CONTENTS American Civil Liberties Union Bell, Hon. Griffin, former Attorney General of the United States Finch, John M., Arthur Young & Co., Washington, D.C., on behalf of the 11954 11785 11798 11944 Freeman, George C., Hunton & Williams, Washington, D.C., chairperson, Gebelein, Richard S., attorney general of the State of Delaware, on behalf of the National Association of Attorneys General. Greenhalgh, William, chairperson, Committee on Legislation, Criminal Justice Section, American Bar Association, accompanied by George C. Freeman, chairperson, Ad Hoc Committee on Federal Criminal Code, and Laurie Robinson, director, Criminal Justice Section, American Bar Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah... Henderson, Wade, on behalf of the American Civil Liberties Union, ac- Hruska, Hon. Roman L., former U.S. Senator from the State of Ne- 11802, 11809 Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachu- Knox, Neal, executive director, National Rifle Association, accompanied by James J. Featherstone, general counsel, and David T. Hardy, 11752 Shattuck, John, Director, Washington Office, American Civil Liberties 11954 Smith, Hon. William French, the Attorney General of the United States... 11760 11911 Additional statements submitted for the record: Burhop, William J., vice president, Federal affairs, Air Transport Associ- Anderson, William J., Director, General Government Division, General 12092 IV Additional statements submitted for the record-Continued Freeman, George C., letter of October 19, 1981, in further response to committee members' questions.. Page 11891 Glasser, Ira, executive director, American Civil Liberties Union, on bail reform amendments, U.S. House of Representatives, Committee on the Judiciary Hodson, Maj. Gen. Kenneth J. (U.S.A., Ret.), statement concerning bail 12016 11879 11758 ers 12147 United States League of Savings Associations, Arthur B. Edgeworth, director, Washington operations . 12159 Exhibits: 11876 ABA, Sentencing Alternatives and Procedure Standards 18-2.8, Organizational Sanctions. 11877 Civil Liberties versus the ACLU, Louis B. Schwartz, the New Republic, ABA, Section of Corporation, Banking and Business Law, Report to 12351 11811 Civil Liberties and Criminal Code Reform, John H. F. Shattuck and 12029 12167 Report on Federal Criminal Code, American Bar Association, the Business Lawyer, Jan. 1979.... 12432 12163 12231 Report on Government Appeal of Sentences, Ad Hoc Committee on Federal Criminal Code, American Bar Association, the Business Lawyer, Jan. 1980 12194 [A] Status Report on Federal Criminal Code, Ad Hoc Committee on Federal Criminal Code, American Bar Association, the Business Lawyer, April 1981 Status of Substantive Penal Law Revision, the American Law Institute, 12315 12430 United States v. DiFrancesco, 449 U.S. 117 (1980)... 12391 United States v. DeFrancesco: Government Appeal of Sentences, G. Freeman, Jr. and A. Earley, Jr., American Criminal Law Review, Vol. 18:9.. 12359 REFORM OF THE FEDERAL CRIMINAL LAWS MONDAY, SEPTEMBER 28, 1981 U.S. SENATE. COMMITTEE ON THE JUDICIARY, Washington, D.C. The committee met, pursuant to notice, at 9:30 a.m., in room 2228, Dirksen Senate Office Building, Senator Strom Thurmond (chairman of the committee) presiding. Present: Senators Thurmond, Laxalt, Hatch, Grassley, and Kennedy. Staff present: Vinton Lide, chief counsel; Paul C. Summitt, special counsel; Eric Hultman, special counsel, Jock Nash, assistant counsel; Mabel A. Downey, legislative clerk. STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA, AND CHAIRMAN, COMMITTEE ON THE JUDICIARY The CHAIRMAN. The committee will come to order. This morning I wish to welcome a distinguished group of witnesses. I am particularly happy to have the Attorney General of the United States to provide us with the views of this administration with respect to this monumental effort to modernize the Federal criminal code. Federal criminal code reform has a long history. In 1966, the Congress created the National Commission on Reform of Federal Criminal Laws to study the matter. Former Gov. Pat Brown, Chairman of that Commission, is with us today to emphasize the continuity between the draft code proposed by the Commission and the bill now under consideration. Over the years, we have edged closer to attaining our goal as major controversial issues have been dealt with and broad bipartisan support constructed. Senator Roman Hruska and Judge Griffin Bell, Attorney General in the Carter administration, are here today to emphasize the continuity of support from Congress to Congress and administration to administration. The presence of representatives of the American Bar Association and the Judicial Conference emphasize the continuity of the long participation of professional and citizen groups and the judicial branch of the Government. We have an important task to accomplish. Hopefully, this is the opening bell of the last round. We are very pleased to have the Attorney General. Mr. Attorney General, I appreciate your willingness to juggle your schedule at the last minute in order to accommodate our changed hearing time. I understand that as a result of rearranging your schedule, (11751) you will have to leave early in order to be back for an important 10 a.m. appointment. Since it will not be possible for the members of the committee to question you this morning with regard to your testimony, I would appreciate it if you would be willing to respond in writing to any questions that members may later have. Is that agreeable with you, Mr. Attorney General? Mr. SMITH. Thank you, Mr. Chairman. That is agreeable. I