  direct 

21  or  indirect,  in  an  enterprise ; 

22  "  (2)  imposing  reasonable  restrictions  on  the  future  activities  or 

23  investments  of  a  person,  including  a  prohibition  against  a  person's 

24  engaging  in  an  endeavor  of  the  same  kind  as  the  enterprise  en- 

25  gaged  in ; 

26  "(3)  directing  dissolution  or  reorganization  of  an  enterprise, 

27  making  due  provision  for  the  rights  of  an  innocent  person. 

28  "§4012.  Civil  Restraint  Procedure 

29  "(a)  Venue. — A  proceeding  under  section  4011  or  4101  may  be 

30  initiated  in  a  United  States  District  Court  for  any  district  in  which 

31  the  defendant  in  the  proceeding  resides,  is  found,  has  an  agent,  or 

32  transacts  affairs. 

38  "(b)  Issuance  of  Process. — In  a  proceeding  under  section  4011  or 

34  4101,  if  it  is  shown  that  the  interest  of  justice  requires  that  any  other 

35  party  residing  in  another  district  be  brought  before  the  court,  the 

36  court  may  cause  such  party  to  be  summoned,  and  process  for  that  pur- 

37  pose  may  be  served  in  any  judicial  district  of  the  United  States  by  the 

38  United  States  marshal  in  such  district. 

39  "(c)   Service  of  Process. — In  a  proceeding  under  section  4011  or 

40  4101,  a  subpoena  issued  by  the  court  to  compel  the  attendance  of  a 

41  witness  may  be  served  in  any  other  judicial  district,  but  no  such  sub- 


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1  poena  shall  be  -issued  for  service  upon  an  individual  who  resides  in 

2  another  district  at  a  place  more  than  one  hundred  miles  from  the 

3  place  at  which  the  court  is  held  without  approval  by  a  judge  of  such 

4  court  upon  a  showing  of  good  cause.  All  other  process  may  be  served 

5  on  a  person  in  any  judicial  district  in  which  the  person  resides,  is 

6  found,  has  an  agent,  or  transacts  affairs. 

7  "(d)   Expedited  Action. — In  a  proceeding  under  section  4011  or 

8  4101,  the  Attorney  General  may  file  with  the  clerk  of  the  court  a 

9  certificate  stating  that  in  his  opinion  the  case  is  of  general  public 

10  importance.  A  copy  of  the  certificate  shall  be  furnished  immediately 

11  by  the  clerk  to  the  chief  judge,  or  in  his  absence  to  the  presiding  dis- 

12  trict  judge,  of  the  district  in  which  the  proceeding  is  pending.  Upon 

13  receipt  of  the  copy,  the  judge  shall  designate  immediately  a  judge  of 

14  that  district  to  hear  and  determine  the  proceeding.  The  judge  so 

15  designated  shall  assign  the  proceeding  for  hearing  as  soon  as  practi- 

16  cable,  shall  participate  in  the  hearing  and  determination,  and  shall 

17  otherwise  cause  the  proceeding  to  be  expedited. 

18  "(e)   Open  or  Closed  Proceedings. — A  proceeding  under  section 

19  4011  may  be  open  or  closed  to  the  public,  at  the  discretion  of  the  court, 

20  after  consideration  of  the  rights  of  the  persons  affected. 

21  "§4013.  Civil  Investigative  Demand 

22  "(a)  Issuance  OF  Demand. — If  the  Attorney  General  has  reason  to 

23  believe  that  a  person  may  be  in  possession,  custody,  or  control  of  any 

24  documentary  material  that  may  be  relevant  to  a  civil  proceeding  under 

25  section  4011,  he  may,  prior  to  the  initiation  of  such  proceeding,  issue 

26  in  writing  and  cause  to  be  served  on  the  person  a  civil  investigative 

27  demand  requiring  the  person  to  produce  such  material  for  examination. 

28  The  civil  investigative  demand  shall : 

29  "(1)   state  the  character  of  the  conduct  under  investigation  and 

30  the  provision  of  law  applicable ; 

31  "  (2)   describe  the  class  of  documentary  material  to  be  produced 

32  with  sufficient  definiteness  to  enable  the  material  to  be  fairly 

33  identified; 

34  "  (3)  state  that  the  demand  is  returnable  forthwith  or  prescribe 

35  a  return  date  that  provides  a  reasonably  sufficient  period  of  time 

36  within  which  the  material  can  be  assembled  and  made  available 

37  for  inspection  and  copying  or  reproduction ;  and 

38  "(4)   identify  the  document  custodian  to  whom  the  material 

39  is  to  be  made  available. 

40  "(b)  Limitations. — No  civil  investigative  demand  may  contain  a 

41  requirement  that  would  be  held  to  be  unreasonable  li  contained  in  a 


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1  subpoena  duces  tecum  issued  by  a  court  of  the  United  States  in  aid  of  a 

2  grand  jury  investigation. 

3  "(c)  Service. — Service  of  a  civil  investigative  demand  or  a  petition 

4  filed  under  this  section  may  be  made  upon  a  person  by : 
6  "(1)  delivering  an  executed  copy  to  the  person ; 

6  "(2)  delivering  an  executed  copy  to  the  person's  agent  or  to 

7  another  person  authorized  by  appointment  or  by  law  to  receive 

8  service  of  process  on  behalf  of  the  person ; 

9  "(3)  delivering  an  executed  copy  to  the  principal  office  or  place 

10  of  business  of  the  person ;  or 

11  "(4)  sending  an  executed  copy  by  registered  or  certified  mail 

12  addressed  to  the  person  at  his  principal  office  or  place  of  business. 

13  A  verified  return  by  the  person  serving  the  demand  or  petition,  setting 

14  forth  the  manner  of  service,  is  prima  facie  evidence  of  service.  A  return 

15  reflecting  service  by  registered  or  certified  mail  shall  be  accompanied 

16  by  the  return  post  office  receipt  of  delivery  of  the  demand. 

17  "(d)  Custody.— 

18  "(1)  The  Attorney  General  shall  designate  a  person  to  serve 

19  as  document  custodian,  and  such  additional  persons  as  are  neces- 

20  sary  to  serve  as  deputies  to  the  document  custodian. 

21  "(2)   A  person  upon  whom  a  civil  investigative  demand  has 

22  been  served  shall,  at  his  principal  place  of  business  and  on  the 

23  return  date  specified  in  the  demand,  make  the  material  available 

24  for  inspection  and  copying  or  reproduction  by  the  custodian 

25  designated.  Upon  written  agreement  between  the  person  and  the 

26  custodian,  or  upon  order  of  the  court,  the  material  may  be  made 

27  available  at  such  other  place  and  at  such  later  date  as  is  agreed 

28  upon  or  ordered,  and  the  person  may  substitute  a  copy  for  an 

29  original  of  all  or  any  part  of  the  material. 

30  "(3)  The  custodian  to  whom  the  material  is  delivered  shall  take 

31  physical  possession  and  shall  be  responsible  for  the  use  made  of 

32  it  and  for  its  return.  The  custodian  may  prepare  as  many  copies 

33  of  such  documentary  material  as  may  be  required  for  official  use, 

34  under  regulations  issued  by  the  Attorney  General.  "Wliile  in 

35  the  possession  of  the  custodian,  no  material  so  produced  shall  be 

36  available  for  examination  by  any  person  other  than  the  Attorney 

37  General,  without  the  consent  of  the  person  who  produced  the 

38  material.  The  material  in  the  possession  of  the  custodian  shall  be 

39  made  available  for  examination  by  the  person  who  produced  the 

40  material,  or  his  representative,  under  such  reasonable  terms  and 

41  conditions  as  the  Attorney  General  shall  prescribe. 


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1  "(4)  The  custodian  shall,  upon  request,  deliver  the  material  in 

2  his  possession  to  an  attorney  for  the  government  who  has  deter- 

3  mined  that  the  material  is  needed  for  his  presentation  in  a  pro- 

4  ceeding  before  a  court  or  grand  jury.  Upon  the  conclusion  of  the 

5  proceeding,  the  attorney  shall  return  to  the  custodian  any  mate- 

6  rial  that  has  not  passed  into  the  control  of  the  court  or  grand 

7  jury  through  its  introduction  into  the  record  of  the  proceeding. 

8  "  (5)  Upon  the  completion  of : 

9  "(A)  the  investigation  for  which  material  was  produced 

10  under  this  section;  and 

11  "(B)  any  proceeding  arising  from  the  investigation ; 

12  the  custodian  shall  return,  to  the  person  who  produced  the  ma- 

13  terial,  all  the  material  that  has  not  passed  into  the  control  of  a 

14  court  or  grand  jury  through  its  introduction  into  the  record  of 

15  the  proceeding.  A  copy  made  under  this  subsection  need  not  be 

16  returned. 

17  "(6)  If  no  proceeding  has  been  instituted  within  a  reasonable 

18  time  after  completion  of  the  examination  and  analysis  of  all  evi- 

19  dence  assembled  in  the  course  of  the  investigation,  the  person  who 

20  produced  the  material  shall  be  entitled,  upon  written  demand 

21  made  upon  the  Attorney  General,  to  the  return  of  all  the  material 

22  produced  by  him.  A  copy  made  under  this  subsection  need  not  be 

23  returned. 

24  "(e)  Enforcement. — 

25  *'  ( 1 )  If  a  person  fails  to  comply  with  a  civil  investigative  de- 

26  /   mand  served  upon  him  pursuant  to  the  provisions  of  this  section, 

27  /     or  if  satisfactory  copying  or  reproduction  of  any  material  cannot 

28  /       be  done  and  the  person  refuses  to  surrender  the  material,  the 

29  Attorney  General  may  file  and  serve  upon  the  person  a  petition 

30  for  an  enforcement  order.  The  petition  shall  be  filed  in  a  district 

31  court  of  the  United  States  for  the  judicial  district  in  which  the 

32  person  resides,  is  found,  has  an  agent,  or  transacts  his  affairs. 

33  If  the  person  transacts  business  in  more  than  one  judicial  district, 

34  the  petition  shall  be  filed  in  the  district  in  which  the  person  main- 

35  tains  his  principal  place  of  business,  or  in  such  other  district  in 

36  which  the  person  transacts  business  as  may  be  agreed  upon  by 

37  the  parties  to  the  petition. 

38  "(2)  Within  twenty  days  after  the  service  of  a  civil  investiga- 

39  tive  demand  upon  a  person,  or  at  any  time  before  the  return  date 

40  specified  in  the  demand,  whichever  period  is  less,  the  person  may 

41  file  and  serve  upon  the  Attorney  General  a  petition  for  an  order 


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1  modifying  or  setting  aside  the  demand.  The  time  allowed  for 

2  compliance  with  the  demand  shall  not  rim  while  the  petition 

3  is  pending  in  the  court.  The  petition  shall  specify  each  ground 

4  upon  which  the  petitioner  relies  in  seeking  relief.  The  petition 

5  may  be  based  upon  a  failure  of  the  demand  to  comply  with  the 

6  provisions  of  this  section  or  upon  any  constitutional  or  other 

7  legal  right  or  privilege  of  the  person. 

8  "(3)  At  any  time  during  which  the  document  custodian  has 

9  custody  or  control  of  material  delivered  by  a  person  in  compli- 

10  ance  with  a  civil  investigative  demand,  the  person  may  file  and 

11  serve  upon  the  custodian  a  petition  for  an  order  requiring  the 

12  performance  by  the  custodian  of  a  duty  imposed  upon  him  by 

13  this  section. 

14  "(f)  Jurisdiction^. — A  district  court  of  the  United  States  in  which 

15  a  petition  is  filed  under  this  section  has  jurisdiction  to  hear  and 

16  determine  the  matter  so  presented,  and  to  enter  such  order  as  may  be 

17  required  to  effectuate  the  provisions  of  this  section. 

18  "Subchapter  C. — Injunctions 

"Sec. 

"4021.  Injunctions  against  Fraud. 

19  "§  4021.  Injunctions  against  Fraud 

20  "Upon  evidence  satisfactory  to  the  Attorney  General  that  a  person  is 

21  engaged  in  an  act  or  practice  that  constitutes  or  could  constitute  a 

22  violation  of  section  1734  (Executing  a  Fraudalent  Scheme),  or  1738 

23  (Consumer  Fraud),  the  Attorney  General  may  bring  an  action  in  a 

24  district  court  of  the  United  States  to  enjoin  such  act  or  practice,  and, 

25  upon  a  proper  showing,  a  permanent  or  temporary  injunction  or  re- 

26  straining  order  shall  be  granted  by  the  court  together  with  such  other 

27  equitable  relief  as  may  be  appropriate. 

28  "Chapter  41.— ANCILLARY  PRIVATE  CIVIL  REMEDIES 

"Subchapter 

"A.  Private  Actions  for  Damages. 

"B.  Actions  for  Compensation  of  Victims  of  Crime. 

29  "Subchapter  A. — Private  Actions  for  Damage 

"Sec. 

"4101.  Civil  Action  against  a  Racketeering  Offender. 

"4102.  Civil  Action  against  a  Fraud  Offender. 

"4103.  Civil  Action  against  an  Eavesdropping  Offender. 

30  "§  4101.  Civil  Action  against  a  Racketeering  Offender 

31  "A  person  injured  in  his  business  or  property  by  reason  of  a  viola- 

32  tion  of  section  1801   (Operating  a  Racketeering  Syndicate),  1802 


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1  (Racketeering) ,  or  1803  (Washing  Racketeering  Proceeds)  shall  have 

2  a  civil  cause  of  action  against  an  offender  in  an  appropriation  district 

3  court  of  the  United  States  and  shall  be  entitled  to  recover ; 

4  "(a)   three  times  the  damages  sustained ;  and 

5  "(b)   a  reasonable  attorney's  fee  and  other  litigation  costs  rea- 

6  sonably  incurred. 

7  "§  4102.  Civil  Action  against  a  Fraud  Offender 

8  "A  person  injured  in  his  business  or  property  by  reason  of  a  viola- 

9  tion  of  section  1734  (Executing  a  Fraudulent  Scheme)  or  1738  (Con- 

10  sumer  Fraud)  shall  have  a  civil  cause  of  action  against  a  convicted 

11  offender  in  an  appropriate  district  court  of  the  United  States  and  shall 

12  be  entitled  to  recover : 

13  "  (a)  three  times  the  damages  sustained ;  and 

14  "(b)  a  reasonable  attorney's  fee  and  other  litigation  costs  rea- 

15  sonably  incurred. 

16  "§  4103.  Civil  Action  against  an  Eavesdropping  Offender 

17  "(a) Civil,  Action. — A  person  whose  private  oral  communication  is 

18  intercepted,  disclosed,  or  used  in  violation  of  section  1521   (Eaves- 

19  dropping)  shall  have  a  civil  cause  of  action  against  an  offender  in  an 

20  appropriate  district  court  of  the  United  States  and  shall  be  entitled  to 

21  recover : 

22  "(1)  actual  damages,  but  not  less  than  liquidated  damages  of 

23  $1,000  or  of  $100  per  day  for  each  day  of  violation,  whichever  is 

24  the  greater; 

25  "(2)  punitive  damages;  and 

26  "(3)  a  reasonable  attorney's  fee  and  other  litigation  costs  rea- 

27  sonably  incurred. 

28  "(b)  Affirmative  Defense. — It  is  an  affirmative  defense  to  a  civil 

29  proceeding  brought  under  this  section  or  any  other  provision  of  law 

30  that  the  defendant  acted  in  reasonable  reliance  on  a  court  order  or  leg- 

31  islative  authorization  and  believed  in  good  faith  that  his  conduct  did 

32  not  constitute  an  offense. 

33  "Subchapter  B. — Actions  for  Compensation  of  Victims  of 

34  Crime 

"Sec. 

"4111.  Establishment  of  a  Victim  Compensation  Fund. 

"4112.  Claim  for  Compensation. 

"4113  Limitation  on  Compensation. 

"4114.  Subrogation. 

"4115.  Definitions  for  Subchapter  B. 


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1  "§4111.  Establishment  of  a  Victim  Compensation  Fund 

2  "There  is  established  in  the  Treasury  of  the  United  States  a  revolv- 

3  ing  fund,  to  be  known  as  the  Victim  Compensation  Fund,  that  shall 

4  be  the  depository  of : 

5  "(a)  all  criminal  fines  paid  in  the  courts  of  the  United  States; 

6  "(b)  all  funds  reimbursed  pursuant  to  section  4112(e)  or  4113 
r  (e)(2); 

8  "(c)  all  funds  collected  as  a  result  of  actions  instituted  pursu- 

9  ant  to  section  41 14 ;  and 

10  "(d)   all  contributions  to  such  Fund  from  public  or  private 

11  sources. 

12  "§4112.  Claim  for  Compensation 

13  "(a)  Claim. — The  victim  of  an  offense  described  in  chapter  16  over 

14  which  federal  jurisdiction  exists,  or  of  an  attempt  to  commit  such 

15  an  offense,  or  a  surviving  dependent  of  such  a  victim,  may  file  a  claim 
Ig  with  the  United  States  Victim  Compensation  Board  for  compensation 
lY  in  accordance  with  this  subchapter. 

18  "(b)  Hearing  on  Claim. — A  hearing  on  a  claim  filed  under  this 

19  subchapter  shall  be  open  to  the  public  unless  the  Board  determines 

20  that,  in  the  interest  of  justice,  the  hearing,  or  a  portion  of  the  hearing, 

21  should  not  be  open  to  the  public. 

22  "(c)  Scope  of  Compensation. — The  Board,  subject  to  the  provisions 

23  of  section  4113,  shall  order  the  payment  of  compensation  to : 

24  "  (1)  S'  victim  who  has  suffered  personal  injury  as  a  result  of  the 

25  offense ; 

26  "(2)  the  estate  of  a  victim  who  has  suffered  personal  injury 

27  as  a  result  of  the  offense ;  or 

28  "(3)  a  surviving  dependent  of  a  victim  who  has  suffered  death 

29  as  a  result  of  the  offense. 

30  "(d)  Amount  and  Payment  of  Compensation. — The  Board  shall 

31  determine  the  amount  of,  and  shall  order  payment  of  compensation 

32  for  pecuniary  loss  to  be  awarded  to  a  claimant.  If  the  pecuniary  loss 

33  occasioned  by  loss  of  anticipated  earnings  or  support  continues  for  a 

34  period  of  ninety  days  or  more,  payment  for  the  loss  may  be  in  the  form 

35  of  periodic  payments  during  the  period  for  which  the  loss  continues 

36  or  during  a  period  of  ten  years,  whichever  is  less. 

37  "(e)  Emergency  Compensation. — If,  prior  to  taking  final  action 

38  upon  a  claim,  the  Board  determines  that  such  claim  is  one  with  respect 
39.  to  which  compensation  will  probably  be  ordered  to  be  paid,  the  Board 

40  may  order  emergency  compensation  to  be  paid,  not  to  exceed  $1,500, 

41  pending  final  action  on  the  claim.  The  amount  of  any  emergency 


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1  compensation  ordered  and  paid  shall  be  dedufeted  from  the  amount 

2  of  any  final  order  for  compensation.  If  the  amount  of  any  emergency 

3  compensation  ordered  and  paid  exceeds  the  amount  of  the  final  order 

4  for  compensation,  or  if  no  final  order  for  compensation  is  made,  the 

5  claimant  may  be  ordered  to  make  reimbursement  to  the  Fund  of  the 

6  difference  between  such  amounts. 

7  "(f)    Reconsideration  of  Claim. — The  Board  at  any  time  may 

8  reconsider  a  claim  and  modify  or  rescind  an  order  for  the  payment  of 

9  compensation  based  upon  a  change  in  circumstances  of  the  claimant. 

10  "  (g)  Bar  to  Claim. — No  claim  may  be  brought  under  this  subchap- 

11  ter  if  the  injury  or  the  death  was  caused  by  the  operation  of  a  vehicle, 

12  unless  the  injury  or  death  was  intentionally  inflicted  through  the  use 

13  of  the  vehicle,  or  unless  the  vehicle  was  an  implement  used  in  the  com- 

14  mission  of  an  offense  to  which  this  subchapter  applies. 

15  "(h)  Bar  to  Claim  Precluded. — It  is  not  a  bar  to  a  claim  brought 

16  under  this  subchapter  that,  by  reason  of  immaturity,  incompetency,  or 

17  otherwise,  the  person  engaging  in  the  conduct  that  caused  the  injury 

18  or  death  could  not  be  convicted  for  the  offense. 

19  "(i)   Other  Rights  Unaffected. — -Except  as  otherwise  provided, 

20  the  availability  or  payment  of  compensation  under  this  subchapter 

21  does  not  affect  the  right  of  any  person  to  recover  damages  from  any 

22  other  person  by  a  civil  action  for  the  injury  or  death. 

23  "(j)   Execution  or  Attachment  Barred. — An  order  for  the  pay- 

24  ment  of  compensation  under  this  subchapter  is  not  subject  to  execution 

25  or  attachment. 

26  "§4113.  Limitation  on  Compensation 

27  "(a)  Prerequisites  to  Recovery  of  Compensation. — An  order  for 

28  the  payment  of  compensation  under  this  subchapter  shall  not  be  made 

29  unless : 

30  "(1)  the  offense  giving  rise  to  the  claim  was  reported  to  a  law 

31  enforcement  officer  within  seventy-two  hours  after  its  occurrence, 

32  unless  the  Board  finds  that  the  failure  to  report  within  such  time 

33  was  justified  by  good  cause; 

34  "(2)   the  claim  is  filed  within  one  year  after  the  date  of  the 

35  offense  giving  rise  to  the  claim,  unless  the  Board  finds  that  the 

36  failure  to  file  tlie  claim  within  such  time  was  justified  by  good 

37  cause;  and 

38  "(3)  the  claimant  has  suffered  a  pecuniary  loss  exceeding  $100 

39  or  an  amount  equal  to  a  week's  earnings  or  support,  whichever 

40  is  less,  as  a  proximate  cause  of  the  offense  giving  rise  to  the  claim. 


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1  "(b)  Maximum  Amount  of  Compensation. — An  order  for  the  pay- 

2  ment  of  compensation  for  pecuniary  loss  under  this  subchapter  maj' 

3  not  exceed  a  total  of  $50,000,  including  lump-sum  payments  and  pe- 

4  riodic  payments,  for  each  incident  involving  an  offense  against  a 

5  victim. 

6  "(c)  Responsibility  of  Victim  or  Ci-aimant  for  the  Offense. — 

7  The  Board,  in  determining  whether  to  order  payment  of  compensation 

8  and  the  amount  of  compensation  to  be  ordered,  shall  consider  the 

9  behavior  of  the  victim  or  claimant  with  regard  to  the  circumstances 

10  of  the  offense  giving  rise  to  the  claim,  shall  determine  whether  the 

11  victim  or  claimant  bears  any  share  of  responsibility  for  the  offense 

12  because  of  provocation  or  otherwise,  and  shall : 

13  "(1)   reduce  the  amount  of  compensation  to  the  claimant  in 

14  accordance  with  its  assessment  of  the  degree  of  such  responsibility 

15  attributable  to  the  victim  or  claimant ;  or 

16  "(2)   deny  compensation  if  the  behavior  of  the  victim  or  claim- 

17  ant  was  a  substantial  contributing  factor  to  the  offense  giving  rise 

18  to  the  claim. 

19  "(d)  Continuing  Duty  OF  Victim  OR  Claimant  To  Cooperate. — 

20  The  Board,  upon  finding  that  a  victim  or  claimant  has  not  substan- 

21  tially  cooperated  with  all  government  agencies  involved  in  the  investi- 

22  gation  or  prosecution  of  the  offense  that  gave  rise  to  the  claim,  may 

23  deny,  rescind,  or  reduce  the  amount  of  any  order  for  the  payment  of 

24  compensation  under  this  subchapter. 

25  "(e)  Effect  of  Compensation  From  Other  Sources. — In  the  event 

26  that  a  claimant : 

27  "(1)  recovers  damages  from  any  other  source  based  upon  an 

28  offense  giving  rise  to  a  claim  under  this  section  and  subsequently 

29  files  a  claim  under  this  section  based  upon  such  offense,  in  deter- 

30  mining  the  amount  of  compensation  to  be  awarded  under  this 

31  section  such  damages  shall  be  assumed  to  compensate  for  losses 

32  other  than  pecuniary  losses  compensable  under  tliis  subchapt€r 

33  unless  the  damages  clearly  compensate  for  pecuniary  losses;  or 

34  "(2)  receives  compensation  under  this  section  and  subsequently 

35  recovers  damages  from  any  other  source  based  upon  the  offense 

36  that  gave  rise  to  compensation  under  this  section,  the  claimant 

37  shall  be  ordered  to  make  reimbursement  to  the  Fund  for  the  com- 

38  pensation  previously  paid  to  the  same  extent  that  compensation 

39  would  have  been  reduced  under  paragraph  (1)  had  recovery  pre- 

40  ceded  compensation. 


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1  "§4114.  Subrogation 

2  "The  Attorney  General  may,  within  three  years  after  the  entry  of  an 

3  order  for  the  payment  of  compensation  under  this  subchapter,  in- 

4  stitute,  against  an  offender  convicted  by  a  federal,  state,  or  local  court 

5  of  an  offense  giving  rise  to  a  claim  under  this  subchapter,  an  action  for 

6  the  I'ecovery  of  all  or  part  of  such  compensation  in  the  United  States 

7  District  Court  for  any  judicial  district  in  which  such  person  resides 

8  or  is  present.  A  conviction  of  a  defendant  by  a  federal  court  of  an 

9  offense  involving  the  act  giving  rise  to  a  claim  under  this  subsection 

10  shall  estop  the  defendant  from  denying  the  essential  allegations  of  the 

11  criminal  offense  in  any  subsequent  civil  proceeding  brought  by  the 

12  United  States  under  this  section.  Such  court  shall  have  jurisdiction  to 

13  hear,  determine,  and  render  judgment  in  any  such  action.  Any  amounts 

14  recovered  under  this  subsection  shall  be  forwarded  to  the  Treasury  of 

15  the  United  States  for  credit  to  the  Victim  Compensation  Fund. 

16  "§  4115.  Definitions  for  Subchapter  B 

17  "As  used  in  this  subchapter : 

18  "(a)  'dependent' means: 

19  "(1)  a  spouse; 

20  "(2)  an  individual  who  is  a  dependent  within  the  meaning 

21  of  section  152  of  the  Internal  Kevenue  Code  of  1954  (26 

22  U.S.C.  152) ;  or 

23  "(3)   a  posthumous  child ; 

24  "(b)   'pecuniary  loss' means : 

25  "  ( 1 )   in  the  case  of  personal  injury : 

26  "(-A-)  all  appropriate  and  reasonable  expenses  neces- 

27  sarily  incurred  for  ambulance,  hospital,  surgical,  nurs- 

28  ing,  dental,  prosthetic,  and  other  medical  and  related 

29  professional  services  relating  to  physical  or  psychiatric 

30  care,  including  non-medical  care  and  treatment  rendered 

31  in  accordance  with  a  recognized  method  of  healing; 

32  "(B)  all  appropriate  and  reasonable  expenses  neces- 

33  sarily  incurred  for  physical  and  occupational  therapy  and 

34  rehabilitation;  and 

35  "(C)  actual  loss  of  past  earnings  and  anticipated  loss 

36  of  future  earnings  because  of  a  disability  resulting  from 

37  the  personal  injury,  at  a  rate  not  to  exceed  $150  per  week, 

38  if  the  loss  continues  for  a  period  of  ninety  days  or  more ; 

39  and 


92-465  O  -  77  -  77 


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288 


1  "(2)  in  the  case  of  death : 

2  "(A)  all  appropriate  and  reasonable  expenses  neces- 

3  sarily  incurred  for  funeral  and  burial  expenses ;  and 

4  "(B)  loss  of  support  to  a  dependent  of  a  victim,  not 

5  otherwise  compensated  for  as  a  pecuniary  loss  for  per- 

6  sonal  injury,  for  such  period  of  time  as  the  dependency 

7  would  have  existed  but  for  the  death  of  the  victim,  at  a 

8  rate  not  to  exceed  a  total  of  $150  per  week  for  all  depend- 

9  ents ; 

10  "(c)  'personal  injury'  includes  bodily  injury,  pregnancy,  mental 

11  distress,  and  nervous  shock ;  and 

12  "(d)  'offense  described  in  chapter  16' does  not  include  an  offense 

13  over  which  there  is  federal  jurisdiction  only  because  the  offense 

14  affects,  delays,  or  obstructs  interstate  or  foreign  commerce  or  the 

15  movement  of  an  article  or  commodity  in  interstate  or  foreign  com- 

16  merce,  or  because  the  offense  occurred  during  the  commission  of 

17  an  offense  over  which  there  is  federal  jurisdiction  only  for  that 

18  reason,  unless  an  indictment  or  information  charging  such  an 

19  offense  is  filed  in  a  court  of  the  United  States." 

20  TITLE  II— MISCELLANEOUS 

21  AMENDMENTS 

22  PART    A— AMENDMENTS    RELATING    TO    COM- 

23  MERCE     AND     TRADE,     TITLE     15,     UNITED 

24  STATES    CODE 

25  AMENDMENTS  RELATING  TO  IMPORTATION,  MANUFACTURE,  DISTRIBUTION, 

26  AND    STORAGE    OF   EXPLOSIVE    MATERIALS 

27  Sec.  201.  (a)  Title  XI  of  the  Organized  Crime  Control  Act  of  1970 

28  (84  Stat.  952)  is  amended : 

29  (1)  by  redesignating  sections  1103  to  1107  as  sections  1110  to 

30  1114,  respectively ;  and 

31  (2)  by  deleting  section  1102. 

32  (b)  Sections  841  through  848  of  title  18,  United  States  Code,  as 

33  they  existed  on  the  day  before  the  effective  date  of  this  Act,  are  hereby 

34  reenacted  as  sections  1102  through  1109  of  title  XI  of  the  Organized 

35  Crime  Control  Act  of  1970  (8-1  Stat.  952)  and  amended  as  follows: 

36  (1)  Section  1102  (formerly  18  U.S.C.  841)  is  amended: 

3Y  (A)   by  deleting  "Except  for  tlio  purposes  of  subsection 

38  (d),  (c),  (f),  (g),  (h),  (i),  and  (j)  of  section  844  of  this 


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289 

1  title,  'explosives'  "  in  subsection   (d)   and  inserting  in  lieu 

2  thereof  "  'Explosives'  " ; 

3  (B)  by  inserting  a  comma  after  the  word  "compound"  in 

4  the  first  sentence  of  subsection  (d)  ; 

5  (C)  by  deleting  the  word  "chapter"  wherever  it  appears  in 

6  subsections  (d),  (j),  and  (m)  and  inserting  in  lieu  thereof 

7  "title";  and 

8  (D)  by  deleting  the  last  sentence  in  subsection  (d). 

9  (2)  Section  1103  (formerly  18  U.S.C.  842)  is  amended : 

10  (A)  by  deleting  the  word  "chapter"  wherever  it  appears 

11  in  subsection  (a)  and  inserting  in  lieu  thereof  the  word  "title" ; 

12  (B)   by  deleting  "ship,  transport,  or  cause  to  be  trans- 

13  ported"  in  subsection  (a)  (3)  (A)  and  inserting  in  lieu  there- 
in of  "ship  or  transport"; 

15  (C)   by  deleting  the  words  "marihuana  (as  defined  in  sec- 

16  tion  4761  of  the  Internal  Revenue  Code  of  1954)  or  any  de- 

17  pressant  or  stimulant  drug  (as  defined  in  section  201  (v)  of 

18  the  Federal  Food,  Drug,  and  Cosmetic  Act)  or  narcotic  drug 

19  (as  defined  in  section  4721(a)  of  the  Internal  Revenue  Code 

20  of  1954)"  in  subsection  (d)  (5)  and  inserting  in  lieu  thereof 

21  "or  addicted  to  marihuana  or  any  depressant  or  stimulant 

22  substance  or  narcotic  drug  as  those  terms  are  defined  in  sec- 

23  tion  102  of  the  Controlled  Substances  Act  (21  U.S.C.  802) " ; 

24  (D)  by  deleting  ''willfully"  in  subsection  (f )  and  inserting 

25  in  lieu  thereof  "knowingly" ; 

26  (E)  by  deleting  "847"  in  subsection  (g)  and  inserting  in 

27  lieu  thereof  "1108" ;  and 

28  (F)  by  deleting  "  ( as  defined  in  section  4761  of  the  Internal 

29  Revenue  Code  of  1954)  or  any  depressant  or  stimulant  drug 

30  (as  defined  in  section  201  (v)  of  the  Federal  Food,  Drug,  and 

31  Cosmetic  Act)  or  narcotic  drug  (as  defined  in  section  4731  (a) 

32  of  the  Internal  Revenue  Code  of  1954)"  in  subsection  (i)  (3) 

33  and  inserting  in  lieu  thereof  "or  any  depressant  or  stimulant 

34  substance  or  narcotic  drug  as  those  terms  are  defined  in  section 

35  102  of  the  Controled  Substances  Act  (21  U.S.C.  802) ". 

