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REFORM OF THE FEDERAL CRIMINAL LAWS

OCT 20 1980

HEARI~ BEFORE THE ~ U~SiiTiONS

I

COMMITTEE ON THE JUDIOIARY

lil-84J)'

UNITED STATES SENATE NINETY-SIXTH CONGRESS

FIRST SESSION

ON·

s. 1722 and S. 1723

SEPTEMBER 11, 13, 18, 20, 25, AND OCTOBER 5, Will

PART XIV

I'I'inted for the use of the Committee on the Jmlicinl'Y

U,S, GOVERNMENT PRINTING OFFICE

WASHING~roN : 1979

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COll1l\:IITTElEl ON THE JUDICIARY

EDWARD 111 KENNEDY Maasachusetts, Ohail'man 11

' . , STROllI THURlIIOND, South Caro un I Ii BIRCH BAYH, Indiana . CHARLES 1I1cC. lIINI'HIAS, In,, Mary an . ROBERT C. BYRD, West Virginm PAUL LAXALT Neyada JOSEPH R. BIDEN, JR., Delaware ORRIN G. HATem, Utah JOHN C. CULVER, Iown IWBli!RT DOLE, Kansas HOWARD 111. 1I1ETZENBAUlII, Ohio THAD COCHRAN, Mississippi DENNIS DECONCINI, Arizona ALAN K. SIlIIPSON, Wyoming PATRICK J. LEAHY, Vermont lIIAX BAUCUS, lIIontana

HOWELL HEFLIN, Alabama 01 • ! OOlt1l8eZ STEPHEl; BREYER, Ile

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OONTENTS

Page H··~:fff.~~~,'t-;10!L___________________________________________ =; SePtember13,19!9 ________________ ~ _____________________ - _________ 10039 Septenlber 18,1919 _____________________________________ ----------- 10071 September 20, 19I9 _________________________________ ~ ______________ 102::)0

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September 24, 1919 _________________________________________ . _______ 10357 Octo.bel: 5, 19.79 ____________________________________________ . ______ _

Text of- ; 110130

~: ii~~========================:==============:=:================ 11485 Statement of- . 10"83 Angell, Stephen, National Moratorium on Prison ConstruchOl~------- u Baptiste, Robert :U., labor counsel, International Brothernood of 04u-

Teamsters ____________ 10 Beaudin, Bruce,-di;ec-t~~.~p_;':-e:T_;"i~is_;r_;i~;;-Ag;~~Y~W~_;hington, D.C_ 103~£ Bevans, R. Dennis, Alexandria, va _____________________________ : ___ 100u.1

Civiletti, HOll. Benjamin R., Ife it;Z~Ir.g~/2£a;9~)!S?_L,p~1.:l~ 9902

CI~.e;;S J"h~-J:,-L.g.iAi;;-.;;;;:~.f'nd". '7'JJ1i.~'nb S'lI'-.litga, 1009, CalIf. -------------------=/3-:.1...b.5:--(j>_'-_____ 'f-..:_L-lL;.. _______ ,

Cook Robert 111., Livestock Marketing .A,ssociation ___________________ 100R£ Coombs, Prof .. RusseUl\:f., Rutgers University Schopl Qf I;~v--_______ 10021 Dershowitz Prof. Alan Har'vard School of LaW-7-;J-.,:LZ.LlLj!.bL4.23_ -:J.0323/

b33)s J

Donelson Torn Councii on Skills for Living, AlexalUlria,Va _________ 10592 Duun Ja;nes R. Federal Public Defender, I,os Angeles, Calif _________ 10357 Free~an, Georg~ C., ,Tr., on behalf of the American Bar .i~sSociation---_ ~960 Gainer, Ronald G., Deputy Assistant Attorney Generalm the Office of

Improvements in the Administration of Justice, Department of

G.'!~":.;k:di;:e;;;;;,-P;'bii,Oitl;,~,;-C;;;;g~o;;-W.;t'h:;rgA~{,'::: Im~QlIOI' ") Green' Richard A. attorney, Washington, D.C _______________________ 10031 rota(/. Greenbalgh, Willi~m, on behalf of the Americau Bar Association_____ 9900 Harris, Kay, Director, National Capital Office of the National Council

on Crime and Delinquency -----------------____________________ 102~tp 103 (~_ ) Herst, Esther, National Committee .Against Repressive I ... egislation ___ 103.121

1

O.5~.s . HeYmann, Philip B., Assistant Attorney General, Criminal Division,

Department of JUstice ______________________________________ 9902,9918 Hruska, Hon . .Roman L., Omaha, Ne/Jl. _____ ~ ___________________ ,__ 9955 Kennedy, Hon. Edward :lL, opening statement, September II, 1979_.___ 9898 Kroll, Michael .A., UUSC National 1II0ratorium on Prison COllstruc_

tiOll -----------------------------______________________________ 105R3 Landau, David, counsel, American Civil Liberties Uni,Jn __________ . ___ il.0151 r ... owe, Ira M., Creative Alternath-es to Prison ___________ --______ . ___ 10592 _ Mathis, Weldon, Intel'llationalBrotherhoOd of Teamsters ________ -' ___ 10045(f.1 (] )"J ) Rector, Milton G., National Council on Crime and DelinquencY_.;2'.3..J.6.f.i0299 10), V Robinson, Prof. David, George 'Washington University, School of J ... aw_ 10350 RObinson, Laurie, director, Oriminal Justice Section, American Bar

Association -------------------------___________________________ 9906 Scobie, Dr. Richard, on behalf of the National Moratorium on Prison

Construction -----------------------___________________________ 105R3 Shapiro, Irving S., on bellalf of the Business Roundtable __ .. ___ 10072,10851 Shattuck, John H. F., director, Washington Q1ii,ce, .Amel:i5!llJl Civil I;~perti.e!i Union-------------------------;Z.:2~_7.!R_.1P./.b..j_.:::t.q,t..flJJ.Ol(jl Smifu\ ,P.a:tricia, Women's International League for Fellce llnd Free-

dom ------------------------------____________________________ 10039 ~reske, David, executive director, Federal Defenders, Inc., Portland, Oreg. ----------------------------_____________________________ 10357

Thurmond. Hon. Strom, opening statement, September 11, ID79---__9900 Tillett, S. RaYmond, on behalf of tIle Business Roundtable __________ 10072