would be most happy to respond to any written questions. The CHAIRMAN. We would be very pleased to hear from you at this time. Senator KENNEDY. Mr. Chairman, if I could, I would like to make a brief comment. The CHAIRMAN. Senator Kennedy. STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS Senator KENNEDY. Thank you, Mr. Chairman. More than a decade has passed since the Congress first considered comprehensive legislation to recodify the Federal criminal laws. Today, the Judiciary Committee again commences hearings on the code. I hope that in this Congress we will finally enact this long overdue legislation. Criminal code reform has the potential to become an historic landmark in the war on crime and in our ongoing efforts to fulfill the goal of equal justice under law. Piecemeal reform is neither possible nor wise. Judges, academicians, and law enforcement personnel agree on the need for a comprehensive, logically organized, and internally consistent Federal criminal law. The criminal code today is an historic anomaly. The 3,000 criminal laws on the books are the product of 200 years of unguided proliferation. They have no standardized definitions or logical consistency Offenses are scattered through all 50 titles of the United States Code. There are 80 separate theft offenses, and 70 counterfeiting and forgery offenses, all with their own conflicting language and definitions. The interpretation and application of these statutes inevitably results in inconsistencies and in loopholes. Sentencing is a scandal as the courts play judicial roulette in determining whether a defendant goes free or goes to jail. Outdated bail laws fail to protect the safety of the community and permit violent offenders to return to the streets to commit new crimes while awaiting trial. We suffer from outdated provisions on organized crime, narcotics crime, and juvenile crime. There is also a more fundamental question that faces us today. The Attorney General is here to affirm the administration's commitment to the battle against crime. The President is speaking today in New Orleans and calling for a new war against crime. That war has been declared again and again, and has been lost over and over. If this latest war is to be more than words, more than a partisan slogan for the coming political year, then it is time for the administration to put its money where its rhetoric is. Talking tough is not enough. Speeches alone will not prevent a single burglary, deter even one rape, or solve even one shooting. If the administration is serious about the crime issue, if it seeks substance as well as slogan, it is time for the administration to seek funding for the LEAA to help State and local law enforcement to combat the rising tide of crime. I do not know how many police officers I have talked to all over this country who have told me what it has meant in terms of continuing their education and developing their skills, their knowledge, and their understanding both of the law and how to deal with. violent crimes in this society. In this committee, we have seen the reorganization of the LEAA program to target resources to help support local police do their job. We have seen an abandonment of that commitment to helping with assistance to local authorities to deal with crime. Local police are literally on the firing line, but so far their needs and the public safety have been sacrificed in the administration's budgetary hard line. I think there is a great deal of talk about crime, but unless we are going to give those who are on the front line, the local police officials, the kind of support to permit them to do their job, we are not really serious about dealing with this problem. For LEAA, the White House has requested virtually nothing. The Attorney General's task force has called for such assistance. It is time for the President to respond and for the administration to show that it means what it says about crime. On prison reform, the Attorney General's task force has called for $2 billion. It is time for the President to respond and insist that our prisons must no longer be schools for crime with inmates who graduate with advanced degrees in violence and armed robbery. The Attorney General will tell us that the reform of the Criminal Code brings progress at little or no cost, and I believe this reform is important. I have spent as much time on this issue as any person in this room, and we have a distinguished group that we are going to hear from today who have devoted a very significant part of their public lives on this issue. I have worked on it and fought for it for many years. However, if the administration thinks that this is sufficient or that unacceptable restriction on individual rights will turn the tide against crime, then we are being offered only another tried and not a true anticrime program. We are told these days that national defense is vital, and it is, but national defense begins in our own neighborhoods where we must stop the reign of aggression by the muggers, the thieves, the robbers, and the rapists. We cannot fight crime on the cheap, which is the hard lesson we should have learned in earlier years. We must not offer anticrime slogans while sacrificing the substance to an economic policy which drains Federal revenues in order to pay for an inequitable tax cut which benefits the very rich. I look forward to these hearings and to the development of effective and responsible measures to protect our people and to meet the challenge of crime in our free society. I pay tribute to our chairman, Senator Thurmond, with whom I have had the good |