36  (3)  Section  1104  (formerly  18  U.S.C.  843)  is  amended: 

37  (A)  by  deleting  "provisions  of  this  chapter"  in  subsection 

38  (b)  and  inserting  in  lieu  thereof  "provisions  of  this  title"; 


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290 

1  (B)  by  deleting  "842(d)  of  this  chapter"'  in  subsection  (b) 

2  (1)  and  inserting  in  lieu  thereof  "1103(d)  of  this  title"; 

3  (C)  by  deleting  "willfully"  in  subsection  (b)  (2)  and  in- 

4  serting  in  lieu  thereof  "knowingly" ; 

5  (D)  by  deleting  "chapter"  in  subsection  (b)  (2)  and  insert- 

6  ing  in  lieu  thereof  "title" ; 

7  (E)  by  deleting  the  word  "chapter"  wherever  it  appears  in 

8  subsection  (d)  and  inserting  in  lieu  thereof  "title" ; 

9  (F)  by  inserting  after  the  word  "title"  the  second  time  it 

10  appears  in  subsection  (d)  the  words  "or.  if  the  offense  in- 

11  volved  an  explosive  as  defined  in  section  1821(b)  of  title  18, 

12  United  States  Code,  any  provision  of  section  1601  (murder). 

13  1602    (manslaughter),   1611    (maiming),   1612    (aggravated 

14  battery),   1613    (battery).  1701    (arson).  1702   (aggravated 

15  property  destruction) ,  1821  (explosives  offenses) ,  1823  (using 

16  a  weapon  in  the  course  of  a  crime),  or  1001   (criminal  at- 

17  tempt)  of  title  18,  United  States  Code,"; 

18  (G)  by  deleting  "842(d)"  in  subsec'^ion  (d)  and  inserting 

19  in  lieu  thereof  "1103(d)  of  this  title",-  and 

20  (H)  by  deleting  the  word  "chapter"  wherever  it  appears  in 

21  subsection  (f)  and  inserting  in  lieu  thereof  the  word  "title". 

22  (4)  Section  1105  (formerly  18  U.S.C.  844)  is  amended  to  read 

23  as  follows: 

24  "Sec.  1105.  (a)  Any  person  who  violates  section  1103  of  this  title 

25  commits  an  unlawful  act  that  is  an  offense  described  in  section  1812  of 

26  title  18,  United  States  Code. 

27  "(b)  Except  as  provided  in  section  4001  of  title  18.  United  States 

28  Code,  any  explosive  materials  involved  or  used  or  intended  to  be  used 

29  in  any  violation  of  the  provisions  of  this  title  or  any  rule  or  regula- 

30  tion  promulgated  thereunder  or  any  violation  of  any  criminal  law  of 

31  the  United  States  shall  be  subject  to  seizure  and  forfeiture,  and  all 

32  provisions  of  the  Internal  Revenue  Code  of  1954  relating  to  the  seizure, 

33  forfeiture,  and  disposition  of  firearms,  as  defined  in  section  5845(a) 

34  of  that  Code,  shall,  so  far  as  applicable,  extend  to  seizures  and  for- 

35  feitures  under  the  provisions  of  this  title.". 

36  (5)  Section  1106  (formerly  18  U.S.C.  845)  is  amended: 

37  (A)  by  deleting  "Except  in  the  case  of  subsections  (d),  (e), 

38  (f),  (g),  (h),  and  (i)  of  section  844  of  this  title,  this"  in  sub- 

39  section  (a)  and  inserting  in  lieu  thereof  "This"; 

40  (B)   by  deleting  "921(a)  (16)   of  title   18  of  the  United 
42  States  Code,"  in  subsection    (a)(5)    and  inserting  in  lieu 


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1  thereof  "102(a)  (16)   of  the  Gun  Control  Act  of  1968,  as 

2  amended'' ; 

3  (C)   by  deleting  "921  (a)  (4)  of  title  18  of  the  United  States 

4  Code"  in  subsection   (a)  (5)    and  inserting  in  lieu  thereof 

5  "102(a)(4)  of  the  Gun  Control  Act  of  1968,  as  amended"; 

6  (D)  by  deleting  "by  this  chapter"  in  subsection  (b)  and  in- 

7  serting  in  lieu  thereof  "by  section  1103  of  this  title";  and 

8  (E)   by  deleting  "under  this  chapter"  in  subsection   (b) 

9  and  inserting  in  lieu  thereof  "under  this  title". 

10  (6)   Section  1107  (formerly  18  U.S.C.  846)  is  amended: 

11  (A)   by  deleting  the  word  "title"  in  the  third  sentence  and 

12  inserting  in  lieu  thereof  "chapter" ;  and 

13  (B)   by  deleting  the  last  sentence. 

14  (7)   Section  1108  (formerly  18  U.S.C.  847)  is  amended  by  de- 

15  leting  the  word  "chapter"  each  time  it  appears  and  inserting  in 

16  lieu  thereof  "title". 

17  (8)   Section  1109  (formerly  18  U.S.C.  848)  is  amended  by  de- 

18  leting  "chapter"  and  inserting  in  lieu  thereof  "title  or  section  1821 

19  of  title  18,  United  States  Code,". 

20  (c)  Section  1111  of  the  Organized  Crime  Control  Act  of  1970  (as 

21  redesignated  by  subsection  (a)  (1) )  is  amended : 

22  (1)  by  deleting  "Section  1716  of  title  18"  in  subsection   (c) 

23  and  inserting  in  lieu  thereof  "Section  6018  of  title  39"; 

24  (2)   by  deleting  "831  through  836  of  title  18,  United  States 

25  Code"  in  subsection    (d)    and  inserting  in  lieu  thereof  "1101 

26  through  1106  of  the  Criminal  Code  Reform  Act  of  1977" ;  and 

27  (3)  by  deleting  "Chapter  44  of  title  18,  United  States  Code" 

28  in  subsection    (e)   and  inserting  in  lieu  thereof  "Sections  102 

29  through  109  of  Title  I  of  the  Gun  Control  Act  of  1968  (82  Stat. 

30  1213),  as  amended,  or  section  1822  or  1823  of  title  18.  United 

31  States  Code". 

32  AMENDMENTS    RELATING    TO    FIREARMS 

33  Sec.  202.  (  a)  Title  I  of  the  Gun  Control  Act  of  1968  (82  Stat.  1213) 

34  is  amended : 

35  (1)  by  redesignating  sections  103  to  105  as  sections  110  to  112, 

36  respectively ;  and 

37  (2)  by  deleting  section  102. 

38  (b)   Sections  921  through  928  of  title  18,  United  States  Code,  as 

39  they  existed  on  the  day  before  the  effective  date  of  this  Act,  are  here- 


9776 

292 

1  b}'  reenacted  as  sections  102  through  109  of  title  I  of  the  Gun  Control 

2  Act  of  1968  (82  Stat.  1213)  and  amended  as  follows: 

3  (1)    Section  102    (formerly   18  U.S.C.   921)    is  amended  by 

4  deleting  the  word  "chapter"  wherever  it  appeare  and  inserting 

5  in  lieu  thereof  the  word  "title". 

6  (2)   Section  103   (formerly  18  U.S.C.  922)  is  amended: 

7  (A)  by  deleting  "chapter"  in  subsection  (a)  (2)  and  in- 

8  serting  in  lieu  thereof  "title" ; 

9  (B)  by  deleting  "1715  of  this  title"  in  subsection  (a)  (3) 

10  and  inserting  in  lieu  thereof  "6017  of  title  39,  United  States 

11  Code,"; 

12  (C)   by  deleting  "the  effective  date  of  this  chapter"  in 

13  subsection  (a)  (3)  (C)  and  inserting  in  lieu  thereof  "Decem- 

14  berl6,1968"; 

15  (D)  by  deleting  "chapter"  in  subsection  (a)(6)  and  in- 

16  serting  in  lieu  thereof  "title" ; 

17  (E)  by  deleting  "922(c)"  in  subsection   (b)  (3)  (A)   and 

18  inserting  in  lieu  thereof  "103  (c) " ; 

19  (F)  by  adding  after  the  words  "registered  mail"  in  sub- 

20  section  (b)  (3)  (C)  (ii)  the  words  "or  certified  mail  (return 

21  receipt  requested)"; 

22  (G)  by  deleting  "923  of  this  chapter"  in  subsection  (b)  (5) 

23  and  inserting  in  lieu  thereof  "104  of  this  title"; 

24  (H)  by  deleting  the  word  "chapter"  the  first  time  it  appears 

25  in  subsection  (c)  and  inserting  in  lieu  thereof  "title"; 

26  (I)  by  inserting  after  the  words  "eighteen  yeans  or  more  of 

27  age;"  in  subsection  (c)(1)  the  words  "that  I  am  not  under 

28  indictment  for,  nor  has  an  information  been  filed  against  me 

29  for.  nor  have  I  been  convicted  in  any  court  of,  a  crime  punish- 

30  able  by  imprisonment  for  a  term  exceeding  one  year;  that  I 

31  am  not  a  fugitive  from  justice;  that  I  am  not  an  unlawful 

32  user  of  or  addicted  to  marijuana  or  any  depressant  or  stimu- 

33  lant  substance  or  narcotic  drug;  that  I  have  not  been  adjudi- 

34  cated  as  a  mental  defective  nor  have  I  been  committed  to  any 

35  mental  institution;"; 

36  (.T)  bv  deleting  "chapter  44  of  title  18,  United  States  Code" 

37  in  subsection  (c)  (1)  and  inserting  in  lieu  thereof  "title  I  of 

38  the  Gun  Control  Act  of  1968,  as  amended"; 

39  (K)  by  deleting  "923(g)"  in  the  last  sentence  of  subsection 

40  (c)  and  inserting  in  lieu  thereof  "104(g)"; 


9777 


293 

1  (L)   by  deleting  the  words  "drug  (as  defined  in  section 

2  201  (v)  of  the  Federal  Food,  Drug,  and  Cosmetic  Act)  or  nar- 

3  cotic  drug  (as  defined  in  section  4731  (a)  of  the  Internal  Reve- 

4  nue  Code  of  1954)"  each  time  they  appear  in  subsections  (d), 

5  (g),  and  (h)  and  inserting  in  lieu  thereof  "substance  or  nar- 

6  cotic  drug  as  those  terms  are  defined  in  section  102  of  the 

7  Controlled  Substances  Act  (21  U.S.C.  802) '". 

8  (M)  by  deleting  the  words  "925  of  this  chapter'  wherever 

9  they  appear  in  the  last  sentence  of  subsection  (d)  and  insert- 

10  ing  in  lieu  thereof  the  words  "106  of  this  title"; 

11  (X)  by  deleting  "cha^Jter"'  in  subsection  (e)  and  inserting 

12  in  lieu  thereof  "title" ; 

13  (O)  by  deleting  "chapter"  in  subsection  (f)  and  inserting 

14  in  lieu  thereof  "title" ; 

15  (P)  by  deleting  subsections  (i)  and  (j)  and  redesignating 

16  sections  (k),  (7),  and  (m)  as  subsections  (i),  (j),  and  (k) 

17  respectively ; 

18  (Q)  by  deleting  "925(d)  of  this  chapter"  in  subsection  (j) 

19  (formerly  subsection  (I))  and  inserting  in  lieu  thereof  "106 

20  (d)  of  this  title" ; 

21  (R)  by  deleting  "provisions  of  this  chapter"  in  subsection 

22  (j)   (formerly  subsection  (?))  and  inserting  in  lieu  thereof 

23  "provisions  of  this  title" ;  and 

24  (S)   by  deleting  "923  of  this  chapter"  in  subsection  (k) 

25  (formerly  subsection  (m) )  and  inserting  in  lieu  thereof  "104 

26  of  this  title". 

27  (3)   Section  104  (formerly  18  U.S.C.  923)  is  amended  : 

28  (A)  by  deleting  "chapter"  in  subsection  (c)  and  inserting 

29  in  lieu  thereof  "title"; 

30  (B)   by  deleting  "922(g)  and  (h)  of  this  chapter"  in  sub- 

31  section  (d)(1)(B)  and  inserting  in  lieu  thereof  "103(g)  or 

32  (h)  of  this  title"; 

33  (C)  by  deleting  "willfully"  wherever  it  appears  in  sub- 

34  sections   (d)(1)(C)   and   (d)(1)(D)   and  inserting  in  lieu 

35  thereof  "knowingly" ; 

36  (D)  by  deleting  "chapter"  in  subsection  (d)(1)(C)  and 

37  inserting  in  lieu  thereof  "title" : 

38  (E)  by  delating  the  word  "chapter"  wherever  it  appears 

39  in    subsection    (d)(1)(E)    and    inserting    in    lieu    thereof 

40  "title"; 


9778 

294 

1  (F)  by  deleting  the  word  "chapter"  wherever  it  appears  in 

2  subsection  (e)  and  inserting  in  lieu  thereof  "title";  and 

3  (G)   by  deleting  the  word  "chapter"  wherever  it  appears 

4  in  subsection  (g)  and  inserting  in  lieu  thereof  "title". 

5  (4)  Section  105  (formerly  18  U.S.C.  924  is  amended  to  read  as 

6  follows  : 

7  "Sec.  105.  (a)  A  person  who  violates  this  title  commits  an  unlawful 

8  act  that  is  an  offense  described  in  section  1822  of  title  18,  United 

9  States  Code. 

10  (b)  Except  as  provided  in  section  4001  o.f  title  18,  United  States 

11  Code,  any  firearm  or  ammunition  involved  in  or  used  or  intended  to 

12  be  used  in,  any  violation  of  the  provisions  of  this  title  or  any  rule  or 

13  regulation  promulgated  thereunder,  or  any  violation  of  any  other 

14  criminal  law  of  the  United  States  Code,  shall  be  subject  to  seizure  and 

15  forfeiture  and  all  provisions  of  the  Internal  Revenue  Code  of  1954 

16  relating  to  the  seizure,  forfeiture,  and  disposition  of  firearms,  as 

17  defined  in  section  5845(a)  of  that  Code,  shall,  so  far  as  applicable, 

18  extend  to  seizures  and  forfeitures  under  the  provisions  of  this  title.". 

19  (5)  Section  106  (formerly  18  U.S.C.  925)  is  amended : 

20  (A)  by  deleting  the  word  "chapter"  wherever  it  appears 

21  and  inserting  in  lieu  thereof  "title" ;  and 

22  (B)  by  inserting  after  the  word  "title"  in  the  first  sentence 

23  of  subsection  (c)  the  words  "or  of  section  1822  of  title  18, 

24  United  States  Code,". 

25  (6)  Section  107  ( formerly  18  U.S.C.  926)  is  amended  by  deleting 

26  the  word  "chapter"  wherever  it  appears  and  inserting  in  lieu  there- 

27  of  "title". 

28  (7)  Section  108  (formerly  18  U.S.C.  927)  is  amended  by  delet- 

29  ing  "chapter"  and  inserting  in  lieu  thereof  "title". 

30  (8)  Section  109  (formerly  18  U.S.C.  928  is  amended  by  deleting 

31  the  word  "chapter"  wherever  it  appears  and  inserting  in  lieu  there- 

32  of  "title". 

33  (c)  Section  110  (formerly  section  103)  is  amended  by  deleting  the 

34  words  "the  amendment  made  by  this". 

35  (d)  Section  111  (formerly  section  104)  is  amended  by  deleting  "sec- 
35  tion  1715  of  title  18"  in  subsection  (c)  and  inserting  in  lieu  thereof 
3Y  "section  6017  of  title  39". 


9779 

295 

1  PART  B— AMENDMENT  RELATING  TO  FEDERAL 

2  RULES  OF  CRIMINAL  PROCEDURE 

3  Sec.  211.  A  new  Rule  25.1  of  the  Federal  Rules  of  Criminal  Pro- 

4  cedure  is  added  after  rule  25  to  read  as  follows : 
6  "Rule  25.1.— Burdens  of  Proof 

6  "(a)  Proof  of  Guilt— 

7  "(1)  Proof  of  Offenses. — The  Government  has  the  burden  of 

8  proving  each  element  of  the  offense  beyond  a  reasonable  doubt. 

9  "(2)  Proof  of  Defenses. — If  a  defendant  raises  a  defense  at 

10  trial  and  there  is  sufficient  evidence  of  the  defense  to  support  a 

11  reasonable  belief  as  to  its  existence,  the  Government  has  the  bur- 

12  den  of  proving  the  nonexistence  of  the  defense  beyond  a  reason- 

13  able  doubt. 

14  "(3)  Proof  of  Affirmative  Defenses. — If  a  defendant  raises 

15  an  affirmative  defense  at  trial,  the  defendant  has  the  burden  of 

16  proving  the  defense  by  a  preponderance  of  the  evidence. 

17  "(4)  Proof  of  Grading. — The  lowest  grade  of  an  offense  shall 

18  be  applicable  unless  the  Government  proves  the  elements  of  a 

19  higher  grade  beyond  a  reasonable  doubt. 

20  "(5)   Presumptions. — If  a  statute  provides  that  a  given  fact 

21  gives    rise   to    a    presumption,   the    statute   has   the   following 

22  consequences : 

23  "(A)  Trial  by  Jury. — In  a  case  tried  before  a  jury : 

24  "(i)  if  there  is  sufficient  evidence  of  the  fact  that  gives 

25  rise  to  the  presumption  to  support  a  reasonable  belief  as 

26  to  the  fact's  existence  beyond  a  reasonable  doubt,  the 

27  court  shall  submit  the  issue  to  the  jury  unless  the  evi- 

28  dence  as  a  whole  clearly  precludes  a  reasonable  juror 

29  from  finding  the  presumed  fact  beyond  a  reasonable 

30  doubt ;  and 

31  "(ii)   in  submitting  to  the  jury  the  issue  of  the  exist- 

32  ence  of  the  presumed  fact,  the  court  shall,  upon  request 

33  of  the  Government,  charge  that,  although  the  evidence  as 

34  a  whole  must  establish  the  presumed  fact  beyond  a  rea- 

35  sonable  doubt,  the  jury  may  arrive  at  that  judgment  on 
.36  the  basis  of  the  presumption  alone,  since  the  law  regards 


9780 


296 

1  the  fact  giving  rise  to  the  presumption  as  strong  evidence 

2  of  the  fact  presumed. 

3  "(B)  Trial  by  Court. — In  a  case  tried  before  the  court 

4  sitting  without  a  jury,  although  the  evidence  as  a  whole  must 

5  establish  the  presumed  fact  beyond  a  reasonable  doubt,  the 

6  court  may  arrive  at  that  judgment  on  the  basis  of  the  pre- 

7  sumption  alone. 

8  "(6)   Prima  Facie  Evidence. — If  a  statute  provides  that  a 

9  given  fact  constitutes  prima  facie  evidence,  the  statute  has  the 

10  following  consequences : 

11  "(A)  Trial  by  Jury. — In  a  case  before  a  jury: 

12  "(i)  if  there  is  sufficient  evidence  of  the  fact  that  con- 

13  stitutes  prima  facie  evidence  to  support  a  reasonable  be- 

14  lief  as  to  the  fact's  existence  beyond  a  reasonable  doubt, 

15  the  court  shall  submit  the  issue  to  the  jury  unless  the 

16  evidence  as  a  whole  clearly  precludes  a  reasonable  juror 

17  from  finding  the  inferred  fact  bej'ond  a  reasonable  doubt ; 

18  and 

19  " (ii)  in  submitting  to  the  jury  the  issue  of  the  inferred 

20  fact  concening  which  the  given  fact  is  prima  facie  evi- 

21  dence,  the  court,  upon  the  request  of  the  Government, 

22  shall  charge  that,  although  the  evidence  as  a  whole  must 

23  establish  the  inferred  fact  beyond  a  reasonable  doubt. 

24  the  jury  may  consider  that  the  given  fact  is  ordinarily  a 

25  circumstance  from  which  the  existence  of  the  inferred 

26  fact  may  be  drawn. 

27  "(B)   Trial  by  Court. — In  a  case  before  the  court  sitting 

28  without  a  jury,  although  the  evidence  as  a  whole  must  estab- 

29  lish  the  inferred  fact  beyond  a  reasonable  doubt,  the  court 

30  may  consider  that  the  given  fact  is  ordinarily  a  circumstance 
81  from  which  the  existence  of  the  inferred  fact  may  be  drawn. 
g2  "(b)   Proof  of  Jurisdiction. 

gg  "(1)   Proof. — The  Government  has  the  burden  of  proving  the 

g^  existence  of  Federal  jurisdiction  over  the  offense,  as  set  forth  in 

gg  18  U.S.C.  201,  beyond  a  reasonable  doubt. 

gg  "(2)  Presentation  to  Court  During  Trial. — The  existence 

37  of  Federal  jurisdiction  over  the  offense  is  an  issue  to  be  decided  by 

gg  the  court.  The  evidence  relating  to  jurisdiction  may  be  presented 


9781 


297 

1  by  the  Government  in  open  court  in  the  course  of  its  presentation 

2  of  the  evidence  relating  to  guilt.  Any  evidence  relating  to  juris- 

3  diction  that  is  not  so  presented  in  open  court  may  be  presented  to 

4  the  court,  out  of  the  presence  of  the  jury,  during  the  course  of  the 

5  presentation  of  the  Government's  evidence  relating  to  guilt  or 

6  after  the  close  thereof.  At  the  close  of  the  presentation  of  the 

7  Government's  evidence  relating  to  giiilt  and  of  any  subsequent 

8  presentation  of  evidence  relating  to  jurisdiction,  the  issue  shall  be 

9  determined  by  the  court. 

10  "(3)  Presentation  to  Court  Before  Trial. — Upon  a  timely 

11  pretrial  motion  by  the  attorney  for  the  Government,  the  issue  of 

12  the  existence  of  Federal  jurisdiction  shall  be  heard  by  the  court 

13  before  trial  and,  notwithstanding  the  provisions  of  rule  12(e), 
14:  shall  be  determined  before  trial  and  may  not  be  deferred  for 

15  determination  at  a  later  time.". 

16  PART  C— AMENDMENTS  RELATING  TO  FOREIGN 
1^         RELATIONS    AND    INTERCOURSE,   TITLE    22, 

UNITED  STATES  CODE 

Sec.  221.  Section  1116(b)  (4)  of  title  18,  United  States  Code,  as  it 
existed  on  the  day  before  the  effective  date  of  this  Act,  is  reenacted  and 
redesignated  as  section  2  of  the  Act  for  the  Prevention  and  Punish- 
ment of  Crimes  Against  Internationally  Protected  Persons  in  lieu  of 
the  existing  text  of  such  section. 

PART  D— AMENDMENT  RELATING  TO  INDIANS, 
TITLE  25,  UNITED  STATES  CODE 

27  Sec.   231.   Jurisdiction  Over  Offenses  Committed  in  the  Indian 

28  Country. — 
(a)   As  used  in  this  section,  the  term  "Indian  country"  includes: 

(1)   all  land  within  the  limits  of  any  Indian  reservation  under 

31  the  jurisdiction  of  the  United  States,  notwithstanding  the  issuance 

32  of  any  patent,  and  including  any  right-of-way  running  through  a 

33  reser\'ation ; 

3^  (2)  all  dependent  Indian  communities  within  the  borders  of 

the  United  States,  whether  within  the  original  or  subsequently 
acquired  territory  thereof,  and  whether  within  or  without  a  State; 


18 
19 
20 
21 
22 
23 
24 
25 
26 


29 
30 


35 
36 


3Y     and 


9782 

298 

1  (3)  all  Indian  allotments,  the  Indian  titles  to  which  have  not 

2  been  extinguished,  including  any  right-of-way  running  through 

3  such  an  allotment. 

4  (b)  Except  to  the  extent  specifically  set  forth  in  this  Act,  nothing  in 

5  this  Act  is  intended  to  diminish,  expand,  or  otherwise  alter  in  any 

6  manner  or  to  any  extent  State  or  tribal  jurisdiction  over  offenses 

7  within  Indian  country,  as  such  jurisdiction  existed  on  the  date  inime- 

8  diately  preceding  the  effective  date  of  this  Act. 

9  (c)   Except  as  otherwise  specifically  provided,  the  general  laws  of 

10  the  United  States  as  to  the  punishment  of  offenses  committed  within 

11  the  special  jurisdiction  of  the  United  States  shall  extend  to  the  Indian 

12  country. 

13  (d)  (1)   Except  as  provided  in  paragraph  (2)  of  this  subsection,  the 

14  general  laws  of  the  United  States  as  to  the  punishment  of  offenses 

15  within  the  special  jurisdiction  of  the  United  States  shall  not  extend 

16  to  offenses  committed  by  one  Indian  against  the  person  or  property 

17  of  another  Indian  or  to  any  Indian  committing  any  offense  in  the 

18  Indian  country  who  has  been  punished  by  the  local  law  of  the  tribe 

19  or  to  any  case  where,  by  treaty  stipulations,  the  exclusive  jurisdiction 

20  over  such  offenses  is  or  may  be  secured  to  the  Indian  tribes  respec- 

21  lively. 

22  (2)  Any  Indian  who  commits  against  the  person  or  property  of  an 

23  Indian  or  other  person  any  of  the  following  felony  offenses  as  defined 

24  in  title  18,  United  States  Code,  namely.  Murder  (section  1601),  Man- 

25  slaughter  (section  1602),  Negligent  Homicide  (section  1603),  Maim- 

26  ing  (section  1611),  Aggravated  Battery  (section  1612),  Terrorizing 

27  (section  1615),  Reckless  Endangerment  (section  1617),  Kidnapping 

28  (section  1621),  Aggravated  Criminal  Restraint  (section  1622),  Rape 

29  (section  1641),  Sexual  Assault   (section  1642),  Sexual  Abuse  of  a 

30  Minor  (section  1643),  Arson  (section  1701),  Aggravated  Property  De- 

31  struction   (section  1702),  Burglary   (section  1711),  Criminal   Entry 

32  (section  1712),  Robbery   (section  1721),  Extortion   (section  1722). 

33  Theft  (section  1731),  Trafficking  in  Stolen  Property  (section  1732), 

34  Receiving  Stolen  Property  (section  1733),  or  incest  .shall  be  subject  to 

35  the  same  law  and  penalties  as  all  other  persons  committing  any  of  th^ 

36  above  offenses  within  the  special  jurisdiction  of  the  United  States.  As 

37  used  in  this  section,  the  offense  of  incest  shall  be  defined  and  punished 

38  in  accordance  with  such  laws  of  the  State  in  which  the  offense  was  com- 

39  mitted  as  are  in  force  at  the  time  of  such  offense.  In  the  event  of  a 


9783 


299 

1  criminal  prosecution  of  an  Indian  for  one  or  more  of  the  foregoing 

2  offenses,  this  subsection  shall  not  be  construed  to  preclude  a  finding  of 

3  guilty  of  a  lesser  included  offense  of  such  offense  or  offenses. 

4  (e)  The  provisions  of  subsection  (d)  of  this  section  shall  not  be 

5  applicable  within  the  areas  of  Indian  country  listed  in  subsection  (f ) . 

6  (f)(1)  Each  of  the  States  listed  in  the  following  table  shall  have 

7  jurisdiction  over  offenses  committed  by  or  against  Indians  in  the  areas 

8  of  Indian  country  listed  opposite  the  name  of  the  State  to  the  same 

9  extent  that  such  State  has  jurisdiction  over  offenses  committed  else- 

10  where  within  the  State,  and  the  criminal  laws  of  such  State  shall  have 

11  the  same  force  and  effect  within  such  Indian  country  as  they  have 

12  elsewhere  within  the  State : 

State  of  ;  Indian  country  affected 

Alaska All  Indian  country  within  the  State,  except  that  on 

Annette  Islands  the  Metlakatla  Indian  community 
may  exercise  jurisdiction  over  offenses  committed 
by  Indians  in  the  same  manner  in  which  such  juris- 
diction may  be  exercised  by  Indian  tribes  in  Indian 
country  over  which  State  jurisdiction  has  not  been 
extended. 

California All  Indian  country  within  the  State. 

Minnesota All  Indian  country  within  the  State,  except  the  Red 

Lake  Reservation. 

Nebraska All  Indian  country  within  the  State. 

Oregon All  Indian  country  within  the  State,  except  the  Warm 

Springs  Reservation. 

Wisconsin All  Indian  country  within  the  State. 

13  (2)   Nothing  in  this  section  shall  authorize  the  alienation,  encum- 

14  brance,  or  taxation  of  any  real  or  personal  property,  including  water 

15  rights,  belonging  to  any  Indian  or  any  Indian  tribe,  band,  or  com- 

16  munity  that  is  held  in  trust  by  the  United  States  or  is  subject  to  a 

17  restriction  against  alienation  imposed  by  the  United  States ;  or  shall 

18  authorize  regulation  of  the  use  of  such  property  in  a  manner  incon- 

19  sistent  with  any  Federal  treaty,  agreement,  or  statute  or  within  any 

20  regulation  made  pursuant  thereto ;  or  shall  deprive  any  Indian  or  any 

21  Indian  tribe,  band,  or  community  of  any  right,  privilege,  or  immunity 

22  afforded  under  Federal  treaty,  agreement,  or  statute  with  respect  to 

23  hunting,  trapping,  or  fishing  or  the  control,  licensing,  or  regulation 

24  thereof. 

25  (3)  The  areas  listed  in  subsection  (f )  (1)  are  excluded  from  the  spe- 

26  cial  jurisdiction  of  the  United  States  described  in  section  203  of 

27  title  18. 

28  (g)   Jurisdiction  is  conferred  on  the  State  of  Kansas  over  offenses 

29  committed  by  or  against  Indians  on  Indian  reservations,  including 

30  trust  or  restricted  allotments,  within  the  State  of  Kansas,  to  the  same 


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1  extent  as  its  courts  have  jurisdiction  over  offenses  committed  elsewhere 

2  within  the  State  in  accordance  with  the  laws  of  the  State. 

3  This  subsection  shall    not  deprive  the  courts  of  the  United  States 

4  of  jurisdiction  over  olfenses  defined  by  the  laws  of  the  United  States 

5  committed  by  or  against  Indians  on  Indian  reservations. 

6  (h)  The  State  of  New  York  shall  have  jurisdiction  over  offenses 

7  committed  by  or  against  Indians  on  Indian  reservations  within  the 

8  State  of  New  York  to  the  same  extent  as  the  courts  of  the  State  have 

9  jurisdiction  over  offenses  committed  elsewhere  within  the  State  as 

10  defined  by  the  laws  of  the  State,  except  that  nothing  contained  in  this 

11  paragraph  shall  be  construed  to  deprive  any  Indian  tribe,  band,  or 

12  community,  or  members  thereof,  of  hunting  and  fishing  rights  as 

13  guaranteed  them  by  agreement,  treaty,  or  custom,  nor  require  them 

14  to  obtain  State  fish  and  game  licenses  for  the  exercise  of  such  rights. 

