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REFORM OF THE FEDERAL CRIMINAL LAWS

THURSDAY, OCTOBER 1, 1981

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The committee met, pursuant to recess, at 10:10 a.m., in room 2228, Dirksen Senate Office Building, Senator Strom Thurmond (chairman of the committee) presiding.

Present: Senators Thurmond, Grassley, and Kennedy.

Staff present: Vinton Lide, chief counsel; Paul Summitt, special counsel; Eric Hultman, special counsel; Cathy Zebrowski, counsel, minority; and Mabel Downey, legislative clerk.

The CHAIRMAN. The committee will come to order.

We will now proceed with the Criminal Code testimony.

Our first witness is Hon. Richard S. Gebelein, attorney general of the State of Delaware, on behalf of the National Association of Attorneys General.

Please proceed, Mr. Attorney General.

STATEMENT OF RICHARD S. GEBELEIN, ATTORNEY GENERAL OF THE STATE OF DELAWARE, APPEARING ON BEHALF OF THE NATIONAL ASSOCIATION OF ATTORNEYS GENERAL

Mr. GEBELEIN. Thank you, Mr. Chairman.

Mr. Chairman and members of the committee, I wish to express my thanks for the opportunity to appear before you and testify about matters relating to the proposed revision of the Federal criminal code. As a member of the Criminal Law Committee of the National Association of Attorneys General, I have been asked to express the association's views today.

We strongly support the efforts to revise the criminal code. The existing code is now an amalgam of modifications and amendments to the original, overlaid by a patchwork of judicial decisions. The proposed revision goes far to restore order to the Federal criminal law.

Eight years ago, my State codified its criminal law. Delaware's experience has been that the revision has done much to bring order and certainty to the law in our State. It has proven to be of benefit to judges, prosecutors, defenders, and the people of Delaware. We are convinced that the undertaking embodied in S. 1630 will be of equal benefit to the United States.

Despite our endorsement of the concept embodied in S. 1630, we have some reservations which I would like to briefly share with you. Foremost of these concerns is the potential for conflict between State and Federal prosecutorial agencies in cases giving rise to concurrent jurisdiction.

(11932)

I will not burden the committee with an extensive discussion of Federal-State relationships. However, certain observations may be useful here. Historically, Federal courts have had limited jurisdic tion, and, as a general rule, there was a clear distinction between crimes prosecuted in a Federal court and those presented in State

courts.

However, time and expanded Federal jurisdiction have eroded much of this distinction. For example, judicial interpretations of the Hobbs and Travel Acts have greatly expanded the ambit of those acts by holding that there is a jurisdictional basis for application of those acts even when there is only an incidental impact on interstate commerce. Such judicial interpretation ultimately blurs the demarcation between Federal and State prosecutorial responsibilities.

This expanded jurisdiction could lead to a significant and unintended transformation of the roles of State and Federal governments in the area of law enforcement. We believe that the proposed revision before you presents an excellent opportunity to see that the continued unintended expansion of Federal criminal jurisdiction is checked, and that the State and Federal government are restored to their traditional roles.

A hypothetical postulated by the association well illustrates this point. Assume a criminal is charged with robbing a local food store and, during the course of the robbery, he murders the clerk. The Federal Government could prosecute the robbery as a Federal crime since it had some impact, however negligible or indirect, on interstate commerce.

Under proposed section 1602(e)(6), the Federal Government could also prosecute the criminal for the murder since the murder took place during the commission of the robbery. Thus, it is conceivable that the Federal Government could assert jurisdiction over what is essentially a purely local crime. We submit that the framers of the Constitution would be astounded at such a result.

Aside from the departure from the principles of Federal-State commity, this result has certain practical ramifications which I doubt Congress intended. In this example, where the Federal Government elects to prosecute, the maximum penalty for the murder is life in prison, whereas the maximum penalty for the same crime, if prosecuted in the traditional arena of the State courts, is often death.

The efficacy of the death penalty need not be considered here. Suffice it to say that in this hypothetical the exercise of Federal prosecutorial authority operates to deprive the people of a penalty which they, acting through their local legislatures, have approved.

To a certain extent, the proposed revision attempts to ameliorate this problem. Proposed section 205 provides guidelines for the exercise of Federal prosecutorial authority when concurrent jurisdiction exists.

Further, it requires the Attorney General of the United States to consult periodically with representatives of State and local governments about the problems relating to concurrent jurisdiction. I might add that U.S. Attorney General Smith has been consulting on a regular basis with State and local prosecutors on matters affecting concurrent jurisdiction.

Despite these consultations, the statutory assurances are largely illusory since section 205 also expressly exempts the exercise of Federal prosecutorial authority from judicial review. Accordingly, States have no recourse in the face of unwarranted Federal prosecution in concurrent jurisdiction cases. In other words, the day-today relationship between the prosecuting arms of the States and the Federal Government depends almost solely on the voluntary cooperation of the local U.S. attorney.

In Delaware, we have been very fortunate to have had dedicated U.S. attorneys who are sensitive to the Federal-State dichotomy and who have not usurped Delaware's traditional role in the law enforcement process.

Unfortunately, many of my colleagues are not similarly blessed. It is not uncommon to hear State attorneys general and local prosecutors complain, both publicy and privately, of the lack of cooperation from U.S. attorneys in their jurisdictions.

It seems clear that the proposed statutory scheme will tend to exacerbate the friction between Federal and State prosecutors in those States where it already exists. Moreover, it makes those of us who have the good fortune to be associated with a cooperative U.S. attorney fearful of the day when a personnel change might bring us someone less reasonable.

No one questions the propriety of Federal prosecution of crimes which are peculiarly of Federal interest. Protection of the safety of Federal officials, the mails, and civil rights granted under the Constitution illustrate these areas.