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Page . submitted for the record- _______ 10732 Additional prepared st~temen~~e U.S.Courts ____________________ ~ _______ 10705 AdministratlY~ O~ce of Contractors, Inc __________________________ 10709 Assoc~atecl BUl.ldets an~ metors of America.-:-------:-------:== __ 9956, 10690 ASsocHl.ted Gel1~ral ~o J "Pat" Beverly Hills, C;t:ci6-' statement Browll, Hon. Ec mttlll t' ~ Grades Department, At, 10691 Buildino- and Cons ruc 10 ___________________ . _________ 10796

C~r.,i.hJ:::~:, ~:, ~~~~;.;;,-s;';;-";~~.':::I:;._._s,;,:t;;-o'-Mi;;"'i~Pi== 10071 g~::;:,<:'J::,~J ~~::'_~, ""ty~:';,~~~"i.:;:.~,~~~;, :ft~:::': ':.~:'i"~~~ 10781

tel' of Mal'. 7, 1910, by RI~ laI tor from the State of Kansas an a 0001 Dole, Hon. Robert, a U'~tt eeno~ the Judic.i a,.1'Y ___ ,---------------- 10693 member of the Comnll .e D C _ . ________________ _ Dulles, David, IEsq., W~sllln~to~i B'uildlng anci' Construction Trades, 10691 Dunn Thomas X., general cOllns, ___________________________ ;

AFL-CIO ----------------:--l--St~t; of Oregon, letter of Oct. 11, 10872 Gorton, Slade, attorney genera, _____________________ :-_

1979, with attachmen~~T-T--Ch_;.i~~_U_;;:,-J~;dicial Conference Commlt- 10731 Harvey Han Alexander ~-, .. I Law ______________ _ 'tee OI~ Ad~inistration ?f the 1~~~~~:y Gen;;al,-D~partmen~ of J~s- "

Heymann, Philip B., ~sslst~nt S bcommittee on Criminal Justice, with 9918 tice statement beforc House u ______________________ -: __ ~-attdchments ---------E---Oh;i;:~_U_;;_,-Judical Conference AdYlsory 10722 Hoffman, Hon. Walte.r ., ______________________ _ Committee on C":imlllal RuleS--t---7;w~;1-ing Draft" of the House

Keating, Ch.att·les !., c1~'~I~;~ie~:~tic~n and lette~' of ~ct. 1, 107013~~4, 10816

Subcomml ee p. f William A. StanmeyeL________ 108'"8 mitting a statement by c1O

• 'ttee for Freedom of the Press ___ . ____ 10-~1 Landau, Jack, Reporte,rs' ;~~llFederal Defender Services UniL.---- , , Legal ~icl Socie~~ of Ne,~ ~~~irll1an, Judicial Conference Committee 10711 l\IacBnde, Hon. :rhoma~ :' . Act __________________ :--. __

to Implement the Crunmal J~~t~~e .ud;;.~~Cnlairman of the .Judlc~al :Metzner, Hon. Charl~s 1\1., u.~ d~~~~~~str~tion of the Federal :Magls- 10-r-?

Conference Committee on e -----__________________________ 0~~4 trate System------:---:----of-A;;,e~ica, Inc., Washington, D.C ________ 1 -UO

Motion Picture AssoClatlOn S district judge---------________ -: ______ 10, Newman, Hon. Jon 0., U. :d nt the Newspaper GUild, Washlllgton, 10--9 PerUk, Charles A., Jr., pre;\! e , __________________________ . I a

DC letter of Oct. 5, 1919:--------;;;:;lica Inc ,Vashington, D.C __ 10694 Rec~rding I~ldustl'Y Associ~~lg~f~:e t:o~se Subc~~mittee on Criminal 10S51 Shapiro, IrYlllg S., st~teme ____________________ . __ :: _____ --

Justice, Sept. 12, 1919------:------r--NORl\lL letter of Oct. 10, 1919, ,.. Schott, Larry A"b ~at~o~~~u~~·~~gc~mmittee 'on Criminal Justice ____ ig~~~

anel stat:n~~nft ';·~t-~IllA. Indiana University--------___ . _________ 10.7"65 Stanllleyer, I IO. I 1 • ' B ton l\iass ________ .. _____ .. ________ -: Stein l\farshall D., attomey,. o~ 'U S Fifth Circuit Court of Tjotl:lt, Hon. Gerald. Bal'd, JU ge, .. _____________ . _______ -:-_ 10713

Appeal~ ------d--D-:-.-~tO~-C;~t~I--I~;t~lligence Agency, letter of 10690 Turner, St!l1~Sfiel, lIe, ____________________ -:- __ . ______ , __ _ Oct. 11, 19 '9--------:-------;-;--hine Workers of Amel'lca, lette~ of

U ited lDlectrical,Rad1O and Mac DE Washington representatIve, _ ~ePt. 19, 1979, from Lance C~~~:~~ ____________________ .. _________ .10,61 with statemenL __________ _

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v Exhibits_ Page

"(~'he) Acquittal of Murder, Inc.," Art Buchwald ___________________ 10149 "Alternatiyes to Imprisonment," Ronald Goldfarb __________________ 10610 Amendments to the criminal justice proposed by the Judicial Con-

ference ------------------------_______________________________ 10711 Amendments to Standards Relating to SentenCing Alternatives and

Procedure, American Bar A8sociation ___________________________ 10029 AD;!ericfin Bar ASSOCiation, chart comparing .ABA poliCies with proyi-

Sions of S. 1437 and House bilL__________________________________ 0996 American Bar ASSOCiation, resolutions _____________________________ 10015 American Bar ASSOCiation, Section of Criminal Law, report to t1le

HOuse of Delegates____________________________________________ 10018 American Bar ASSOCiation, authorized sentences, redraft of section

2001 of S. 1722 and section 3101 of S. 1723 ________________ . _______ 10015 "(A) Comparison of Prison Use in Great Britain, CanQda and the

United States," James P. Lynch, Office for Improvement in the Ad-ministration of Justice, Department of Justice ___________ .________ 10058

"Counterfeit! L.A.'s Hot Status Crime for the '80'!';." TownseJl(l PariSh and Dianne GrosskOPf-,Markley, Los Angeles, February 1979______ 10940

"Crime anel Crime Control: '''hat Are the SOCial Costs," H. G. Dem111 ert ------ ---------------_______ ._________________________ 10Fi()lf,

"Deterring Poisonous Decisions," the New York ~'imes, May 1, 1079_. 10150 "Gang Lh'es High on Hog Bilking LiYestock :Jlarkets," Kansas City