15  (i)  Ninety  days  following  the  adoption  of  a  resolution  to  that  effect 

16  by  the  Indian  tribe  occupying  the  particular  Indian  country  or  part 

17  thereof  affected  by  such  grant  or  assumption,  the  United  States  shall 

18  reacquire  such  measure  of  the  criminal  jurisdiction  granted  to  or  as- 

19  sumed  by  a  State  pursuant  to  the  provisions  of  the  Act  of  August  15, 

20  1953  (67  Stat.  588),  section  231(f),  (g),  or  (h)  of  the  Criminal  Code 

21  Keform  Act  of  1977,  or  the  Act  of  A.pril  11,  1968  (82  Stat.  73),  as 

22  shall  have  been  determined  in  the  resolution  of  such  tribe. 

23  The  resolution  authorized  by  this  subsection  shall  be  considered 

24  adopted  only  where  the  enrolled  Indians  within  the  affected  area  of 

25  such  Indian  country  accept  the  resolution  by  a  majority  vote  of  the 

26  adult  Indians  voting  at  a  special  election  held  for  that  purpose.  The 

27  Secretary  of  the  Interior  shall  call  such  special  election  under  such 

28  rules  and  regulations  as  he  may  prescribe  when  requested  to  do  so  by 

29  the  tribal  council  or  other  governing  body  or  by  20  per  centum  of  such 

30  enrolled  adults. 

31  (j)   ^o  retrocession  of  jurisdiction  pursuant  to  subsection   (i)  of 

32  this  section  shall  deprive  any  court  of  a  State  of  jurisdiction  to  hear, 

33  determine,  render  judgment,  or  impose  sentence  in  any  criminal  action 

34  instituted  against  any  person  for  any  offense  committed  before  the 

35  effective  date  of  such  retrocession,  if  the  offense  charged  in  such  action 

36  was  cognizable  under  any  law  of  such  State  at  the  time  of  conmiission 

37  of  such  offense.  For  the  purpose  of  any  such  ,crjminal  action,  such 

38  retrocession  shall  take  effect  on  the  day  following  the  date  of  final 

39  determination  of  such  action. 


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1  PART  E— AMENDMENTS  RELATING  TO  JUDICI- 

2  ARY  AND  JUDICIAL  PROCEDURE,  TITLE   28, 

3  UNITED  STATES  CODE 

4  Sec.  241.  A  new  chapter  58  of  title  28,  United  States  Code,  is  added 

5  after  chapter  57.  to  read  as  follows : 

6  "Chapter  58— UNITED  STATES  SENTENCING 

7  COMMISSION 

"SEC. 

"991.  United  States  Sentencing  Commission,  establishment  and  purpose. 

"992.  Terms  of  office ;  compensation. 

"993.  Designation  of  Chairman  ;  powers  and  duties  of  Chairman. 

"994.  Duties  of  the  Commission. 

"995.  Powers  of  the  Commission. 

"996.  Director  and  staff. 

"997.  Annual  report. 

"998.  Definitions.. 

8  "§  991.  United    States    Sentencing    Commission ;    establishment 

9  and  purpose 

10  "(a)  There  is  hereby  established  as  an  independent  Commission  in 

11  the  judicial  branch  a  United  States  Sentencing  Commission  which 

12  shall  consist  of  nine  members  designated  by  the  Judicial  Conference 

13  of  the  United  States.  A  member  of  the  Commission  may  be  removed 

14  by  the  Judicial  Conference  only  for  cause. 

15  "(b)   The  purposes  of  the  United  States  Sentencing  Commission 

16  are  to: 

17  "(1)  establis'h  sentencing  policies  and  practices  for  the  federal 

18  criminal  justice  system  that : 

19  "(A)  assure  the  meeting  of  the  purposes  of  sentencing  as 

20  set  forth  in  section  101  (b)  of  title  18,  United  States  Code ; 

21  "(B)  provide  certainty  and  fairness  in  meeting  the  pur- 

22  poses  of  sentencing,  avoiding  unwarranted  disparity  while 

23  maintaining  sufficient  flexibility  to  permit  individualized  sen- 

24  tences  when  warranted  by  mitigating  or  aggravating  factors 

25  not  taken  into  account  in  the  establishment  of  general  sen- 

26  tencing  practices ; 

27  "(C)  reflect,  to  the  extent  practicable,  advancement  in 

28  knowledge  of  human  behavior  as  it  relates  to  the  criminal  jus- 

29  tice  process ;  and 

30  "(2)  develop  means  of  measuring  the  degree  to  which  the  sen- 

31  tencing,  penal,  and  correctional  practices  are  effective  in  meeting 

32  the  purposes  of  sentencing  as  set  forth  in  section  101(b)  of  title 

33  18,  United  States  Code. 


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1  "§  992.  Terms  of  office ;  compensation 

2  "(a)  Commissioners  shall  be  designated  for  six -year  terms,  except 

3  that  the  terms  of  the  first  Commissioners  shall  be  staggered  so  that : 

4  "(1)  three  members  are  designated  for  a  two-year  term; 

5  "  (2)  three  members  are  designated  for  a  four-year  term ;  and 

6  "  (3)  three  members  are  designated  for  a  full  six-year  term. 

7  "  (b)   No  Commissioner  may  serve  more  than  two  full  terms.  A  Com- 

8  missioner  designated  to  fill  a  vacancy  that  occurs  before  the  expiration 

9  of  the  term  for  which  his  predecessor  was  appointed  shall  be  designated 

10  only  for  the  remainder  of  such  term. 

11  "(c)  A  member  of  the  Commission  who  is  an  employee  of  the  Federal 

12  Government  shall  serve  without  compensation  in  addition  to  that  re- 

13  ceived  for  his  services  as  an  employee  of  the  Federal  Go\-ernment,  but 

14  shall  be  reimbursed  for  travel,  subsistence,  and  other  necessary  expenses 

15  incurred  in  the  performance  of  duties  vested  in  the  Commission.  A 

16  member  of  the  Commission  who  is  not  a  Federal  employee  shall  receive 

17  the  highest  daily  rate  now  or  hereafter  prescribed  for  grade  18  of  the 

18  General  Schedule  pay  rates  (5  U.S.C.  5332)  when  engaged  in  the  actual 

19  performance  of  duties  vested  in  the  Commission,  plus  reimbursement 

20  for  travel,  subsistence,  and  other  necessary  expenses  incurred  in  the 

21  performance  of  such  duties. 

22  "§  993.  Designation  of  Cliairman ;  powers  and  duties  of  Chairman 

23  "  (a)  The  Commission  shall  from  time  to  time  designate  by  majority 

24  vote  one  of  its  members  to  serve  as  Chairman. 

25  "(b)  The  Chairman  shall : 

26  "  ( 1 )  preside  at  meetings  of  the  Commission ;  and 

27  "(2)  direct: 

28  "  ( A)  the  preparation  of  requests  for  appropriations  for  the 

29  Commission ;  and 

30  "(B)  the  use  of  funds  made  available  to  the  Commission. 

31  §  994.  Duties  of  Commission 

32  "(a)  The  Commission,  by  vote  of  a  majority  of  the  members,  and 

33  pursuant  to  its  rales  and  regulations  and,  consistent  with  all  pertinent 

34  provisions  of  this  title  and  title  18,  shall  promulgate  and  distribute  to 

35  all  courts  of  the  United  States  and  to  the  United  States  Probation 

36  Service : 

37  "(1)  guidelines,  as  described  in  subsections  (b)  through  (e), 

38  for  use  of  a  sentencing  court  in  determining  whether  to  impose  a 

39  sentence  to  probation,  a  fine,  a  term  of  imprisonment,  or  a  term 

40  of  parole  ineligibility  and  in  determining  the  appropriate  amount 

41  of  a  fine  or  the  appropriate  length  of  a  term  of  probation,  term 


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1  of  imprisonment,  or  term  of  parole  ineligibility  to  be  imposed  in 

2  a  criminal  case ;  and 

3  "(2)   general  policy  statements  regarding  application  of  the 

4  guidelines  or  any  other  aspect  of  sentencing  that  in  the  view  of 
6  the  Commission  would  further  the  purposes  set  forth  in  section 

6  101(b)  of  title  18,  United  States  Code. 

7  "(b)   The  guidelines  promulgated  pursuant  to  subsection  (a)(1) 

8  shall,  for  each  category  of  offense  involving  each  category  of  defend- 

9  ant,  provide  a  suggested  sentencing  range  that  is  consistent  with  all 

10  pertinent  provisions  of  title  18,  United  States  Code. 

11  "(c)  In  establishing  categories  of  offenses  for  use  in  the  guidelines, 

12  the  Commission  shall  consider,  but  shall  not  limit  its  consideration  to : 

13  "  ( 1 )  the  grade  of  the  offense ; 

14  "(2)  the  circumstances  under  which  the  offense  was  committed 

15  which  mitigate  or  aggravate  the  seriousness  of  the  offense ; 

16  "(3)  the  nature  and  degree  of  the  harm  caused  by  the  offense, 

17  including  whether  it  involved  property,  irreplaceable  property,  a 

18  person,  a  number  of  persons,  or  a  breach  of  public  trust; 

19  ''(4)  the  community  view  of  the  gravity  of  the  offense; 

20  "  (5)  the  public  concern  generated  by  the  offense; 

21  "(6)  the  deterrent  effect  a  particular  sentence  may  have  on  the 

22  commission  of  the  offense  by  others ;  and 

23  "(7)  the  current  incidence  of  the  offense  in  the  community  and 

24  in  the  nation  as  a  whole. 

25  "(d)  In  establishing  categories  of  defendants  for  use  in  the  guide- 

26  lines,  the  Commission  shall  consider,  but  shall  not  limit  its  considera- 

27  tion  to,  a  defendant's : 

28  "(l)age; 

29  "(2)  education; 

30  "(3)  vocational  skills; 

31  "(4)  mental  and  emotional  condition  to  the  extent  that  such 

32  condition  mitigates  the  defendant's  culpability  or  to  the  extent 

33  that  such  condition  is  otherwise  plainly  relevant ; 

34  "  (5)  physical  condition,  including  drug  dependence; 

35  "(6)  previous  employment  record; 

36  "(7)  family  ties  and  responsibilities ; 

37  "(8)  community  ties; 

38  "  (9)  role  in  the  offense ; 

39  "(10)   criminal  history,  including  prior  criminal  activity  not 

40  resulting  in  convictions,  prior  convictions,  and  prior  sentences; 

41  and 


92-465  O  -  77  -  78 


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304 

1  "(11)  degree  of  dependence  upon  criminal  activity  for  a  liveli- 

2  hood. 

3  "(e)  A  substantial  sentence  of  imprisonment  shall  be  provided  in 

4  the  guidelines  for  most  cases  in  which  the  defendant  has  a  history  of 
6  several  prior  convictions  for  offenses  committed  on  different  occasions, 

6  in  which  the  defendant  committed  the  offense  as  part  of  a  pattern 

7  of  criminal  conduct  from  which  he  derived  a  substantial  portion  of 

8  his  income,  or  in  which  the  defendant  committed  the  offense  in  further- 

9  ance  of  a  conspiracy  with  three  or  more  persons  engaging  in  a  pattern 

10  of  racketeering  activity  in  which  the  defendant  participated  in  a 

11  managerial  or  supervisory  capacity. 

12  "(f)  The  Commission,  by  vote  of  a  majority  of  the  members,  and 

13  pursuant  to  its  rules  and  regulations  and  consistent  with  all  pertinent 

14  provisions  of  this  title  and  title  18,  United  States  Code,  shall  promul- 

15  gate  and  distribute  to  the  United  States  Parole  Commission  : 

16  "(1)  guidelines  consistent  with  those  promulgated  pursuant  to 

17  subsection   (a)(1)   of  this  section  for  use  of  the  United  States 

18  Parole  Commission  in  determining  whether  to  parole  a  prisoner 

19  and  in  determining  the  length  of  the  term  and  conditions  of  parole ; 

20  and 

21  "(2)   general  policy  statements  regarding  application  of  the 

22  guidelines  or  any  other  aspect  of  parole  that  in  the  view  of  the 

23  Commission  would  further  the  purposes  set  forth  in  section  101 

24  (b)  of  title  18,  United  States  Code. 

25  "(g)  Guidelines  promulgated  pursuant  to  subsection  (a)  (1)  or  (f) 

26  (1)  shall  be  reported  to  the  Congress  by  the  Commission  at  or  after 

27  the  beginning  of  a  regular  session  of  Congress  but  not  later  than  the 

28  first  day  of  May,  and  shall  take  effect  one  hundred  eighty  days  after 

29  the  Commission  reports  them,  unless  within  tliat  time  one  House  of 

30  Congress  votes  to  disappi-ove  them. 

31  "§  995.  Powers  of  Commission 

32  "(a)  The  Commission,  by  vote  of  a  majority  of  the  members  present 

33  and  voting,  shall  have  the  power  to : 

34  "(1)  establish  general  policies  and  promulgate  such  rules  and 

35  regulations  foi-  the  Commission  as  are  neces.sary  to  cairv  out  the 

36  purposes  of  this  chapter ; 

37  "(2)  appoint  and  fix  the  salary  and  duties  of  the  Staff  Director 

38  of  the  Sentencing  Commission,  who  shall  serve  at  the  discretion 

39  of  the  Commission ; 

40  "(3)   deny,  revise,  or  ratify  any  request  for  regular,  supplc- 

41  mental,  or  deficiency  appropriations  prior  to  any  submission  of 


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305 

1  such  request  to  the  Office  of  Management  and  Budget  by  the  Chair- 

2  man ; 

3  "(4)  procure  for  the  Commission  temporary  and  intermittent 

4  services  to  the  same  extent  as  is  autliorized  by  section  3109(b)  of 
6  title  5,  United  States  Code ; 

6  "(5)  utilize,  with  their  consent,  the  services,  equipment,  per- 

7  sonnel,  information,  and  facilities  of  other  Federal,  State,  local, 

8  and  private  agencies  and  instrumentalities  with  or  without  re- 

9  imbursement  therefor ; 

10  "(6)  without  regard  to  section  3648  of  the  Revised  Statutes  of 

11  the  United  States  (31  U.S.C.  529),  enter  into  and  perform  such 

12  contracts,  leases,  cooperative  agreements,  and  other  transactions 

13  as  may  be  necessary  in  tlie  conduct  of  the  functions  of  the  Com- 

14  mission,  with  any  public  agency,  or  with  any  person,  firm,  asso- 

15  ciation,  corporation,  educational  institution,  or  nonprofit  organi- 

16  zation ; 

17  "(7)   accept  voluntary  and  uncompensated  services,  notwith- 

18  standing  the  provisions  of  section  3679  of  the  Revised  Statutes  of 

19  the  United  States  (31  U.S.C.  655  (b) )  ; 

20  "  ( 8 )   request  such  information,  data,  and  reports  from  any  Fed- 

21  eral  agency  or  judicial  officer  as  the  Commission  may  from  time  to 

22  time  require  and  as  may  be  produced  consistent  with  other  law ; 

23  "(9)   arrange  with  the  head  of  any  other  Federal  agency  for 

24  the  performance  by  such  agency  of  any  function  of  the  Commis- 

25  sion,  with  or  without  reimbursement ; 

26  "  (10)  establish  a  research  and  development  program  within  the 

27  Commission  for  the  purpose  of : 

28  "(A)  serving  as  a  clearinghouse  and  information  center 

29  for  the  collection,  preparation,  and  dissemination  of  infor- 

30  mation  on  Federal  sentencing  practices ; 

31  "(B)   assisting  and  serving  in  a  consulting  capacity  to  Fed- 

32  eral  courts,  departments,  and  agencies  in  the  development, 

33  maintenance,  and  coordination  of  sound  sentencing  practices ; 

34  "(11)  collect  systematically  the  data  obtained  from  studies,  re - 

35  search,  and  the  empirical  experience  of  public  and  private  agen- 

36  cies  concerning  the  sentencing  process ; 

37  "(12)   publish  data  concerning  the  sentencing  processes; 

38  "(13)  collect  systematically  and  disseminate  information  con- 

39  ceming  sentences  actually  imposed,  and  the  relationship  of  such 

40  sentences  to  the  factors  set  forth  in  section  2003(a)  o'f  title  18, 

41  United  States  Code; 


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1  "(14)   collect  systematically  and  disseminate  information  re- 

2  garding  effe-ctiveness  of  sentences  imposed ; 

3  "(15)  devise  and  conduct,  in  various  geographical  locations, 

4  seminars  and  workshops  providing  continuing  studie.s  for  pei-- 

5  sons  engaged  in  the  sentencing  field ; 

6  "(16)  devise  and  conduct  a  training  program  of  short-t*rm 

7  instruction  in  sentencing  techniques  for  judicial  and  probation 

8  personnel    and    other    persons   connected    with   the   sentencing 

9  process ; 

10  "(17)  make  reconunendations  to  Congress  concerning  modifi- 

11  cation  or  enactment  of  statutes  relating  to  sentencing,  penal,  and 

12  correctional  matters  that  the  Commission  finds  to  be  necessary 

13  and  advisable  to  carry  out  an  effective,  humane,  and  rational  sen- 

14  tencing  policy ;  and 

15  "(18)   perfonn  such  other  functions  as  are  required  to  permit 

16  federal  courts  to  meet  their  responsibilities  under  section  2003(a) 

17  of  title  18,  United  States  Code,  and  to  permit  others  involved  in 

18  the    federal    criminal    justice    system    to    meet    their    related 

19  responsibilities. 

20  "(b)   The  Commission  shall  have  such  other  powers  and  duties 

21  and  shall  perform  such  other  functions  as  may  be  necessary-  to  carry 

22  out  the  purposes  of  this  chapter,  and  may  delegate  to  any  Com- 

23  missioner  or  designated  person  such  powei-s  as  may  be  appropriate 

24  other  than  the  power  to  establish  general  policies,  guidelines,  rules, 

25  and  factors  under  subsection  (a)  and  (b)  (1). 

26  "(c)   Upon  the  request  of  the  Commission,  each  federal  agency  is 

27  authorized  and  directed  to  make  its  services,  equipment,  personnel, 

28  facilities,  and  information  available  to  the  qreatest  practicable  extent 

29  to  the  Commission  in  the  execution  of  its  functions. 

30  "(d)   Regular  meetings  of  the  Commission  shall  be  held  not  less 

31  frequently  than  qu'^.rterly  to  establish  and  consider  revisions  to  its 

32  general  guidelines,  policies,  and  rules.  Special  meetings  shall  be  held 

33  at  the  call  of  the  Chpirman,  acting  at  his  own  discretion  or  pursuant 

34  to  the  petition  of  an^  five  members.  A  simple  majority  of  'the  member- 

35  ship  shall  constitute  a.  quorum  for  the  conduct  of  business. 

36  "(e)  Except  as  otherwise  provided  by  law,  tlie  Commission  shall 

37  maintain  and  make  available  for  public  inspection  a  record  of  the 

38  final  vote  of  each  member  of  any  action  taken  by  it. 

39  "§996.  Director  and  Staff 

40  "(a)   The  Staff  Director  shall  supervise  the  activities  of  persons 

41  employed  by  the  Commission  and  perform  other  duties  assigned  to 

42  him  by  the  Commission. 


9791 

307 

1  "(b)  The  Staff  Director  shall  appoint  such  officers  and  employees 

2  as  are  necessary  in  the  execution  of  the  functions  of  the  Commission, 

3  subject  to  the  provisions  of  title  5,  United  States  Code,  governing  ap- 

4  pointments  in  tlie  competitive  service  and  the  provisions  of  chapter  51 

5  and  subchapter  II  of  such  title,  relating  to  classification  and  General 

6  Schedule  pay  rates. 

7  "§997.  Annual  Report 

8  "The  Commission  sliall  report  annually  to  the  United  States  Judicial 

9  Conference,  the  Congress,  and  the  President  of  the  United  States  on 

10  the  activities  of  the  Commission. 

11  "§998.  Definitions 

12  "As  used  in  this  chapter : 

13  "(a)  'Commission'  means  the  United  States  Sentencing  Com- 

14  mission ; 

15  "(b)  'Commissioner'  means  a  member  of  the  United  States  Sen- 

16  tencing  Commission ; 

17  "(c)  'guidelines'  means  the  guidelines  promulgated  by  the  Com- 

18  mission  pursuant  to  section  994(a)  or  (f)  of  this  title;  and 

19  "(d)  'rules  and  regulations'  means  rules  and  regulations  pro- 

20  mulgated  by  the  Commission  pursuant  to  section  995  of  this  title.". 

21  Sec.  242.  The  analysis  at  the  beginning  of  title  28,  United  States 

22  Code,  is  amended  by  adding  after  the  item  relating  to  chapter  57 

23  the  following  new  item : 

"58.  United  States  Sentencing  Commission 991". 

24  Sec.  243.  The  analysis  at  the  beginning  of  Part  III  of  title  28, 

25  United  States  Code,  is  amended  by  adding  after  the  item  relating  to 

26  chapter  57  the  following  new  item : 

"58.  Uniterl  States  Sentencing  Commission 991". 

27  PART    F— AMENDMENTS    RELATING    TO    WAR 

28  AND  NATIONAL  DEFENSE,  TITLE  50,  UNITED 

29  STATES  CODE 

30  Sec.  251.  Section  793  of  title  18,  United  States  Code,  as  it  existed 

31  on  the  day  before  the  effective  date  of  this  Act,  is  reenacted  and  re- 

32  designated  as  section  18  of  the  Subversive  Activities  Control  Act  of 

33  1950  in  lieu  of  the  existing  text  of  such  section. 

34  Sec.  252.  (a)  Sections  794(a),  794(b),  and  794(c)  of  title  18,  United 

35  States  Code,  as  they  existed  on  the  day  before  the  effective  date  of  this 

36  Act,  are  reenacted  and  redesignated  as  subsections  (a),  (b),  and  (c), 

37  respectively,  of  section  201  of  the  Espionage  and  Sabotage  Act  of 

38  1954  in  lieu  of  the  existing  text  of  such  section. 

39  (b)  Section  79S  of  title  18,  United  States  Code,  as  enacted  by  sec- 

40  tion  4  of  the  Act  of  June  30,  1953  (67  Stat.  133),  and  as  it  existed  on 


9792 


308 

1  the  day  before  the  effective  date  of  this  Act,  is  reenacted  and  redesig- 

2  nated  as  subsection  (d)  of  section  201  of  the  Espionage  and  Sabotage 

3  Act  of  1954. 

4  Sec.  253.  Section  798  of  title  18,  United  States  Code,  as  enacted  by 

5  section  24(a)  of  the  Act  of  October  31,  1951  (65  Stat.  719),  and  as  it 

6  existed  on  the  day  before  the  effective  date  of  this  Act,  is  reenacted 

7  and  redesignated  as  section  24  of  the  Act  of  October  31,  1951  in  lieu 

8  of  the  existing  text  of  such  section. 

9  Sec.  254.  The  provisions  of  chapter  3  of  title  18,  United  States  Code 

10  (Culpable  States  of  Mind),  are  not  applicable  to  the  amendments  to 

11  title  50  set  forth  in  section  241,  242,  and  243  of  this  Act. 

12  TITLE  III— GENERAL  PROVISIONS 

13  Sec.  260.  Severability. — If  a  provision  of  this  Act  is  held  invalid, 

14  the  validity  of  the  other  provisions  of  the  Act  shall  not  be  affected.  If 

15  an  application  of  a  provision  of  this  Act  to  a  person  or  circumstance 

16  is  held  invalid,  the  validity  of  the  application  of  the  provisions  to 

17  another  person  or  circumstance  shall  not  be  affected. 

18  Sec.  261.  Transition. —  (a)  The  Bureau  of  Prisons  created  under 

19  chapter  303  of  title  18,  United  States  Code,  as  that  chapter  existed 

20  before  the  effective  date  of  this  Act,  is  continued  as  the  Bureau  of 

21  Prisons  established  under  section  571  of  title  28,  United  States  Code. 

22  The  Director  of  the  Bureau  of  Prisons  in  office  on  the  effective  date 

23  of  this  Act  shall  continue  to  hold  office  under  section  571(b)  of  title 

24  28,  United  States  Code. 

25  (b)  The  Federal  Prison  Industries  created  under  section  4121  of 

26  title  18,  United  States  Code,  as  that  section  existed  prior  to  the  effec- 

27  tive  date  of  this  Act,  is  continued  as  the  Federal  Prison  Industries 

28  created  under  section  581  of  title  28,  United  States  Code.  A  member 

29  of  the  board  of  directors  shall  continue  to  hold  office  under  the  provi- 

30  sions  of  section  581  of  title  28,  United  States  Code. 

31  Sec.  262.  Authorizahon. — There  are  hereby  authorized  to  be  ap- 

32  propriated  such  siuns  as  may  be  necessary  to  carry  out  the  provisions 

33  and  purposes  of  this  Act. 

34  Sec.  263.  Effective  Date. — This  Act  shall  take  effect  on  the  first 

35  day  of  the  first  calendar  month  beginning  twenty-four  months  after 

36  the  date  of  enactment  of  this  Act,  except  that  chapter  58  of  title  28, 

37  United  States  Code,  shall  take  effect  on  the  date  of  enactment  of  this 

38  Act. 


9793 


95TII  CONGRESS 
1st  Session 


S.31 


IN  THE  SENATE  OF  THE  UNITED  STATES 

January  10, 1977 

Mr.  DoMENici  (for  himself,  Mr.  Cuktis,  Mr.  Stevens,  and  Mr.  Thurmond) 
introduced  the  following  bill ;  which  was  read  twice  and  referred  to  the 
Committee  on  the  Judiciary 


A  BILL 

To  amend  the  Gun  Control  Act  of  1968  to  provide  for  separate 
offense  and  consecutive  sentencing  in  felonies  involving  the 
use  of  a  firearm.       ,.   ,, 

1  Be  it  enacted  by  the  Senate  and  House  of  Representa- 

2  fives  of  the  United  States  of  America  in  Congress  assembled, 

3  That  section  924  (c)  of  tlte  Gun  Control  Act  of  1968   (Pub- 

4  lie  Law  90-618;  18  U.S.C.  924  (c)  )  read  as  follows: 

5  "(c)   Whoever— 

6  ''  ( 1 )  uses  a  firearm  to  commit  any  felony  for  which 

7  he  may  be  prosecuted  in  a  court  of  the  United  States ;  or 

8  "(2)    carries  a  firearm  during  the  commission  of 

9  any  felony  for  which  he  may  be  prosecuted  in  a  court 
II 


9794 


2 

.1  of  the  United  States,  shall,  in  addition  to  the  punish- 

2  ment  provided  for  the  commission  of  such  felony^  be 

3  sentenced  for  the  additional  offense  defined  in  this  sub- 

4  section  to  a  term  of  imprisomnent  for  not  less  than  one 

5  year  nor  more  than  ten  years.  In  the  case  of  his  second 

6  or  subsequent  conviction   under   this   subsection,    such 

7  person  shall  be  sentenced  to  a  term  of  imprisonment  for 

8  not  less  than  two  nor  mare  than  twenty-five  years. 

9  *'The  execution  or  imposition  of  any  term  oi  imprison- 

10  ment  imposed  under  this  subsection  may  not  be  suspended, 

11  and  probation  may  not  be  granted.  Any  term  or  imprison- 

12  ment  imposed  unde*  tbifS  subsectian  may  not  be  imposed  to 

13  run  concurrently  with  any  term  or  imprisonment  imposed 

14  for  the  commission  of  such  felony.". 


9795 


nrmi  CONGRESS 
1st  Session 


S.45 


IN  THE  SENATE  OF  THE  UNITED  STATES 

January  10, 1077 

Mr.  McClure  (for  liimself  and  Mr.  GoLDWATKt!)  introduood  the  following  bill; 
which  was  read  twice  and  referred  to  tlie  Committee  on  the  Judiciary 


A  BILL 

To  amend  chapter  44  of  title   18  of  the  United  States  Code 
(respecting  fii'earms)    to  penalize  the  use  of  firearms  in  the 
commission  of  any  crime  of  violence  and  to  increase  the 
penalties  in  certain  related  existing"  provisions. 

1  Be  it  enacted  by  the  Senate  and  House  of  Representn- 

2  tioes  of  the  United  States  of  America  in  Congress  assembled, 

3  That  section  924  (c)  of  title  18  of  the  United  States  Code  is 

4  amended  to  read  as  follows : 

5  "(c)  (1)  Whoever— 

6  "(^^)   iises  any  firearm  to  commit  a  crime  of  vio- 

7  lence  with  respect  to  which  the  district  courts  of  the 

8  United  States  have  original  and  exclusive  jurisdiction 

9  under  section  3231   of  this  title,  or  carries  a  firearm 
10  during  the  commission  of  any  such  crime,  or 

II 


9796 


2 

1  "(B)   uses  any  firearm  transported  in  interstate  or 

2  foreign  commerce  «r  affecting  such  commerce  to  commit, 

3  or  carries  such  a  firearm  unlawfully  during  the  commis- 

4  sion  of  any  crime  of  violence,  and  is  convicted  of  such 

5  crime  in  a  court  of  any  State, 

6  shall,  in  addition  to  the  punishment  provided  for  the  com- 

7  mission  of  such  crime,  he  sentenced  to  a  term  of  imprison- 

8  ment  for  not  less  than  five  years,  nor  more  than  ten  j'^ears. 

9  In  the  case  of  his  second  or  subsequent  conviction  under  this 

10  subsection,  such  person  shall  be  sentenced  to  imprisonment 

11  for  any  term  of  years  not  less  than  ten,  or  to  life  ini})rison- 

12  ment.  Notwithstanding  any  other  provision  of  law,  the  court 

13  shall  not  suspend  the  sentence  in  the  case  of  any  person  con- 
1^  victed  under  this  subsection,  or  give  him  a  probationary 
1^  sentence,  nor  shall  the  term  of  imprisonment  imposed  under 
16  this  subsection  run  concurrently  with  any  term  of  imprison- 
1"^  ment  imposed  for  the  commission  of  such  crime  of  violence. 
IS  "(2)    As  used  in  this  subsection,   'crime  of  violence' 

19  means  any  of  the  following  crimes,  or  nn  attempt  to  commit 

20  any  of  such  crimes:  IMurder,  manslaughter,  rape,  mayhem, 

21  maliciously  disfiguring  another,  nbdnction,  kidnaping,   bur- 

22  (r]ai-y,  robbery,  housebreaking,  larceny,  any  assault  with  in- 

23  tent  to  kill,  or  assault  with  intent  to  commit  nny  offense 

24  punishable  by  imprisonment  for  a  term  exceeding  one  year.". 


9797 


95th  congress 
1st  Session 


S.  181 


IN  THE  SENATE  OF  THE  UNITED  STATES 

January  11  (legislative  daj',  January  10),  1977 

Mr.  Kennedy,  (for  himself,  Mr.  Abourezk,  Mr.  Bayh,  Mr.  Haskell,  Mr. 
Humphrey,  McClellan,  Mr.  Mathias,  Mr.  ]\1atsunaga,  and  Mr.  Steven- 
son) introduced  the  following  bill;  which  was  read  twice  and  referred  to 
the  Committee  on  the  Judiciary 


A  BILL 

To  amend  title  18,  United  States  Code,  so  as  to  establish  certain 
guidelines  for  sentencing,  establish  a  United  States  Commis- 
sion on  Sentencing,  and  for  other  purposes. 