In addition, the Federal Government may, in certain instances, be uniquely qualified to prosecute matters of joint interest, such as organized crime. I emphasize that it is not the exercise of authority in matters such as this which gives me concern. Rather, it is the possibility of intrusion by the Federal prosecutorial arm into areas of purely local interest which is cause for concern. The existing protections, while well intended, do too little to protect the States from abuses by an overzealous Federal prosecutor.

We urge instead that criminal jurisdiction predicated upon the commerce clause be limited to instances where the crime results in a direct impact on interstate commerce. Alternatively, the association believes that if Congress continues to permit Federal prosecution only incidentally affecting interstate commerce, then it should limit such prosecutions to instances where organized crime is involved. I suggest that either limitation will preserve the essentials of the Federal-State dichotomy while at the same time protecting the interests of the United States.

Turning to other aspects of the revised code, we applaud the code's approach to the sentencing of prisoners and the treatment of victims. Again, however, we have some reservations which I would like to bring to the committee's attention.

We believe that the revision's continued use of sentencing guidelines is advisable. It is doubtful the criminal justice system will ever act as an effective deterrent to crime so long as a prospective criminal believes that even if he is caught and convicted, he may still receive an unrealistically light sentence. By doing away with the slap on the wrist when a more substantial punishment is

warranted, the use of guidelines serves to strengthen the Federal criminal justice system.

The revised code now allows most defendants to appeal their sentence when it exceeds the maximum provided in the guidelines. Although we have some doubt about the utility of adding to the heavy dockets of the Federal courts of appeal, the advantages of appellate review probably outweigh the burden to the appellate

courts.

We urge, however, that the right of the Government to appeal in certain cases not be stricken from the revision. If considerations of fairness to the defendant justifiy the right to appeal a sentence, then certainly considerations of fairness to society justify the Government's similar right to appeal.

The concern for the victim manifested in the revised Criminal Code is a welcome sight. For far too long, the victim has been the forgotten element in the criminal justice system.

We support the inclusion of the provisions in the new code that allow for restitution as part of the criminal sentence. Restitution enables the victim to receive at least partial compensation for his loss, while at the same time impressing upon the defendant the extent of the damage he has caused.

It is important to realize that a restitution program often does not fully compensate a victim for his pecuniary losses. Thus, the provisions of the statute authorizing restitution should clearly state that such a sentence does not act as a bar to whatever Federal or State civil remedies a victim may otherwise have against the defendant.

In a similar vein, it is useful to establish nationwide procedures for keeping victims apprised of significant developments in the prosecution of his assailant. For many victims, the inevitable court appearances can be a harrowing experience. I would suspect that the dread which fills many of us while awaiting a dentist appointment is minimal compared to the victim waiting to testify at trial. Yet all too often, trials are rescheduled at the last moment, leaving the victim to anticipate yet another trial date with mounting anxiety. Frequently, little or no effort is made to apprise him of the reasons for the delay. He is simply lost in the crush of the prosecutor's daily business.

In Delaware, we have established a systematic method of keeping the victim advised of the progress of the prosecution. I would not for a moment claim that the system eliminates the anxiety and inconvenience which haunts the victim during the course of prosecution.

However, citizen response to our efforts leads us to believe that the program results in a substantial benefit which clearly justifies its cost. I have no reason to believe that implementation by the Department of Justice of a program with such a purpose would produce any different results. We therefore strongly urge this committee to recommend that such a program be adopted by the Department of Justice.

In conclusion, we strongly support the efforts in the Senate to revise the Federal Criminal Code. We believe that Congress now has an opportunity to codify standards which will help maintain the spirit of cooperation between State and Federal law enforce

ment agencies. I respectfully urge Congress to take advantage of this opportunity.

The CHAIRMAN. We have a few questions.

Your primary concern with this bill centers on alleged expansion of Federal criminal jurisdiction. Can you list specifically the changes you would recommend to make the bill acceptable?

Mr. GEBELEIN. Mr. Chairman, we would suggest that the bill could be modified to eliminate the piggyback jurisdiction section allowing for prosecution of crimes which occurred during the commission of a Federal crime.

We would also suggest that the bill could be modified to require that there be a direct tangible or significant impact on interstate commerce, not just some impact no matter how negligible.

The CHAIRMAN. Section 205 of the bill deals with general restraints on the exercise of Federal concurrent jurisdiction. Do you have any suggestions to improve the section from your point of view?

Mr. GEBELEIN. We would suggest that probably more stringent requirements should be required for consultation between Federal and State prosecuting agencies. I believe that the Association has worked on some language which would accomplish that. We would be happy to submit it to the committee if you would desire.

The CHAIRMAN. We will be glad to receive your suggestions. The CHAIRMAN. In recent years, various States have enacted new sentencing systems characterized by flat-time sentences, sentencing guidelines, and so forth. Has your organization taken a position on the sentencing issues of this type?

Mr. GEBELEIN. Yes, Mr. Chairman, our Association has taken a position in support of a flat-time sentence or a determinate sentencing provision. In addition, we would oppose the continued use of parole and good time if a determinate sentencing system was developed.

The CHAIRMAN. For the first time, the bill would permit a Federal judge to consider danger to the community in making a pretrial release decision. Do you support this approach?

Mr. GEBELEIN. Yes, we do. The Association has taken a position in support of that concept. I might add that Delaware has for the last 100 years allowed danger to the community to be considered by the judge in setting bail. We think it works fine in our State. The CHAIRMAN. Senator Grassley, do you have any questions? Senator GRASSLEY. I have no questions. Thank you.

The CHAIRMAN. Thank you very much for appearing here this morning, Mr. Gebelein. We appreciate your presence and testimony.

Mr. GEBELEIN. Thank you very much, Mr. Chairman.

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