Star, No,-. 5, 1078 ______________________________________________ 10688 "GUilty Using ~'ime Instead of Doing It," Neil Hirschfield, New York

Sunday News, Sept. 23, 1979_____________________________________ 10621 Hall. PrOf. Livingston, Chairperson, Committee on .Juyenile .Tustice,

ABA, Section of Criminal Justice, analYSis of juvenile justice provisions ---------------------____________ . ___________________ 10024

"Jailing Polluters Is an Idea Whose ~'ime Has Come," William Grieder, the WaShington Post, AUg. 5, 1979_____________________ 10147

"(A.) History of the Exercise of Rulemaking Authority by the U.S. Supreme Court, Office of the General Counsel, Administrative Office of the U.S. Courts________________________________________ 10723

Kennedy, E., "Toward a New System of Criminal Sentencing: Law ''lith Order," American Criminal TJaw ReView, yol. 16, No.4 (Spring 1979) -------.----------- -------________________________________ 10967

Latest in Heulth-l'reating Phobias ... Predicting Schizophrenia ... Drug' Reactions, U.S. News & WorIel Report. MaJ' 28, 1978 ________ 10064

Pauley, R., "An AnalYSis of Some Aspects of JuriSdiction Under S. 1437, tlle Proposed Federal Criminal Code," Geo.Wash. L. Rey., vol. 47, NO.3, pp. 475-501 (1979) -------------__________________________ 11072

Pel'1'in v. U11ited State8, 580 F. 2d 730 (5th Cir. 1078), excerpts from brief for the United States on petition for writ of certiorari on inter-preting the TraYel Act to encompass commerCial bribery ___________ 11070

Perry, Robert X., "Pitfalls of Entertaining Government OffiCials," Dis-trict Lawyer. Yol. 3, No.6, p. 25, .Tune/July 1979___________________ 10945

"Punishment WitllOUt Prisons," Colman MCCarthy, tIle Washington Post, Nov. 17, 1978 _____________________________________________ 10619 Questions submitted to witnesses following oral testimony, with responses_

Baptiste, RObert M., labor counsel, International Brotherhood of Teamsters, questions submitted by Senator Dole __________________ 10936

Business Roundtable, questions submitted by Senator COchrall ________ 10028 CiYiletti, Hon. Benjamin R., questions submitted by Senator Dole ____ 10936 DersllOwitz, PrOf. Alan, questions submitted by Senator Dole _________ 10338 Green, Mark, Congress Watch, questions submitted by Senator Dole__ 10935 Green, Richard A., questions submitted by Senator Dole _____________ 10921 Greenhalgh, William, American Bar ASSOCiation, questions SubmitteU

by Senator DOle ______________________________ . __________________ 10011 Herst, Esther, National Committee Against Repressiye Legislation,

questions submitted by Senator DOle ______________________________ 10322 Rector, Milton G., National Council on Crime and Delinquency, ques-

tions Submitted by Senator DOle _________________________________ 10302 Shapiro, IrYing S., Questions submitted bY.Senator Dole ______________ 10933 Shattuck, John H. F., American Ci\'iI Liberties Union, questions sub-

mitter! by Senator COchran _____________ .:.________________________ 10021 Smith, PatriCia, Women's International League for Peace and Free-

dom, questions Submitted by Senator Dole ________________________ 10931

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VI

Sentencing Study, "Possible Impact on Sentence Length and Time Ser,'ed in Prison of Sentencing Provisions of Major Crimi!lal Code Reform Legislation of the 95th Congress," Legislath;e Refei'ence Service, Library of Congress, .Tune 1978 uiiil November 17, Page 1978 - __________ --___________________ - ________ .. __________ 10642,10653

"Status of Substantive Penal Law Revision," Americln J.Jaw Institute_ 10954 Text of S. 1722 ___________________________________________________ 11089 Text of S. 1723 _____________ -_____________________________________ 11485

"To Rid U.S. Courts of the 'Slovik Syndrome,'" letter to the editor, the New Yorl, Times, Sept. 21, 1979, from Judge Jon O. Newmau ____ 10998

Trial Judges' Conference, sponsoreel by Creative Alternatives to Prison, Oct. 14, 1978___________________________________________________ 10605

Vnited State8 Y. Atlantic Richfield Oompany, 463 F. 2el 58 (7th Cir. 1972) _________________________________________________________ 10955

Vnited States v. DiJi'mlloesoo, petition for writ of certiorari fileel Oct. " 5,1979, S. ct. No. 79-56L _____________________________ ~ _________ 10999

U.S. Attack on Corporate Crime Yields IIanelful of Cases," Philip Taubman, the New York Times, JUly 15, 1979 ______________ . _______ 10144

Wills, Gary, "Creative Alternatives to Prison" ______________________ 10621

Postiton Paper and Testimon~c~g t~~7l Federal Public andCommunity Defenders on fhe Proposed Federal Criminal Code pp. 10366-10450) (1171)

NCJII 73372 Position Paper and Testimony of the Federal Public and Community Defenders on The Proposed FederalCriminal Code (pp. 10451-10582) ()l/r>Ld. /'i7~)

NCJ/! 73373 Study ru- 'fhe Possible Impact on Sentence Length and Time Served In Prison of Sentencing Provisions of Major Criminal Code Reform Legislation of the·95 th Congress?r~ (pp. 10642-10652)

NCJII 73374 Sentencing Provisions of Major Criminal Code Reform Legislation of the 95th Congress: Possible Impact on Sentence Length and Time Served in Prison (pp. 10653-10669)

NCJII 73375 Motion Picture Association of America, Inc. and Recording Insustry of America Inc. " Concerning Film and Record Piracy and Count~rfeiting

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"~-"-'---'" ....._.,. ..... _.- .... -._."'. _., - "·F'.37U'--··"· ·VS;A.T-;-:r7E;~ OF ALAN M. DERSITOWITZ, PUOFESSOU OF LAW, IIAUVAUDu'NIVERSITY,

CAMBUIDGE, MASS.