1  Be  it  enacted  by  the  Senate  and  House  of  Representa- 

2  fives  of  the  United  States  of  America  in  Congress  assembled, 

3  That    (a)    chapter  227  of  title  18,  United  States  Code,  is 

4  amended  by  adding  at  the  end  thereof  the  following  new 

5  section: 

6  "§  3579.  Imposition  of  a  sentence  of  imprisonment 

7  "(a)    The  court,  in  determining  whether  to  impose  ii 

8  tenn  of  imprisonment  within  a  range  authorized  under  this 

9  title  and,  if  a  term  of  imprisonment  is  to  be  imposed,  in 

II 


9798 

1  determining  the  length  of  that  term  within  such  range,  shall 

2  consider — 

3  "  ( 1 )    the  nature  and  circumstances  of  the  offense 

4  and  the  history  and  characteristics  of  the  defendant; 

5  "(2)    the  need  for  the  sentence  imposed    (A)    to 
(3  reflect  the  seriousness  of  the  offense  and  promote  respect 

7  for  law  by  providing  just  punishment  for  the  offense, 

8  (B)   to  afford  adequate  deterrence  to  criminal  conduct, 

9  and  ( C )  to  protect  the  public  from  further  crimes  of  the 

10  defendant ; 

11  "(3)   whether  other  less  restrictive  sanctions  have 

12  been  applied  to  the  defendant  frequently  or  recently ;  and 

13  "  (4)   any  sentencing  guidelines  established  by  the 

14  United  States  Commission  on  Sentencing. 

15  "(b)   In  every  case  in  which  the  court  imposes  a  term 

16  of  imprisonment  within  the  guidelines  for  sentencing  promul- 

17  gated  by  the  Commission,  the  court  shall  make  as  part  of  the 

18  record,  and  disclose  in  open  court  to  the  defendant  at  the 

19  time  of  sentencing,  a  brief  statement  of  the  reason  or  reasons 

20  for  the  sentence  imposed.  A  court  may  impose  a  term  of 

21  imprisonment  outside  of  (lie  guidelines  for  sentencing  pro- 

22  mulgated  by  the  Commission  if  it  makes  as  a  part  of  the 

23  record,  and  discloses  to  the  defendant  in  open  court  at  the 

24  time  of  sentencing,  a  statement  of  the  specific  reason  or  rea- 

25  sons  for  the  particular  sei)tence  of  imprisonment  imposed. 


9799 


3 

1  Failure  to  so  comply  shall  be  ^'ounds  for  vacating  the  sen- 

2  tence  and  resentencing  the  defendant.". 

3  (b)  The  analysis  of  such  chapter  is  amended  b}'  adding 

4  at  the  end  thereof  the  following : 

"3579.  Imposition  of  a  sentence  of  imprisonment.". 

5  Sec.  2.  (a)  Chapter  229  of  title  18,  United  States  Code, 

6  is  amended  by  adding  at  die  end  thereof  the  following  new 

7  section : 

8  "§  3621.  Imposition  of  a  sentence  of  fine 

9  "The  court  in  determining  whether  to  impose  a  fine 

10  within  a  range  authorized  by  tliis  title,  and,  if  a  fine  is  to  be 

11  imposed,  in  detennining  the  amount  of  the  fine  within  such 

12  range,  the  time  of  payment,  and  the  method  of  pajTiient, 

13  shall  consider — 

14  "(1)    tlie  nature  and  circumstances  of  the  offense 

15  and  the  history  and  characteristics  of  the  defendant; 

16  "(2)   the  need  for  the  sentence  imposed    (A)    to 

17  reflect  the  seriousness  of  the  offense  and  promote  re- 

18  spect  for  law  by   pi'oviding  just  punishment  for   the 

19  offense,    (B)   to  afford  adequate  deterrence  to  criminal 

20  conduct,  and    (C)    to  protect  the  public  from  further 

21  crimes  of  the  defendant; 

22  "(3)   whether  other  less  restiictive  sanctions  have 

23  been  applied  to  the  defendant  frequently  or  recently; 

24  and 


9800 


4 

1  "  i"^)   any  sentencing  guidelines  established  by  the 

2  United  States  Commission  on  Sentencing.". 

3  (b)  The  analysis  of  such  chapter  is  amended  by  adding 

4  at  the  end  thereof  the  following : 

"3621.  Imposition  of  a  sentence  of  fine.". 

5  Sec.  3.  (a)  Chapter  231  of  title  18,  United  States  Code, 

6  is  amended  by  adding  at  the  end  thereof  the  following  new 

7  section : 

8  "§  3657.  Imposition  of  a  sentence  of  probation 

9  "The  court,  in  determining  whether  to  impose  a  term 

10  of  probation  in  accordance  with  the  provisions  of  this  chapter, 

11  and,  if  a  term  of  probation  is  to  be  imposed,  in  determining 

12  the  length  of  such  term  and  the  conditions  of  probation  in 

13  accordance  with  such  provisions,  shall  consider — 

14  "  ( 1 )    the  nature  and  circumstances  of  the  offense 

15  and  the  history  and  characteristics  of  the  defendant ; 

16  "(2)    the  need  for  the  sentence  imposed    (A)    to 

17  reflect  the  seriousness  of  the  offense  and  promote  respect 

18  for  law  by  providing  just  punishment  for  the  ofTense, 

19  (B)   to  alTord  adequate  deterrence  to  criminal  conduct, 

20  and  (C)  to  protect  the  public  from  further  crimes  of  the 

21  defendant ; 

22  "  {^)   whether  other  less  restrictive  sanctions  have 

23  been  applied  to  the  defendant  frequently  or  recently; 

24  and 


9801 

5 

1  "  (4)   any  sentencing  guidelines  established  by  the 

2  United  States  Commission  on  Sentencing.". 

3  (b)  The  analysis  of  such  chapter  is  amended  by  adding 

4  at  the  end  thereof  the  following : 
"3657.  Imposition  of  a  sentence  of  probation.". 

5  Sec.  4.  (a)  Chapter  235  of  title  18,  United  States  Code, 

6  is  amended  by  adding  at  the  end  thereof  the  followmg  new 

7  section : 

8  "§  3742.  Review  of  sentence 

9  "  (a)   Subject  to  the  provisions  of  section  3576  of  this 

10  title  in  any  case  in  which  a  sentence  is  imposed  for  an  of- 

11  fense,  except  a  case  in  which  the  sentence  is  equal  to  or  less 

12  than  tliat  recommended  or  not  opposed  by  the  attorney  for 

13  the  Government  pursuant  to  a  plan  agreement  under  rule 

14  11  (e)  (1)  (B)   of  the  Federal  llules  of  Crhninal  Procedure 

15  or  a  case  in  which  the  sentence  is  equal  to  that  provided  in  an 

16  accepted  plea  agreement  pm-suant  to  rule  11(e)(1)(C)   of 

17  the  Federal  Rules  of  Criminal  Procedure,  an  appeal  to  a 

18  United  States  court  of  appeals  for  review  of  such  sentence 

19  may  be  filed  by — 

20  "  ( 1 )   the  defendant,  within  the  time  specified  for 

21  the  fihng  of  a  notice  of  appeal,  if  the  sentence  includes  a 

22  fine  or  term  of  imprisonment  more  than  the  maximima 

23  established  by  the  guidelines  for  sentencing  promulgated 


9802 


6 

1  by  the  United  States  Commission  on  Sentencing  or  a 

2  maximum  established  by  this  title ;  or 

3  "(2)   the  United  States  within  the  time  specified 

4  for  the  defendant's  filing  of  notice   of  appeal,   if  the 

5  sentence  includes  a  fine  or  term  of  imprisonment  less 

6  than  the   minimum   established  by   the   guidelines  for 

7  sentencing  promulgated  by  the  United  States  Commis- 

8  sion  on  Sentencing  or  a  minimum  established  by  this 

9  title. 

10  "(b)    Upon  an  appeal  being  filed  pursuant  to  subsec- 

11  tion  (A)   of  this  section,  the  clerk  of  the  court  that  imposed 

12  the  sentence  shall  certify  to  the  court  of  appeals  that  portion 

13  of  the  record  in  the  case  that  includes  the  presentence  report, 

14  the  information  submitted  during  the  sentence  proceeding, 

15  and  findings  of  the  court  upon  which  the  sentence  was  based, 

16  the  Jitatemcnt  of  reasons  for  the  sentence  imposed  l)y  the 

17  sentencing  court  and  any  additional  portions  of  the  record 

18  designated  by  the  court  of  appeals. 

liJ  ''(c)    Upon  review  of  the  record,  the  court  of  appeals 

'JO  shall  determine  whether  the  sentence  imposed  is  not  within 

21  the  guidelines  for  sentencing  promulgated  by   the   United 

22  States  Commission  on  Sentencing  (hereinafter  referred  to  as 

23  the  'Conunission')   and  is  unreasonable  having  regard  for — 

24  "(A)     the   reasonableness   of   the   district   court's 


9803 


7 

1  applicatiou  of  the  guidelines  established  by  the  Com- 

2  mission ; 

3  "(B)    the  opportunity  for  the  district  court  to  ob- 

4  serve  the  defendant;  and 

5  "(C)    any  findings  upon  which  the  sentence  was 

6  based. 

7  '*  (d)  If  the  court  of  appeals  determines  that — 

8  "  ( 1 )   the  guidelines  for  sentencing  promulgated  by 

9  the  Commission  were  properly  applied  by  the  district 

10  court,  the  court  of  appeals  shall  affirm  the  sentence  if 

11  the  sentence  imposed  outside   the  guidelines  for  sen- 

12  fencing  is  not  unreasonable ;  or 

13  "(2)  the  guidelines  for  sentencing  promulgated  by 

14  the  Commission  were  clearly  erroneously  applied  by  the 

15  district  court,  the  court  of  appeals  shall  set  aside  the 

16  sentence  and  remand  the  case  for  further  sentencing 

17  proceedings;  or 

18  "(3)  the  guidelines  for  sentencing  promulgated  by 

19  the  Conmiission  were  properly  apphed  by  the  district 

20  court,  but  that  the  sentence  imposed  outside  the  guide- 

21  hnes  for  sentencing  was   otherwise   unreasonable,    the 

22  court  of  appeals — 

23  "  (A)  in  the  case  of  an  appeal  of  a  sentence  by 

24  the  defendant,  may — 


92-465  O  -  77  -  79 


9804 


8 

1  **  (i)    remand  the  case  of  imposition  of  a 

2  lesser  sentence  to  be  determined  by  the  district 

3  court;  or 

4  "  (ii)  remand  the  case  for  further  sentenc- 

5  ing  proceedings ;  or 

6  "  (iii)  impose  a  lesser  sentence; 

7  "  (B)    in  the  case  of  an  appeal  of  a  sentence 

8  submitted  by  the  United  States,  may — 

9  "  (i)   remand  the  case  for  imposition  of  a 

10  greater  sentence  to  be  determined  by  the  dis- 

11  trict  court;  or 

12  "  (ii)  remand  the  case  for  further  sentenc- 

13  ing  proceedings ;  or 

14  "  (iii)    impose  a  greater  sentence.". 

15  (b)  The  analysis  of  such  chapter  is  amended  by  adding 

16  at  the  end  thereof  the  following: 
"3742.  Review  of  sentence.". 

17  Sec.  5.  Part  II  of  title   18,  United  States  Code,   is 

18  amended  by  adding  at  the  end  thereof  the  following  new 

19  chapter: 

20  "Chapter  238— UNITED   STATES   COMMISSION  ON 

21  SENTENCING 

"Sec. 

"3801.  DeEnitions. 

"3802.  T'^nited  States  Commission  on  Sentencing;  structure  and  composi- 
tion. 
"3803.  Powers  and  duties  of  Coiinnission. 
"3804.  Powers  anil  duties  of  Cliairnian. 
"3805.  Annual  report. 
"3806.  Congressional  re\iew. 


9805 

9 

1  "§3801.  Definitions 

2  "As  used  in  this  chapter — 

3  "(a)   'Commission'  means  the  United  States  Com- 

4  mission  on  Sentencing; 

5  "(b)    'Commissioner'  means  any  member  of  the 

6  United  States  Commission  on  Sentencing; 

7  "  (c)   'mles  and  regulations'  means  rules  and  regu- 

8  lations  promulgated  by  the  Commission  pursuant  to  sec- 

9  tion  3803  of  this  title. 

10  "§3802.  United  States  Commission  on  Sentencing;  struc- 

11  ture  and  composition 

12  "There  is  hereby  estabhshed  as  an  mdependent  Com- 

13  mission  in  the  judicial  branch,  a  United  States  Commission 

14  on  Sentencing  which  shall  be  comprised  of  not  less  than  five 

15  members   appointed   by   the   United   States   Judicial   Con- 

16  ference.  The  Commission  shall  from  time  to  time  designate 

17  by  majority  vote  one  of  its  members  to  serve  as  Chairman 

18  and  shall  delegate  to  him  the  necessary  administrative  duties 

19  and  responsiljilities.  The  term  of  office  of  a  commissioner 

20  shall  be  three  years,  except  that  the  term  of  a  person  ap- 

21  pointed  as  a  commissioner  to  fill  a  vacancy  shall  expire  at 

22  the  end  of  three  years  from  the  effective  date  of  this  statute. 

23  A  member  of  the  Commission  who  is  an  employee  of  the 

24  Federal  Government  shall  serve  without  compensation  in 


9806 


10 

1  addition  to  that  received  for  his  sernces  as  an  employee  of 

2  the  Federal  Government,  but  shall  be  reimbursed  for  travel, 

3  subsistence,  and  other  necessary  expenses  incurred  in  the 

4  performance  of  duties  vested  m  the  Commission.  A  member 

5  of  the  Commission  who  is  not  a  Federal  employee  shall  re- 

6  ceive  the  highest  daily  rate  now  or  hereafter  prescribed  for 

7  grade  18  of  the  General  Schedule  pay  rates  (5  U.S.C.  5332) 

8  when  engaged  in  the  actual  performance  of  duties  vested  in 

9  the  Commission,  plus  reimbursement  for  travel,  subsistence, 

10  and  other  necessary  expenses  incurred  in  the  performance 

11  of  such  duties. 

12  "§3803.  Powers  and  duties  of  Commission 

13  "  (a)  The  Commission,  by  majority  vote,  and  pursuant 

14  to  rules  and  regulations,  shall  pronuilgate  and  disti'ibute  to 

15  all  Federal  courts  suggested  sentencing  ranges  for  specific 

16  offenses  and  guidelines  shall  be  considered  by  the  sentencing 

17  court  in  determining  the  appropriate  sentence  for  a  defendant 

18  and  general  policy  statements  regarding  application  of  the 

19  guidelines  or  any  other  aspect  of  sentencing  that  in  the  view 

20  of  the  Connnission  would  further  the  purposes  of  this  title. 

21  "(b)   In  promulgating  suggested  sentencing  ranges  for 

22  specific  offenses  and  guidelines  for  sentencing  the  Commission 

23  shall  consider,  but  sluill  not  limit  its  consideration  to — 

24  "(1)    tbe  grade  of  tbe  offense; 

25  "  (2)  the  circunistances  under  which  the  offense  was 


9807 


11 

1  committed  ^^■LIch  mitigate  or  aggravate  the  seriousness 

o  of  the  offense; 

3  "(3)    the  nature  and  degree  of  the  harm  caused 

4  by  the  offense,  induding  whether  it  involved  property, 

5  -    irreplaceable  property,  a  person,  a  number  of  persons,  or 
(J  a  breach  of  public  trust;                                                ( 
7  "  ("i)    the  community  view  of  the  gravity  of  the 
S  offense;                                                           .                T 
9  ''(5)   the  public  concern  generated  by  the  offensfc; 

10  "  (6)  the  deterrent  effect  a  particular  sentence  may 

11  have  on  the  commission  of  the  offense  by  others;  and 

12  "Ci^)    the  current  incidence  of  the  offense  in  the 

13  community  and  in  the  Nation  as  a  whole. 

14  The  Commission  shall  also  consider,  but  shall  not  limit  its 

15  consideration  to  a  defendant's  age,  mental  and  emotional 
15  condition,  physical  condition,  particularly  drug  dependence, 

17  role  in  the  offense,  criminal  history,  including  prior  criminal 

18  activity  not  resulting  in  prior  convictions  and  prior  sentences, 
jc)  tiud  degree  of  dependence  upon  criminal  activity  for  a 
2Q  hvelOiood." 

21  "(c)   The  Commission,  by  majority  vote,  and  pursuant 

22  to  rules  and  regulations,  shall  have  the  power  to — 

23  "  ( 1 )  establish  general  policies  and  promulgate  such 

24  rules  and  regulations  for  the  Commission  as  are  neces- 

25  sary  to  carry  out  the  purposes  of  this  chapter ;   .  . 


9808 


12 

1  ''  (2)  deny,  revise,  or  ratify  any  request  for  regular, 

2  supplemental,  or  deficiency  appropriations  prior  to  any 

3  submission  of  such  request  to  the  Office  of  Management 

4  and  Budget  by  the  Chaimian; 

5  "(3)    procure  for  tiie  Commission  temporary  and 

6  intermittent  services  to  the  same  extent  as  is  authorized 
2  by  section  3109(b)  of  title  5,  United  States  Code ; 

8  "  (4)  utilize,  with  their  consent,  the  services,  equip- 

9  ment,  personnel,  information,  and  facilities  of  other  Fed- 

10  eral,  State,  local,  and  private  agencies  and  instrumentafi- 

11  ties  with  or  without  reimbursement  therefor; 

12  "  (5)  without  regard  to  section  3648  of  the  Eevised 

13  Statutes  of  the  United  Statas   (31  U.S.C.  529),  enter 

14  into   and  perforai   such   contracts,   leases,    cooperative 

15  agreements,  and  other  transactions  as  may  be  necessary 

16  in  the  conduct  of  the  functions  of  the  Commission,  with 

17  any  public  agency,  or  with  any  person,  firm,  association, 

18  corporation,  educational  institution,  or  nonprofit  organi- 

19  zation ; 

20  "  (0)  accept  voluntary  and  uncompensated  services, 

21  notwithstanding  the  provisions  of  section  3679  of  the 

22  Revised  Statutes  of  the  United  States   (31  U.S.C.  655 

23  (W ) ; 

24  "(7)    request  sn*  h   iiifoiniatlon,   data,  and  reports 

25  from  any  Federal  agency  or  judicial  oflicer  as  the  Com- 


9809 

13 

1  mission  may  from  time  to  time  require  and  as  may  be 

2  produced  consistent  with  other  law; 

3  '*  (8)    arrange  with  the  head  of  any  other  Federal 

4  agency  for  the  performance  by  such  agency  of  any  func- 

5  tion  of  the  Commission,  with  or  without  reimbursement; 

6  "(9)    issue  subpenas  requiring  the  attendance  and 

7  testimony  of  witnesses  and  the  production  of  any  evi- 

8  dence  that  relates  directly  to  a  matter  with  respect  to 

9  which  the  Commission  or  anv  Commissioner  or  acrent 

10  of  the  Commission  is  empowered  to  make  a  determina- 

11  tion  under  this  chapter;  such  attendance  of  witnesses 

12  and  the  production  of  evidence  may  be  required  from 

13  any  place  within  the  United  States  at  any  designated 

14  place  of  hearings  within  the  United  States; 

15  "(10)    establish  a  research  and  development  pro- 

16  gram  within  the  Commission  for  the  purpose  of — 

17  *'(-A-)   serving  as  a  clearinghouse  and  informa- 

18  tion  center  for  the  collection,  preparation,  and  dis- 

19  semination   of  information   on   Federal   sentencing 

20  practices ; 

21  "(B)   assisting  and  serving  in  a  consulting  ca- 

22  pacity  to  Federal  courts,  departments,  and  agencies 

23  in  the  development,  maintenance,  and  coordination 

24  of  sound  sentencing  practices ; 

25  "  (11)  cdllect  systematically  the  data  obtained  from 


9810 

14 

3  studies,  research,  and  the  empirical  experience  of  public 

2  and  private  agencies  concerning  the  sentencing  proc- 

3  esses ; 

4  "  (12)  publish  data  concerning  the  sentencing  proc- 

5  esses; 

6  "(13)    collect  systematically  and   disseminate   in- 

7  formation  concerning  sentences  actually  imposed,  and 

8  the  relationship  of  such  sentences  to  the  criteria  set  forth 

9  in  sections  3579,  3621,  and  3657  of  this  title ; 

10  "(14)  collect  systematically  and  disseminate  infor- 

11  mation  regarding  effectiveness   of  sentences   unposed; 

12  "(15)   devise  and  conduct,  in  various  geographical 

13  locations,  seminars  and  workshops  providing  continuing 

14  studies  for  persons  engaged  in  the  sentencing  field; 

15  "(16)    devise  and  conduct  a  training  program  of 
IG  short-term  instmction  in  sentencing  techniques  for  judi- 

17  cial  and  probation  personnel  and  other  persons  connected 

18  with  the  sentencing  process; 

19  "  ( 1  '^ )    make  recommendations  to   Congress   con- 

20  cerning  modification  or  enactment  of  sentencing  and 

21  correctional  statutes  which  the  Commission  finds  to  be 

22  necessary  and  advisable  to  carry  out  an  effective,  hu- 

23  mane,  and  rational  sentencing  policy; 

24  "(18)  appoint  and  fix  the  salary  and  duties  of  the 


9811 

15 

1  staff  director  of  the  Commission,  who  shall  serve  at  the 

2  discretion  of  the  Commission. 

3  "(d)  The  Commission  shall  have  such  other  powers  and 

4  duties  and  shall  perforai  such  other  functions  as  may  be 

5  necessary  to  carry  out  the  purposes  of  this  chapter  or  as 

6  may  be  provided  under  any  other  provisions  of  law  and  may 

7  delegate  to  any  commissioner  or  designated  person   such 

8  powers  as  may  be  appropriate  other  than  the  power  to 

9  establish  general  policies,  guidelines,  rules,  and  factors  under 

10  subsection  (b)  (1) . 

11  "(e)   Upon  the  request  of  the  Commission,  each  Fed- 

12  eral  agency  is  authorized  and  directed  to  make  its  services, 

13  equipment,  personnel,  facilities,  and  infomiation   available 
11  to  the  greatest  practicable  extent  to  the  Commission  in  the 

15  execution  of  its  functions. 

16  "  (f )    The  Commission  shall  meet  not  less  frequently 

17  than  quarterly  to  establish  its  general  policies  and  rules. 

18  "(g)   Except  as  otherwise  provided  by  law,  the  Com- 

19  mission  shall  maintain  and  make  available  for  public  inspec- 

20  tion  a  record  of  the  final  vote  of  each  member  on  any  action 

21  taken  by  it. 

22  "§  3804.  Powers  and  duties  of  Chairman 

23  "The  Chairman  shall— 

24  *'  (a)  preside  at  meetings  of  the  Commission; 


9812 

16 

1  "(b)    assign  duties  among  the  regional  offices,  if 

2  any,  in  order  to  assnre  efficient  administration; 

3  "(c)    direct    (1)    the  preparation  of  requests  for 

4  appropriations  for  the  Commission,  and   (2)   the  use  of 

5  funds  made  available  to  the  Commission ; 

6  "(d)  appomt  and  fix  the  basic  pay  of  personnel  of 

7  the  Commission. 

8  "§  3805.  Annual  report 

9  "The  Commission  shall  report  annually  to  each  House 

10  of  Congress,  the  United  States  Judicial  Conference,  and  the 

11  President  of  the  United  States  on  the  activities  of  the  Com- 

12  mission.". 

13  "§3806.  Congressional  review 

14  "Such  sentencing  ranges  for  specific  offense  and  guide- 

15  lines  for  sentencing  as  are  promulgated  and  distributed  by  the 

16  Commission  pursuant  to  and  in  accordance  with  the  provi- 

17  sions  of  this  title  shall  not  take  effect  until  they  have  been 

18  reported  to  Congress  by  the  Commission  at  or  after  the 

19  beginning  of  a  regular  session  thereof  but  not  later  than  the 

20  first  day  of  May,  and  until  the  expiration  of  one  hundred 

21  and  eighty  days  after  they  have  been  thus  reported.  All 

22  laws  in  conflict  with  such  sentencing  ranges  and  guideUnes 

23  for  sentencing  shall  be  of  no  further  force  or  effect  after  such 

24  sentencing  ranges  and  guidelines  have  taken  effect. 


9813 


95x11  CONGRESS 
1st  Session 


S.  204 


IN  THE  SENATE  OF  THE  UNITED  STATES 

January  12  (legislative  day,  January  10),  1977 

Mr.  Hart  (for  himself  and  Mr.  Javits)  introduced  the  following  bill;  which 
was  read  twice  and  referred  to  the  Committee  on  the  Judiciary 


A  BILL 

To  establish  the  Federal  Sentencing  Commission;  and  for  other 

purposes. 

1  Be  it  enacted  by  the  Seriate  and  House  of  Representa- 

2  tives  of  the  United  States  of  America  in  Congress  assembled, 

3  That  this  Act  may  he  cited  as  the  "Federal  Sentencing 

4  Standards  Act  of  1977". 

5  findings;  PURrosE 

G  Sec.  2.   (a)  The  Congress  finds  that  the  present  system 

7  of  punishing  persons  convicted  of  Federal  crimes  fails  to 

8  achieve  fairness  or  consistency,  or  to  protect  the  pnl)1ic,  and 

9  that  such  system — 

II 


9814 

2 

1  (1)   results  in  the  imposition  of  penalties  that  are 

2  frequently  either  unduly  lenient  or  unduly  severe; 

3  (2)    permits  unwarranted,  and  unreviewable,  dis- 

4  parity  in  sentences; 

5  (3)  operates  without  consistent  and  understnn(lal)lc 
g  rationale  or  standards;  and 

7  (4)    undennines  public  confidence  in  the  equity, 

g  impartiality,  and  effectiveness  of  Federal  criminal  justice. 
9     I       (b)   It  is  the  purpose  of  this  Act — 

10  (1)    to  establish  a  method  of  promulgating  stand- 

11  ards  for  criminal  sentences  that  will  help  deter  crime 

12  and    punish    convicted    criminal    offenders    fairly    and 

13  equally; 

14  (2)   to  establish  in  such  standards  the  principle  that 

15  the  severity  of  a  sentence  should  be  commensurate  with 

16  the  gravity  of  the  offense; 

17  (3)   to  reduce  the  disparity  between  sentences  im- 

18  posed  upon  persons  convicted   of  the   same   crime  by 

19  requiring  that  such  sentencing  standards  shall  consist  of 

20  presumi)tive  sentences  of  varying  severity  for  criminal 

21  offenses   of  varying   degrees   of   gravit}^,    with   limited 

22  variations  allowed  for  special  aggravating  and  mitigating 

23  circumstances;  and 

24  (4)   to  allow  each  convicted  offender  sentenced  to 

25  imprisonment  to  know  at  tbe  time  tbat  such  sentence 


9815 

3 

1  is  imposed  the  actual  duration  of  his  confinement,  but 

2  also  to  maintain  appropriate  incentives  for  good  institu- 

3  tional  behavior. 

4  DEFINITIONS 

5  Sec.  3.  For  purposes  of  this  Act,  the  term — 

6  ( 1 )   "Parole  Commission"  means  the  United  States 

7  Parole  Commission  in  the  Department  of  Justice  estab- 

8  hshed  in  section  4202  of  title  18,  United  States  Code; 

9  (2)    "Commission"  means  the  Federal  Sentencing 

10  Commission  established  in  section  4; 

11  (3)    "criminal  offense"  means  a  category,  or  any 

12  subcategory   thereof,    established   under   section    6,    of 

13  crimes   punishable    under   any   statute    of    the    United 

14  States; 

1^  (4)    "convicted  offender"  means  any  person  who  is 

1^  convicted  of  or  pleads  guilty  to  a  crime  pimishable  under 

1  *  any  statute  of  the  United  States ; 

18  (5)    "imprisonment"  means  the  requirement  that 

19  any  convicted  offender  live  in  any  prison,  jail,  or  other 

20  institution  of  confinement ; 

21  (6)    "presumptive  sentence"  means  a  definite  and 

22  specific  penalty,  established  by  the  Commission,  as  pro- 

23  vided  in  section  6,  for  a  criminal  offense  of  a  particular 

24  gradation  of  gravity; 


9816 

4 

1  (7)  "rule"  means  any  rule,  regulation,  or  schedule 

2  proposed  or  adopted  by  the  Commission; 

3  (8)    "sentencing  judge"  means  any  judge  of  the 

4  United  States,  as  defined  in  section  451   of  title  28, 

5  United  States  Code,  presiding  at  a  trial  in  which  any 

6  defendant  is  convicted  of  or  pleads  guilty  to  any  criminal 

7  offense  for  which  a  presumptive  sentence  is  in  effect;  and 

8  (9)    "sentencing  standai'ds"  means  the  schedules. 

9  rules,  and  regulations  for  sentencing  convicted  offenders 

10  which  the  Commission  establishes  in  accordance  with 

11  the  provisions  of  this  Act. 

12  FEDERAL  SENTENCING  COMMISSION 

13  Sec.  4.    (a)  (1)    There  is  established  a  commission  to 

14  be  known  as  the  Federal  Sentencing  Commission.  The  Com- 

15  mission  shall  be  composed  of  five  members  appointed  by  the 

16  President  of  the  United  States,  by  and  with  the  consent  of 

17  the  Senate. 

18  (2)   Members  of  the  Commission  shall  serve  for  terms 

19  of  five  years,  except  that  of  the  membei's  first  appointed — 

20  (A)   one  shall  be  appointed  for  one  year; 

21  (B)   one  shall  be  appomted  for  two  years; 

22  (C)   one  shall  be  appointed  for  tliree  years; 

23  (D)   one  shall  be  appointed  for  four  years;  and 

24  (K)   one  shall  be  appointed  for  five  years. 

25  The  member  appomted  under  subparagraph  (*E)  shall  be  or 


9817 

5 

1  have  been  a  member  of  the  Parole  Commission  or  its  pred- 

2  ecessor,  the  United  States  Board  of  Parole. 

3  (3)   Any  person  appointed  to  fill  a  vacancy  occurring 

4  other  than  by  the  expiration  of  a  term  of  office  shall  be  ap- 

5  pointed  (A)  only  for  the  unexpired  term  of  the  member  he 

6  succeeds,  and  (B)  in  the  same  manner  as  in  the  case  of  the 

7  original  appointment. 

8  (4)  IMcmbers  of  the  Commission  shall  receive  compen- 

9  sation  equivalent  to  the  compensation  paid  at  level  IV  of  the 

10  Executive  Schedule  (5  U.S.C.  5315) . 

11  (b)  (1)   The  Commission  shall  have  an  Executive  Di- 

12  rector  who  shall  be  appointed  by  the  Commission.  The  Ex- 

13  ecutive  Director  shall  be  paid  at  a  rate  not  to  exceed  the  rate 

14  of  basic  pay  in  effect  for  level  V  of  the  Executive  Schedule 

15  (5  U.S.C.  5316). 

16  (2)  With  the  approval  of  the  Conunission,  the  Execu- 

17  tive  Director  may — 

18  (A)  appoint  and  fix  the  pay  of  such  additional  per- 

19  sonnel  as  he  deems  necessary,  and 

20  (B)  procure  temporary  and  intermittent  services  to 

21  the  same  extent  as  is  authorized  by  section  3109(b) 

22  of  title  5,  United  States  Code,  but  at  rates  for  individ- 

23  uals  not  to  exceed  the  daily  equivalent  of  the  annual  rate 

24  of  basic  pay  in  effect  for  grade  GS-15  of  the  General 

25  Schedide  (5  U.S.C.  5332). 


9818 

6 

1  (3)   In  carrying  out  its  responsibilities  under  tliis  Act, 

2  the  Commission  shall,  to  the  fullest  extent  practicable,  avail 

3  itself  of  the  assistance,  including  personnel  and  facilities,  of 

4  other  agencies  and  departments  of  the  United  States  Gov- 

5  ermnent.  The  heads  of  such  agencies  and  departments  may 

6  make  available  to  the  Commission  such  personnel,  facilities, 

7  and  other  assistance,  with  or  without  reimbursement,  as  the 

8  Commission  may  request. 

9  (c)  The  Commission  is  abolished  six  years  after  the  date 

10  of  enactment  of  this  Act  unless,  prior  to  that  time,  the  Con- 

11  gi-ess  adopts  a  concurrent  resolution  disapproving  the  aboli- 

12  tion  of  the  Commission. 

13  DUTIES  OF  commission;  ADMINISTRATIVE  PROVISIONS 

14  Sec.  5.  (a)  The  Commission  shall — 

15  ( I )    proscribe  rules  to  carry  out  the  provisions  of 

16  sections   6,   7,   8,   9,    11,   and   12  in  accordance  with 

17  the  provisions  of  subsection    (1))  ; 

IB  (2)   collect  from  each  district  court  of  the  United 

19  States    such    detailed    information     (which    each    such 

20  court  shall  assist  in  providing)    relating  to  sentencing 

21  practices  in  each  such  court  as  the  Commission  shall 

22  by  rule  require;  and 

23  (3)    review  the  information  collected  pursuant  to 

24  paragraph    (2)    in  accordance  with  the  provisions  of 

25  subsection   (c) . 


9819 

7 

1  (b)  (1)   Not  later  tlian  eighteen  months  after  the  date 

2  of  enactment   of  this   Act,    the   Commission   shall   publish 

3  in  the  Federal  Register  proposed  rules   to   carry  out  the 

4  provisions  of  sections  6,  7,  8,  9,   11,  and  12.  Not  earlier 

5  than  sixty  days,  but  not  later  than  ninety  days,  after  the 

6  date  of  publication  of  such  proposed  rules,  the  Commission 

7  shall  hold  public   hearings  to   afford   interested   persons   a 

8  reasonable   opportunity   to   present   data,    views,    or   argu- 

9  ments  concerning  such  proposed  rules,  in  an  oral  presenta- 

10  tion,  or  in  writing  prior  to  the  hearing.  The  Commission 

11  shall   consider   fully   all   submissions   respecting   such   pro- 

12  posed  rules,   revise   such   proposed  rules   on   the   basis  ;of 

13  such  submissions  to  the  extent  appropriate  and  consistent 

14  with  the  policy  of  this  Act,  and  issue  a  concise  statement 

15  of  the  principal  reasons  for  adoption,  and  the  reasons  for 

16  overruling  any  considerations   urged  against  adoption.   All 

17  such   procedures    shall   be    consistent   with    the    applicable 

18  provisions  of  sections  553    (b)    and    (c)    of  title  5,  United 

19  States  Code. 

20  (2)    The  Commission,  before  adopting  any  such  pro- 

21  posed  rule  under  this  section,  shall  ti'ansmit  such  proposed 

22  rule  and  such  statement  to  the  Senate  and  the  House  of 

23  Representatives. 

24  (3)  (A)   If  the  Senate  and  the  House  of  Representa- 

25  tives  do  not,  through  agreement  to  a  concurrent  resolution, 


92-465  O  -  77  -  80 


9820 

8 

1  disapprove  the  proposed  nile  within  forty-five  calendar  days 

2  after  receipt  thereof,  then  the  Commission  may  adopt  such 

3  rule  and  it  shall  thereupon  become  effective.  The  Commis- 

4  sion  may  not  adopt  any  rule  which  is  disapproved  under  this 

5  subparagraph. 

6  (B)   For  pui-poses  of  this  paragraph,  the  term  "Calen- 

7  dar  days"  does  not  include  any  calendar  day   (i)   on  which 

8  both  Houses  of  the  Congress  are  adjourned  sine  die,  or  (ii) 

9  during  a  recess  by  either  House  of  three  or  more  days. 

10  (C)  If  such  proposed  rule  consists  of  a  schedule  of  pre- 

11  sumptive  sentences  as  provided  in  section  6,  a  schedule  of 

12  aggravating  or  mitigating  circumstances  as  provided  in  sec- 

13  tion  7,  or  a  schedule  of  sanctions  as  provided  in  section  9  (a) , 

14  any  such  resolution  of  disapproval  must  disapprove  such 

15  schedule  as  a  whole. 

16  (c)    Each  year,  during  the  two-year  period  after  the 

17  date  on  which  the  first  rules  adopted  as  provided  in  subsec- 

18  tion   (a)  become  effective,  ilia  Conmiission  shall  review  the 

19  information  collected  as  recjuircd  by  subsection  (a)  (2)  and 

20  shall  reassess  such  niles  accordingly.  If  the  Commission  finds, 

21  on  the  basis  of  such  review,  that  modification  of  such  iiiles 

22  is  desirable,  the  Commission  may  modify  such  rules  in  ao- 

23  cordance  with  the  procedures  set  forth  m  subsection  (b) .  At 

24  the  end  of  such  two-year  period,  the  Commission  shall  con- 

25  duct  such  a  review  at  least  once  every  three  ^^ears,  unless  the 


9821 

9 

1  Commission  is  sooner  abolished  as  provided  in  section  4. 

2  The  Commission  shall  publish  the  results  of  all  such  reviews. 

3  (d)  The  Commission  shall  transmit  a  report  to  the  Con- 

4  gress  each  year.  Each  such  report  shall  contain  a  detailed 

5  statement  with  respect  to  the  activities  of  the  Commission  in 

6  carrying  out  its  duties  under  this  Act,  and  any  recommenda- 

7  tions  for  legislative  or  other  action  by  the  Congress  which 
3  the  Commission  considers  appropriate. 

9  PRESUMPTIVE  SENTENCES 

ip  Sec.  6.   (a)  The  Commission  shall  establish,  in  accord- 

11  ance  with  the  provisions  in  section  5,  a  schedule — 

12  (1)   setting  forth  gi'adations  of  gravity  of  criminal 

13  offenses; 

14  (2)   prescribing  an  appropriate  gradation  of  gravity 

15  for  each  criminal  ofifense ; 

16  (3)   prescribing  a  presumptive  sentence  for  each 

17  gradation  of  gravity. 

18  (b)   The  severity  of  each  presumptive  sentence  pre- 

19  scribed  as  provided  in  subsection    (a)  (3)    shall  be  com- 

20  mensurate  with  the  gravity  of  the  criminal  offense  to  which 

21  such  presumptive  sentence  is  assigned. 

22  (c)  (1)   For  the  purpose  of  subsections   (a)   and   (b), 

23  the  Commission,  m  determining  the  gravity  of  a  criminal 

24  offense,  shall  assess  the  degree  of  harm  or  risk  of  harm  of  the 

25  type  of  criminal  conduct  Involved  In  such  criminal  offense 


9822 

10 

1  and  the  degree  of  culpability  of  a  perpetrator  engaging  in 

2  that  type  of  conduct. 

3  (2)   For  the  purpose  of  subsections   (a)   and   (b),  the 

4  Commission  may  estabHsh,  solely  for  purposes  of  this  Act, 

5  subcategories  of  any  criminal  offense  and  assign  different 

6  gradations  of  gravity  to  such  subcategories,  if  it  finds  that 

7  such  subcategories  have  distinct  degrees  of  gravity.  When- 

8  ever  the  Commission  establishes  such  subcategories,  it  shall 

9  also  prescribe  the  criteria  that  each  sentencing  judge  must 

10  use  to  determine  the  applicable  subcategory  for  the  crina- 

11  inal  conduct  engaged  in  by  such  convicted  offender.  For  pur- 

12  poses  of  this  Act,  such  subcategory  shall  be  considered  to  be 

13  the  criminal  offense   of  which   the   criminal  offender   was 

14  convicted. 

15  MITIGATING  AND  AGGRAVATING  CIRCUMSTANCES 

16  Sec.  7.   (a)  The  Commission  shall  establish,  in  accord- 
1'^  ance  with  the  provisions  of  section  5,  a  schedule  and  rules — 

18  (1)    prescribing  variations  from  any  presumptive 

19  sentence  established  under  section  6  on  account  of  miti- 

20  gating  or  aggravating  circumstances; 

21  (2)    specifying  which  types  of  circumstances  shall 

22  qualify  as  mitigating  or  aggravating  circumstances  that 

23  justify   a   variation   from   such   presumptive   sentence; 
?4  and 


9823 

11 

1  (3)    specifying,  with  respect  to  each  such  type  of 

2  mitigating   or   aggravating   circumstance,    a   particular 

3  amount  or  a  maximum  permitted  amount  of  variation 

4  from  such  presumptive  sentence. 

5  (b)   If  a  sentence  of  imprisonment  is  prescribed  as  the 

6  presumptive  sentence,  no  variation  on  account  of  aggravat- 

7  ing  circumstances  prescribed  by  the  Commission  under  sub- 

8  section    (a)    shall  increase  the  duration  of  such  imprison- 

9  ment  by  more  than  50  per  centum.. 

10  (c)    For  the  purpose  of  subsection    (a),  the  Commis- 

11  sion — 

12  (1)    shall  not  consider  as  an  aggravating  or  miti- 

13  gating  circumstance,  the  anticipated  effect  on  the  future 
1"^  behavior  of  the  convicted  offender,  or  of  any  other  per- 
1^  son,  of  imposing  a  sentence  more  or  less  severe  than  the 
^^  presumptive  sentence ;  and 

1'^  (2)  may  specify  as  a  mitigating  or  aggravating  cir- 

■^^  custance,  any  particular  acts  or  circumstances  surround- 

19  incr  the  commission  of  a  criminal  offense  which  renders 

20  the  degTce  of  harm  or  risk  of  harm  of  the  criminal  con- 

21  duct,  or  the  degree  of  culpability  of  the  offender  in  en- 

22  gaging  in  such  conduct,  greater  or  less  than  the  grada- 

23  tion  of  gravity  prescribed  for  such  criminal  offense  under 
2^  section  6. 


9824 

12 

1  (d)   Notwitlistandiug  the  provisions  in  subsection   (c) , 

2  the   Commission  shall   establish  rules,   consistent  with   the 

3  provisions  of  this  section,  which  shall — 

4  (1)     prescribe    as    an    aggra\Titing    circumstance 

5  the  fact  that  a  convicted  offender  has  previously  been 

6  convicted  of  a  serious  offense  as  defined  in  section  8 

7  (b),and 

8  ( 2 )  require  the  imposition  of  a  sentence  more  severe 

9  than  the  presumptive  sentence  in  any  case  m  which 

10  such  aggravating  circumstance  is  present. 

11  SENTENCES  OF  IMPRISONMENT 

12  Sec.  8.  (a)  The  Commission  shall — 

13  (1)  prescribe  a  presumptive  sentence  of  imprison- 
1'*  ment  under  section  6  only  for  serious  criminal  offenses; 

15  and 

16  (2)  prescribe,  with  respect  to  serious  criminal  of- 
1'^  fenses,  no  presumptive  sentence  in  excess  of  five  years 
1^  of  actual  imprisonment,  except  as  otherwise  provided  in 

19  subsection  (c) . 

20  (b)   A  criminal  offense  is  serious  for  purposes  of  sub- 

21  section  (a)  if,  as  determined  under  section  6(c)  (1),  it  en- 

22  tails  a  substantial  degree  of  harm  or  risk  thereof  and  a  higli 

23  degree  of  cnlpability  on  the  part  of  the  person  who  commits 
2^  such  criminal  offense.  In  determining  whether  the  hann  or 


9825 

13 

2  risk  thereof  is  substontial,   the  Commission  shall  consider 

2  whether  the  conduct — 

3  (1)   involves  the  infliction,  risk,  or  threat  of  siib- 

4  stantial  bodily  injury ;  or 

5  (2)    involves  the  infliction  or  risk  of  substantial 

6  harm   (other  than  of  bodily  injury),  including  but  not 

7  limited  to  the  substantial  abuse  of  a  public  office,  a 

8  public  or  private  trust,  or  of  government  processes,  or 

9  the  deprivation  of  a  substantial  portion  of  the  livelihood 

10  of  a  victim  of  such  criminal  offense. 

11  (c)  Subsection  (a)  (2)  shall  not  apply  to  the  criminal 

12  offenses  of  murder,  manslaughter,  forcible  rape,  aircraft  hi- 

13  jacking,  kidnapping,  or  treason,  or  any  attempt  or  aiding  or 

14  abetting  of  such  offenses. 

15  SENTENCES  OF  IMPEISONMENT 

16  Sec.  9.  (a)  The  Commission  shall  establish,  in  accord- 

17  ance  with  the  provisions  in  section  5 — 

18  (1)    ^  schedule  of  penalties  other  than  imprison- 

19  ment,  to  be  asigned  as  presumptive  sentences  for  crimi- 

20  nal  offenses  for  which  imprisonment  may  not  be  pre- 

21  scribed  as  the  presumptive  sentence  under  section  8; 

22  and 

23  (2)    a    schedule  specifying   the    (A)     terms    and 

24  conditions  appHcable  to  such  penalties,  and   (B)   sane- 


9826 

14 

1  tions  which  may  be  applied  by  any  sentencing  judge 

2  to  any  convicted  offender  who  violates  such  terms  or 

3  conditions. 

4  (b)    For    the    purpose    of    subsection     (a)  (1),    such 

5  penalties  may  include — 

6  (1)    intermittent   confinement   for  days,    evenings, 

7  or  weekends,  or  portions  thereof; 

8  (2)    supervision   in   the   community; 

9  (3)   a  fine  or  forfeiture; 

10  (4)    ^  curfew  or  travel  restrictions;  or 

11  "  (5)   community  service. 

12  (c)    For  the  purpose  of  subsection    (a)  (2)  (A),   the 

13  terms  and  conditions  of  such  penalties  prescribed  by  the 

14  Commission    may    include    the  duration,    scheduling,    and 

15  place    of    any    intermittent    confinement;    the    amount  or 

16  method  of  calculating  or  determining  any  fine  or  forfeiture; 

17  and  the  nature,  type,  and  extent  of  any  supervision,  cur- 

18  few,  travel  restriction,  or  community  service. 

19  (d)    For  the  purpose   of  subsection    (a)  (2)  (B),   no 

20  sanction  that  is  imposed  on  a  convicted  offender  for  fail- 

21  ing  to  comply  with  such  terms  and  conditions  may  result 

22  in  the  imprisonment   of  such  convicted  offender  for  more 

23  than  one  year. 

24  (e)   The  Attorney  General  shall,  after  consulting  with 

25  the  Commission,  establish  or  designate  an  office  within  the 


9827 

15 

1  Department  of  Justice  that  shall  be  responsible  for  iniple- 

2  menting  and  carrying  out  any  penalties  under  this  section 

3  which  are  prescribed  by  the  Commission  and  imposed  upon 

4  convicted  offenders  by  any  sentencing  judge. 

5  MAXIMUM  SENTENCES 

6  Sec.   10.  No  presumptive  sentence  prescribed  by  the 

7  Commission  under  section  6  for  a  criminal  offense,  including 

8  any  variation   thereof  on  account  of  aggravating  circum- 

9  stances  prescribed  by  the  Commission  under  section  7,  may 

10  exceed  in  severity  the  maximum  punishment  for  such  of- 

11  fense  prescribed  by  any  other  statute  of  the  United  States. 

12  ABOLITION  OF  PAEOLE ;  EAELY  EELEASE  FOE  GOOD 

13  BEHAVIOE 

14  Sec.  11.   (a)  Whenever  the  Commission  prescribes  im- 

15  prisonment  as  a  penalty  under  section  6,  7,  or  8,  the  Com- 

16  mission, — 

17  (1)    shall  consider  that  such  penalty  refers  to  the 

18  period  of  time  which  convicted  offenders  must  actually 

19  serve  in  confinement,  except  as  otherwise  provided  in 

20  subsection  (c)  ;  and 

21  (2)  may  by  rule  prescribe  that  the  release  of  con- 

22  victed  offenders  from  imprisonment  shall  be  followed  by 

23  a  period  of  supervision  in  the  community  to  aid  the 

24  transition  of  such  offenders  to  the  commimity,  and  pre- 

25  scribe  the  terms  m^  conditions  of  such  supervision  and 


9828 

16 

1  the  sanctions  ^^hich  may  be  applied  to  any  convicted 

2  offender  who  fails  to  comply  with  such  temis  and  condi- 

3  tions,  except  that — 

4  (A)   the  duration  of  any  such  supervision  shall 

5  not  exceed  10  per  centum  of  the  convicted  offender's 

6  sentence  of  imprisonment ;  and 

7  (B)    no  sanction  for  noncompliance  with  the 

8  terms  and  conditions  of  such  supervision  shall  result 

9  in  the  imprisonment  of  a  convicted  offender  for 

10  more  than  fifteen  days. 

11  (b)    After  the  date  on  which  the  schedule  established 

12  pursuant  to  section  6  becomes  effective,  the  Parole  Commis- 

13  sion  shall  have  no  authority  under  section  4203  of  title  18, 

14  United  States  Code,  to  grant  parole  to  any  prisoner  except 

15  that  the  Parole  Commission  shall  have  the  authority — 

16  (1)    to    grant    parole    to    an}'    otherwise    eligible 

17  prisoner  who  was  sentenced  before  that  date;  and 

18  (2)    to   administer   any    supervision    in    the    com- 

19  munity  authorized  by  the  Conunission  under  subsection 

20  (a)(2). 

21  (c)  (1)   Notwithstanding  the  provisions  of  subsection 

22  (a) ,  the  Commission  may  establish  rules  pursuant  to  which — 

23  (A)   each  imprisoned  offender  is  entitled  to  a  de- 

24  duction  from  the  term  of  his  imprisonment,  if  he  has  not 


9829 

17 

2  committed  a  serious  disciplinary  infraction  while  impris- 

2  oned;  or 

3  (B)   any  imprisoned  offender  who  has  committed 

4  such  a  serious  disciplinary  infraction  may  be  penalized 

5  by  an  addition  to  the  term  of  his  imprisonment. 

g  (2)   If  the  Commission  establishes  rules  as  provided  in 

7  paragraph   ( 1 ) ,  it  shall,  after  consulting  with  the  Attorney 

8  Geneial,  the  Director  of  the  Bureau  of  Prisons  of  the  United 

9  States  Department  of  Justice,  and  other  ap])ropriate  officials, 
IQ  (A)    prescribe  the  procedures  for  determining  whether  an 

11  imprisoned   offender  has  committed  a  serious  disciplinary 

12  infraction,  and    (B)    define  what  constitutes  a  serious  dis- 

13  ciplinary  infraction  for  purposes  of  this  subsection. 

14  (3)  No  rule  estabHshed  as  provided  in  paragraph   (1) 

15  shall  permit — 

16  (A)   any  deduction  from  the  teim  of  any  convicted 

17  offender's   unprisonment,   pursuant   to   paragraph    (l) 

18  (-^)  in  excess  of  15  per  centum  of  the  duration  of  such 

19  term  if  such  term  is  three  years  or  less,  or  10  per  centum 

20  of  the  duration  of  such  term  if  such  term  is  more  than 

21  three  years;  or 

22  (B)   any  addition   to   the   term  of  any  convicted 

23  offender's   imprisonment,   pursuant  to   paragraph    (1) 


9830 

18 

1  (B) ,  In  excess  of  10  per  centum  of  the  duration  of  such 

2  term. 

3  (d)    Whenever  the   Commission,   in  accordance  with 

4  section  5  (c) ,  amends  its  schedule  and  rules  under  section  6 

5  to  reduce  the  severity  of  any  presumptive  sentence,  or  under 

6  section  7  in  such  a  manner  as  could  reduce  the  severity  of 

7  any  penalty  imposed  thereunder,  the  Commission  may  estab- 

8  lish  rules — 

9-  (1)    prescribmg  that  any  such  amendment  shall 

10  apply  retroactively  to  convicted  offenders  who  were  sen- 

11  tenced  as  provided  in  this  Act  prior  to  the  effective  date 

12  of  such  amendment  and  who  still  are  undergoing  pun- 

13  ishment;  or 

14  (2)    directhig  sentencing  judges  to  reduce  or  ter- 

15  minate  the  pimishmcnt  of  such  convicted  offenders,  con- 

16  sistently  with  the  Commission's  iiiles  mider  paragraph 

17  (1). 

18  DUTIES    OF    SENTENCING    COURTS 

19  Sec.  12.    (a)  (1)   Each  sentencing  judge  shall  impose 

20  on  any  convicted  offender  the  presumptive  sentence  assigned 

21  to  the  criminal  offense  of  which  he  was  convicted,  except 

22  if  a  variation  from  the  presumptive  sentence  is  permitted  or 

23  required  by  the  Commission's  rules  under  section  7,  such 

24  judge  shall  vary  such  presumptive  sentence  only  as  provided 

25  in  section  7. 


9831 

19 

1  (2)  If  the  sentencing  judge   (A)  varies  any  presump- 

2  tive  sentence,  based  upon  the  existence  of  any  aggravating 

3  or  mitigating  circumstance,  or  (B)  refuses,  upon  request  by 

4  the  defendant  or  the  United  States,  to  vary  any  presump- 

5  tive  sentence,  such  judge  shall  disclose  the  variation  or  re- 

6  fusal  in  open  court,  and  make  a  statement  for  the  record  of 

7  the  justification  therefor,  including  a  description  of  any  such 

8  aggravating  or  mitigating  circumstances  and  all  other  in- 

9  formation,  evidence,  or  other  factors  considered  by  the  judge, 

10  in  accordance  with  the  rules  which  the  Commission  shall 

11  prescribe  under  this  Act. 

12  (b)   The  Supreme  Court  of  the  United  States  shall  have 

13  the  power,  after  consulting  with  the  Commission,  to  prescribe 

14  rules  of  practice  and  procedure  pursuant  to  section  3772  of 

15  title  18,  United  States  Code,  with  respect  to  the  imposl- 

16  tion  of  sentences  under  this  Act  and  under  the  rules  of  the 

17  Commission,  except  that  the  Supreme  Court  may  delegate 

18  such  power  to  the  Commission,  subject  to  such  terms  and 

19  conditions  as  the  Supreme  Court  may  prescribe. 

20  APPELLATE  EEVIEW 

21  Sec.  13.  The  convicted  offender  or  the  United  States 

22  may  appeal  any  sentence  imposed  under  section  12  to  the 

23  appropriate  United  States  court  of  appeals  solely  on  the 

24  ground  that — 


9832 

20 

1  ( 1 )   the  sentencing  judge  imposed  such  sentence  in 

2  violation  of  a  rule  established  by  the  Commission  under 

3  this  Act  or  of  a  provision  of  this  Act;  or 

4  (2)   any  rule  established  by  the  Oommission  and 

5  related  to  such  sentence  is  invalid,  because    (A)    the 

6  Commission  did  not  comply  with  the  provisions  in  see- 

7  tion  5  with  respect  to  such  rule,  or   (B)    the  presump- 

8  tive  sentence,  aggravating  or  mitigating  circumstences, 
•  9  or  other  parts  of  the.  sentencing  standards  adopted  })y  the 
10  Commission  are  arbitrary  and  capricious. 


9833 


95th  congress 

1st  Session 


S.  260 


IN  THE  SENATE  OF  THE  UNITED  STATES 

January  14, 1977 

Mr.  Kennedy  (for  himself  and  Mr.  McClellan)  introduced  the  following  bill; 
which  was  read  twice  and  referred  to  the  Committee  on  the  Judiciary 


A  BILL 

To  amend  title  18,  United  States  Code,  so  as  to  impose  manda- 
tory minimum  terms  with  respect  to  certain  offenses,  and  for 
other  purposes. 

1  Be  it  enacted  by  the  Senate  and  House  of  Representa- 

2  lives  of  the  United  States  of  America  in  Congress  assembled, 

3  Section  1.  Section  13  of  title  18,  United  States  Code, 

4  is  amended  by  striking  out  "and  subject  to  a  like  punish- 

5  ment,"  and  inserting  the  following  new  sentence:  "Whoever 

6  is  found  guilty  of  a  like  offense  under  the  provisions  of  this 

7  section  shall  be  subject  to  a  hke  punishment  except  that  in 

8  those  cases  in  which  a  person  is  convicted  of  committing  any 

9  act  which,  according  to  the  laws  thereof  in  force  at  the  time, 

10    constitutes — 
II-O 


9834 

2 

1  "(a)    the  crime  of  burglary,  where  at  night  a  per- 

2  son,   with  intent  to  engage  in  conduct  constituting  a 

3  crime,  enters  without  privilege,  or  remains  surreptitiously 

4  within,  a  dwelling  that  is  the  property  of  another;  or 

5  "  (b)   the  crime  of  aggravated  assault,  where  a  per- 
Q  son,  by  physical  force,  intentionally  causes  serious  bodily 

7  injury  to  another  person ; 

8  said  person  shall  be  sentenced  to  a  term  of  imprisonment 

9  which  may  not  be  less  than  two  years.". 

10  Sec.  2.  The  third  paragraph  of  subsection   (b)   of  sec- 

11  tion  1111  of  title  18,  United  States  Code,  is  amended  to  read 

12  as  follows: 

13  "Whoever  is  guilty  of  murder  in  the  second  degree,  shall 

14  be  sentenced  to  a  term  of  imprisonment  which  may  not  He 

15  less  than  two  years  and  which  may  be  up  to  life  imprlson- 

16  ment.". 

17  Sec.  3.  Subsection  (c)  of  section  924  of  title  18,  United 

18  States  Code,  is  amended  to  read  as  follows : 

19  "  (c)   Whoever,  while  engaged  in  the  commission  of  any 

20  offense  for  which  he  may  be  prosecuted  in  a  court  of  the 

21  United  States,  knowingly  possesses,  displays,  brandishes,  or 

22  otherwise  uses  a  firearm,  destructive  device,  or  other  danger- 

23  ous  weapon,  shall,  in  addition  to  the  punishment  provided 

24  for  the  commission  of  such  offense,  be  sentenced  to  a  tenn 


9835 

2  of  imprisonment  which  may  not  be  less  than  two  years  and 

2  which  may  be  up  to  ten  years.  In  the  case  of  a  second  or 

3  subsequent  conviction  of  a  violation  of  this  subsection,  or  in 

4  the  case  of  a  conviction  under  this  subsection  following  a 

5  conviction  of  a  State  offense  during  the  commission  of  which 
g  the  defendant  knowingly  possessed,  displayed,  brandished,  or 
rj  otherwise  used  a  firearm,  destructive  device,  or  other  dan- 
g  gerous  weapon,  such  defendant,  with  respect  to  such  con- 
9  viction  under  this  subsection,  shall  be  sentenced  to  a  term 

20  of  imprisonment  which  may  not  be  less  than  four  years  and 

12  which  may  be  up  to  twenty  years.". 

22  Sec.  4.  Section  2031  of  title  18,  United  States  Code,  is 

23  amended  by  striking  out  "imprisonment  for  any  term  of  years 

14  or  for  life"  and  inserting  in  heu  thereof  "shall  be  sentenced 

15  to  a  term  of  imprisonment  which  may  not  be  less  than  two 

16  years  and  which  may  be  up  to  life  imprisonment". 

17  Sec.  5.    (a)    Section  2111  of  title  18,  United  States 

18  Code,  is  amended  by  striking  out  "shall  be  imprisoned  for 

19  not  more  than  fifteen  years"  and  inserting  in  Heu  thereof 

20  "shall  be  sentenced  to  a  term  of  imprisonment  which  may 

21  not  be  less  than  two  years  and  which  may  be  up  to  fifteen 

22  years". 

23  (b)    Section  2112  of  title  18,  United  States  Code,  is 

24  amended  by  deleting  "shall  be  imprisoned  not  more  than 


92-465  O  -  77  -  81 


9836 


4 

1  fifteen  years"  and  inserting  in  lieu  thereof  "shall  be  sen- 

2  teneed  to  a  term  of  imprisonment  which  may  not  be  less  than 

3  two  years  and  which  may  be  up  to  fifteen  years". 

4  (c)  The  third  paragraph  of  section  2113  (a)  of  title  18, 

5  United  States  Code,  is  amended  by  deleting  "or  imprisoned 

6  not  more  than  twenty  years,  or  both"  and  inserting  "and 

7  shall  be  sentenced  to  a  temi  of  imprisonment  which  may  not 
g  be  less  than  two  years  and  which  may  be  up  to  t^^Tnt}'' 
9  years". 

10  (d)   The  first  paragraph  of  section  2113  (b)  of  title  18, 

11  United  States  Code,  Is  amended  by  deleting  "or  imprisoned 

12  not  more  than  ten  yeai^,  or  both"  and  Inserting  In  lieu  there- 

13  of  "and  shall  be  sentenced  to  a  term  of  imprisonment  which 

14  may  not  be  less  than  two  years  and  which  may  be  up  to  ten 

15  years". 

16  (e)  Section  2113  (d)  of  title  18,  United  States  Code,  Is 

17  amended  by  deleting  "or  Imprisoned  not  more  than  twenty- 

18  five  years,  or  both"  and  Inserting  in  lieu  thereof  "and  shall 

19  be  sentenced  to  a  term  of  imprisonment  which  may  be  less 

20  than  two  years  and  which  may  be  up  to  twenty-five  years". 

21  Sec.  6.   (a)   Section  401  (b)  (1)  (A)  of  the  Controlled 

22  Substances  Act  (21  U.S.C.  841  is  amended  (1)  by  adding 

23  after  the  words  "more  than  $25,000,  or  both",  the  follow- 

24  ing  sentence:    "In   the   case   of  a   controlled   substance   in 

25  schedule  I  which  is  the  narcotic  drug  heroin,  such  person 


9837 

5 

1  shall  be  sentenced  to  a  term  of  imprisonment  of  not  less 

2  than  two  years  or  more  than  fifteen  years,  and  a  fine  of  not 

3  more  than  $25,000";  and    (2)    by  adding  after  the  words 

4  "more  than  $50,000,  or  both"  the  following  new  sentence: 

5  "In  the  case  of  a  controlled  substance  in  schedule  I  which 

6  is  the  narcotic  dmg  heroin,  such  person  shall  be  sentenced 

7  to  a  term  of  imprisonment  of  not  less  than  two  years  or  more 

8  than  thu'ty  years,  and  a  fine  of  not  more  than  $50,000.". 

9  (b)  Section  1010(b)  (1)   of  the  Controlled  Substances 

10  Act  21  U.S.C.  960)   is  amended  by  adding  after  the  words 

11  "not  more  than  $25,000,  or  both"  the  following  new  sen- 

12  tence:  "In  the  case  of  a  controlled  substance  in  schedule  I 

13  which  is  the  narcotic  drug  heroin,  such  person  shall  be  sen- 

14  tenced  to  a  temi  of  imprisomnent  of  not  less  than  two  years 

15  or  more   than   fifteen   years    and   fine    of   not   more    than 

16  $25,000.". 

17  Sec.  7.  (a)  Title  18,  United  States  Code,  is  amended  by 

18  adding  immediately  after  section  3578  the  following  new 

19  sections : 

20  "§  3579.  Increased  sentence  for  repeat  offenders 

21  "(a)    Whoever  has  been  found  guilty   of  an   oflfense 

22  described  in  the  provisions  of  section   13  relating  to  bur- 

23  glary  and  aggravated  assault  as  defined  therein,  section  1111 

24  relating   to   murder   in    the   second   degree,    section    2031, 

25  section  2111,  section  2112,  any  provision  of  section  2113 


9838 

6 

1  (otlier  than  the  provisions  contained  in  the  second  para- 

2  graph  of  subsection    (b)    of  such  section),  or  section  924 

3  (c)   of  this  title,  or  section  401  (b)    of  the  Controlled  Sub- 

4  stances  Act,  relating  to  the  narcotic  drug  heroin  in  schedule 

5  I  or  the  provisions  of  section  1010  of  the  Controlled  Sub- 

6  stances  Act  relating  to  the  narcotic  drug  heroin  in  sched- 

7  ule  I,  and  said  person  is  found  to  be  a  repeat  offender,  pur- 

8  suant  to  subsection    (c)    of  this  section  shall  be  sentenced 

9  to  imprisonment  for  an  appropriate  term  which  may  not 

10  be  less  than  four  years  and  may  be  up  to  the  maximum 

11  provided  by  law  for  such  violation  for  which  he  was  con- 

12  victed.  Otherwise  the  court  shall  sentence  the  defendant  in 

13  accordance  with  the  law  prescribing  penalties  for  such  viola- 

14  tion.  The  court  shall  place  in  the  record  its  findings,  includ- 

15  ing  an  identification  of  the  information  relied  upon  in  making 

16  such  findings,  and  its  reasons  for  the  sentence  imposed. 

17  "('j)   i^otwithstiinding  any  other  provision  of  this  sec- 

18  tion,  the  court  shall  not  sentence  a  repeat  offender  to  less 

19  than  any  mandatory  minimum  penalty  prescribed  by  law  for 

20  such  violation. 