I. INTRODUCTION A. The problem p08ed

The problem surrounding the issue of bail is inherent in any system of criminal justice. When a person is chargeel with having committed a serious crime, he is generally arrested. Since a trial often will not ensue for a number of months, competing interests arise with regard to what should happen to the defendant during this inevitable hiatus between arrest and trial. On the one hand, society's interests include the prevention of the flight of the accused. the safety of the community, anel the orderly proce.ss of the case. These interests are oftentimes ill direct conflict with those of the accused, primarily his freedom before conviction based on the pre.sumption of innocence, and his ability to aiel in the preparation of his case for trial based on his constitutional right to counsel and an effective defense. Most other societies-including some of the most civilizeel-accorel sig­nificantly less weight to the interests of the defenelant in the pre-trial context. The general rule in most parts of the world today mandates pretrial confinement of persons awaiting trial for serious crimes. This obviously avoiels the problem of bail altogether.

In this country, the setting of pretrial bailllas been the norm in all but a small number of capital cases. While this norm forces our legal system to recognize the­problem of the pre-trial status of the accuseel, the employment of monetary bail as the most common mechanism for confronting this problem has allowed our­legal system to obscure the real issues at stal,e. Bail is often set in a manner which ignores the interests of the accused. The questions which surface have not been answered. Which of society's interests shoulel be weighed against which of defendant's interests? What sort of weight should be given to the interests' on either siele? Can the interests anel tlIe weight accoreled them be reconciled within a workable system that fully considers hoth society and the accused?' T.hese are some of the basic questions tha t a bail system shoulel address, not merely cover up. Only 11Y confronting these questions elirectly can the problem posen by bail be re.solveel. B. The Ame1'ioan emperienoe

From the passage of the JudiCiary Act of 1789 to the present Federal Rules of Criminal Proceelure, federal law has provideel that bail generally be available to' persons arrested for noncapital offenses, (Sto.olc v. B01fle, 342 U.S. 1. 4 (1951) ; Fed. R. Cdm. P. 46(a) ; 18 U.S.C. § 3146). It has been held that bail may be elenied only in exceptional cases. (Vllite(~ State.~ v. Abrahams, mn F. 2d 3,8 (1st Cir. 1978) ; Vnited, State8 v. Smith, 444 F. 2d 61, 62 (8th Cir. 1971), oert. denied' s1tb nom. Ho.le1f v. Vnitea State8, 405 U.S. 977 (19"{2) ; see Oo.1·Zson v. Lanaon, 342 U.S. 524. n37-46 (19i)2». This l'ight to be admitteel to bail is baseel on the' traditional right to freeelom before cOllviction, a freeelom which emanates from the fllndamental tenet of the American criminal system that a person is presumed: innocent until proven guUty. (Stacle v. B01/le, 81tpra. 342 U.S. at 4; Note, 0011-8tU1(.tioll·aT. Limita,tiolls 011, the Oonaiti01!s of P1'etrta,~ Detention, 79 Yale J.J.J. 941. 951 & n. 67 (1970) ; 8ee Ares, Rankin & Sturz, The 11Ia,nhattan Bail Projeot: An Inte1'tm Report on the U.~e8 of Pre-tr·;a·T. Parole, 38 N.Y.U.T.J. Rev. 67,69 (1963». This freedom before conviction allows the accuseel to aid in the preparation of his elefense-indeeel to prepare and present his own defense if he so chooses­another recognized purpose of bail. (Sta('lr. v. Royle, .~u,pra, 342 U.S. at 4; see Fa1'ottav. Oalifornia, 422 U.S. 806 (1975) ; 28 U.S.C. § 1654).

The function of requiring restrictive conditions, including money ball, in appropriate cases has historically been to assure the appearance of tIle accused

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at trial, (Staclo v. BoyZe, supra, 342 U.S. at 4-5), It is not surprising, therefore, that the present federal bail statute, 18 U.S.C, § 3146, allows the setting of such {!onditions for the soZe purpose of reasonably assuring the presence of the accused at trial. (Fl.g., Unitea States v. Gramer, 451 F. 2d 1198 (5th Cir. 1971) j Unitea States v. Leathers, 412 1!'. 2d 169, 171 (D.C. Cir. 1969) (pel' curiam». Although the present statute has been held to be constitutional, (e.g., United States v. Smith, sltpra, 444 F. 2d at 62), this does not mean that the legislation is fulfilling all of the purposes that it constitutionally can and should fulfill.

My belief is that the time has come for reform in the federal bail system in order "that the system can be designed to best serve the needs of both the citizens and 'Courts of this country. Senator Kennedy offered some ideas for such reform in his June 1 address to the National Govel'llors Conference on Crime Control with which I find myself in basic agreement. My statements today will attempt to 'identify the central reasons why reform is needed and will present a constitu­tional framework for these reforms. This framework is not a radical departure :frolll present practice, but is one aimed at providing practical results while, at the ·same time, avoiding divisive and unproductive theoretical warfare. It deals with very real problems that exist today, problems which any bail system must address.

II. THE NEED FOR BAIL REFOR}'f

As Senator Kennedy pointed out in his June 1 address, the present bail system falls to deal effectively with the problem of crimes committed by defendants re­leased on bail. He cited statistics from a recent study by the Institute of Lnw and Social Research which found that over 15% of ull persons nrrested in the District of Columbia were on bail at ';he time of their arrest. This arrest rate for persons out on bail is more than 10 times the rate of arrest for the general population. In short, current bail procedures pose a serious threat to the safety of individuals in our SOCiety. The present law, the sole o,ert aim of which is reasonably to assure the apeparance of the nccused on trial, does not permit judges o]Jenly to considcr a defendant's potential dangerousness to citizens when reaching bail decisions. (Unite(l States v. Leathers, supm, 412 F. 2d at 170-71 j UnUea States v. Melville, 306 F. SuPp. 124, 126 n. 2 (S.D.~.Y. 10(0) j H. Rep. No. 1541. 89th Cong., 2d Sess. 5-6, repl'inte(l in [1966] U.S. Code Congo & Ad. News 2296). While 11reventing the flight of the accused is an important policy at which bail should be aimed, it should not stand alone. Prevention of flight is apparently encom­passed within the constitntional pOlicy underlying bail, but it is somewhat lel'!s than certain that the framers intended this policy to be the only permissible objecti,e of bail.