21  "(c)    A  defendant  is  a  repeat  olTender  for  purposes  of 

22  this  section  if  tlie  defendant  has  previously  been  convicted 

23  in  courts  of  the  United  States,  the  District  of  Columbia,  the 

24  Commonwealth  of  Puerto  Rico,  a  territory  or  possession  of 

25  tlie  United  States,  any  political  subdivision,  or  any  depart- 


9839 

7 

1  ment,  agency,  or  instrumentality  thereof,  for  a  violation  of 

2  any  provision  within  the  purview  of  subsection   (a)   of  this 

3  section  committed  on  an  occasion  different  from  the  alleged 

4  violation  referred  to  in  subsection    (a),  or  has  previously 

5  been  convicted  in  any  State  court  of  a  violation  of  a  State 

6  law  involving  murder  in  the  second  degree,  rape,  robbery, 

7  burglary,  aggravated  assault,  the  commission  of  any  offense 

8  while    knowingly    possessing,    displaying,    brandishing,    or 

9  otherwise  using  a  firearm,  destmctive  device,  or  other  danger- 

10  ous  weapon,  or  the  commission  of  any  offense  involving  the 

11  manufacturing,  distributing,  selling,  dispensing,  possessing,  or 

12  importing  of  the  narcotic  dmg  heroin.  A  conviction  shown 

13  on  direct  or  collateral  review  or  at  the  hearing  to  be  invalid 

14  or  for  which  the  defendant  has  been  pardoned  on  the  ground 

15  of  innocence  shall  be  disregarded  for  purposes  of  this  para- 

16  graph. 

17  "§  3580.  Imposition  and  execution  of  sentence 

18  "  (a)   Except  to  the  extent  otherwise  provided  by  sub- 

19  section   (b),  the  imposition  or  execution  of  any  mandator}^ 

20  minimum  sentence  pursuant  to  the  provisions  of  section  13 

21  (relating  to  burglaiy  and  aggravated  assault),  section  1111 

22  (relating  to  murder  in  the  second  degree) ,  section  924  (c) , 

23  section  2031,  section  2111,  section  2112,  section  2113,  or 

24  section  3579,  of  title  18,  United  States  Code,  or  section  401 

25  (b)  (1)  (A)  or  section  1010  (b)  (1) ,  of  the  Controlled  Sub- 


9840 


8 

1  stances  Act,  shall  not  be  suspended,  probation  shall  not  be 

2  granted,  and  section  4202  and  chapters  -309,  311,  and  402 

3  of  this  title  shall  not  be  apphcable. 

4  "(b)  Notwithstanding  any  other  provision  of  this  title, 

5  no  mandatory  minimum   sentence   shall  be   imposed,   and 

6  the  provisions  of  subsection    (a)    shall  not  be  applicable, 

7  with  respect  to  any  individual  sentenced  pursuant  to  any 

8  provision  of  this  title  referred  to  in  subsection  (a)  if — 

9  "  ( 1 )    the  individual  was  less  than  sixteen  years 

10  of  age  at  the  time  of  the  commission  of  the  offense  for 

11  which  he  is  to  be  sentenced ; 

12  "(2)   the  individual's  mental  capacity,  at  the  time 

13  of  the  commission  of  the  offense  for  which  he  is  to  be 
1'^  sentenced,  was  significantly  impaired,  although  not  so 


1^  impaired  as  to  constitute  a  defense  to  the  prosecution; 
1^  "(3)   the  individual,  at  the  time  of  the  commission 

^*  of  the  offense  for  which  he  is  to  be  sentenced,  was  acting 

1^  under  unusual  and  substantial  duress,  although  not  such 

IS*  duress  as  would  constitute  a  defense  to  the  prosecution; 

20  "  (4)  the  individual  to  be  sentenced  was  an  accom- 

21  plice,  the  conduct  constituting  the  offense  was  principally 

22  the  conduct  of  another  person,  and  the  individual's  par- 

23  ticipation  was  relatively  minor;  or 

24  "  (5)  as  to  the  crimes  enumerated  in  sections  2111, 


9841 

9 

2  2112,  and  2113,  no  serious  bodily  injury  was  inflicted 

2  on  the  victim. 

3  "(c)    Whoever  is  convicted  of  an  offense  described  in 

4  subsection  (a)  of  this  section  shall  be  granted  a  hearing  by 

5  the    court   prior   to   imposition    of    sentence    to    determine 
Q  whether  any  of  the  factors  enumerated  in  subsection    (b) 

7  of  this  section  are  applicable.   The  hearing  shall  be  held 

8  before  the  court  sitting  without  a  jury,  and  the  defendant  and 

9  the  government  shall  be  entitled  to  assistance  of  counsel,  com- 
IQ  pulsory  process,  and  cross-examination  of  such  witnesses  as 

11  appear  at  the  hearing.  If  it  appears  by  a  preponderance  of 

12  the  information,  including  information  submitted  during  the 

13  trial,  during  the  sentencing  hearing,  and  in  so  much  of  the 

14  presentence  report  as  the  court  relies  on,  that  the  defendant 

15  is  subject  to  a  term  of  imprisonment  as  set  forth  in  subsection 

16  (a)  of  this  section,  the  court  shall  so  sentence  the  defendant. 

17  The  court  shall  submit  Its  findings  in  writing,  including  an 

18  identification  of  the  facts  relied  upon  in  making  its  deter- 

19  mination.". 

20  (b)    The  analysis  of  chapter  227  of  title  18,  United 

21  States  Code,  is  amended  by  adding  at  the  end  thereof  the 

22  following : 

"3579.  Increased  sentence  for  repeat  offenders. 
"3580.  Imposition  and  execution  of  sentence.". 


9842 


95th  congress 

IST  Session 


S.888 


IN  THE  SENATE  OF  THE  UNITED  STATES 

March  3  (legislative  day,  February  21),  1977 

Mr.  KoTH  introduced  the  following  bill ;  which  was  read  twice  and  referred 
to  the  Committee  on  the  Judiciary 


A  BILL 

To  amend  title  18,  United  States  Code,  so  as  to  provide  for 
mandatory  minimum  sentences  with  respect  to  certain 
offenses  against  victims  sixty  years  of  age  or  older. 

1  Be  it  enacted  by  the  Senate  and  House  of  Representa- 

2  lives  of  the  United  States  of  America  in  Congress  assembled, 

3  That    (a)    section  13  of  title  18,  United  States  Code,  is 

4  amended  (1)  by  inserting  "  (a)  "  immediately  before  "Who- 

5  ever",  and  (2)  by  adding  at  the  end  thereof  the  following 

6  new  subsection: 

7  "(b)  Whoever  is  found  guilty  of  a  Uke  offense,  under 

8  the  provisions  of  subsection  (a)  of  this  section,  constituting, 

9  according  to  the  laws  in  force  at  the  time — 

10  "  ( 1 )  the  crime  of  burglary,  where  at  night  a  person, 

II— O 


9843 


1  with  intent  to  engage  in  conduct  constituting  a  crime, 

2  enters    without    privilege,    or    remains    surreptitiously 

3  within,  a  dwelling  that  is  the  property  of  another;  or 

4  "  (2)  the  crime  of  aggravated  assault,  where  a  per- 

5  son,  by  physical  force,  intentionally  causes  serious  hodily 

6  injury  to  another  person ; 

7  shall,  if  the  victim  of  such  offense  is  sixty  years  of  age  or 

8  older  at  the  time  thereof,  be  sentenced  to  a  term  of  imprison- 

9  ment  which  may  not  be  less  than  two  j^ears  and  which  may 

10  be  up   to   the  maximum  provided  by  law   for  such  Hke 

11  offense.". 

12  (b)(1)    Section    113(a)    of   title    18,    United   States 

13  Code,  is  amended  by  inserting  immediately  before  the  period 

14  at  the  end  thereof  a  comma  and  the  followmg :  "except  that, 

15  if  the  victim  of  the  offense  is  an  individual  sixty  years  of 

16  age  or  older  at  the  time  thereof,  the  defendant  so  convicted 

17  of  such  offense  shall  be  sentenced  to  a  tenn  of  imprisonment 

18  which  may  not  be  less  than  four  years  and  which  may  be  up 

19  to  twenty  years". 

20  (2)  Section  113  (b)  of  title  18,  United  States  Code,  is 

21  amended  by  inserting  inimediately  before  the  period  at  the 

22  end  thereof  a  comma  and  the  following:   "except  that,  if 

23  the  victim  of  the  offense  is  an  individual  sixty  years  of  age 

24  or  older  at  the  time  thereof,  the  defendant  so  convicted  of 
25^  such  offense  shall  be  sentenced  to  a  term  of  imprisomnent 


9844 

3 

1  which  may  not  be  less  than  two  years  and  which  may  be  up 

2  to  ten  years,  and,  in  addition  thereto,  may  be  fined  not  more 

3  tlian  $3,000". 

4  (3)   Section  113(c)  of  title  18,  United  States  Code,  is 

5  amended  by  inserting  inmiediately  before  the  period  at  the 

6  end  thereof  a  comma  and  the  following:  "except  that,  if  the 

7  victim  of  the  offense  is  an  individual  sixt}^  years  of  age  or 

8  older  at  the  time  thereof,  the  defendant  so  convicted  of  such 

9  offense  shall  be  sentenced  to  a  term  of  imprisonment  which 

10  may  not  be  less  than  one  year  and  which  may  be  up  to  five 

11  years,  and,  in  addition  thereto,  may  be  fined  not  more  than 

12  $1,000". 

13  (4)   Se€tion  113  (d)   of  title  18,  United  States  Code,  is 

14  amended  by  inserting  immediately  before  the  period  at  the 

15  end  thereof  a  comma  and  the  following:  "except  that,  if  the 

16  victim  of  the  offense  is  an  individual  sixty  years  of  age  or 

17  older  at  tlie  time  thereof,  the  defendant  so  convicted  of  such 

18  offense  shall  be  sentenced  to  a  term  of  imprisonment  which 

19  may  not  be  loss  than  three  months  and  which  may  be  up  to 

20  six  months,  and,  in  addition  thereto,  may  be  fined  not  moi«e 

21  than  $500". 

22  (c)    Section   114  of  title   18,  United  States  Code,  is 

23  amended  by  inserting  immediately  before  the  period  at  the. 

24  end  thereof  a  comma  and  the  following:  "except  that,  If  the 

25  victim  of  the  offense  is  an  individual  sixty  years  of  age  or 


9845 

4 

1  older  at  the  time  thereof,  the  defendant  so  convicted  of  such 

2  offense  shall  be  sentenced  to  a  term  of  imprisonment  which 

3  may  not  be  less  than  one  year  and  which  may  be  up  to 

4  seven  years,  and,  m  addition  thereto,  may  be  fined  not  more 

5  than  $1,000". 

6  (d)  The  third  paragraph  of  section  1111  (b)  of  title  18, 

7  United  States  Code,  is  amended  to  read  as  follows: 

8  "Whoever  is  guilty  of  murder  in  the  second  degree 

9  shall  be  imprisoned  for  any  term  of  years  or  for  life,  except 

10  that,  if  the  victim  of  the  offense  is  an  individual  sixty  years 

11  of  age  or  older  at  the  time  thereof,  the  defendant  so  oon- 

12  victed   of  such   offense   shall  be  sentenced  to  a  term  of 

13  imprisonment  which  may  not  be  less  than  fifteen  years  and 

14  which  may  be  up  to  life  imprisonment.". 

15  (e)   The  second  paragraph  of  section  1112(b)  of  title 

16  18,  United  States  Code,  is  amended  by  inserting  inmiedi- 

17  ately  before  the  period  at  the  end  thereof  a  comma  and  the 

18  following:  "except  that,  if  the  victim  of  the  offense  is  an 

19  individual  sixty  years  of  age  or  older  at  the  time  thereof, 

20  the  defendant  so  convicted  of  such  offense  shall  be  sentenced 

21  to  a  term  of  imprisonment  which  may  not  be  less  than  four 

22  years  and  which  may  be  up  to  ten  years". 

23  (f)  The  third  paragraph  of  section  1112  (b)  of  title  18, 

24  United  States  Code,  is  amended  by  inserting  immediately 

25  before  the  period  at  the  end  thereof  a  conmia  and  the  foU 


9846 

5 

1  lowing:   "except  that,  if  the  victim  of  the  offense  is  an 

2  individual  sixty  years  of  age  or  older  at  the  time  thereof, 

3  the  defendant  so  convicted  of  such  offense  shall  be  sentenced 

4  to  a  term  of  imprisonment  which  may  not  be  less  than  one 

5  year  and  which  may  be  up  to  three  years". 

Q  (g)    Section  1113  of  title  18,  United  States  Code,  is 

7  amended  by  inserting  immediately  before  the  period  at  the 

8  end  thereof  a  comma  and  the  following:  "except  that,  if  the 

9  victim  of  the  offense  is  an  individual  sixty  years  of  age  or 

10  older  at  the  time  thereof,  the  defendant  so  convicted  of  such 

11  offense  shall  be  sentenced  to  a  term  of  imprisonment  which 

12  may  not  be  less  than  one  year  and  which  may  be  up  to 

13  three  years". 

14  (h)   Section  2031  of  title  18,  United  States  Code,  is 

15  amended  by  inserting  immediately  before  the  period  at  the 

16  end  thereof  a  comma  and  the  following:  "except  that,  if  the 

17  victim  of  such  offense  was  sixty  years  of  age  or  older  at  the 

18  time  thereof,  the  defendant  so  convicted  of  such  offense  shall 

19  be  sentenced  to  a  term  of  imprisonment  which  may  not  be 

20  less  than  five  years  and  which  may  ba  up  to  life  imprison- 

21  ment". 

22  (i)    Section  2111  of  title  18,  United  States  Code,  is 

23  amended  by  inserting  immediately  before  the  period  at  the 

24  end  thereof  a  comma  and  the  following:  "except  that,  if  the 

25  victim  of  any  such  offense  -^as  sixty  yea,rs  q!  age  or  older 


9847 

6 

1  at  the  time  thereof,  the  defendant  so  convicted  of  such 

2  offense  shall  be  sentenced  to  a  term  of  imprisonment  which 

3  may  not  be  less  than  three  years  and  which  may  be  up  to 

4  fifteen  years". 

5  (j)   Section  1201  (a)   of  title  18,  United  States  Code, 

6  is  amended  by  inserting  immediately  before  the  period  at 
J  the  end  thereof  a  comma  and  the  following:  "except  that, 

8  if  the  victim  of  any  such  offense   (other  than  a  victim  de- 

9  scribed  in  clause    (4)    of  this  subsection)    was  sixty  years 

10  of  age  or  older  at  the  time  thereof,  the  defendant  so  con- 

11  victed  of  such  offense  shall  be  sentenced  to  a  term  of  im- 

12  prisx)mnent  which  may  not  be  less  than  five  years  and  which 

13  may  be  up  to  life  imprisonment". 

14  Sec.  2.    (a)    Chapter  227  of  title   18,  United  States 

15  Co<le,  h  amended  by  adding  at  the  end  thereof  the  following 

16  new  section: 

17  "§  3579.  Mandatory  minimum  sentences 

18  "The  imposition  or  execution  of  any  mandatory  mini- 

19  mum  sentence  pursuant  to  the  provisions  of  section  13,  sub- 

20  section   (a),   (b),   (c) ,  or  (d)   of  sections  113,  114,  1111 

21  (b)    (including  a  sentence  of  life  imprisonment  for  murder 

22  in  the  first  degree),  1112(b),  1113,  1201(a),  2031,  and 

23  2111  of  this  title,  invovling  an  offense  the  victim  with  re- 

24  spect  to  which  was  sixty  years  of  age  or  older  at  the  time 

25  of  such  offense,  shall  not  be  suspended,  probation  shall  not 


9848 

1 

1  be  granted,  and  chapters  309,  311,  and  402  of  this  title 

2  sliall  not  he  applicable.". 

3  (b)    The  analysis  of  chapter  227  of  title   18,  United 

4  States  Code,  is  amended  by  adding  at  the  end  thereof  the 
^    following  new  item: 

"3579.  Mandatory  miuiiniim  sentences.". 

6  Sec.  3.  The  amendments  made  by  tliis  Act  shall  be 

7  applicable  with  respect  to  offenses  committed  on  and  after 

8  the  date  of  the  enactment  of  this  Act. 


9849 


95th  congress 
1st  Session 


S.979 


IN  THE  SENATE  OE  THE  UNITED  STATES 

March  10  (legislative  day,  February  21),  1977 

Mr.  Bentsen  introduced  the  following:  liill ;  which  was  read  twice  and  referred 
to  the  Committee  on  the  Judiciary 


To  amend  certain  provisions  of  title  18,  United  States  Code, 
relating  to  the  sentencing  of  defendants  convicted  of  certain 
ofTenses. 

1  Be  it  enacted  by  the  Senate  and  House  of  Representa- 

2  fives  of  the  United  States  of  America  in  Congress  assembled, 

3  That  this  Act  may  he  cited  as  the  "Fair  and  Certain  Punisli- 

4  ment  Act  of  1977". 

T)  S!<:o,  2.    (a)   The  last  paragraph  of  section  1111  (h)   of 

G     title  18,  United  States  Code,  is  amended  to  read  as  follows: 

7  "Whoever  is  guilty  of  murder  in   the  second  degree, 

8  shall  he  sentenced  in  accordance  with  the  provisions  of  chap- 

9  ter  228  of  this  title.". 

II 


9850 

2 

1  (b)    Section  1112(b)    of  title  18,  United  States  Code, 

2  is  amended  to  read  as  follows: 

3  "(b)    Within  the  special  maritime  and  territorial  juris- 

4  diction  i>f  the  United  States : 

5  "Whoever  is  guilty  of  voluntary  manslaughter,  shall  be 

6  sentenced  in  accordance  with  the  provisions  of  chapter  228 

7  of  this  title. 

8  "Whoever  is  guilty  of  involuntary  manslaughter,  shall 

9  be  sentenced  in  accordance  with  the  provisions  of  chapter 

10  228  of  this  title.". 

11  (c)    Section  1113  of  title  18,  United  States  Code,  is 

12  amended  by  deleting  "fined  not  more  than  $1,000  or  im- 

13  prisoned  not  more  than  three  years,  or  both"  and  inserting  in 

14  lieu  thereof  "sentenced  in  accordance  wdtli  the  provisions  of 

15  chapter  228  of  this  title". 

16  (d)    Section  1117  of  title  18,  United  States  Code,  is 

17  amended  by  deleting  "punished  by  imprisonment  for  any 

18  term  of  years  or  for  life"  and  inserting  in  lieu  thereof  "sen- 

19  tencecl  in  accordance  with  the  provisions  of  cliapter  228  of 

20  this  title". 

21  (p)  (1)   The  first  paragraph  of  section  1  1 1  of  title  18, 

22  United  States  Code,  is  amended  by  deleting  "fined  not  more 

23  than  $5,000  or  imprisoned  not  more  than  three  3'eai"s,  or 

24  both"  and  inserting  in  lieu  thereof  "sentenced  in  accordance 

25  with  the  provisions  of  chapter  228  of  this  title". 


9851 

3 

1  (2)    The  second  paragraph  of  section  111  of  such  title 

2  is  amended  by  delethig  "lined  not  more  than  $10,000  or 

3  imprisoned  not  more  than  ten  years,  or  both"  and  inscrthig 

4  in  lieu  thereof  "sentenced  in  accordance  with  the  provisions 

5  of  chapter  2*28  of  this  title". 

6  (f)  Section  112(a)   of  title  18,  United  States  Code,  is 

7  amended  to  read  as  follows: 

8  "  (a)    Whoever  assaults,  sti-ikes,  wounds,  imprisons,  or 

9  offers  violence  to  a  foreign  official  or  official  guest  shall  be 

10  sentenced  in  accordance  with  chapter  228  of  this  title.  Who- 

11  ever  in  the  commission  of  any  such  act  uses  a  deadly  or 

12  dangerous  weapon  shall  be  sentenced  in  accordance  with 

13  such  chapter  228.". 

14  (g)  (1)  Section  113  (a)  of  such  title  is  amended  by  de- 

15  leting  "for  not  more  than  twenty  years"  and  inserting  "in 

16  accordance  with  chapter  228  of  this  title". 

17  (2)   Section  113  (b)   of  such  title  is  amended  by  delet- 

18  ing  "by  fine  of  not  more  than  $3,000  or  imprisonment  for 

19  not  more  than  ten  years,  or  both"  and  inserting  in  lieu 

20  thereof  "in  accordance  with  chapter  228  of  this  title". 

21  (3)   Section  113(c)   of  such  title  is  amended  by  delet- 

22  ing  "by  fine  of  not  more  than  $1,000  or  imprisonment  for 

23  uot  more   than  five  years,  or  both"  and  inserting  m  lieu 

24  thereof  "in  accordance  with  the  provisions  of  chapter  228 

25  of  this  title". 


92-465  O  -  77  -  82 


9852 

4 

1  (4)   Section  113(d)   of  such  title  is  amended  by  dolet- 

2  ing  "by  fine  of  not  more  than  $500  or  imprisonment  fur  not 

3  more  than  six  months,  or  both"  and  inserting  in  lieu  thereof 

4  "in  accordance  with  the  provisions  of  cliapter  '228  of  tli;-^ 

5  title". 

6  (.J)    Section  113(e)   of  such  title  is  amended  by  delet- 

7  ing  "by  fine  of  not  more  than  $300  or  imprisonment  tor  not 
S  more  thnn  three  months,  or  both"  and  inserting  in  lieu 
9  thereof  "in  accordance  with  the  provisions  of  chapter  228 

10  of  this  title". 

11  (h)    The  last  paragraph  of  section  114  of  such  title  is 

12  amended  by  deleting  "fined  not  more  than  $1,000  or  impris- 

13  oned  not  more  thnn  seven  years,  or  both"  and  inserting  in 
-.A  lieu  thereof  "sentenced  in  accordance  with  the  provisions  of 
JJ5  chapter  228  of  this  title". 

-j^  (i)   Subsections   (b),   (c) ,   (d)  .  and   (e)  of  section  351 

-jY  of  such  title  are  amended  to  read  as  follows: 

-jg  "(b)     Whoever  kidnaps   any   individiinl   designnted   in 

^Q  subsection  (a)  of  this  section  shall  be  punished  in  accordance 

^-  with  the  provisions  of  chapter  22H  of  this  title. 

^^  "  (c)  Whoever  attempts  to  kill  or  kidnap  any  individual 

n<^  designated  in  subsection   (a)  of  this  section  shall  be  punished 

^r,  in  accordance  with  the  provisions  of  chapter  228  of  this 

24  title. 

25  "  (d)   If  two  or  more  persons  conspire  to  kill  or  kidnap 


9853 

5 

1  any  individual  designated  in  subsection    (a)    of  this  section 

2  and  one  or  more  of  such  persons  do  any  act  to  eflect  the 

3  object  of  the  conspiracy,  each  shall  be  punished  in  accord- 

4  ance  with  the  provisions  of  chapter  228  of  this  title. 

5  "(e)    Whoever  assaults  any  person  designated  in  sub- 

6  section    (a)    of  this  section  shall  be  punished  in  accordance 

7  with  the  provisions  of  chapter  228  of  this  title.". 

8  (j)  (1)    Section  1201(a)    of  such  title  is  amended  by 

9  deleting  "by  imprisonment  for  any  tenn  of  years  or  for  life" 

10  and  inserting  in  lieu  thereof  "in  accordance  with  the  provi- 

11  sions  of  chapter  228  of  this  title". 

12  (2)    Section  12V)1  (c)   of  such  title  is  amended  to  read 

13  as  follows: 

14  "(c)    If  two  or  more  .persons  conspire  to  violate  this 

15  section  and  one  or  more  of  such  persons  do  any  overt  act 

16  to  effect  the  object  of  the  conspiracy,  each  shall  be  punished 

17  hi  accordance  with  the  provisions  of  chapter  228  of  this 

18  title.". 

19  (k)    Subsections    (b) ,    (c),    (d),  and    (e)    of  section 

20  1751  of  such  title  are  amended  to  read  as  follows: 

21  "(b)    Whoever  kidnaps  any  individual  designated  in 

22  subsection    (a)    of  this  section  shall  be  punished  in  accord- 

23  ance  with  the  provisions  of  chapter  228  of  this  title. 

24  "(c)    "Whoever  attempts  to  kill  or  kidnap  any  individ- 

25  ual  designated  in  subsection  (a)  of  this  section  shall  be  pun- 


9854 

6 

2  islied  ill  accordance  with  the  provisions  of  chapter  228  of 

2  this  title. 

3  "  (d)   If  two  or  more  pei>;oiis  conspire  to  kill  or  kidnap 

4  any  individual  designated  in  subsection    (a)    of  this  section 

5  and  one  or  more  of  such  persons  do  any  act  to  effect  that 
Q  object  of  the  conspiracy,  each  shall  be  punished  in  accord- 
rj  ance  with  the  provisions  of  chapter  228  of  this  title. 

g  "(e)    Whoever  assaults  any  person  designated  in  sub- 

9  section   (a)    of  this  section  shall  be  punished  in  accordance 

10  with  the  provisions  of  chapter  228  of  this  title.". 
H  (1)    Section  2031  of  such  title  is  amended  by  deleting 

12  "suffer  death,  or  imprisonment  for  any  term  of  years  or  for 

]^3  life"  and  mserting  in  lieu  thereof  "be  punished  in  accord- 

14  anC<i  with  the  provisions  of  chapter  228  of  this  title". 

15  (m)   Section  2032  of  such  title  is  amended  l)y  deleting 

16  "shall,  for  a  first  offense,  be  imprisoned  not  more  than  fifteen 

17  years,  and  for  a  subsequent  offense,  be  imprisoned  not  more 

18  than  thirty  yeai-s"  and  inserting  in  lieu  thereof  "shall  be 

19  punished  in  accordance  with  the  provisions  of  chapter  228 

20  of  this  title". 

21  (n)   Section  2111  of  such  title  is  amended  l)y  deleting 

22  "im})risoned  not  more  tlian  fifteen  years"  and  inserting  in. 

23  lieu  tbereof  "sent<'nced  in  accordance  \\'\\h  llie  provisions  of 

24  chapter  228  of  tins  tide". 

25  (o)    Section  2112  of  such  title  is  amended  by  deleting 


9855 


1  "imprisoned  not  more  than  fifteen  years"  and  inserting  in 

2  lieu  thereof  "sentenced  in  accordance  with  the  provisions  of 

3  chapter  228  of  this  title". 

4  (p)  (1)    'i'lii^  third  paragraph  of  section  2113(a)    of 

5  such  title  is  amended  to  read  as  follows : 

6  "Shall  he  sent«nced  in  accordance  with  the  provisions 

7  of  chapter  228  of  this  title.". 

8  (2)    Section  2113(d)    of  such  title  is  amended  hy  de- 

9  letuig  "fined  not  more  than  $10,000  or  imprisoned  not  more 

10  than  twenty-five  years,  or  hoth"  and  inserting  in  lieu  thereof 

11  "sentenced  in  accordance  with  the  provisions  of  chapter  228 

12  of  this  title". 

13  (3)   Section  2113  (e)  of  such  title  is  amended  by  dele t- 

14  ing  "imprisoned  not  less  than  ten  years,  or  punished  by 

15  death  if  the  verdict  of  the  jury  shall  so  direct"  and  inserting 

16  in  heu  thereof  "sentenced  m  accordance  with  the  provisions 

17  of  chapter  228  of  this  title". 

18  (q)   Section  2'114  of  such  title  is  amended  to  read  as 

19  follows : 

20  "§  2114.  Mail,  money,  or  other   property  of   the  United 

21  States 

22  "Whoever  assaults  any  person  having  lawful  charge, 

23  control,  or  custody  of  any  mail  matter  or  of  any  money  of 

24  other  property  of  the  United  States,  with  intent  to  rob, 

25  steal,  or  purloin  such  mail  matter,  money,  or  other  property 


9856 

8 

1  of  the  United  States,  or  robs  any  such  person  of  mail  matter, 

2  or  of  any  money,  or  other  property  of  the  United  Sta:e>% 

3  or,  if  in  efleeting  or  attempting  to  effect  such  robbery,  he 

4  ^\oun(ls  the  person  having  custody  of  such  mail,  money,  or 

5  other  property  of  the  United  States,  or  puts  such  person's 

6  life  in  jeopardy  by  the  use  of  a  dangerous  weapon,  shall  be 

7  sentenced  in  accordance  with  the  provisions  of  chapter  228 

8  of  this  title.". 

9  (r)    Section  2115  of  such  title  is  amended  by  deleting 

10  "fined  not  more  than  $1,000  or  imprisoned  not  more  than 

11  five  years,  or  both"  and  uiserting  in  lieu  thereof  "sentenced 

12  in  accordance   with   the  provisions  of  chapter  228  of  this 

13  title".  -  ; 
lA  (s)    Section  2116  of  such  title  is  amended  by  deleting 
15  "fined  not  more  than  $1,000  or  imprisoned  not  more  than 
IG  three  years,  or  both"  and  inserting  in  heu  thereof  "sentenced 

17  in  accordance  with  the  provisions  of  chapter  228  of  this 

18  title". 

19  (t)   Section  2117  of  such  title  is  amended  by  deleting 

20  "fined  not  more  than  $5,000  or  imprisoned  not  more  than 

21  ten  3'ears,  or  both"  and  hiserting  in  lieu  thereof  "sentenced 

22  in  accordance  with  the  provisions  of  chapter  228  of  this  title". 

23  (")  (0   'i'lic  first  sentence  of  section  10(b)  of  the  Act 

24  of  August   2*4,    1966,   as   amended    (7    U.S.C.   2146),   is 

25  amended  by  deleting  "fined  not  more  than  $5,000,  or  im- 


9857 

9 

1  prisoned  not  more  than  three  years,  or  both"  and  Inserting 

2  in  lieu  thereof  "sentenced  in  accordance  with  the  provisions 

3  of  chapter  228  of  title  18,  United  States  Code", 

4  (2)   The  second  sentence  of  section  16(b)  of  such  Act 

5  is  amended  by  deleting  "fhied  not  more  than  $10,000,  or 

6  imprisoned  not  more  than  ten  years,  or  both"  and  mserting 

7  in  heu  thereof  "sentenced  in  accordance  with  the  provisions 

8  of  chapter  228  of  title  18,  United  States  Code". 

9  (v)  (1)  (A)   The  fii-st  sentence  of  section  12(c)  of  the 

10  Act  of  August  28,  1957,  as  amended   (21  U.S.C.  461),  is 

11  amended  by  deleting  "fined  not  more  than  $5,000  or  im- 

12  prisoned  not  more  than  three  years  or  both"  and  inserting  in 

13  lieu  thereof  "sentenced  m  accordance  with  the  provisions  of 

14  chapter  228  of  title  18,  United  States  Code". 

15  (B)    The  second  sentence  of  section  12(c)   of  the  Act 

16  of  August   28,    1957,   as   amended    (21   U.S.C.  461),  is 

17  amended  by  deleting  "fined  not  more  than  $10,000  or  im- 

18  prisoned  not  more  than  ten  years,  or  both"  and  inserting 

19  in  Heu  thereof  "sentenced  in  accordance  with  the  provisions 

20  of  chapter  228  of  title  18,  United  States  Code". 

21  (2)  (A)    The  first  sentence  of  section  40'5  of  the  Act 

22  of  March  4,  1907,  as  amended  (21  U.S.C.  675) ,  is  amended 

23  by  deleting  "fined  not  more  than  $5,000  or  unprisoned  not 

24  more  than  three  years,  or  both"  and  inserting  in  lieu  thereof 


9858 

10 

1  "sentenced  in  accordance  with  the  provisions  of  chapter  228 

2  of  title  18,  United  States  Code". 

3  (B)  The  second  sentence  of  section  405  of  such  Act  of 

4  March  4,  1909,  as  amended   (21  U.S.C.  675),  is  amended 

5  hy  deleting  "fined  not  more  than  $10,0U0  or  imprisoned  not 
G  more  than  ten  years,  or  hoth"  and  inserting  in  lieu  thereof 

7  "sentenced  in  accordance  with  the  provisions  of  chapter  228 

8  of  title  18,  United  States  Code". 

'  9  (w)  (1)   The  first  sentence  of  section  12  (c)  of  the  Act 

10  of  December  29,  1970,  as  amended   (21  U.S.C.  1041),  is 

11  amended  by  deleting  "fined  not  more  than  $5,000  or  im- 

12  prisoned  not  more  than  three  3^ears,  or  both"  and  insertmg 

13  in  heu  thereof  "sentenced  in  accordance  with  the  provisions 

14  of  chapter  228  of  title  18,  United  States  Code". 

1,5  (2)    The  second  sentence  of  section  12  (c)   of  such  Act 

16  of  December  29,  1970,  as  amended   (21  U.S.C.  1041),  is 

17  amended  by  deleting  "fined  not  more  than  $10,000  or  im- 

18  prisoned  not  more  than  ten  years,  or  both"  and  inserting  in 

19  lieu  thereof  "sentenced  in  accordance  wllh  the  provisions  of 

20  chapter  228  of  title  18,  United  States  Code". 

21  (x)    Section   13   of  title   18,   United  States   Code,   is 

22  amended    ( 1 )    by  deleting  "and  subject  to  a  like  punisli- 

23  ment"  and   (2)   l)y  adding  at  the  end  thereof  the  following: 

24  "Whoever  is  found  guiliy  of  a  like  ofifense  under  the  provi- 

25  sions  of  this  section  shall  be  subject  to  a  like  punishment, 


9859 

11 

1  except  that  in  those  cases  in  which  a  person  is  convicted 

2  of  committing  any  act  which,  according  to  the  laws  thereof 

3  in  force   at  the   time,   constitutes   the   crime   of  burglary, 

4  where  at  night  a  person,  with  intent  to  engage  in  conduct 

5  constituting  a  crime,  enters  witliout  privilege,  or  remains 

6  surreptitious!}^  within,   a   dwelling  that  is   the  property  of 

7  another,  such  person  shall  be  sentenced  in  accordance  with 

8  the  provisions  of  chapter  228  of  this  title.". 

9  Sec.  3.  Title  18,  United  States  Code,  is  amended  by 

10  inserting  immediaiely  after  chapter  22'7  thereof  the  following 

11  new  chapter: 

12  "Chapter  228— SENTENCING 

"Sec. 

"3581.  Sentence  to  be  imposed. 

"3582.  Separate  hearing. 

13  "§  3581.  Sentence  to  be  imposed 

14  "  (a)  Whenever  a  defendant  is  found  guilty  of  or  pleads 

15  guilty  to  any  offense  under  section  13  (involving  the  offense 

16  of  burglary  as  specifically  provided  for  in  the  text  thereof) , 

17  111,    112(a),   113,   114,  351    (other  than  murder  in  the 

18  first  degree)  ,1111   (other  than  murder  in  the  first  degree) , 

19  1112,  1113,  1114   (other  than  murder  m  the  first  degree), 

20  1116   (other  than  murder  in  the  first  degree),  1117   (other 

21  than  murder  m  the  first  degree)  ,1751    (other  than  murder 

22  in  the  first  degree),  1201,  2031,  2032,  2111,  2'112,  2113 

23  (a),    (d),  or    (e) ,  2114,  2115,  2116,  ^117,  of  this  title, 

24  or  section  16  of  the  Act  of  August  24,  1966,  as  amended 


9860 

12 

1  (7  U.S.C.  2146  (1j)  ),  section  12  (c)   of  the  Act  of  August 

t>  28,  1957,  as  amended  (21  U.S.C.  461)    (other  than  murder 

3  in  the  first  degree) ,  section  405  of  the  Act  of  March  4, 

4  1907,  as  amended    (2'1  U.S.C.  675)     (odier  than  mm-der 

5  in  the  first  degree) ,  or  section  12  (c)   of  the  Act  of  Decem- 

6  her  29,  1970   (21  U.S.C.  1041)    (other  than  murder  m  the 

7  first  degree) ,  the  judge  who  presided  at  the  trial  or  before 

8  wliom  the  guilty  plea  was  entered  shall  conduct  a  separate 

9  sentencing  hearing  to  determine  the  sentence  to  be  imposed. 

10  "  {^^)   Such  hearing,  shall  be  conducted  for  the  purpose 

11  of  determining — 

12  "(1)   the  existence  or  nonexistence  of  any  and  all 

13  of  the  factors  set  forth  in  subsections   (1)   and   (m)   of 

14  this  section; 

15  "  (2)  the  existence  or  nonexistence  of  extraordinary 

16  aggravating  circumstances;  and 

17  "  (3)  the  existence  or  nonexistence  of  extraordinary 

18  mitigating  circumstances. 

19  "  (c)   If,  on  the  basis  of  such  hearing,  the  judge  deter- 

20  mines  that — 

21  "  (1)  none  of  the  factors  set  forth  in  subsection  (1) 

22  of  this  section  exists ; 

23  "  (2)  none  of  the  factors  set  forth  in  subsection  (m) 

24  of  this  section  exists;  or 


a  I  r,\ 


9861 

13 

(3)    there  are   no  extraordinary  aggravating  or 

2  mitigating  circumstances, 

3  such  judge  shall,  subject  to  subsection    (n)    of  this  section, 

4  sentence  such  defendant  in  accordance  with  the  following: 

5  "  ( 1 )    In  the  case  of  the  offense  of  murder  in  the 
G  second  degree  committed  by  a  defendant  under  section 

7  351(a),   nil,  1114,   1116,  or  1751(a)    of  this  title, 

8  or  section  16  of  the  Act  of  August  24,  1966,  as  amended 

9  (7  U.S.C.  2146  (b)  ) ,  section  12  (c)  of  the  Act  of  Au- 

10  gust  28,  1957,  as  amended   (21  U.S.C.  461),  section 

11  405  of  the  Act  of  ^farch  4,   1907,  as  amended    (21 

12  U.S.C.  675) ,  or  section  12  (c)    of  the  Act  of  Decem- 

13  her  29,   1970    (21  U.S.C.  1041),  the  defendant  shall 

14  be  sentenced  to  a  terai^of  imprisonment  of  nine  years. 

15  "  (2)   In  the  case  of  the  offense  of  voluntary  man- 

16  slaughter  committed  by  a  defendant  under  section  351 

17  (a) ,  1112,  1114,  1116,  or  1751  (a)  of  this  title,  or  sec- 

18  tion  16  of  the  Act  of  August  24,  1966,  as  amended  (7 

19  U.S.C.  2146  (b) ) ,  section  12  (c)  of  the  Act  of  August 

20  28,   1957,  as  amended    (21  U.S.C.  461),  section  405 

21  of  the  Act  of  March  4,  1907,  as  amended   (21  U.S.C. 

22  675),  or  section  12(c)    of  the  Act  of  December  29, 

23  1970    (21   U.S.C.   1041),  the  defendant  shall  be  sen- 

24  tenced  to  a  term  of  imprisonment  of  three  years. 


9862 

14 

1  "  (3)   In  the  case  of  the  ofTense  of  involuntan-  man- 

2  slaughter  committed  by  a  defendant  under  section  351 

3  (a),   1112,   1114,   1116,  or  1751(a)    of  this  title,  or 

4  section  16  of  the  Act  of  August  24,  1966,  as  amended 

5  (7   r.S.C.   2146(1))),   section   12(c)    of  the  Act  of 

6  August  28,  1957,  as  amended    (21  U.S.C.  461),  sec- 

7  tion  405  of  the  Act  of  March  4,  1907,  as  amended   (21 

8  U.S.C.  675) ,  or  section  12  (c)  of  the  Act  of  December 
.  9  29,   1970    (21   U.S.C.   1041),  the  defendant  shall  be 

10  sentenced  to  a  term  of  imprisonment  of  six  months,  and 

11  in  addition  thereto,  ma}^  be  fined  not  more  than  $1,000. 

12  "(4)  (A)   In  the  case  of  the  offense  of  an  attempt 

13  to  commit  murder    (other  than  an  offense  covered  by 

14  section   113   of  this   title)    committed  b}^  a  defendant 

15  under  section  1113,  the  defendant  shall  be  sentenced  to 
IS  a  term  of  imprisonment  of  two  years,  and  in  addition 

17  thereto,  may  be  fined  not  more  than  $1,000. 

18  "(B)    In  the  case  of  the  offense  of  an  attempt  to 

19  commit  manslaughter    (other  than  an  offense  covered 

20  b}^  section  113  of  this  title)    conmiitted  by  a  defendant 

21  under  section  1113,  the  defendant  shall  be  sentenced  to 

22  a  term  of  imprisonment  of  one  year,  and  in  addition 

23  thereto,  may  be  fined  not  more  than  $1,000. 

24  "(5)    In  the  case  of  an  offense  of  conspiracy  to 


9863 

15 

1  murder  committed  by  a  defendant  under  section  1117, 

2  the  defendant  shall  be  sentenced  to  a  term  of  four  years. 

3  "  (6)  (A)  In  the  case  of  an  offense  of  assault  com- 

4  mittcd  by  a  defendant  under  section  111,  the  defendant 

5  shall  be  sentenced  to  a  term  of  imprisonment  of  six 
G  months,  and  in  addition  thereto,  may  be  fined  not  more 
7  than  $5,000,  except  that,  if  such  defendant,  in  the  com- 
S  mission  of  such  assault,  used  a  deadly  or  dangerous 
9  weapon,  such  defendant  shall  be  sentenced  to  a  term  of 

10  imprisonment  of  three  years,  and  in  addition  thereto, 

]  1  may  be  fined  not  more  than  $10,000. 

12  "  {^)  111  ^'ii<?  case  of  an  offense  committed  b}-  a  de- 

13  fendant  under  section  112(a),  the  defendant  shall  be 

14  sentenced  to  a  term  of  imprisonment  of  six  months,  and 
1^  in  addition  thereto,  may  be  fined  not  more  than  $5,000, 
16  except  that,  if  such  defendant,  in  the  commission  of 
l'^  such  offense,  used  a  deadly  or  dangerous  weapon,  such 

18  defendant  shall  be  sentenced  to  a  term  of  imprisonment 

19  of  three  years,  and  in  addition  thereto,  may  be  fined  not 

20  more  than  $10,000. 

21  "(7)  (A)  (i)    In  the  case  of  the  offense  of  assault 

22  with  the  intent  to  commit  miu'der  committed  by  a  de- 

23  fendant  under  section  113,  the  defendant  shall  be  nvn- 

24  tenced  to  a  temi  of  imprisonment  of  four  years. 


9864 

16 

■j^  "  (ii)   In  the  case  of  the  offense  of  assault  with  the 

2  intent  to  commit  rape  committed  by  a  defendant  mider 

o  section  113(a),  the  defendant  shall  be  sentenced  to  a 

4  tenii  of  imprisonment  of  four  years. 

5  "(B)  In  the  case  of  the  offense  of  assault  with 
g  intent  to  commit  any  felony  (other  than  murder  or 
rj  rape)  committed  by  a  defendant  under  section  113  (b) , 
g  the  defendant  shall  be  sentenced  to  a  term  of  imprison- 
9  ment  of  two  years,  and  in  addition  thereto,  may  be  fined 

10  not  to  exceed  $3,000. 

11  "  (C)   In  the  case  of  the  offense  of  assault  with  a 

12  dangerous  weapon,  with  intent  to  do  bodih'  harm  and 

13  without  just  cause  or  excuse,  committed  bj^  a  defend- 

14  ant  under  section  113(c),  the  defendant  shall  be  sen- 

15  tenced  to  a  term  of  imprisonment  of  two  years,  and  in 

16  addition  thereto,  may  be  fined  not  to  exceed  $1,000. 

17  "  {^^)    In  the  case  of  the  offense  of  assault  com- 

18  mittcd  by  a  defendant  under  section  1 13  (d) ,  the  defend- 

19  ant  shall  be  sentenced  to  a  tcnn  of  imprisonment  of  one 

20  month,  and  in  addition  thereto,  may  be  fined  not  to 

21  exceed  $500. 

22  "(E)   In  the  case  of  the  offense  of  sunple  assault 

23  committed  by  a  defendant  under  section  113(c),  the 
34  defendant  shall  be  sentenced  to  a  term  of  imprisonment 


9865 

i1 

1  of  fourteen  days,  and  in  addition  thereto,  may  be  fined 

2  not  to  exceed  $300. 

3  "(8)    In  the  case  of  an  offense  committed  by  a 

4  defendant  under  section    114,   the   defendant  shall  be 

5  sentenced  to  a  term  of  imprisonment  of  two  years,  and 
Q  in  addition  thereto,  may  be  fined  not  to  exceed  $1,000. 

7  "  (9)   In  the  case  of  an  offense  coimnitted  by  a  de- 

8  fendant  under  section  2111,  the  defendant  shall  be  sen- 

9  tenced  to  a  term  of  imprisonment  of  three  years. 

10  "(10)    In  the  case  of  an  offense  committed  by  a 

11  defendant  under  section  2112,  the  defendant  shall  be 

12  sentenced  to  a  term  of  imprisonment  of  three  years. 

13  "(11)  (A)    In  the  case  of  an  offense  committed 

14  by  a   defendant  under  die  first  paragraph  of  section 

15  2113(a),  the  defendant  shall  be  sentenced  to  a  term 

16  of  imprisonment  of  three  years,  and  in  addition  thereto, 

17  may  be  fined  not  to  exceed  $5,000. 

18  "  (B)  In  the  case  of  an  offense  committed  by  a  de- 

19  fendant  under  section  2113  (d) ,  the  defendant  shall  be 

20  sentenced  to  a  term  of  impi'isonmcnt  of  five  yeai*s,  and 

21  in  addition  thereto,  may  be  fined  not  to  exceed  $10,000. 

22  "  (C)  (i)   In  -the  case  of  an  offense  cx)mmitted  by  a 

23  defendant  under  section  2113(e),  involving  the  killing 


9866 

18 

1  of  any  person  referred  to  therein,  the  defendant  shall  be 

2  sentenced  to  a  term  of  imprisonment  of  nine  years, 

3  "  (ii)  In  the  case  of  an  offense  committed  by  a  de- 

4  fendant  under  section  2113  (e)   involving  the  forcing  of 

5  any  person  to  accompany  such  defendant  without  the 

6  consent   of   such   person,    the   defendant   shall   be   im- 

7  prisoned  for  seven  years. 

8  "  (12)  (A)  In  the  case  of  an  ofifense  committed  by 

9  a  defendant  mider  section  2114  involving  an  assault 

10  with  intent  to  rob,  steal,  or  purloin,  the  defendant  shall 

11  be  sentenced  io  a  term  of  imprisonment  of  two  5'^ears, 

12  except  that,  if  such  defendant,  in  attempting  to  effect 

13  such  robbery,  stealing,  or  purloining  wounds  the  person 

14  having  custody  of  such  mail,  money,  or  property  re- 
^5  feiTcd  to  therein,  or  puts  such  person's  life  in  jeopardy 
1^  by  the  use  of  a  dangerous  weapon,  the  defendant  sliall 
1'^  be  sentenced  to  a  term  of  imprisonment  of  five  3'ears. 

18  "(B)    111  the  case  of  the  offense  of  robber}'  com- 

19  mitted  by  a  defendant  under  section  2114,  the  defendant 

20  shall  be  sentenced  to  a  term  of  imprisonment  of  three 

21  years,  except  that,  if  such  defendant  in  effecting  such 

22  robber}'  wounds  the  person  having  custody  of  such  mail, 

23  money,  or  property  referred  to  therein,  or  puts  such 

24  person's  life  in  jeopardy  by  the  use  of  a  dangerous 


9867 

19 

1  weapon,  the  defendant  shall  be  sentenced  to  a  term  of 

2  imprisonment  of  five  years. 

3  ''  (13)  (A)  In  the  case  of  an  offense  committed  by 

4  a  defendant  under  section  2115  mvolving  an  attempt, 

5  such  defendant  shall  be  sentenced  to  a  term  of  imprison- 

6  ment  of  six  months,  and  in  addition  thereto,  may  be 

7  fined  not  to  exceed  $1,000, 

8  "  (B)    In  the  case  of  an  offense  committed  by  a 

9  defendant  under  section  2115  involving  a  forcible  break- 

10  ui,  the  defendant  shall  be  sentenced  to  a  tenn  of  im- 

11  prisonment  of  one  year,  and  in  addition  thereto,  may  be 

12  fined  not  to  exceed  $1,000. 

13  "(14)  (A)    In  the  case  of  the  offense  of  violent 

14  entry  committed  by  a  defendant  under  section  2116,  the 

15  defendant  shall  be  sentenced  to  a  term  of  imprisonment 

16  of  one  year,  and  in  addition  thereto,  may  be  fined  not  to 

17  exceed  $1,000. 

18  "  (B)  In  the  case  of  an  offense  committed  by  a  de- 

19  fendant  involving  a  willful  or  malicious  assault  under 

20  section  2116,  the  defendant  shall  be  sentenced  to  a  term 

21  of  imprisonment  of  one  j^ear,  and  in  addition  thereto, 

22  may  be  fined  not  to  exceed  $1,000. 

23  "  (C)  In  the  case  of  an  offense  committed  by  a  de- 

24  fendant  involving  an  interference  under  section  2116, 


92-465  0-77-83 


9868 


20 

1  the  defendant  shall  be  sentenced  to  a  term  of  iniprlson- 

2  ment  of  eight  months,  and  in  addition  thereto,  may  he 

3  fined  not  to  exceed  $1,000. 

4  "  (15)  (A)   In  the  case  of  an  offense  of  breaking  n 

5  seal  or  a  lock  under  section  2117  committed  b}-  a  de- 

6  fendant,  the  defendant  shall  be  sentenced  to  a  term  of 

7  imprisonment  of  six  months. 

8  "(B)   In  the  case  of  an  offense  of  entering  under 

9  section  2117  committed  by  a  defendant,  the  defendant 

10  shall  be  sentenced  to  a  term  of  imprisonment  of  one 

11  yoar,  and  in  addition  thei^eto,  may  be  fined  not  to  exceed 

12  $5,000. 

13  "(1^>)  (-^)   111  th€  case  of  the  offense  of  kidnaping 

14  conunitted  b}'  a  defendant  mider  section  1751  (b),  the 

15  defendant  shall  be  sentenced  to  a  tcnn  of  imprisonment 

16  of  t^wnty  yeai^s,  except  that.  If  death  results  to  any 
1*7  individual  so  kidnaped,  the  defendant  shall  be  sentenced 

18  to  life  imprisonment. 

19  "  (B)  (i)  In  the  case  of  the  offense  of  attempting  to 

20  kill  committed  by  a  defendant  under  section  1751  (c), 

21  the  defendant  shall  be  sentenced  to  a  terai  of  imprison- 

22  ment  of  fifteen  years. 

23  "(ii)    Iri  the  c«se  of  the  offense  of  attempting  to 

24  kidnap  corainitt'ed  by  a  defendant  under  section  1751 


9869 

21 

1  (c) ,    the   defendant  shall  be  sentenced  to  a   term   of 

2  imprisonment  of  twelve  years. 

3  "(C)  (i)    In  the  case  of  an  offense  of  conspiracy 

4  to  kill  committed  by  a  defendant  mider  section  1751  (d) , 

5  the  defendant  shall  be  sentenced  to  a  term  of  imprison- 

6  ment  of  twelve  years,  except  that,  if  death  results  to 

7  the  individual  who  was  the  object  of  such  conspiracy, 

8  such   defendant  shall   be   sentenced   to  a  term  of  life 

9  imprisonment. 

10  "  (ii)    In  any  case  of  the  offense  of  conspiracy  to 

11  kidnap  committed  by  a  defendant  imder  section  1751 

12  (d),    the   defendant  shall  be  sentenced  to  a   tenn  of 

13  imprisonment  of  ten  years,  except  that,  if  death  results 

14  to  the  individual  who  was.  the  object  of  such  conspiracy, 

15  such   defendant,  shall  be   sentenced   to  a   term   of  life 

16  imprisonment. 

1'^  *'(!))    Ii^  the  case  of  an  offense  committed  by  a 

18  defendant  under  section  1751(e),   the  defendant  shall 

19  be  sentenced  to  a  term  of  imprisonment  of  two  years, 

20  and  in  addition  thereto,  ma}'^  be  fined  not  to  exceed 

21  $10,000. 

22  *'  (17)  (A)   In  the  case  of  the  offense  of  kidnaping 

23  committed  by  a  defendant  under  section  351(b),  the 

24  defendant  shall  be  sentenced  to  a  tenn  of  imprisonment 


9870 

22 

1  of  eight  years,  except  that,  if  death  results  to  any  indi- 

2  vidual  so  kidnaped,  the  defendant  shall  he  sentenced  to 

3  life  imprisonment. 

4  "(B)  (i)    In  the  case  of  the  offense  of  attempting 

5  to  kill  committed  by  a  defendanl  under  section  351  (c) , 

6  the  defendant  shall  be  sentenced  to  a  tenn  of  iniprison- 

7  mcnt  of  four  years. 

8  "(ii)    In  the  case  of  the  offense  of  attempting  to 

9  kidnap  conunitted  b}*  a  defendant  under  section  351  (c) , 

10  the  defendant  shall  be  sentenced  to  a  term  of  imprison- 

11  ment  of  three  years. 

12  "(C)  (i)  In  the  case  of  an  offense  of  conspiracy  to 

13  kill  committed  by  a  defendant  under  section  351(d), 

14  the  defendant  shall  be  sentenced  to  a  term  of  imprison- 

15  ment  of  three  years,  except  that,  if  death  results  to  the 

16  individual  who  was  the  o1)ject  of  such  conspiracy,  such 

17  defendant  shall  be  sentenced  to  a  term  of  life  imprison- 

18  ment. 

19  "(ii)    In  the  case  of  the  offense  of  conspiracy  to 

20  kidnap  committed  by  a  defendant  under  section  351  (d) , 

21  the  defendant  shall  be  sentenced  to  a  term  of  imi)rison- 

22  ment  of  two  years,  except  that,  if  death  results  to  the 

23  individual  who  was  the  object  of  such  conspirac}-,  such 

24  defendant  shall  be  sentenced  to  a  term  of  life  imprison- 

25  ment. 


9871 


23 

1  "(D)    In  the  case  of  the  offense  of  assault  com- 

2  mitted   by    a    defendant   under   section    351(e),    such 

3  defendant  shall  be  sentenced  to  a  term  of  three  montlis, 

4  and  in  addition  thereto,  may  be  fined  not  to  exceed 

5  $5,000,  except  that,  if  personal  injur}^  results,  such 
Q  defendant  shall  be  sentenced  to  a  tenn  of  imprisonment 
7  of  two  years,  and  in  addition  thereto,  may  be  fined  not 
S  to  exceed  $  10,000'. 

9  "(18)  (A)   In  the  case  of  the  offense  of  kidnaping 

10  committed  by  a  defendant  under  section  1201  (a) ,  such 

11  defendant  shall  be  sentenced  to  a  term  of  eight  years. 

12  "(B)  In  the  case  of  the  offense  of  conspiracy  com- 

13  mitted   by   a   defendant   under  section    1201  (c) ,   such 

14  defemlant  shall  be  sentenced  to  a  term  of  two  years. 

15  "(19)    In  the  case  of  an  offense  connnitted  by  a 

16  defendant  under  section   13   constituting  the  crime  of 

17  bui'glary  as  set  forth  therein,  the  defendant  shall  be  sen- 

18  fenced  to  a  term  of  imprisonment  of  one  year,  and  in 

19  addition  thereto,  may  be  fined  in  such  amount  as  may 

20  be  provided  by  law. 

21  "(20)    In  the  case  of  an  offense  committed  by  a 

22  defendant  under  section  2031,   the  defendant  shall  be 

23  sentenced  to  a  terai  of  imprisonment  of  four  years. 

24  "(21)    In  the  case  of  an  offense  committed  by  a 

25  defendant  under  section  2032,  the  defendant  shall  be 


9872 


24 

1  sentenced  to  a  term  of  imprisonment  for  a  term  of  two 

2  years. 

3  "(22)    In  the  case  of  an  ofTense  committed  by  a 

4  defendant  under  the  first  sentence  of  section  12  (c)    of 

5  the  Act  of  August  28,  1957,  as  amended   (21  U.S.O. 

6  461),  the  defendant  shall  be  sentenced  to  a  term  of 

7  imprisonment  of  six  months,  and  in  addition  thereto, 

8  may  be   fined  not  more  than  $5,000,  except  that,  if 

9  such  defendant,  in  the  commission  thereof,  used  a  deadly 

10  or  dangerous  weapon,  such  defendant  shall  be  sentenced 

11  to  a  tenu  of  imprisonment  of  two  years,  and  in  addition 

12  thereto,  may  be  fined  not  more  than  $10,000. 

13  "(23)    In  the  case  of  an  oflense  committed  by  a 

14  defendant  mider  the  first  sentence  of  section  40^5  of  the 

15  Act  of  March  4,  1907,  as  amended   (21  I'.S.C.  G75), 

16  the  defendant  shall  be  sentenced  to  a  tenn  of  imi)rison- 

17  ment  of  six  months,  and,  in  addition  thereto,  may  be 

18  fined  not  more  than  $5,000,  except  that,  if  such  defeiid- 

19  ant,  in  the  commission  thereof,  used  a  deadly  or  dau- 

20  gerous  weapon,  such  defendant  shall  be  sentenced  to  a 

21  term  of  imj)risonment  of  two  years,  and,   in  addition 

22  thereto,  may  be  fined  not  more  than  $10,000. 

23  "  (-'^)  Ji'  'li^'  ^'i^st-'  t)*  '»"  ofTense  conunitted  by  a  de- 

24  feiidant  under  the  first  sentence  of  section  12(c)  of  tho 

25  Act  of  Pecember  2*9,  1970    (21   U.S.C.   1041),   the 


9873 

25 

1  defendant  shall  be  sentenced  to  a  term  of  imprisonment 

2  of  six  months,  and,  hi  addition  thereto,  may  be  fined  not 

3  more  than  $5,000,  except  that,  if  such  defendant,  hi  the 

4  commission  thereof,  used  a  deadly  or  dangerous  weapon, 

5  such  defendant  shall  be  sentenced  to  a  term  of  imprison- 

6  ment  of  two  years,  and,  in  addition  thereto,  may  be  fined 

7  not  more  than  $10,000. 

8  *'  (25)    In  the  case  of  an  offense  committed  by  a 

9  defendant  under  the  first  sentence  of  section  16(b)   of 

10  the  Act  of  August  24,   1966,  as  amended    (7  U.S.C. 

11  2146(b)  ) ,  the  defendant  shall  be  sentenced  to  a  term 

12  of  imprisonment  of  six  months,  and,  in  addition  thereto, 

13  may  be  fined  not  more  than  $5,000,  except  that,  if 

14  such  defendant,  in  the  commission  thereof,  used  a  deadly 

15  or  dangerous  weapon,  such  defendant  shall  be  sentenced 

16  to  a  fenn  of  hnprisonment  of  two  years,  and,  in  addition 

17  thereto,  may  be  fined  not  more  than  $10,000. 

18  "(d)    If  the  judge  determines,   on  the  basis  of  such 

19  hearing — 

20  "  ( 1 )    the  existence  of  one  or  more  of  the  factors 

21  set  forth   in   subsection    (m)    of  this  section  and   the 

22  nonexistence  of  any  of  the  factors  set  forth  in  subsection 

23  (1)  of  this  section;  or 

24  "(2)    the  existence  of  one  or  more  of  the  factors 

25  set  forth  in  such  subsection   (m)   and  the  existence  of 


9874 

26 

1  one  or  more  of  the  factors  set  forth  in  suhsection    (1) , 

2  and  that  such  existing  factor  or  factors  under  subsection 

3  (ni)   substantially  outweigh  such  factor  or  factors  under 

4  subsection  (1)  ; 

5  the  judge  shall,  subject  to  the  provisions  of  subsection  (n)  of 
G  this  section,  sentence  such  defendant  to  a  term  of  iniprison- 

7  mont  equal  to  that  provided  for  such  offense  under  subsec- 

8  tion  (c)  of  this  section,  except  that  such  judge  may  increase 

9  such  term  of  imprisonment  by  an  amomit  not  to  exceed  40 

10  per  centum  of  the  amount  so  provided  for  such  offense  under 

11  subsection  (c) . 

12  '■  (e)    If  the  judge  determines,   on  the   basis   of  such 

13  hearing — 

14  "(1)    the  existence  of  one  or  more  of  the  factors 

15  set  forth  in  subsection   (1)   of  this  section  and  the  non- 
16           existence  of  any  of  the  factors  set  forth  in  subsection 

17  (m)  of  this  section;  or 

18  "  (2)   that  the  existence  of  any  factor  or  factors  set 

19  forth  in  such  subsection   (1)   substantially  outweigh  the 

20  existence  of  any  factor  or  factors  set  forth  in  such  sub- 

21  section  (m)  ; 

22  the  judge  shall,  subject  to  the  provisions  of  subsection   (n) 

23  of  this  section,  sentence  such  defendant  to  a  term  of  impris- 

24  onment  equal  to  that  provided  for  such  offense  under  sub- 

25  section    (c)    of   this  section,  except  that  such  judge  may 


9875 


27 

1  impose  a  lesser  seiitcnce,  in  which  case,  he  is  authorized  to 

2  reduce  such  term  of  imprisonment  by  an  amount  not   to 

3  exceed  40  per  centum  of  the  amoimt  so  provided  for  such 

4  ofTense  under  subsection  (c)  of  this  section. 

5  "  (f )  If  the  judge  determines,  on  the  basis  of  such  hear- 

6  ing,  that  there  exist  extraordinary  aggravating  circumstances, 

7  the  judge  shall,  subject  to  the  provisions  of  subsection   (n) 

8  of  this  section,  sentence  such  defendant  to  a  term  of  impris- 

9  onment  equal  to  that  provided  for  such  offense  under  subsec- 

10  tion  (c) ,  and  in  addition  thereto,  may  increase  such  sentence 

11  by  an  amount  not  to  exceed  the  maximum  provided  for  such 

12  offense  under  subsection  (h)   of  this  section,  and  in  addition 

13  thereto,  may  fine  such  defendant  in  an  amount  not  to  exceed 

14  twice  the  amoimt  provided  for  such  offense  under  subsection 

15  (c). 

16  "  (g)    If  the  judge  determines,   on  the  basis  of  such 

17  hearing,   that  there  exist  extraordinaiy  mitigating  circum- 

18  stances,  the  judge  shall,  subject  to  the  provisions  of  subsec- 

19  tion   (n)   of  this  section,  sentence  such  defendant  to  a  term 

20  of   imprisonment  equal  to   that  provided  for  such  offense 

21  under  subsection    (c) ,  including  suspension  in  whole  or  in 

22  part,  miless  the  judge  determines  to  impose  a  lesser  sentence, 

23  in  which  case  he  is  authorized  to  impose  any  sentence  of  im- 

24  prisonment  up  to  the  amount  provided  for  such  offense  under 

25  subsection    (c) ,  and  in  addition  thereto,  may  fine  such  de- 


9876 

28 

1  feiidant  in  an  amount  not  to  exceed  the  anioimt  provided 

2  for  under  subsection   (c)   for  such  offense. 

3  "(h)    In  an}'  case  in  which  a  defendant  is  sentenced 

4  pursuant  to  this  chapter  to  a  term  below  that  provided  for 

5  the  offense  under  subsection    (e) ,  the  United  States  shall 

6  have  the  right,  and  in  any  case  in  which  a  defendant  is  sen- 

7  tenced  pursuant  to  this  chapter  to  a  term  above  that  pro- 

8  vided  for  the  offense  under  subsection   ( d ) ,  such  defendant 

9  shall  have  the  right,  within  sixty  days  following  any  such 

10  sentence,  to  appeal  to  an  appi'opriate  United  States  court  of 

11  appeals  for  a  review  of  such  sentence  solely  for  the  purpose 

12  of  determining  if  it  is,  and  was  imposed,  m  accordance  with 

13  law.  The  coui't  of  appeals  shall  have  jurisdiction  to  receive, 

14  consider,  and  act  upon  such  appeal.  The  court  shall  have 

15  jurisdiction  to  affirm  such  sentence  or  to  remand  the  case 

16  back   to   the   trying  court  for  coiTection  by  such  court  in 

17  accordance  with  tlie  direction  of  the  appellate  court. 