l\Iy colleague at Harvard Law School, Professor IJaurence EI. Tribe, has con­cluded that capital crime exception to the Eighth Amendment clearly establishes that uuder that amendment a denial of bail may only be permised on the likelihood of flight and ·not on the danger of the accused. (Tribe,.An Ounce of Detention: Preventive .Tltstiee in the World of John Mitchell, 56 Va. L. Rev. 371 (1970». I reject this conclusion. I also reject the categorical conclusion of former Attol'lley General .Tohn Mitchell, and others who argue that the framers clearly intended to permit the use of bail to prevent future crimes. (MitcheU, Bail Reform an(l the Oonstitutionality Of Pre-tl'iaZ Detention, 55 Va. h Rev. 1223 (1969». My research leads me to believe that the framers did not intend to prohibit denial or condi­tions I)f bail on grounds of dangerousness. My o\yn view is t.hat because virtually all dangerous crimes were also capital crimes in 1790, the framers simply never had to confront tlle issue of whether a dangerous offender not facing the death penalty, ancl therE'fore not likely to flee. could be dE'tained solely because of a11egecl dangerou~ness. The issue was never debated during the time that the Constitution was drafted, and I suspect the framers simply ne,er thought I)f the problem. It may not have Occurred to t.hcm, and if it did. they elid not purport to resolve it by the enllctment of t.he Eight Amendment. ~'he realities of the present day situation, however, makes it neressary for hot.h the Conqress and the Courts to confront the problem I)f the dangerousness of tlle accul'ed elefenclant before trial. (Dershowitz, Imprisonment by Jua'icial Hunch, 57 A.B.A .• T. 560 (June, 1971».

In praC'tic", federal district courts often apPE'llr to r('cognize this concern for dangerousnes,·. Federal prosecutors surely do. They often ask for money bail in amounts which defendants cllnnot afford, and the courts fall in line by admitting r1an~erou" defenclants to hail in these inflated amounts under the !mifle of nrll­venting flight. (See United States V. Lea-thet's, SltPl'a, 412 F. 2d at 170-71). Tlhis practice not only flies in the face of the current statute, but it effectively creates

10335 a system of preventive detention_ t . practical infirmities_for defendant: b~~fec;~d frtu~ht WIth grave theoretical and

As Senator Kennedy has said th 1 11 o. e angerous. takes into account the legitimat~ co~c~~.~ g~~;~~ tf. dev~f9P a bail sys~em tliat does so explicitly. The bail system should ec mg CI IzeJ?s from crIme, and probl~m .of dangerousness, but it shOUld strh?; tonl dea~ WIth th~ recop!ized constitUtIOnal manner. 0 0 so In a candId, fUll' and

III. A CONSTITUTIONA.L FRAMEWORK FOR BAIL REFORM

There is an approach to bail . f h' nbove, and which falls somewher!~I~rm '; Ich confronts the problems Outlined detention. In the reforlll frameworl- ~rl~i ein thel~r~sent system anclpl'eventive ti?ns al:e deemphasized .find preventi~'e detentr~~l\ If!-v~r't nlOdneAtary bail condi­of restncted release is Pl'OPOsecl. 1 e lllllna e. gradecl system .A. M onetal'y bail conditions

l'he value of monetary bail condit. . tice and money bail is often set in IOns IS grea~ly overstated in present prac­S~'Rt0m of preventive detention of de:e~~~~~s ~Slgn~f to effectuate a cla facto At~orney General's committee which studieds'th s ;a.~ y as 19G3, a repo.rt of an POlllted by the late President J h r ~ III system-a COl.llmIttee ap­tiou of the late Attorney Gen~r~l ~~~~~~J' y.~>hIC~ olleratecl l;lnder the jurisdir­proportion of aCCused perSOll lacl> ~~nne y-recoglllzed that a large cial securities with the re~ult be~lean~ SUffi~lCllt to supply even modest flnan­unnttainable fbr such pE'rsons (.Att~ng th~ lIberty pending trial is renclered tho Administmtion ot Orimin~l JU.8t/ne~ el~tal's~!!omntittee on [,overly ana as .Attorney General's Re art]) , ce, ~P?" at II (1963) [hereInafter cited country, 110 wever, relies pf.imarii:v~he tra(htIOnal.adlJ]ini~tr~tion of bail in this In many cases, therefore monetiu' on a. sys en:~ ?f finanCIal lllducements. (liZ.). no conditions at all, "a thin!' \' ilY ball C?n,dI.tiO~S are. tantamoullt to setting States V. LeathCl'8 Supra 41:1 F e2J~tc11~) f~~l preventIve detention." (Unite,z tlie present bajl statute \~as de~igned to Il)r~' IltS r(·e

1Sztzllt is not .only one wllirh

]'. 2cl 636, 637-39 (D.C. Cir. 1067 . , ,en,. ~ ~n V. Umte(l States, 380 ~ssentially destroys the tradition~l (~~~~IO!i r' chssentlll.g», but .is .one which the lack of means of the aC'cu d <> ~ r eed~m before COlH'IctIOn clue to

government" to devise a se Ill~d a fllllnre of lllgenuity on the part of the Report at (8). nOll-peCUlllary system of bail. (Attorney Genera-l's

Appellate review does little other tl appellate Courts scrutinize claims of e ~an ~~ per~1e~uat~ this injustice. When Amendment, the standard applied is Ol;ces~~, i b~Il 111 ,?olation of the Eighth test for excessiveness asks only whetheel~v ~~C:t 9 tentSk~lts the real issue. The ~'easonably calcnlated to assure th t I ; IS .se hlg-her 1'han an amount IS requi~·ed. (Stark V. B01lle, 811P:; t3~) atc~sed W4-5Il~ appeal' w~en his presence lower tl'lbunal's evaluatioll of what'·s - d' ci ft ). In loolnng only to the Courts do not consider reasonable;l J ~ee e. 0 aSSure appearnnce, reviewing to pay. l'.his .llllows, as noted \bov~s~J~s. a vI~/he P:l1'ticular acrusec1's ability SUbterfuge for denial of releas~" CNote BnTo~ Ion of money bail to Ilct "as it ,70 ~ale L.J'. 966, 975 (1970)'). Thus h" a.t,' n Ane"~nt Pl'ae~ice Reewamine(l, 111 Older to overcome present rnctic~ t er~ must be !l tteemphaSls on money bail llllel clearly undesirable and hFequitabf \~hlCt result III arguably unconstitutional

Of course, money bail may be tl e,.l~su S. .. . prevent flight Or to ensure safet l~ llg.lt medlc111e 111 ~ertain cases, either to cI~1 10.8s will be sufficiently me%;li~g~~;~ ~t cf: be ~e.terlmned thut risk of finan­bUll mIght qui~e properly be Used. 0 e partICular accused, then money

I note only III passing thut monetar b'l d' . coneliti.ons as expl'essed by Congress i y t:1 c?n ItIons are the least faVored bail § 3146 ~a) ). TIle imposition of a mon 11 e pr~sen~ statutory scheme. (18 U.S.C. finanC'Ial conditio11s have been foun~V ibO~el IS 'Propel' O~lly after all otIler non-468 F. 2d 124, 126-27 (D C Cir 1972 .na ~quate. (Unttccl States v. Bobl'OUl, F, 2d at 171). :M:onetary c~nilitio~ ), Un1.te([. S:a-tes, y. Leathet·s, S1tpr a., 412 Money bail should not be llsed ina sc~~, bf!-il, howev~r, contlll,ue to be wic1ely Used. only in tile narrow group of cases wIler:~ter ~nanneI, rather .It shoulc1 be employed B Pre:vent· at. WI serve a meanlllgful purpose . we en~m .