18  "(i)    Except  with  respect  to  a  sentence  imposed  pur- 

19  suant  lo  subsection   (g)  of  this  section,  no  judge  of  a  United 

20  States  com*t  shall  have  jurisdiction  to  suspend  any  sentence 

21  imposed  pursuant  to  this  chapter  and  place  on  probation  any 

22  such  defendant  so  sentenced. 

23  "  (j)   In  any  case  involving  a  defendant  sentenced  pur- 

24  suant  to  subsection  (f)   to  a  term  in  excess  of  that  provided 

25  for  under  subsection    (c)     (by  reason  of  an  extraordinaiy 


9877 

29 

1  aggravating  cireiim.stance) ,   or  involving  a  defendant  sen- 

2  tenced  pursuant  to  subsection   (g) ,  to  a  term  less  dian  that 

3  provided  for  under  subsection  (c)    (l)y  reason  of  an  extraor- 

4  dinary  mitigating  circumstances) ,  the  judge  shall  include,  as 

5  a  part  of  his  decision,  a  detailed  account  as  to  his  reason  or 
Q  reasons  for  so  imposing  such  sentence. 

7  "  {^)  The  maximum  sentence  which  may  be  imposed  for 

8  an  offense  puixuant  to  subsection    (f)    shall  be  as  follows: 

9  "  ( 1 )    In  the  case  of  the  offense  of  murder  in  the 

10  second  degree  committed  b}^  a  defendant  under  section 

11  351  (a),  1111,  1114,  11  IT),  or  1751  (a)  of  this  title,  or 

12  section  10  of  the  Act  of  August  24,  1966,  as  amended 

13  (7   U.S.C.   2146(b)),   section   12(c)    of  the  Act  of 
34  August  28,  1957,  as  amemled  (21  U.S.C.  461) ,  section 

15  405  of  the  Act  of  March  4,   1907,  as  amended    (21 

16  U.S.C.  675),  or  section  12(c)    of  the  Act  of  Decem- 

17  ber  29,  1970    (21  U.S.C.  1041),  the  maximum  term 

18  to  which  such  defendant  may  be  sentenced  shall  be 

19  imprisonment  for  life. 

20  "(2)   In  the  case  of  the  offense  of  voluntary  man- 

21  slaughter  committed  by  a  defendant  under  section  351 

22  (a) ,  11 12,  1114,  1116,  or  1751  (a)  of  this  title,  or  sec- 

23  tion  16  of  the  Act  of  August  24,   1966,  as  amended 

24  (7   U.S.C.  2146(b)),   section   12* (c)    of  the  Act  of 

25  August  28,  1957,  as  amended    (21  U.S.C.  461),  sec- 


9878 

30 

1  tion  405  of  the  Act  of  March  4,  1907,  as  amended  (21 

2  TJ.S.C.  675) ,  or  section  12  (c)  of  the  Act  of  December 

3  29,    1970    (21   U.S.C.   1041),  the  maxhnum  term  to 

4  which  such  defendant  may  be  sentenced  shall  be  ten 

5  years. 

Q  "  (3)  In  the  case  of  the  ofl'ense  of  invohmtaiy  man- 

7  slaughter  committed  by  a  defendant  under  section  351 

8  (a),   1112,   1114,   1116,  or  1751(a)    of  this  title,  or 

9  section  16  of  the  Act  of  August  24,  1966,  as  amended 

10  (7   U.S.C.   2146(b)),   section   12(c)    of  the  Act  of 

11  August  28,  1957,  as  amended  (21  U.S.C.  461) ,  section 

12  405  of  the  Act  of  March  4,   1907,  as  amended    (21 

13  U.S.C.  675),  or  section  12(c)    of  the  Act  of  Decern^ 

14  ber  29,  1970  (21  U.S.C.  1041) ,  the  maxunimi  term  to 

15  which  such  defendant  may  be  sentenced  shall  be  three 

16  years. 

17  "(4)  (A)   In  the  case  of  the  offense  of  an  attempt 

18  to  connnit  murder    (other  than  an  offense  covered  l)y 

19  section   113   of  this  title)    committed  by  a  defendant 

20  under  section  1113,  the  maximum  term  to  v^hich  such 

21  defendant  may  be  sentenced  shall  be  four  years. 

22  "(1^)    I^^  the  case  of  the  offense  of  an  attempt  to 

23  commit  manslaughter  (other  than  an  offense  covered  by 

24  section    113   of   this   title)    committed  by  a  defendant 


9879 

31 

1  under  section  1113,  I  he  maximum  term  to  which  such 

2  defendant  may  Ijc  sentenced  shall  be  three  years. 

3  "(5)  (A)    In    the    case    of   an   offense   of  assault 

4  committed  by  a  defendant  under  section  111,  the  max- 

5  inmm  term  to  which  such  defendant  may  be  sentenced 

6  shall  be  three  years,  except  that,  if  such  defendant,  in 

7  the  commission  of  such  assault,  used  a  deadly  or  dan- 

8  gerous   weapon,   the   maximum   term  for   which   such 

9  defendant  may  be  sentenced  shall  be  ten  years. 

10  "(B)    In  the  case  of  an  offense  committed  by  a 

11  defendant  under  section  112(a),  the  maximum  term 

12  to  which  such  defendant  may  be  sentenced  shall  be  three 

13  3^ears,  except  that,. if  such  defendant,  in  the  commission 

14  of  such  offense,  used  a  deadly  or  dangerous  weapon, 

15  the  maxmimn  term  to  which  such  defendant  may  be 

16  sentenced  shall  be  ten  years. 

17  "  (G)  (A)  (i)    In  the  case  of  the  offense  of  assault 

18  with    the    intent  to   commit   murder   committed   l)y   a 

19  defendant  under  section    113,    the  maximum  term  to 

20  which  such  defendant  may  be  sentenced  shall  be  tw^enty 

21  years. 

22  "  (ii)   In  the  case  of  the  offense  of  assault  with  the 

23  intent  to  commit  rape  committed  by  a  defendant  under 

24  section    113  (a) ,    the   maximum   terai   to   which   such 

25  defendant  j^ifiy  be  sentenced  shall  be  twenty  years. 


9880 

3^ 

^  "  (B)    In  the  case  of  the  offense  of  assault  with 

2  intent   to  commit  any   felony    (other  than  murder  or 

3  rape)  committed  l)y  a  defendant  under  flection  113  (h) , 

A  the  maximum  term   to  which  such  defendant  may  be 

K  sentenced  shall  be  ten  years. 
5 

f,  "  (C)    In  the  case  of  the  offense  of  assault  with  a 

rr  dangerous  weapon,  with  intent  to  do  bodily  harm  and 

Q  without  just  cause  or  excuse,  committed  by  a  defendant 

g  under  section  113  (c) ,  the  maximum  term  to  which  such 

■1Q  defendant  may  ])e  sentenc<^d  shall  be  five  years. 

jH  "  {^)    In  the  c^ise  of  the  offense  of  assault  com- 

-^2  mitted  1)y  a  defendant  under  section  113  (d) ,  the  maxl- 

■iQ  mimi  term  to  which  such  defendant  may  be  sentenced 

14  shall  be  three  months. 

15  "(E)   Iri  the  case  of  tlie  offense  of  simple  assault 

16  committed  by  a  defendant  under  section  113(e),  th« 

17  maximum  term  to  which  such  defendant  may  be  sen- 

18  tenced  shall  be  two  months. 

19  "(7)    In  the  case  of  the  offense  of  conspiracy  to 

20  murder  committed  by  a  defendant  under  section  1117, 

21  the  maxinuim  term  to  which  such  defendant  may  l»e 

22  sentenced  shall  be  life  imprisonment. 

23  "(8)    In  the  c-ase  of  an  offense  conmiitted  ))y  a 

24  defendant   under  section    114,    the   maximum   tenn    to 


9881 


33 

1  wbich  such  defendant  may  be  sentenced  shall  be  seven 

2  years. 

3  "(9)    In  the  case  of  an  offense  committed  by  a 

4  defendant  imder  section  2111,  the  maximum  term  to 

5  which  such  defendant  may  be  sentenced  shall  be  fifteen 

6  years. 

7  "(10)  In  the  c^se  of  an  offense  committed  by  a 
g  defendant  under  section  2112,  the  maximum  term  to 
9  which  such  defendant  may  be  sentenced  shall  be  fifteen 

10  years. 

11  "  (11)  (A)  In  the  case  of  an  offense  committed  by 

12  a  defendant  imder  the  first  paragraph  of  section  2113 

13  (a) ,  the  maximum  term  to  which  such  defendant  may 

14  be  sentenced  shall  be  twenty  years. 

15  "  (B)    In  the  case  of  an  offense  committed  by  a 

16  defendant  under  section  2113  (d) ,  the  maximum  term  to 

17  which  such  defendant  may  be  sentenced  shall  be  twenty- 

18  five  years. 

19  "(C)  (i)  In  the  case  of  an  offense  committed  by  a 

20  defendant  under  section  2113(e)    involving  the  kilhng 

21  of  any  person  referred  to  therein,  the  maximum  term  to 

22  which  such  defendant  may  be  sentenced  shall  be  death. 

23  "  (ii)    In  the  case  of  an  offense  committed  by  a 

24  defendant  under  section  2113  (e)   involving  the  forcing 


9882 


34 

2  of  ail}'  person  to  accompany  such  defendant  without  the 

2  consent  of  such  person,  the  maximum  term  to  which 

3  such  defendant  may  be  imprisoned  shall  be  imprisonment 

4  for  life  or  death. 

5  "  (12)  (A)  In  the  case  of  an  offense  committed  by  a 

6  defendant  under  section  2114  involving"  an  assault  with 

7  intent  to  rob,  steal,  or  purloin,  the  maximum  term  to 

8  which  such  defendant  may  be  sentenced  shall  be  ten 

9  years,  except  that,  if  such  defendant,  in  attempting  to 

10  effect  such  ro\')ery,  stealing,  or  purloining,  wounds  the 

11  person  having  custody  of  such  mail,  money,  or  property 

12  referred  to  therein,  or  puts  such  person's  life  in  jeopardy 

13  by  the  use  of  a  dangerous  weapon,  the  maximum  term 

14  for  such  defendant  may  be  twenty-five  years. 

15  "(B)    In  the  case  of  the  offense  of  i'o1)l)ery  com- 

16  mitted  by  a  defendant  under  section  2114,  the  maximum 

17  tenii  to  vvhich  such  defendant  may  be  sentenced  shall  be 

18  ten  years,  except  that,  if  such  defendant  in  effecting  such 

19  robbery   wounds   the   person   having   custod}^    of   such 

20  mail,  money,  or  property  referred  to  therein,  or  puts  such 

21  person's  life  in  jeopardy  by   the  use   of  a  dangerous 

22  weapon,  the  maximum  terai  for  such  defendant  may  be 

23  twenty-five  years. 

24  "(13)  {A )  In  the  case  of  an  offense  committed  by  a 

25  defendant  iiinder  section  2115  involving  an  attempt,  the 


9883 


35 

1  maximum  terai  to  which  such  defendant  may  be  scn- 

2  tenced  shall  be  three  years. 

3  "(B)    In  the  case  of  an  offense  committed  by  a 

4  defendant  under  section  2115  involving  a  forcible  break- 

5  ing,  the  maximum  term  to  which  such  defendant  ma}^  be 
Q  sentenced  shall  be  five  years. 

7  "(14)  (A)    In  the  case  of  the  offense  of  violent 

8  entry  committed  by  a  defendant  under  section  2116,  the 

9  maximum  term  to  which  such  defendant  may  be  sen- 

10  tenced  shall  be  two  years. 

11  "  (B)  In  the  case  of  an  offense  committed  by  a  de- 

12  fendant  involving  a  willful  or  mahcious  assault  under 

13  section  2116,  the  maximum  term  to  which  such  defend- 

14  ant  may  be  sentenced  shall  be  three  years. 

15  "  (C)  In  the  case  of  an  offense  committed  by  a  de- 

16  fendant  involving  an  interference  under  section  2116,  the 

17  maximum  term  to  which  such  defendant  may  be  sen- 

18  tenced  shall  be  two  years. 

19  "  (15)  (A)  In  the  case  of  an  offense  of  breaking  a 

20  seal  or  a  lock  under  section   2117   committed   by   a 

21  defendant,  the  maximum  term  to  which  such  defendant 

22  may  be  sentenced  shall  be  five  ^^ears. 

23  "(B)   In  the  case  of  an  offense  of  entering  under 

24  section  2117  committed  by  a  defendant,  the  maximum 


9884 


36 

1  teitn  to  which  such  defendant  may  be  sentenced  shall  be 

2  ten  years. 

3  "  (16)  (A)   In  the  case  of  the  offense  of  kidnaping 

4  committed  by  a  defendant  mider  section  1751  (b),  the 

5  maximum  term  to  which  such  defendant  may  be  sen- 

6  tenced  shall  be  life  imprisonment,  except  that,  if  death 

7  results  to  any  individual  so  kidnaped,   the  maximum 

8  term  for  such  defendant  shall  be  death. 

9  "(B)  (i)   In  the  case  of  the  offense  of  attempting 

10  to  kill  committed  by  a  defendant  under  section   1751 

11  (c),  the  maximum  temi  to  which  such  defendant  may 

12  be  sentenced  shall  be  life  imprisonment. 

13  "(ii)    111  the  case  of  the  offense  of  attempting  to 

14  kidnap  committed  by  a  defendant  under  section  1751 

15  (c),  the  maximum  term  to  which  such  defendant  may 

16  be  sentenced  shall  be  life  imprisonment. 

17  "(^')  (*')    I'l  the  case  of  an  offense  of  conspiracy 

18  to  kill  committed  by  a  defendant  under  section   1751 

19  (d) ,  the  maximum  tenn  to  which  such  defendant  may 

20  be  sentenced  sliall  be  life  imprisonment,  except  that,  if 

21  death  results  to  the  individual  who  was  the  object  of 

22  such  conspiracy,  the  maximum  term  for  such  defendant 

23  shall  be  death. 

24  "(ii)    In  any  case  of  the  offense  of  conspiracy  to 

25  kidnap  committed  by  a  defendant  under  section  1751 


9885 


37 

1  (d),  the  maxiinum  term  to  whicli  such  defendant  may 

2  be  sentenced  shall  be  life  imprisonment,  except  that,  if 

3  death  results  to  the  individual  who  was  the  object  of 

4  such  conspiracy,  such  maximum  term  for  such  defendant 

5  shall  be  death. 

6  "(D)    In  the  case  of  an  offense  committed  by  a 

7  defendant  under  section  1751(e),  the  maxmium  term 

8  to  which  such  defendant  may  be   sentenced  shall  be 

9  ten  years. 

10  "(17)  (A)   In  the  case  of  the  offense  of  kidnaping 

11  committed  by  a  defendant  under  section  351(b),  the 

12  maximum  term  to  which  such  defendant  may  be  sen- 

13  tenced  shall  be  life  imprisonment,  except  that,  if  death 

14  results  to  any  individual  so  kidnaped,  the  maximum  term 

15  for  such  defendant  shall  be  death. 

16  "(B)  (i)   In  the  case  of  the  offense  of  attempting 

17  to  kill  committed  by  a  defendant  under  section  351  (c) , 

18  the  maximum  term  to  which  such  defendant  may  be 

19  sentenced  shaU  be  life  imprisonment. 

20  "  (ii)    In  the  case  of  the  offense  of  attempting  to 

21  kidnap  committed  by  a  defendant  under  section  351  (c) , 

22  the  maximum  term  to  which  such  defendant  may  be 

23  sentenced  shall  be  life  imprisonment. 

24  "  (C)  (i)  In  the  case  of  an  offense  of  conspirary  to 

25  kidnap  committed  by  a  defendant  mider  section  351  (d) , 


9886 


38 

^  maximum  term  to  which  such  defendant  may  be  sen- 

2  tenced  shall  be  lite  imprisonment,  except  that,  if  death 

3  results  to  the  individual  who  ^Yas  the  object  of  such  con- 

4  spiracy,  such  maximum  term  for  such  defendant  shall 

5  be  death. 

6  "  (ii)    In  the  case  of  the  offense  of  conspiracy  to 

7  kidnap  committed  b}'  a  defendant  under  section  351  (d) , 

8  the  maximimi  tenn  to  which  such  defendant  ma}'  be 

9  sentenced  shall  be  life  imprisonment,   except   that,   if 

10  death  results  to  the  individual  who  was  the  ol)ject  of 

11  such  conspiracy,  such  maximum  term  for  such  defendant 

12  shall  be  death. 

13  "  {^)  In  the  case  of  the  offense  of  assault  committed 

14  by  a  defendant  under  section  351(e),  the  maximum 

15  term  to  which  such  defendant  may  be  sentenced  shall  be 

16  one  year,  except  that,  if  personal  uijury  results,  such 

17  maximum  tenn  for  such  defendant  may  be  ten  years. 

18  "(18)  (A)   In  the  case  of  the  offense  of  kidnaping 

19  committed  by  a  defendant  under  section  1201  (a),  the 

20  maxhmuu  term  to  which  such  defendant  may  be  sen- 

21  tenced  shall  be  life  unprisomnent. 

22  "  (^)  I"^  t^^  ^^se  of  the  offense  of  conspiracy  com- 

23  mitted  by  a  defendant  under  section  1201  (c) ,  the  maxi- 

24  mum  tcrai  to  which  such  defendant  may  be  sentenced 

25  shall  be  life  imprisonment. 


9887 


39 

1  "(19)    In  the  case  of  an  offense  committed  by  a 

2  defendant  under  section   13   constituting  the   crime   of 

3  burglary  as  set  foitli  therein,   the  maximum   term  to 

4  which  such  defendant  ma}'  be  sentenced  shaU  be  six 

5  years. 

6  "(20)    In  the  case  of  an  offense  committed  by  a 

7  defendant  under  section  2031,  the  maxunum  term  to 

8  which  such  defendant  may  be  sentenced  shall  be  life 

9  imprisomuent  or  death. 

10  ''(21)    In  the  case  of  an  offense  committed  by  a 

11  defendant  under  section  2032,  the  maximum  term  to 

12  which  such  defendant  may  be  sentenced  shall  be  fifteen 

13  years. 

14  "  (ij  Por  purposes  of  this  chapter,  the  mitigating  factors 

15  to  be  considered  in  any  such  special  sentencing  hearing  held 

16  for  the  purpose  of  determining  the  sentence  to  be  imposed 
l'^  on  any  defendant  within  the  purview  of  this  chapter  are  as 

18  follows : 

19  "  ( 1 )    Tlie  defendant  played  a  mmor  role  in  the 

20  offense  for  which  such  defendant  is  subject  to  sentencing. 

21  "(2)  The  defendant  conmiitted  the  offense  under 
some  degree  of  duress,  coercion,  threat,  or  compulsion, 
insufEcient  to  constitute  a  complete  defense  but  which 

24  significantly  affected  the  conduct  of  tlie  defendant. 


oo 


23 


9888 

40 

J  "(3)    The  defendant  exercised  extreme  caution  in 

2  carrying  out  the  ofTcnse. 

3  "  (4)    The  victim  or  victims  provoked  the  offense 

4  to  a  significant  degree  l)y  their  conduct. 

5  "  (5)    The  defendant  believed  he  had  a  claim  or 
Q  a  right  to  the  property  involved  in  such  offense. 

Y  "  (6)   The  defendant  was  motivated  by  a  desire  to 

g  provide  necessities  for  his  family  or  himself. 

9  "(7)    The  defendant  was  suffering  from  a  mental 

IQ  or  physical   condition   that   significantly   reduced   such 

1^  defendant's  culpability  for  the  offense. 

'•j^2  "(8)    The  defendant,  because  of  his  youth  or  old 

j^3  age,   lacked   substantial   judgment   in    committing   the 

14  offense. 

15  "(9)    The  amounts  of  money  or  property  taken 

16  were  dehberately  very  small  and  no  harm  was  done  or 

17  gratuitously  threatened  against  the  victim  or  victims. 

18  "(10)   The  defendant,  though  technically  guilty  of 

19  the  offense,  committed  the  off'ense  mider  such  unusual 

20  circumstances  that  it  is  unlikely  that  a  sustained  mtent 

21  to  conunit  such  offense  motivated  the  defendant's  con- 

22  duct. 

23  "  (m)  For  the  purposes  of  this  chapter,  the  aggravating 

24  factors   to  be   considered   in   any   such   special  sentencing 

25  hearing  held  for  the  purpose  of  detennining  the  sentence  to 


9889 


41 

1  be  imposed  on  any  such  defendant  within  the  purview  of 

2  this  cliapter  are  as  foUows : 

3  "  (1)  The  defendant  was  the  leader  of  the  criminal 

4  enterprise. 

5  "(2)    The  offense  involved  several  perpetrators. 

6  "(3)    The  offense  involved  several  victims. 

7  "(4)   The  victim  or  victims  were  particularly  vul- 

8  nerable. 

9  "  (5)  The  victim  or  victims  were  treated  with  par- 

10  ticular  cruelty  during  the  perpetration  of  the  offense. 

11  "  (6)   The  degree  of  physical  harm  inflicted  on  the 

12  victim  or  victims  was  particularly  great. 

13  ''  (7)  The  amounts  of  money  or  property  taken  were 

14  considerable. 

15  "(8)    The  defendant,  though  able  to  make  restitu- 

16  tion,  has  refused  to  do  so. 

17  "(9)   The  defendant  had  no  pressing  need  for  the 

18  money  or  property  taken,  but  was  motivated  by  thrills 

19  or  by  the  desire  for  luxuries. 

20  "(10)   The  defendant  has  threatened  witnesses,  or 

21  has  a  history  of  violence  against  witnesses. 

22  "(n)    In  sentencing  any  defendant  pursuant  to  sub- 

23  section    (c) ,    (d) ,    (e) ,  or    (g) .   the  judge  shall,  if  such 

24  defendant  has  one  prior  conviction  for  a  felony  in  a  court 

25  of  the  United  States,  the  District  of  Columbia,  the  Common- 


9890 


42 

1  wealth  of  Puerto  Eico,  a  territory  or  possession  of  the  United 

2  States,  any  State,  or  any  poHtical  subdivision  thereof,  com- 

3  mitted  on  an  occasion  different  from  the  offense  for  which 

4  such  defendant  is  to  be  so  sentenced,  increase  the  amount 

5  of  such  sentence  otherwise  authorised  by  such  subsection  by 

6  an  amount  not  to  exceed  50  per  centum  thereof.  In  any 

7  case  in  which  any  such  defendant  has  two  such  prior  convic- 

8  tions,  the  judge  shall  increase  such  sentence  by  an  amount 

9  not  to  exceed  100  per  centum  thereof.  If  such  defendant  has 

10  three  or  more  such  prior  convictions,  the  judge  shall  increase 

11  such  sentence  by  an  amount  not  to  exceed  200  per  centum 

12  thereof,  except  that  no  sentence  may  be  higher  than  that  pro- 

13  vided  for  in  subsection   (k).  A  conviction  shown  on  direct 

14  or  collateral  review   or  at  the   sentencing  hearing   to   be 

15  invalid  or  for  which  the  defendant  has  been  pardoned  on  the 

16  ground  of  innocence  shall  be  disregarded  for  purposes  of  this 

17  subsection.  Any  increase  in  a  sentence  authorized  by  this 

18  subsection  shall  be  in  addition  to  any  maximum  sentence 

19  imposed  pursuant  to  subsection  (f). 

20  "§  3582.  Separate  hearing 

21  "  (a)  With  respect  to  any  sentencing  hearing  held  under 

22  this  chapter,  the  court  shall  fix  a  time  for  the  hearing,  and 

23  notice  thereof  shall  be  given  to  the  defendant  and  the  United 

24  States  at  least  ten  days  prior  thereto.  The  court  shall  permit 

25  tlie  United  States  and  counsel  for  the   defendant,   or  the 


9891 


43 

1  defendant  if  he  is  not  represented  by  counsel,  to  inspect  the 

2  presentence  report  sufficiently  prior  to  the  hearing  as  to  afford 

3  a  reasonable  opportunity  for  Aerification.  In  extraordinary 

4  cases,  the  court  may  withhold  material  not  relevant  to  a 

5  proper  sentence,  diagnostic  opinion  which  might  seriously 

6  disrupt  a  program  of  rehabilitation,  any  source  of  information 

7  obtained  on  a  promise  of  confidentiality,  and  material  pre- 

8  viously  disclosed  in  open  coiu*t.  A  court  withholding  all  or 

9  any  part  of  a  presentence  report  shall  infoim  the  parties  of 

10  its  actions  and  place  in  the  record  the  reasons  therefor.  The 

11  court  may  require  parties  inspecting  all  or  any  part  of  a 

12  presentence  report  to  give  notice  on  any  part  thereof  intended 

13  to  be  controverted.  In  connection  with  the  hearing,  the  de- 

14  fendant  and  the  United  States  shall  be  entitled  to  assistance 

15  of  counsel,  compidsory  process,  and  cross-examination  of  such 

16  witnesses  as  appear  at  the  hearmg. 

17  "  {^)  ^^y  information  relevant  to  any  of  the  mitigating 

18  factors  set  forth  in  section  3581  (1)    may  be  presented  by 

19  either  the  Govermnent  or  the  defendant,  regardless  of  its 

20  admissibility  under  the  rules  governing  admission  of  evi- 

21  dence  at  criminal  trials.  Any  information  relevant  to  any  of 

22  the  aggravating  factors  set  forth  in  section  3581  (m)    may 

23  be  presented  by  either  the  Government  or  the  defendant,  if 

24  admissil)le  under  the  rules  governing  the  admission  of  evi- 

25  dence  at  crimmal  trials. 


9892 


44 

1  "  (c)  The  Government  and  the  defendant  shall  be  given 

2  fair  opportunity  to  rebut  any  information  received  at  the 

3  hearing,  and  to  present  arguments  as  to  the  adequacy  of  the 

4  information  to  establish  the  existence  of  the  factors  set  forth 

5  in  subsections    (1)   and    (m)    of  section  3581,  or  any  prior 

6  convictions  of  such  defendant. 

7  "  {^)  The  burden  of  establishing  the  existence  of  any  of 

8  the  mitigating  factors  set  forth  in  section  3581  (1)   is  on  the 

9  defendant,  and  is  not  satisfied  unless  established  by  a  pre- 

10  ponderance  of  the  evidence.  The  burden  of  establishing  the 

11  existence  of  any  of  the  aggravating  factors  set  forth  in  sec- 

12  tion  3581  (m)    is  on  the  Government,  and  is  not  satisfied 

13  unless  established  be3^ond  a  reasonable  doubt. 

14  "  (e)   A  duly  authenticated  copy  of  a  former  judgment 

15  or  commitment  shall  be  prima  facie  evidence  of  such  former 

16  judgment  or  connnitment.  The  burden  of  establishing  the 

17  existence  of  prior  convictions  is  on  the  Government,  and  is 

18  not  satisfied  unless  estabhshed  by  a  preponderance  of  the 

19  information,  including  hiformation  submitted  during  the  trial 

20  of  such  conviction,  the  sentencing  hearing,   and  the  pre- 

21  sentence  report. 

22  "(f)   The  imposition  or  execution  of  any  sentence  pur- 

23  suant  to  this  chapter  or  section  1111  (a)   of  this  title,  other 

24  tlian  a  sentence  imposed  pursuant  to  subsection   (g)   of  sec- 

25  tion  3581,  shall  not  be  suspended,  probation  shall  not  be 


9893 


45 

1  granted,  and  chapters  311  and  402  of  this  title  shall  not  be 

2  applicable  with  respect  to  such  sentence. 

3  "  (g)    Notwithstanding  the  provisions  of  section  4161 

4  of  this  title,  each  prisoner  convicted  of  an  offense  against  the 

5  United  States  and  confined  in  a  penal  or  correctional  institu- 

6  tion  for  a  definite  term  other  than  for  life  pursuant  to  a  sen- 

7  tence  unposed  under  this  chapter,  whose  record  of  conduct 

8  shows  that  he  has  faithfullj^  observed  all  the  rules  and  has 

9  not  been  subjected  to  punishment,  shall  be  entitled  to  a  deduc- 

10  tion  from  the  tenn  of  his  sentence  beginning  with  the  day 

11  on  which  the  sentence  commences  to  run,  as  follows : 

12  "Seven  days  for  each  month,  if  the  sentence  is  not  less 

13  than  six  months  and  not  more  than  one  year. 

^  ^  "Eight  days  for  each  month,  if  the  sentence  is  more  than 

'■"^  one  year  and  less  than  three  years. 

^''  "Nine  days  for  each  montli,  if  the  sentence  is  not  less 

^  ^  than  three  years  and  less  than  five  years. 

18  "Ten  days  for  each  month,  if  the  sentence  is  not  less 

19  than  five  years  and  less  than  ten  years. 

20  "Twelve  days  for  each  month,  if  the  sentence  is  ten  years 

21  or  more. 

22  "When  two  or  more  such  consecutive  sentences  are  to 

23  Ijc  served,  the  aggregate  of  the  several  sentences  shall  be  the 

24  basis  upon  which  tlie  deduction  shall  be  computed.". 


9894 


95th  COXGRESS 
1st  Session 


S.  1221 


IN  THE  SENATE  OF  THE  UNITED  STATES 

April  4  (legislative  day,  February  21),  1977 

Mr.  Scott  introduced  the  following  bill;  which  was  read  twice  and  referred 
to  the  Conniiittee  on  the  Judiciary 


A  BILL 

To  amend  chapter  44  of  title  18  of  the  United  States  Code  (re- 
specting firearais)  to  penalize  the  use  of  fireamis  in  the  com- 
mission of  any  felony  and  to  increase  the  penalties  in  certain 
related  existing  provisions. 

1  Be  it  enacted  hy  the  Senate  and  House  of  Bepresenta- 

2  tives  of  the  United  States  of  America  in  Congress  assembled, 

3  That  section  924  (c)  of  title  18  of  the  United  States  Code  is 

4  amended  to  read  as  follows : 

5  "(c)   Whoever— 

6  "  (1)   uses  any  firearm  to  commit  a  felony  with  re- 

7  spect  to  which  the  district  courts  of  the  United  States 

8  have  original  and  exclusive  jurisdiction  under  section 

9  3231of  this  title,  or 
II 


9895 


2 

1  "(2)   uses  any  firearm  transported  in  interstate  or 

2  foreign  commerce  or  affecting  such  commerce  to  com- 

3  mit  any  crime  punishable  by  imprisonment  for  a  temi 

4  exceeding  one  year,  and  is  convicted  of  such  crime  in  a 

5  court  of  any  State, 

6  shall,  in  addition  to  the  punishment  provided  for  the  com- 

7  mission  of  such  felony  or  crime,  be  sentenced  to  a  term  of 

8  imprisonment  for  not  less  than  one  year,  nor  more  than 

9  three  years.  In  the  case  of  his  second  or  subsequent  con- 

10  viction  under  this  subsection,  such  person  shall  be  sentenced 

11  to  imprisonment  for  any  term  of  years  not  less  than  five, 

12  nor  more  than  ten  years.  Notwithstanding  any  other  provi- 

13  sion  of  law,  the  com't  shall  not  suspend  the  sentence  in  the 
•^  case  of  any  person  convicted  under  this  subsection,  or'  give 
^  him  a  probationary  sentence,  nor  shall  the  term  of  imprison- 

ment  run  concurrently  with  any  term  of  imprisonment  im- 

posed  for  the  commission  of  such  felony  or  crime.". 

O 


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