Preventive detention is not the an ~ and a number of legal commentators s~;~u~~ Senatoll'fhennedy ~poke on ,Tune 1

' ng myse ,have WrItten, preventive

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'ClE't~ntion is unsound both as a matter of pubUc policy and constitutional law. (E.g., 'l'ribe, An Ounce ot Detention: Pl-eventive J1Istice 'i~~ the Wor!cl ot Jo~w, jJIUchell, 56 Va. L. Rev. 371 (1079); Dershowitz, Preventt'lle Detentwn: SomaZ Threat, 'l'rial, DE'c.-Jull. 1969-70 at 22, 24). In the words of Mr. Justice Jackson, Ritting as Circuit Justice:

"Imprisonment to protect society from predicted but unconsummated offenses is so unprecedentE'd in this country and so fraugh~ witl~ dange;' o~ ?xcesses .and injustice that I am loath to resort to it, even as a dlscretlon~ry JudlclUI techlllque to supplement conviction of such offenses as those of whlch defendants stand convicted." (Wi.llia11!son v. United. States, 184 F. 2d 280, 282-83 (2d Cir. 1950».

The predictions of the kind relied on by the proponents of preventive detention tend to be nnreliable and difficult to make. Predictions of any human conduct are l)roblematic. Humans are complex entitites, and the world they inhahit is fll11 of unexpected occurrences that cannot be accurately catalogued and pre­dicted in an actuarial manner. Predictions of rare human events are even more difficult to make, and predictions of rare events occurring within a short period of time are the most difficult of all. Acts of violence by persons released while nwaiting trial ar~ statistically rare events, although they occur far too often, and the relevant time span is -relatively short. Accordingly, the ldnd of predic­tions under consideration_ begin with heavy orlds against their accuracy, A pre­(Uctor is likely to spot a high number of persons who would actually commit 'Crimes of violence only if he is willing to imprison a vastly larger number of defendants who would not in fact engage in such conduct. (Dershowitz, ImP1'ison­ment by J1Iclicial Hunch, 57 A.B.A.J. 560, 562 (June, 1971». I believe that this inherE'nt unreliability preJ':ents an insurmountable hl1rrier to the acceptance of pre-trial preventive detention under our current state of knowledge.

It should be mentioned that past proposals or suggestions to implement a -system of preventive detention in this country have been met with great oppo­~ition, and have caused much divisiveness. In addition, as Senator Kennedy pointed out in his June 1 speech, the experience of the District of Oolumbia strongly suggests that preventive detention does not work. The District has a preventiye dej-ention statute (22 D.O. Coc1e §§ lR22 & 1323). but it iJ': rarely invoked. Of some 1500 cases in the District of Columbia last year when pre­ventiye detention could havo been used, it was only employed 36 times. The District also llas one of the highest arrest rates in the country of persons on bail. The track record -of tlle District of Columbia statute is not a strong recom­mendation for tht! enactment of similar statutes. O. Restricted relcase

lIIy proposal for bail l''<:lform is one which would release accused persons sub­ject to conditions or re:~tricUons imposed by a court on a case-by-case basis. These C(1n(Uth1ns would not only be aimed at reasonably assuring the appear­ance of the defendant when required, as under the present statute, but would also be intender! to avoid otller potential problems of prE'-triall'eIN1R£'. As (I11'p[td~' expressed, dangel' to individuals would be a highly relevant consideration, as would tampering with prospective witnesses, jurors and the like. ~'his list if! -obviously not meant to be exhaustive.

In his June 1 SIJe:ech, Senator Kennedy identifiE'd a numbE'r -of suggested conJ

'ditions or :r:estrictions that might be imposed. These included requiring a de­fE'ndant to: (1) rE'port to appropriate law enforcement agencies on a regular hasis; (2) avoid aU contacts with potential witnesses; (3) avoid speCific neigh­horhoods and personal aSSOCiations; (4) not possess a weapon; (5) participatp. in a drug rehabilitation program; and (6) seel. employment. Of course, as the Senl1tor remarked, mauy other conditions can be suggested, depending on the facts of the particular case. Indeed, at least olle federal district court judge has imposed sim.llllr restrictions on an accused under the present statute. (Unitp.t1. States v. Oowper, 349 F. Supp. 560, 566 (N.D. Ohio 1972) ).

In general, as under the present statute, the presump1'ion would be favor of un­-('onditional rE'lease on p£'r~onel recogni9:ance or upon the execution of nn unRP­('ured bond. (E.g., Unitecl States Y. Lea.thers, supra. &12 F. 2d at 171). The norm would be freedom. However, a wide variety of individualized case-by-cl1se COIl­'<'E'rns would factor into the imposition of limits or conditions upon this norm for the particular defendant. These would be presented by both prosecution anil -defense counsel at a pre-trial bail hearing similar to that already afforded de­fendants. (Flee flnit('(f Stnfe8 v. Winr1. 527 F. 2rl (\72. 075 (6th Oil'. 197n) ; TTn,itfY'" States v. Gi7.bert. 425 F. 2d 490, 491-92 (D.C. Oil'. 1969) ). Conditions of hail could be later modified, if found necessary, at hearings similar to those currently em-

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!ployed in parole or probation revocation hearings. (See Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probation revocation) ; MOl'rissell v. Bl'ewer, 408 U.S. 471 (1972) (parole revocation». In addition, rules of appealability from original release orders and/or modifications of condition orders could readily be fashioned, not unlilm the provision now found in 18 U.S.C. § 3147.

The problems of prediction noted above in the context of preventive detention pose a less serious hurdle to the idea of restricted release. Restricted release does not absolutely deprive any individual of liberty. In this sense, it does not depart from traditional concepts. For instance, it allows for unfettered consultation with -counsel, and for the time and mobility that an accused may need to aid in the preparation of his case. The notion of restricted release limits liberty, but only willi regard to all relevant individual factors and explicitly stated policy aims. In other words, although admittedly imperfect, predictions of human conduct can justify graded liberty. In cases where the predictions are wrong, the fact of unnecessarily applied restrictions would not approach the total denial of freedom imposed by a system of preventive detention.

In addition, I wish to make clear that this framework for bail reform does not detract meaning from the fundamental policy of the presumption of innocence. I do not ascribe to the views of Mr. Justice Rehnquist in the most recent Supreme -Court case concerning the rights of pre-trial detainees. (Bell v. WOlfiSh, 47 U.S.L.W. 4507 (May 14, 1979». In his majority opinion, .rustice Relmquist char­acterized the presumption of innocence as an evidentiary presumption, one that "is indulged only in the absence of contrary evidence." (ld. at 4510 quot-ing Tay-701' v. Kent-/tclell, 436 U.S. 475-84 n.12 1978». I respectfully disagree. The pre­snmption of innocence is a weighty policy, (Stacll; v. Boyle, s1lP1'a, 342 U.S. at 4),

.and some commentators have well argued that it is constitutionally based. (See, e.g., ..:I,.res, Rankin &. Sturz, IJ'he JI.a-nhatt(tn BaU Project: An lntm'im Report on tlle Uses at Pre-IJ'rial Parole, 38 N.Y.U.L. Rev. 67, 69 (1963) ; Note, OOltstittttional Limitations on the OOll(litions at Pl'etl'ittl Detention, 7f) Yale L . .r., 941, 951 &. n.67 (1970». In any case, it is l'eadily recognized that this weighty policy of pre­snmin~ one's innocence until guilt is proven can be overcome. At trial, the pre­sumption of innocence is ~ overcome by proof beyond a reasonable doubt. At the pre-trial release stag-e of the criminal process, my framework allows for the lJresumption to be modified in its application in a sliding scale fashion on a case­by-case basis. This stems from the irrefutable fact that a certain amount of libE'rty is necessarily relinquished when au individual is brought into the crimi­nal process. For example, an accused may legally be required to submit to finger­printing, photographing, or measurements in addition to standing or speaking for ident.ification, appearing in court, assuming a stance, walking or making a particular gesture. (See Schmerbel' Y. Oalitol'nia, 384 U.S. 757, 764 (1966». A suspected individual may be stopped and frisked_ (E.g., IJ'erry v. Ohio, 392 U.S. 1 (1968) ). In extreme cases, he may even be made to submit by the application of force-even deadly force. These represent but a few -of the invasions of liberty which, although admittedly not pleasant, are indeed part of our trat1i­tionally accepted criminal process. In the framework which I propose todaY, the extent of the pre-trial relinquishment of liberty would depend on tlle par­ticular facts and circumstances surrounding the defendant and the situation.

'TI1E'l'e would be a presumption of unrestrieted liberty, but this presumption could be oYel'come to some degree by specific facts demonstrating a particular need.

I only wish to add with regard to the presumption of innocence that the Su­preme Court's recent holding that the presumption has no application to the rights of pre-trial detainees, (Bell v. Wolfish, SUpl'U, 47 U.S.L.W. at 4510), makes it all the more necessary to avoid pre-trial detention in as many cases as reasonable. In

-other words, Justice Rehnquist's views add to the necessity for reforming the -bail system along the lines of a restricted release framework. D. Some additionaZ thoughts

Under a restricted release system, restrictions on an accused could be modified Or release revolted by using two types of proceedings with which courts are al­ready familiar. As alluded to above, a procedure like that employed by courts in parole or probation revocation hearings would seem appropriate to deal with de­fendan~~ who mate~'ially violated the conditions of release ordered by the COlll:t. In addl~lOll, where It could be shown that an accused deliberately YioluteLlrelellse .1'estrictlOns, cOllte~p~ powers could be exercised. (See 18 U.S.C. §§ 401 &. 402). . To aid. the fnctlOmng of a -syst~m based on my proposals, parallel legislation :should el1minate-except perhaps 1ll extraordinary cases-tbe possibility of con-

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{lurrent sentences for crimes committed by defendants on release. Senator Ken­nedy spoke to this issue on June 1 when he suggesteil that concurrent se~tencing­for crimes committed on bail actually encourages the accused to commIt other crimes. His reasoning was that the likelihood of a concurrent sentence offers .an opportunity for the commission of additional crimes without fear of corresp~ndI~g additional sanctions. I would favor legislation that creates a presumptIOn III favor of consecutive sentences for crimes committed while an accused is on pre­trial release. The theory behind this approach is that a crime committed while­on pre-trial release represents a substantial aggravating factor to be considered' in sentencing. To encourage concurrent sentences is to ignore this theory j to' impose consecutive sentences is to put this theory into practice.

IV. CONCLUSION As I stated at the outset, my proposed framework for bail reform is OIle which.

strives for practical results while avoiding theoretical warfare. These proposals­do not represent a radical departure from present practice. As can be seen, many existing legislati,'e aims and judicial practices in both the bail system and other analogous contexts are drawn upon in formulating these ideas for needed r~form. No great debate over principle is intended. My proposals will hopefully be VIewed in the liO'ht in which they are offered. They represent a down-to-earth attempt to deal witll certain practical needs of our country that the bail system can and should satisfy, without compromising important constitutional protections and: ci villiberties.

SENATOR D!)LE'S QUESTIONS FOR PROFESSOR ALAN DERSHOWITZ

1. In your statement, on pages 3-4, you say there is considerable confusion amon"" scholars as to whether the Framers of the Constitution intended to author­ize p:'eventive detention, whereby a suspect can be denied bail on the basis of whether he poses a sufficient great danger to society.

Yet on page three you say the arrest rate for persons out on bail is more than than ten times the arrest rate for the general population.

This clearly indicates that suspects on bail pose a danger to society, which we need to curtail. Despite this obvious danger to society posed by bailees, you are opposed to preventIve detention, and recommend a form of "restricted release," I.e., release based on restrictions determined on a case by case basis.

Is there a danger that such a restricted release system may be subject to arbi­trariness by various judges and that it would result in a system as bad as, or worse than, the present bail system?

How would a judge predict the likelihOOd of a particular suspect's commission of more crimes while released on bail ?

2. While "danger to society" would be a factor to be considered by the judge in your restricted release system, could this in fact become a meaningless cri­terion. subject to each judge's whim?

3. Would it be fairer to suspect and safer for society if we amend S. 1722 to mandate the denial of pre-trial release to any suspect accused of certain heinous crimes, by category?

4. On page seven, you cite the District of Columbia Preventive Detention Stat­ute as proof that such statutes "don't work," because it is rarely invoked. Do you feel that if the Congress mandates preventive detention in this act, Federal judges will be more lil{ely to invoke this statute?

5. You seem to show ¢reat ('on cern for the rights of the accused. But what about the rights of the victims of crime?

Do you fa,or a provision in the bill to provide for restitution to victims of crime?

If so, how would you integrate such restitution w!th civil damage liability for the same act?

6. What is your opinion of determining sentencing and the sentencing com­mission, which S. 1722 provides?

ALAN DERSHOWITZ' ANSWERS TO SENATOR ROBERT DOLE'S QUESTIONS

1. I agree with you that there is a danger of judicial arbitrariness 'In a re­stricted release type of bail system. Part of the aim, however, is to structure a system in which arbitrariness is reduced and has the least effect on constit.utional liberties. I believe that a restricted release system accomplishes this goal.

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Under restricted release, judicial decisions-even if arbitrarY-would not bring .about the absolute deprivation of liberty that results from the surreptitious use of the pr~sent system or that would result under a system of preventive detention. In~t&ild, It would lead to greater restrictions on a defendant. As set out in my wrltten sta!ement, these restrictions would be subject to modification and might well be :evlCwable. In any cases, conditions of bail would not seriously intrude on the rlght to freedom before trial and would not impede a defendant from at least .aiding in the preparation of his own defense. On the other hand arbitrari­ness 1Il the pr.esent system or in a preventive detention system results in the com­plete. abrogatIOIl of these basic rights and pOlicies that are at the heart of any pretnal release system.

In addit!on, Justice Rehnquist's majority opinion in Bell v_ Wolfish (47 U.S.L.t".4007 (May 14, 1979», holding that the presumption of innocence has no application to the rights of pretrial detainees, provides another argument for favoring a restricted release system over either the present system ur a system of prevent!ve det.en.tion. Quite Simply, we especially do not want persons confined on a pretnal baSIS If the confinement is not subject to certain fundamental tenets of our criminal justice system.

In respo~se. to the second part of this question, I can only say that judges would make predIctIons on the basis of a wide variety of individualized case-by-case concernS-for example, the nature of the crime charged the defendant's dru" habit if any, the defendant's past record, and the defend~nt's current work and f.ami.ly situation would all seem relevant factors in a judge's prediction of the likelihood of a suspect's commission of more crimes while on bail. Studies of fac­tors that are somewhat predictive of crime might be employed although none that I know of permit a high degree of predictive accuracy. Alth~ugh admittedly far fro~ pe.rf~ct, I feel that predictions of human conduct can justify a graded liberty. As I s.ald m re.sP0l!-se to SenatOl: Thurmond's question during my oral testimony, more mformatron IS needed by Judges. However, restricted release based on the kind of information already available seems a better alternative to surreptitious use of the present system based on that same information.

2. I do not propose that "danger to society" be a factor considered in a re­stricted release system. Rather, it is "danger to individuals" that I consider to be the relevant factor. It is important to make this clistinction. The use of dan o'er to -SOCiety, as distinguished from danger to the individuals who make up SOCiety suggests that uail restI'ictions could be applied to prevent anticipated crimes of speech, advocacy and pOlitical organization. These are the traditional crimes against society. One need only look as far as Judge JUlius HOffman's denial of bail pending appeal to the defendants in the Chicago Seyen trial to see the evils that a general "danger to SOCiety" standard could produce. (See Dershowitz "Imprisonment by Judicial Hunch," 57 A.B.A.J. 560, 501 (June, 1971) ). My pro~ :posed system, however, would generally exclude crimes of advocucy from a judge's conSideration, and would focus on crimes of physicalllarlll to individuals. By so limiting the dangerousness criterion, one substantially decreases-without entirely eliminating-the chunce that it will become a meaningless criterion sub-ject to each judge's Whims. '

3. I do not believe that it would be fairer to suspects to mandate the denial of pretrial release to those accused of certain heinous crimes. Due to the afore­mentioned unreliability of predictions and the absolute deprivations imposed by :preventive detention, a mandated denial of pretrial release does nothing positive in terms of fairness to any suspect.

Sufficient data does not exist to know whether mandated preventh"e detention in certain cases would ,be safer for individuals in our society. Again, the unrelia­lJility inherent in predicting rare Inul1an events argues against any form of abso­lute prevcntiYe detention. To mandate denial of pretrial release for the safety of individuals, at this point in time, would be to treat with surgery that which might be alleviated by aspirin.

4. In my written statement, at page 7, I cited the District of Columbia pre­,entive detention statute as "not a strong recommenda tion for the enactment of similar statutes." The statute in the District is rarely invoked, largely because of its cumbersome mechanism to protect due process guarantees. 'l'hese procedures cause prosecutors and judges to look to the easier surreptitious n~e of the present money Ibail system. If Congress should mandate preyentiye detention, similar safeguards would be necessary, and the mechanism would lil{ely prove to be as llnworkable as that in the District. If prosecutors and Judges have the present money bail system available as the alternative, there is no reason to believe that

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the experience in thll federal courts would not mirror that of the Di<iltl'1ct'of Columbia courts.

It is important to note that due process guarantees could be protected in a restricted release system by employing procedures analogous to those already in effect in other contexts in the criminal justice system. As a result, the mech­anism need not be unruly.

5. This question is beyond the scope of my testimony. I will state, however;. that I have always been in favor of a state mandated system of restitution for­victims of crime. I also favor adopting procedures whereby persons erroneously· convicted of crimes they did not commit could be given restitution for the harllll done to them by a false conviction and imprisonment. (See Goldberg, "Equality' and Governmental Action," 39 N.Y.U.L. Rev. 205,224 (1964)).

6. My views on sentencing and a sentencing commission are contained in the· record of Ply prior testimony that I offered to the Subcommittee on Criminal Laws and Procedure a few years back. ("Reform of Federal Criminal Laws: Hearings on S. 1437, S. 31, S. 45, S. 181, S. 260, S. 888, S. 979 and S. 1221 before· the Subcommittee on Criminal Laws and Procedure of the Senate Committee oil. the Judiicary, " 95th Congress, 1st session 9042 (1977) ).

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